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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934
Date of report (Date of
earliest event reported): December 30, 2024
QUEST RESOURCE HOLDING
CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Nevada |
|
001-36451 |
|
51-0665952 |
(State or other Jurisdiction of Incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
3481 Plano Parkway, The Colony, Texas |
|
75056 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (972) 464-0004
|
(Former name or former address if changed since last report) |
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the follow provisions:
☐ Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
Trading Symbol |
Name of each exchange on which registered |
Common Stock, $0.001 par value |
QRHC |
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is
an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01. | Entry into a Material Definitive Agreement. |
On
December 30, 2024, Quest Resource Holding Corporation (the “Company”) and certain of its domestic subsidiaries entered into
an amendment (the “Monroe Sixth Amendment”) to that certain Credit Agreement, dated as of October 19, 2020 (as amended by
that certain First Amendment to Credit Agreement, dated as of September 3, 2021, that certain Second Amendment to Credit Agreement, dated
as of December 1, 2021, that certain Third Amendment to Credit Agreement, dated as of December 7, 2021, that certain Letter Agreement,
dated as of August 9, 2022, that certain Fourth Amendment to Credit Agreement, dated as of December 2, 2022, as further amended by that
certain Fifth Amendment to Credit Agreement, dated as of March 29, 2024, and as may be further amended, restated, supplemented, or otherwise
modified from time to time, the “Monroe Credit Agreement”), with Monroe Capital Management
Advisors, LLC, as administrative agent for the lenders thereto (the “Lenders”) and the Lenders. The Monroe Sixth Amendment,
among other things, amended the Monroe Credit Agreement to reduce the interest rate from SOFR plus 750 basis points to SOFR plus 550 basis
points, stepping down to SOFR plus 450 basis points depending on leverage from SOFR plus 550 basis points, extend the maturity date to
June 2030, increase existing net leverage covenant levels, reduce prepayment premiums and provide for a $25 million delayed draw term
loan commitment. The information contained in Exhibit 10.1 filed herewith is hereby incorporated
by reference into this Item 1.01.
On
December 30, 2024, the Company and certain of its domestic subsidiaries entered into an amendment (the “PNC Fifth Amendment”)
to that certain Loan, Security and Guaranty Agreement, dated as of August 5, 2020 (as amended by the Joinder and First Amendment, dated
as of October 19, 2020, as amended by the Joinder and Second Amendment, dated as of December 7, 2021, as amended by the Third Amendment
to Loan, Security and Guaranty Agreement, dated as of December 2, 2022, as amended by the Fourth Amendment to Loan, Security and Guaranty
Agreement, dated as of March 29, 2024, and as may be further amended restated, supplemented or otherwise modified from time to time, the
“PNC Loan Agreement”), with PNC Bank, National Association, successor to BBVA USA, as
a lender, and as administrative agent, collateral agent, and issuing bank, to, among other things, increase the revolver commitment
from $35 million to $45 million, reduce the interest rate by approximately 40 basis points, improve borrowing base flexibility, and extend
the maturity date to December 2029. The information contained in Exhibit 10.2 filed herewith is hereby incorporated by reference to this
Item 1.01.
In
connection with the Monroe Sixth Amendment and the PNC Fifth Amendment, PNC Bank and Monroe
Capital Management Advisors, LLC entered into the Third Amendment to Intercreditor Agreement (the “Intercreditor Agreement Amendment”)
setting forth their relative rights with respect to their interests in the collateral under their respective agreements.
The
above description of the Monroe Sixth Amendment, the PNC Fifth Amendment and the Intercreditor
Agreement Amendment does not purport to be a complete description of all the terms, provisions, covenants and agreements contained therein
and is subject to, and qualified in its entirety by reference to, the full text of the Monroe Sixth Amendment, the PNC Fifth Amendment
and the Intercreditor Agreement Amendment, which are filed herewith as Exhibit 10.1, Exhibit 10.2 and Exhibit 10.3, respectively, to this
Current Report on Form 8-K and are incorporated herein by reference into this Item 1.01.
Item 2.03. | Creation of a Direct Financial Obligation
or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
Certain information with
respect to the Monroe Sixth Amendment and PNC Fifth Amendment set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated
into this Item 2.03 by reference.
On December 30, 2024,
the Company announced its entry into the Monroe Sixth Amendment and the PNC Fifth Amendment. A copy of the press release is attached to
this Current Report on Form 8-K as Exhibit 99.1 and is incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
Exhibit No. |
Description |
|
|
10.1 |
Sixth Amendment to Credit Agreement, dated December 30, 2024, by and among Quest Resource Holding Corporation, Quest Resource Management Group, LLC and each of its Affiliates that are or may from time to time become parties thereto, the financial institutions that are or may from time to time become parties thereto, and Monroe Capital Management Advisors, LLC, as administrative agent for the lenders. |
|
|
10.2 |
Fifth Amendment to Loan, Security and Guaranty Agreement, dated as of December 30, 2024, by and among PNC Bank, National Association, Quest Resource Management Group, LLC, Quest Equipment, LLC, Quest Resource Holding Corporation, Quest Sustainability Services, Inc., YouChange, Inc., Quest Vertigent Corporation, Quest Vertigent One, LLC and Global Alerts, LLC. |
|
|
10.3 |
Third Amendment to Intercreditor Agreement, dated as of December 30, 2024, by and between PNC Bank, National Association and Monroe Capital Management Advisors, LLC. |
|
|
99.1 |
Press Release dated December 30, 2024. |
|
|
104 |
Cover Page Interactive Data (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
QUEST RESOURCE HOLDING CORPORATION |
|
|
|
|
|
|
Dated: December 30, 2024 |
By: |
/s/ Brett W.
Johnston |
|
|
Name: |
Brett W. Johnston |
|
|
Title: |
Senior Vice President and Chief Financial Officer |
FIFTH AMENDMENT AND LIMITED WAIVER TO
LOAN, SECURITY AND GUARANTY AGREEMENT
THIS FIFTH AMENDMENT AND
LIMITED WAIVER TO LOAN, SECURITY AND GUARANTY AGREEMENT (this “Amendment”) is made and entered into as of December
30, 2024, by and among PNC BANK, NATIONAL ASSOCIATION, successor to BBVA USA (“PNC”), individually as a Lender, as
administrative agent (in such capacity, “Administrative Agent”) for itself and any other financial institution which
is or becomes a party hereto as a lender (each such financial institution, including PNC, a “Lender” and collectively
the “Lenders”), and as collateral agent (in such capacity, “Collateral Agent”) for the Lenders,
Quest Resource Management Group, LLC, a Delaware limited liability company (“Quest”), Quest Equipment, LLC, a Delaware
limited liability company (“Quest Equipment”, and together with Quest, jointly and severally, collectively the “Borrowers”
and each a “Borrower”), Quest Resource Holding Corporation, a Nevada corporation (“Holdings”), Quest
Sustainability Services, Inc., a Delaware corporation (F/K/A Earth911, Inc.) (“Parent”), Youchange, Inc., an Arizona
corporation (“Youchange”), Quest Vertigent Corporation, a Nevada corporation (“Vertigent”), Quest
Vertigent One, LLC, a Delaware limited liability company (“Vertigent One”), and Global Alerts, LLC, a Delaware limited
liability company (“Global Alerts”, and together with Holdings, Parent, Youchange, Vertigent, and Vertigent One, jointly
and severally, each a “Guarantor” and collectively, the “Guarantors”).
RECITALS
A. Borrower, Guarantors, Lenders, Collateral Agent, and Administrative Agent are parties to (i) that certain Loan, Security and
Guaranty Agreement, dated as of August 5, 2020 (as amended hereby and as may be further amended, restated, supplemented or otherwise modified
from time to time, the “Loan Agreement”) and (ii) the other Loan Documents (as defined in the Loan Agreement,
and in each case as amended hereby and as may be further amended, restated, supplemented or otherwise modified from time to time).
B. Certain Events of Default (the “Specified Factoring Events of Default”) have occurred pursuant Section 11.1.3
to the Loan Agreement as a result of Quest violating Sections 9.2.1, 9.2.2, and 9.2.4 of the Loan Agreement by factoring, prior to the
effective date of this Amendment, certain Archer Daniels Midland accounts receivable pursuant to that certain Supplier Receivables Purchase
Agreement with ETS Terms (U.S. Supplier), dated as of August 31, 2022, between Quest and Bank of America.
C. Borrowers and Guarantors have requested that Administrative Agent and the Lenders: (i) waive the Specified Factoring Events of
Default, and (ii) amend the Loan Agreement and the other Loan Documents in order to, among other things, increase the amount of the Revolving
Credit Commitments, and the Administrative Agent and the Lenders have agreed to make certain amendments to the Loan Agreement, in the
manner set forth herein, subject to the terms and conditions hereinafter 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, intending to be legally bound, agree as follows:
AGREEMENT
ARTICLE I
Definitions
1.01 Capitalized terms used in this Amendment are defined in the Loan Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
Amendments
2.01 Amendments to the Loan Agreement. The Loan Agreement is hereby amended (a) to delete the red or green stricken
text (indicated textually in the same manner as the following examples: stricken text
and stricken text) and (b) to add the blue or green double-underlined text (indicated
textually in the same manner as the following examples: double-underlined
text and double-underlined text), in each case, as set forth in
the marked copy of the Loan Agreement attached hereto as Annex A and incorporated herein and made a part hereof for all purposes.
2.02 Amendments to the Schedules to the Loan Agreement. Schedule 1 to the Loan Agreement is hereby amended by supplementing
the existing Schedule 1 with the Schedule 1 attached hereto as Annex A. By acknowledging and agreeing to this Amendment,
the undersigned hereby agrees that the updated Schedule 1 attached hereto as Annex A may be attached to the Loan Agreement
and made a part thereof for all purposes.
ARTICLE III
Conditions Precedent
3.01 Conditions to Effectiveness. The effectiveness of this Amendment is subject to the satisfaction of the following conditions
precedent in a manner satisfactory to Administrative Agent and the Lenders (the date that all such conditions are satisfied, the “Fifth
Amendment Effective Date”):
(a) Administrative Agent shall have received this Amendment duly executed by each party hereto.
(b) Administrative Agent shall have received a fully executed and delivered amendment to the Acquisition Term Loan Agreement, in form
and substance satisfactory to the Administrative Agent at its sole option, which amendment shall, among other things, extend the maturity
of the Acquisition Term Loan Agreement to a date that is at least six (6) years from the Fifth Amendment Effective Date, which amendment
shall have become effective in accordance with its terms.
(c) Administrative Agent shall have received a fully executed and delivered amendment to the Intercreditor Agreement, in form and substance
satisfactory to the Administrative Agent at its sole option, which amendment shall have become effective in accordance with its terms.
(d) Administrative Agent shall have received an updated Revolving Credit Note, and an updated Term Loan Note, each in form and substance
satisfactory to the Administrative Agent at its sole option, reflecting the line increases set forth in the Fifth Amendment.
(e) Administrative Agent shall have received payment, of an extension fee in the amount of $127,182, which payment may be implemented
by adding such amount to the Obligations, and which shall be deemed fully earned on the Fifth Amendment Effective Date and nonrefundable.
(f) The representations and warranties of the Loan Parties in the Loan Documents, as each is amended hereby, shall be true and correct
in all material respects (or, as to any representations and warranties which are subject to a materiality or Material Adverse Effect qualifier,
true and correct in all respects) as of the Fifth Amendment Effective Date (except for representations and warranties that expressly relate
to an earlier date or for such changes as provided in Section 8.2 of the Loan Agreement).
(g) No Default or Event of Default shall have occurred and be continuing or would result from this Amendment.
(h) Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary (or other equivalent officer, partner
or manager) of the Loan Parties in form and substance satisfactory to the Administrative Agent, dated as of the Fifth Amendment Effective
Date, which shall certify (i) copies of resolutions in form and substance reasonably satisfactory to the Administrative Agent, of the
board of directors (or other equivalent governing body, member or partner) of the Loan Parties authorizing the execution, delivery and
performance of this Amendment and each Loan Document executed in connection herewith, and such resolutions have not been amended, modified,
revoked or rescinded as of the date of such certificate, (ii) the incumbency and signature of the officers of the Loan Parties authorized
to execute this Amendment and the other Loan Documents; (iii) copies of the organizational documents of the Loan Parties as in effect
on such date, complete with all amendments thereto, and (iv) good standing (or equivalent status) of the Loan Parties in their jurisdiction
of organization and each applicable jurisdiction where the conduct of business activities or the ownership of properties necessitates
such qualification (except where failure to obtain authorization to do business in any such jurisdiction could not reasonably be expected
to have a Material Adverse Effect), as evidenced by good standing certificates (or the equivalent thereof issued by any applicable jurisdiction)
dated reasonably prior to the Fifth Amendment Effective Date, issued by the Secretary of State or other appropriate official of each such
jurisdiction.
(i) The Administrative Agent shall have received an executed legal opinion of the Loan Parties’ counsel, in form and substance
satisfactory to the Administrative Agent, which shall cover such customary matters incident to the transactions contemplated by this Amendment,
and each Loan Party hereby authorizes and directs such counsel to deliver such opinion to the Administrative Agent and Lenders.
(j) The Administrative Agent shall have received reimbursement of all expenses incurred by the Administrative Agent in connection with
this Amendment, including, without limitation, the fees and expenses of the Administrative Agent’s counsel incurred in connection
with the preparation, negotiation, and execution of this Amendment.
(k) No event shall have occurred and no condition shall exist which has had or could be reasonably expected to have a Material Adverse
Effect.
ARTICLE IV
Consent and Limited Waiver, Ratifications, Representations and Warranties
4.01 Limited Waiver. Upon the satisfaction of the terms and conditions in Article III hereof the Administrative Agent and
each Lender hereby waive the Specified Factoring Events of Default; provided, however, nothing herein shall be deemed a waiver with respect
to any other or future failure to comply fully with the Loan Agreement. This waiver shall be effective only for the specific defaults
comprising the Specified Factoring Events of Defaults, and in no event shall this waiver be deemed to be a waiver of the Administrative
Agent’s or any Lender’s rights with respect to any other Defaults or Events of Default now existing or hereafter arising,
whether known or unknown. Nothing contained in this Amendment nor any communications between any Loan Party and the Administrative Agent
or any Lender shall be a waiver of any rights or remedies the Administrative Agent or any Lender has or may have against any Loan Party,
except as specifically provided herein. Except as specifically provided herein, the Administrative Agent and each Lender hereby reserves
and preserves all of its rights and remedies against each Loan Party under the Loan Agreement and the other Loan Documents.
4.02 No Other Waiver or Consent; No Novation. Other than as expressly set forth in Section 4.01 hereof, nothing contained
in this Amendment shall be construed as a forbearance, waiver, consent or amendment by the Administrative Agent or any Lender of any covenant
or provision of, or operate as a forbearance or waiver of any right, power or remedy of the Administrative Agent or any Lender under the
Loan Agreement, the other Loan Documents, this Amendment, or of any other contract or instrument between any Loan Party and the Administrative
Agent or any Lender, and the failure of the Administrative Agent or any Lender at any time or times hereafter to require strict performance
by the Loan Parties of any provision thereof shall not waive, affect or diminish any right of the Administrative Agent or any Lender to
thereafter demand strict compliance therewith. The Administrative Agent and each Lender hereby reserves all rights granted under the Loan
Agreement, the other Loan Documents, this Amendment and any other contract or instrument between any of them. This Amendment does not
constitute a novation of rights, obligations and liabilities of the respective parties existing under the Loan Agreement or any of the
other Loan Documents.
4.03 Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms
and provisions set forth in the Loan Agreement and the other Loan Documents, and, except as expressly modified and superseded by this
Amendment, the terms and provisions of the Loan Agreement and the other Loan Documents are ratified and confirmed and shall continue in
full force and effect. The Loan Parties, Administrative Agent and each Lender agree that the Loan Agreement and the other Loan Documents,
as amended hereby, shall continue to be legal, valid, binding and enforceable in accordance with their respective terms.
4.04 Representations and Warranties. Each Loan Party hereby represents and warrants to Administrative Agent and the Lenders
that (a) the execution, delivery and performance of this Amendment and any and all other Loan Documents executed and/or delivered
in connection herewith have been authorized by all requisite organizational action on the part of such Person and will not violate the
organizational or governing documents of such Person; (b) the representations and warranties of the Loan Parties in the Loan Documents,
as each is amended hereby, are true and correct in all material respects as of the Fifth Amendment Effective Date (except that any representation
or warranty which by its terms is made as of a specified date is 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 or Material Adverse Effect qualifier is true and correct in
all respects); (c) no Default or Event of Default under the Loan Agreement, as amended hereby, has occurred and is continuing; and
(d) Each Loan Party is in material compliance with all covenants and agreements contained in the Loan Agreement and the other Loan
Documents, as amended hereby.
4.05 Affirmation and Representations Concerning Outstanding Term Loan Balances. Each of the Loan Parties acknowledges and
affirms that prior to the date of this amendment, the Lenders provided one or more term loan advances, and as of the date hereof, the
aggregate principal balance of all such outstanding term loan obligations is no less than $2,872,802.23.
ARTICLE V
Miscellaneous Provisions
5.01 Survival of Representations and Warranties. All representations and warranties made in the Loan Agreement or any other
Loan Document, including, without limitation, any document furnished in connection with this Amendment, shall survive the execution and
delivery of this Amendment and the other Loan Documents, and no investigation by Administrative Agent or any Lender or any closing shall
affect the representations and warranties or the right of Administrative Agent or any Lender to rely upon them.
5.02 Reference to Loan Agreement. Each of the Loan Agreement and the other Loan Documents, and any and all other Loan Documents,
documents or instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Loan Agreement,
as amended hereby, are hereby amended so that any reference in the Loan Agreement and such other Loan Documents to the Loan Agreement
shall mean a reference to the Loan Agreement, as amended hereby, and any reference in the Loan Agreement and such other Loan Documents
to any other Loan Document amended by the provisions of this Amendment shall mean a reference to such other Loan Documents, as amended
hereby.
5.03 Expenses of Administrative Agent and Lenders. The provisions of Section 3.7 and Section 13.2
of the Loan Agreement are hereby incorporated by reference herein, mutatis mutandis.
5.04 Severability. Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable
shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be
invalid or unenforceable.
5.05 Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of Administrative Agent, each
Lender and each Loan Party and their respective successors and assigns, except that each Loan Party may not assign or transfer any of
its rights or obligations hereunder without the prior written consent of Administrative Agent.
5.06 Counterparts; Electronic Signatures. This Amendment may be executed in one or more counterparts, each of which when
so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument. This
Amendment may be executed by facsimile transmission or other electronic means, which facsimile or other electronic signatures shall be
considered original executed counterparts, and each party to this Amendment agrees that it will be bound by its own facsimile or other
electronic signature and that it accepts the facsimile or other electronic signature of each other party to this Amendment.
5.07 Effect of Waiver. No consent or waiver, express or implied, by Administrative Agent or any Lender to or for any breach
of or deviation from any covenant or condition by any Loan Party shall be deemed a consent to or waiver of any other breach of the same
or any other covenant, condition or duty.
5.08 Headings. The headings, captions, and arrangements used in this Amendment are for convenience only and shall not affect
the interpretation of this Amendment.
5.09 Applicable Law. This Agreement and all other Loan Documents executed pursuant hereto shall be deemed to have been made
and to be performable in and shall be governed by and construed in accordance with the laws of the State of Texas.
5.10 Release of Claims. In consideration of the Lenders’ and Administrative Agent’s agreements contained in this
Amendment, each Loan Party hereby irrevocably releases and forever discharges the Lenders and Administrative Agent and their affiliates,
subsidiaries, successors, assigns, directors, officers, employees, agents, consultants and attorneys (each, a “Released Person”)
of and from any and all claims, suits, actions, investigations, proceedings or demands (including any so-called “lender liability”
claims or defenses), whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common
law of any kind or character, known or unknown, which such Loan Party ever had or now has against Administrative Agent, any Lender or
any other Released Person which relates, directly or indirectly, to any acts or omissions of Administrative Agent, any Lender or any other
Released Person relating to the Loan Agreement or any other Loan Document on or prior to the date hereof.
5.11 Final Agreement. THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION
OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE LOAN AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION
OF THIS AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY THE LOAN PARTIES AND ADMINISTRATIVE AGENT.
5.12 Post-Closing Covenant. No later than five (5) Business Days after the date of this Amendment (or such other time as
the Administrative Agent may determine in its sole discretion), the Loan Parties shall deliver to the Administrative Agent original, physically
executed copies of their signature pages for this Amendment, and all other documents contemplated by or executed in connection with this
Amendment. Failure to timely comply with such post-closing covenant shall constitute an Event of Default under the Loan Agreement.
[Signature pages follow.]
IN WITNESS WHEREOF, this
Amendment has been executed on the date first written above, to be effective as the respective date set forth above.
|
PNC BANK, National Association, |
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Successor to BBVA USA, as Administrative |
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Agent, Collateral Agent and as a Lender |
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By: |
/s/ Brad Miller |
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Name: |
Brad Miller |
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Title: |
Vice President |
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PNC BANK, National Association, |
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Successor to BBVA USA, as Issuing Bank |
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By: |
/s/ Brad Miller |
|
Name: |
Brad Miller |
|
Title: |
Vice President |
Signature Page – Quest – Fifth Amendment
BORROWERS: |
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QUEST RESOURCE MANAGEMENT GROUP, LLC |
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|
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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QUEST EQUIPMENT, LLC |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
|
Signature Page – Quest – Fifth Amendment
GUARANTORS: |
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QUEST RESOURCE HOLDING CORPORATION |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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QUEST SUSTAINABILITY SERVICES, INC. |
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(F/K/A EARTH 911, INC.) |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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YOUCHANGE, INC. |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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QUEST VERTIGENT CORPORATION |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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QUEST VERTIGENT ONE, LLC |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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Signature Page – Quest – Fifth Amendment
GUARANTORS (CONTINUED): |
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GLOBAL ALERTS, LLC |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
|
Signature Page – Quest – Fifth Amendment
Annex A
Conformed Loan Agreement
_________________________________________________
QUEST RESOURCE MANAGEMENT GROUP, LLC
LANDFILL DIVERSION INNOVATIONS, L.L.C.
QUEST EQUIPMENT,
LLC
_________________________________________________
_________________________________________________
_________________________________________________
LOAN, SECURITY AND GUARANTY AGREEMENT
Dated: August 5, 2020
$40,000,00050,872,802
_________________________________________________
_________________________________________________
_________________________________________________
PNC BANK, NATIONAL ASSOCIATION
(successor to BBVA USA,)
Individually and as Administrative Agent and
Collateral Agent
for any Lender which is or becomes a party hereto
_________________________________________________
PNC BANK, NATIONAL ASSOCIATION (successor to
BBVA USA),
as Sole Arranger and Sole Bookrunner
TABLE OF CONTENTS
Page
ARTICLE I. DEFINED TERMS |
1 |
|
1.1 |
DEFINITIONS |
1 |
|
1.2 |
OTHER TERMS |
45 |
|
1.3 |
CERTAIN MATTERS OF CONSTRUCTION |
46 |
|
1.4 |
CHANGES IN GAAP |
46 |
|
1.5 |
DIVISIONS |
46 |
|
1.6 |
NOTIFICATION AND LIMITATION OF LIABILITY – LIBOR AND RELATED MATTERS |
46 |
ARTICLE II. CREDIT FACILITY |
47 |
|
2.1 |
REVOLVING CREDIT LOANS |
47 |
|
2.2 |
LETTERS OF CREDIT |
48 |
|
2.3 |
TERM LOAN |
52 |
|
2.4 |
ACCORDION |
50 |
ARTICLE III. INTEREST, FEES AND CHARGES |
53 |
|
3.1 |
INTEREST |
53 |
|
3.2 |
COMPUTATION OF INTEREST AND FEES |
54 |
|
3.3 |
FEE LETTER |
54 |
|
3.4 |
LETTER OF CREDIT FEES |
54 |
|
3.5 |
UNUSED LINE FEES |
55 |
|
3.6 |
OTHER FEES |
55 |
|
3.7 |
REIMBURSEMENT OF EXPENSES |
55 |
|
3.8 |
BANK CHARGES |
56 |
|
3.9 |
APPRAISALS; FIELD EXAMINATIONS |
56 |
|
3.10 |
PAYMENT OF CHARGES |
56 |
|
3.11 |
TAXES |
57 |
|
3.12 |
ACKNOWLEDGEMENT AND CONSENT TO BAIL-IN OF EEA FINANCIAL INSTITUTIONS |
59 |
ARTICLE IV. LOAN ADMINISTRATION |
59 |
|
4.1 |
PROCEDURES FOR BORROWING AND LIBOR/TERM SOFR OPTION |
59 |
|
4.2 |
PAYMENTS |
63 |
|
4.3 |
MANDATORY AND OPTIONAL PREPAYMENTS |
64 |
|
4.4 |
APPLICATION OF PAYMENTS AND COLLECTIONS |
67 |
|
4.5 |
ALL LOANS TO CONSTITUTE ONE OBLIGATION |
68 |
|
4.6 |
LOAN ACCOUNT |
68 |
|
4.7 |
STATEMENTS OF ACCOUNT |
68 |
|
4.8 |
INCREASED COSTS |
69 |
|
4.9 |
INEFFECTIVE INTEREST RATE; BENCHMARK REPLACEMENT |
70 |
|
4.10 |
SHARING OF PAYMENTS, ETC |
75 |
|
4.11 |
DEFAULTING LENDER |
75 |
ARTICLE V. TERM AND TERMINATION |
77 |
|
5.1 |
TERM OF AGREEMENT |
77 |
|
5.2 |
TERMINATION |
77 |
ARTICLE VI. SECURITY INTERESTS |
78 |
|
6.1 |
SECURITY INTEREST IN COLLATERAL |
78 |
|
6.2 |
OTHER COLLATERAL |
80 |
|
6.3 |
LIEN PERFECTION; FURTHER ASSURANCES |
81 |
|
6.4 |
LIEN ON REALTY |
81 |
ARTICLE VII. COLLATERAL ADMINISTRATION |
81 |
|
7.1 |
GENERAL |
81 |
|
7.2 |
ADMINISTRATION OF ACCOUNTS |
83 |
|
7.3 |
[RESERVED] |
85 |
|
7.4 |
ADMINISTRATION OF ELIGIBLE MACHINERY AND EQUIPMENT |
85 |
|
7.5 |
PAYMENT OF CHARGES |
86 |
ARTICLE VIII. REPRESENTATIONS AND WARRANTIES |
86 |
|
8.1 |
GENERAL REPRESENTATIONS AND WARRANTIES |
86 |
|
8.2 |
CONTINUOUS NATURE OF REPRESENTATIONS AND WARRANTIES |
97 |
|
8.3 |
SURVIVAL OF REPRESENTATIONS AND WARRANTIES |
97 |
ARTICLE IX. COVENANTS AND CONTINUING AGREEMENTS |
97 |
|
9.1 |
AFFIRMATIVE COVENANTS |
97 |
|
9.2 |
NEGATIVE COVENANTS |
104 |
ARTICLE X. CONDITIONS PRECEDENT |
116 |
|
10.1 |
INITIAL LOANS |
116 |
|
10.2 |
CONDITIONS PRECEDENT TO ALL LOANS AND CREDIT ACCOMMODATIONS |
119 |
ARTICLE XI. EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT |
119 |
|
11.1 |
EVENTS OF DEFAULT |
119 |
|
11.2 |
ACCELERATION OF THE OBLIGATIONS |
122 |
|
11.3 |
OTHER REMEDIES |
122 |
|
11.4 |
SETOFF AND SHARING OF PAYMENTS |
123 |
|
11.5 |
REMEDIES CUMULATIVE; NO WAIVER |
124 |
|
11.6 |
CURATIVE EQUITY. |
124 |
ARTICLE XII. AGENTS |
125 |
|
12.1 |
AUTHORIZATION AND ACTION |
126 |
|
12.2 |
AGENTS’ RELIANCE, ETC |
126 |
|
12.3 |
PNC AND AFFILIATES |
127 |
|
12.4 |
LENDER CREDIT DECISION |
127 |
|
12.5 |
INDEMNIFICATION |
127 |
|
12.6 |
RIGHTS AND REMEDIES TO BE EXERCISED BY ADMINISTRATIVE AGENT ONLY |
128 |
|
12.7 |
AGENCY PROVISIONS RELATING TO COLLATERAL |
128 |
|
12.8 |
RESIGNATION OF AGENT; APPOINTMENT OF SUCCESSOR |
129 |
|
12.9 |
AUDIT AND EXAMINATION REPORTS; DISCLAIMER BY LENDERS |
129 |
|
12.10 |
ADMINISTRATIVE AGENT’S RIGHT TO PURCHASE COMMITMENTS |
130 |
|
12.11 |
INTERCREDITOR AGREEMENT |
130 |
ARTICLE XIII. MISCELLANEOUS |
130 |
|
13.1 |
POWER OF ATTORNEY |
130 |
|
13.2 |
INDEMNITY |
131 |
|
13.3 |
AMENDMENT AND WAIVERS |
132 |
|
13.4 |
SEVERABILITY |
133 |
|
13.5 |
RIGHT OF SALE; ASSIGNMENT; PARTICIPATIONS |
133 |
|
13.6 |
CUMULATIVE EFFECT; CONFLICT OF TERMS |
136 |
|
13.7 |
EXECUTION IN COUNTERPARTS |
136 |
|
13.8 |
NOTICES AND COMMUNICATIONS |
136 |
|
13.9 |
CONSENT |
138 |
|
13.10 |
CREDIT INQUIRIES |
138 |
|
13.11 |
TIME OF ESSENCE |
138 |
|
13.12 |
ENTIRE AGREEMENT |
138 |
|
13.13 |
INTERPRETATION |
138 |
|
13.14 |
CONFIDENTIALITY |
139 |
|
13.15 |
GOVERNING LAW; CONSENT TO JURISDICTION, FORUM AND SERVICE OF PROCESS |
139 |
|
13.16 |
WAIVERS BY THE LOAN PARTIES |
140 |
|
13.17 |
ADVERTISEMENT |
140 |
|
13.18 |
PATRIOT ACT NOTICE |
140 |
|
13.19 |
ENTIRE AGREEMENT |
141 |
|
13.20 |
INTERCREDITOR AGREEMENT |
141 |
ARTICLE XIV. CROSS-GUARANTY BY BORROWERS. |
141 |
|
14.1 |
CROSS-GUARANTY |
141 |
|
14.2 |
WAIVERS BY BORROWERS |
141 |
|
14.3 |
BENEFIT OF GUARANTY |
142 |
|
14.4 |
WAIVER OF SUBROGATION, ETC |
142 |
|
14.5 |
ELECTION OF REMEDIES |
142 |
|
14.6 |
LIMITATION |
142 |
|
14.7 |
CONTRIBUTION WITH RESPECT TO GUARANTY OBLIGATIONS |
143 |
|
14.8 |
LIABILITY CUMULATIVE |
144 |
|
14.9 |
KEEPWELL |
144 |
ARTICLE XV. GUARANTY |
144 |
|
15.1 |
GUARANTY OF THE OBLIGATIONS |
144 |
|
15.2 |
CONTRIBUTION BY GUARANTORS |
144 |
|
15.3 |
PAYMENT BY GUARANTORS |
145 |
|
15.4 |
LIABILITY OF GUARANTORS ABSOLUTE |
145 |
|
15.5 |
WAIVERS BY GUARANTORS |
147 |
|
15.6 |
GUARANTORS’ RIGHTS OF SUBROGATION, CONTRIBUTION, ETC |
148 |
|
15.7 |
SUBORDINATION OF OTHER OBLIGATIONS |
148 |
|
15.8 |
CONTINUING GUARANTY |
149 |
|
15.9 |
AUTHORITY OF GUARANTORS OR BORROWERS |
149 |
|
15.10 |
FINANCIAL CONDITION OF BORROWERS |
149 |
|
15.11 |
BANKRUPTCY, ETC |
149 |
LIST OF EXHIBITS AND SCHEDULES
Exhibit 2.1 |
Form of Revolving Credit Note |
Exhibit 2.3 |
Form of Term Loan Note |
Exhibit 3.11 |
Form of U.S. Tax Compliance Certificate |
Exhibit 9.1.3 |
Form of Compliance Certificate |
Exhibit 9.1.4 |
Form of Borrowing Base Certificate |
Exhibit 13.5 |
Form of Assignment and Acceptance |
|
|
Schedule 1 |
Commitment Schedule |
Schedule 1.1 |
Deemed EBITDA |
Schedule 1.1(b) |
Deemed EBITDA (RWS) |
Schedule 1.2 |
Ineligible Lenders |
Schedule 6.1 |
Commercial Tort Claims |
Schedule 7.1.1 |
Business Locations |
Schedule 8.1.1 |
Jurisdictions in which any Borrower is Authorized to do Business |
Schedule 8.1.4 |
Capital Structure |
Schedule 8.1.5 |
Names; Organization |
Schedule 8.1.13 |
Brokers’ Fees |
Schedule 8.1.14 |
Patents, Trademarks, Copyrights and Licenses |
Schedule 8.1.16 |
Environmental |
Schedule 8.1.17 |
Contracts Restricting Right to Incur Debts |
Schedule 8.1.18 |
Litigation |
Schedule 8.1.20 |
Pension Plans |
Schedule 8.1.22 |
Labor Relations |
Schedule 8.1.23 |
Leases |
Schedule 9.2.2 |
Existing Debt |
Schedule 9.2.4 |
Existing Liens |
Schedule 9.2.10 |
Existing Investments |
Schedule 9.2.14 |
Existing Restrictive Agreements |
LOAN, SECURITY AND GUARANTY AGREEMENT
THIS LOAN, SECURITY AND
GUARANTY AGREEMENT (this “Agreement”) is made as of August 5, 2020, by and among PNC Bank, National Association
(successor to BBVA USA) (“PNC”), individually as a Lender, as administrative agent (in such capacity, “Administrative
Agent”) for itself and any other financial institution which is or becomes a party hereto as a lender (each such financial
institution, including PNC, is referred to hereinafter individually as a “Lender” and collectively as the “Lenders”),
and as collateral agent (in such capacity, “Collateral Agent”) for the Lenders, Quest Resource Management Group, LLC,
a Delaware limited liability company (“Quest”), Landfill Diversion Innovations, L.L.C.Quest
Equipment, LLC, a Delaware limited liability company (“LandfillQuest
Equipment”), Sustainable Solutions Group, LLC, a Delaware limited liability company (“SSG”), RWS Facility
Services, LLC a Delaware limited liability company (“RWS”, and together with Quest, LandfillQuest
Equipment, RWS, SSG and each hereafter arising Subsidiary of any Borrower and each other Person joined hereto as a “Borrower”,
individually a “Borrower” and collectively “Borrowers”), and each of Quest Resource Holding Corporation,
a Nevada corporation (“Holdings”), and Quest Sustainability Services, Inc., a Delaware corporation (F/K/A Earth911,
Inc.) (“Parent”), Youchange, Inc., an Arizona corporation (“Youchange”), Quest Vertigent Corporation,
a Nevada corporation (“Vertigent”), Quest Vertigent One, LLC, a Delaware limited liability company (“Vertigent
One”), and Global Alerts, LLC, a Delaware limited liability company (“Global Alerts”, and together with
Holdings, Parent, Youchange, Vertigent and Vertigent One, individually a “Guarantor” and collectively, “Guarantors”).
Article
I. DEFINED TERMS
1.1 Definitions. When and if used herein: (a) the terms Account, Certificated Security, Chattel Paper, Commercial Tort
Claims, Deposit Account, Document, Electronic Chattel Paper, Equipment, Financial Asset, Fixture, General Intangibles, Goods, Instruments,
Inventory, Investment Property, Letter of Credit Rights, Payment Intangibles, Proceeds, Security, Security Entitlement, Software, Supporting
Obligations, Tangible Chattel Paper and Uncertificated Security have the respective meanings assigned thereto under the UCC; (b) all terms
reflecting Collateral having the meanings assigned thereto under the UCC shall be deemed to mean such Property, whether now owned or hereafter
created or acquired by any Loan Party or in which such Loan Party now has or hereafter acquires any interest; and (c) the following terms
shall have the following meanings (terms defined in the singular to have the same meaning when used in the plural and vice versa):
“ABL Priority Collateral”
– as defined in the Intercreditor Agreement.
“Account Debtor”
– any Person who is or may become obligated under or on account of any Account, Contract Right, Chattel Paper or General Intangible.
“Accounts Side Letter”
– that certain Accounts Side Letter, dated as of the Closing Date, by and among the Loan Parties, the Administrative Agent and the
Lenders.
“Acquisition”
– any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of all or substantially all of any business or division of a Person, (b) the
acquisition of in excess of 50% of the Equity Interests of any Person, or otherwise causing any Person to become a Subsidiary, or (c)
a merger or consolidation or any other combination with another Person (other than a Person that is already a Subsidiary).
“Acquisition Term
Agent” – Monroe Capital Management Advisors, LLC, in its capacity as agent under the Acquisition Term Loan Agreement for
the Acquisition Term Lenders, including its successors and assigns in such capacity from time to time.
“Acquisition Term
Debt” – the Term Loan Debt (as defined in the Intercreditor Agreement).
“Acquisition Term
Lenders” – the lender or group of lenders identified in the Acquisition Term Loan Agreement.
“Acquisition Term
Loan Agreement” – that certain Credit Agreement, dated as of the First Amendment Effective Date, by and among the Acquisition
Term Agent, the Acquisition Term Lenders, the borrowers and the other loan parties party thereto (as such agreement may be amended, restated,
supplemented, or otherwise modified from time to time in accordance with the Intercreditor Agreement).
“Acquisition Term
Loan Documents” – the “Loan Documents” as defined in the Acquisition Term Loan Agreement, and in each case
together with any other instrument or agreement entered into, now or in the future, by any Loan Party evidencing or in connection with
the Acquisition Term Debt, as amended, restated, supplemented or otherwise modified pursuant to the terms of the Intercreditor Agreement
or other similar intercreditor agreement.
“Acquisition Term
Loan Priority Collateral” – has the meaning given to Term Loan Priority Collateral in the Intercreditor Agreement.
“ADM/BOA
Factoring Agreement” means that certain Supplier Receivables Purchase Agreement with ETS Terms (U.S. Supplier), dated as of
August 31, 2022, by and among Quest and Bank of America, National Association, as such agreement is in effect on the Fifth Amendment
Effective Date.
“ADM
Receivable” means an Account for which Archer Daniels Midland Company, or any of its affiliates, is the account debtor.
“Administrative Agent”
– as defined in the preamble to this Agreement and any successor in that capacity appointed pursuant to Section 12.8.
“Affiliate”
– of any Person means (a) any other Person which, directly or indirectly controls or is controlled by or is under common control
with that Person, (b) any officer or director of that Person and (c) with respect to any Lender, any entity administered or managed by
that Lender or an Affiliate or investment advisor thereof and which is engaged in making, purchasing, holding or otherwise investing in
commercial loans. A Person will be deemed to be “controlled by” any other Person if that other Person possesses, directly
or indirectly, power to vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of
directors or managers or power to direct or cause the direction of the management and policies of that Person whether by contract or otherwise.
Unless expressly stated otherwise in this Agreement, none of the following Persons will be deemed an Affiliate of any Loan Party: (i)
Administrative Agent, (ii) any Lender or (iii) the Warrant Holder or any of its affiliates.
“Agent”
– each of Administrative Agent and Collateral Agent, both individually and collectively.
“Aggregate Loan Commitment”
– with respect to any Lender, the amount of such Lender’s Revolving Credit Commitment plus such Lender’s Term
Loan Commitment.
“Aggregate Payments”
– as defined in Section 15.2.
“Aggregate Percentage”
– with respect to each Lender, the percentage equal to the quotient of (i) such Lender’s Aggregate Loan Commitment divided
by (ii) the total of all Aggregate Loan Commitments.
“Aggregate Revolving
Extensions” – at any time, the sum of (i) the outstanding principal balance of all Revolving Credit Loans plus
(ii) the LC Amount.
“Agreement”
– as defined in the preamble to this Agreement, including all Exhibits and Schedules thereto, as each of the same may be amended,
restated, supplemented or otherwise modified from time to time.
“Anti-Terrorism Laws”
– any laws relating to terrorism or money laundering, including the Patriot Act.
“Applicable Law”
– all laws, rules, regulations and governmental guidelines applicable to the Person, conduct, transaction, agreement or matter in
question, including all applicable statutory law, common law and equitable principles, and all provisions of constitutions, treaties,
statutes, rules, regulations, orders and decrees of Governmental Authorities.
“Applicable Margin”
– (i) as to Revolving Credit Loans, 2.252.00%
as to Term SOFR Revolving Credit Loans and 1.251.00%
as to Base Rate Revolving Credit Loans, and (ii) as to the Term Loan, 3.002.75%
as to Term SOFR Term Loans and LIBOR Term Loans and 2.001.75%
as to Base Rate Term Loans.
“Asset Disposition”
– the sale, sale leaseback, lease, assignment, disposition, division, or other transfer for value by any Loan Party to any Person
of any asset of that Loan Party (including, the loss, destruction or damage of any thereof or any actual or threatened (in writing to
any Loan Party) condemnation, confiscation, requisition, seizure or taking thereof) other than as permitted by clauses (iii), (iv), (v),
(vi), (vii) and (viii) of Section 9.2.4.
“Assignment and Acceptance
Agreement” – an assignment and acceptance agreement in substantially the form of Exhibit 13.5 hereto pursuant to
which a Lender assigns to another Lender all or any portion of any of such Lender’s Revolving Credit Commitment or Term Loan Commitment,
as permitted pursuant to the terms hereof.
“Bail-In Action”
– 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”
– with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council
of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation
Schedule.
“Bank”
– PNC Bank, National Association.
“Bankruptcy Code”
– Title 11 of the United States Code, as amended from time to time.
“Base Rate”
– for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the Prime Rate, and
(c) the sum of (i) either (x) for any time prior to the Third Amendment Effective Date, LIBOR calculated for such day based on an Interest
Period of one (1) month determined two (2) Business Days prior to such day or (y) on or after the Third Amendment Effective Date, Daily
Simple SOFR, plus (ii) 1.00%; provided, that in no event shall the Base Rate be less than zero percent. Any change in the Base Rate due
to a change in the Prime Rate, the Federal Funds Rate, LIBOR, or Daily Simple SOFR shall be effective as of the opening of business on
the effective day of such change in the Prime Rate, the Federal Funds Rate, LIBOR, or Daily Simple SOFR, respectively.
“Base Rate Loans”
– the Base Rate Revolving Credit Loan and/or the Base Rate Term Loan.
“Base Rate Revolving
Credit Loan” – any Revolving Credit Loan for the periods when the rate of interest applicable to such Revolving Credit
Loan is calculated by reference to the Base Rate.
“Base Rate Term Loan”
– that portion of the Term Loan for the periods when the rate of interest applicable to such portion of the Term Loan is calculated
by reference to the Base Rate.
“Borrower(s)”
– as defined in the preamble to this Agreement and each other Person who is joined as a “Borrower” hereto.
“Borrower Representative”
– Quest.
“Borrowing Base”
– as at any date of determination thereof, an amount equal to the sum of:
(i) 90% of the net amount of Eligible Accounts; plus
(ii) 85%
of the net amount of Eligible Unbilled Accounts; provided that the amount included in the Borrowing Base pursuant to this clause
(ii) shall not at any time exceed tentwenty
million dollars ($10,000,00020,000,000); minus
(iii) Reserves.
For purposes hereof, the net
amount of Eligible Accounts or Eligible Unbilled Accounts at any time shall be the face amount of such Eligible Accounts or Eligible Unbilled
Accounts less any and all returns, rebates, discounts (which may, at Collateral Agent’s option, be calculated on shortest terms),
credits, allowances or excise taxes of any nature at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable
in connection with such Accounts at such time.
The Collateral Agent may,
in its discretion, reduce the advance rate set forth above, including, without limitation, by one percentage point for every percentage
point that Dilution exceeds three percent (3%) by reference to the most recent field examination or reduce one or more of the other elements
used in computing the Borrowing Base.
“Borrowing Base Certificate”
– a certificate by a responsible officer of Borrower Representative, on its own behalf and on behalf of all other Loan Parties,
substantially in the form of Exhibit 9.1.4 setting forth the calculation of the Borrowing Base, including a calculation of each
component thereof, all in such detail as shall be reasonably satisfactory to Collateral Agent. All calculations of the Borrowing Base
in connection with the preparation of any Borrowing Base Certificate shall originally be made by the Loan Parties and certified to Collateral
Agent; provided that Collateral Agent shall have the right to review and adjust, in the exercise of its reasonable credit judgment,
any such calculation after giving notice thereof to the Loan Parties, (1) to reflect its reasonable estimate of declines in value of any
of the Collateral described therein, and (2) to the extent that Collateral Agent determines that such calculation is not in accordance
with this Agreement.
“Business Day”
– any day excluding Saturday, Sunday and any day which the Administrative Agent is closed for business and, when used in connection
with LIBOR Loans or Term SOFR Loans, or any direct or indirect calculation or determination of SOFR, shall also exclude any day that is
not a U.S. Government Securities Business Day.
“Capital Expenditures”
– all expenditures that, in accordance with GAAP, would be required to be capitalized and shown on the consolidated balance sheet
of Quest and its Subsidiaries, including expenditures in respect of Capital Leases, but excluding any such expenditures made in connection
with the replacement, substitution, or restoration of assets to the extent financed (i) from insurance proceeds (or other similar recoveries)
paid on account of the loss of or damage to the assets being replaced or restored, (ii) with awards of compensation arising from the taking
by eminent domain or condemnation of the assets being replaced, (iii) with assets traded or exchanged for that replacement, substitution,
or restoration of assets, or (iv) with Net Cash Proceeds from a sale, lease, assignment, disposition, or other transfer for value of the
type specifically described in clause (a) of the definition of “Asset Disposition”.
“Capital Lease”
– with respect to any Person, any lease of (or other agreement conveying the right to use) any real or personal property by that
Person that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of that Person and specifically excludes
the effect of Accounting Standards Update 2016-02, Leases (Topic 842).
“CARES
Act” – the Coronavirus Aid, Relief, and Economic Security Act, or the CARES Act and applicable rules and regulations, as
amended from time to time.
“CARES
Forgivable Uses” – uses of proceeds of SBA PPP Loans that are eligible for forgiveness under Section 1106 of the CARES Act.
“CARES
Payroll Costs” – “payroll costs” as defined in 15 U.S.C. 636(a)(36)(A)(viii) (as added to the Small Business
Act by Section 1102 of the CARES Act).
“Cash Dominion”
– as defined in subsection 7.2.4.
“Cash Equivalent
Investments” – at any time, (a) any evidence of Debt, maturing not more than one year after that time, issued or guaranteed
by the United States Government or any agency thereof; (b) commercial paper, maturing not more than one year from the date of issue, or
corporate demand notes, in each case (unless issued by a Lender or its holding company) rated at least A-l by Standard & Poor’s
Ratings Services, a division of The McGraw-Hill Companies, Inc. or P-l by Moody’s Investors Service, Inc.; (c) any certificate of
deposit, time deposit, or banker’s acceptance, maturing not more than one year after that time, or any overnight Federal Funds transaction
that is issued or sold by any Lender or its holding company (or by a commercial banking institution that is a member of the Federal Reserve
System and has a combined capital and surplus and undivided profits of not less than $500,000,000); (d) any repurchase agreement entered
into with any Lender (or commercial banking institution of the nature referred to in clause (c)) which (i) is secured by a fully perfected
security interest in any obligation of the type described in any of clauses (a) through (c) above and (ii) has a market value at the time
that repurchase agreement is entered into of not less than 100% of the repurchase obligation of that Lender (or other commercial banking
institution) thereunder; (e) money market accounts or mutual funds which invest exclusively in assets satisfying the foregoing requirements;
and (f) other short-term liquid investments approved in writing by Administrative Agent.
“CERCLA”
– the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. § 9601 et seq.).
“Change in Law”
– the adoption of any Applicable Law (whether or not having the force of law), or any change therein, or any change in the interpretation
or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration
thereof, or compliance by Administrative Agent or any Lender with any request or directive (whether or not having the force of law) of
any such authority, central bank or comparable agency. Notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and
(y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel
III, shall in each case be deemed to be a “Change in Law” regardless of the date enacted, adopted or issued.
“Change of Control”
means the occurrence of any of the following events: (a) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5
under the Exchange Act) (other than the Warrant Holders or any of its affiliates) (i) shall, directly or indirectly, have acquired beneficial
ownership or control of (x) 35% or more on a fully diluted basis of (1) the voting interests in the Equity Interests in Holdings and/or
(2) the economic interests in the Equity Interests in Holdings, or (ii) shall, directly or indirectly, have obtained the power (whether
or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of Holdings (b) except to the
extent a merger or consolidation transaction is expressly permitted by Section 9.2.4 or a liquidation or dissolution of a domestic Wholly-Owned
Subsidiary of a Borrower is expressly permitted by Section 9.2.4, Holdings ceases to, directly or indirectly, own and control 100% of
each class of the outstanding Equity Interests of each Subsidiary of each other Loan Party; (c) a “Change of Control” or comparable
term as that term is defined in the Acquisition Term Loan Agreement occurs; (d) a change in the majority of the directors of Holdings
during any 24 month period, unless approved by the majority of directors serving at the beginning of such period; (e) the sale or transfer
of all or substantially all assets of any Borrower (other than as a result of a transaction permitted by Section 9.2.4); (f) Daniel Friedberg
is no longer the chairman of the board of directors (or similar governing body) of Holdings performing the same or similar role that he
is performing on the First Amendment Effective Date; provided, that, to the extent Daniel Friedberg dies or becomes incapacitated and
is no longer able serve in such capacity, the Borrowers shall have ninety (90) days to select a replacement reasonably satisfactory to
the Administrative Agent; (g) Daniel Friedberg sells or otherwise transfers, directly or indirectly, any Equity Interests in Holdings
(other than any transfer into an investment vehicle that is 100% owned and controlled Daniel Friedberg solely for estate planning purposes)
to the extent that immediately after giving effect to such sale or transfer Daniel Friedberg would own and control, directly or indirectly,
less than $2,000,000 of Equity Interests of Holdings (measured at the fair market value at the time of such sale or transfer); provided,
however, that this clause (g) shall only apply so long as it applies in the Acquisition Term Loan Agreement; or (h) any Person or “group”
(within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) (other than the Warrant Holders or any of its affiliates) other than
Daniel Friedberg has the power, directly or indirectly, to appoint more than one (1) director to the board of directors of Holdings.
“Charges”
– as defined in subsection 3.1.3.
“Closing Date”
– the date on which all of the conditions precedent in Section 10 are satisfied or waived and the initial Loan is made or
the initial Letter of Credit is issued under this Agreement.
“Code”
– the Internal Revenue Code of 1986.
“Collateral”
– all of the Property and interests in Property described in Section 6, and all other Property and interests in Property
that now or hereafter secure the payment and performance of any of the Obligations.
“Collateral Agent”
– as defined in the preamble to this Agreement and any successor in that capacity appointed pursuant to Section 12.8.
“Commodity Exchange
Act” – the Commodity Exchange Act (7 U.S.C. §1 et seq.), as amended from time to time, and any successor statute.
“Competitor”
means any Person that is a bona fide direct operating company competitor or vendor of, and in the same industry (or an industry offering
a substitute product or service) and market as, the Borrowers and its Subsidiaries.
“Compliance Certificate”
– a Compliance Certificate in substantially the form of Exhibit A to the First Amendment.
“Computation Period”
– each period of four (4) consecutive Fiscal Quarters ending on the last day of a Fiscal Quarter.
“Computer Hardware
and Software” – all of any Borrower’s rights (including rights as licensee and lessee) with respect to (i) computer
and other electronic data processing hardware, including all integrated computer systems, central processing units, memory units, display
terminals, printers, computer elements, card readers, tape drives, hard and soft disk drives, cables, electrical supply hardware, generators,
power equalizers, accessories, peripheral devices and other related computer hardware; (ii) all Software and all software programs designed
for use on the computers and electronic data processing hardware described in clause (i) above, including all operating system software,
utilities and application programs in any form (source code and object code in magnetic tape, disk or hard copy format or any other listings
whatsoever); (iii) any firmware associated with any of the foregoing; and (iv) any documentation for hardware, Software and firmware described
in clauses (i), (ii) and (iii) above, including flow charts, logic diagrams, manuals, specifications, training materials, charts and pseudo
codes.
“Conforming Changes”
shall mean, with respect to the Term SOFR Rate or any Benchmark Replacement, any technical, administrative or operational changes (including
changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest
Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment,
conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other
technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and
implementation of the Term SOFR Rate or 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 Term SOFR Rate or the Benchmark Replacement exists, in such other manner of administration as the Agent decides is reasonably necessary
in connection with the administration of this Agreement and the other Loan Documents).
“Connection Income
Taxes” – Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise
Taxes or branch profits Taxes.
“Consolidated”
– the consolidation in accordance with GAAP of the accounts or other items as to which such term applies.
“Consolidated EBITDA”
– for any period, the sum of (a) EBITDA for such period, plus, (b) to the extent a Permitted Acquisition or permitted Asset Disposition
has been consummated during such period (each, a “Subject Transaction”), Consolidated EBITDA shall be calculated with respect
to such period on a pro forma basis (which pro forma adjustments shall be certified by a Chief Financial Officer of Quest and may only
be included in determining such compliance to the extent approved by Administrative Agent in its reasonable discretion) using the historical
financial statements of any business so acquired or to be acquired or sold or to be sold and the consolidated financial statements of
Holdings and its Subsidiaries, which shall be reformulated as if such Subject Transaction, and any Debt incurred or repaid in connection
therewith, had been consummated or incurred or repaid at the beginning of such period (and assuming that such Debt bears interest during
any portion of the applicable measurement period prior to the relevant acquisition at the weighted average of the interest rates applicable
to outstanding Loans incurred during such period); provided, that, notwithstanding anything to the contrary in this Agreement, any adjustments
specified in this clause (b) shall be subject to the approval of Administrative Agent in its reasonable discretion for all purposes of
this Agreement or shall be supported by a quality of earnings report from a reputable third party reasonably acceptable to the Administrative
Agent (the foregoing calculation of Consolidated EBITDA in this clause (b), “Pro Forma EBITDA”); provided, that, in no event
shall the aggregate amount of addbacks and adjustments set forth in clauses (a)(xv), (a)(xvi), (a)(xix) and,
(a)(xx), (a)(xxii) and (a)(xxiii)(but, solely with respect to clause (a)(xxiii), the only amounts
included in such aggregate cap shall be amounts above $500,000) of the definition of EBITDA when combined with adjustments
taken in calculating Pro Forma EBITDA exceed twenty-five percent (25%) of Consolidated EBITDA in any period (calculated afterprior
to giving effect to any such addbacks and adjustments).
“Consolidated Net
Income” – with respect to Holdings and its Subsidiaries for any period, in each case as determined in accordance with
GAAP, the consolidated net income (or loss) of Holdings and its Subsidiaries for that period, excluding (a) any gains from Asset Dispositions;
(b) any extraordinary gains; (c) the income (or loss) of any Loan Party during that period in which any other Person has a joint interest,
except to the extent of the amount of cash dividends or other distributions actually paid in cash to that Loan Party during that period;
(d) the income (or loss) of any Person during that period and accrued prior to the date it becomes a Subsidiary of Holdings or is merged
into or consolidated with a Loan Party or that Person’s assets are acquired by a Loan Party; (e) the income of any Loan Party to
the extent that the declaration or payment of dividends or similar distributions by that Loan Party of that income is not at the time
permitted by operation of the terms of its organizational documents, its governing documents, or any agreement, instrument, judgment,
decree, order, statute, rule; or governmental regulation applicable to that Loan Party; and (f) any gains from discontinued operations.
“Contingent Liability”
– with respect to any Person, each obligation and liability of that Person and all such obligations and liabilities of that Person
incurred pursuant to any agreement, undertaking or arrangement by which that Person: (a) guarantees, endorses or otherwise becomes or
is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to,
or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the indebtedness, dividend, obligation or other liability
of any other Person in any manner (other than by endorsement of instruments in the course of collection), including any indebtedness,
dividend or other obligation which may be issued or incurred at some future time; (b) guarantees the payment of dividends or other distributions
upon the Equity Interests of any other Person; (c) undertakes or agrees (whether contingently or otherwise): (i) to purchase, repurchase,
or otherwise acquire any indebtedness, obligation or liability of any other Person or any property or assets constituting security therefor,
(ii) to advance or provide funds for the payment or discharge of any indebtedness, obligation or liability of any other Person (whether
in the form of loans, advances, stock purchases, capital contributions, or otherwise), or to maintain solvency, assets, level of income,
working capital, or other financial condition of any other Person, or (iii) to make payment to any other Person other than for value received;
(d) agrees to lease property or to purchase securities, property, or services from any other Person with the purpose or intent of assuring
the owner of that indebtedness or obligation of the ability of that other Person to make payment of the indebtedness or obligation; (e)
to induce the issuance of, or in connection with the issuance of, any letter of credit for the benefit of any other Person; or (f) undertakes
or agrees otherwise to assure a creditor against loss. The amount of any Contingent Liability will (subject to any limitation set forth
in this Agreement) be deemed to be the outstanding principal amount (or maximum permitted principal amount, if larger) of the indebtedness,
obligation or other liability guaranteed or supported thereby.
“Contract Right”
– any right of any Borrower to payment under a contract for the sale or lease of goods or the rendering of services, which right
is at the time not yet earned by performance.
“Contributing Guarantor”
– as defined in Section 15.2.
“Control Agreement”
– each deposit account control agreement or securities account control agreement, as applicable, entered into by a Loan Party, each
depository institution or securities intermediary party thereto and Administrative Agent in form and substance reasonably satisfactory
to Administrative Agent.
“Controlled Group”
– all members of a controlled group of corporations, all members of a controlled group of trades or businesses (whether or not incorporated)
under common control and all members of an affiliated service group which, together with any Loan Party or any Subsidiary of a Loan Party,
are treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.
“Curative Equity”
– the making of capital contributions to Holdings or the issuance of common Equity Interests by Holdings (other than Disqualified
Equity Interests), in each case that are concurrently contributed to one or more Borrowers, for the purposes of, and in accordance with,
Section 11.6.
“Cure Date”
– if an Excess Availability Triggering Event has occurred, the date on which another Excess Availability Triggering Event has not
occurred for ninety (90) consecutive calendar days.
“Daily Simple SOFR”
shall mean, for any day (a “SOFR Rate Day”), the interest rate per annum determined by the Administrative Agent by
dividing (the resulting quotient rounded upwards, at the Agent’s discretion, to the nearest 1/100th of 1%) (A) SOFR for the day
(the “SOFR Determination Date”) that is two (2) Business Days prior to (i) such SOFR Rate Day if such SOFR Rate Day
is a Business Day or (ii) the Business Day immediately preceding such SOFR Rate Day if such SOFR Rate Day is not a Business Day, by (B)
a number equal to 1.00 minus the SOFR Reserve Percentage, in each case, as such SOFR is published by the Federal Reserve Bank of New York
(or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently
at http://www.newyorkfed.org, or any successor source identified by the Federal Reserve Bank of New York or its successor administrator
for the secured overnight financing rate from time to time. If Daily Simple SOFR as determined above would be less than the SOFR Floor,
then Daily Simple SOFR shall be deemed to be the SOFR Floor. If SOFR for any SOFR Determination Date has not been published or replaced
with a Benchmark Replacement by 5:00 p.m. (Pittsburgh, Pennsylvania time) on the second Business Day immediately following such SOFR Determination
Date, then SOFR for such SOFR Determination Date will be SOFR for the first Business Day preceding such SOFR Determination Date for which
SOFR was published in accordance with the definition of “SOFR”; provided that SOFR determined pursuant to this sentence shall
be used for purposes of calculating Daily Simple SOFR for no more than 3 consecutive SOFR Rate Days. If and when Daily Simple SOFR as
determined above changes, any applicable rate of interest based on Daily Simple SOFR will change automatically without notice to the Borrower
Representative, effective on the date of any such change
“Debt”
– of any Person, without duplication, (a) all indebtedness of that Person for borrowed money; (b) all indebtedness evidenced by
bonds, debentures, notes or similar instruments; (c) all obligations of that Person as lessee under Capital Leases which have been or
should be recorded as liabilities on a balance sheet of that Person in accordance with GAAP; (d) all obligations of that Person to pay
the deferred purchase price of property or services (excluding trade accounts payable in the ordinary course of business); (e) all indebtedness
secured by a Lien on the property of that Person, whether or not that indebtedness has been assumed by that Person, but if that Person
has not assumed or otherwise become liable for that indebtedness, then that indebtedness will be measured at the fair market value of
the property securing that indebtedness at the time of determination; (f) all obligations, contingent or otherwise, with respect to the
face amount of all letters of credit (whether or not drawn), bankers’ acceptances, and similar obligations issued for the account
of that Person; (g) [reserved]; (h) all Contingent Liabilities of that Person; (i) all Debt of any partnership of which that Person is
a general partner; (j) all earn-outs and similar obligations; (k) all monetary obligations under any receivables factoring, receivable
sale, or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet
financing, or similar financing; (l) any Disqualified Equity Interests of that Person or other equity instrument of that Person, whether
or not mandatorily redeemable, that under GAAP is characterized as debt, whether pursuant to financial accounting standards board issuance
No. 150 or otherwise; and (m) Derivative Obligations.
“Debt to be Repaid”
– the Debt listed on Schedule 9.2.1.
“Default”
– an event or condition the occurrence of which would, with the lapse of time or the giving of notice, or both, become an Event
of Default.
“Default Rate”
– as defined in subsection 3.1.2.
“Defaulting Lender”
– subject to Section 4.11, any Lender that (i) has failed to (a) fund all or any portion of its Loans within two (2) Business
Days of the date such Loans were required to be funded hereunder, or (b) pay to Administrative Agent, Issuing Bank or any other Lender
any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two (2) Business
Days of the date when due, (ii) has notified the Loan Parties, Administrative Agent or Issuing Bank in writing that it does not intend
to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement
relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination
that a condition precedent to funding (which condition precedent, together with any applicable Default or Event of Default, shall be specifically
identified in such writing or public statement) cannot be satisfied), (iii) has failed, within three (3) Business Days after written request
by Administrative Agent or the Loan Parties, to confirm in writing to Administrative Agent and the Loan Parties that it will comply with
its prospective funding obligations hereunder; provided, that such Lender shall cease to be a Defaulting Lender pursuant to this
clause (iii) upon receipt of such written confirmation by Administrative Agent and the Loan Parties, or (iv) has, or has a direct or indirect
parent company that has, (a) become the subject of a proceeding under any Insolvency Law or (b) had appointed for it a receiver, custodian,
conservator, trustee, administrator, assignee for the benefit of creditors or similar person charged with reorganization or liquidation
of its business or assets, including the Federal Deposit Insurance Corporation or any other Governmental Authority acting in such a capacity
or (c) become the subject of a Bail-In Action; provided, that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority
so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the
United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental
Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative
Agent that a Lender is a Defaulting Lender under any one or more of clauses (i) through (iv) above shall be conclusive and binding absent
manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 4.11) upon delivery of written notice
of such determination to the Loan Parties, Issuing Bank and each Lender.
“Derivative Obligations”
– every obligation of a Person under any forward contract, futures contract, exchange contract, swap, option or other financing
agreement or arrangement (including, without limitation, caps, floors, collars and similar agreement), the value of which is dependent
upon interest rates, currency exchange rates, commodities or other indices.
“Derivative Obligations
Provider” – Administrative Agent, Bank, any Lender or any Affiliate of Administrative Agent, Bank or any Lender to whom
a Derivative Obligation is owed from any Loan Party.
“Derivative Obligations
Reserve” – the aggregate amount of Reserves established by Collateral Agent from time to time in respect of Derivative
Obligations.
“Dilution”
– as of any date of determination, a percentage, which is the result of dividing (a) actual bad debt write-downs, discounts, advertising
allowances, credits, and any other items with respect to the accounts determined to be dilutive by the Collateral Agent in its discretion
during the applicable period by (b) the Borrowers’ gross sales during such period (excluding extraordinary items) plus the amount
of clause (a).
“Disqualified Equity
Interest” – any Equity Interest (other than the Warrants) that, by its terms (or by the terms of any security or other
Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, in each
before the date that is 180 days after the Revolving Credit Maturity Date, (a) matures or is mandatorily redeemable (other than solely
for Qualified Equity Interests), pursuant to a sinking-fund obligation or otherwise (except as a result of a change of control or asset
sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event are subject to the prior
repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Revolving Credit Commitments),
(b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides
for the scheduled payments of dividends in cash or (d) is or becomes convertible into or exchangeable for Debt or any other Equity Interests
that would constitute Disqualified Equity Interests.
“Distribution”
– in respect of any Person means and includes: (i) the payment of any dividends or other distributions on Equity Interests and (ii)
the redemption or acquisition of Equity Interests of such Person, as the case may be, unless made contemporaneously from the net proceeds
of the sale of Equity Interests.
“Dollar”
and the sign “$” shall mean lawful money of the United States of America.
“EBITDA”
– for any period, Consolidated Net Income for such period plus, to the extent deducted in determining such Consolidated Net Income
for such period (other than in the case of clauses (a)(xvi) and (a)(xviii)) and without duplication, the sum of:
(a)
(i) Interest Expense, net of interest income, plus
(ii) income,
profits or franchise tax expensesexpense, plus
(iii) depreciation and amortization (including amortization of intangible assets and amortization of deferred financing fees or
costs), plus
(iv) transaction expenses not
capitalized and incurred on or before (x) the FirstFifth
Amendment Effective Date or within one hundred eighty (180) days after the FirstFifth
Amendment Effective Date in connection with the Green Remedies Transactions
in an aggregate amount not to exceed $1,400,000, (y) the Second Amendment
Effective Date or within one hundred eighty (180) days after the Second Amendment Effective Date in connection with the RWS Acquisition
and the LoansFifth Amendment in an aggregate amount not to exceed $2,500,000,
plus
(v) non-recurring
transaction fees, expenses and costs (including, without limitation, any of their respective advisors, legal counsels, agents or representatives)
incurred in connection with the administration of, any amendment to or any consent or waiver under, the Loan Documents in an aggregate
amount not to exceed $250,000500,000 in any
Fiscal Year, plus
(vi) non-cash charges related to the impairment of goodwill, plus
(vii) fees
and expenses of Holdings payable in cash during such period to reimburse the costs and expenses of the board of directors (or other similar
governing bodies) of Holdings; provided the aggregate amount of this clause (vii) shall not exceed $50,000100,000
in any Fiscal Year, plus,
(viii) non-cash
expenses related to compensation arrangements pursuant to the grant of stock or other equity interest-based compensation and any
option plan, plus
(ix) non-cash charges and expenses related to purchase accounting adjustments, plus
(x) other non-cash charges, expenses and losses (other than with respect to accounts receivable and/or inventory), plus
(xi) non-recurring fees and transaction expenses not capitalized and incurred in connection with any consummated Permitted Acquisition
(whether on or prior to the closing date of such Permitted Acquisition or within one hundred eighty (180) days after such closing date),
plus
(xii) non-recurring
fees and transaction expenses not capitalized and incurred in connection with any unconsummated Permitted Acquisition in an aggregate
amount not to exceed $600,0001,200,000 in any
trailing twelve month period, plus
(xiii) indemnification expenses that are actually reimbursed in cash by a third party and documented with notification to the Administrative
Agent, plus
(xiv) expenses incurred to replace or repair tangible assets of the Holdings and its Subsidiaries to the extent actually reimbursed
or with respect to which Borrowers have determined that a reasonable basis exists for reimbursement (and for which the applicable insurer
has not rejected the claim), in each case in cash by third party insurance and only to the extent that such amount is in fact reimbursed
within one hundred eighty (180) days of such expenses being incurred (with a deduction in the applicable future period for any amount
so added back to the extent not so reimbursed within such one hundred eighty (180) days), plus
(xv) reasonable
and documented integration costs in connection with Permitted Acquisitions in an aggregate amount not to exceed $1,000,0002,000,000
in any trailing twelve month period, plus
(xvi) general non-recurring and pro forma synergies, operating improvements, run-rate adjustments, cost savings or restructurings
(collectively, “Cost Savings”) of the business of Borrowers resulting from actions of Borrowers already taken and to the extent
satisfactory to the Administrative Agent and Borrowers determine in good faith that such Cost Savings are reasonable and are factually
supportable, as set forth in a certificate signed by the Senior Officer of the Borrowers or Holdings certifying that (1) such Cost Savings
are expected to have a continuing impact and are reasonably identifiable and quantifiable (without duplication of the amount of actual
benefits realized during such period from such action) and (2) such Cost Savings are reasonably anticipated to be realized within 12 months;
plus
(xvii) all non-cash charges of the Borrowers and Holdings relating to earn-outs and contingent acquisition consideration or changes
in the valuation thereof to the extent related to Permitted Acquisitions; plus
(xviii) cash proceeds from any business interruption insurance covering lost profits to the extent not already included in the calculation
of Consolidated Net Income, plus
(xix) non-recurring
expenses or losses (other than with respect to lost profit, lost revenue or similar losses) attributable to the COVID-19 pandemic or
a related epidemiological event in an aggregate amount not to exceed $250,000500,000
during the term of this Agreement, plus
(xx) other
extraordinary, unusual, or non-recurring expenses (including but not limited to consulting fees) or losses not to exceed (1)
$850,0001,000,000 in any trailing
twelve month period ending on or prior to December 31, 2022 (or such greater amount to the extent approved
in writing by Administrative Agent), and (2) $500,000 in any trailing twelve month period ending after December 31, 2022
(or such greater amount to the extent approved in writing by Administrative Agent), plus
(xxi) non-recurring
transaction fees, expenses and costs (including, without limitation, any of their respective advisors, legal counsels, agents or representatives)
incurred in connection with any transactions in the public markets in an aggregate amount not to exceed $250,0003,000,000
in any Fiscal Year; plus
(xxii) non-recurring
reasonable, documented charges and expenses related to recruiting expenses (including relocation and moving expenses), signing bonuses,
severance expenses, restructuring, business separation expenses, office relocation, moving, lease termination and other, related expenses,
in an aggregate amount not to exceed $250,000500,000
per fiscal year, plus
(xxiii) costs
and expenses for non-recurring IT related projects and upgrades not to exceed $750.0001,500,000
(subject to the proviso at the end of this definition) in the aggregate during the term of this Agreement.,
plus
(xxiv) non-recurring
losses attributable to out of period costs of sales for the Fiscal Quarters ended December 31, 2023 and March 31, 2024,
in an aggregate amount not to exceed $1,165,000 for the Fiscal Quarter ended
December 31, 2023 and $290,000 for the Fiscal Quarter ended March 31, 2024;
Minus
(b) to the extent included
in determining the Consolidated Net Income of Holdings and its Subsidiaries, all non-cash gains;
provided,
that, notwithstanding anything to the contrary contained herein (1) in no event shall the aggregate amount of addbacks and adjustments
set forth in clauses (a)(xv), (a)(xvi), (a)(xix), (a)(xx), (a)(xxii) and (a)(xxiii) (but, solely with respect to clause (a)(xxiii), the
only amounts included in such aggregate cap shall be amounts above $250,000500,000)
and in calculating Pro Forma EBITDA exceed 25% of Consolidated EBITDA in any period (calculated afterprior
to giving effect to any such addbacks and adjustments) and (2) in any event, EBITDA shall not include (x) any addback resulting
from any lost revenue, earnings, margins or associated costs and expenses due to the COVID-19 pandemic or other similar epidemiological
event (other than those expressly set forth in clause (a)(xix) above), or (y) any addback with
respect to any write-down or write-off of inventory or accounts receivable or (z) any income or reduction
in expense attributable to Debt funded under the CARES Act attributed to IAS whether acknowledged as grant income pursuant to IAS 20,
or a contribution pursuant to ASC 958-605 or otherwise. Notwithstanding the foregoing, (x) for each calendar month set
forth in Schedule 1.1 to the Second Amendment, EBITDA for all purposes shall be deemed to be the amount set forth in Schedule 1.1 to
the Second Amendment opposed such month and (y) for each calendar month set forth in Schedule 1.1(b), EBITDA attributable to RWS shall
be deemed to be the amount set forth in Schedule 1.1(b) opposed such month.
“EEA Financial Institution”
– (i) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an
EEA Resolution Authority, (ii) any entity established in an EEA Member Country which is a parent of an institution described in clause
(i) of this definition, or (iii) any financial institution established in an EEA Member Country which is a subsidiary of an institution
described in clauses (i) or (ii) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”
– any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA Resolution Authority”
– any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Account”
– an Account arising in the ordinary course of the business of any of the Borrowers from the sale of goods or rendition of services
which Collateral Agent, in its reasonable credit judgment, deems to be an Eligible Account. Without limiting the generality of the foregoing,
no Account shall be an Eligible Account if:
(i) it arises out of a sale made or services rendered by a Borrower to a Subsidiary of a Loan Party or an Affiliate of a Loan
Party or to a Person controlled by an Affiliate of a Loan Party; or
(ii) it remains unpaid more than ninety (90) days after the original invoice date shown on the invoice; or
(iii) the
total unpaid Accounts of (a) any Account Debtor which has a rating of “BBB” or better from S&P exceeds 40% of the
total value of total Accounts, but only to the extent of such excess or (b) any other Account Debtor exceeds 25% of the total value
of total Accounts, but only to the extent of such excess; or
(iv) any covenant, representation or warranty contained in this Agreement with respect to such Account has been breached; or
(v) the Account Debtor is also a creditor or supplier of a Loan Party or any Subsidiary of a Loan Party, or the Account Debtor
has disputed liability with respect to such Account, or the Account Debtor has made any claim with respect to any other Account due from
such Account Debtor to a Loan Party or any Subsidiary of a Loan Party, or the Account otherwise is or may become subject to right of setoff
by the Account Debtor; provided that any such Account shall be eligible to the extent such amount thereof exceeds such contract,
dispute, claim, setoff or similar right; or
(vi) the Account Debtor has commenced a voluntary case under the federal bankruptcy laws, as now constituted or hereafter amended,
or made an assignment for the benefit of creditors, or a decree or order for relief has been entered by a court having jurisdiction in
the premises in respect of the Account Debtor in an involuntary case under the federal bankruptcy laws, as now constituted or hereafter
amended, or any other petition or other application for relief under the federal bankruptcy laws, as now constituted or hereafter amended,
has been filed against the Account Debtor, or if the Account Debtor has failed, suspended business, ceased to be Solvent, or consented
to or suffered a receiver, trustee, liquidator or custodian to be appointed for it or for all or a significant portion of its assets or
affairs; or
(vii) it arises from a sale made or services rendered to an Account Debtor outside the United States, unless the sale is either
(a) to an Account Debtor located in Ontario or any other province of Canada in which the Personal Property Security Act has been adopted
in substantially the same form as currently in effect in Ontario so long as the aggregate amount does not exceed $500,000 or (b) backed
by a letter of credit from an issuer acceptable to Collateral Agent; or
(viii) (a) it arises from a sale to the Account Debtor on a bill-and-hold, guaranteed sale, sale-or-return, sale-on-approval, consignment,
or any other repurchase or return basis; or (b) it is subject to a reserve established by a Borrower for potential returns or refunds,
to the extent of such reserve or (c) it arises from a sale to an Account Debtor that is subject to cash-on-delivery terms; or
(ix) the Account Debtor is the United States of America or any department, agency or instrumentality thereof, unless the applicable
Borrower assigns its right to payment of such Account to Collateral Agent, in a manner satisfactory to Collateral Agent, in its reasonable
credit judgment, so as to comply with the Assignment of Claims Act of 1940 (31 U.S.C. §203 et seq., as amended); or
(x) it is not at all times subject to Administrative Agent’s duly perfected, first priority
security interest or is subject to a Lien that is not a Permitted Lien; or
(xi) the goods giving rise to such Account have not been delivered to and accepted by the Account Debtor or the services giving
rise to such Account have not been performed by the applicable Borrower and accepted by the Account Debtor or the Account otherwise does
not represent a final sale; or
(xii) the applicable Borrower has not sent a bill or invoice for the goods or services giving rise to such Account to the applicable
Account Debtor; or
(xiii) the Account is evidenced by chattel paper or an instrument of any kind, or has been reduced to judgment; or
(xiv) the applicable Borrower has made any agreement with the Account Debtor for any extension, compromise, settlement or modification
of the Account or deduction therefrom, except for discounts or allowances which are made in the ordinary course of business for prompt
payment and which discounts or allowances are reflected in the calculation of the face value of each invoice related to such Account;
or
(xv) 50% or more of the Accounts owing from the Account Debtor are not Eligible Accounts hereunder; or
(xvi) the applicable Borrower has made an agreement with the Account Debtor to extend the time of payment thereof; or
(xvii) it represents service charges, late fees or similar charges; or
(xviii) the relevant underlying documentation relating to such Account and payment of such Account provides or otherwise specifies
that all or any portion of the payment regarding such Account is to be made by a Borrower to or is for the benefit of any vendor of or
contractor for such Borrower creates an express trust on such Borrower for the benefit of any vendor of or contractor for such Borrower
or any express obligation on such Borrower to pay all or any portion of the payment of the Account to any vendor of or contractor for
such Borrower; provided that any such Account shall be eligible to the extent of any such amount thereof which exceeds such express
trust or express obligation; or
(xix) it is an Account owing from an Account Debtor located in a state where the applicable Borrower is not qualified to do business
so long as such failure to so qualify prevents such Borrower from bringing an action in such state to seek judicial recovery of such Account;
or
(xx) it arises from the sale or lease of Equipment until such time as such sale and lease agreement has been reviewed by Administrative
Agent and confirmation that such any such Account that arises from such sale or lease of Equipment constitutes ABL Priority Collateral
under the Intercreditor Agreement; or
(xxi) it is not otherwise acceptable to Collateral Agent in its reasonable credit judgment.
The amount of Eligible Accounts
owed by an account debtor to such Borrower shall be reduced by the amount of all “contra accounts” and other obligations owed
by any Borrower to such account debtor and by the aggregate amount of all cash received in respect of such account but not yet applied
by Borrowers to reduce the amount of such Eligible Accounts. Accounts which are at any time Eligible Accounts, but which subsequently
fail to meet any of the foregoing requirements shall, at such time, cease to be Eligible Accounts.
“Eligible Machinery
and Equipment” – as of any date of determination, all Equipment that:
(i) is owned by a Borrower free and clear of all Liens other than (a) Liens in favor of Administrative Agent securing the Obligations
and (b) Permitted Liens;
(ii) is installed in a facility owned or leased by the applicable Borrower in the United States and, if installed at a leased
location, either (a) a satisfactory landlord waiver has been delivered to Administrative Agent (except if such Equipment is leased or
rented or will be leased or rented to a customer of a Borrower and located at such customer’s location so long as if and when such
lease or rental occurs Borrower has provided to Administrative Agent the address where such Equipment is located) or (b) Reserves reasonably
satisfactory to Collateral Agent have been established with respect thereto;
(iii) is in good operating condition (ordinary wear and tear excepted);
(iv) is not obsolete or surplus Equipment;
(v) is covered by casualty and liability insurance required by this Agreement;
(vi) is subject to a first-priority perfected Lien in favor of Administrative Agent;
(vii) does not consist of automobiles or other Equipment subject to a certificate of title statute;
(viii) has an estimated remaining useful life of at least five years;
(ix) was
not the subject of a prior Term Loan Advance;
(x) (ix)
if requested by the Collateral Agent, as to which an appraisal has been completed (which may be a desktop or other similar,
short-form appraisal, to the extent determined by Collateral Agent) on such Equipment, prepared by an appraiser retained by Collateral
Agent; and
(xi) (x)
either (i) consists of compactors or revenue-producing Equipment or (ii) such other Equipment Administrative Agent approves
in its reasonable discretion.
“Eligible Unbilled
Accounts” – an Account of any Borrower (i) for which the applicable Borrower intends to send a bill or invoice for the
goods or services giving rise to such Account within thirty (30) days of the date of the applicable Borrowing Base Certificate, (ii) which
would otherwise constitute an Eligible Account but for the fact that such Account does not comply with clause (ii), (iii), (xii) or (xv)
of the definition thereof, and (iii) the eligibility of which to be billed within such period of thirty (30) days is not subject to completion
of any further performance by the applicable Borrower.
“Environmental Agreement”
– each agreement of the Loan Parties with respect to any real estate subject to a Mortgage, pursuant to which Loan Parties agree
to indemnify and hold harmless Administrative Agent and Lenders from liability under any Environmental Laws.
“Environmental Claims”
– all claims, however asserted, by any governmental, regulatory or judicial authority or other Person alleging potential liability
or responsibility for violation of any Environmental Law, or for release of Hazardous Substances or injury to the environment.
“Environmental Laws”
– all present or future federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and codes, together
with all administrative or judicial orders, consent agreements, directed duties, requests, licenses, authorizations and permits of, and
agreements with, any governmental authority, in each case relating to any matters arising out of relating to public health and safety,
or pollution or protection of the environment or workplace, including any of the foregoing relating to the presence, use, production,
generation, handling, transport, treatment, storage, disposal, distribution, discharge, emission, release, threatened release, control
or cleanup of any Hazardous Substance.
“Environmental Notice”
– a notice (whether written or oral) from any Governmental Authority or other Person with credible knowledge of any possible noncompliance
with, investigation of a possible violation of, litigation relating to, or potential fine or liability under any Environmental Law, or
with respect to any Environmental Release, environmental pollution or hazardous materials, including any complaint, summons, citation,
order, claim, demand or request for correction, remediation or otherwise.
“Environmental Release”
– a release as defined in CERCLA or under any other Environmental Law.
“Equity Interests”
– with respect to any Person, all shares, interests, participations or other equivalents (however designated, whether voting or
non-voting) of that Person’s equity capital, whether now outstanding or issued or acquired after the Closing Date, including common
shares, preferred shares, membership interests in a limited liability company, limited or general partnership interests in a partnership,
interests in a trust, interests in other unincorporated organizations, or any other equivalent of any such ownership interest.
“ERISA”
– the Employee Retirement Income Security Act of 1974, as amended, and any successor statute, and all rules and regulations from
time to time promulgated thereunder.
“EU Bail-In Legislation
Schedule” – the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as
in effect from time to time.
“Event of Default”
– means any of the events described in Section 11.1.
“Excess Availability”
– on any specific date, an amount equal to (a) the Line Cap, minus (b) the Aggregate Revolving Extensions, plus (c)
unrestricted cash in accounts of any Borrower maintained with Administrative Agent or any Affiliate of Administrative Agent in which Administrative
Agent has a first-priority perfected Lien pursuant to an executed Control Agreement in form and substance satisfactory to Administrative
Agent, in its reasonable discretion, provided that for the purpose of this definition, the amount in this clause (c) shall be equal
to PEG Balance (but in any event not to exceed $1,000,000, as such amount may be increased by the Administrative Agent in its sole discretion);
provided, however, trade payables greater than 60 days old shall only be included as a Reserve for the purposes of reducing the Borrowing
Base in determining the amount of the Line Cap for this definition on the Closing Date only.
“Excess Availability
for Applicable Margin” – on any specific date, an amount equal to (a) the Line Cap, minus (b) the Aggregate Revolving
Extensions.
“Excess Availability
Triggering Event” – at any time in which Excess Availability is less than the greater of (i) fifteen percent (15%) of
the Revolving Credit Commitment and (ii) fifteen percent (15%) of the Borrowing Base for five consecutive Business Days.
“Excess Derivative
Obligations” – Derivative Obligations in excess of the Derivative Obligations Reserve.
“Exchange Act”
– the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Excluded Deposit
Accounts” – means (i) deposit accounts the balance of which consists exclusively of (A) withheld income taxes and federal,
state or local employment taxes required to be paid to the Internal Revenue Service or state or local government agencies with respect
to employees of any of the Loan Parties and their Subsidiaries and (B) amounts required to be paid over to an employee benefit plan pursuant
to DOL Reg. Sec. 2510.3 102 on behalf of or for the benefit of employees of any of the Loan Parties and their Subsidiaries; (ii) all
segregated deposit accounts constituting (and the balance of which consists solely of funds set aside in connection with) payroll accounts,
trust accounts, and accounts dedicated to the payment of accrued employee benefits, medical, dental and employee benefits claims to employees
of any of the Loan Parties and their Subsidiaries and (iii) solely for the first 30 days following the Closing Date, the deposit account
owned by LandfillQuest Equipment and held at
Capital One with account number 00005732385225 so long as the cash balance in such account does not exceed $50,000 at any time.
“Excluded Property”
– (i) any rights or interest in any contract, lease, permit, license, or license agreement covering real or personal property of
any Loan Party if (a) under the terms of that contract, lease, permit, license or license agreement or applicable law with respect thereto,
the grant of a security interest or lien therein is prohibited as a matter of law or under the terms of that contract, lease, permit,
license, or license agreement (other than to the extent any such contract, lease, permit, license or license agreement has been entered
into in contemplation hereof or as a means of circumventing the requirements under this Agreement or under the other Loan Documents) and
(B) that prohibition or restriction has not been waived or the consent of the other party to that contract, lease, permit, license or
license agreement has not been obtained; (ii) any asset with respect to which the costs of obtaining, perfecting, or maintaining a security
interest in that asset exceeds the fair market value thereof or the benefit to the Lenders and the Issuing Bank afforded thereby (as determined
by Administrative Agent in consultation with Borrower Representative), (iii) any United States intent-to-use trademark application, but
only to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or
enforceability of that intent-to-use trademark application under applicable federal law; and (iv) pledges or deposits permitted to be
made in connection with Permitted Liens; provided, however, if any Excluded Property does not constitute Excluded Collateral (as defined
in the Acquisition Term Loan Agreement), it shall not constitute Excluded Property hereunder.
The exclusions of clauses
(i) and (ii) of this definition do not (and are not to be construed to) apply to the extent that (i) any described prohibition or restriction
is ineffective under the applicable anti-assignment provisions (including Section 9- 406, 9 407, 9 408, or 9 409 of the UCC or other applicable
law, or (ii) any consent or waiver has been obtained that would permit Administrative Agent’s security interest or lien to attach
notwithstanding the prohibition or restriction on the pledge of the applicable contract, lease, permit, license, or license agreement.
The exclusions of clauses
(i) and (ii) of this definition do not (and are not to be construed to) limit, impair, or otherwise affect any of Administrative Agent’s
or any Lenders continuing security interests in and liens upon any rights or interests of any Loan Party in or to (x) monies due or to
become due under or in connection with any described contract, lease, permit, license or license agreement (including any accounts or
Equity Interests), or (y) any proceeds from the sale, license, lease, or other dispositions of any such contract, lease, permit, license
or license agreement.
With respect to any intent-to-use
trademark application excluded from the Collateral in accordance with clause (iii) of this definition, upon submission to and acceptance
by the United States Patent and Trademark Office of a statement of use or an amendment to allege use pursuant to 15 U.S.C. § 1060(a)
or any successor provision, that intent-to-use trademark application will be considered Collateral.
“Excluded Subsidiary”
– any Subsidiary that is prohibited by requirements of applicable law, any contractual obligation or any organizational document
(to the extent such contractual restriction exists on the Closing Date or on the date such Subsidiary becomes a direct or indirect Subsidiary
of Holdings and not entered into in contemplation thereof or for the purposes of circumventing the requirements of the Loan Documents)
from guaranteeing the Obligations or which would require approval, consent, license or authorization from a Governmental Authority (unless
such approval, consent, license or authorization is received).
“Excluded Swap Obligation”
– with respect to any Loan Party, any guarantee of any Swap Obligations if, and only to the extent that and for so long as, all
or a portion of the guarantee of such Loan Party of, or the grant by such Loan Party 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 Loan Party’s failure for any
reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the guarantee
of such Loan Party or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation
arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that
is attributable to swaps for which such guarantee or security interest is or becomes illegal.
“Excluded Taxes”
– (i) taxes imposed on the income of Administrative Agent or any Lender by the jurisdiction of Administrative Agent’s or such
Lender’s applicable lending office or any political subdivision thereof, (ii) franchise taxes imposed by the jurisdiction under
the laws of which Administrative Agent or any Lender is organized or doing business or any political subdivision thereof, (iii) any withholding
taxes attributable to a Lender’s failure to comply with subsection 3.11.3 and (iv) any United States federal withholding
taxes imposed under FATCA.
“Fair Share”
– as defined in Section 15.2.
“Fair Share Contribution
Amount” – as defined in Section 15.2.
“FATCA”
– Sections 1471, 1472, 1473 and 1474 of the Code, or any regulations promulgated thereunder or published administrative guidance
implementing such sections.
“Federal Funds Rate”
– for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to PNC on such day on such transactions as determined by the Administrative Agent.
“Fee Letter”
– as defined in Section 3.3.
“Fee Payment Date”
– the first Business Day of each month.
“Fee Period”
– (a) initially, the period from the Closing Date up to but not including the first Fee Payment Date, and (b) thereafter, each period
from a Fee Payment Date up to but not including the next subsequent Fee Payment Date.
“Fifth
Amendment” means that certain Fifth Amendment and Limited Waiver to Loan, Security and Guaranty Agreement, dated on or about the
Fifth Amendment Effective Date, by and among the Borrowers, the Guarantors, the Administrative Agent, the Collateral Agent, and the Lenders
party thereto from time to time.
“Fifth
Amendment Effective Date” means December 30, 2024.
“First Amendment”
– that certain First Amendment to Loan, Security and Guaranty Agreement, dated as of the First Amendment Effective Date, by and
among the Borrowers, the Guarantors, the Administrative Agent, the Collateral Agent and the Lenders party thereto from time to time.
“First Amendment
Effective Date” – October 19, 2020.
“Fiscal Quarter”
– a fiscal quarter of a Fiscal Year, which period is the 3-month period ending on the last day of each of March, June, September,
and December of each year.
“Fiscal Year”
– the fiscal year of Holdings, which period will be the 12-month period ending on the last day of December of each year.
“Fixed Charge Coverage
Ratio” – for any period, the ratio for such period, of (a)(1) EBITDA,
minus (2) the sum of (A) income taxes paid or payable in cash by Holdings and its Subsidiaries and (B) all Capital Expenditures
paid for with Internally Generated Cash, to (b) the sum for such period of (i) cash Interest Expense, plus (ii) scheduled principal payments
of Debt (excluding earn-out payments) plus (iii) Restricted Payments, other than earn-out payments, paid in cash. For the purposes of
determining the applicable amount described in clauses (a)(2)(A) and (b) above, for any period ending prior to the first anniversary
of the First Amendment Effective Date, such amount shall be equal to the applicable amount paid (or, in the case of taxes, taxes payable
or accrued) from the First Amendment Effective Date through the date of determination multiplied by a fraction, the denominator of which
is the number of days from the First Amendment Effective Date through the date of determination and the numerator of which is 365 days
(i.e., such amounts shall be annualized). For the purposes of determining the applicable amount described
in clause (b)(i) above, for any period ending prior to the first anniversary of the Second Amendment Effective Date, such amount shall
be equal to the applicable amount paid from the Second Amendment Effective Date through the date of determination multiplied by a fraction,
the denominator of which is the number of days from the Second Amendment Effective Date through the date of determination and the numerator
of which is 365 days (i.e., such amounts shall be annualized). For the purposes of determining the applicable amount described in clause
(b)(ii) above, for any monthly period ending prior to the first anniversary of the Second Amendment Effective Date, such amount attributable
to scheduled principal payments of the Term C Loans (as defined in the Acquisition Term Loan Agreement) shall be deemed to be $28,333.33
“Foreign Lender”
– any Lender that is not a “United States person” as defined in Section 7701(a)(30) of the Code.
“Fourth Amendment
Effective Date” means March 29, 2024.
“Fronting Exposure”
– at any time there is a Defaulting Lender, with respect to the Issuing Bank, such Defaulting Lender’s Revolving Credit Lender’s
Pro Rata Percentage of the outstanding LC Obligations with respect to Letters of Credit issued by the Issuing Bank other than LC Obligations
as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders or cash collateralized
in accordance with the terms hereof.
“Funding Guarantor”
– as defined in Section 15.2.
“GAAP”
– generally accepted accounting principles in the United States of America in effect from time to time.
“Governmental Authority”
– the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies
such as the European Union or the European Central Bank).
“Green Remedies”
– Green Remedies Waste and Recycling, Inc., a North Carolina corporation.
“Green Remedies Acquisition”
– the acquisition by Quest or Holdings of assets of Green Remedies pursuant to the Green Remedies Acquisition Agreement.
“Green Remedies Acquisition
Agreement” – that certain Asset Purchase Agreement, dated as of October 19, 2020 (as amended, restated, supplemented or
otherwise modified as permitted hereunder), by and among Quest, Holdings, Green Remedies and Alan Allred.
“Green Remedies Seller
Note” – that certain Unsecured Subordinated Promissory Note, dated as of the First Amendment Effective Date, executed
by Holdings in favor of Green Remedies, in an original principal amount equal to $2,684,250.00.
“Green Remedies Seller
Note Subordination Agreement” – that certain Subordination Agreement, dated as of the First Amendment Effective Date,
between Green Remedies, the Agent and the Acquisition Term Agent and acknowledged by Holdings.
“Green Remedies Transactions”
– the execution, delivery and performance by Borrowers and the other Loan Parties of the First Amendment, the Acquisition Term Loan
Agreement, the Green Remedies Acquisition Agreement and all other documents and agreements executed in connection with the execution of
the foregoing, and all other transactions related to any of the foregoing and contemplated to have occurred on or as of the First Amendment
Effective Date, including the Green Remedies Acquisition and the payment of premiums, fees and expenses in connection with the foregoing.
“Guaranteed Obligations”
– as defined in Section 15.1.
“Guarantors”
– Holdings, Parent, Global Alerts, Vertigent, Vertigent One, Youchange, and each other Person who now or hereafter guarantees payment
or performance of the whole or any part of the Obligations.
“Guaranty Agreements”
– each guaranty agreement (including this Agreement) executed by a Guarantor in favor of Administrative Agent guaranteeing payment
or performance of the whole or any part of the Obligations, in each case as amended, restated, supplemented or otherwise modified from
time to time.
“Hazardous Substances”
– hazardous waste, hazardous substance, pollutant, contaminant, toxic substance, oil, hazardous material, chemical, or other substance
regulated by any Environmental Law.
“Hedging Agreement”
– any interest rate, currency or commodity swap agreement, cap agreement, collar agreement, spot foreign exchange, forward foreign
exchange, foreign exchange option (or series of options) and any other agreement or arrangement designed to protect a Person against fluctuations
in interest rates, currency exchange rates or commodity prices.
“Hedging Obligation”
means, with respect to any Person, any liability of that Person under any Hedging Agreement determined (a) for any date on or after the
date that Hedging Agreement has been closed out and termination value determined in accordance therewith, using that termination value;
and (b) for any date prior to the date referenced in clause (a), using the amount determined as the mark-to-market value for that Hedging
Agreement, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in
that Hedging Agreement.
“Holdings”
– as defined in the preamble to this Agreement. “IBA” – as defined in Section 1.6.
“Indemnified Person”
– as defined in Section 13.2.
“Indemnified Taxes”
– as defined in subsection 3.11.1.
“Ineligible Lenders”
means (a) those Persons set forth on Schedule 1.2, (b) any Competitor designated by the Borrower Representative (specifying such Competitor’s
exact legal name) as an “Ineligible Lender” in a written notice (including an update to Schedule 1.2) that has been approved
by the Administrative Agent in its reasonable discretion after the effectiveness of this Agreement and not less than five (5) Business
Days prior to such date of determination, but which shall not apply retroactively to disqualify any Persons that have previously acquired
an assignment or participation interest in the Loans and/or Commitments as permitted herein and (c) any Affiliate of an Ineligible Lender
described in clauses (a) and (b) of this definition that, without independent verification, investigation, or inquiry, is easily and obviously
identifiable as an affiliate of such Person on the basis of its name; provided that, notwithstanding anything to the contrary in this
definition, any bank or other financial institution, any Person that is a bona fide debt, equity, or asset investment entity, any other
Person that makes, purchases, holds, manages, advises, or trades any debt, equity, or asset investments in the ordinary course of business,
Administrative Agent and its Affiliates and/or Related Funds, any Person that merely has an economic interest in any “Ineligible
Lender” but has not been designated as an “Ineligible Lender” hereunder, and any Person that Company has removed from
its status as an “Ineligible Lender” in any written notice approved by Administrative Agent and delivered to Lenders from
time to time, are, in each case, hereby excluded from this definition; provide, that, no Person shall be an Ineligible Lender to the extent
a Specified Event of Default has occurred and is continuing.
“Initial Closing
Date Transactions” – the initial incurrence of the Loans and other Obligations hereunder and under the other Loan Documents.
“Insolvency Law”
– collectively, the Bankruptcy Code, and any other insolvency, debtor relief or debt adjustment or similar law (whether state, provincial,
territorial, federal or foreign).
“Insolvency Proceeding”
– any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such
Person to, (a) the entry of an order for relief under the Bankruptcy Code, or any other insolvency, debtor relief, or debt adjustment
law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator or other custodian for such Person or any part
of its Property; or (c) an assignment or trust mortgage for the benefit of creditors.
“Intellectual Property”
– all past, present and future: trade secrets, know-how and other proprietary information; trademarks, internet domain names, service
marks, trade dress, trade names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations
of the foregoing) indicia and other source and/or business identifiers, and the goodwill of the business relating thereto and all registrations
or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights (including
copyrights for computer programs) and copyright registrations or applications for registrations which have heretofore been or may hereafter
be issued throughout the world and all tangible property embodying the copyrights, unpatented inventions (whether or not patentable);
patent applications and patents; industrial design applications and registered industrial designs; license agreements related to any of
the foregoing and income therefrom; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software,
source codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any of
the foregoing; the right to sue for all past, present and future infringements of any of the foregoing; all other intellectual property;
and all common law and other rights throughout the world in and to all of the foregoing.
“Intellectual Property
Security Agreement” – any intellectual property collateral assignment pursuant to which any Loan Party grants to Administrative
Agent, for the benefit of Lenders, a Lien on such Loan Party’s interest in its Intellectual Property as security for the Obligations,
in each case as may be amended, restated, supplemented or otherwise modified from time to time.
“Intercreditor Agreement”
– that certain Intercreditor Agreement, dated as of the First Amendment Effective Date, by and among the Acquisition Term Agent,
the Administrative Agent, and the Loan Parties thereto, as amended, modified, supplemented, restated, refinanced, refunded or replaced
in whole or in part from time to time in accordance with the terms therein.
“Interest Expense”
– for any period, as determined in accordance with GAAP, the consolidated interest expense of Holdings and its Subsidiaries for
that period (including all imputed interest on Capital Leases).
“Interest Payment
Date” – (a) (i) as to any Base Rate Revolving Credit Loan, the first Business Day of each month, and (ii) as to any Base
Rate Term Loan, the first Business Day of each month, and (b) as to any LIBOR Loan or Term SOFR Loan, the last day of each Interest Period
for such Term SOFR Loan or LIBOR Loan, and in addition, where the applicable Interest Period exceeds three months, the date every three
months after the beginning of such Interest Period. If an Interest Payment Date falls on a date that is not a Business Day, such Interest
Payment Date shall be deemed to be the immediately succeeding Business Day.
“Interest Period”
– relative to any LIBOR Loan or Term SOFR Loans: (a) initially, the period beginning on (and including) the date on which such LIBOR
Loan or Term SOFR Loan is made or continued as, or converted into, a Term SOFR Loan and ending on (but excluding) the day which numerically
corresponds to such date one or three months thereafter (or, if such month has no numerically corresponding day, on the last Business
Day of such month), in each case as Borrower Representative may select in its notice pursuant to Section 4.1; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period applicable to such LIBOR Loan or Term SOFR Loan and ending
one or three months thereafter, as selected by Borrower Representative in accordance with Section 4.1; provided, however, that
(i) all Interest Periods of the same duration which commence on the same date shall end on the same date; (ii) Interest Periods commencing
on the same date for LIBOR Loans or Term SOFR Loans comprising part of the same advance under this Agreement shall be of the same duration;
(iii) Interest Periods for LIBOR Loans or Term SOFR Loans in connection with which Borrowers have or may incur Derivative Obligations
with Administrative Agent shall be of the same duration as the relevant periods set under the applicable underlying agreements; (iv) if
such Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next following Business
Day unless such day falls in the next calendar month, in which case such Interest Period shall end on the first preceding Business Day;
and (v) no Interest Period may end later than the termination of this Agreement.
“Internally Generated
Cash” – with respect to any period, any cash of Holdings or any Subsidiary generated during such period as a result of
such Person’s operations, excluding Net Cash Proceeds, Other Receipts, any cash generated from any issuance of Equity Interests
(or cash generated from cash contributions to Holdings or any Subsidiary) and any cash proceeds received from an incurrence of Debt or
any other liability.
“Investment”
– with respect to any Person, any investment in another Person, whether by acquisition of any debt or Equity Interest, by making
any loan or advance, by becoming obligated with respect to a Contingent Liability in respect of obligations of that other Person (other
than travel and similar advances to employees in the ordinary course of business) or by making an Acquisition.
“Issuer Documents”
–with respect to any Letter of Credit, the LC Application, and any other document, agreement and instrument entered into by the
Issuing Bank and any Borrower (or any Subsidiary) or in favor of the Issuing Bank and relating to such Letter of Credit.
“Issuing Bank”
– Administrative Agent, Bank or any other Affiliate of Administrative Agent or a Lender that issues a Letter of Credit hereunder.
“Judgments”
– as defined in subsection 11.1.14.
“Landfill”
– as defined in the preamble to this Agreement.
“LC Amount”
– at any time, the aggregate undrawn available amount of all Letters of Credit then outstanding plus the amount of LC Obligations
that have not been reimbursed by Borrowers or funded with a Revolving Credit Loan.
“LC Application”
– an application, in such form as the Issuing Bank may specify from time to time, requesting the Issuing Bank to issue or amend
a Letter of Credit.
“LC Fee Payment Date”
– the last day of each March, June, September and December and the Revolving Termination Date.
“LC Obligations”
– any Obligations that arise from any draw against any Letter of Credit.
“LC Participants”
– the collective reference to all the Revolving Credit Lenders other than the Issuing Bank.
“LC Reimbursement
Obligation” – the obligation of the Borrowers to reimburse the Issuing Bank pursuant to subsection 2.2.4 for amounts
drawn under Letters of Credit.
“LC Sublimit”
– an amount not to exceed ten percent (10%) of the Revolving Credit Maximum Amountthree
million five hundred thousand dollars ($3,500,000).
“Lender(s)”
– as defined in the preamble to this Agreement and each other Person who becomes a “Lender” hereunder, whether by assignment
or otherwise.
“Letter of Credit”
– any standby letter of credit issued by Issuing Bank for the account of any Loan Party.
“LIBOR”
– relative to any Interest Period for LIBOR Loans, a rate per annum obtained by dividing (a) the London Interbank Offered Rate,
as determined by ICE Benchmark Administration Limited (or any successor or substitute therefor acceptable to Administrative Agent) for
U.S. Dollar deposits with a term equivalent to such Interest Period as obtained by the Administrative Agent from Reuter’s, Bloomberg
or another commercially available source as may be designated by the Administrative Agent from time to time (the “Screen Rate”),
two (2) Business Days before the first day of such Interest Period, by (b) a number equal to 1.00 minus the LIBOR Reserve Percentage.
Notwithstanding the foregoing, LIBOR shall not in any event be less than zero percent (0.00%).
“LIBOR Loans”
the LIBOR Revolving Credit Loans and/or the LIBOR Term Loans.
“LIBOR Option”
the option granted pursuant to Section 4.1 to have the interest on all or any portion of the principal amount of the Revolving Credit
Loans or any Term Loan Advance based on LIBOR. No LIBOR Loans shall be made after the Third Amendment Effective Date and no LIBOR Revolving
Credit Loans shall exist on or after the SOFR Conversion Date.
“LIBOR Reserve Percentage”
for any day, the percentage, as determined in good faith by the Administrative Agent, which is in effect on such day as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) representing the maximum reserve requirement (including, without
limitation, supplemental, marginal and emergency reserve requirements) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”) of a member bank in such System.
“LIBOR Revolving
Credit Loan” – any Revolving Credit Loan for the periods when the rate of interest applicable to such Revolving Credit
Loan is calculated by reference to LIBOR. No LIBOR Revolving Credit Loans shall be made after the Third Amendment Effective Date and no
LIBOR Revolving Credit Loans shall exist on or after the SOFR Conversion Date.
“LIBOR Term Loan”
– any portion of the Term Loan for the periods when the rate of interest applicable to such portion of the Term Loan is calculated
by reference to LIBOR. No LIBOR Term Loans shall be made after the Third Amendment Effective Date and no LIBOR Revolving Credit Loans
shall exist on or after the SOFR Conversion Date.
“Lien”
– with respect to any Person, any interest granted by that Person in any real or personal property, asset, or other right owned
or being purchased or acquired by that Person (including an interest in respect of a Capital Lease) that secures payment or performance
of any obligation and includes any mortgage, lien, encumbrance, title retention lien, charge, or other security interest of any kind,
whether arising by contract, as a matter of law, by judicial process, or otherwise.
“Line Cap”
– at any time, the lesser of (i) the Revolving Credit Maximum Amount and (ii) the Borrowing Base.
“Loan Account”
– as defined in Section 4.6.
“Loan Documents”
– this Agreement, the Intercreditor Agreement, the Other Agreements and the Security Documents, in each case as amended, restated,
supplemented or otherwise modified from time to time.
“Loan Parties”
– means collectively, Borrowers and Guarantors and Loan Party means any one of them.
“Loan Party Materials”
– as defined in subsection 13.8.2.
“Loans”
– all loans and advances of any kind made by Administrative Agent, any Lender, or any Affiliate of Administrative Agent or any Lender,
pursuant to this Agreement.
“Majority Lenders”
– as of any date, Lenders holding more than 50% of the Term Loan and Revolving Credit Commitments determined on a combined basis
and following the termination of the Revolving Credit Commitments, Lenders holding more than 50% of the outstanding Loans and LC Obligations;
provided that (i) if there are two or more Lenders which are not Affiliates, then at least two Lenders which are not Affiliates
shall be required to constitute Majority Lenders and (ii) the Loans, Revolving Credit Commitments and LC Obligations held by any Defaulting
Lender shall be excluded for purposes of determining Majority Lenders.
“Margin Stock”
– as defined in Regulation U of the Board of Governors.
“Material Adverse
Effect” – (a) a material adverse change in, or a material adverse effect upon the financial condition, operations, assets,
business profitability, or properties of the Loan Parties taken as a whole, (b) a material impairment of the ability of any Loan Party
to perform any of the Obligations under any Loan Document, (c) a material adverse effect upon any substantial portion of the Collateral
under the Collateral Documents or upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document
or the ability of Administrative Agent to enforce or collect any Obligations or to realize upon any material portion of the Collateral,
or (d) cancellation or termination of the agreements referenced in clauses (a) and (b) of the definition of “Voting Agreements”,
other than by their terms.
“Material Contract”
– with respect to any Person, (a) the Related Agreements; (b) each contract or agreement to which that Person or any of its Subsidiaries
is a party involving a customer of such Person that generates 15% or more of consolidated gross profit for such Person or its Subsidiaries
in any Fiscal Year; (c) the Voting Agreements and (d) all other contracts or agreements as to which the breach, nonperformance, cancellation,
or failure to renew by any party could reasonably be expected to have a Material Adverse Effect.
“Maximum Rate”
– as defined in subsection 3.1.3.
“Moody’s”
– Moody’s Investors Service, Inc., and its successors.
“Mortgages”
– each mortgage, security deed or deed of trust executed by a Borrower in favor of Administrative Agent, for the benefit of itself
and Lenders, by which such Borrower grants to Administrative Agent, as security for the Obligations, a Lien upon the real Property of
such Borrower described therein.
“Mortgage-Related
Documents” – with respect to any real property subject to a Mortgage, the following, in form and substance satisfactory
to Administrative Agent: (a) a mortgagee title policy (or binder therefor) covering Administrative Agent’s interest under the Mortgage,
in a form and amount and by an insurer acceptable to Administrative Agent, which must be fully paid on that effective date; (b) all assignments
of leases, estoppel letters, attornment agreements, consents, waivers, and releases as Administrative Agent reasonably requires with respect
to other Persons having an interest in the real estate; (c) a current, as-built survey of the real estate, containing a metes-and-bounds
property description and certified by a licensed surveyor acceptable to Administrative Agent; (d) a life-of-loan flood hazard determination
and, if the real estate is located in a flood plain, an acknowledged notice to borrower and flood insurance in an amount, with endorsements
and by an insurer acceptable to Administrative Agent; (e) a current appraisal of the real estate, prepared by an appraiser acceptable
to Administrative Agent, and in form and substance satisfactory to Administrative Agent; (f) an environmental assessment, prepared by
environmental engineers acceptable to Administrative Agent, and accompanied by all reports, certificates, studies, or data as Administrative
Agent reasonably requires, which must all be in form and substance satisfactory to Administrative Agent; and (g) an Environmental Agreement
and all other documents, instruments, or agreements as Administrative Agent reasonably requires with respect to any environmental risks
regarding the real estate.
“Multiemployer Plan”
– a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any Borrower or any other member of the Controlled Group
may have any liability.
“Net Cash Proceeds”:
| (a) | with respect to any Asset Disposition, the aggregate cash proceeds (including cash proceeds received pursuant
to policies of insurance or by way of deferred payment of principal pursuant to a note, installment receivable or otherwise, but only
as and when received) received by any Loan Party pursuant to that Asset Disposition net of (i) the direct costs relating to that sale,
transfer or other disposition (including sales commissions and legal, accounting and investment banking fees); (ii) taxes paid or reasonably
estimated by Borrowers to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax
sharing arrangements); and (iii) amounts required to be applied to the repayment of any Debt secured by a Lien on the asset subject to
that Asset Disposition (other than the Loans); |
| (b) | with respect to any issuance of Equity Interests, the aggregate cash proceeds received by any Loan Party
pursuant to that issuance, net of the direct costs relating to that issuance (including sales and underwriters’ commissions); and |
| (c) | with respect to any issuance of Debt, the aggregate cash proceeds received by any Loan Party pursuant
to that issuance, net of the direct costs of that issuance (including up-front, underwriters’ and placement fees). |
“NOLV”
– the net orderly liquidation value of Equipment, expressed as a dollar value for Equipment, to be realized at an orderly, negotiated
sale held within a reasonable period of time, net of all liquidation expenses, as determined from the most recent appraisal of Borrower’s
Equipment performed by an appraiser and on terms satisfactory to Collateral Agent in its reasonable discretion.
“Notes”
– the Revolving Credit Notes and the Term Loan Notes.
“Obligations”
– all Loans, LC Obligations, reimbursement and other obligations with respect to Letters of Credit and all other advances, debts,
liabilities, obligations, covenants and duties, together with all interest, fees and other charges thereon (including all interest, fees
and other charges accruing after the commencement of any Insolvency Proceeding), of any kind or nature, present or future, owing, arising,
due or payable from any Borrower or any other Loan Party to Administrative Agent, any Lender, Issuing Bank, Bank or any of their respective
Affiliates, arising under this Agreement or any of the other Loan Documents, whether direct or indirect (including those acquired by assignment),
absolute or contingent, primary or secondary, due or to become due, now existing or hereafter arising and however acquired, including
without limitation all Product Obligations; provided, that Obligations of any Loan Party shall not include any Excluded Swap Obligations
solely of such Loan Party.
“Obligee Guarantor”
– as defined in Section 15.7.
“Operating Lease”
– any lease of (or other agreement conveying the right to use) any real or personal property by any Loan Party, as lessee, other
than any Capital Lease.
“Organizational I.D.
Number” – with respect to any Person, the organizational identification number assigned to such Person by the applicable
governmental unit or agency of the jurisdiction of organization of such Person.
“Other Agreements”
– each Borrowing Base Certificate, each Compliance Certificate, and any and all agreements, instruments and documents (other than
this Agreement and the Security Documents), heretofore, now or hereafter executed by any Loan Party, any Subsidiary of a Loan Party or
any other third party and delivered to Administrative Agent, any Lender or any Affiliate of any Agent or any Lender in respect of the
transactions contemplated by this Agreement, including, without limitation, all agreements, instruments and documents relating to Product
Obligations.
“Other Connection
Taxes” – with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient
and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party
to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction
pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Receipts”
– any cash received by or paid to or for the account of any Loan Party consisting of (a) representation and warranty insurance in
connection with an acquisition, (b) escrow amounts released in connection with an acquisition, and (c) any purchase price adjustment received
in connection with any purchase.
“Overadvance”
– as defined in subsection 2.1.2.
“Paid in Full”
– as defined in the Intercreditor Agreement.
“Parent”
– as defined in the preamble to this Agreement.
“Participant”
– as defined in subsection 13.5.2.
“Participation Register”
– as defined in subsection 13.5.2.
“Patriot Act”
– the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Pub. L. No. 107-56, 115 Stat. 272 (2001).
“Payment Conditions”
– with respect to any applicable transaction, (i) no Default or Event of Default shall exist immediately after giving effect to
such transaction, (ii) the average of the Excess Availability amounts (calculated on a pro forma basis to include the making of
any Loans or the issuance of any Letters of Credit in connection with such transaction) for each Business Day in the thirty (30) day period
prior to such transaction shall be greater than or equal to the greater of (x) $3,000,000 and (y) 20% of the Line Cap, (iii) Excess Availability
(calculated as set forth above) on the date of such proposed transaction shall be greater than or equal to the greater of (x) $3,000,000
and (y) 20% of the Line Cap, (iv) the Fixed Charge Coverage Ratio (calculated on a pro forma basis after giving effect to such transaction)
for the most recently ended trailing twelve calendar month period shall not be less than 1.10 to 1.00 (but, solely for purposes of determining
whether payments on the Closing Date Seller Note are permitted, the minimum Fixed Charge Coverage Ratio required under such Section shall
be 1.25 to 1.00), (v) before and after giving effect to such transaction, the Loan Parties are in compliance with each of the financial
covenants set forth in Section 9.2.12 as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered
pursuant to Section 9.1.3, and (vi) so long as the Acquisition Term Debt has not received Payment in Full (as defined in the Intercreditor
Agreement), the payment conditions set forth in the Acquisition Term Loan Agreement have been satisfied.
“PBGC”
– the Pension Benefit Guaranty Corporation and any entity succeeding to any or all of its functions under ERISA.
“PEG Balance”
– with respect to any particular date, the amount held in the Borrowers’ main operating account held with the Administrative
Agent.
“Pension Plan”
– a “pension plan,” as that term is defined in Section 3(2) of ERISA, which is subject to Title IV of ERISA or the minimum
funding standards of ERISA (other than a Multiemployer Pension Plan), and as to which any Borrower or any Subsidiary (including any contingent
liability of any member of Borrowers’ Controlled Group) may have any liability, including any liability by reason of having been
a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor under Section 4069 of ERISA.
“Permitted Acquisition”
means any Acquisition by any Loan Party (other than Holdings) where:
| (a) | the business, division or assets acquired are for use, or the Person acquired is engaged, in the same
or a related, adjacent or vertically integrated line of business engaged in by the Loan Parties on the First Amendment Effective Date; |
| (b) | immediately before and after giving effect to that Acquisition, no Default or Event of Default exists; |
| (c) | the aggregate consideration (cash and non-cash) to be paid by the Loan Parties (including any Debt assumed
or issued in connection therewith, the maximum amount payable in connection with any deferred purchase price obligation (including any
earn-out obligation) and the value of any Equity Interests of any Loan Party issued to the seller in connection with that Acquisition)
in connection with (i) that Acquisition (or any series of related Acquisitions) is less than $15,000,000, and (ii) all Acquisitions is
less than $52,500,000; provided, that the consideration paid in connection with the RWS Acquisition shall be excluded for purposes of
the foregoing clauses (c)(i) and (c)(ii); |
| (d) | in the case of the Acquisition of any Person, that Acquisition is non-hostile and the board of directors
or similar governing body of that Person has approved that Acquisition; |
| (e) | not less than 15 Business Days prior to that Acquisition (or any later date approved by Administrative
Agent in its sole discretion), Administrative Agent has received an acquisition summary with respect to the Person and/or business, division
or assets to be acquired, which summary must include a reasonably detailed description thereof (including financial information) and operating
results (including financial statements for the most recent 12-month period for which they are available and as otherwise available),
the terms and conditions, including economic terms, of the proposed Acquisition, and Borrowers’ calculation of pro forma Consolidated
EBITDA relating thereto; |
| (f) | not less than five Business Days prior to that Acquisition (or any later date approved by Administrative
Agent in its sole discretion), Administrative Agent has received complete executed or conformed copies of each material document, instrument
and agreement to be executed in connection with that Acquisition together with all lien search reports and lien release letters and other
documents as Administrative Agent reasonably requires to evidence the termination of Liens on the assets, business, or division to be
acquired; |
| (g) | the Senior Net Leverage Ratio on a pro
forma basis immediately after giving effect to that Acquisition does not exceed (A) the maximum
Senior Net Leverage Ratio permitted under Section 9.2.12(ii) for the most recently ended
Fiscal Quarter immediately prior to that Acquisition minus (B) 0.25; provided, however, that,
notwithstanding the foregoing, (x) with
respect to the Permitted Acquisition to be funded with the proceeds of the Delayed
Draw Term B Loan (as defined
under the Acquisition Term Loan Agreement), the Term B Loan
Leverage Condition (as defined under the Acquisition Term Loan Agreement) shall apply rather
than this clause (g), and (y) with respect to the Permitted Acquisition to be funded with
the proceeds of the Term D Loan (as defined under the Acquisition Term Loan Agreement), the
Term DDelayed Draw Term Loan Leverage
Condition (as defined under the Acquisition Term Loan Agreement) shall apply rather than
this clause (g); |
| (h) | Borrowers’ computation of pro forma Consolidated EBITDA is reasonably satisfactory to Administrative
Agent; |
| (i) | the business, division, assets or Person acquired generated positive EBITDA (calculated in a manner acceptable
to Administrative Agent) for each of the twelve calendar months immediately preceding that Acquisition; |
| (j) | the Loan Parties shall have satisfied the Payment Conditions after giving effect to that Acquisition; |
| (l) | Borrower Representative has provided Administrative Agent with pro forma forecasted balance sheets, profit
and loss statements, and cash flow statements of Holdings and its Subsidiaries, all prepared on a basis consistent with Holdings’
and its Subsidiaries’ historical financial statements, subject to adjustments to reflect projected consolidated operations following
the Acquisition; |
| (m) | Borrower Representative has provided Administrative Agent with reasonable calculations evidencing that
on a pro forma basis created by adding the historical combined financial statements of Holdings and its Subsidiaries (including the combined
financial statements of any other Person or assets that were the subject of a prior Permitted Acquisition during the relevant period)
to the historical consolidated financial statements of the entity to be acquired (or the historical financial statements related to the
division, business or assets to be acquired) pursuant to the Acquisition, subject to adjustments to reflect projected consolidated operations
following the Acquisition, Holdings and its Subsidiaries are projected to be in compliance with the financial covenants for each of the
twelve months ended one year after the proposed date of consummation of that Acquisition; |
| (n) | the provisions of Section 9.1.8 have been satisfied, including, without limitation, simultaneously with
the closing of that Acquisition, the target company (if that Acquisition is structured as a purchase of equity) or a Loan Party (other
than Holdings) (if that Acquisition is structured as a purchase of assets or a merger and a Loan Party (other than Holdings) is the surviving
entity) executes and delivers to Administrative Agent (i) all documents necessary to grant to Administrative Agent a first-priority Lien
(subject to the Intercreditor Agreement) in all of the assets of each of the target company or surviving company and its Subsidiaries,
subject to the terms of the Intercreditor Agreement, each in form and substance reasonably satisfactory to Administrative Agent, and (ii)
an unlimited guaranty of the Obligations, or at the option of Administrative Agent in Administrative Agent’s absolute discretion,
a joinder agreement satisfactory to Administrative Agent in which each of the target company or surviving company and its Subsidiaries
becomes a borrower under this Agreement and assumes primary joint and several liability for the Obligations; |
| (o) | if the Acquisition is structured as a merger, a Loan Party (other than Holdings) will be the surviving
entity; |
| (p) | Administrative Agent has received a copy of the proposed capital structure after giving pro forma effect
to such Acquisition; |
| (q) | to the extent readily available to Borrowers, Borrower Representative has provided Administrative Agent
with all other information with respect to that Acquisition as reasonably requested by Administrative Agent (including, without limitation,
all third-party due-diligence reports and quality-of-earnings reports); |
| (r) | solely for the purposes of determining whether any assets acquired in connection with such Acquisition
shall be included in the Borrowing Base, Administrative Agent shall be satisfied with the results of a field exam, conducted at the Loan
Parties’ expense, prior to the inclusion of any Accounts of the target company in the Borrowing Base; and |
| (s) | concurrently with the consummation of that Acquisition, a Senior Officer of the Borrower Representative
shall have delivered to the Administrative Agent a certificate stating that the foregoing conditions in this definition have been satisfied. |
“Permitted
ADM Factoring Arrangement” means the sale of ADM Receivables by Quest in the ordinary course of business, pursuant to the ADM/BOA
Factoring Agreement so long as (a) all purchases of ADM Receivables under such agreement are made without recourse to Quest, with the
purchaser assuming all credit risk with respect to the ADM receivables purchased, and (b) the net cash proceeds from such sale are
deposited in an account established with the Agent or in an account subject to a Control Agreement, in form and substance satisfactory
to Agent at its sole option.
“Permitted Liens”
– a Lien expressly permitted under this Agreement pursuant to subsection 9.2.2.
“Person”
– an individual, partnership, corporation, limited liability company, joint stock company, land trust, business trust, or unincorporated
organization, or a government or agency or political subdivision thereof.
“Plan”
– an employee benefit plan now or hereafter maintained for employees of any Loan Party or any of their Subsidiaries that is covered
by Title IV of ERISA.
“Platform”
– as defined in subsection 13.8.2.
“Pledge Agreements”
– each pledge agreement executed by the Loan Parties or any one of them, as applicable, granting in favor of Administrative Agent,
for the benefit of itself and Lenders, a Lien on the Equity Interests of the Subsidiaries of such Loan Party or Loan Parties, in each
case as amended, restated, supplemented or otherwise modified from time to time.
“PNC” –
as defined in the preamble to this Agreement.
“Prime Rate”
– the rate of interest quoted in the print edition of The Wall Street Journal, Money Rates Section as the Prime Rate (currently
defined as the base rate on corporate loans posted by at least 75% of the nation’s thirty (30) largest banks), as in effect from
time to time. If multiple Prime Rates are quoted in the Money Rates Section of The Wall Street Journal, then the highest Prime Rate will
be the Prime Rate hereunder. In the event that the Prime Rate is no longer published by The Wall Street Journal in the “Money Rates”
or similar table, then the Administrative Agent may select an alternative published index based upon comparable information as a substitute
Prime Rate. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer.
The Administrative Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime
Rate.
“Pro Rata Percentage”
– (i) with respect to each Revolving Credit Lender, the percentage equal to its Revolving Credit Commitment divided by the
aggregate of all Revolving Credit Commitments and (ii) with respect to each Term Loan Lender, the percentage equal to its Term Loan Commitment
divided by the aggregate of all Term Loan Commitments.
“Proceeding”
– any investigation, inquiry, litigation, review, hearing, suit, claim, audit, arbitration, proceeding or action (in each case,
whether civil, criminal, administrative, investigative or informal) commenced, brought, conducted or heard by or before, or otherwise
involving, any governmental authority or arbitrator.
“Product Obligations”
– every obligation of any Borrower or any other Loan Party under and in respect of any one or more of the following types of services
or facilities extended to such Borrower or any other Loan Party by Bank, Administrative Agent, any Lender or any of their respective Affiliates:
(i) credit cards, (ii) cash management or related services including the automatic clearing house transfer of funds for the account of
such Borrower or any other Loan Party pursuant to agreement or overdraft, (iii) treasury management, including controlled disbursement
services, (iv) Derivative Obligations, (v) commercial cards (including so-called “procurement cards” or “P-cards”),
and (vi) supply chain financing and supply chain finance services (including, without limitation, trade payable services and supplier
accounts receivable purchases).
“Projections”
– for Holdings and its Subsidiaries forecasted Consolidated (i) balance sheets, (ii) profit and loss statements, (iii) cash flow
statements, and (iv) capitalization statements, prepared on a consistent basis with the historical financial statements of Holdings and
its Subsidiaries, together with appropriate supporting details and a statement of underlying assumptions.
“Property”
– any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.
“Qualified ECP Guarantor”
– in respect of any Swap Obligations, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant guarantee
or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes
an “eligible contract participant” under the Commodity Exchange Act 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.
“Qualified Equity
Interest” – any Equity Interest issued by Holdings (and not by one or more of its Subsidiaries) that is not a Disqualified
Equity Interest.
“Quest”
– as defined in the preamble to this Agreement.
“Quest
Equipment” – as defined in the preamble to this Agreement.
“Recipient”
– (a) the Administrative Agent, (b) any Lender and (c) the Issuing Bank, as applicable.
“Register”
– as defined in subsection 13.5.5.
“Regulation U”
– Regulation U of the FRB.
“Related Agreements”
– the Green Remedies Acquisition Agreement and all agreements, instruments, and documents executed or delivered in connection with
the Green Remedies Agreement and the Green Remedies Acquisition.
“Related Parties”
– with respect to any specified Person, such Person’s Affiliates and the respective directors, trustees, officers, employees,
agents and advisors of such Person and such Person’s Affiliates.
“Report”
– as defined in Section 12.9.
“Reportable Event”
– a reportable event as defined in Section 4043 of ERISA and the regulations issued thereunder as to which the PBGC has not waived
the notification requirement of Section 4043(a), or the failure of a Pension Plan to meet the minimum funding standards of Section 412
of the Code (without regard to whether the Pension Plan is a plan described in Section 4021(a)(2) of ERISA) or under Section 302 of ERISA.
“Reserves”
– reserves in such amounts, and with respect to such matters, as Collateral Agent shall deem necessary or appropriate in its reasonable
credit judgment exercised in good faith, against the Borrowing Base or Excess Availability, including without limitation with respect
to (i) price adjustments, damages, unearned discounts, returned products or other matters for which credit memoranda are issued in the
ordinary course of any Loan Party’s business; (ii) other sums chargeable against Borrowers’ Loan Account as Revolving Credit
Loans under any section of this Agreement and any sales tax accruals as of the Closing Date until paid in full and evidence of the payment
of such sales tax owing has been delivered to the Administrative Agent; (iii) amounts owing by any Loan Party to any Person to the extent
secured by a Lien on, or trust over, any Property of any Loan Party which constitutes Collateral; (iv) amounts owing by any Loan Party
in connection with Product Obligations (provided, on the Closing Date, Administrative Agent is not including a reserve for commercial
cards, but reserves the right to add at any time in its reasonable discretion), including, without limitation, the Derivative Obligations
Reserve; (v) rent for locations at which books, records, or Equipment is stored and as to which Administrative Agent has not received
a satisfactory landlord’s agreement or bailee letter, as applicable; and (vi) such other specific events, conditions or contingencies
as to which Collateral Agent, in its reasonable credit judgment exercised in good faith, determines reserves should be established from
time to time hereunder; provided, that, notwithstanding the foregoing, Collateral Agent shall not establish any Reserves in respect
of any matters relating to any items of Collateral that have been taken into account in determining Eligible Accounts or Eligible Unbilled
Accounts, as applicable.
“Restricted Payment”
– as defined in Section 9.2.3.
“Restrictive Agreement”
– an agreement (other than a Loan Document) that conditions or restricts the right of any Loan Party or any Subsidiary of any Loan
Party to incur or repay Debt, to grant Liens on any assets, to declare or make Distributions, to modify, extend or renew any agreement
evidencing Debt, or to repay any intercompany Debt.
“Revolving Commitment
Period” – the period after (and not including) the Closing Date to, but not including, the Revolving Termination Date.
“Revolving Credit
Commitment” – with respect to any Lender, the amount of such Lender’s Revolving Credit Commitment pursuant to subsection
2.1.1, as set forth next to such Lender’s name on Schedule 1 hereto, or any Assignment and Acceptance Agreement executed
by such Lender.
“Revolving Credit
Commitments” – the aggregate amount of such commitments of all Lenders.
“Revolving Credit
Lender” – a Lender with a Revolving Credit Commitment.
“Revolving Credit
Loan” – a Loan made by any Revolving Credit Lender pursuant to Section 2.1, including (unless the context otherwise
requires) Overadvances.
“Revolving Credit
Maturity Date” – April 19December 30,
20262029.
“Revolving Credit
Maximum Amount” – Thirty FiveForty-Five
Million Dollars ($35,000,00045,000,000),
as such amount may be increased or reduced from time to time pursuant to the terms hereof.
“Revolving Credit
Notes” – any promissory notes executed by Borrowers in favor of each Revolving Credit Lender that requests a Revolving
Credit Note to evidence its Revolving Credit Loans, which shall be in the form of Exhibit 2.1 to this Agreement, together with
any replacement or successor notes therefor.
“Revolving Daily
Unused Fee Amount” – for any day, (a) the Revolving Daily Unused Fee Rate for such day, multiplied by (b) the actual amount
of such day by which the Revolving Credit Commitment exceeds the Aggregate Revolving Extensions.
“Revolving Daily
Unused Fee Rate” – for any day, (a) an annual fixed rate of 0.25%, if on such day the quotient of the Aggregate Revolving
Extensions divided by the Revolving Credit Commitment is greater than or equal to 50% or (b) an annual fixed rate of 0.375%, if on such
day the quotient of the Aggregate Revolving Extensions divided by the Revolving Credit Commitment is less than 50%.
“Revolving Termination
Date” – the Revolving Credit Maturity Date or such earlier date on which the Revolving Credit Commitments shall terminate
or be terminated in full as provided herein.
“RWS” means
RWS Facility Services, LLC, a Delaware limited liability company and each of its Subsidiaries.
“RWS Acquisition”
means that acquisition by Holdings or its Subsidiaries of all of the issued and outstanding Equity Interests of RWS pursuant to the RWS
Acquisition Agreement.
“RWS Acquisition
Agreement” means that certain Membership Interest Purchase Agreement, dated as of the Second Amendment Effective Date (as amended,
restated, supplemented or otherwise modified as permitted hereunder), by and among Rome Holdings, LLC, M&A Business Consulting, Inc.,
the other sellers party thereto and Quest Sustainability Services, Inc., RWS and Sustainable Solutions Group, LLC.
“RWS Acquisition
Documents” means the RWS Acquisition Agreement and all agreements, instruments, and documents executed or delivered in connection
with the RWS Acquisition.
“S&P”
– Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.
“SBA
PPP Loans” –all the one-time loans (and any potential future loans under such similar program) obtained by any of the Borrowers
incurred under 15 U.S.C. 636(a)(36) (as added to the Small Business Act by Section 1102 of the CARES Act) under the Small Business Act,
as amended.
“Schedule of Accounts”
– as defined in subsection 7.2.1.
“Screen Rate”
– has the meaning set forth in the definition of “LIBOR” herein.
“SEC” –
the Securities and Exchange Commission or any other governmental authority succeeding to any of the principal functions thereof.
“Second Amendment
Effective Date” means December 7, 2021.
“Security Documents”
– the Control Agreements, the Guaranty Agreements, the Pledge Agreements, the Mortgages, the Intellectual Property Security Agreement
and all other instruments and agreements now or at any time hereafter securing the whole or any part of the Obligations, in each case
as amended, restated, supplemented or otherwise modified from time to time.”
“Senior Net Leverage
Ratio” – as of any date of determination, the ratio of (a) Total Senior Debt as of such date to (b) Consolidated EBITDA
for the most recently ended twelve month period, and if such date is not the last day of a Fiscal Quarter, for the most recently ended
twelve month period for which financials have been delivered.
“Senior Officer”
– with respect to any Loan Party, any of the president, chief executive officer, the chief financial officer, or the treasurer of
that Loan Party
“Side Letter”
– that certain Side Letter, dated as of the Closing Date, by and among the Loan Parties, the Administrative Agent and the Lenders.
“SOFR”
shall mean, for any day, a rate equal to the secured overnight financing rate as administered by the Federal Reserve Bank of New York
(or a successor administrator of the secured overnight financing rate).
“SOFR Adjustment”
shall mean, the following:
SOFR AdjustmentLoan
Type |
Interest Period |
SOFR
Adjustment |
Ten
(10) basis points (0.10%)
Revolving
Credit Loans / LC Obligations |
For
a One (1) month Interest Period |
Zero
basis points (0.00%) |
Fifteen
(15) basis points (0.15%)
Revolving
Credit Loans / LC Obligations |
For
a Three (3) month Interest Period |
Zero
basis points (0.00%) |
Term
Loans |
One
(1) month Interest Period |
Zero
basis points (0.00%) |
Term
Loans |
Three
(3) month Interest Period |
Zero
basis points (0.00%) |
“SOFR Conversion
Date” means October 1, 2022.
“SOFR Determination
Date” shall have the meaning set forth in the definition of Daily Simple SOFR.
“SOFR Floor”
means a rate of interest per annum equal to zero basis points (0.00%).
“SOFR Rate Day”
shall have the meaning set forth in the definition of Daily Simple SOFR.
“SOFR Reserve Percentage”
shall mean, for any day, the maximum effective percentage in effect on such day, if any, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining the reserve requirements (including, without limitation, supplemental, marginal
and emergency reserve requirements) with respect to SOFR funding.
“Solvent”
– as to any Person, that such Person (i) owns Property whose fair saleable value is greater than the amount required to pay all
of such Person’s Debt (including contingent debts), (ii) is able to pay all of its Debt as such Debt matures and (iii) has capital
sufficient to carry on its business and transactions and all business and transactions in which it is about to engage.
“Specified Event
of Default” means any Event of Default pursuant to Sections 11.1.1, 11.1.3 or 11.1.9 (but in the case of Section 11.1.3, solely
with respect to a failure to comply with the provisions of Sections 9.1.3, 9.1.4 and 9.2.12).
“Specified Financial
Covenant” – as defined in Section 11.6(a).
“Specified Financial
Covenant Default” – as defined in Section 11.6(a).
“Subordinated Debt”
– Debt of any Loan Party or any Subsidiary of any Loan Party that is subordinated to the Obligations in a manner satisfactory to
Administrative Agent, and contains terms, including without limitation, payment terms, satisfactory to Administrative Agent.
“Subsidiary”
– with respect to any Person, a corporation, partnership, limited liability company, or other entity of which that Person owns,
directly or indirectly, outstanding Equity Interests having more than 50% of the ordinary voting power for the election of directors or
other managers of that corporation, partnership, limited liability company, or other entity. Unless the context otherwise requires, each
reference to Subsidiaries in this Agreement refers to Subsidiaries of Holdings. Unless the context otherwise requires, each reference
to Subsidiaries in this Agreement refers to Subsidiaries of Holdings.
“Swap Obligation”
– with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes
a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Taxes”
– any and all present and future taxes, duties, levies, imposts, deductions, assessments, charges, similar fees or withholdings
imposed under applicable law and/or by any governmental authority that are in the nature of a tax, and any and all liabilities (including
interest and penalties and other additions to taxes) with respect to any of the foregoing.
“Term”
– as defined in Section 5.1.
“Term Loan”
– the Loan described in subsection 2.3means, individually
and collectively, the Term Loan (Fourth Amendment) and the Term Loan (Fifth Amendment).
“Term
Loan (Fifth Amendment)” shall have the meaning set forth in Section 2.3.
“Term
Loan (Fourth Amendment)” shall have the meaning set forth in Section 2.3.
“Term Loan Advances
(Fifth Amendment)” – as defined in subsection 2.3.1Section
2.3.2.
“Term Loan Amortization
Commencement Date (Fifth Amendment)” means the earlier to occur of: (i) the date that all
Term Loans (Fifth Amendment) have been funded in accordance with the Term Loan Commitment (Fifth
Amendment) (such that the remaining Term Loan Commitment (Fifth Amendment) is $0.00);
or (ii) the first anniversary of the FourthFifth
Amendment Effective Date.
“Term Loan Commitment
(Fifth Amendment)” – with respect to any Lender, the amount of such Lender’s Term
Loan Commitment (Fifth Amendment) pursuant to subsectionSection
2.3, as set forth next to such Lender’s name on Schedule 1 hereto or any Assignment and Acceptance Agreement
executed by such Lender, minus all Term Loan payments paid to(Fifth
Amendment) amounts funded by such Lender.
“Term Loan Daily
Unused Fee Amount” – for any day during the Term Loan Draw Period (Fifth Amendment),
(a) (i) the Term Loan Daily Unused Fee Rate for such day, multiplied by (ii) the actual amount of such day by which the Term Loan Commitment
(Fifth Amendment) exceeds the Term Loans (Fifth Amendment)
made hereunder, or (b) $0 for any day after the Term Loan Draw Period (Fifth Amendment).
“Term Loan Daily
Unused Fee Rate” – for any day, (a) an annual fixed rate of 0.25%, if on such day the quotient of Term Loans (Fifth
Amendment) made hereunder divided by the Term Loan Commitment (Fifth Amendment) is
greater than or equal to 50%, or (b) an annual fixed rate of 0.375%, if on such day the quotient of Term Loans (Fifth
Amendment) made hereunder divided by the Term Loan Commitment (Fifth Amendment) is
less than 50%.
“Term Loan Draw
Period (Fifth Amendment)” – the period beginning on the FourthFifth
Amendment Effective Date up to an including the first anniversary of the FourthFifth
Amendment Effective Date.
“Term Loan Lender”
– a Lender that has funded a Term Loan (Fourth Amendment), any Lender that has funded a Term Loan
(Fifth Amendment), or any Lender with a Term Loan Commitment (Fifth Amendment).
“Term Loan Maturity
Date (Fifth Amendment)” – April 19December
30, 20262029.
“Term
Loan Maturity Date (Fourth Amendment)” – December 30, 2029
“Term Loan Notes”
– any promissory notes executed by Borrowers in favor of each Term Loan Lender that requests a Term Loan Note to evidence its Term
Loans, which shall be in the form of Exhibit 2.3 to this Agreement, together with any replacement or successor notes therefor.
“Term SOFR Administrator”
shall mean CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by
the Agent in its reasonable discretion).
“Term SOFR Determination
Date” shall have the meaning set forth in the definition of Term SOFR Rate.
“Term SOFR Loan Prepayment
Fee” – as defined in subsection 4.1.9.
“Term SOFR Loans”
– the Term SOFR Revolving Credit Loans and/or the Term SOFR Term Loans.
“Term SOFR Option”
– the option granted pursuant to Section 4.1 to have the interest on all or any portion of the principal amount of the Revolving
Credit Loans or any Term Loan Advance based on the Term SOFR Rate.
“Term SOFR Rate”
shall mean, with respect to any Term SOFR Loan for any Interest Period, the interest rate per annum determined by the Administrative Agent
by dividing (the resulting quotient rounded upwards, at the Agent’s discretion, to the nearest 1/100th of 1%) (A) the Term SOFR
Reference Rate for a tenor comparable to such Interest Period on the day (the “Term SOFR Determination Date”) that
is two (2) Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator, by
(B) a number equal to 1.00 minus the SOFR Reserve Percentage. If the Term SOFR Reference Rate for the applicable tenor has not been
published or replaced with a Benchmark Replacement by 5:00 p.m. (Pittsburgh, Pennsylvania time) on the Term SOFR Determination Date, then
the Term SOFR Reference Rate, for purposes of clause (A) in the preceding sentence, shall be the Term SOFR Reference Rate for such tenor
on the first Business Day preceding such Term SOFR Determination Date for which such Term SOFR Reference Rate for such tenor was published
in accordance herewith, so long as such first preceding Business Day is not more than three (3) Business Days prior to such Term SOFR
Determination Date. If the Term SOFR Rate, determined as provided above, would be less than the SOFR Floor, then the Term SOFR Rate shall
be deemed to be the SOFR Floor. The Term SOFR Rate shall be adjusted automatically without notice to the Borrower Representative on and
as of (i) the first day of each Interest Period, and (ii) the effective date of any change in the SOFR Reserve Percentage.
“Term SOFR Reference
Rate” shall mean the forward-looking term rate based on SOFR.
“Term SOFR Revolving
Credit Loan” – any Revolving Credit Loan for the periods when the rate of interest applicable to such Revolving Credit
Loan is calculated by reference to the Term SOFR Rate.
“Term SOFR Term Loan”
– any portion of the Term Loan for the periods when the rate of interest applicable to such portion of the Term Loan is calculated
by reference to the Term SOFR Rate.
“Termination Event”
– with respect to a Pension Plan that is subject to Title IV of ERISA, the following: (a) a Reportable Event; (b) the withdrawal
of any Borrower or any other member of the Controlled Group from that Pension Plan during a plan year in which that Borrower or other
member of the Controlled Group was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or was deemed such under
Section 4068(f) of ERISA; (c) the termination of that Pension Plan, the filing of a notice of intent to terminate the Pension Plan or
the treatment of an amendment of that Pension Plan as a termination under Section 4041 of ERISA; (d) the institution by the PBGC of proceedings
to terminate that Pension Plan; or (e) any event or condition that might reasonably constitute grounds under Section 4042 of ERISA for
the termination of, or appointment of a trustee to administer, that Pension Plan.
“Third Amendment
Effective Date” means December 2, 2022.
“Total Credit Facility”
– prior to the expiration of the Term Loan Draw Period (Fifth Amendment), $40,00,00050,872,802
and thereafter, the sum of the Revolving Credit Maximum Amount and the Term Loan Advances outstanding, as increased or reduced
from time to time pursuant to the terms hereof.
“Total Plan Liability”
– at any time, the present value of all vested and unvested accrued benefits under all Pension Plans, determined as of the then
most recent valuation date for each Pension Plan, using PBGC actuarial assumptions for single employer plan terminations.
“Total Senior Debt”
– all (a) Debt of Holdings and its Subsidiaries, determined on a consolidated basis in accordance with GAAP (excluding (u) contingent
obligations in respect of Contingent Liabilities (except to the extent constituting (1) Contingent Liabilities in respect of Debt of
a Person other than any Loan Party, or (2) Contingent Liabilities in respect of undrawn letters of credit), (v) Debt of any Borrower
to any other Loan Party and Debt of any Subsidiary to any Borrower or to any other Subsidiary, (w) any Debt that is unsecured or contractually
subordinated to the Obligations in form and substance reasonably satisfactory to the Administrative Agent, (x) obligations with respect
to earn-out payments for Permitted Acquisitions until due and payable, and (y) obligations for any leased real property to the extent
unsecured and not constituting debt for borrowed money) minus (b) unrestricted cash and Cash Equivalent Investments of Holdings and its
Subsidiaries in deposit accounts subject to Control Agreements in favor of the Acquisition Term Agent and the Administrative Agent not
to exceed $1,000,000 (but excluding, for the avoidance of doubt, the cash proceeds of any Delayed
Draw Term B, Term D Loan Agreement
or any Incremental Facilities (as each term is defined in the Acquisition Term Loan Agreement)) as of any applicable date of determination;
provided, that for all purposes of calculating the Senior Net Leverage Ratio under the Loan Documents, the amount of outstanding Revolving
Credit Loans for purposes of clause (a) above shall be calculated by taking the average of such outstanding Revolving Credit Loans at
the end of each business day for the trailing ninety (90) day period (or, if prior to the date that is ninety (90) days following the
Closing Date, the period from the First Amendment Effective Date to the date the Senior Net Leverage Ratio is being tested) (the averaging
of such outstanding revolving loans, the “Revolver Averaging Mechanic”).
“Type of Organization”
– with respect to any Person, the kind or type of entity by which such Person is organized, such as a corporation or limited liability
company.
“UCC” –
the Uniform Commercial Code as in effect in the State of Texas on the date hereof, as it may be amended or otherwise modified.
“Unfunded Liability”
– the amount (if any) by which the present value of all vested and unvested accrued benefits under all Pension Plans exceeds the
fair market value of all assets allocable to those benefits, all determined as of the then most recent valuation date for each Pension
Plan, using PBGC actuarial assumptions for single employer plan terminations.
“Unused Line Fee”
– as defined in Section 3.5.
“U.S. Government
Securities Business Day” shall mean any day except for (a) a Saturday or Sunday or (b) a day on which the Securities Industry
and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes
of trading in United States government securities.
“U.S. Lender”
– any Lender that is a “United States person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance
Certificate” – as defined in subsection 3.11.3.
“Voting Agreements”
– (a) that certain Voting Agreement, dated as of April 11, 2019, by and among (i) Mitchell A. Saltz, Jeffery D. Forte, Brian Dick
and each of their respective affiliates, (ii) Hampstead Park Capital Management, LLC and (iii) Holdings, (b) that certain Stock Grant
Agreement, dated as of the First Amendment Effective Date, by and among Holdings and Green Remedies, in each case, as the same may be
amended or otherwise modified as permitted hereunder and (c) any similar agreements or arrangements relating to voting matters and/or
affecting the constitution of the board of directors of Holdings.
“Warrant Holder”
– Monroe Capital or any of its affiliates or controlled investment vehicles.
“Warrant Letter Agreement”
means that certain Letter Agreement, dated as of the date hereof, by and among Holdings and the Warrant Holder, as amended, restated,
supplemented or otherwise modified from time to time as permitted thereunder.
“Warrants”
– collectively (a) that certain Warrant to Purchase Common Stock, dated as of the First Amendment Effective Date, issued by Holdings
to the Warrant Holder and (b) any further warrant issued by Holdings to the Warrant Holder.
“Wholly-Owned Subsidiary”
– as to any Person, a Subsidiary all of the Equity Interests of which (except directors’ qualifying Equity Interests) are
at the time directly or indirectly owned by that Person and/or another Wholly-Owned Subsidiary of that Person. Unless the context otherwise
requires, each reference to Wholly-Owned Subsidiaries refers to Wholly-Owned Subsidiaries of Holdings.
“Write-Down and Conversion
Powers” – with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority
from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described
in the EU Bail-In Legislation Schedule.
1.2 Other Terms. All other terms contained in this Agreement shall have, when the context so indicates, the meanings
provided for by the UCC to the extent the same are used or defined therein. Accounting terms not otherwise specifically defined herein
shall be construed in accordance with GAAP consistently applied.
1.3 Certain Matters of Construction. The terms “herein”, “hereof” and “hereunder”
and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any
pronoun used shall be deemed to cover all genders. The section titles, table of contents and list of exhibits and schedules appear as
a matter of convenience only and shall not affect the interpretation of this Agreement. All references to statutes and related regulations
shall include any amendments of same and any successor statutes and regulations. All references to any of the Loan Documents shall include
any and all modifications thereto and any and all extensions or renewals thereof.
1.4 Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio, requirement
or covenant in this Agreement or any related definition, and either the Loan Parties or Majority Lenders shall so request, Administrative
Agent, the Lenders and the Loan Parties shall negotiate in good faith to amend such ratio, requirement, covenant or definition to preserve
the original intent thereof in light of such change in GAAP (subject to the approval of Majority Lenders); provided that, until
so amended, (i) such ratio, requirement, covenant or definition shall continue to be computed in accordance with GAAP prior to such change
therein and (ii) the Loan Parties shall provide to Administrative Agent and Lenders financial statements and other documents required
under this Agreement setting forth a reconciliation between calculations of such ratio, requirement, covenant or definition made before
and after giving effect to such change in GAAP.
1.5 Divisions. Any restriction, condition or prohibition applicable to a merger, transfer, consolidation, amalgamation,
consolidation, assignment, sale or transfer, or similar term set forth in the Loan Documents shall be deemed to apply to a division of
or by a limited liability company, or an allocation of assets to a series of a limited liability companies, including any “Division”
or other process or action permitted under Section 18-217 of Title 6 of the Delaware Code, as if it were a merger, transfer, consolidation,
amalgamation, consolidation, assignment, sale or transfer, or similar term, as applicable. Any reference in any Loan Document to a merger,
transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply
to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability companies (or the unwinding
of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale or transfer,
or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate
Person under the Loan Documents (and each division of any limited liability company that is a Subsidiary, joint venture or any other like
term shall also constitute such a Person or entity). For all purposes under the Loan Documents, in connection with any division or plan
of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation
or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been
transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be
deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
1.6 Notification and Limitation of Liability – LIBOR and Related Matters. The interest rate on LIBOR Loans is determined
by reference to LIBOR, which is derived from the London Interbank Offered Rate, and the London Interbank Offered Rate is currently administered
by ICE Benchmark Administration Limited (“IBA”). The U.K. Financial Conduct Authority announced in July 2017 that, after December
31, 2021, it would no longer persuade or compel contributing banks to make rate submissions to IBA. As a result, it is possible that the
London Interbank Offered Rate may no longer be available after such date or may no longer be deemed an appropriate reference rate upon
which to determine the interest rate on Term SOFR Loans. Section 4.9 provides a mechanism for (a) determining an alternative rate
of interest in the event that LIBOR (or any then-current Benchmark, as defined in Section 4.9) or any component thereof is no longer
available or in the other circumstances set forth in that Section and (b) modifying this Agreement to give effect to such alternative
rate of interest. Furthermore, in the third amendment to this Agreement, which became effective
upon the Third Amendment Effective Date, the partieS AGREED THAT FROM AND AFTER THE THIRD AMENDMENT EFFECTIVE DATE, NO NEW LIBOR LOANS
WOULD EXTENDED AND THAT ON OR AFTER THE SOFR CONVERSION DATE, NO OUTSTANDING LIBOR LOANS WOULD EXIST, WITH ANY SUCH OUTSTANDING LIBOR
LOANS BEING CONVERTED TO BASE RATE LOANS ON THE SOFR CONVERSION DATE. Neither the Administrative Agent nor PNC individually, nor
any Affiliate of PNC, warrants or accepts any responsibility for, or shall have any liability with respect to, (i) the administration
or submission of, or any other matter related to, the London Interbank Offered Rate, LIBOR (or any component thereof) or any such other
Benchmark (or any component thereof) or, in each case, with respect to any alternative or successor rate thereto or replacement rate thereof,
including, without limitation, whether any such alternative, successor or replacement reference rate, as it may or may not be adjusted
pursuant to this Agreement, will have the same value as, or be economically equivalent to, LIBOR or any such other Benchmark that is replaced,
or (ii) the effect, implementation or composition of any Conforming Changes. References herein to a component of, or a published component
used in the calculation of, LIBOR are deemed to include the Screen Rate.
Article
II. CREDIT FACILITY
Subject to the terms and
conditions of, and in reliance upon the representations and warranties made in, this Agreement and the other Loan Documents, Lenders
agree to make a Total Credit Facility of up to $40,000,00050,872,802
as increased or decreased from time to time pursuant to the terms hereof, available upon Borrowers’ request therefor,
as follows:
2.1 Revolving Credit Loans.
2.1.1 Revolving Credit Commitments. Each Revolving Credit Lender agrees, severally and not jointly, to make Revolving Credit
Loans to Borrowers from time to time during the Revolving Commitment Period, as requested by Borrower Representative, on its own behalf
and on behalf of all other Borrowers in the manner set forth in subsection 4.1.1 hereof, up to a maximum principal amount at any
time outstanding equal to the lesser of (i) such Revolving Credit Lender’s Revolving Credit Commitment and (ii) the product of such
Revolving Credit Lender’s Pro Rata Percentage and the amount of the Line Cap at such time, minus, in each case, the product
of such Revolving Credit Lender’s Pro Rata Percentage and an amount equal to the sum of the LC Amount. Within the foregoing limits,
Borrowers may borrow, repay and reborrow Revolving Credit Loans. The Revolving Credit Loans shall be secured by all of the Collateral.
2.1.2 Overadvances. Insofar as (i) Borrower Representative, on its own behalf and on behalf of all other Borrowers, may
request and Administrative Agent (as provided below) may be willing in its sole and absolute discretion to make Revolving Credit Loans
to Borrowers or (ii) Administrative Agent, in its sole discretion, makes Revolving Credit Loans on behalf of Lenders, if Administrative
Agent, in its reasonable credit judgment, deems that such Revolving Credit Loans are necessary or desirable (a) to protect all or any
portion of the Collateral, (b) to enhance the likelihood, or maximize the amount of, repayment of the Loans and the other Obligations,
or (c) to pay any other amount chargeable to Borrowers pursuant to this Agreement, including without limitation costs, fees and expenses
as described in Sections 3.7 and 3.8, in each case, at a time when the unpaid balance of Revolving Credit Loans plus
the LC Amount exceeds, or would exceed with the making of any such Revolving Credit Loan, the Borrowing Base (such Loan or Loans being
herein referred to individually as an “Overadvance” and collectively, as “Overadvances”),
Administrative Agent shall enter such Overadvances as debits in the Loan Account. All Overadvances shall be repaid on demand, shall be
secured by the Collateral and shall bear interest as provided in this Agreement for Revolving Credit Loans generally. Any Overadvance
made pursuant to the terms hereof shall be made by all Revolving Credit Lenders ratably in accordance with their respective Pro Rata Percentages.
The foregoing notwithstanding, (i) unless otherwise consented to by Majority Lenders, Overadvances shall not be outstanding for more than
sixty (60) consecutive days, and (ii) unless otherwise consented to by all Lenders, no Overadvances shall be permitted to the extent that
such Overadvances would cause the Aggregate Revolving Extensions to exceed the Revolving Credit Maximum Amount.
2.2 Letters of Credit.
2.2.1 Letters of Credit Commitment.
(i) Subject to the terms and conditions hereof, the Issuing Bank, in reliance on the agreements of the other Revolving Credit
Lenders set forth in subsection 2.2.3(i), agrees to issue Letters of Credit for the account of any Borrower on any Business Day
during the Revolving Commitment Period in such form as may be approved from time to time by the Issuing Bank; provided that the Issuing
Bank shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (A) the LC Amount shall exceed the
LC Sublimit, or (B) the principal amount of all Revolving Credit Loans then outstanding plus the LC Amount, shall not exceed the
Line Cap.
(ii) Each Letter of Credit shall (A) be denominated in U.S. Dollars, (B) have a face amount of at least $50,000 (unless otherwise
agreed by the Issuing Bank), and (C) expire no later than the earlier of (1) the first anniversary of its date of issuance and (2) the
date that is ten (10) Business Days prior to the Revolving Termination Date, provided that any Letter of Credit with a one-year term may
provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause
(2) above).
(iii) The Issuing Bank shall not at any time be obligated to issue any Letter of Credit if:
(a) the issuance of such Letter of Credit would conflict with, or cause the Issuing Bank or any Revolving Credit Lender to exceed
any limits imposed by, any Applicable Law;
(b) 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 Applicable Law applicable 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 Closing Date, or shall impose upon the Issuing Bank any unreimbursed loss,
cost or expense which was not applicable on the Closing Date and which the Issuing Bank in good faith deems material to it;
(c) any Revolving Credit Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements,
including the delivery of cash collateral for Letters of Credit, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers
or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to subsection 4.11.2)
with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and
all other LC Obligations as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion;
or
(d) the issuance of such Letter of Credit would violate one or more policies of the Issuing Bank.
(iv) The Issuing Bank shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it
and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (i) provided to the Administrative
Agent in Section 12 with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit
issued by it or proposed to be issued by it and the documents associated therewith as fully as if the term “Administrative Agent”
as used in Section 12 included the Issuing Bank with respect to such acts or omissions, and (ii) as additionally provided herein
with respect to the Issuing Bank.
(v) References herein to “issue” and derivations thereof with respect to Letters of Credit shall also include extensions
or modifications of any outstanding Letters of Credit, unless the content otherwise requires.
2.2.2 Procedure for Issuance of Letters of Credit. Borrower Representative may from time to time request that the Issuing
Bank issue a Letter of Credit by delivering to the Issuing Bank at its address for notices specified herein an LC Application therefor,
completed to the satisfaction of the Issuing Bank, and such other certificates, documents and other Issuer Documents and information as
the Issuing Bank may request. Upon receipt of any LC Application, the Issuing Bank will process such LC Application and the certificates,
documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall the Issuing Bank be required to issue any Letter of Credit
earlier than three (3) Business Days after its receipt of the LC Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may
be agreed to by the Issuing Bank and any Borrower. The Issuing Bank shall furnish a copy of such Letter of Credit to the applicable Borrower
promptly following the issuance thereof. The Issuing Bank shall promptly furnish to the Administrative Agent, which shall in turn promptly
furnish to the Lenders, notice of the issuance of each Letter of Credit (including the amount thereof).
2.2.3 LC Participations.
(i) The Issuing Bank irrevocably agrees to grant and hereby grants to each LC Participant, and, to induce the Issuing Bank to
issue Letters of Credit hereunder, each LC Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Bank, on the terms and conditions hereinafter stated, for such LC Participant’s own account and risk an undivided interest
equal to such LC Participant’s Revolving Credit Lender’s Pro Rata Percentage in the Issuing Bank’s obligations and rights
under and in respect of each Letter of Credit issued hereunder and the amount of each draft paid by the Issuing Bank thereunder. Each
LC Participant unconditionally and irrevocably agrees with the Issuing Bank that, if a draft is paid under any Letter of Credit for which
the Issuing Bank is not reimbursed in full by the Borrowers in accordance with the terms of this Agreement, such LC Participant shall
pay to the Issuing Bank upon demand at the Issuing Bank’s address for notices specified herein an amount equal to such LC Participant’s
Revolving Credit Lender’s Pro Rata Percentage of the amount of such draft, or any part thereof, that is not so reimbursed.
(ii) If any amount required to be paid by any LC Participant to the Issuing Bank pursuant to subsection 2.2.3(i) in respect
of any unreimbursed portion of any payment made by the Issuing Bank under any Letter of Credit is paid to the Issuing Bank within three
(3) Business Days after the date such payment is due, such LC Participant shall pay to the Issuing Bank on demand an amount equal to the
product of (A) such amount, times, (B) the daily average Federal Funds Rate during the period from and including the date such payment
is required to the date on which such payment is immediately available to the Issuing Bank, times, (C) a fraction the numerator of which
is the number of days that elapse during such period and the denominator of which is 360.
If any such amount required to be paid by any
LC Participant pursuant to subsection 2.2.3(i) is not made available to the Issuing Bank by such LC Participant within three (3)
Business Days after the date such payment is due, the Issuing Bank shall be entitled to recover from such LC Participant, on demand, such
amount with interest thereon calculated from such due date at the rate per annum applicable to Base Rate Revolving Credit Loans. A certificate
of the Issuing Bank submitted to any LC Participant with respect to any amounts owing under this Section 2.2 shall be conclusive
in the absence of manifest error.
(iii) Whenever, at any time after the Issuing Bank has made payment under any Letter of Credit and has received from any LC Participant
its pro rata share of such payment in accordance with subsection 2.2.3(i), the Issuing Bank receives any payment related to such
Letter of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral applied thereto by the Issuing Bank),
or any payment of interest on account thereof, the Issuing Bank will distribute to such LC Participant its pro rata share thereof; provided,
however, that in the event that any such payment received by the Issuing Bank shall be required to be returned by the Issuing Bank,
such LC Participant shall return to the Issuing Bank the portion thereof previously distributed by the Issuing Bank to it.
(iv) Each LC Participant’s obligation to purchase participating interests pursuant to subsection 2.2.3(i) shall
be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right that such LC Participant or any Borrower may have against the Issuing Bank, any Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions
specified in Section 10; (C) any adverse change in the condition (financial or otherwise) of any Loan Party; (D) any breach of
this Agreement or any other Loan Document by any Borrower, any other Loan Party or any other Lender; or (E) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing.
2.2.4 Reimbursement Obligation of the Borrower. If any draft is paid under any Letter of Credit, the Borrowers shall reimburse
the Issuing Bank for the amount of (i) the draft so paid and (ii) any taxes, fees, charges or other out-of-pocket costs or expenses incurred
by the Issuing Bank in connection with such payment, not later than 12:00 Noon (Central time), on (A) the Business Day that the Borrower
Representative receives notice of such draft, if such notice is received on such day prior to 10:00 A.M (Central time), or (B) if clause
(A) above does not apply, the Business Day immediately following the day that the Borrower Representative receives such notice. Each such
payment shall be made to the Issuing Bank at its address for notices referred to herein in U.S. Dollars and in immediately available funds.
Interest shall be payable on any such amounts from the date on which the relevant draft is paid until payment in full at (x) until the
Business Day next succeeding the date of the relevant notice, the interest rate for Base Rate Revolving Credit Loans and (y) thereafter,
the Default Rate.
2.2.5 Obligations Absolute. The Borrowers’ obligations under this Section 2.2 shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim, recoupment or defense to payment that any Borrower may have
or have had against the Issuing Bank, any beneficiary of a Letter of Credit or any other Person. The Borrowers also agree with the Issuing
Bank that the Issuing Bank shall not be responsible for, and the Borrowers’ LC Reimbursement Obligations under subsection 2.2.4
shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among any Borrower and any beneficiary of
any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of any Borrower against
any beneficiary of such Letter of Credit or any such transferee. THE ISSUING BANK SHALL NOT BE LIABLE FOR ANY ERROR, OMISSION, INTERRUPTION
OR DELAY IN TRANSMISSION, DISPATCH OR DELIVERY OF ANY MESSAGE OR ADVICE, HOWEVER TRANSMITTED, IN CONNECTION WITH ANY LETTER OF CREDIT,
EXCEPT FOR ERRORS OR OMISSIONS FOUND BY A FINAL AND NONAPPEALABLE DECISION OF A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM
THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE ISSUING BANK. THE BORROWERS AGREE THAT ANY ACTION TAKEN OR OMITTED BY THE ISSUING BANK
UNDER OR IN CONNECTION WITH ANY LETTER OF CREDIT OR THE RELATED DRAFTS OR ISSUER DOCUMENTS, IF DONE IN THE ABSENCE OF GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT, SHALL BE BINDING ON THE BORROWERS AND SHALL NOT RESULT IN ANY LIABILITY OF THE ISSUING BANK TO ANY BORROWER.
2.2.6 Letter of Credit Payments. If any draft shall be presented for payment under any Letter of Credit, the Issuing Bank
shall promptly notify the Borrower Representative of the date and amount thereof. The responsibility of the Issuing Bank to the Borrowers
in connection with any draft presented for payment under any Letter of Credit shall, in addition to any payment obligation expressly provided
for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit
in connection with such presentment are substantially in conformity with such Letter of Credit.
2.2.7 Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the
terms hereof shall control.
2.3 Term Loan.
2.3.1 Term
Loan (Fourth Amendment). The Loan Parties acknowledge and agree that prior to the Fifth Amendment Effective Date, the Lenders extended
one or more term loans to the Borrower, in accordance with the terms of this Agreement as it was in effect immediately prior to the Fifth
Amendment Effective Date (all such term loans extended pursuant to this Agreement, as in effect before the Fifth Amendment Effective
Date, collectively, the “Term Loan (Fourth Amendment)”). The Loan Parties further acknowledge and agree that neither the
Administrative Agent, nor any Lender, has any further commitment or obligation to extend any term loans under this Agreement as it was
in effect immediately prior to the Fifth Amendment Effective Date, and that the only remaining term loan commitments existing on or after
the Fifth Amendment Effective Date shall the commitments to provide a Term Loan Advance (Fifth Amendment) in accordance with Section
2.3.2 of this Agreement.
2.3.2 2.3.1
Term Loan Commitments (Fifth Amendment). Subject to the terms and conditions
of this Agreement and the other Loan Documents, each Term Lender agrees, severally and not jointly, so long as no Default or Event of
Default exists, to make one or more advances to Borrower from time to time during the Term Loan Draw Period (Fifth
Amendment) (each a “Term Loan Advance (Fifth Amendment)”, and all such
Term Loan Advances (Fifth Amendment) the “Term Loan (Fifth
Amendment”) in an aggregate principal amount not to exceed eighty percent (80%) of the hard cost (excluding taxes, shipping,
delivery, handling, installation and other so-called “soft” costs) evidenced by an invoice not more than six (6) months prior
to the date of the proposed advance of Eligible Machinery and Equipment of Borrower specifically identified by Borrower as constituting
the basis for the requested Term Loan Advance (Fifth Amendment), which Equipment must constitute
Eligible Machinery and Equipment and which Equipment must not have been specifically identified by Borrower with an earlier existing
Term Loan Advanceadvance; provided, however,
that the aggregate amount advanced for all such Term Loan Advances (Fifth Amendment) shall not
exceed $5,000,0003,000,000. Amounts repaid with
respect to theany Term Loan may not be reborrowed.
2.3.3 2.3.2Procedures.
Borrower shall comply with the following procedures in requesting a Term Loan Advance (Fifth Amendment):
(i) All
requests for a Term Loan Advance (Fifth Amendment) must be in writing to Administrative Agent
and must include a description of the relevant Equipment, the amount of the requested Term Loan Advance (Fifth
Amendment), and all other documents, agreements and information as reasonably required by Administrative Agent.
(ii) Each
Term Loan Advance (Fifth Amendment) must be in a minimum amount of at least $250,000.
(iii) All
requests for a Term Loan Advance (Fifth Amendment) must be made in advance of and provide sufficient
time for the Administrative Agent, if requested, to receive an appraisal satisfactory to it in its reasonable discretion prior to the
requested date of such Term Loan Advance (Fifth Amendment).
(iv) All
requests for a Term Loan Advance (Fifth Amendment) must be made during the Term Loan Draw Period
(Fifth Amendment).
2.4
[Reserved].
Article
III. INTEREST, FEES AND CHARGES
3.1 Interest.
3.1.1 Rates of Interest. Interest shall accrue on the principal amount of the Base Rate Loans outstanding at the end of
each day at a fluctuating rate per annum equal to the Applicable Margin then in effect plus the Base Rate; provided that
in no event shall the Applicable Margin then in effect plus the Base Rate at any time be less than the Applicable Margin plus
two percent (2%) per annum. Such rate of interest shall increase or decrease by an amount equal to any increase or decrease in the Base
Rate, effective as of the opening of business on the day that any such change in the Base Rate occurs. If Borrower Representative, on
its own behalf and on behalf of all other Borrowers, exercises the LIBOR Option or Term SOFR Option as provided in Section 4.1,
interest shall accrue on the principal amount of the LIBOR Loans and Term SOFR Loans outstanding at the end of each day at a rate per
annum equal to the Applicable Margin then in effect plus either (x) for LIBOR Loans, LIBOR, or (y) for TERM SOFR Loans, the Term
SOFR Rate applicable to each Term SOFR Loan for the corresponding Interest Period, plus for Term SOFR Loans, the SOFR Adjustment
for the applicable Interest Period; provided that in no event shall the Applicable Margin then in effect plus either (x)
for a LIBOR Loan, LIBOR applicable to any such LIBOR Loan, or (y) for a Term SOFR Loan, the Term SOFR Rate applicable to such Term SOFR
Loan, plus for a Term SOFR Loan, the SOFR Adjustment, at any time be less than the Applicable Margin then in effect, plus
the SOFR Adjustment, plus one percent (1%) per annum.
3.1.2 Default Rate of Interest. At the option of Administrative Agent, upon and after the occurrence of an Event of Default,
and during the continuation thereof, all Obligations shall bear interest or earn fees at a rate per annum equal to 2.0% plus the
rate otherwise applicable thereto (the “Default Rate”).
3.1.3 Maximum Interest. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to
any Loan or any extension of credit under the Loan Documents, together with all fees, charges and other amounts that are treated as interest
on such Loan or extension of credit under Applicable Law (collectively, “Charges”), shall exceed the maximum lawful
rate (the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by any Lender, Agent or
Issuing Bank in accordance with Applicable Law, the rate of interest payable hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate. To the extent lawful, the interest and Charges that would have been paid in respect of such Loan
or extension of credit but were not paid as a result of the operation of this subsection shall be cumulated and the interest and Charges
payable to such Lender, Agent or Issuing Bank shall be increased (but not above the amount collectible at the Maximum Rate therefor) until
such cumulated amount, together with interest thereon at the Federal Funds Rate for each day to the date of repayment, shall have been
received by such Lender, Agent or Issuing Bank. Any amount collected by such Lender, Agent or Issuing Bank that exceeds the maximum amount
collectible at the Maximum Rate shall be applied to the reduction of the principal balance of such Loan or extension of credit or refunded
to Borrowers so that at no time shall the interest and Charges paid or payable in respect of such Loan or extension of credit exceed the
maximum amount collectible at the Maximum Rate. To the extent Chapter 303 of the Texas Finance Code is relevant to such Lender, Agent
or Issuing Bank for purposes of determining the Maximum Rate, such Lender, Agent or Issuing Bank may elect to determine the Maximum Rate
under the Texas Finance Code pursuant to the “weekly ceiling” from time to time in effect, as referred to in Chapter 303 of
the Texas Finance Code; subject, however, to any right such Lender, Agent or Issuing Bank subsequently may have under Applicable Law to
change the method of determining the Maximum Rate.
3.2 Computation
of Interest and Fees. Interest with respect to Base Rate Loans, LIBOR Loans, Term SOFR Loans, Letter of Credit fees and Unused Line
Fees hereunder shall be calculated daily and shall be computed on the actual number of days elapsed over a year of 360 days and
a 30-day month (unless computation would result in an interest rate in excess of the Maximum Rate, in which event the
computation is made on the basis of a year of 365 or 366 days, as the case may be).
3.3 Fee Letter. Borrowers shall pay to Administrative Agent certain fees and other amounts in accordance with the terms
of the fee letter between Borrowers and Administrative Agent (the “Fee Letter”).
3.4 Letter of Credit Fees. Borrowers shall pay to Administrative Agent (i) for the ratable benefit of Revolving Credit
Lenders, a per annum fee equal to, (A) at any time prior to the Third Amendment Effective Date, the Applicable Margin then in effect for
Revolving Credit Loans, multipled by the aggregate undrawn available amount of such Letters of Credit outstanding from time to time during
the term of this Agreement, or (B) on and after the Third Amendment Effective Date, the sum of: (x) the Applicable Margin then in effect
for Term SOFR Revolving Credit Loans, plus (y) the SOFR Adjustment for an Interest Period of three (3) months, multiplied by (z) the aggregate
undrawn available amount of such Letters of Credit outstanding from time to time during the term of this Agreement, (ii) for the benefit
of Issuing Bank, all normal and customary charges associated with the issuance, processing and administration thereof, which fees and
charges shall be deemed fully earned upon issuance of each such Letter of Credit or as advised by Administrative Agent or Issuing Bank,
and (iii) for the benefit of Issuing Bank, a per annum fronting fee equal to 0.125% of the aggregate face amount of such Letters of Credit
outstanding from time to time during the term of this Agreement. Such fees and charges shall be payable in arrears on each LC Fee Payment
Date or as advised by Administrative Agent or Issuing Bank and shall not be subject to rebate or proration upon the termination of this
Agreement for any reason.
3.5 Unused Line Fees.
3.5.1 On each Fee Payment Date, Borrowers shall pay to Administrative Agent, for the ratable benefit of Lenders, a commitment
fee equal to the sum of the Revolving Daily Unused Fee Amounts for each day of the Fee Period immediately preceding such Fee Payment Date.
On the Revolving Termination Date, Borrowers shall pay to Administrative Agent, for the ratable benefit of Lenders, a commitment fee equal
to the sum of the Revolving Daily Unused Fee Amounts for each day of the period from the immediately preceding Fee Payment Date up to
but not including the Revolving Termination Date.
3.5.2 On each Fee Payment Date, Borrowers shall pay to Administrative Agent, for the ratable benefit of Lenders, a commitment
fee equal to the sum of the Term Loan Daily Unused Fee Amounts for each day of the Fee Period immediately preceding such Fee Payment Date.
On the Term Loan Termination Date, Borrowers shall pay to Administrative Agent, for the ratable benefit of Lenders, a commitment fee equal
to the sum of the Term Loan Daily Unused Fee Amounts for each day of the period from the immediately preceding Fee Payment Date up to
but not including the Term Loan Termination Date.
3.5.3 The fees in this Section shall be due and payable in arrears on each Fee Payment Date, the Revolving Termination Date, and
the Term Loan Termination Date.
3.6 Other Fees.
3.6.1 On the Fourth Amendment Effective Date, the Borrowers shall pay to the Administrative Agent, for the ratable benefit of
the Lenders, a $100,000 extension fee, which amount shall be immediately earned and payable in immediately available funds on the Fourth
Amendment Effective Date.
3.6.2 On
the Fifth Amendment Effective Date, the Borrowers shall pay to the Administrative Agent, for the ratable benefit of the Lenders, a $127,182
extension fee, which amount shall be immediately earned and payable in immediately available funds on the Fifth Amendment Effective Date.
3.7 Reimbursement of Expenses. If, at any time or times regardless of whether or not an Event of Default then exists,
(i) any Agent incurs legal or accounting expenses or any other costs or out-of-pocket expenses in connection with (a) the negotiation
and preparation of this Agreement or any of the other Loan Documents, any amendment of or modification of this Agreement or any of the
other Loan Documents, or any syndication or attempted syndication of the Obligations (including, without limitation, printing and distribution
of materials to prospective Lenders and all costs associated with bank meetings, but excluding any closing fees paid to Lenders in connection
therewith) or (b) the administration of this Agreement or any of the other Loan Documents and the transactions contemplated hereby and
thereby, or (ii) any Agent or any Lender incurs legal or accounting expenses or any other costs or out-of-pocket expenses in connection
with (a) any litigation, contest, dispute, suit, proceeding or action (whether instituted by any Agent, any Lender, any Borrower or any
other Person) relating to the Collateral, this Agreement or any of the other Loan Documents or any Borrower’s, any of its Subsidiaries’
or any Guarantor’s affairs, (b) any attempt to enforce any rights of Administrative Agent or any Lender against any Borrower or
any other Person which may be obligated to Administrative Agent or any Lender by virtue of this Agreement or any of the other Loan Documents
or (c) any attempt to inspect, verify, protect, preserve, restore, collect, sell, liquidate or otherwise dispose of or realize upon the
Collateral, including, without limitation, any excise, property, sales, and use taxes imposed by any state, federal, or local authority
on any of the Collateral or in respect of the sale thereof; then all such legal and accounting expenses, other costs and out-of-pocket
expenses of Administrative Agent or any Lender, as applicable, shall be charged to Borrowers; provided, that, in the case of each
of clauses (i) and (ii), any such legal expenses shall be limited to one counsel for Administrative Agent and one local counsel in each
appropriate jurisdiction, if necessary, and, in the case of clause (ii), one additional counsel for all Lenders other than Administrative
Agent. All amounts chargeable to Borrowers under this Section 3.7 shall be Obligations secured by all of the Collateral, shall
be payable on demand to Administrative Agent or such Lender, as the case may be, and shall bear interest from the date such demand is
made until paid in full at the rate applicable to Base Rate Revolving Credit Loans from time to time. Borrowers shall also reimburse Administrative
Agent for expenses incurred by any Agent to the extent and in the manner provided in Sections 3.8 and 3.9 hereof.
3.8 Bank Charges. Borrowers shall pay to Administrative Agent, on demand, any and all fees, costs or expenses which Administrative
Agent or any Lender pays to a bank or other similar institution arising out of or in connection with (i) the forwarding to any Borrower
or any other Person on behalf of any Borrower, by Administrative Agent or any Lender, of proceeds of Loans made to Borrowers pursuant
to this Agreement and (ii) the depositing for collection by Administrative Agent or any Lender of any check or item of payment received
or delivered to Administrative Agent or any Lender on account of the Obligations.
3.9 Appraisals; Field Examinations. Each Loan Party will permit, and will cause each Subsidiary to permit, each Agent
and its representatives to (i) conduct field examinations with respect to the Collateral and (iii) after the outstanding principal balance
of the Term Loan exceeds $500,000, obtain full or desktop appraisals (or updates of existing appraisals) of all Equipment of each Loan
Party or Subsidiary in form and substance satisfactory to Collateral Agent from an appraiser selected and engaged by Collateral Agent,
provided that, no more than one appraisal and two field examinations during any calendar year will be at Borrowers’ cost and expense,
unless (i) an Excess Availability Triggering Event has occurred and until such Cure Date, or (ii) a Default or an Event of Default exists,
in which case one additional appraisal (for the avoidance of doubt, permitted regardless of the then outstanding principal balance of
the Term Loan) and one additional field examination per calendar year will be at Borrowers’ cost and expense. Administrative Agent
may, in its discretion upon prior notice to Borrowers, provide for the payment of such amounts by making appropriate Revolving Credit
Loans to Borrowers and charging Borrowers’ Loan Account therefor.
3.10 Payment of Charges. All amounts chargeable to Borrowers under this Agreement shall be Obligations secured by all
of the Collateral, shall be, unless specifically otherwise provided, payable on demand and shall bear interest from the date demand was
made or such amount is due, as applicable, until paid in full at the rate applicable to Base Rate Revolving Credit Loans from time to
time.
3.11 Taxes.
3.11.1 No Deductions. Any and all payments or reimbursements made hereunder shall be made free and clear of and without
deduction for any and all taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, other
than Excluded Taxes (collectively, “Indemnified Taxes”). If Applicable Law requires a deduction for any such
Indemnified Taxes from or in respect of any sum payable hereunder to Administrative Agent, Issuing Bank or any Lender, then the sum payable
hereunder shall be increased as may be necessary so that, after all required deductions are made, Administrative Agent, Issuing Bank or
such Lender receives an amount equal to the sum it would have received had no such deductions been made.
3.11.2 Indemnification for Taxes. The Loan Parties shall jointly and severally indemnify Administrative Agent, Issuing Bank
and each Lender, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes payable or paid by Administrative
Agent, Issuing Bank or such Lender or required to be withheld or deducted from a payment to Administrative Agent, Issuing Bank or such
Lender 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 prepared
in good faith and delivered to the Loan Parties by Issuing Bank or a Lender (with a copy to Administrative Agent), or by Administrative
Agent on its own behalf or on behalf of Issuing Bank or a Lender, shall be conclusive absent manifest error. Notwithstanding any contrary
provision in this Agreement, the obligation of the Loan Parties under this Section 3.11 shall survive the payment in full of the
Obligations and the termination of this Agreement.
3.11.3 Status of Lenders. Any Lender that is entitled to an exemption from or reduction of withholding tax with respect
to any payments made hereunder or under any other Loan Document shall deliver to Borrowers and Administrative Agent, at the time or times
reasonably requested by the Loan Parties or Administrative Agent, such properly completed and executed documentation reasonably requested
by the Loan Parties or 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 Loan Parties or Administrative Agent, shall deliver such other documentation prescribed
by applicable law or reasonably requested by the Loan Parties or Administrative Agent as will the Loan Parties, Borrowers or Administrative
Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Without limiting
the generality of the foregoing:
(i) each U.S. Lender shall deliver to the Loan Parties and Administrative Agent (in such number of copies as shall be requested
by the recipient) on or prior to the date on which such U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of the Loan Parties or Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender
is exempt from U.S. federal backup withholding;
(ii) each Foreign Lender shall deliver to the Loan Parties and 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 Loan Parties or Administrative Agent), whichever of the following is applicable:
(a) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party, executed
originals of IRS Form W-8BEN (or any successor forms) establishing an exemption from, or reduction of, U.S. federal withholding, and such
other documentation as required by the Code;
(b) executed originals of IRS Form W-8ECI (or any successor forms);
(c) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section
881I of the Code, (x) certificates substantially in the form of Exhibit 3.11 (a “U.S. Tax Compliance Certificate”)
and (y) executed originals of IRS Form W-8BEN (or any successor form); or
(d) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any successor form),
accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents
(or successor forms) from each beneficial owner, as applicable; provided, that if the Foreign Lender is a partnership (and not
a participating lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption,
a U.S. Tax Compliance Certificate may be provided by such Foreign Lender on behalf of each such direct and indirect partner;
(iii) any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the Loan Parties and 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 Loan Parties or Administrative Agent),
executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Loan
Parties or Administrative Agent to determine the withholding or deduction required to be made; and (iv) 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 Loan Parties and Administrative Agent at the time or times prescribed by law and at such time or times reasonably
requested by the Loan Parties or 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 Loan Parties or Administrative Agent as may
be necessary for the Loan Parties and Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender
has complied with such Lender’s obligations under FATCA and/or to determine the amount, if any, to deduct and withhold from such
payment.
Each Lender agrees that if any documentation it
previously delivered expires or becomes obsolete or inaccurate in any respect, it shall promptly update such documentation or promptly
notify the Loan Parties and Administrative Agent in writing of its inability to do so. Notwithstanding any other provisions of this subsection
3.11.3, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
3.12 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 Documents, to the extent such liability is unsecured, may be subject
to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound
by:
(i) 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
(ii) the effects of any Bail-In Action on any such liability, including, if applicable:
(a) a reduction in full or in part or cancellation of any such liability;
(b) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial
Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares
or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement
or any other Loan Document; or
(c) 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.
Article
IV. LOAN ADMINISTRATION
4.1 Procedures for Borrowing and LIBOR/Term SOFR Option. Borrowings under the credit facility established pursuant to
Section 2 hereof shall be as follows:
4.1.1 Loan Requests. Requests for a Revolving Credit Loan shall be made, or shall be deemed to be made, in the following
manner:
(i) Borrower Representative, on its own behalf and on behalf of all other Borrowers, may give Administrative Agent notice of
its intention to borrow, in which notice Borrower Representative shall specify the amount of the proposed borrowing of a Revolving Credit
Loan (which shall be no less than $500,000 or an integral multiple of $100,000 in excess thereof in the case of Base Rate Revolving Credit
Loans) and the proposed borrowing date, which shall be a Business Day, no later than 11:00 a.m. (Central time) on the proposed borrowing
date (or in accordance with subsection 4.1.7 or 4.1.8, as applicable, in the case of a request for a LIBOR Loan or Term
SOFR Loan). There shall be no minimum borrowing amount for Base Rate Revolving Credit Loans during the period of time Cash Dominion is
in effect. Notwithstanding the foregoing, a notice of its intention to borrow shall not be required to be delivered if the Borrowers and
Administrative Agent have implemented automatic sweep to line functionality such that Revolving Credit Loans are automatically funded
to the Borrowers’ operating account to fund the payments of disbursements from such operating account.
(ii) On the date on which any amount required to be paid under this Agreement, whether as interest, repayment of LC Obligations
pursuant to Section 2.2, or for any other Obligation, becomes due and payable, Borrower Representative, on its own behalf and on
behalf of all other Borrowers, shall be deemed irrevocably to have made a request for a Revolving Credit Loan on such due date in the
amount required to pay such interest or other Obligation.
4.1.2 Disbursement. The proceeds of each Revolving Credit Loan requested pursuant to subsection 4.1.1(i) shall be
disbursed by Administrative Agent in lawful money of the United States of America in immediately available funds, in the case of the initial
requested borrowing, in accordance with the terms of the written disbursement letter from Borrower Representative, on its own behalf and
on behalf of all other Borrowers, and in the case of each subsequent requested borrowing, by wire transfer to such bank account as may
be agreed upon by Borrowers and Administrative Agent from time to time or elsewhere if pursuant to a written direction from Borrower Representative.
The proceeds of each Revolving Credit Loan that is deemed requested pursuant to subsection 4.1.1(ii) shall be disbursed by Administrative
Agent in lawful money of the United States of America in immediately available funds by way of direct payment of the relevant interest
or other Obligation. If at any time any Loan is funded by Administrative Agent or Lenders in excess of the amount requested or deemed
requested by Borrowers, Borrowers agree to repay the excess to Administrative Agent immediately upon the earlier to occur of (a) any Borrower’s
discovery of the error and (b) notice thereof to Borrowers from Administrative Agent or any Lender.
4.1.3 Payment by Lenders. Administrative Agent shall give to each Lender prompt written notice by facsimile, e-mail or
otherwise of the receipt by Administrative Agent from Borrower Representative of any request for a Revolving Credit Loan. Each such notice
shall specify the requested date and amount of such Revolving Credit Loan, whether such Revolving Credit Loan shall be subject to the
LIBOR Option or Term SOFR Option, and the amount of each Lender’s advance thereunder (in accordance with its applicable Pro Rata
Percentage). Each Lender shall, not later than 12:00 p.m. (Central time) on such requested date, wire to a bank designated by Administrative
Agent the amount of that Lender’s Pro Rata Percentage of the requested Revolving Credit Loan. The failure of any Lender to make
the Revolving Credit Loans to be made by it shall not release any other Lender of its obligations hereunder to make its Revolving Credit
Loan. Neither Administrative Agent nor any other Lender shall be responsible for the failure of any other Lender to make the Revolving
Credit Loan to be made by such other Lender. The foregoing notwithstanding, Administrative Agent, in its sole discretion, may from its
own funds make a Revolving Credit Loan on behalf of any Lender. In such event, the Lender on behalf of whom Administrative Agent made
the Revolving Credit Loan shall reimburse Administrative Agent for the amount of such Revolving Credit Loan made on its behalf, on a weekly
(or more frequent, as determined by Administrative Agent in its sole discretion) basis. On each such settlement date, Administrative Agent
will pay to each Lender the net amount owing to such Lender in connection with such settlement, including without limitation amounts relating
to Loans, fees, interest and other amounts payable hereunder. The entire amount of interest attributable to such Revolving Credit Loan
for the period from the date on which such Revolving Credit Loan was made by Administrative Agent on such Lender’s behalf until
Administrative Agent is reimbursed by such Lender, shall be paid to Administrative Agent for its own account.
4.1.4 Authorization. Borrowers hereby irrevocably authorize Administrative Agent, in Administrative Agent’s sole
discretion, to advance to Borrowers, and to charge to Borrowers’ Loan Account hereunder as a Revolving Credit Loan (which shall
be a Base Rate Revolving Credit Loan), a sum sufficient to pay all interest accrued on the Obligations during the immediately preceding
month or quarter, as the case may be, and to pay all fees, costs and expenses and other Obligations at any time owed by any Borrower to
Administrative Agent or any Lender hereunder.
4.1.5 [Reserved].
4.1.6 Method of Making Requests. As an accommodation to Borrowers, unless a Default or an Event of Default is then in existence,
(i) Administrative Agent shall permit telephonic or electronic requests for Revolving Credit Loans to Administrative Agent, (ii) Administrative
Agent and Issuing Bank may, in their discretion, permit electronic transmittal of requests for Letters of Credit to them, and (iii) Administrative
Agent may, in Administrative Agent’s discretion, permit electronic transmittal of instructions, authorizations, agreements or reports
to Administrative Agent. Unless Borrower Representative, on its own behalf and on behalf of all other Borrowers specifically directs Administrative
Agent or Issuing Bank in writing not to accept or act upon telephonic or electronic communications from any Borrower, neither Administrative
Agent nor Issuing Bank shall have any liability to Borrowers for any loss or damage suffered by any Borrower as a result of Administrative
Agent’s or Issuing Bank’s honoring of any requests, execution of any instructions, authorizations or agreements or reliance
on any reports communicated to it telephonically or electronically and purporting to have been sent to Administrative Agent or Issuing
Bank by any Borrower, and neither Administrative Agent nor Issuing Bank shall have any duty to verify the origin of any such communication
or the authority of the Person sending it. Each telephonic request for a Revolving Credit Loan or Letter of Credit accepted by Administrative
Agent and Issuing Bank, if applicable, hereunder shall be promptly followed by a written confirmation of such request from Borrower Representative
to Administrative Agent and Issuing Bank, if applicable.
4.1.7 LIBOR/Term SOFR Loan Request. By delivering a borrowing request to Administrative Agent on or before 10:00 a.m.,
Central time, on a Business Day, Borrower Representative, on its own behalf and on behalf of each other Borrower, may from time to time
irrevocably request, on not less than three nor more than five Business Days’ notice, that a LIBOR Loan or Term SOFR Loan be made
in a minimum amount of $500,000 and integral multiples of $100,000 with an Interest Period of one month or three months; provided, however
that, no request for a LIBOR Loan may be made after the Third Amendment Effective Date. On the terms and subject to the conditions of
this agreement, each LIBOR Loan or Term SOFR Loan shall be made available to Borrowers no later than 11:00 a.m. Central time on the first
day of the applicable Interest Period by deposit to the account of the applicable Borrower as shall have been specified in its borrowing
request. In no event shall Borrowers be permitted to have outstanding at any one time LIBOR Loans and Term SOFR Loans with more than six
different Interest Periods for all such LIBOR Loans and Term SOFR Loans.
4.1.8 Continuation and Conversion Elections/Automatic SOFR Conversion. By delivering a continuation/conversion notice to
Administrative Agent on or before 10:00 a.m., Central time, on a Business Day, Borrower Representative, on its own behalf and on behalf
of each other Borrower, may from time to time irrevocably elect, on not less than three nor more than five Business Days’ notice,
that all, or any portion in an aggregate minimum amount of $500,000 and integral multiples of $100,000, of any LIBOR Loan or Term SOFR
Loan be converted on the last day of an Interest Period into a LIBOR Loan or Term SOFR Loan with a different Interest Period, or continued
on the last day of an Interest Period as a Term SOFR Loan with a similar Interest Period, provided, however, that no LIBOR Loan
or Term SOFR Loan may be converted or continued to a LIBOR Loan after the Third Amendment Effective Date, and that no portion of the outstanding
principal amount of any LIBOR Loans or Term SOFR Loans may be converted to, or continued as, LIBOR Loans or Term SOFR Loans when any Default
or Event of Default has occurred and is continuing, and no portion of the outstanding principal amount of any LIBOR Loans or Term SOFR
Loans may be converted to LIBOR Loans or Term SOFR Loans of a different duration if such Loans relate to any Derivative Obligations. If
any Default or Event of Default has occurred and is continuing, or in the absence of delivery of a continuation/conversion notice with
respect to any LIBOR Loan or Term SOFR Loan at least three Business Days before the last day of the then current Interest Period with
respect thereto, each maturing LIBOR Loan or Term SOFR Loan shall automatically be continued as a Base Rate Loan. Notwithstanding anything
to the contrary in this Section 4.1, on the SOFR Conversion Date, the Borrower Representative shall be deemed to have made a request on
the SOFR Conversion Date for a Revolving Credit Loan in the amount necessary to repay all LIBOR Loans (including any Term SOFR Loan Prepayment
Fee associated with any such repayment), which Revolving Credit Loans shall be Base Rate Revolving Credit Loans and shall be used to repay
any LIBOR Loans (and associated Term SOFR Loan Prepayment Fee associated therewith) outstanding on the SOFR Conversion Date.
4.1.9 Voluntary Prepayment of LIBOR and Term SOFR Loans. LIBOR Loans and Term SOFR Loans may be prepaid upon the terms
and conditions set forth herein. For LIBOR Loans and/or Term SOFR Loans in connection with which Borrowers have or may incur Derivative
Obligations, additional obligations may be associated with prepayment, in accordance with the terms and conditions of the applicable underlying
agreements relating to such Derivative Obligations. Borrower Representative, on its own behalf and on behalf of each other Borrower, shall
give Administrative Agent, no later than 10:00 a.m., Central time, at least four (4) Business Days’ notice of any proposed prepayment
of any LIBOR Loan or Term SOFR Loan, specifying the proposed date of payment of such LIBOR Loan or Term SOFR Loan, and the principal amount
to be paid. Each partial prepayment of the principal amount of any such LIBOR Loan or Term SOFR Loan shall be in a minimum amount of $500,000
and integral multiples of $100,000 and accompanied by the payment of all charges outstanding on such LIBOR Loan and/orTerm SOFR Loans
and of all accrued interest on the principal repaid to the date of payment. Borrowers acknowledge that prepayment or acceleration of a
LIBOR Loan or Term SOFR Loan during an Interest Period applicable thereto shall result in Lenders incurring additional costs, expenses
and/or liabilities and that it is extremely difficult and impractical to ascertain the extent of such costs, expenses and/or liabilities.
Therefore, all full or partial prepayments of LIBOR Loans and/or Term SOFR Loans shall be accompanied by, and Borrowers hereby promise
to pay, on each date a LIBOR Loan and/or Term SOFR Loan is prepaid or the date all sums payable hereunder become due and payable, by acceleration
or otherwise, in addition to all other sums then owing, an amount equal to the loss, cost and expense incurred by each Lender attributable
to such event (including any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Lender to fund its LIBOR Loans and/or Term SOFR Loans and any loss, expense or liability relating to any currency swap
entered into by such Lender to fund such LIBOR Loan and/or Term SOFR Loan, but excluding loss of anticipated profits) (“Term
SOFR Loan Prepayment Fee”). A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender
is entitled to receive pursuant to this subsection 4.1.9 shall be delivered to Borrower Representative (with a copy to Administrative
Agent) and shall be conclusive and binding absent manifest error.
4.2 Payments. The Obligations shall be payable as follows:
4.2.1 Principal.
(i) Revolving Credit Loans. Principal on account of Revolving Credit Loans shall be payable by Borrowers to Administrative
Agent for the ratable benefit of Lenders immediately upon the earliest of (i) the occurrence of an Event of Default in consequence of
which Administrative Agent or Majority Lenders elect to accelerate the maturity and payment of the Obligations, or (ii) termination of
this Agreement pursuant to Section 5 hereof; provided, however, that, if an Overadvance shall exist at any time, Borrowers
shall, on demand, repay the Overadvance. Each payment by Borrowers on account of principal of the Revolving Credit Loans shall be applied
first to Base Rate Revolving Credit Loans and then to Term SOFR Revolving Credit Loans and LIBOR Revolving Credit Loans.
(ii) Term
Loan.
(a) Amortization
of Term Loan (Fourth Amendment). The Loan Parties acknowledge and agree that amortization of the Term Loan (Fourth Amendment) commenced
on December 31, 2024 and the remaining $2,872,802.23 balance of the Fourth Amendment Term Loan existing on the Fifth Amendment Date will
continue to be amortized quarterly, on the last day of each Fiscal Quarter, in equal installments of $143,640.15, with the entire remaining
principal amount then outstanding, together with any and all other amounts due in respect of the Term Loan (Fourth Amendment), being
be due and payable on the Term Loan Maturity Date (Fourth Amendment).
(b) (ii)
Amortization of Term Loan (Fifth Amendment).
Beginning on the Term Loan Amortization Commencement Date (Fifth Amendment), and continuing
on the last day of each Fiscal Quarter thereafter, principal payable on account of such Term Loan Advance (Fifth
Amendment) shall be paid in equal monthlyquarterly
installments equal to an amount sufficient to fully amortize the aggregate outstanding principal balance of such Term Loan
Advance over an assumed term ending on the date that is sixty (60) months after the
Term Loan Amortization Commencement Date. The (Fifth Amendment);
provided, however, that the entire remaining principal amount then outstanding, together with any and all other amounts due
in respect of the Term Loan (Fifth Amendment), shall be due and payable on the Term Loan Maturity
Date (Fifth Amendment).
4.2.2 Interest Provisions. Interest on the outstanding principal amount of any Loan shall be payable on each applicable
Interest Payment Date.
4.2.3 Costs, Fees and Charges. Costs, fees and charges payable pursuant to this Agreement shall be payable by Borrowers
to Administrative Agent, as and when provided to Administrative Agent, Issuing Bank or a Lender, as applicable, or to any other Person
designated by Administrative Agent, Issuing Bank or such Lender in writing.
4.2.4 Other Obligations. The balance of the Obligations requiring the payment of money, if any, shall be payable by Borrowers
to Administrative Agent for distribution to Issuing Bank and Lenders, as applicable, as and when provided in this Agreement or the other
Loan Documents.
4.2.5 LIBOR/Term SOFR Loans. If the application of any payment made in accordance with the provisions of this Agreement
would result in the prepayment, in whole or in part, of a LIBOR Loan or Term SOFR Loan prior to the last day of the Interest Period for
such LIBOR Loan or Term SOFR Loan, Borrowers shall pay to each Lender on the date of each such prepayment any applicable Term SOFR Loan
Prepayment Fees of such Lender; provided, that, if no Event of Default has occurred and is continuing at the time such payment
is to be applied, the amount of such prepayment shall not be applied to such LIBOR Loan or Term SOFR Loan, but will, at Borrowers’
option, be held by Administrative Agent in a non-interest-bearing account at Bank, which account is in the name of Administrative Agent
and from which account only Administrative Agent can make any withdrawal, in each case to be applied as such amount would otherwise have
been applied hereunder at the earlier to occur of (i) the last day of the relevant Interest Period or (ii) the occurrence of an Event
of Default, in which case, the Term SOFR Loan Prepayment Fees shall be payable upon the occurrence of such Event of Default.
4.3 Mandatory and Optional Prepayments.
4.3.1 Proceeds
of Sale, Loss, Destruction or Condemnation of Collateral. Concurrently with the receipt by any Loan Party or its Subsidiaries of
any Net Cash Proceeds from any Asset Disposition, in an amount equal to 100% of those Net Cash Proceeds; provided that, at the option
of Borrower Representative (as elected by Borrower Representative in writing to Administrative Agent on or prior to the fifth Business
Day after the date of receipt of such Net Cash Proceeds), and so long as no Default or Event of Default shall have occurred and be continuing,
Borrowers may reinvest all or any portion of such Net Cash Proceeds in long-term assets or acquisitions
used or useful in their business (such assets, “Additional Assets”) so long as such reinvestment is made within
180 days after the receipt of such Net Cash Proceeds (as certified by Borrower Representative in writing to Administrative Agent); provided
further, that any Net Cash Proceeds not so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this
Section 4.3.1 upon the expiration of such applicable period; provided, further, to the extent that (1) the assets that were subject
to the Asset Disposition constituted ABL Priority Collateral or Acquisition Term Loan Priority Collateral, such Additional Assets shall
also constitute ABL Priority Collateral or Acquisition Term Loan Priority Collateral, respectively (and Borrowers or their Subsidiaries,
as the case may be, shall promptly take such action (if any) as may be required to cause that portion of such reinvestment constituting
ABL Priority Collateral or Acquisition Term Loan Priority Collateral, as applicable, to be added to the ABL Priority Collateral or Acquisition
Term Loan Priority Collateral securing the Obligations or the Acquisition Term Debt, as applicable), (2) any such Asset Disposition that
consisted of or constituted any portion of ABL Priority Collateral, such Net Cash Proceeds shall be applied to the Obligations, and (3)
any such Asset Disposition is of assets solely constituting Acquisition Term Loan Priority Collateral that are required to be applied
to the Acquisition Term Debt pursuant to the terms of the Acquisition Term Loan Agreement, then the Net Cash Proceeds of such Asset Disposition
shall first be applied to the Acquisition Term Debt as required under the Acquisition Term Loan Documents until the Acquisition Term
Debt is Paid in Full and then to the Obligations as required hereunder. To the extent the Net Cash proceeds of any Asset Disposition
are required to be applied to the Acquisition Term Debt under this Section 4.3.1 or the Intercreditor Agreement, upon the payment
in full of the Acquisition Term Debt, such Net Cash Proceeds shall be applied to the Obligations as set forth in this Section 4.3.1.
To the extent that the Collateral sold, lost, destroyed or condemned consists of ABL Priority Collateral other than Accounts, the applicable
prepayment shall be applied first, to the installments of principal due under the Term Loan ratably, to be applied to future installment
payments in inverse order of maturity until paid in full, and second to repay outstanding principal of Revolving Credit Loans without
a reduction of the Revolving Credit Commitments. To the extent that the Collateral sold, lost, destroyed or condemned consists of Accounts,
the applicable prepayment shall be applied to reduce the outstanding principal balance of the Revolving Credit Loans, without a reduction
of the Revolving Credit Commitments. Prior to entering into any Asset Disposition of assets which constitute Acquisition Term Loan Priority
Collateral, Borrowers shall provide not less than three (3) Business Days’ prior written notice thereof and identify if any such
proceeds are being delivered to the deposit accounts subject to Control Agreements whereby Administrative Agent has a first-priority
security interest therein. If Administrative Agent does not receive prior written notice that proceeds of Acquisition Term Loan Priority
Collateral is being sent to such deposit accounts, Administrative Agent may presumptively rely that all cash received into the deposit
account is subject to a first priority security interest, is ABL Priority Collateral, and can be applied to the Revolving Credit Loans
as set forth herein.
4.3.2 Term Loan. If at any time the amount of the aggregate outstanding principal amount of the Term Loan exceeds 85% of
NOLV of the Borrowers’ Eligible Machinery and Equipment, the Borrowers shall pay to Administrative Agent, for the ratable benefit
of the Term Loan Lenders, as a mandatory prepayment of the Term Loan, the amount by which the aggregate outstanding principal amount of
the Term Loan exceeds 85% of NOLV of the Borrowers’ Eligible Machinery and Equipment.
4.3.3 Proceeds from Additional Debt. Subject to the Intercreditor Agreement, if any Borrower receives proceeds of any additional
Debt incurred by such Borrower (other than Debt permitted pursuant to subsection 9.2.2), Borrowers shall pay to Administrative
Agent, for the ratable benefit of Lenders, when and as received by such Borrower and as a mandatory prepayment of the Obligations, a sum
equal to 100% of the net proceeds to such Borrower of the incurrence of such Debt. Any such prepayment shall be applied to repay outstanding
principal of Revolving Credit Loans without a reduction of the Revolving Credit Commitments.
4.3.4 Excess Revolving Credit Extensions. If at any time the Aggregate Revolving Extensions exceed the Line Cap at such
time (except as a result of Overadvances permitted under subsection 2.1.2), Borrowers shall immediately repay the Revolving Credit
Loans and/or cash collateralize the Letters of Credit in an aggregate amount equal to such excess.
4.3.5 Optional Reductions of Revolving Credit Commitments. Borrowers may, at their option from time to time but not more
than once in any 12-month period upon not less than three (3) Business Days’ prior written notice to Administrative Agent, permanently
reduce ratably in part, the unused portion of the Revolving Credit Commitments, provided, however, that (i) each such optional
reduction shall be in an amount of $2,000,000 or integral multiples of $1,000,000 in excess thereof and (ii) the aggregate of all optional
reductions to the Revolving Credit Commitments may not exceed $5,000,000 during the Term. Except for charges under subsection 4.1.9,
such prepayments shall be without premium or penalty.
4.3.6 Optional
Prepayments. Borrowers may, at their option from time to time upon not less than three (3) days prior written notice to Administrative
Agent, prepay installments of the Term Loan. Each such prepayment shall be applied to the installments of principal due under the Term
Loan in the order of application designated by Borrower; provided, that, Borrower shall only be requiredpermitted
to make such prepayments to the extent that, after giving effect thereto, Excess Availability would be at least $3,000,0006,000,000.
Except for charges under subsection 4.1.9, such repayments shall be without premium or penalty.
4.3.7 Proceeds from Equity Interests. Subject to the Intercreditor Agreement, if any Loan Party or any of its Subsidiaries
receives any Net Cash Proceeds from any issuance of Equity Interests of any Loan Party or any of its Subsidiaries, whether in connection
with the issuance of any Curative Equity or otherwise (excluding any issuance of Equity Interests (A) pursuant to any employee or director
option program, benefit plan or compensation program or agreement, (B) by a Subsidiary to any Borrower or another Subsidiary and (C) the
Net Cash Proceeds of which are used substantially to fund a Permitted Acquisition), concurrently with such receipt in an amount equal
to 50% (or, in the case of Net Cash Proceeds in the form of Curative Equity, 100%) of those Net Cash Proceeds.
4.3.8 Other Receipts. Subject to the Intercreditor Agreement, if any Loan Party or any of its Subsidiaries receives any
Other Receipts, concurrently with such receipt in an amount equal to 100% of those Other Receipts; provided that, so long as no Default
or Event of Default shall have occurred and be continuing, Borrowers may reinvest the first $500,000 of such Other Receipts and up to
50% of any additional Other Receipts in the aggregate over the term of this Agreement in the applicable acquired business so long as such
reinvestment is made within 180 days after the receipt of such Other Receipts (as certified by Borrower Representative in writing to Administrative
Agent); provided further, that any Other Receipts not so reinvested shall be immediately applied to the prepayment of the Term Loans upon
the expiration of such applicable period.
4.3.9 Mandatory Prepayments under Acquisition Term Loan Agreement. Notwithstanding anything in Sections 4.3.3, 4.3.7 and
4.3.8 to the contrary, until the Payment in Full (as defined in the Acquisition Term Loan Agreement), no mandatory prepayment under Sections
4.3.3, 4.3.7 and 4.3.8 shall be required to be made, except with respect to any portion (if any) of any proceeds that are declined by
the holders of the Acquisition Term Loans in accordance with the terms thereof.
4.4 Application of Payments and Collections.
4.4.1 Collections. All items of payment received by Administrative Agent by 12:00 noon, Central time, on any Business Day
shall be deemed received on that Business Day. All items of payment received after 12:00 noon, Central time, on any Business Day, in Administrative
Agent’s discretion, shall be deemed received on the following Business Day. If as the result of collections of Accounts as authorized
by subsection 7.2.4 hereof or otherwise, a credit balance exists in the Loan Account, such credit balance shall not accrue interest
in favor of Borrowers, but shall be disbursed to Borrowers or otherwise at Borrower Representative’s direction in the manner set
forth in subsection 4.1.2, upon Borrower Representative’s request at any time, so long as no Default or Event of Default
then exists. Administrative Agent may at its option, offset such credit balance against any of the Obligations upon and during the continuance
of an Event of Default.
4.4.2 Apportionment, Application and Reversal of Payments. Principal and interest payments shall be apportioned ratably
among Lenders (according to the unpaid principal balance of the Loans to which such payments relate held by each Lender). Prior to the
occurrence of an Event of Default, all proceeds of Collateral shall be applied by Administrative Agent against the outstanding Obligations
as otherwise provided in this Agreement. Anything contained herein or in any other Loan Document to the contrary notwithstanding, but
subject in all respects to the Intercreditor Agreement, all payments and collections received in respect of the Obligations and all proceeds
of the Collateral received, in each instance, by Administrative Agent or any Lender after the occurrence and during the continuance of
an Event of Default and the resultant declaration that all Obligations are immediately due and payable shall be remitted to Administrative
Agent and distributed as follows:
(i) first, to the payment of any outstanding costs and expenses incurred by any Agent in monitoring, verifying, protecting,
preserving or enforcing the Liens on the Collateral, and in protecting, preserving or enforcing rights under this Agreement or any of
the other Loan Documents, and payable by Borrowers under this Agreement, including, without limitation, under Sections 3.7, 3.9
and 13.2 hereof (such funds to be retained by the applicable Agent for its own account unless it has previously been reimbursed
for such costs and expenses by Lenders, in which event such amounts shall be remitted to Lenders to reimburse them for payments theretofore
made to such Agent);
(ii) second, to the payment of any outstanding interest or fees due under the Loan Documents to be allocated pro rata
in accordance with the aggregate unpaid amounts owing to each holder thereof;
(iii) third, (a) to payment of all Product Obligations and (b) to the payment of principal on the Revolving Credit Loans,
the Term Loan, unpaid reimbursement obligations in respect of Letters of Credit, together with amounts to be held by Administrative Agent
as collateral security for any outstanding Letters of Credit pursuant to subsection 11.3.5 hereof, amounts owing with respect to
Derivative Obligations (other than Excess Derivative Obligations), the aggregate amount paid to, or held as collateral security for, Lenders
(and their Affiliates, as applicable in the case of Derivative Obligations) to be allocated pro rata in accordance with the aggregate
unpaid amounts owing to each holder thereof;
(iv) fourth, to the payment of all other unpaid Obligations and all other indebtedness, obligations, and liabilities of
the Loan Parties to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof; and
(v) finally, to Borrowers or otherwise as required by law or court order.
Except as otherwise specifically provided for
herein, Borrowers hereby irrevocably waive the right to direct the application of payments and collections at any time received by Administrative
Agent or any Lender from or on behalf of Borrowers or any Guarantor, and Borrowers hereby irrevocably agree that Administrative Agent
shall have the continuing exclusive right to apply and reapply any and all such payments and collections received at any time by Administrative
Agent or any Lender against the Obligations in the manner described above. In the event that the amount of any Derivative Obligation is
not fixed and determined at the time proceeds of Collateral are received which are to be allocated thereto, the proceeds of Collateral
so allocated shall be held by Administrative Agent as collateral security (in a non-interest bearing account) until such Derivative Obligation
is fixed and determined and then the same shall (if and when, and to the extent that, payment of such liability is required by the terms
of the relevant contractual arrangements) be applied to such liability.
4.5 All Loans to Constitute One Obligation. The Loans and LC Obligations shall constitute one general Obligation of Borrowers
and shall be secured by Administrative Agent’s Lien upon all of the Collateral.
4.6 Loan Account. Administrative Agent shall enter all Loans as debits to a loan account (the “Loan Account”)
and shall also record in the Loan Account all payments made by Borrowers on any Obligations and all proceeds of Collateral which are finally
paid to Administrative Agent, and may record therein, in accordance with customary accounting practice, other debits and credits, including
interest and all charges and expenses properly chargeable to Borrowers.
4.7 Statements of Account. Administrative Agent will account to Borrower Representative monthly with a statement of Loans,
charges and payments made pursuant to this Agreement during the immediately preceding month, and such account rendered by Administrative
Agent shall be deemed final, binding and conclusive upon Borrowers absent demonstrable error unless Administrative Agent is notified by
Borrowers in writing to the contrary within thirty (30) days of the date each accounting is received by Borrowers. Such notice shall be
deemed an objection only to those items specifically objected to therein.
4.8 Increased Costs.
4.8.1 Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or the Issuing Bank;
(ii) subject any Lender or the Issuing Bank to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (ii)
through (iv) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,
or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or, to the extent applicable, the London interbank market of the market for setting
SOFR, 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; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient
of making, converting to, continuing 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 of
maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable
by such Lender, the Issuing Bank or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request
of such Lender, the Issuing Bank or other Recipient, the Borrowers will pay to such Lender, the Issuing Bank or other Recipient, as the
case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or other Recipient, as the case may be,
for such additional costs incurred or reduction suffered.
4.8.2 Capital Requirements. If any Lender or the Issuing Bank determines that any Change in Law affecting such Lender or
Issuing Bank or any lending office of such Lender or such Lender’s or the Issuing Bank’s holding company, if any, 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 Revolving Credit Commitment of such Lender 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), then from time to time the Borrowers 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.
4.8.3 Certificates for Reimbursement. 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 subsection 4.8.1
or 4.8.2 and delivered to the Borrowers, shall be conclusive absent manifest error. The Borrowers 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.
4.8.4 Delay in Requests. 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 Borrowers shall not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs incurred
or reductions suffered more than nine (9) months prior to the date that such Lender or the Issuing Bank, as the case may be, notifies
the Borrowers 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 (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive,
then the nine (9) month period referred to above shall be extended to include the period of retroactive effect thereof).
4.9 Ineffective Interest Rate; Benchmark Replacement.
4.9.1 Interest Rate Inadequate or Unfair. In the event that Administrative Agent shall have determined that: (a) reasonable
means do not exist for ascertaining the Term SOFR Rate for any Interest Period; or (b) Dollar deposits in the relevant amount and for
the relevant maturity are not available, with respect to an outstanding Term SOFR Loan, a proposed Term SOFR Loan, or a proposed conversion
of a Base Rate Loan into a Term SOFR Loan; or (c) the making, maintenance or funding of any Term SOFR Loan has been made impracticable
or unlawful by compliance by Agent or such Lender in good faith with any Applicable Law or any interpretation or application thereof by
any Governmental Body or with any request or directive of any such Governmental Body (whether or not having the force of law), or (d)
the Term SOFR Rate will not adequately and fairly reflect the cost to such Lender of the establishment or maintenance of any Term SOFR
Loan, and Lenders have provided notice of such determination to Agent, then Administrative Agent shall give Borrower Representative prompt
written or telephonic notice of such determination. If such notice is given prior to a Benchmark Replacement Date (as defined below),
(i) any such requested Term SOFR Loan shall be made as a Base Rate Loan, unless Borrower Representative shall notify Administrative Agent
no later than 1:00 p.m. two (2) Business Days prior to the date of such proposed borrowing, that its request for such borrowing shall
be cancelled or made as an unaffected type of Term SOFR Loan, (ii) any Base Rate Loan or Term SOFR Loan which was to have been converted
to an affected type of Term SOFR Loan shall be continued as or converted into a Base Rate Loan, or, if Borrower Representative shall notify
Agent, no later than 1:00 p.m. two (2) Business Days prior to the proposed conversion, shall be maintained as an unaffected type of Term
SOFR Loan, and (iii) any outstanding affected Term SOFR Loans shall be converted into a Base Rate Loan, or, if Borrower Representative
shall notify Administrative Agent, no later than 1:00 p.m. two (2) Business Days prior to the last Business Day of the then current Interest
Period applicable to such affected Term SOFR Loan, shall be converted into an unaffected type of Term SOFR Loan, on the last Business
Day of the then current Interest Period for such affected Term SOFR Loans (or sooner, if any Lender cannot continue to lawfully maintain
such affected Term SOFR Loan). Until such notice has been withdrawn, Lenders shall have no obligation to make an affected type of Term
SOFR Loan or maintain outstanding affected Term SOFR Loans and no Borrower shall have the right to convert a Base Rate Loan or an unaffected
type of Term SOFR Loan into an affected type of Term SOFR Loan.
4.9.2 Benchmark Replacement Setting.
(a) Benchmark
Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document (and any agreement executed in connection
with an Interest Rate Hedge shall be deemed not to be a “Loan Document” for purposes of this Section 4.9.2), if a Benchmark
Transition Event and related Benchmark Replacement Date have occurred prior to any setting of the then-current Benchmark, then (A) if
a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such
Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document
in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other
party to, this Agreement or any Loan Document and (B) if a Benchmark Replacement is determined in accordance with clause (2) of the definition
of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for
all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business
Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent
of any other party to, this Agreement or any Loan Document so long as the Administrative Agent has not received, by such time, written
notice of objection to such Benchmark Replacement from Lenders comprising the Majority Lenders.
(b) Benchmark
Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement,
the Administrative Agent may make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in the
Loan Documents, any amendments implementing such Conforming Changes will become effective without any further action or consent of any
other party to this Agreement or any other Loan Document.
(c) Notices;
Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower Representative and the
Lenders of (i) the implementation of any Benchmark Replacement, and (ii) the effectiveness of any Conforming Changes in connection with
the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Borrower Representative
of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (d) below and (y) the commencement of any Benchmark
Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender
(or group of Lenders) pursuant to this Section, 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 or any selection, 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
to this Agreement or any other Loan Document except, in each case, as expressly required pursuant to this Section 4.9.2.
(d) Unavailability
of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any of the other Loan Documents, at any time (including
in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate and either (A) any
tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected
by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has
provided a public statement or publication of information announcing that any tenor of such Benchmark is not or will not be representative,
then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for
any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed
pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark
Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including
a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or
analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(e) Benchmark
Unavailability Period. Upon the Borrower Representative’s receipt of notice of the commencement of a Benchmark Unavailability
Period, the Borrower Representative may revoke any pending request for a Loan bearing interest based on the Term SOFR Rate, conversion
to or continuation of a Loan bearing interest based on the Term SOFR Rate to be made, converted or continued during any Benchmark Unavailability
Period and, failing that, the Borrower Representative will be deemed to have converted any such request into a request for a Base Rate
Loan. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor,
the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used
in any determination of the Base Rate.
4.9.3 Defined terms. For purposes of this Section 4.9:
“Available Tenor”
means, as of any date of determination and with respect to the then-current Benchmark, as applicable
(x) if such Benchmark is a term rate or is based on a term rate, any tenor for such Benchmark (or component thereof) that is or may be
used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated
with reference to such Benchmark (or a component thereof) that is or may be used for determining any frequency of making payments of interest
calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance
of doubt, any tenor of such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (d)
of Section 4.9.2.
“Benchmark”
means, initially, LIBOR or the Term SOFR Rate, as applicable; provided that if a Benchmark Transition Event has occurred with respect
to LIBOR or the Term SOFR Rate (as applicable) or the then-current Benchmark, then “Benchmark” means the applicable Benchmark
Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 4.9.2.
“Benchmark Replacement”
means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the
Administrative Agent for the applicable Benchmark Replacement Date:
| (1) | the sum of (A) Daily Simple SOFR and (B) the SOFR Adjustment for a one (1) month Interest Period; |
| (2) | the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the
Borrower Representative, giving due consideration to (x) any selection or recommendation of a replacement benchmark rate or the mechanism
for determining such a rate by the Relevant Governmental Body or (y) any evolving or then-prevailing market convention, for determining
a benchmark rate as a replacement to the then-current benchmark for Dollar-denominated syndicated credit facilities at such time and (B)
the related Benchmark Replacement Adjustment; |
provided that, if the Benchmark Replacement
as determined pursuant to clause (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for
the purposes of this Agreement and the other Loan Documents; provided further that any Benchmark Replacement shall be administratively
feasible as determined by the Administrative Agent in its sole discretion.
“Benchmark Replacement
Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement,
the spread adjustment, or method for calculating or determining such spread adjustments, (which may be a positive or negative value or
zero) that has been selected by the Administrative Agent and the Borrower Representative giving due consideration to (A) any selection
or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such
Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (B) 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 such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement
Date” means a date and time determined by the Administrative Agent, which date shall be no later than the earliest to occur
of the following events with respect to the then-current Benchmark:
(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 such Benchmark (or the published component
used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component
thereof); or
(2) in
the case of clause (3) of the definition of “Benchmark Transition Event,” the date determined by the Agent, which date shall
promptly follow the date of the public statement or publication of information referenced therein.
For the avoidance of doubt,
the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark
upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark
(or the published component used in the calculation thereof).
“Benchmark Transition
Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(1) a
public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used
in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark
(or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor
administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a
public statement or publication of information by a Governmental Authority having jurisdiction over the Administrative Agent, the regulatory
supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board,
the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component),
a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar
insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator
of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof)
permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will
continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof) or a Governmental Body having jurisdiction over the Agent announcing that all Available Tenors
of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For avoidance of doubt, a “Benchmark Transition
Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth
above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation
thereof).
“Benchmark Unavailability
Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time,
no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Other Document in accordance
with this Section 4.9 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes
hereunder and under any Other Document in accordance with this Section 4.9.
“Floor” means
the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment
or renewal of this Agreement or otherwise) with respect to the Term SOFR Rate.
“Relevant Governmental
Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee
officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any
successor thereto.
“Unadjusted Benchmark
Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
4.10 Sharing of Payments, Etc. If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of setoff, or otherwise) on account of any Loan made by it in excess of its ratable share of payments on account of Loans
made by all Lenders, such Lender shall forthwith purchase from each other Lender such participation in such Loan as shall be necessary
to cause such purchasing Lender to share the excess payment ratably with each other Lender; provided that, if all or any portion
of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lenders the purchase price to the extent of such recovery, together with an amount equal to such
Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total
amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered. Borrowers agree that any Lender so purchasing a participation from another Lender pursuant to this Section
4.10 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of setoff) with respect
to such participation as fully as if such Lender were the direct creditor of Borrowers in the amount of such participation. Notwithstanding
anything to the contrary contained herein, all purchases and repayments to be made under this Section 4.10 shall be made through
Administrative Agent.
4.11 Defaulting Lender. 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:
4.11.1 The Unused Line Fee shall cease to accrue on the Revolving Credit Commitment of such Lender so long as it is a Defaulting
Lender (except to the extent it is payable to an Issuing Bank pursuant to subsection 4.11.2(v) below);
4.11.2 If any Letters of Credit are outstanding at the time a Lender becomes a Defaulting Lender then:
(i) (A) the exposure under all or any part of any Letters of Credit shall be reallocated among the applicable non-Defaulting
Lenders that are Revolving Credit Lenders in accordance with their respective Pro Rata Percentages but only to the extent the sum of all
such non-Defaulting Lenders’ Revolving Credit Loans outstanding, plus the LC Amount, does not exceed the total of all such non-Defaulting
Lenders’ Revolving Credit Commitments; and (B) with respect to any such exposure so reallocated, each applicable non-Defaulting
Lender shall be deemed to have irrevocably and unconditionally purchased from the Issuing Bank an undivided interest and participation
in the portion of each Letter of Credit so reallocated, in accordance with the applicable provisions of Section 2.2. Subject to
Section 3.12, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting
Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such
non-Defaulting Lender’s increased exposure following such reallocation;
(ii) if the reallocations described in clause (i) above cannot, or can only partially, be effected, Borrowers shall within one
(1) Business Day following notice by Administrative Agent (after giving effect to any partial reallocation pursuant to clause (i) above)
cash collateralize Letters of Credit in an amount equal to the product of such Defaulting Lender’s Pro Rata Percentage times the
total LC Amount;
(iii) if any portion of the Letters of Credit is cash collateralized pursuant to clause (ii) above, Borrowers shall not be required
to pay the Letter of Credit fee described in clause (i) of Section 3.4 with respect to such portion so long as it is cash collateralized;
(iv) if any portion of the exposure under Letters of Credit of such Defaulting Lender is reallocated to the non-Defaulting Lenders
pursuant to clause (i) above, then the Letter of Credit fee described in clause (i) of Section 3.4 with respect to such portion
so reallocated to each such non-Defaulting Lender shall be paid to such non-Defaulting Lender; and
(v) if any portion of the exposure under Letters of Credit of such Defaulting Lender is neither cash collateralized nor reallocated
pursuant to this subsection 4.11.2, then, without prejudice to any rights or remedies of Issuing Bank or any Lender hereunder,
the Unused Line Fee that otherwise would have been payable to such Defaulting Lender (with respect to the portion of such Defaulting Lender’s
Revolving Credit Commitment that was utilized by such Letters of Credit) and the Letter of Credit fee described in clause (i) of Section
3.4 payable with respect to such Letters of Credit shall be payable to Issuing Bank until such Letters of Credit are fully cash collateralized
and/or reallocated.
4.11.3 So long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of
Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting
Lenders and/or cash collateralized in accordance with subsection 4.11.2, and participations in any such newly issued or increased
Letter of Credit shall be allocated among non-Defaulting Lenders in accordance with their respective Pro Rata Percentages (and Defaulting
Lenders shall not participate therein).
4.11.4 Any amount payable to a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise but excluding
subsection 13.5.6) may, in lieu of being distributed to such Defaulting Lender, be retained by Administrative Agent in a segregated
non-interest bearing account and, subject to any Applicable Law, be applied at such time or times as may be determined by Administrative
Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder, (ii) second,
pro rata, to the payment of any amounts owing by such Defaulting Lender to Issuing Bank hereunder, (iii) third, to the funding
of any Loan or the funding or cash collateralization of any participation in any Letter of Credit in respect of which such Defaulting
Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent, (iv) fourth,
if so determined by Administrative Agent and Borrowers, held in such account as cash collateral for future funding obligations of the
Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to Borrowers or the Lenders as
a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Lender against such Defaulting Lender as
a result of such Defaulting Lender’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Lender
or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is a prepayment of the principal
amount of any Loans or LC Obligations in respect of which a Defaulting Lender has funded its participation obligations, such payment shall
be applied solely to prepay the Loans of, and LC Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the
prepayment of any Loans of, or LC Obligations owed to, any Defaulting Lender.
4.11.5 In the event that Administrative Agent, Borrowers and Issuing Bank agree that a Defaulting Lender has adequately remedied
all matters that caused such Lender to be a Defaulting Lender, then the exposure of the Lenders under the Letters of Credit shall be readjusted
to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of
the Revolving Credit Loans of the other Lenders as Administrative Agent shall determine may be necessary in order for such Lender to hold
such Revolving Credit Loans in accordance with its Pro Rata Percentage. The rights and remedies against a Defaulting Lender under this
Section 4.11 are in addition to other rights and remedies that Borrowers, Administrative Agent, Issuing Bank and the non-Defaulting
Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 4.11 shall be permitted
under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Article
V. TERM AND TERMINATION
5.1 Term
of Agreement. Subject to the right of Lenders to cease making Loans to Borrowers during the continuance of any Default or Event of
Default, this Agreement shall be in effect through and including April 19December
30, 20262029 (the “Term”),
unless terminated as provided herein.
5.2 Termination.
5.2.1 Termination by Lenders. Administrative Agent may, and at the direction of Majority Lenders shall, terminate this
Agreement without notice after the occurrence and during the continuance of an Event of Default.
5.2.2 Termination by Borrowers. Upon at least three (3) Business Days’ prior written notice to Administrative Agent
and Lenders, Borrowers may, at their option, terminate this Agreement; provided, however, that no such termination shall be effective
until Borrowers have paid or collateralized to Administrative Agent’s reasonable satisfaction all of the Obligations (including
any obligations in connection with Derivative Obligations of any Loan Party but excluding indemnity Obligations for which no claim has
been made) in immediately available funds, all Letters of Credit have expired, terminated or have been cash collateralized or supported
by a backstop letter of credit, in the case of any such cash collateralization or backstop letter of credit, at 103% of the face amount
thereof to Administrative Agent’s reasonable satisfaction and Borrowers have complied with subsection 4.1.9. Any notice of
termination given by Borrowers shall be irrevocable unless all Lenders otherwise agree in writing and no Lender shall have any obligation
to make any Loans or issue or procure any Letters of Credit on or after the termination date stated in such notice; provided, that
a notice of termination may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such
notice may be revoked by Borrowers (by notice to Administrative Agent on or prior to the specified effective date) if such condition is
not satisfied.
5.2.3 Effect of Termination. All of the Obligations shall be immediately due and payable upon the termination date stated
in any notice of termination of this Agreement, or, if later, upon the expiration of the Term. All undertakings, agreements, covenants,
warranties and representations of Borrowers contained in the Loan Documents shall survive any such termination and Administrative Agent
shall retain its Liens in the Collateral and Administrative Agent and each Lender shall retain all of its rights and remedies under the
Loan Documents notwithstanding such termination until all Obligations (other than indemnity Obligations for which no claim has been made)
have been discharged or paid, in full, in immediately available funds, including, without limitation, all Obligations under subsection
4.1.9 resulting from such termination and all Letters of Credit have expired, terminated or have been cash collateralized or supported
by a backstop letter of credit, in the case of any such cash collateralization or backstop letter of credit, at 103% of the face amount
thereof to Administrative Agent’s reasonable satisfaction. Notwithstanding the foregoing or the payment in full of the Obligations,
Administrative Agent shall not be required to terminate its Liens in the Collateral unless, with respect to any loss or damage Administrative
Agent may incur as a result of dishonored checks or other items of payment received by Administrative Agent from any Borrower or any Account
Debtor and applied to the Obligations, Administrative Agent shall, at its option, (i) have received a written agreement satisfactory to
Administrative Agent, executed by any Borrower and by any Person whose loans or other advances to Borrowers are used in whole or in part
to satisfy the Obligations, indemnifying Administrative Agent and each Lender from any such loss or damage or (ii) have retained cash
Collateral or other Collateral for such period of time as Administrative Agent, in its reasonable discretion, may deem necessary to protect
Administrative Agent and each Lender from any such loss or damage.
Article
VI. SECURITY INTERESTS
6.1 Security Interest in Collateral.
6.1.1 Grant of Security Interest by Borrowers. To secure the prompt payment and performance to Administrative Agent and
each Lender of the Obligations, each Borrower hereby grants to Administrative Agent for the benefit of itself and each Lender a continuing
Lien upon all of such Borrower’s assets, including all of the following Property and interests in Property of such Borrower (other
than Excluded Property), whether now owned or existing or hereafter created, acquired or arising and wheresoever located:
(i) Accounts;
(ii) Certificated Securities;
(iii) Chattel Paper;
(iv) Commercial Tort Claims, including, without limitation, any Commercial Tort Claims set forth on Schedule 6.1 hereto;
(v) Computer Hardware and Software and all rights with respect thereto, including any and all licenses, options, warranties,
service contracts, program services, test rights, maintenance rights, support rights, improvement rights, renewal rights and indemnifications,
and any substitutions, replacements, additions or model conversions of any of the foregoing;
(vi) Contract Rights;
(vii) Deposit Accounts;
(viii) Documents;
(ix) Equipment;
(x) Financial Assets;
(xi) Fixtures;
(xii) General Intangibles, including Payment Intangibles;
(xiii) Goods (including all of its Equipment, Fixtures and Inventory), and all accessions, additions, attachments, improvements,
substitutions and replacements thereto and therefor;
(xiv) Instruments;
(xv) Intellectual Property;
(xvi) Inventory;
(xvii) Investment Property;
(xviii) money (of every jurisdiction whatsoever);
(xix) Letter of Credit Rights;
(xx) Payment Intangibles;
(xxi) Security Entitlements;
(xxii) Supporting
Obligations;
(xxiii) Uncertificated Securities; and
(xxiv)
to the extent not included in the foregoing, all other personal property of any kind or description; together with all books,
records, writings, databases, information and other property relating to, used or useful in connection with, or evidencing, embodying,
incorporating or referring to any of the foregoing, and all Proceeds, products, offspring, rents, issues, profits and returns of and from
any of the foregoing.
6.1.2 Grant of Security Interest by Holdings. To secure prompt payment and performance to Administrative Agent and each
Lender of the Obligations, Holdings hereby grants to Administrative Agent, for the benefit of itself and each Lender, a continuing Lien
upon all Equity Interests, whether certificated or uncertificated, in Parent and in each other immediate Subsidiary of Holdings which
becomes a Loan Party hereunder, whether now owned or existing or hereafter created, together with all books, records, evidence of ownership
and other property relating to, used or useful in connection with or evidencing the foregoing, and all Proceeds of the foregoing. Reference
is hereby made to that certain Pledge Agreement, dated on or about the date hereof, executed by Holdings, in favor of Administrative Agent,
for further provisions of this grant by Holdings of a security interest in such Equity Interests and Administrative Agent’s rights
and remedies in connection therewith.
6.1.3 Grant of Security Interest by Parent. To secure prompt payment and performance to Administrative Agent and each Lender
of the Obligations, Parent hereby grants to Administrative Agent, for the benefit of itself and each Lender, a continuing Lien upon all
Equity Interests, whether certificated or uncertificated, in Quest, whether now owned or existing or hereafter created, together with
all books, records, evidence of ownership and other property relating to, used or useful in connection with or evidencing the foregoing,
and all Proceeds of the foregoing. Reference is hereby made to that certain Pledge Agreement, dated on or about the date hereof, executed
by Parent, in favor of Administrative Agent, for further provisions of this grant by Parent of a security interest in such Equity Interests
and Administrative Agent’s rights and remedies in connection therewith.
6.2 Other Collateral.
6.2.1 Commercial Tort Claims. The Borrowers shall promptly notify Administrative Agent in writing upon any Borrower incurring
or otherwise obtaining a Commercial Tort Claim after the Closing Date against any third party and, upon request of Administrative Agent,
promptly enter into an amendment to this Agreement and do such other acts or things deemed appropriate by Administrative Agent to give
Administrative Agent a security interest in any such Commercial Tort Claim. The Borrowers represent and warrant that as of the date of
this Agreement, except as set forth on Schedule 6.1 hereto, to their knowledge, no Borrower possesses any Commercial Tort Claims.
6.2.2 Other Collateral. The Borrowers shall promptly notify Administrative Agent in writing upon acquiring or otherwise
obtaining any Collateral after the date hereof consisting of Deposit Accounts, Investment Property, Letter of Credit Rights or Electronic
Chattel Paper and, upon the request of Administrative Agent, promptly execute such other documents, and do such other acts or things deemed
appropriate by Administrative Agent to deliver to Administrative Agent control with respect to such Collateral; promptly notify Administrative
Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Documents or Instruments and,
upon the request of Administrative Agent, will promptly execute such other documents, and do such other acts or things deemed appropriate
by Administrative Agent to deliver to Administrative Agent possession of such Documents which are negotiable and Instruments, and, with
respect to nonnegotiable Documents, to have such nonnegotiable Documents issued in the name of Administrative Agent; and with respect
to Collateral in the possession of a third party, other than Certificated Securities and Goods covered by a Document, obtain an acknowledgment
from the third party that it is holding the Collateral for the benefit of Administrative Agent.
6.3 Lien Perfection; Further Assurances. The Loan Parties authorize the filing of such UCC-1 financing statements as
are required by the UCC and shall execute such other instruments, assignments or documents as are necessary to perfect Administrative
Agent’s Lien upon any of the Collateral and shall take such other action as may be required to perfect or to continue the perfection
of Administrative Agent’s Lien upon the Collateral, including, without limitation, as to the Borrowers, the filing of UCC-1 financing
statements that indicate the Collateral (i) as all assets of such Borrower or words of similar effect, or (ii) as being of an equal or
lesser scope, or with greater or lesser detail, than as set forth in Section 6.1, on such Borrower’s behalf. Each Loan Party
also hereby ratifies its authorization for Administrative
Agent to have filed in any jurisdiction any such
UCC-1 financing statements or amendments thereto if filed prior to the date hereof. At Administrative Agent’s request, each Loan
Party shall also promptly execute or cause to be executed and shall deliver to Administrative Agent any and all documents, instruments
and agreements deemed necessary by Administrative Agent, to give effect to or carry out the terms or intent of the Loan Documents.
6.4 Lien on Realty. The due and punctual payment and performance of the Obligations shall also be secured by the Lien
created by the Mortgages upon all real Property of the Borrowers described therein. If any Borrower shall acquire at any time or times
hereafter any interest in other real Property (other than Excluded Property), such Borrower agrees promptly to execute and deliver to
Administrative Agent, for its benefit and the benefit of Lenders, as additional security and Collateral for the Obligations, a Mortgage
covering such real Property, which Mortgage shall be reasonably satisfactory in form and substance to Administrative Agent. Each Mortgage
shall be duly recorded (at the Loan Parties’ expense) in each office where such recording is required to constitute a valid Lien
on the real Property covered thereby. In respect of any real Property subject to a Mortgage, the Borrowers shall deliver to Administrative
Agent, at the Borrowers’ expense, each of the other Mortgage-Related Documents.
Article
VII. COLLATERAL ADMINISTRATION
7.1 General.
7.1.1 Location of Collateral. As of the Second Amendment Effective Date, set forth on Schedule 7.1.1 hereto are
(i) each Loan Party’s chief executive office, (ii) the locations at which each Borrower maintains its books and records relating
to Accounts and General Intangibles, (iii) each other business location of the Loan Parties and (iv) each location (including bailees,
warehouses, consignees and similar parties) at which Collateral, other than Inventory in transit and motor vehicles are located. All Collateral,
other than Inventory in transit and motor vehicles, will at all times be kept by the Loan Parties at one or more of the business locations
set forth in Schedule 7.1.1 hereto, as updated by the Loan Parties providing prior written notice to Administrative Agent of any
new location.
7.1.2 Insurance of Collateral. The Borrowers shall at all times maintain and pay for insurance upon all Collateral wherever
located and with respect to the business of the Borrowers, covering casualty, hazard, public liability, workers’ compensation and
such other risks in such amounts and with such insurance companies as are reasonably satisfactory to Administrative Agent. The Borrowers
shall provide that such policies shall include satisfactory endorsements, naming Administrative Agent as a lender loss payable or additional
insured, as appropriate, as its interest may appear. Each policy of insurance or endorsement shall contain a clause requiring the insurer
to give not less than ten (10) days’ prior written notice to Administrative Agent in the event of cancellation of the policy for
nonpayment of premium and not less than thirty (30) days’ prior written notice to Administrative Agent in the event of cancellation
of the policy for any other reason whatsoever and a clause specifying that the interest of Administrative Agent shall not be impaired
or invalidated by any act or neglect of any Borrower, any of their Subsidiaries or the owner of the Property or by the occupation of the
premises for purposes more hazardous than are permitted by such policy. If an Event of Default has occurred and is continuing, all proceeds
of business interruption insurance (if any) of the Borrowers shall be remitted to Administrative Agent for application to the outstanding
balance of the Revolving Credit Loans. Upon the occurrence and during the continuance of an Event of Default, Administrative Agent shall,
subject to the Intercreditor Agreement, have the sole right to file claims under any property and general liability insurance policies
in respect of the Collateral, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute
any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection,
compromise or settlement of any claims under any such insurance policies.
Unless the Borrowers provide Administrative Agent
with evidence of the insurance coverage required by this Agreement, Administrative Agent may purchase insurance at the Borrowers’
expense to protect Administrative Agent’s interests in the Properties of the Borrowers. This insurance may, but need not, protect
the interests of the Borrowers. The coverage that Administrative Agent purchases may not pay any claim that any Borrower makes or any
claim that is made against any Borrower in connection with such Property. The Borrowers may later cancel any insurance purchased by Administrative
Agent, but only after providing Administrative Agent with evidence that the Borrowers have obtained insurance as required by this Agreement.
If Administrative Agent purchases insurance, the Borrowers will be responsible for the costs of that insurance, including interest and
any other charges Administrative Agent may impose in connection with the placement of insurance, until the effective date of the cancellation
or expiration of the insurance. The costs of the insurance may be added to the Obligations. The costs of the insurance may be more than
the cost of insurance that the Borrowers may be able to obtain on their own.
7.1.3 Protection of Collateral. Neither Administrative Agent nor any Lender shall be liable or responsible in any way for
the safekeeping of any of the Collateral or for any loss or damage thereto (except for reasonable care in the custody thereof while any
Collateral is in Administrative Agent’s or any Lender’s actual possession) or for any diminution in the value thereof, or
for any act or default of any warehouseman, carrier, forwarding agency or other person whomsoever, but the same shall be at the Loan Parties’
sole risk.
7.2 Administration of Accounts.
7.2.1 Records, Schedules and Assignments of Accounts. The Borrowers shall keep records that are accurate and complete,
in all material respects, of their Accounts and all payments and collections thereon and shall submit to Collateral Agent on such periodic
basis as Collateral Agent shall request, in its reasonable credit judgment, a sales and collections report for the preceding period, in
form acceptable to Collateral Agent, in its reasonable credit judgment, and consistent with the reports currently prepared by the Borrowers
with respect to such information/acceptable to Collateral Agent. Concurrently with the delivery of each Borrowing Base Certificate described
in subsection 9.1.4, or more frequently as requested by Collateral Agent or during the existence of an Event of Default, from and
after the date hereof, the Borrowers shall deliver to Collateral Agent a detailed aged trial balance of all of their Accounts and a detailed
description with respect to any unbilled Accounts, specifying the names, addresses (updated on an annual basis), face values, dates of
invoices and due dates for each Account Debtor obligated on an Account so listed in a form consistent with reports currently prepared
by the Borrowers with respect to such information (“Schedule of Accounts”), and upon Collateral Agent’s written
request therefor, copies of proof of delivery and the original copy of all documents, including, without limitation, repayment histories
and present status reports relating to the Accounts so scheduled and such other matters and information relating to the status of then
existing Accounts as Collateral Agent shall request, in its reasonable credit judgment. If requested by Collateral Agent in writing, upon
the occurrence and during the continuation of an Event of Default, the Borrowers shall execute and deliver to Collateral Agent formal
written assignments of all of their Accounts weekly or daily, which shall include all Accounts that have been created since the date of
the last assignment, together with copies of invoices or invoice registers related thereto and a detailed description with respect to
any unbilled Accounts.
7.2.2 Discounts; Allowances; Disputes. If any Borrower grants any discounts, allowances or credits that are not shown on
the face of the invoice for the Account involved, the Borrowers shall report such discounts, allowances or credits, as the case may be,
to Collateral Agent as part of the next required Schedule of Accounts.
7.2.3 Account Verification. Any of Collateral Agent’s officers, employees or agents shall have the right, at any
time or times if an Event of Default has occurred and is continuing, in the name of Collateral Agent, any designee of Collateral Agent
or any Borrower, to verify the validity, amount or any other matter relating to any Accounts by mail, telephone, electronic communication
or otherwise. The Borrowers shall cooperate fully with Collateral Agent in an effort to facilitate and promptly conclude any such verification
process.
7.2.4 Maintenance of Blocked Accounts. Within ninety (90) days of the Closing Date, or such later date as shall be agreed
to by Administrative Agent, in its sole discretion (provided, that, with respect to the deposit accounts designated as Payables Accounts
in the Accounts Side Letter, each located at Citizens Bank, Quest and the other Loan Parties shall have 90 days following the date at
which the Administrative Agent establishes an integrated payables arrangement for such accounts to move such accounts to the Administrative
Agent), Quest and the other Loan Parties will maintain their primary depository, blocked account and cash management relationship with
Administrative Agent or its affiliate. The Administrative Agent shall have control of all deposit and securities accounts of all Borrowers
pursuant to executed Control Agreements and other executed documentation as shall be required by Administrative Agent, in its reasonable
discretion, such documentation to be in form and substance satisfactory to Administrative Agent and delivered to Administrative Agent,
it being understood and agreed that, other than with respect to any Excluded Deposit Account, the Term Loan Collateral Account (as defined
in the Intercreditor Agreement) and deposit accounts designated as Springing Accounts in the Accounts Side Letter, Quest and the other
Borrowers will cause or direct all cash to be transferred daily to Administrative Agent, and maintained in, accounts subject to Control
Agreements whereby Administrative Agent has a first-priority security interest (except the Term Loan Collateral Account (as defined in
the Intercreditor Agreement)) in such accounts and all amounts held therein. If an Excess Availability Triggering Event occurs or an Event
of Default has occurred and is continuing, Administrative Agent shall at all times require (a)(i) that all such cash and proceeds of the
Collateral (other than Acquisition Term Loan Priority Collateral) be swept on a daily basis to an account of Administrative Agent to be
applied by Administrative Agent to (ii) repay outstanding Revolving Credit Loans, LC Obligations, other amounts then due and payable and
solely to the extent such proceeds are derived from ABL Priority Collateral consisting of equipment, to repay the Acquisition Term Debt,
and (iii) if a Default or Event of Default exists, to cash collateralize outstanding Letters of Credit in an amount equal to 103% of the
face amount thereof and (b) send notices as required under the Control Agreements to trigger full dominion of all such deposit accounts
(“Cash Dominion”) which shall continue until the Default or Event of Default has been waived or Cure Date. Unless
an Excess Availability Triggering Event or a Default or Event of Default has occurred and is continuing, the Administrative Agent waives
Cash Dominion except for the Collection Accounts designated in the Accounts Side Letter. Prior to entering into any Term Loan Collateral
Account (as defined in the Intercreditor Agreement), Borrowers shall provide at least ten (10) Business Days’ prior written notice
thereof and shall deliver a form of Control Agreement whereby the Administrative Agent has a second-priority security interest in such
deposit account and the cash held therein. With respect to any deposit accounts not maintained with Administrative Agent or its affiliate,
Borrowers shall maintain Control Agreements whereby Administrative Agent has a first-priority security interest in such deposit accounts
and all amounts held therein reasonably acceptable to Administrative Agent with such banks as may be selected by the Borrowers and be
reasonably acceptable to Administrative Agent; provided, that Administrative Agent hereby agrees that it shall not institute or
otherwise require a Control Agreement and/or springing or blocked account agreement with regard to any Excluded Deposit Account or the
Term Loan Collateral Account (as defined in the Intercreditor Agreement) maintained by any Borrower. Administrative Agent shall have control
over and a Lien on all funds deposited in any springing or blocked account (other than Excluded Deposit Accounts), for the ratable benefit
of Lenders, and, with respect to deposit accounts not maintained with Administrative Agent or its affiliate, the Borrowers shall obtain
the agreement by such banks in favor of Administrative Agent to waive any recoupment, setoff rights, and any security interest in, or
against, the funds so deposited (except to the extent of any such bank’s customary fees). Such lockbox and blocked account arrangements
shall include irrevocable instructions directing such banks to remit all payments or other remittances received in the blocked accounts
on a daily basis to an account of Administrative Agent for application on account of the Obligations to the extent provided for herein.
At any time Cash Dominion is in existence, Administrative Agent shall have the right to issue to any such banks irrevocable instructions
directing such banks to remit all payments or other remittances received in the blocked accounts to an account of Administrative Agent
for application on account of the Obligations as provided herein. Administrative Agent assumes no responsibility for such lockbox and
blocked account arrangements, including, without limitation, any claim of accord and satisfaction or release with respect to deposits
accepted by any bank thereunder.
7.2.5 Collection of Accounts; Proceeds of Collateral. Each Borrower agrees that all invoices rendered and other requests
made by any Borrower for payment in respect of Accounts shall contain a written statement directing payment in respect of such Accounts
to be paid to a lockbox or blocked account established pursuant to subsection 7.2.4. To expedite collection, each Borrower shall
endeavor in the first instance to make collection of its Accounts for Administrative Agent. All remittances received by any Borrower in
respect of Accounts, together with the proceeds of any other ABL Priority Collateral (and after the Acquisition Term Debt has been Pain
in Full, and Collateral), shall be held as Administrative Agent’s property, for its benefit and the benefit of Lenders, by such
Borrower as trustee of an express trust for Administrative Agent’s benefit and such Borrower shall immediately deposit the same
in a blocked account established pursuant to subsection 7.2.4. Administrative Agent retains the right at all times after the occurrence
and during the continuance of a Default or an Event of Default to notify Account Debtors that the Borrowers’ Accounts have been
assigned to Administrative Agent and to collect the Borrowers’ Accounts directly in its own name, or in the name of Administrative
Agent’s agent, and to charge the collection costs and expenses, including attorneys’ fees, to the Borrowers.
7.2.6 Taxes. If an Account includes a charge for any tax payable to any Governmental Authority, Administrative Agent is
authorized, in its sole discretion, to pay the amount thereof to the proper Governmental Authority for the account of the Borrowers and
to charge the Borrowers therefor, except for taxes that (i) are being actively contested in good faith and by appropriate proceedings
and with respect to which the Borrowers maintain reasonable reserves on its books therefor and (ii) would not reasonably be expected to
result in any Lien other than a Permitted Lien. In no event shall Administrative Agent or any Lender be liable for any taxes to any Governmental
Authority that may be due by any Borrower.
7.3 [Reserved].
7.4 Administration of Eligible Machinery and Equipment. The Borrowers shall keep records of their Eligible Machinery
and Equipment which shall be complete and accurate in all material respects itemizing and describing the kind, type, quality, quantity
and book value of its Eligible Machinery and Equipment, and the Borrowers shall, and shall cause each of their Subsidiaries to, furnish
Administrative Agent with a current schedule containing the foregoing information on at least an annual basis and more often if reasonably
requested by Administrative Agent. Promptly after the request therefor by Administrative Agent, the Borrowers shall deliver to Administrative
Agent any and all evidence of ownership, if any, of any of their Eligible Machinery and Equipment.
7.5 Payment of Charges. All amounts chargeable to the Loan Parties under Section 7 hereof shall be Obligations
secured by all of the Collateral, shall be payable on demand and shall bear interest from the date such advance was made until paid in
full at the rate applicable to Base Rate Revolving Credit Loans from time to time.
Article
VIII. REPRESENTATIONS AND WARRANTIES
8.1 General Representations and Warranties. To induce Administrative Agent and each Lender to enter into this Agreement
and to make advances hereunder, the Loan Parties represent and warrant to Administrative Agent and each Lender, on a joint and several
basis, that:
8.1.1 Qualification. Each Loan Party and each of their Subsidiaries is a corporation, limited partnership or limited liability
company duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization.
Each Loan Party and each of their Subsidiaries is duly qualified and is authorized to do business and is in good standing as a foreign
limited liability company, limited partnership or corporation, as applicable, in each state or jurisdiction listed on Schedule 8.1.1
hereto and in all other states and jurisdictions in which the failure of any Borrower to be so qualified could reasonably be expected
to have a Material Adverse Effect.
8.1.2 Power and Authority. Each Loan Party and each of their Subsidiaries is duly authorized and empowered to enter into,
execute, deliver and perform this Agreement and each of the other Loan Documents to which it is a party. The execution, delivery and performance
of this Agreement and each of the other Loan Documents have been duly authorized by all necessary corporate or other relevant action and
do not and will not: (i) require any consent or approval of the shareholders, partners or members, as the case may be, of any Loan Party
or any of the shareholders, partners or members, as the case may be, of any Subsidiary of any Loan Party; (ii) contravene any Loan Party’s
or any of its Subsidiaries’ charter, articles or certificate of incorporation, partnership agreement, articles or certificate of
formation, by-laws, limited liability agreement, operating agreement or other organizational documents (as the case may be); (iii) violate,
or cause any Loan Party or any of its Subsidiaries to be in default under, any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award in effect having applicability to such Loan Party or any of its Subsidiaries, the violation
of which could reasonably be expected to have a Material Adverse Effect; (iv) result in a breach of or constitute a default under any
indenture or loan or credit agreement or any other agreement, lease or instrument to which any Loan Party or any of its Subsidiaries is
a party or by which it or its Properties may be bound or affected, the breach of or default under which could reasonably be expected to
have a Material Adverse Effect; or (v) result in, or require, the creation or imposition of any Lien (other than Permitted Liens) upon
or with respect to any of the Properties now owned or hereafter acquired by any Loan Party or any of its Subsidiaries.
8.1.3 Legally Enforceable Agreement. This Agreement is, and each of the other Loan Documents when delivered under this
Agreement will be, a legal, valid and binding obligation of each Loan Party and each of its Subsidiaries party thereto, enforceable against
it in accordance with its respective terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors’ rights generally.
8.1.4 Capital Structure. Schedule 8.1.4 hereto states, as of the date hereof, (i) the number, nature and holder
of all outstanding Equity Interests of each Loan Party and each Subsidiary of any Loan Party, and (ii) the name of each Loan Party’s
and each of its Subsidiaries’ joint venture relationships and the nature of the relationship. Each Loan Party has good title to
all of the Equity Interests it purports to own of each of such Subsidiaries, free and clear in each case of any Lien other than Permitted
Liens. All such Equity Interests have been duly issued and are fully paid and non-assessable. As of the Second Amendment Effective Date,
there are no outstanding options to purchase, or any rights or warrants to subscribe for, or any commitments or agreements to issue or
sell any Equity Interests or obligations convertible into, or any powers of attorney relating to any Equity Interests of any Loan Party
or any of its Subsidiaries. Except as set forth on Schedule 8.1.4, as of the date hereof, there are no outstanding agreements or
instruments binding upon any of any Loan Party’s or any of its Subsidiaries’ partners, members or shareholders, as the case
may be, relating to the ownership of its Equity Interests.
8.1.5 Names; Organization. Within the five (5) years prior to the Closing Date, neither any Loan Party nor any of their
respective Subsidiaries has been known as or has used any legal, fictitious or trade names except those listed on Schedule 8.1.5
hereto. Within the five (5) years prior to the Closing Date, except as set forth on Schedule 8.1.5, neither any Loan Party nor
any of their respective Subsidiaries has been the surviving entity of a merger or consolidation or has acquired all or substantially all
of the assets of any Person. As of the Second Amendment Effective Date, the exact legal name, jurisdiction of incorporation or organization,
Type of Organization and Organizational I.D. Number of each Loan Party and each of their respective Subsidiaries is set forth on Schedule
8.1.5.
8.1.6 Title to Properties; Priority of Liens. Each Loan Party and each of its Subsidiaries has good, indefeasible and marketable
title to and fee simple ownership of, or valid and subsisting leasehold interests in, all of its real Property, and good title to all
of the Collateral and all of its other Property, in each case, free and clear of all Liens except Permitted Liens. Each Loan Party and
each of its Subsidiaries has paid or discharged all lawful claims which, if unpaid, might become a Lien against any of such Loan Party’s
or such Subsidiary’s Properties that is not a Permitted Lien. The Liens granted to Administrative Agent under Section 6 hereof
in the Collateral are first-priority (subject to the Intercreditor Agreement) Liens, subject only to Permitted Liens.
8.1.7 Accounts. Administrative Agent may rely, in determining which Accounts are Eligible Accounts or Eligible Unbilled
Accounts, on all statements and representations made by the with respect to any Account or Accounts. With respect to each of the Borrower’s
Accounts, whether or not such Account is an Eligible Account or an Eligible Unbilled Account, unless otherwise disclosed to Administrative
Agent in writing:
(i) It is genuine and in all respects what it purports to be, and it is not evidenced by a judgment;
(ii) It
arises out of a completed, bona fide sale and delivery of goods or rendition of services by a Borrower, in the ordinary
course of its business and in accordance with the terms and conditions of all purchase orders, contracts or other documents relating
thereto and forming a part of the contract between such Borrower and the Account Debtor;
(iii) It is for a liquidated amount maturing as stated in the duplicate invoice covering such sale or rendition of services, a
copy of which (other than in the case of an Eligible Unbilled Account) has been furnished or is available to Administrative Agent;
(iv) There are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend
to reduce the amount payable thereunder from the face amount of the invoice and statements delivered or made available to Administrative
Agent with respect thereto;
(v) To the best of such Borrower’s knowledge, the Account Debtor thereunder (a) had the capacity to contract at the time
any contract or other document giving rise to the Account was executed and (b) such Account Debtor is Solvent; and
(vi) To the best of such Borrower’s knowledge, there are no proceedings or actions which are threatened or pending against
the Account Debtor thereunder which might result in any material adverse change in such Account Debtor’s financial condition or
the collectability of such Account.
8.1.8 Equipment. The Equipment of each Borrower is in good operating condition and repair, and all necessary replacements
of and repairs thereto shall be made so that the operating efficiency thereof shall be maintained and preserved, reasonable wear and tear
expected. No Borrower will permit any Equipment to become affixed to any real Property leased to any Borrower so that an interest arises
therein under the real estate laws of the applicable jurisdiction unless the landlord of such real Property has executed a landlord waiver
or leasehold mortgage in favor of and in form reasonably acceptable to Administrative Agent, and the Borrowers will not permit any of
the Equipment of any Borrower to become an accession to any personal Property other than Equipment that is subject to first-priority Liens
(subject to the terms of the Intercreditor Agreement) in favor of Administrative Agent subject to Permitted Liens.
8.1.9 Financial Statements; Fiscal Year. The Financial Statements, copies of which have been delivered to each Lender,
were prepared in accordance with GAAP (subject, in the case of any such unaudited statements, to the absence of footnotes and to normal
year-end adjustments) and present fairly in all material respects the consolidated financial condition of Holdings and its Subsidiaries
and Green Remedies, as applicable, as at the dates covered in the Financial Statements and the results of their operations for the periods
then ended. As of the First Amendment Effective Date, since December 31, 2019, there has been no material adverse change in the financial
condition, operations, assets, business, prospects, or properties of the Loan Parties and their Subsidiaries, taken as a whole. As of
the date hereof, the fiscal year of Holdings and each of its Subsidiaries ends on December 31 of each year.
8.1.10 Full Disclosure. The financial statements referred to in subsection 8.1.9 hereof do not, nor does this Agreement
or any other written statement of the Loan Parties to Administrative Agent or any Lender, contain any untrue statement of a material fact
or omit a material fact necessary to make the statements contained therein or herein not misleading. There is no fact which the Loan Parties
have failed to disclose to Administrative Agent or any Lender in writing which could reasonably be expected to have a Material Adverse
Effect.
8.1.11 Solvent Financial Condition. On the First Amendment Effective Date, and immediately prior to and after giving effect
to each borrowing under this Agreement and the use of the proceeds thereof, with respect to Holdings, individually, and the Loan Parties
taken as a whole, (a) the fair value of its or their assets is greater than the amount of its or their liabilities (including disputed,
contingent and unliquidated liabilities) as that value is established and liabilities evaluated in accordance with GAAP; (b) the present
fair saleable value of its or their assets is not less than the amount that will be required to pay the probable liability on its or their
debts as they become absolute and matured; (c) it is, and they are, able to realize upon its or their assets and pay its or their debts
and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business; (d)
it does not, and they do not, intend to, and it does not, and they do not, believe that it or they will, incur debts or liabilities beyond
its or their ability to pay as those debts and liabilities mature; and (e) it is not, and they are not, engaged in or about to engage
in business or a transaction for which its or their property would constitute unreasonably small capital.
8.1.12 Taxes. Each Loan Party and each of its Subsidiaries has filed all federal, state and local tax returns and other
reports relating to taxes it is required by law to file, and has paid, or made provision for the payment of, all taxes, assessments, fees,
levies and other governmental charges upon it, its income and Properties as and when such taxes, assessments, fees, levies and charges
are due and payable, unless and to the extent any thereof are being actively contested in good faith and by appropriate proceedings, and
each Loan Party and each of its Subsidiaries maintains reasonable reserves on its books therefor. The provision for taxes on the books
of each Loan Party and each of its Subsidiaries is adequate for all years not closed by applicable statutes, and for the current fiscal
year.
8.1.13 Brokers. Except as shown on Schedule 8.1.13 hereto, there are no claims for brokerage commissions, finder’s
fees or investment banking fees in connection with the transactions contemplated by this Agreement or any other Initial Closing Date Transactions.
8.1.14 Patents, Trademarks, Copyrights and Licenses. Each Borrower owns, possesses or licenses or has the right to use all
the patents, trademarks, service marks, trade names, copyrights, licenses and other Intellectual Property necessary for the present and
planned future conduct of its business without any known conflict with the rights of others, except for such conflicts as could not reasonably
be expected to have a Material Adverse Effect. All such patents, trademarks, service marks, trade names, copyrights, licenses and other
similar rights are listed on Schedule 8.1.14 hereto. No claim has been asserted to any Borrower which is currently pending that
their use of their Intellectual Property or the conduct of their business does or may infringe upon the Intellectual Property rights of
any third party. To the knowledge of the Borrowers and except as set forth on Schedule 8.1.14 hereto, as of the date hereof, no
Person is engaging in any activity that infringes in any material respect upon any Borrower’s material Intellectual Property. Except
as set forth on Schedule 8.1.14, each Borrower’s (i) material patents, trademarks, service marks and copyrights are registered
with the U.S. Patent and Trademark Office or in the U.S. Copyright Office, as applicable and (ii) material license agreements and similar
arrangements relating to its Inventory (a) permit, and do not restrict, the assignment by any Borrower to Administrative Agent, or any
other Person designated by Administrative Agent, of all of such Borrower’s rights, title and interest pertaining to such license
agreement or such similar arrangement and (b) would permit the continued use by such Borrower, or Administrative Agent or its assignee,
of such license agreement or such similar arrangement and the right to sell Inventory subject to such license agreement for a period of
no less than 6 months after a default or breach of such agreement or arrangement. The consummation and performance of the transactions
and actions contemplated by this Agreement and the other Loan Documents, including, without limitation, the exercise by Administrative
Agent of any of its rights or remedies under Section 11, will not result in the termination or impairment of any of such Borrower’s
ownership or rights relating to its Intellectual Property, except for such Intellectual Property rights the loss or impairment of which
could not reasonably be expected to have a Material Adverse Effect. Except as listed on Schedule 8.1.14 and except as could not
reasonably be expected to have a Material Adverse Effect, (i) no Borrower is in breach of, or default under, any term of any license or
sublicense with respect to any of its Intellectual Property and (ii) to the knowledge of the Borrowers, no other party to such license
or sublicense is in breach thereof or default thereunder, and such license is valid and enforceable.
8.1.15 Governmental Consents. Each Loan Party and each of its Subsidiaries has, and is in good standing with respect to,
all governmental consents, approvals, licenses, authorizations, permits, certificates, inspections and franchises necessary to continue
to conduct its business as heretofore or proposed to be conducted by it and to own or lease and operate its Properties as now owned or
leased by it, except where the failure to possess or so maintain such rights could not reasonably be expected to have a Material Adverse
Effect.
8.1.16 Compliance with Laws; Environmental.
(i) Each Loan Party and each of its Subsidiaries has duly complied, and its Properties, business operations and leaseholds are
in compliance with, the provisions of all federal, state, local and foreign laws, rules and regulations applicable to such Loan Party
or such Subsidiary, as applicable, its Properties or the conduct of its business, except for such non-compliance as could not reasonably
be expected to have a Material Adverse Effect, and there have been no citations, notices or orders of non-compliance issued to any Loan
Party or any of its Subsidiaries under any such law, rule or regulation, except where such non-compliance could not reasonably be expected
to have a Material Adverse Effect. Each Loan Party and each of its Subsidiaries has established and maintains an adequate monitoring system
to insure that it remains in compliance in all material respects with all federal, state, local and foreign rules, laws and regulations
applicable to it. No Inventory has been produced in violation of the Fair Labor Standards Act (29 U.S.C. §201 et seq.), as
amended.
(ii) The on-going operations of each of the Loan Parties and their Subsidiaries comply in all respects with all Environmental
Laws, except for non-compliance that could not (if enforced in accordance with applicable law) reasonably be expected to result, either
individually or in the aggregate, in a Material Adverse Effect. Each of the Loan Parties and their Subsidiaries has obtained, and maintained
in good standing, all licenses, permits, authorizations, registrations, and other approvals required under any Environmental Law and required
for their respective ordinary course operations, and for their reasonably anticipated future operations, and each of the Loan Parties
and their Subsidiaries is in compliance with all terms and conditions thereof, except where the failure to do so could not reasonably
be expected to result in material liability to any of the Loan Parties and their Subsidiaries and could not reasonably be expected to
result, either individually or in the aggregate, in a Material Adverse Effect. None of the Loan Parties and their Subsidiaries, and none
of the properties or operations of the Loan Parties and their Subsidiaries, is subject to, and none of the Loan Parties and their Subsidiaries
reasonably anticipates the issuance of, (a) any written order from or agreement with any federal, state, or local governmental authority,
or (b) any judicial or docketed administrative or other proceeding respecting any Environmental Law, Environmental Claim, or Hazardous
Substance that could reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect. There are
no Hazardous Substances or other conditions or circumstances existing with respect to any property, arising from operations prior to the
First Amendment Effective Date, or relating to any waste disposal of any Loan Party or any Subsidiary thereof that could reasonably be
expected to result, either individually or in the aggregate, in a Material Adverse Effect. None of the Loan Parties and their Subsidiaries
has any underground storage tanks that are not properly registered or permitted under applicable Environmental Laws or that at any time
have released, leaked, disposed of or otherwise discharged Hazardous Substances that could reasonably be expected to result in material
liability to any of the Loan Parties and their Subsidiaries.
8.1.17 Restrictions. Neither any Loan Party nor any of its Subsidiaries is a party or subject to any contract or agreement
which restricts its right or ability to incur Debt, other than as set forth on Schedule 8.1.17 hereto, none of which prohibits
the execution of or compliance with this Agreement or the other Loan Documents by any Loan Party or any of its Subsidiaries, as applicable.
8.1.18 Litigation. Except as set forth on Schedule 8.1.18 hereto, there are no actions, suits, proceedings or investigations
pending, or to the knowledge of the Loan Parties, threatened, against or affecting any Loan Party or any of its Subsidiaries, or the business,
operations, Properties, prospects, profits or condition of any Loan Party or any of its Subsidiaries which, singly or in the aggregate,
could reasonably be expected to have a Material Adverse Effect. Neither any Loan Party nor any of its Subsidiaries is in default with
respect to any order, writ, injunction, judgment, decree or rule of any Governmental Authority, which, singly or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
8.1.19 No Defaults. No event has occurred and no condition exists which would, upon or after the execution and delivery
of this Agreement or any Loan Party’s performance hereunder, constitute a Default or an Event of Default.
8.1.20 Pension Plans.
(i) The Unfunded Liability of all Pension Plans does not in the aggregate exceed 20% of the Total Plan Liability for all such
Pension Plans. Except as could not reasonably be expected to result in a Material Adverse Effect, each Pension Plan complies with all
applicable requirements of law and regulations. No contribution failure under Section 430 of the Code, Section 303 of ERISA, or the terms
of any Pension Plan has occurred with respect to any Pension Plan sufficient to give rise to a Lien under Section 303(k) of ERISA or otherwise
to have a Material Adverse Effect. There are no pending or, to the knowledge of any Loan Party, threatened claims, actions, investigations,
or lawsuits against any Pension Plan, any fiduciary of any Pension Plan, or any Borrower or other any member of the Controlled Group with
respect to a Pension Plan or a Multiemployer Pension Plan which could reasonably be expected to have a Material Adverse Effect. Neither
any Borrower nor any other member of the Controlled Group has engaged in any prohibited transaction (as defined in Section 4975 of the
Code or Section 406 of ERISA) in connection with any Pension Plan or Multiemployer Pension Plan which would subject that Person to any
material liability. Within the past five years, neither any Borrower nor any other member of the Controlled Group has engaged in a transaction
that resulted in a Pension Plan with an Unfunded Liability being transferred out of the Controlled Group, except as could not reasonably
be expected to have a Material Adverse Effect. No Termination Event has occurred or is reasonably expected to occur with respect to any
Pension Plan, except as could not reasonably be expected to have a Material Adverse Effect.
(ii) (a) All contributions (if any) have been made to any Multiemployer Pension Plan that are required to be made by any Borrower
or any other member of the Controlled Group under the terms of the plan or of any collective bargaining agreement or by applicable law;
(b) neither any Borrower nor any other member of the Controlled Group has withdrawn or partially withdrawn from any Multiemployer Pension
Plan, incurred any withdrawal liability with respect to any such plan, or received notice of any claim or demand for withdrawal liability
or partial withdrawal liability from any such plan, and no condition has occurred which, if continued, could reasonably be expected to
result in a withdrawal or partial withdrawal from any such plan; and (c) neither any Borrower nor any other member of the Controlled Group
has received any notice that any Multiemployer Pension Plan is in reorganization, that increased contributions may be required to avoid
a reduction in plan benefits or the imposition of any excise tax, that any such plan is or has been funded at a rate less than that required
under Section 412 of the Code, that any such plan is or may be terminated, or that any such plan is or may become insolvent.
8.1.21 Trade Relations. There exists no actual or, to the Loan Parties’ knowledge, threatened termination, cancellation
or limitation of, or any modification or change in, the business relationship between any Loan Party or any of its Subsidiaries and any
customer or any group of customers whose purchases individually or in the aggregate are material to the business of the Loan Parties and
their Subsidiaries, or with any material supplier, except in each case, where the same could not reasonably be expected to have a Material
Adverse Effect, and there exists no present condition or state of facts or circumstances which would prevent any Loan Party or any of
its Subsidiaries from conducting such business after the consummation of the transactions contemplated by this Agreement in substantially
the same manner in which it has heretofore been conducted.
8.1.22 Labor Relations. Except as described on Schedule 8.1.22 hereto, as of the date hereof, neither any Loan Party
nor any of its Subsidiaries is a party to any collective bargaining agreement. There are no material grievances, disputes or controversies
with any union or any other organization of any Loan Party’s or any of its Subsidiaries’ employees, or threats of strikes,
work stoppages or any asserted pending demands for collective bargaining by any union or organization, except those that could not reasonably
be expected to have a Material Adverse Effect.
8.1.23 Leases. Schedule 8.1.23 hereto is a complete listing of all capitalized leases of the Loan Parties and their
Subsidiaries and all real property leases of the Loan Parties and their Subsidiaries. Each Loan Party and each of its Subsidiaries is
in full compliance with all of the terms of each of its respective capitalized and operating leases, except where the failure to so comply
could not reasonably be expected to have a Material Adverse Effect.
8.1.24 Material Contracts. Set forth on Schedule 8.1.24 to the First Amendment is a complete and accurate list as of the
First Amendment Effective Date of all Material Contracts of each of the Loan Parties and their Subsidiaries, showing the parties and subject
matter thereof and amendments and modifications thereto. Each such Material Contract (a) is in full force and effect and is binding upon
and enforceable against each of the Loan Parties and their Subsidiaries that is a party thereto and, to each Loan Party’s knowledge,
all other parties thereto in accordance with its terms; (b) has not been otherwise amended or modified; and (c) is not in default due
to the action of any of the Loan Parties and their Subsidiaries or, to the knowledge of any Loan Party, any other party thereto.
8.1.25 Related Businesses. As of the Closing Date, the Loan Parties are engaged in the business of providing businesses
with one-step management programs to reuse, recycle and dispose of a wide variety of waste streams and recyclables generated by their
business. These operations require financing on a basis such that the credit supplied can be made available from time to time to the Loan
Parties, as required for the continued successful operation of the Loan Parties taken as a whole. Each Loan Party and each Subsidiary
of each Loan Party expects to derive benefit (and the board of directors or equivalent governing body of each Loan Party and each Subsidiary
of each Loan Party has determined that such Loan Party or Subsidiary may reasonably be expected to derive benefit), directly or indirectly,
from a portion of the credit extended by Lenders hereunder, both in its separate capacity and as a member of the group of companies, since
the successful operation and condition of each Loan Party and each Subsidiary of each Loan Party is dependent on the continued successful
performance of the functions of the group as a whole. Each Loan Party acknowledges that, but for the agreement of each of the other Loan
Parties to execute and deliver this Agreement, Administrative Agent and Lenders would not have made available the credit facilities established
hereby on the terms set forth herein.
8.1.26 Not a Regulated Entity. No Loan Party is an “investment company” or a “person directly or indirectly
controlled by or acting on behalf of an investment company” within the meaning of the Investment Company Act of 1940.
8.1.27 Margin Stock. No Loan Party or any of their Subsidiaries is engaged, principally or as one of its important activities,
in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No Loan proceeds or Letters of Credit
will be used by the Loan Parties to purchase or carry, or to reduce or refinance any Debt incurred to purchase or carry, any Margin Stock
or for any related purpose governed by Regulations T, U or X of the Federal Reserve Board of Governors.
8.1.28 Foreign Assets Control Regulations and Anti-Money Laundering.
(i) No Loan Party nor any Subsidiary is (i) a Person whose property or interest in property is blocked or subject to blocking
pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Party and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) a Person who engages in any dealings or transactions prohibited
by Section 2 of such executive order, or is otherwise associated with any such Person in any manner violative of such Section 2, or (iii)
a Person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other
U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.
(ii) Each of the Loan Parties and their Subsidiaries are in compliance, in all material respects, with the Patriot Act. No part
of the proceeds of the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.
8.1.29 EEA Financial Institution. No Borrower is an EEA Financial Institution.
8.1.30 Hedging Agreements. None of the Loan Parties and their Subsidiaries is a party to, nor will it be a party to, any
Hedging Agreement, except as permitted under Section 9.2.1(vi).
8.1.31 OFAC. Each of the Borrowers and their Subsidiaries is and will remain in compliance in all material respects with
all U.S. economic sanctions laws, Executive Orders and implementing regulations as promulgated by the U.S. Treasury Department’s
Office of Foreign Assets Control (“OFAC”), and all applicable anti-money laundering and counter-terrorism financing provisions
of the Bank Secrecy Act and all regulations issued pursuant to it. None of the Borrowers and their Subsidiaries and Affiliates is (a)
a Person designated by the U.S. government on the list of the Specially Designated Nationals and Blocked Persons (the “SDN List”)
with which a U.S. Person cannot deal with or otherwise engage in business transactions; (b) a Person who is otherwise the target of U.S.
economic sanctions laws such that a U.S. Person cannot deal or otherwise engage in business transactions with that Person; or (c) controlled
by (including, without limitation, by virtue of that Person being a director or owning voting shares or interests), or acts, directly
or indirectly, for or on behalf of, any Person on the SDN List or a foreign government that is the target of U.S. economic sanctions prohibitions
such that the entry into, or performance under, this Agreement or any other Loan Document would be prohibited under U.S. law.
8.1.32 Patriot Act. Each of the Borrowers and their Subsidiaries and Affiliates are in compliance with (a) the Trading with
the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B Chapter
V, as amended) and any other enabling legislation or executive order relating thereto; (b) the Patriot Act; and (c) other federal or state
laws relating to “know your customer” and anti-money laundering rules and regulations. No part of the proceeds of any Loan
will be used directly or indirectly for any payments to any government official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or
obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.
8.1.33 Related Agreements.
(i)
The Loan Parties have furnished Administrative Agent true and correct copies of the Related Agreements and the RWS Acquisition
Documents.
(ii) The Loan Parties have duly taken all necessary company action to authorize the execution, delivery, and performance (x)
of the Related Agreements and the consummation of transactions contemplated by the Related Agreements and (y) the RWS Acquisition Documents
and the consummation of the transactions contemplated by the RWS Acquisition Documents.
(iii) The Related Transaction will comply with all applicable legal requirements, and all necessary governmental, regulatory,
creditor, shareholder, partner, and other material consents, approvals, and exemptions required to be obtained by the Loan Parties and,
to each Loan Party’s knowledge, each other party to the Related Agreements in connection with the Related Transaction will be, prior
to consummation of the Related Transaction, duly obtained and will be in full force and effect. As of the date of the Related Agreements,
all applicable waiting periods with respect to the Related Transaction will have expired without any action being taken by any competent
governmental authority which restrains, prevents or imposes material adverse conditions upon the consummation of the Related Transaction.
The RWS Acquisition will comply with all applicable legal requirements, and all necessary governmental, regulatory, creditor, shareholder,
partner, and other material consents, approvals, and exemptions required to be obtained by the Loan Parties and, to each Loan Party’
s knowledge, each other party to the RWS Acquisition Documents in connection with the RWS Acquisition will be, prior to consummation of
the RWS Acquisition, duly obtained and will be in full force and effect. As of the date of the RWS Acquisition Documents, all applicable
waiting periods with respect to the RWS Acquisition will have expired without any action being taken by any competent governmental authority
which restrains, prevents or imposes material adverse conditions upon the consummation of the RWS Acquisition.
(iv) The execution and delivery of the Related Agreements did not, and the consummation of the Related Transaction will not,
violate any statute or regulation of the United States (including any securities law) or of any state or other applicable jurisdiction,
or any order, judgment, or decree of any court or governmental body binding on any Loan Party or, to any Borrower’s knowledge, any
other party to the Related Agreements, or result in a breach of, or constitute a default under, any material agreement, indenture, instrument,
or other document, or any judgment, order, or decree, to which any Loan Party is a party or by which any Loan Party is bound or, to any
Borrower’s knowledge, to which any other party to the Related Agreements is a party or by which any such party is bound. The execution
and delivery of the RWS Acquisition Documents did not, and the consummation of the RWS Acquisition will not, violate any statute or regulation
of the United States (including any securities law) or of any state or other applicable jurisdiction, or any order, judgment, or decree
of any court or governmental body binding on any Loan Party or, to any Borrower’ s knowledge, any other party to the RWS Acquisition
Documents, or result in a breach of, or constitute a default under, any material agreement, indenture, instrument, or other document,
or any judgment, order, or decree, to which any Loan Party is a party or by which any Loan Party is bound or, to any Borrower’ s
knowledge, to which any other party to the RWS Acquisition Documents is a party or by which any such party is bound.
(v) As of the Closing Date, no statement or representation made in the Related Agreements by any Loan Party or, to any Borrower’s
knowledge, any other Person, contains any untrue statement of a material fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading
in any material respect. As of the Second Amendment Effective Date, no statement or representation made in the RWS Acquisition Documents
by any Loan Party or, to any Borrower’ s knowledge, any other Person, contains any untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances
under which they are made, not misleading in any material respect.
8.1.34 Holdings. Holdings is not and has not, directly or indirectly, engaged in any business activities, does not hold
and has not held any material assets, has not granted any Lien, and has not incurred any Debt, other than (a) acting as a holding company
and transactions incidental thereto; (b) entering into the Loan Documents and the transactions required in this Agreement or permitted
in this Agreement to be performed by Holdings; (c) receiving and distributing the dividends, distributions, and payments permitted to
be made to Holdings pursuant to Section 9.2.3; (d) entering into engagement letters and similar agreements with attorneys, accountants,
and other professionals; and (e) issuing Equity Interests and performing its obligations under its organizational documents, its governing
documents, and agreements with the holders of its Equity Interests.
8.1.35 Customers and Suppliers. There exists no actual or threatened termination, cancellation, or limitation of, or modification
to or change in, the business relationship between (a) any of the Loan Parties and their Subsidiaries, on the one hand, and any customer
or any group thereof, on the other hand, whose agreements with any of the Loan Parties and their Subsidiaries are individually or in the
aggregate material to the business or operations of any of the Loan Parties and their Subsidiaries; or (b) of the Loan Parties and their
Subsidiaries, on the one hand, and any supplier or any group thereof, on the other hand, whose agreements with any of the Loan Parties
and their Subsidiaries are individually or in the aggregate material to the business or operations of any of the Loan Parties and their
Subsidiaries. To the Loan Parties’ knowledge there exists no present state of facts or circumstances that could reasonably be expected
to give rise to or result in any such termination, cancellation, limitation, modification or change.
8.1.36 Acquisition Term Loan Documents. As of the First Amendment Effective Date, the Borrowers have delivered to the Administrative
Agent true and correct copies of the Acquisition Term Loan Documents. The Acquisition Term Loan Documents are in full force and effect
as of the First Amendment Effective Date and have not been terminated, rescinded or withdrawn as of such date. The execution, delivery
and performance of the Acquisition Term Loan Agreement on the First Amendment Effective Date does not and will not require any registration
with, consent, or approval of, or notice to, or other action with or by, any governmental authority, other than consents or approvals
that have been obtained and that are still in full force and effect. This Agreement, the other Loan Documents and the Obligations incurred
hereunder and thereunder are permitted to be incurred by the Acquisition Term Loan Documents. Each Person that is a guarantor or a borrower
under the Acquisition Term Loan Documents is a Loan Party hereunder.
8.2 Continuous Nature of Representations and Warranties. Each representation and warranty contained in this Agreement
and the other Loan Documents shall be continuous in nature and shall remain accurate, complete and not misleading at all times during
the term of this Agreement, except for changes in the nature of any Loan Party’s or one of any Loan Party’s Subsidiary’s
business or operations that would render the information in any Schedule attached hereto or to any other Loan Document either inaccurate,
incomplete or misleading, so long as Majority Lenders have consented to such changes, such changes are expressly permitted by this Agreement
or such changes do not have or evidence a Material Adverse Effect. Without limiting the generality of the foregoing, each Loan request
made or deemed made pursuant to subsection 4.1.1 hereof shall constitute a reaffirmation, as of the date of each such Loan request,
of each representation or warranty made or furnished to Administrative Agent or any Lender by or on behalf of any Loan Party or any Subsidiary
of any Loan Party in this Agreement, any of the other Loan Documents, or any instrument, certificate or financial statement furnished
in compliance with or in reference thereto.
8.3 Survival of Representations and Warranties. All representations and warranties of the Loan Parties contained in this
Agreement or any of the other Loan Documents shall survive the execution, delivery and acceptance thereof by Administrative Agent and
each Lender and the parties thereto and the closing of the transactions described therein or related thereto.
Article
IX. COVENANTS AND CONTINUING AGREEMENTS
9.1 Affirmative Covenants. During the Term, and thereafter for so long as there are any Obligations outstanding (other
than indemnity Obligations for which no claim has been made), the Loan Parties covenant that they shall:
9.1.1 Visits and Inspections; Lender Meeting. Permit (i) representatives of each Agent, and during the continuation of
any Default or Event of Default any Lender, from time to time, as often as may be reasonably requested, but only during normal business
hours, to visit and inspect the Properties of each Loan Party and each of its Subsidiaries, inspect, audit and make extracts from its
books and records, and discuss with its officers, its employees and its independent accountants, each Loan Party’s and each of its
Subsidiaries’ business, assets, liabilities, financial condition, business prospects and results of operations and (ii) auditors
engaged pursuant to Section 3.9 (whether or not personnel of any Agent), from time to time, as often as may be reasonably requested,
but only during normal business hours, to visit and inspect the Properties of each Loan Party and each of its Subsidiaries, for the purpose
of completing audits pursuant to Section 3.9. Each Agent, if no Default or Event of Default then exists, shall give the Loan Parties
reasonable prior notice of any such inspection or audit. Without limiting the foregoing, the Loan Parties will participate and will cause
their key management personnel to participate in a meeting with Administrative Agent and Lenders periodically during each year (except
that during the continuation of an Event of Default such meetings may be held more frequently as requested by Administrative Agent or
Majority Lenders), which meeting(s) shall be held at such times and such places as may be reasonably requested by Administrative Agent.
The Collateral Agent may, at Borrowers’ expense, conduct up to two visits per year; provided, that, if a Default or Event of Default
has occurred and is continuing, or if an Excess Availability Triggering Event has occurred and prior to the Cure Date, the Collateral
Agent may perform an additional visit at Borrowers’ expense.
9.1.2 Notices.
(i) Notify Administrative Agent, for itself and on behalf of Lenders, in writing, promptly after a Loan Party’s obtaining
knowledge thereof, of any of the following that affects a Loan Party: (a) the threat or commencement of any proceeding or investigation,
whether or not covered by insurance, if an adverse determination could reasonably be expected to have a Material Adverse Effect; (b) any
pending or threatened labor dispute, strike or walkout, or the expiration of any material labor contract; (c) the existence of any Default
or Event of Default; (d) any judgment in an amount exceeding $500,000; (e) the assertion of any claim in respect of material Intellectual
Property, if an adverse resolution could reasonably be expected to have a Material Adverse Effect; (f) any violation or asserted violation
of any (1) Anti-Terrorism Law or (2) any other Applicable Law if an adverse resolution could reasonably be expected to have a Material
Adverse Effect; (g) any Environmental Release by a Loan Party or on any Property owned, leased or occupied by a Loan Party; or receipt
of any Environmental Notice; (h) the discharge of or any withdrawal or resignation by Loan Parties’ independent accountants; (i)
any material change in accounting or financial reporting practices; (j) the filing of any documentation with the IRS or any other Governmental
Authority outside the ordinary course of business, or (k) actual termination, cancellation or material limitation of or any actual material
negative modification in or material change in the business relationship or agreements with any Account Debtor whose business with Borrowers
constitutes more than 20% of Borrowers’ total revenue.
(ii) Promptly notify Administrative Agent in writing of the occurrence of any event or the existence of any fact which renders
any representation or warranty in this Agreement or any of the other Loan Documents inaccurate, incomplete or misleading in any material
respect as of the date made or remade. In addition, the Loan Parties agree to provide Administrative Agent with prompt written notice
of any change in the information disclosed in any Schedule hereto, as required under this Agreement, in each case after giving effect
to the materiality limits and Material Adverse Effect qualifications contained therein.
(iii) No later than five (5) Business Days prior to the earlier of the execution date or the effective date thereof, copies of
substantially final drafts of any proposed amendment, supplement, waiver or other modification under or pursuant to the Acquisition Term
Loan Documents or any other documentation evidencing Debt from any other lender.
(iv) Promptly upon delivery of or receipt of the same, any notices of default under the Acquisition Term Loan Documents or any
notices of any Enforcement Actin (as defined in the Intercreditor Agreement).
(v) On the First Amendment Effective Date, fully executed and assembled Acquisition Term Loan Documents.
9.1.3 Financial Statements. Keep, and cause each of their Subsidiaries to keep, adequate records and books of account with
respect to its business activities in which proper entries are made in accordance with customary accounting practices reflecting all its
financial transactions; and cause to be prepared and furnished to Administrative Agent and each Lender, the following, all to be prepared
in accordance with GAAP applied on a consistent basis:
(i) not later than one hundred twenty (120) days after the close of each fiscal year of Holdings, unqualified (except for a
qualification for a change in accounting principles with which the accountant concurs) audited financial statements of Holdings and its
Subsidiaries as of the end of such year, on a Consolidated basis, certified by a firm of independent certified public accountants of recognized
standing reasonably acceptable to Administrative Agent (it being acknowledged by Administrative Agent that Semple, Marchal & Cooper,
LLP is acceptable) and, within a reasonable time thereafter a copy of any management letter issued in connection therewith;
(ii) [Reserved];
(iii) not later than forty-five (45) days after the end of each Fiscal Quarter, consolidated balance sheets of Holdings and its
Subsidiaries as of the end of that Fiscal Quarter, together with consolidated statements of earnings and a consolidated statement of cash
flows for that Fiscal Quarter and for the period beginning with the first day of that Fiscal Year and ending on the last day of that Fiscal
Quarter, together with a comparison with the corresponding period of the previous Fiscal Year and a comparison with the budget for that
period of the current Fiscal Year, together with a management discussion and analysis, all certified by a Senior Officer of Holdings;
(iv) not later than thirty (30) days after the end of each month hereafter, unaudited interim financial statements of Holdings
and its Subsidiaries (balance sheet, income statement and cash flow statement without notes) as of the end of such month and of the portion
of the fiscal year then elapsed, on a Consolidated and consolidating basis, presenting the financial position and results of operations
of Holdings and its Subsidiaries for such month and period subject to changes from audit and year-end, quarterly or monthly adjustments;
(v) together with each delivery of financial statements pursuant to clause (i) of this subsection 9.1.3, and on a quarterly
basis excluding the fourth fiscal quarter (within forty-five (45) days of the end of each fiscal quarter), a management report (a) setting
forth in comparative form the corresponding figures for the corresponding periods of the previous fiscal year and the corresponding figures
from the most recent Projections for the current fiscal year delivered pursuant to subsection 9.1.7 and (b) identifying the reasons
for any significant variations;
(vi) together with each delivery of financial statements pursuant to clauses (i) and (iii) of this subsection 9.1.3, or
more frequently if reasonably requested by Administrative Agent, Holdings shall cause to be prepared and furnished to Administrative Agent
a Compliance Certificate in the form of Exhibit 9.1.3 hereto (a “Compliance Certificate”). The Compliance Certificate
shall include (a) a certification to the effect that that Senior Officer has not become aware of any Default or Event of Default that
has occurred and is continuing or, if there is any such event, describing it and the steps, if any, being taken to cure it, and (b) a
written statement of Holdings’ management setting forth a discussion of Holdings’ and its Subsidiaries’ financial condition,
changes in financial condition, and results of operations;
(vii) together with each delivery of financial statements pursuant to clause (i) of this subsection 9.1.3, and on a quarterly
basis excluding the fourth fiscal quarter (within forty-five (45) days of the end of each fiscal quarter), a management report setting
forth the individual consolidating amounts for Holdings and its Subsidiaries and eliminations that reconcile to the financial statements
pursuant to clause (i) of this subsection 9.1.3;
(viii) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or
reports which any Loan Party has made available to holders of its public Equity Interests and copies of any regular, periodic and special
reports or registration statements which any Loan Party or any of its Subsidiaries files with the Securities and Exchange Commission or
any Governmental Authority which may be substituted therefor or any national securities exchange;
(ix) upon request of Administrative Agent, copies of any annual report to be filed with ERISA in connection with each Plan;
(x) any other data or information required to be provided to the Acquisition Term Agent or any Acquisition Term Lenders of any
Loan Party, at the same time such data or information is provided to the Acquisition Term Agent or Acquisition Term Lenders, as applicable;
(xi) on a quarterly basis (within forty-five (45) days of the end of each fiscal quarter), a detailed list of Eligible Machinery
and Equipment and an address for such Eligible Machinery and Equipment (if such Eligible Machinery and Equipment is not located at a Borrower’s
location for which the Borrowers have delivered the Administrative Agent a collateral access agreement in favor of the Administrative
Agent in form and substance satisfactory to the Administrative Agent); and
(xii) such other data and information (financial and otherwise) as Administrative Agent or any Lender, from time to time, may
reasonably request, bearing upon or related to the Collateral or the Loan Parties’ or any of their Subsidiaries’ financial
condition or results of operations.
9.1.4 Borrowing Base Certificates.
(i) On or before the last day of each month from and after the date hereof, the Borrowers shall deliver to Collateral Agent,
in form acceptable to Collateral Agent, a Borrowing Base Certificate as of the last day of the immediately preceding month, with such
supporting materials as Collateral Agent shall reasonably request. If Collateral Agent shall request at any time (i) an Event of Default
has occurred and is continuing or (ii) following an Excess Availability Triggering Event and continuing until the Cure Date or following
the occurrence of a Default or Event of Default and so long as it is continuing, the Borrowers shall execute and deliver to Collateral
Agent Borrowing Base Certificates on or before the third (3rd) Business Day of each week, provided that any referenced
amounts with respect to unbilled Accounts will continue to be updated monthly.
(ii) Together with each delivery of a Borrowing Base Certificate, the Borrower Representative shall deliver to Collateral Agent,
in the form reasonably acceptable to Collateral Agent, a detailed accounts receivable and accounts payable aging of the Borrowers’
accounts aged by invoice date, account roll- forward with supporting details supplied from sales journals, collection journals, credit
registers and any other records, unbilled accrued receivables report, unapplied deposits report, unbilled accrued payables reports, deferred
revenue report, detailed list of Eligible Accounts and Eligible Unbilled Accounts, access to review new major contracts (MSAs and scope
of work arrangements), sales tax accruals and a reconciliation to Borrower’s general ledger and the Borrowing Base Certificate delivered
by the Borrower as of such date and to such Borrower’s most recent financial statements and all with supporting information and
materials as Collateral Agent shall reasonably request.
9.1.5 Landlord, Processor and Storage Agreements. Provide Administrative Agent with access to review all agreements between
any Loan Party or any of its Subsidiaries and any landlord which owns or is the lessee of any premises at which any books and records
and may, from time to time, be kept. In the event the Borrowers do not provide Administrative Agent with a landlord waiver with respect
to any such leased location, the Borrowers acknowledge that Collateral Agent may, in Collateral Agent’s reasonable credit judgment,
establish a Reserve in the amount of three months’ rent for such location. In the event the Term Lender receives a collateral access
agreement from Borrowers, Borrowers shall promptly deliver to the Administrative Agent a collateral access agreement in favor of the Administrative
Agent in form and substance satisfactory to the Administrative Agent.
9.1.6 Guarantor Financial Statements. Deliver or cause to be delivered to Administrative Agent financial statements, if
any, for each Guarantor (to the extent not consolidated with the financial statements delivered to Administrative Agent under subsection
9.1.3) in form and substance satisfactory to Administrative Agent at such intervals and covering such time periods as Administrative
Agent may request.
9.1.7 Projections. No later than thirty (30) days after the end of each fiscal year of Holdings, deliver to Administrative
Agent (i) the Projections of each of Holdings and each of its Subsidiaries for the forthcoming fiscal year, month by month and (ii) any
such other projections as required to be delivered under the Acquisition Term Loan Agreement.
9.1.8 Subsidiaries. Cause each Subsidiary of each Loan Party (other than an Excluded Subsidiary) hereafter acquired or
created to execute and deliver to Administrative Agent a joinder agreement in form and substance reasonably acceptable to Administrative
Agent whereby such Subsidiary would become either an additional Borrower or Guarantor hereunder, the determination as to whether such
Subsidiary shall be a Borrower or a Guarantor. A Subsidiary which becomes a Borrower hereunder shall by such joinder become a party to
this Agreement as a “Borrower” and subject to the terms, conditions and provisions of this Agreement, which shall include,
without limitation, a grant to Administrative Agent pursuant to subsection 6.1.1 hereof of a first-priority (subject to the Intercreditor
Agreement) Lien the Collateral (subject only to Permitted Liens) on all of its Properties of the types described in subsection 6.1.1;
provided, however, prior to the inclusion of any Accounts of such Borrower in the Borrowing Base, Administrative Agent shall be satisfied
with the results of a field exam, conducted at the Loan Parties’ expense, as to such Accounts. A Subsidiary which becomes a Guarantor
hereunder shall by such joinder become a party to this Agreement as a “Guarantor” and subject to the terms, conditions and
provisions of this Agreement, and in addition to but not in limitation of the foregoing, shall grant to Administrative Agent, for the
benefit of itself and each Lender, a continuing Lien upon all Equity Interests, whether certificated or uncertificated, in each of its
Subsidiaries which are Loan Parties, and comply with the provisions of subsection 6.1.3 hereof as if it were an original party
to this Agreement, except that the reference to “Parent” shall be construed to be a reference to such Guarantor and the reference
to “Quest” shall be construed to be a reference to such Subsidiary and the reference to “Pledge Agreement” shall
be construed to be a reference to the Pledge Agreement in form and substance satisfactory to Administrative Agent, Guarantor shall be
required to execute in connection with becoming a Guarantor hereunder.
9.1.9 Deposit and Brokerage Accounts. For each deposit account or brokerage account that any Borrower at any time opens
after the Closing Date, the Borrowers shall cause the depository bank or securities intermediary, as applicable, to enter into a Control
Agreement and/or blocked account agreement in accordance with subsection 7.2.4, except to the extent any such agreement is not
required thereunder.
9.1.10 Use of Proceeds. The Revolving Credit Loans and Term Loans shall be used solely for (i) the satisfaction of existing
Debt of the Borrowers to Citizens Bank, National Association, (ii) the Loan Parties’ general operating capital needs and general
corporate purposes in a manner consistent with the provisions of this Agreement and all Applicable Law, (iii) other purposes permitted
under this Agreement, and (iv) to pay costs and fees in connection with the Closing Date Transactions.
9.1.11 Compliance with Laws. Comply with all (i) Anti-Terrorism Laws and (ii) other Applicable Laws if the failure to comply
with such other Applicable Laws could reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the
foregoing, if any Environmental Release occurs at or on any Properties of any Loan Party or Subsidiary, it shall act promptly and diligently
to investigate and report to Administrative Agent and all appropriate Governmental Authorities the extent of, and to make appropriate
remedial action to eliminate, such Environmental Release, whether or not directed to do so by any Governmental Authority.
9.1.12 Payment of Obligations. Pay, discharge or otherwise satisfy as the same shall become due and payable (i) all material
Tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, which, if unpaid, could reasonably
be expected to result in the creation of a Lien upon its Property, unless the same are being contested in good faith by appropriate proceedings
diligently conducted and adequate reserves in accordance with GAAP are being maintained and (ii) all material lawful claims which, if
unpaid, would by law become a Lien upon its property, unless such claims would not become a Lien on the Collateral and the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained.
9.1.13 Preservation of Existence. Preserve, renew and maintain in full force and effect its legal existence under the Applicable
Law of the jurisdiction of its organization, other than as a result of a transaction expressly permitted hereunder.
9.1.14 Maintenance of Properties, Permits, Etc. (i) Maintain, preserve and protect all of its material properties and equipment
necessary in the operation of its business in good working order, repair and condition, ordinary wear and tear and casualty or condemnation
excepted, and make all necessary renewals, replacements, modifications, improvements, upgrades, extensions and additions thereof or thereto
in accordance with prudent industry practice, (ii) take all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect, and (iii) preserve or renew all of its registered patents, trademarks, service marks and
copyrights, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
9.1.15 SBA
PPP Loans[Reserved].
(i)
Use of Proceeds. The Borrowers will (i) use all of the proceeds of any SBA PPP Loan exclusively for CARES Forgivable Uses in the manner
required under the CARES Act, as amended, to obtain forgiveness of the largest possible amount of such SBA PPP Loan and (ii) take all
commercially reasonable steps to have the SBA PPP Loans forgiven pursuant to the CARES Act and use
commercially reasonable efforts to conduct their business in a manner that maximizes
the amount of the SBA PPP Loans that is forgiven. The Borrowers acknowledge that as of the Closing Date, in order to obtain forgiveness
of the largest possible amount of the SBA PPP Loans, the Borrowers would not be allowed to use less than 60% of each SBA PPP Loan proceeds
for CARES Payroll Costs, subject to amendment.
(ii)
CARES Act. The Borrowers and their use of the SBA PPP Loans will comply in all material respects with the applicable requirements of
the CARES Act.
(iii)
Notice. The Borrowers will provide the Bank with (i) prompt written notice (but in any event within two Business Days) of the failure
of any SBA PPP Loan incurred by any of the Borrowers to qualify for contingent forgiveness under the CARES Act and (ii) if requested
by the Bank, copies all correspondence sent to, and received from, the SBA or SBA 7(a) lender bank.
9.1.16 Equipment Rental/Lease Agreements. To the extent that any Equipment constitutes Eligible Machinery and Equipment
that is rented or leased to a Borrower’s customer and is located at such customer’s location and with respect to all master
service agreements or other contracts relating to any Eligible Account, use commercially reasonable efforts to ensure that any such rental
lease or master service agreement is assignable to Borrower’s financing sources.
9.1.17 Subcontractor Liens. (i) use commercially reasonable efforts to prevent any contractor or subcontractor from obtaining
or enforcing a lien with respect to any contract to which any Loan Party is a party and (ii) promptly notify the Administrative Agent
if (x) any Loan Party fails to pay any uncontested amounts to a subcontractor under any contract when due after any applicable cure period
or (y) any subcontractor obtains a lien with respect to any contract to which any Loan Party is a party.
9.1.18 Related Transaction Notices. Promptly following receipt, copies of any material notices (including notices of default
or acceleration) received in connection with the Related Transaction or the RWS Acquisition.
9.1.19 Information Systems. Not less than three (3) months prior to the commencement of any program or process to implement
a material change, consolidation or modification of a Loan Party’s information technology and/or enterprise resource planning software
system, such Loan Party shall provide notice of such proposed change, consolidation or modification to Administrative Agent. From the
commencement of such program or process through the completion of such change, consolidation or modification, the Borrowers shall provide
Administrative Agent an update on the progress of such change, consolidation or modification concurrently with the delivery of the written
statement required to be delivered pursuant to clause (b) of Section 9.1.3(vi) relating to the Borrowers’ financial condition, changes
in financial condition and results of operations.
9.1.20 Key Performance Indicators. Contemporaneously with the furnishing of a copy of each set of monthly financial statements
pursuant to Section 9.1.3(iv), a report summarizing key performance indicators of Holdings and its Subsidiaries for the period then ending
in form reasonably satisfactory to the Administrative Agent (and in any event shall include (without limitation) (1) any new material
customers added or customers lost during the applicable month being measured along with the gross profit impact of such change on an annual
basis and (2) the top 5 customers of Holdings and its Subsidiaries measured by trailing twelve month gross profit).
9.1.21 Permitted
ADM Factoring Arrangement.
(i)
Upon written request from the Administrative Agent, the Loan Parties shall provide the Agent with a copy of the Permitted ADM Factoring
Arrangement currently in effect. The Loan Parties further consent to the Administrative Agent corresponding with the counterparty to
the Permitted ADM Factoring Arrangement (orally or in writing), regardless of whether any Loan Party representatives are present during
any such discussions. The Loan Parties shall, upon written request from the Administrative Agent, take such further actions, and provide
such other information reports as the Administrative Agent may request regarding the Permitted ADM Factoring Arrangement, and facilitate
discussion between the Administrative Agent and counterparties to the Permitted ADM Factoring Arrangement.
(ii)
The Loan Parties shall use commercially reasonable efforts to obtain,
within twenty (20) days after the Fifth Amendment Effective Date, a tri-party agreement among Quest, the Administrative Agent, and the
counterparty to the ADM/BOA Factoring Agreement, in form and substance reasonably satisfactory to the Administrative Agent, concerning
the transactions contemplated in the ADM/BOA Factoring Agreement
9.2 Negative Covenants. Until payment in full of the Obligations, Holdings and each Borrower shall, unless at any time
the Administrative Agent otherwise expressly consents in writing, do the following:
9.2.1 Debt. Not, and not permit any of the Loan Parties and their Subsidiaries to, create, incur, assume, or suffer to
exist any Debt, except the following:
(i) Obligations under this Agreement and the other Loan Documents;
(ii) Debt of any of the Loan Parties (other than Holdings) and their Subsidiaries secured by Liens permitted by Section 9.2.2,
and extensions, renewals, replacements, and refinancings thereof, so long as the aggregate amount of all such Debt at any time outstanding
does not exceed $500,000;
(iii) Debt of any Loan Party to any other Loan Party, so long as (i) that Debt is evidenced by a demand note in form and substance
reasonably satisfactory to Administrative Agent and pledged and delivered to Administrative Agent pursuant to the Security Documents as
additional collateral security for the Obligations, and (ii) the obligations under that demand note are subordinated to the obligations
of the Loan Parties under the Loan Documents (including the Obligations of Borrowers under this Agreement) in a manner reasonably satisfactory
to Administrative Agent;
(iv) Debt arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(v) Debt of any Loan Party to any employee, officer, or director or any such Person’s spouse, estate, or estate-planning
vehicle to repurchase Equity Interests from that Person upon the death, disability, or termination of employment of that employee, officer
of director, so long as the aggregate amount of all such Debt at any time outstanding does not exceed $250,000;
(vi) unsecured Hedging Obligations consisting of commodity swap agreements of the Loan Parties (other than Holdings) and their
Subsidiaries in an aggregate amount not to exceed $250,000 incurred for bona fide hedging purposes and not for speculation with respect
to risks arising in the ordinary course of Borrowers’ business;
(vii) Debt described on Schedule 9.2.1 and any extension, renewal, replacement or refinancing thereof so long as the principal
amount thereof is not increased;
(viii) the Debt to be Repaid (so long as that Debt is repaid on the First Amendment Effective Date with the proceeds of the Acquisition
Term Debt);
(ix) Contingent Liabilities arising with respect to (i) customary indemnification obligations by any of the Loan Parties (other
than Holdings) and their Subsidiaries in favor of purchasers in connection with dispositions permitted under Section 9.2.9, and (ii) the
guaranty by any of the Loan Parties (other than Holdings) and their Subsidiaries of a lease, sublease, license, or sublicense entered
into in the ordinary course of business by another Loan Party or any Subsidiary thereof;
(x) unsecured Debt incurred in respect of netting services, overdraft protection, and other like services, in each case, incurred
in the ordinary course of business;
(xi) so long as the Acquisition Term Debt is subject to the terms and conditions of the Intercreditor Agreement the Acquisition
Term Debt in an aggregate principal amount outstanding under this clause (xi) at any time not to exceed the Term Loan Cap (as defined
in the Intercreditor Agreement) at any time outstanding and any permitted Refinancing (as defined in the Intercreditor Agreement) thereof;
provided, that, any Acquisition Term Debt that exceeds the Term Loan Cap shall still be permitted hereunder to the extent it constitutes
Excess Term Loan Debt (as defined in the Intercreditor Agreement) under the Intercreditor Agreement;
(xii) Debt owed to any person or entity providing property, casualty or liability insurance to any Borrower or any Subsidiary
of any Borrower in connection with the financing of financing premiums in the ordinary course of business to the extent not due and payable;
(xiii) unsecured Debt of any Borrower or any of its Subsidiaries owing to banks or other financial institutions under corporate
credit cards issued to officers and employees for business related expenses in the ordinary course of business in an aggregate amount
not to exceed $375,000 at any time outstanding;
(xiv) [Reserved];
(xv) Debt in the form of Capital Lease obligations or purchase money obligations of any entity that becomes a Loan Party after
the date hereof pursuant to a Permitted Acquisition; provided, that (x) such Debt exists at the time such entity becomes such a Subsidiary
and is not created in contemplation of or in connection with such entity becoming such a Subsidiary, (y) such Debt is not guaranteed in
any respect by any Borrower or Guarantor (other than by any such entity that guaranteed such Debt at the time such entity became a Subsidiary)
and (z) such Debt in the aggregate does not exceed $750,000 at any time outstanding and any renewals, extensions, or refinancings thereof
so long as the principal amount thereof is not increased;
(xvi) Debt in an aggregate amount not to exceed $250,000 at any time outstanding in connection with surety or similar bonds, letters
of credit and performance bonds obtained in the ordinary course of business of the Borrowers and their Subsidiaries;
(xvii) deposits supporting the performance of operating leases in the ordinary course of business in an aggregate amount not to
exceed $250,000 at any time outstanding;
(xviii)
unsecured Debt arising from agreements providing for customary adjustments of purchase price or similar obligations, or
from guarantees securing the performance of any Borrower or any Subsidiary of any Borrower pursuant to such agreements, in connection
with any Permitted Acquisitions;
(xix)
cash obligations under incentive, non-compete, consulting, deferred compensation, or other similar arrangements, other than
sales commissions, incurred by it in the ordinary course of business in an aggregate amount not to exceed $2,000,000 at any time outstanding;
(xx)
(A) the Green Remedies Seller Note to the extent subject to the Green Remedies Seller Note Subordination Agreement, (B)
other unsecured seller notes issued by Holdings of up to 150% of the EBITDA of the target for the most recently ended twelve month period
for which financial statements have been delivered to Administrative Agent, in an aggregate amount not to exceed $12,000,000 at any time
outstanding to the extent subject to a subordination agreement or other subordination arrangement in favor of the Obligations reasonably
acceptable to Administrative Agent and subject to documentation and structure reasonably acceptable to the Administrative Agent and (C)
other unsecured earn-outs owing by Holdings of up to 150% of the EBITDA of the target for the most recently ended twelve month period
for which financial statements have been delivered to Administrative Agent, in an aggregate amount not to exceed $12,000,000 at any time
outstanding the extent subject to a subordination agreement or other subordination arrangement in favor of the Obligations reasonably
acceptable to Administrative Agent and subject to documentation and structure reasonably acceptable to the Administrative Agent;
(xxi) Debt consisting
of SBA PPP Loans in an aggregate amount not to exceed $1,408,000 at any time outstandingarising
under the Permitted ADM Factoring Arrangement; and
(xxii)
other unsecured Debt of the Loan Parties and their Subsidiaries not otherwise provided for herein in an aggregate amount
not at any time exceeding $750,000 at any time outstanding; provided, to the extent any such Debt is in the form of seller notes, earn-out
or similar obligations, such Debt shall only be issued by Holdings and shall be subject to a subordination agreement or other subordination
arrangement in favor of the Obligations reasonably acceptable to Administrative Agent.
9.2.2 Liens. Not, and not permit any of the Loan Parties and their Subsidiaries to, create or permit to exist any Lien
on any of its real or personal properties, assets, or rights of whatsoever nature (whether now owned or hereafter acquired), except the
following:
(i) Liens for taxes or other governmental charges (excluding any Lien imposed pursuant to any provisions of ERISA) not at the
time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings so long as
such Lien would not reasonably be expected to materially adversely affect the Administrative Agent’s rights or the priority of the
Administrative Agent’s Lien on any Collateral and, in each case, for which it maintains adequate reserves in accordance with GAAP
and the execution or other enforcement of which is effectively stayed;
(ii) Liens arising in the ordinary course of business any of the Loan Parties (other than Holdings) and their Subsidiaries (such
as (i) Liens of carriers, warehousemen, mechanics and materialmen and other similar Liens imposed by law and (ii) Liens in the form of
deposits or pledges incurred in connection with worker’s compensation, unemployment compensation and other types of social security
(excluding Liens arising under ERISA) or in connection with surety bonds, bids, performance bonds, and similar obligations) for sums not
overdue or being diligently contested in good faith by appropriate proceedings diligently prosecuted and not involving any advances or
borrowed money or the deferred purchase price of property or services and, in each case (1) for which it maintains adequate reserves in
accordance with GAAP and the execution or other enforcement of which is effectively stayed and (2) only so long as payment in respect
of any such Lien is not at the time required and such Liens do not, in the aggregate, materially detract from the value of the assets
of such Loan Party or any of its Subsidiaries or materially impair the use thereof in the operation of the business of such Loan Party
or any of its Subsidiaries;
(iii) Liens described on Schedule 9.2.2 as of the First Amendment Effective Date and renewals and extensions thereof on the assets
currently subject to those Liens;
(iv) subject to the limitation set forth in Section 9.2.1(ii), the following: (i) Liens arising in connection with Capital Leases
(and attaching only to the property being leased); (ii) Liens existing on property at the time of the acquisition thereof by any of the
Loan Parties (other than Holdings) and their Subsidiaries (and not created in contemplation of that acquisition); and (iii) Liens that
constitute purchase money security interests on any property securing debt incurred for the purpose of financing all or any part of the
cost of acquiring that property, so long as any such Lien attaches to the applicable property within twenty (20) days of the acquisition
thereof and attaches solely to the property so acquired;
(v) easements, rights of way, restrictions (including zoning restrictions), covenants, encroachments, and other similar real
estate charges or encumbrances, minor defects or irregularities in title, and other similar real estate Liens granted in the ordinary
course of business not interfering in any material respect with the ordinary conduct of the business of any Loan Party or any Subsidiary
thereof;
(vi) leases, subleases, licenses, or sublicenses of the assets or properties of any of the Loan Parties and their Subsidiaries,
in each case entered into in the ordinary course of business and not interfering in any material respect with the business of any of the
Loan Parties and their Subsidiaries;
(vii) customary set-off rights against depository accounts permitted under this Agreement in favor of banks at which any of the
Loan Parties and their Subsidiaries maintains any such depository accounts, so long as those set-off rights secure only the obligations
of that Loan Party or that Subsidiary to pay ordinary course fees and bank charges;
(viii) Liens consisting of precautionary filings of UCC financing statements filed with respect to Operating Leases permitted under
this Agreement and any interest of title of a lessor under any Operating Lease permitted under this Agreement;
(ix) Liens arising under the Loan Documents;
(x) Liens arising from judgments in circumstances not constituting an Event of Default;
(xi) Liens
securing the Acquisition Term Debt to the extent permitted by SectinSection
9.2.1(xi) so long as such Liens are subject to the terms of the Intercreditor Agreement; and
(xii) Liens
securing obligations related to the Permitted ADM Factoring Arrangement that do not attach to any Collateral other than ADM Receivables
sold in connection with the Permitted ADM Factoring Arrangement; and
(xiii) (xii)
Other Liens incurred in the ordinary course of business of the Loan Parties and their Subsidiaries with respect to obligations
that do not in the aggregate exceed $500,000 at any time outstanding.
9.2.3 Restricted Payments. Not, and not permit any of the Loan Parties and their Subsidiaries to, (a) make any dividend
or distribution to any holders of its Equity Interests; (b) purchase or redeem any of its Equity Interests; (c) pay any management fees,
transaction-based fees, or similar fees to any of its equity holders or any Affiliate thereof; (d) make any payment on account of Debt
that has been contractually subordinated in right of payment to the Obligations if that payment is not permitted at that time under the
applicable subordination terms and conditions; (e) make any prepayment of any unsecured Debt or any Debt secured by a Lien that is junior
or subordinated to the Liens securing the Obligations; or (f) set aside funds for any of the foregoing (any of the foregoing described
in clauses (a) through (f), each a “Restricted Payment”), except that:
(i) any Subsidiary may pay dividends or make other distributions to a Loan Party and any Loan Party may pay dividends or make
other distributions to any Loan Party or any Subsidiary of any Loan Party;
(ii) in the event the Borrowers file a consolidated, combined, unitary or similar type income Tax return with Holdings, the Borrowers
shall be permitted to make distributions to Holdings to permit Holdings to pay federal and state income Taxes when due and payable to
the extent such Taxes are attributable to the income of the Borrowers and their Subsidiaries;
(iii) the Loan Parties and their Subsidiaries may make payments for earn-outs and deferred purchase price payments in connection
with Permitted Acquisitions in an aggregate amount not to exceed of up to 150% of the EBITDA of the target for the most recently ended
twelve month period for which financial statements have been delivered to Administrative Agent, provided that immediately before and after
giving effect to such payments the Payment Conditions are satisfied;
(iv) in each case to the extent due and payable on a nonaccelerated basis, each Borrower may make regularly scheduled payments
of interest in respect of subordinated Debt in the form of seller notes or earn-outs, provided, that (a) the Payment Conditions are satisfied,
and (b) such payments are permitted under the applicable subordination agreement related thereto, and
(v) each Borrower and each of its Subsidiaries may make dividends or distributions payable solely in its Equity Interests;
(vi) each Borrower and each of its Subsidiaries may make cash payments under the Warranty solely to the extent such payments
are permitted under the Intercreditor Agreement; and
(vii) the Loan Parties and their Subsidiaries may make payments in the form of Equity Interests of Holdings as required by the
Consideration Agreement (as defined in the Green Remedies Acquisition Agreement as in effect on the date hereof) as in effect on the date
hereof.
9.2.4 Mergers, Consolidations, Sales. Not, and not permit any of the Loan Parties and their Subsidiaries to, (a) be a party
to any merger or consolidation; (b) change its state of incorporation or organization, its organization type or organization identification
number or change its legal name; (c) sell, transfer, dispose of, convey, or lease any of its assets or Equity Interests (including the
sale of Equity Interests of any Subsidiary); (d) sell or assign with or without recourse any receivables; (e) acquire all or any substantial
part of the properties of any Person; or (f) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests,
or any partnership or joint venture interest in, any other Person or make any Acquisition, except the following:
(i) any merger or consolidation of a Loan Party or any Subsidiary of a Loan Party with another Loan Party or another Wholly-Owned
Subsidiary of a Loan Party; provided, that a Loan Party shall be the surviving entity in any merger or consolidation involving a Loan
Party, a Borrower shall be the surviving entity in any merger or consolidation involving a Borrower and Holdings shall be the surviving
entity in any merger or consolidation involving Holdings;
(ii) Permitted Acquisitions;
(iii) Dispositions of equipment that is substantially worn, damaged, or obsolete; provided that in the case of any disposition
of equipment financed hereunder, the outstanding advance amount and all interest payable with respect thereto shall be paid to the Administrative
Agent to be applied to the Term Loan as set forth herein;
(iv) the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the
ordinary course of business;
(v) the lapse of registered patents, trademarks, copyrights and other intellectual property of any Loan Party or any of its
Subsidiaries to the extent not economically desirable and useful in the conduct of its business;
(vi) transfers of assets (a) to a Loan Party by (x) a Loan Party (other than Holdings, provided that the foregoing shall not
limit Restricted Payments permitted by Section 9.2.3) or (y) a Subsidiary of a Loan Party (other than by a Borrower to such Subsidiary,
provided that the foregoing shall not limit Restricted Payments permitted by Section 9.2.3 hereof) or (b) to a Borrower by a Borrower;
(vii) sales of inventory in the ordinary course of business;
(viii) dispositions of Cash Equivalent Investments;
(ix) transfers
of cash permitted by Section 9.2.9(xiii); and
(x) sales
of ADM Receivables pursuant to the Permitted ADM Factoring Arrangement; and
(xi) (x)
so long as no Default or Event of Default exists and is continuing, other dispositions, not provided for in any other
clause of this Section 9.2.4 in an aggregate amount not to exceed $500,0001,000,000
during any consecutive twelve-month period.
Notwithstanding the foregoing, in no event shall
any disposition or transfer be made to Quest Vertigent One, LLC other than pursuant to clause (ix) of this Section 9.2.4.
9.2.5 Modification of Certain Documents; Organizational Form.
(i) Not permit the organizational documents or governing documents of any Loan Party to be amended or modified in any way that
could reasonably be expected to be adverse to the interests of the Lenders (it being agreed that any change to the organizational or governing
documents of Holdings related to the board of directors or voting rights of equity holders shall be deemed adverse to the interests of
the Lenders);
(ii) Not change, or allow any Loan Party to change, its state of formation or its organizational form without providing the Administrative
Agent at least ten (10) Business Days’ prior written notice.
(iii) Not amend, restate, supplement, waive, refinance, replace or otherwise modify any provision of any of the Acquisition Term
Loan Documents except to the extent permitted by the Intercreditor Agreement.
(iv) Not amend, restate, supplement, waive, refinance, replace or otherwise modify any provision of the Green Remedies Seller
Note unless permitted by the Green Remedies Seller Note Subordination Agreement.
(v) Without the prior written consent of the Administrative Agent, not amend, waive or otherwise modify any provision of the
Closing Date Acquisition Agreement, the RWS Acquisition Agreement or the documents and instruments delivered in connection therewith if
such amendment, waiver or modification would be material or adverse to the Administrative Agent or the Lenders.
9.2.6 Transactions with Affiliates. Not, and not permit any of the Loan Parties and their Subsidiaries to, enter into,
or cause, suffer, or permit to exist any transaction, arrangement, or contract with any of its other Affiliates (other than the Loan Parties)
which is onterms which are less favorable than are obtainable from any Person which is not one of its Affiliates (except to the extent
expressly permitted by Sections 9.2.3 and 9.2.4(i)).
9.2.7 Inconsistent Agreements. Not, and not permit any of the Loan Parties and their Subsidiaries to, enter into any agreement
containing any provision that would (a) be violated or breached by any borrowing by Borrowers under this Agreement or by the performance
by any Loan Party of any of its Obligations under this Agreement or under any other Loan Document; (b) prohibit any Loan Party from granting
to Administrative Agent and the Lenders a Lien on any of its assets; or (c) create or permit to exist or become effective any encumbrance
or restriction on the ability of any Subsidiary to (i) pay dividends or make other distributions to Holdings, any Borrower, or any other
Subsidiary, or incur or pay any Debt (or modify, extend or renew any agreement evidencing Debt) owed to Holdings, any Borrower, or any
other Subsidiary or to repay any intercompany Debt, (ii) make loans or advances to any Loan Party, or (iii) transfer any of its assets
or properties to any Loan Party, other than (A) customary restrictions and conditions contained in agreements relating to the sale of
all or a substantial part of the assets of any Subsidiary pending any such sale, so long as those restrictions and conditions apply only
to the Subsidiary to be sold and that sale is permitted under this Agreement (but those); (B) restrictions or conditions imposed by any
agreement relating to purchase money Debt, Capital Leases, and other secured Debt permitted by this Agreement, so long as those restrictions
or conditions apply only to the property or assets securing that Debt; (C) customary provisions in leases and other contracts restricting
the assignment thereof; and (D) restrictions and conditions set forth in the Loan Documents and the ABL Loan Documents.
9.2.8 Business Activities; Holdings. (x) Not, and not permit any of the Loan Parties and their Subsidiaries to, engage
in any line of business other than the businesses engaged in on the First Amendment Effective Date and businesses reasonably related or
reasonably complementary thereto, and (y) not permit Holdings to engage in any trade or business other than acting as a holding company
for the Equity Interests of the Loan Parties and any activities reasonably incidental thereto. Holdings shall not hold any cash or Cash
Equivalent Investment that is not subject to a Control Agreement.
9.2.9 Investments. Not, and not permit any of the Loan Parties and their Subsidiaries to, make or permit to exist any Investment
in any other Person, except the following:
(i) contributions by Holdings, Borrowers, or any Subsidiary to the capital of any Borrower;
(ii) Investments constituting Debt permitted by Section 9.2.1;
(iii) Contingent Liabilities constituting Debt permitted by Section 9.2.1 or Liens permitted by Section 9.2.2;
(iv) Cash Equivalent Investments;
(v) subject
to Section 9.1.11, bank deposits in the ordinary course of business;
(vi) Permitted Acquisitions;
(vii) non-cash consideration received pursuant to the consummation of asset dispositions and Permitted Acquisitions, in each case
permitted under this Agreement;
(viii) bank deposits established in the ordinary course of business in accordance with the Loan Documents;
(ix) Investments listed on Schedule 9.2.9 as of the First Amendment Effective Date;
(x) advances to officers, directors and employees of Holdings and its Subsidiaries in an aggregate amount not to exceed $100,000
at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes in the ordinary course of business;
(xi) Investments by Holdings and its Subsidiaries in the Loan Parties (other than Holdings);
(xii) prepaid expenses and extensions of trade credit, in each case, in the ordinary course of business and consistent with past
practices;
(xiii) Investments of cash into Quest Vertigent One, LLC to be used solely for the purpose of paying consultant fees and general
corporate expenses of Quest Vertigent One, LLC in an amount not to exceed $50,000 in any Fiscal Year; and
(xiv) other Investments not provided for in any other clause of this Section 11.9 in an aggregate amount not to exceed $250,000
so long as the Payment Conditions are satisfied immediately before and after giving effect to such Investment.
Notwithstanding the foregoing,
in no event shall any Investment be made in Quest Verging One, LLC other than pursuant to clause (xiii) of this Section 9.2.9.
9.2.10 Restriction of Amendments to Certain Documents. Not amend or otherwise modify, or waive any rights under any Warrants,
Related Agreement or Material Contract, other than immaterial amendments, modifications, and waivers not adverse to the interests of Administrative
Agent or Lenders.
9.2.11 Fiscal Year; Accounting Policies. Not, and not permit any of the Loan Parties and their Subsidiaries to (a) change
its Fiscal Year or its method of determining Fiscal Quarters or fiscal months or (b) make any change in its accounting policies that is
not required under GAAP.
9.2.12 Financial Covenants.
(i) Fixed Charge Coverage Ratio. Not permit the Fixed Charge Coverage Ratio for any Computation Period (commencing with
the Computation Period ending March 31, 2022) to be less than 1.10 to 1.00 for that Computation Period.
(ii) Senior Net Leverage Ratio. Not permit the Senior Net Leverage Ratio as of the last day of any Computation Period
to exceed the applicable ratio set forth below for that Computation Period:
Computation Period Ending |
Senior Net Leverage Ratio |
December 31, 2020 |
3.25 to 1.00 |
March 31, 2021, June 30, 2021 |
3.00 to 1.00 |
September 30, 2021, December 31, 2021 and March 31, 2022 |
5.75 to 1.00 |
June 30, 2022 and September 30, 2022 |
5.50 to 1.00 |
December 31, 2022 |
5.25 to 1.00 |
March 31, 2023, June 30, 2023 and September 30, 2023 |
5.00 to 1.00 |
December 31, 2023 and March 31, 2024 |
4.75 to 1.00 |
June 30, 2024 and September 30, 2024 |
4.50 to 1.00 |
December 31, 2024, March 31, 2025 and June 30, 2025 |
4.006.00
to 1.00 |
September
30, 2025 and December 31, 2025 |
5.25
to 1.00 |
March
31, 2026 and June 30, 2026 |
4.75
to 1.00 |
September
30, 2026 and December 31, 2026 |
4.25
to 1.00 |
March
31, 2027 and June 30, 2027 |
3.75
to 1.00 |
September
30, 20252027 and the last day of each Fiscal
Quarter thereafter |
3.50 to 1.00 |
Notwithstanding anything herein to the contrary,
(x) with respect to any provision of the Loan Documents that references compliance or satisfaction with the Senior Net Leverage
Ratio required by this Section 9.2.12(ii) prior to December 31, 2020, such provision shall be deemed to refer to the Senior Net Leverage
Ratio required as of December 31, 2020 and (y) the Borrowers and the Administrative Agent shall negotiate in good faith to reset the
maximum Senior Net Leverage Ratios permitted under this Section 9.2.12(ii) to reflect the impact of any Debt incurred in connection with
any Permitted Acquisition as permitted hereunder.
9.2.13 Compliance with Laws. Not, and shall not permit any of their Subsidiaries to, fail to comply with the laws, regulations
and executive orders referred to in Sections 8.1.31 and 8.1.32,
9.2.14 Equity Interests of Subsidiaries. Not permit any Loan Parties (excluding Holdings) or any of their Subsidiaries to
issue any additional Equity Interests, except to a Loan Party or other Subsidiary of a Loan Party and except for director’s qualifying
Equity Interests to the extent required under applicable law. Not permit Holdings to issue any Disqualified Equity Interest
9.2.15 Tax Consolidation. Not permit any Loan Party or any Subsidiary of any Loan Party to file or consent to the filing
of any consolidated income tax return with any Person other than Holdings (or a present or future direct or indirect parent of Holdings),
any other present or further Loan Party and/or any present or future Subsidiary of any Loan Party.
9.2.16 Bill-and-Hold Sales, Etc. Not permit any Loan Parties or any of their Subsidiaries to make a sale to any customer
on a bill-and-hold, guaranteed sale, sale and return, sale on approval, repurchase or return or consignment basis.
9.2.17 Acquisition Term Debt. Not permit any Loan Parties or any of their Subsidiaries to purchase or hold any of the Acquisition
Term Debt.
9.2.18 Fiscal Year End. Not change, or permit any Subsidiary of any Loan Party to change, its fiscal year end.
9.2.19 OFAC. Not (i) Become a Person whose property or interests in property are blocked or subject to blocking pursuant
to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Party and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit or Support Terrorism (66 Fed. Reg. 49079(2001)), (ii) engage in any dealings or transactions prohibited by Section 2 of such
executive order, or be otherwise associated with any such Person in any manner violative of such Section 2, or (iii) become a Person on
the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other U.S. Department
of Treasury’s Office of Foreign Assets Control regulation or executive order.
9.2.20 Prepayments.
(i) Voluntary
Prepayments. Not make any voluntary prepayment on the Acquisition Term Debt unless the following conditions have been satisfied:
(a) no Default or Event of Default has occurred and is continuing or would immediately result therefrom, (b) after giving effect to any
such voluntary prepayment, Excess Availability (as defined under the Intercreditor Agreement) is not less than $3,000,0006,000,000,
and (c) Borrower Representative has delivered a certificate to Administrative Agent certifying the satisfaction of the foregoing conditions.
(ii) Mandatory
Prepayments. Not make any mandatory prepayment in respect of Excess Cash Flow (as defined in the Acquisition Term Loan Agreement)
on the Acquisition Term Debt unless the following conditions have been satisfied: (a) no Default or Event of Default has occurred and
is continuing or would immediately result therefrom, (b) after giving effect to any such voluntary prepayment, Excess Availability (as
defined under the Intercreditor Agreement) is not less than $750,0003,000,000,
and (c) Borrower Representative has delivered a certificate to Administrative Agent certifying the satisfaction of the foregoing conditions;
provided, however, provided, that, to the extent the Loan Parties were not permitted to make such mandatory prepayment described above
because such conditions were not met, then the Loan Parties shall be permitted to make such payments on the next Business Day that such
conditions are satisfied so long as for the 30 day period ending on the date of such prepayment, Excess Availability (as defined in the
Intercreditor Agreement) has exceeded the sum of $750,0003,000,000.
9.2.21 Post-Closing.
(i) Insurance. No later than 10 Business Days after the Second Amendment Effective Date, the Loan Parties shall have delivered
updated insurance certificates indicating that PNC Bank, National Association, as Administrative Agent, together with its successors and
assigns, is named as additional insured on the certificate for liability coverage and as lender’s loss payee on the certificate
for property or casualty insurance.
(ii) Control Agreements. No later than 60 days after the Second Amendment Effective Date, the Loan Parties shall deliver to the
Administrative Agent the Control Agreements required pursuant to this Agreement with respect to the deposit accounts and securities accounts
of RSW and its Subsidiaries.
(iii) Collateral Access Agreements. No later than 60 days after the Second Amendment Effective Date, the Loan Parties shall deliver
to the Administrative Agent the landlord waivers required pursuant to this Agreement.
9.2.22 Permitted
ADM Factoring Arrangement. Not, without the prior, written consent of the Administrative Agent, amend or modify the terms of the Permitted
ADM Factoring Arrangement, including, without limitation, any instructions within the Permitted ADM Factoring Arrangement for remitting
payment for ADM Receivables purchased under the Permitted ADM Factoring Arrangement.
Article
X. CONDITIONS PRECEDENT
10.1 Initial Loans. Notwithstanding any other provision of this Agreement or any of the other Loan Documents, and without
affecting in any manner the rights of Agents or any Lender under the other sections of this Agreement, no Lender shall be required to
make the Loans, nor shall Issuing Bank be required to issue any Letter of Credit to be made or issued on the Closing Date unless and until
each of the following conditions has been and continues to be satisfied or waived by Majority Lenders:
10.1.1 Documentation. Administrative Agent shall have received, in form and substance satisfactory to Administrative Agent
and its counsel, a duly executed copy of this Agreement and the other Loan Documents, together with such additional documents, instruments,
opinions and certificates as Administrative Agent and its counsel shall require in connection therewith from time to time, all in form
and substance satisfactory to Administrative Agent and its counsel.
10.1.2 [Reserved].
10.1.3 No Litigation. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened
or proposed before any Governmental Authority to enjoin, restrain or prohibit, or to obtain damages in respect of, or which is related
to or arises out of, this Agreement or the consummation of the Initial Closing Date Transactions.
10.1.4 Closing Date – Minimum Excess Availability and Consolidated EBITDA.
Administrative Agent shall have received evidence
that the Borrowers have (i) Excess Availability of not less than $3,000,000 and (ii) Consolidated EBITDA of at least $2,000,000 for the
trailing twelve month period calculated on a consolidated basis for Holdings and its Subsidiaries as of June 30, 2020.
10.1.5 Repayment of Existing Debt. (i) Administrative Agent shall have received evidence that all Debt (including any commitments
therefor) not permitted under subsection 9.2.2 shall have been terminated and all outstanding amounts therefor shall have been
paid in full pursuant to documentation in form and substance satisfactory to Administrative Agent and (ii) satisfactory arrangements shall
have been made for the termination of all Liens granted in connection therewith.
10.1.6 Material Adverse Effect. As of the Closing Date, since December 31,
2019, there has not been any material adverse
change in the business, assets, financial condition, income, performance or operations of any Loan Party and no event or condition exists
which would be reasonably likely to result in any Material Adverse Effect.
10.1.7 UCC Filings and Lien Perfection. Administrative Agent shall have received acknowledgments of all filings, notifications
or recordations necessary to perfect its Liens in the Collateral, as well as UCC, intellectual property and other Lien searches and other
evidence satisfactory to Administrative Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens. Administrative
Agent shall have received all possessory collateral required to be delivered to Administrative Agent pursuant to the Loan Documents, duly
endorsed in a manner satisfactory to Administrative Agent indicating Administrative Agent’s security interest therein.
10.1.8 Officer’s Certificate. Administrative Agent shall have received a certificate, in form and substance satisfactory
to it, from a duly authorized officer of the Loan Parties certifying that (a) each Loan Party is now and, after giving effect to the initial
Loans to be made and the initial Letters of Credit to be issued hereunder and the consummation of each other Closing Date Transaction,
will be, Solvent; (b) no Default or Event of Default exists or would result after giving effect to the Initial Closing Date Transactions;
(c) the representations and warranties set forth in Section 8 are true and correct; and (d) the Loan Parties have complied with
all agreements and conditions to be satisfied by them under the Loan Documents.
10.1.9 Resolutions, Organizational Documents, Incumbency Certificate.
Administrative Agent shall have received a certificate
of a duly authorized officer of each Loan Party, certifying (a) that attached copies of such Loan Party’s Organizational Documents
are true and complete, and in full force and effect, without amendment except as shown, (b) that an attached copy of resolutions authorizing
execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted,
have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility, and (c) to the
title, name and signature of each Person authorized to sign the Loan Documents. Administrative Agent may conclusively rely on this certificate
until it is otherwise notified by the applicable Loan Party in writing.
10.1.10 Legal Opinion. Administrative Agent shall have received a written opinion of Olshan Frome Wolosky LLP, counsel to
the Loan Parties, each in form and substance satisfactory to Administrative Agent.
10.1.11 Good Standing Certificates. Administrative Agent shall have received copies of the charter documents of each Loan
Party, certified as appropriate by the Secretary of State or another official of such Loan Party’s jurisdiction of organization.
Administrative Agent shall have received good standing certificates for each Loan Party, issued by the Secretary of State or other appropriate
official of (a) such Loan Party’s jurisdiction of organization and (b) each jurisdiction where such Loan Party’s conduct of
business or ownership of Property necessitates qualification, except where failure to maintain such qualification could not reasonably
be expected to result in a Material Adverse Effect.
10.1.12 Insurance. Administrative Agent shall have received evidence of the insurance and additional insured, lender loss
payable and other endorsements required hereunder and under the other Loan Documents, and certificates of such insurance policies and/or
endorsements naming Administrative Agent, all in form and substance reasonably satisfactory to Administrative Agent as of the Second Amendment
Effective Date.
10.1.13 Due Diligence Financial Statements and Projections. Administrative Agent shall have completed its business, financial
and legal due diligence of Loan Parties, including:
(i) Administrative Agent or its Affiliates shall have conducted a field examination of the Borrowers’ assets, liabilities,
cash management systems, books and records, and the results of such field examination shall be reasonably satisfactory to Administrative
Agent in all respects;
(ii) Administrative Agent shall have received copies of (a) the internally prepared monthly financial statements of Holdings
and its Subsidiaries on a Consolidated basis for the calendar month ending May 31, 2020, (b) the audited Consolidated financial statements
of Holdings and its Subsidiaries for the fiscal year ended December 31, 2019, (c) the Projections of Holdings and its Subsidiaries (1)
on a monthly basis for the fiscal year ending December 31, 2020, and (2) on an annual basis for the fiscal years ending December 31, 2021
through December 31, 2024, and (d) evidence and materials satisfactory to Administrative Agent demonstrating after giving effect to the
Initial Closing Date Transactions, pro forma compliance with all covenants of this Agreement; and
(iii) Administrative Agent shall have received its internal credit committee approval.
10.1.14 Payment of Fees. The Loan Parties shall have paid all fees and expenses, including the reasonable and documented
fees and expenses of legal counsel, to be paid to Administrative Agent and Lenders on the Closing Date.
10.1.15 Borrowing Base Certificate. Collateral Agent shall have received a Borrowing Base Certificate prepared as of the
Closing Date or as of such other date as Collateral Agent may elect.
10.1.16 Third Party Waivers and Consents. Administrative Agent shall have received, in form and substance reasonably satisfactory
to Administrative Agent, all consents, waivers, acknowledgments and other agreements from third persons (including, without limitation,
customs brokers) and Governmental Authorities which Administrative Agent may deem necessary in order to permit, protect and perfect its
Lien upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Loan Documents.
10.1.17 USA PATRIOT Act. The Lenders shall have received all documentation and other information required by regulatory authorities
under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
10.1.18 Deposit and Lockbox Accounts. The Loan Parties shall have (i) opened their main depository account with PNC and (ii)
opened lockbox and blocked account agreements reasonably acceptable to the Administrative Agent, including a springing deposit account
Control Agreement with the Administrative Agent in favor of the Administrative Agent.
10.1.19 Perfection Certificate. Administrative Agent shall have received a Questionnaire and Perfection Certificate duly
executed by the Loan Parties, in form and substance acceptable to the Agent.
10.2 Conditions Precedent to All Loans and Credit Accommodations. No Lender shall be required to make any Loan, nor shall
Issuing Bank be required to issue any Letter of Credit unless and until the following conditions are satisfied:
10.2.1 No Default or Event of Default. No Default or Event of Default shall exist at the time of, or result from, such funding,
issuance or grant; and
10.2.2 Representations and Warranties. The representations and warranties of each Loan Party and its Subsidiaries in the
Loan Documents shall be true and correct in all material respects (or, as to any representations and warranties which are subject to a
materiality or Material Adverse Effect qualifier, true and correct in all respects) on the date of, and upon giving effect to, such funding,
issuance or grant (except for representations and warranties that expressly relate to an earlier date or for such changes as provided
in Section 8.2).
Article
XI. EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT
11.1 Events of Default. The occurrence of one or more of the following events shall constitute an “Event of Default”:
11.1.1 Payment of Obligations. The Loan Parties shall fail to pay any of the Obligations hereunder or under any Note (i)
consisting of principal on the due date thereof or (ii) consisting of interest, fees or any other amount, within five (5) days after the
due date thereof (in each instance, whether due at stated maturity, on demand, upon acceleration or otherwise).
11.1.2 Misrepresentations. Any representation, warranty or other statement made or furnished to Administrative Agent or
any Lender by or on behalf of any Loan Party in this Agreement, any of the other Loan Documents or any instrument, certificate or financial
statement furnished in compliance with or in reference thereto proves to have been false or misleading in any material respect when made,
furnished or reaffirmed pursuant to Section 8.2 hereof.
11.1.3 Breach
of Specific Covenants. Any Loan Party shall fail or neglect to perform, keep or observe any covenant contained in any of the following
Sections or subsections: 6.2 (Other Collateral), 6.3 (Lien Perfection; Further Assurances), 7.1.1 (Location
of Collateral), 7.1.2 (Insurance of Collateral), 7.2.4 (Maintenance of Blocked Accounts), 7.2.5 (Collection of
Accounts; Proceeds of Collateral), 9.1.1 (Visits and Inspections; Lender Meeting), 9.1.3 (Financial Statements), 9.1.4
(Borrowing Base Certificates), 9.1.5 (Landlord, Processor and Storage Agreements), 9.1.7 (Projections), 9.1.8
(Subsidiaries), 9.1.9 (Deposit and Brokerage Accounts), 9.1.10 (Use of Proceeds), 9.1.13 (Preservation of Existence),
9.1.14 (Maintenance of Properties, Permits, Etc.), 9.1.15 (SBA PPP Loans), 9.1.16
(Acquisition Term Debt), 9.1.21 (Permitted ADM Factoring Arrangement), or 9.2 (Negative
Covenants) hereof on the date that the Loan Parties are required to perform, keep or observe such covenant.
11.1.4 Breach of Other Covenants. The Loan Parties shall fail or neglect to perform, keep or observe any covenant contained
in this Agreement (other than a covenant which is dealt with specifically elsewhere in Section 11.1 hereof) or any other Loan Document
and the breach of such other covenant is not cured to Administrative Agent’s satisfaction within thirty (30) days after the sooner
to occur of any Loan Party’s receipt of notice of such breach from Administrative Agent or the date on which such failure or neglect
first becomes known to any officer of any Loan Party.
11.1.5 Acquisition Term Loan Documents. After giving effect to any applicable cure periods, any event of default shall have
occurred under any of the Acquisition Term Loan Documents.
11.1.6 [Reserved].
11.1.7 Other Defaults. There shall occur any default or event of default on the part of any Loan Party under any agreement,
document or instrument to which such Loan Party is a party or by which such Loan Party or any of its Property is bound, evidencing or
relating to any Debt (other than the Obligations) with an outstanding principal balance in excess of $750,000, if the payment or maturity
of such Debt is or could be accelerated in consequence of such event of default or demand for payment of such Debt is made or could be
made in accordance with the terms thereof.
11.1.8 Uninsured Losses. Any material loss, theft, damage or destruction of any portion of the Collateral having a fair
market value of $750,000, in the aggregate, if not fully covered (subject to such deductibles and self-insurance retentions as Administrative
Agent shall have permitted) by insurance.
11.1.9 Insolvency and Related Proceedings. An Insolvency Proceeding is commenced by a Loan Party; a Loan Party makes an
offer of settlement, extension or composition to its unsecured creditors generally; a trustee is appointed to take possession of any substantial
Property of or to operate any of the business of a Loan Party; or an Insolvency Proceeding is commenced against a Loan Party and such
Loan Party consents to institution of the proceeding, the petition commencing the proceeding is not timely contested by such Loan Party,
the petition is not dismissed within forty-five (45) days after filing, or an order for relief is entered in the proceeding.
11.1.10 Business Disruption; Condemnation. There shall occur a cessation of a substantial part of the business of Loan Party
which could reasonably be expected to have a Material Adverse Effect; or any Loan Party shall suffer the loss or revocation of any material
license or permit now held or hereafter acquired by any Loan Party which loss could reasonably be expected to have a Material Adverse
Effect; or any Loan Party shall be enjoined, restrained or in any way prevented by court, governmental or administrative order from conducting
all or any material part of its business affairs which injunction, restraint or other prevention could reasonably be expected to have
a Material Adverse Effect; or any material lease or agreement pursuant to which any Loan Party leases, uses or occupies any Property shall
be canceled or terminated prior to the expiration of its stated term, the cancellation or termination of which could not reasonably be
expected to have a Material Adverse Effect; or any portion of the Collateral shall be taken through condemnation or the value of such
Property shall be impaired through condemnation which condemnation or impairment could reasonably be expected to have a Material Adverse
Effect.
11.1.11 Change of Control. A Change of Control shall occur.
11.1.12 Uninsured Losses. Any material loss, theft, damage or destruction of any portion of the Collateral having a fair
market value of $750,000 in the aggregate, if not fully covered (subject to such deductibles and self-insurance retentions as Administrative
Agent shall have permitted) by insurance.
11.1.13 ERISA. A Reportable Event shall occur which, in Administrative Agent’s determination, constitutes grounds for
the termination by the Pension Benefit Guaranty Corporation of any Plan or for the appointment by the appropriate United States district
court of a trustee for any Plan, or any Plan shall be terminated or any such trustee shall be requested or appointed, or if any Loan Party
is in “default” (as defined in Section 4219I(5) of ERISA) with respect to payments to a Multiemployer Plan resulting from
such Loan Party’s complete or partial withdrawal from such Plan and any such event could reasonably be expected to have a Material
Adverse Effect.
11.1.14 Challenge to Agreement. Any Loan Party shall challenge or contest in any action, suit or proceeding the validity
or enforceability of this Agreement or any of the other Loan Documents, the legality or enforceability of any of the Obligations or the
perfection or priority of any Lien granted to Administrative Agent or this Agreement or any of the other Loan Documents, Obligations or
perfection or priority of any Lien granted to Administrative Agent shall cease to actually be legal and enforceable (other than as a result
of any action or inaction by Administrative Agent or any Lender).
11.1.15 Repudiation of or Default under Guaranty Agreement. Any Guarantor shall revoke or attempt to revoke the Guaranty
Agreement signed by such Guarantor or shall repudiate such Guarantor’s liability thereunder or shall be in default under the terms
thereof.
11.1.16 Criminal Forfeiture. Any Loan Party shall be criminally indicted or convicted under any law that could lead to a
forfeiture of any Property of any Loan Party.
11.1.17 Judgments. Any money judgment, writ of attachment or similar process (collectively, “Judgments”)
is issued or rendered against any Loan Party, or any of their respective Property (i) in the case of money judgments, in an amount of
$750,000 or more for all such judgments, attachments or processes in the aggregate, in each case in excess of any applicable insurance
with respect to which the insurer has admitted liability, and (ii) in the case of non-monetary Judgments, such Judgment or Judgments (in
the aggregate) could reasonably be expected to have a Material Adverse Effect, in each case which Judgment is not stayed, released or
discharged within thirty (30) days.
11.1.18 Material Adverse Effect. Any event occurs which reasonably could be expected to have a Material Adverse Effect.
11.1.19 Intercreditor
Agreement. The provisions of the Intercreditor Agreement, the Green Remedies Seller Note SubordinatinSubordination
Agreement or any other intercreditor or subordination agreement in favor of the Administrative Agent in respect of the Obligations
shall for any reason be revoked or invalidated, or otherwise cease to be in full force and effect, or the Acquisition Term Agent, any
lender under the Acquisition Term Loan Agreement or any other person party to such agreements shall contest in any manner the validity
or enforceability thereof or deny that it has any further obligation thereunder, or the Obligations for any reason shall not have the
priority contemplated by this Agreement, the Intercreditor Agreement, the Green Remedies Seller Note Subordination Agreement or any other
intercreditor or subordination described in this Section 11.1.19, respectively.
11.2 Acceleration of the Obligations. Upon or at any time after the occurrence and during the continuance of an Event
of Default, (i) the Revolving Credit Commitments shall, at the option of Administrative Agent or Majority Lenders, be terminated and/or
(ii) Administrative Agent or Majority Lenders may declare all or any portion of the Obligations at once due and payable without presentment,
demand protest or further notice by Administrative Agent or any Lender, and the Loan Parties shall forthwith pay to Administrative Agent
the full amount of such Obligations, provided that, upon the occurrence of an Event of Default specified in subsection 11.1.9
hereof, the Revolving Credit Commitments shall automatically be terminated and all of the Obligations shall become automatically due and
payable, in each case without declaration, notice or demand by Administrative Agent or any Lender.
11.3 Other Remedies. Upon the occurrence and during the continuance of an Event of Default, Administrative Agent shall
have and may exercise from time to time the following other rights and remedies:
11.3.1 All of the rights and remedies of a secured party under the UCC or under other Applicable Law, and all other legal and equitable
rights to which Administrative Agent or Lenders may be entitled, all of which rights and remedies shall be cumulative and shall be in
addition to any other rights or remedies contained in this Agreement or any of the other Loan Documents, and none of which shall be exclusive.
11.3.2 The right to take immediate possession of the Collateral, and to (i) require each Loan Party and each of its Subsidiaries
to assemble the Collateral, at the Loan Parties’ expense, and make it available to Administrative Agent at a place designated by
Administrative Agent which is reasonably convenient to both parties, and (ii) enter any premises where any of the Collateral shall be
located and to keep and store the Collateral on such premises until sold (and if such premises are owned by any Loan Party or Subsidiary
of a Loan Party, the Loan Parties shall not, and shall not permit any of their Subsidiaries to, charge Administrative Agent for such entry
and storage).
11.3.3 The right to sell or otherwise dispose of all or any Collateral in its then current condition, or after any further manufacturing
or processing thereof, at public or private sale or sales, with such notice as may be required by law, in lots or in bulk, for cash or
on credit, all as Administrative Agent, in its sole discretion, may deem advisable. Administrative Agent may, at Administrative Agent’s
option, disclaim any and all warranties regarding the Collateral in connection with any such sale. The Loan Parties agree that ten (10)
days’ prior written notice of any public or private sale or other disposition of Collateral shall be reasonable notice thereof,
and such sale shall be at such locations as Administrative Agent may designate in such notice. Administrative Agent shall have the right
to conduct such sales on any Loan Party’s or any of its Subsidiaries’ premises, without charge therefor, and such sales may
be adjourned from time to time in accordance with Applicable Law. Administrative Agent shall have the right to sell, lease or otherwise
dispose of the Collateral, or any part thereof, for cash, credit or any combination thereof, and Administrative Agent, on behalf of Lenders,
may purchase all or any part of the Collateral at public or, if permitted by law, private sale and, in lieu of actual payment of such
purchase price, may set off the amount of such price against the Obligations. The proceeds realized from the sale of any Collateral shall
be applied in accordance with subsection 4.4.2. If any deficiency shall arise, the Loan Parties shall remain jointly and severally
liable to Administrative Agent and Lenders therefor.
11.3.4 Administrative Agent is hereby granted a license or other right to use, without charge, each Loan Party’s and each
of its Subsidiaries’ labels, patents, copyrights, licenses, rights of use of any name, trade secrets, trade names, trademarks and
advertising matter, or any Property of a similar nature, as it pertains to the Collateral, in completing, advertising for sale and selling
any Collateral and each Loan Party’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements
shall inure to Administrative Agent’s benefit.
11.3.5 Administrative Agent may, at its option, require the Loan Parties to deposit with Administrative Agent funds equal to 103%
of the LC Amount and, if the Loan Parties fail to promptly make such deposit, Administrative Agent may advance such amount as a Revolving
Credit Loan (whether or not an Overadvance is created thereby). Each such Revolving Credit Loan shall be secured by all of the Collateral
and shall constitute a Base Rate Revolving Credit Loan. Any such deposit or advance shall be held by Administrative Agent as a reserve
to fund future drawings against such Letters of Credit. At such time as all Letters of Credit have been drawn upon or expired, any amounts
remaining in such reserve shall be applied against any outstanding Obligations, or, if all Obligations have been indefeasibly paid in
full, returned to the Loan Parties.
11.4 Setoff and Sharing of Payments. In addition to any rights now or hereafter granted under Applicable Law and not by
way of limitation of any such rights, during the continuance of any Event of Default, each Lender is hereby authorized by the Loan Parties
at any time or from time to time, with prior written consent of Administrative Agent and with reasonably prompt subsequent notice to the
Loan Parties (any prior or contemporaneous notice to the Loan Parties being hereby expressly waived) to setoff and to appropriate and
to apply any and all (i) balances held by such Lender at any of its offices for the account of any Loan Party or any of its Subsidiaries
(regardless of whether such balances are then due to a Loan Party or its Subsidiaries), and (ii) other property at any time held or owing
by such Lender to or for the credit or for the account of any Loan Party or any of its Subsidiaries, against and on account of any of
the Obligations. Except with respect to setoff amounts applied to Product Obligations, any Lender exercising a right to setoff shall,
to the extent the amount of any such setoff exceeds its Pro Rata Percentage of the amount set off, purchase for cash (and the other Lenders
shall sell) interests in each such other Lender’s pro rata share of the Obligations as would be necessary to cause such Lender to
share such excess with each other Lender in accordance with their respective Pro Rata Percentages. Each Loan Party agrees, to the fullest
extent permitted by law, that any Lender may exercise its right to setoff with respect to amounts in excess of its pro rata share of the
Obligations and upon doing so shall deliver such excess to Administrative Agent for the benefit of all Lenders in accordance with the
Pro Rata Percentages.
11.5 Remedies Cumulative; No Waiver. All covenants, conditions, provisions, warranties, guaranties, indemnities, and other
undertakings of the Loan Parties contained in this Agreement and the other Loan Documents, or in any document referred to herein or contained
in any agreement supplementary hereto or in any schedule or in any Guaranty Agreement or Pledge Agreement given to Administrative Agent
or any Lender or contained in any other agreement between any Lender and the Loan Parties or between Administrative Agent and the Loan
Parties heretofore, concurrently, or hereafter entered into, shall be deemed cumulative to and not in derogation or substitution of any
of the terms, covenants, conditions, or agreements of the Loan Parties herein contained. The failure or delay of Administrative Agent
or any Lender to require strict performance by the Loan Parties of any provision of this Agreement or to exercise or enforce any rights,
Liens, powers, or remedies hereunder or under any of the aforesaid agreements or other documents or security or Collateral shall not operate
as a waiver of such performance, Liens, rights, powers and remedies, but all such requirements, Liens, rights, powers, and remedies shall
continue in full force and effect until all Loans and other Obligations owing or to become owing from the Loan Parties to Administrative
Agent and each Lender have been fully satisfied. None of the undertakings, agreements, warranties, covenants and representations of the
Loan Parties contained in this Agreement or any of the other Loan Documents and no Default or Event of Default by the Loan Parties under
this Agreement or any other Loan Documents shall be deemed to have been suspended or waived by Lenders, unless such suspension or waiver
is by an instrument in writing specifying such suspension or waiver and is signed by a duly authorized representative of Administrative
Agent and directed to the Loan Parties.
11.6 Curative Equity.
(a) Subject to the limitations set forth in Section 11.6(d), Borrowers may cure (and will be deemed to have cured) an Event of Default
arising out of a breach of any of the financial covenants set forth in Section 9.2.12 (each such financial covenant, a “Specified
Financial Covenant”; each such Event of Default, a “Specified Financial Covenant Default”) if Borrowers receive the
cash proceeds of Curative Equity within ten (10) Business Days after the earliest date on which each applicable Specified Financial Covenant
is required to be tested for the applicable Computation Period pursuant to this Agreement (the “Cure Period”).
(b) Borrowers shall provide Administrative Agent with irrevocable written notice during the Cure Period of their intent to cure the
Specified Financial Covenant(s) with Curative Equity (the “Cure Notice”) and shall promptly notify Administrative Agent of
their receipt of any proceeds of Curative Equity and application of the proceeds of such Curative Equity in accordance with Section 4.3
so long as any payments on the Acquisition Term Debt result in a permanent reduction in Acquisition Term Debt.
(c) Upon receipt by the Borrowers of the Curative Equity (and application of the proceeds of such Curative Equity in accordance with
Section 4.3) and delivery of a certificate by Borrower Representative to Administrative Agent certifying as to the amount of the proceeds
of any Curative Equity and that those proceeds have been applied in accordance with Section 11.6(b) in an amount equal to the amount which
if applied to increase EBITDA for the Computation Period would result in the Borrowers being in pro forma compliance with the applicable
Specified Financial Covenant(s) (which certificate shall also set forth the calculation of the applicable Specified Financial Covenant
being cured in reasonable detail), then each applicable Specified Financial Covenant Default will be deemed cured with no further action
required by the Administrative Agent. Before the date of the delivery of that certificate, any Specified Financial Covenant Default that
has occurred and is continuing will be deemed to be continuing, and, as a result, the Lenders will have no obligation to make additional
loans or otherwise extend additional credit under this Agreement. If Borrowers do not cure a Specified Financial Covenant Default as provided
in this Section 11.6, then that Specified Financial Covenant Default will continue unless waived in writing by the Administrative Agent
in accordance with this Agreement.
(d) To the extent that proceeds of Curative Equity are received with respect to any Fiscal Quarter, those proceeds will be deemed to
be EBITDA for purposes of determining compliance with the Specified Financial Covenant(s) for that Fiscal Quarter and subsequent periods
that include that Fiscal Quarter. Notwithstanding any provision of this Agreement to the contrary, (i) Borrowers’ rights under this
Section 11.6 (A) may be exercised no more than four times during the term of this Agreement; (B) may be exercised no more than twice in
any period of four Fiscal Quarters; (C) may not be exercised in two consecutive Fiscal Quarters and (D) may not be exercised if the amount
of proceeds of the Curative Equity, together with the aggregate amount of proceeds of all prior Curative Equity, exceeds 20% of Consolidated
EBITDA (calculated prior to giving effect to such Curative Equity) in any trailing twelve month period; (ii) the amount of proceeds of
any Curative Equity may not be greater than or less than the amount required to cause Borrowers to be in compliance with each applicable
Specified Financial Covenant(s) as at the end of the applicable Computation Period (without giving effect to any prepayment of Debt);
and (iii) the proceeds of Curative Equity will be disregarded for purposes of determining EBITDA for any pricing, financial covenant-based
conditions, or baskets with respect to the covenants contained in this Agreement and there will be no pro forma reduction in Debt with
the proceeds of any Curative Equity for determining compliance with the Specified Financial Covenants or for determining any pricing,
financial covenant-based conditions, or baskets with respect to the covenants contained in this Agreement, in each case in the Fiscal
Quarter in which that Curative Equity is used and each Computation Period ending on the last day of the following three Fiscal Quarters.
Article
XII. AGENTS
12.1 Authorization and Action. Each Lender hereby appoints and authorizes Administrative Agent and Collateral Agent to
take such action on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to such
Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. Each Lender hereby acknowledges
that Agents shall not have by reason of this Agreement assumed a fiduciary relationship in respect of any Lender. In performing its functions
and duties under this Agreement, each Agent shall act solely as agent of Lenders and shall not assume, or be deemed to have assumed, any
obligation toward, or relationship of agency or trust with or for, the Loan Parties. As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including without limitation enforcement and collection of the Notes), each Agent may, but shall
not be required to, exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of Majority Lenders (or a greater or lesser number of Lenders
as required in this Agreement), whenever such instruction shall be requested by such Agent or required hereunder, or a greater or lesser
number of Lenders if so required hereunder, and such instructions shall be binding upon all Lenders; provided that each Agent shall
be fully justified in failing or refusing to take any action which exposes such Agent to any liability or which is contrary to this Agreement,
the other Loan Documents or Applicable Law, unless such Agent is indemnified to its satisfaction by the other Lenders against any and
all liability and expense which it may incur by reason of taking or continuing to take any such action. If any Agent seeks the consent
or approval of Majority Lenders (or a greater or lesser number of Lenders as required in this Agreement), with respect to any action hereunder,
such Agent shall send notice thereof to each Lender and shall notify each Lender at any time that Majority Lenders (or such greater or
lesser number of Lenders) have instructed such Agent to act or refrain from acting pursuant hereto.
12.2 Agents’ Reliance, Etc. Neither Agent nor any of its respective Related Parties shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this Agreement or the other Loan Documents, except for its or their
own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, each Agent and its Related Parties:
(i) may treat each Lender party hereto as the holder of Obligations until such Agent receives written notice of the assignment or transfer
of such Lender’s portion of the Obligations signed by such Lender and in form reasonably satisfactory to Agent; (ii) may consult
with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii) makes no warranties or representations
to any Lender and shall not be responsible to any Lender for any recitals, statements, warranties or representations made in or in connection
with this Agreement or any other Loan Documents; (iv) shall not have any duty beyond such Agent’s customary practices in respect
of loans in which such Agent is the only lender, to ascertain or to inquire as to the performance or observance of any of the terms, covenants
or conditions of this Agreement or the other Loan Documents on the part of the Loan Parties, to inspect the property (including the books
and records) of the Loan Parties, to monitor the financial condition of the Loan Parties or to ascertain the existence or possible existence
or continuation of any Default or Event of Default; (v) shall not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; (vi) shall not be liable to any Lender for any action taken, or inaction, by such Agent upon the instructions
of Majority Lenders (or a greater or lesser number of Lenders as required in this Agreement) pursuant to Section 12.1 hereof or
refraining to take any action pending such instructions; (vii) shall not be liable for any apportionment or distributions of payments
made by it in good faith pursuant to Section 4 hereof; (viii) shall incur no liability under or in respect of this Agreement or
the other Loan Documents by acting upon any notice, consent, certificate, message or other instrument or writing (which may be by telephone,
facsimile, telegram, cable, e-mail transmission or telex) believed in good faith by it to be genuine and signed or sent by the proper
party or parties; and (ix) may assume that no Event of Default has occurred and is continuing, unless such Agent has actual knowledge
of the Event of Default, has received notice from the Loan Parties or the Loan Parties’ independent certified public accountants
stating the nature of the Event of Default, or has received notice from a Lender stating the nature of the Event of Default and that such
Lender considers the Event of Default to have occurred and to be continuing. In the event any apportionment or distribution described
in clause (vii) above is determined to have been made in error, the sole recourse of any Person to whom payment was due but not made shall
be to recover from the recipients of such payments any payment in excess of the amount to which they are determined to have been entitled.
12.3 PNC and Affiliates. With respect to its commitment hereunder to make Loans, PNC shall have the same rights and powers
under this Agreement and the other Loan Documents as any other Lender and may exercise the same as though it were not an Agent; and the
terms “Lender,” “Lenders” or “Majority Lenders” shall, unless otherwise expressly indicated, include
PNC in its individual capacity as a Lender. PNC and its Affiliates may lend money to, and generally engage in any kind of business with,
the Loan Parties, and any Person who may do business with or own Equity Interests of any Loan Party, all as if PNC were not an Agent and
without any duty to account therefor to any other Lender.
12.4 Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon any Agent or
any other Lender and based on the financial statements referred to herein and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under this Agreement. No Agent shall have any duty or responsibility,
either initially or on an ongoing basis, to provide any Lender with any credit or other similar information regarding the Loan Parties.
12.5 Indemnification. Lenders agree to indemnify Agents (to the extent not reimbursed by the Loan Parties), in accordance
with their respective Aggregate Percentages, from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by
such Agent under this Agreement; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse each Agent promptly upon demand for its ratable
share, as set forth above, of any out-of-pocket expenses (including attorneys’ fees) incurred by such Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiation, legal proceedings
or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement and each other Loan Document, to the
extent that such Agent is not reimbursed for such expenses by the Loan Parties. If after payment and distribution of any amount by any
Agent to Lenders, any Lender or any other Person, including the Loan Parties, any creditor of any Loan Party, a liquidator, administrator
or trustee in bankruptcy, recovers from such Agent any amount found to have been wrongfully paid to such Agent or disbursed by such Agent
to Lenders, then Lenders, in accordance with their respective Aggregate Percentages, shall reimburse such Agent for all such amounts.
The obligations of Lenders under this Section 12.5 shall survive the payment in full of all Obligations and the termination of
this Agreement.
12.6 Rights and Remedies to Be Exercised by Administrative Agent Only. Each Lender agrees that, except as set forth in
Section 11.4, no Lender shall have any right individually (i) to realize upon the security created by this Agreement or any other
Loan Document, (ii) to enforce any provision of this Agreement or any other Loan Document, or (iii) to make demand under this Agreement
or any other Loan Document.
12.7 Agency Provisions Relating to Collateral. Each Lender authorizes and ratifies each Agent’s entry into this
Agreement and the Security Documents for the benefit of Lenders. Each Lender agrees that any action taken by any Agent with respect to
the Collateral in accordance with the provisions of this Agreement or the Security Documents, and the exercise by any Agent of the powers
set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon
all Lenders. Administrative Agent is hereby authorized on behalf of all Lenders, without the necessity of any notice to or further consent
from any Lender to take any action with respect to any Collateral or the Loan Documents which may be necessary to perfect and maintain
perfected Administrative Agent’s Liens upon the Collateral, for its benefit and the ratable benefit of Lenders. Lenders hereby irrevocably
authorize Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by Administrative Agent upon
any Collateral (i) upon termination of this Agreement and payment and satisfaction of all Obligations; or (ii) constituting property being
sold or disposed of if the Loan Parties certify to Administrative Agent that the sale or disposition is made in compliance with subsection
9.2.8 hereof (and Administrative Agent may rely conclusively on any such certificate, without further inquiry); or (iii) constituting
property in which no Loan Party owned any interest at the time the Lien was granted or at any time thereafter; or (iv) in connection with
any foreclosure sale or other disposition of Collateral after the occurrence and during the continuation of an Event of Default; or (v)
if approved, authorized or ratified in writing by Administrative Agent at the direction of all Lenders. Upon request by Administrative
Agent at any time, Lenders will confirm in writing Administrative Agent’s authority to release particular types or items of Collateral
pursuant hereto. No Agent shall have any obligation whatsoever to any Lender or to any other Person to assure that the Collateral exists
or is owned by any Loan Party or is cared for, protected or insured or has been encumbered or that the Liens granted to Administrative
Agent herein or pursuant to the Security Documents have been properly or sufficiently or lawfully created, perfected, protected or enforced
or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or
fidelity, or to continue exercising, any of its rights, authorities and powers granted or available to each Agent in this Section 12.7
or in any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related
thereto, each Agent may act in any manner it may deem appropriate, in its sole discretion, but consistent with the provisions of this
Agreement, including given each Agent’s own interest in the Collateral as a Lender and that no Agent shall have any duty or liability
whatsoever to any Lender.
12.8 Resignation of Agent; Appointment of Successor. Each Agent may resign as Administrative Agent or Collateral Agent
by giving not less than thirty (30) days’ prior written notice to Lenders and the Loan Parties. If Administrative Agent shall resign
under this Agreement, then, (i) subject to the consent of the Loan Parties (which consent shall not be unreasonably withheld and which
consent shall not be required during any period in which a Default or an Event of Default exists), Majority Lenders shall appoint from
among Lenders a successor Administrative Agent for Lenders or (ii) if a successor Administrative Agent shall not be so appointed and approved
within the thirty (30) day period following Administrative Agent’s notice to Lenders and the Loan Parties of its resignation, then
Administrative Agent shall appoint a successor agent who shall serve as Administrative Agent until such time as Majority Lenders appoint
a successor agent, subject to the Loan Parties’ consent as set forth above. Upon its appointment, such successor agent shall succeed
to the rights, powers and duties of Administrative Agent and the term “Administrative Agent” shall mean such successor effective
upon its appointment, and the former Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated
without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement. If Collateral
Agent shall resign under this Agreement, then Administrative Agent shall assume the rights, powers and duties of Collateral Agent hereunder;
provided, that, Administrative Agent may, in its discretion, appoint another Lender as the successor Collateral Agent, in which
case such successor Collateral Agent shall assume the rights, powers and duties of Collateral Agent hereunder. After the resignation of
any Agent hereunder, the provisions of this Section 12 shall inure to the benefit of such former Agent and such former Agent shall
not by reason of such resignation be deemed to be released from liability for any actions taken or not taken by it while it was an Agent
under this Agreement.
12.9 Audit and Examination Reports; Disclaimer by Lenders. By signing this Agreement, each Lender:
(i) is deemed to have requested that each Agent furnish such Lender, promptly after it becomes available, a copy of each audit
or examination report (each a “Report” and collectively, “Reports”) prepared by or on behalf of
such Agent;
(ii) expressly agrees and acknowledges that Agents (i) do not make any representation or warranty as to the accuracy of any Report
and (ii) shall not be liable for any information contained in any Report;
(iii) expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that any Agent or other
party performing any audit or examination will inspect only specific information regarding the Loan Parties and will rely significantly
upon the Loan Parties’ books and records as well as on representations of the Loan Parties’ personnel;
(iv) agrees to keep all Reports confidential and strictly for its internal use, and not to distribute except to its participants,
or use any Report in any other manner, in accordance with the provisions of Section 13.14; and
(v) without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (a) to hold
each Agent and any such other Lender preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying
Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying Lender has
made or may make to the Loan Parties, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase
of, any loan or other obligation of the Loan Parties; and (b) to pay and protect, and indemnify, defend and hold each Agent and any such
other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses and other amounts
(including attorneys’ fees and expenses) incurred by such Agent and any such other Lender preparing a Report as the direct or indirect
result of any third parties who might obtain all or part of any Report through the indemnifying Lender.
12.10 Administrative Agent’s Right to Purchase Commitments. Administrative Agent shall have the right, but shall
not be obligated, at any time upon written notice to any Lender and with the consent of such Lender, which may be granted or withheld
in such Lender’s sole discretion, to purchase for Administrative Agent’s own account all of such Lender’s interests
in this Agreement, the other Loan Documents and the Obligations, for the face amount of the outstanding Obligations owed to such Lender,
including without limitation all accrued and unpaid interest and fees.
12.11 Intercreditor Agreement. Each Lender hereby authorizes and directs the Administrative Agent to enter into the Intercreditor
Agreement on its behalf, perform the Intercreditor Agreement on its behalf and take any actions thereunder as determined by the Administrative
Agent to be necessary or advisable to protect the interest of the Lenders, and each Lender agrees to be bound by the terms of the Intercreditor
Agreement.
Article
XIII. MISCELLANEOUS
13.1 Power of Attorney. Each Loan Party hereby irrevocably designates, makes, constitutes and appoints Administrative
Agent (and all Persons designated by Administrative Agent) as such Loan Party’s true and lawful attorney (and agent-in-fact), solely
with respect to the matters set forth in this Section 13.1, and Administrative Agent, or Administrative Agent’s agent, may,
without notice to any Loan Party and in any Loan Party’s or Administrative Agent’s name, but at the cost and expense of the
Loan Parties:
13.1.1 At such time or times as Administrative Agent or such agent, in its sole discretion, may determine, endorse any Loan Party’s
name on any checks, notes, acceptances, drafts, money orders or any other evidence of payment or proceeds of the Collateral which come
into the possession of Administrative Agent or under Administrative Agent’s control.
13.1.2 At such time or times upon or after the occurrence and during the continuance of an Event of Default, as Administrative
Agent or its agent in its sole discretion may determine: (i) demand payment of the Accounts from the Account Debtors, enforce payment
of the Accounts by legal proceedings or otherwise, and generally exercise all of any Loan Party’s rights and remedies with respect
to the collection of the Accounts; (ii) settle, adjust, compromise, discharge or release any of the Accounts or other Collateral or any
legal proceedings brought to collect any of the Accounts or other Collateral; (iii) sell or assign any of the Accounts and other Collateral
upon such terms, for such amounts and at such time or times as Administrative Agent deems advisable, and at Administrative Agent’s
option, with all warranties regarding the Collateral disclaimed; (iv) take control, in any manner, of any item of payment or proceeds
relating to any Collateral; (v) prepare, file and sign any Loan Party’s name to a proof of claim in bankruptcy or similar document
against any Account Debtor or to any notice of lien, assignment or satisfaction of lien or similar document in connection with any of
the Collateral; (vi) receive, open and dispose of all mail addressed to any Loan Party and notify postal authorities to change the address
for delivery thereof to such address as Administrative Agent may designate; (vii) endorse the name of any Loan Party upon any of the items
of payment or proceeds relating to any Collateral and deposit the same to the account of Administrative Agent on account of the Obligations;
(viii) endorse the name of any Loan Party upon any chattel paper, document, instrument, invoice, freight bill, bill of lading or similar
document or agreement relating to the Accounts, Inventory and any other Collateral; (ix) use any Loan Party’s stationery and sign
the name of any Loan Party to verifications of the Accounts and notices thereof to Account Debtors; (x) use the information recorded on
or contained in any data processing equipment and Computer Hardware and Software relating to the Accounts, Inventory, Equipment and any
other Collateral; (xi) make and adjust claims under policies of insurance; and (xii) do all other acts and things necessary, in Administrative
Agent’s determination, to fulfill any Loan Party’s obligations under this Agreement.
The power of attorney granted hereby shall constitute
a power coupled with an interest and shall be irrevocable.
13.2 INDEMNITY. EACH LOAN PARTY SHALL INDEMNIFY EACH ARRANGER, EACH AGENT (AND ANY SUB-AGENT THEREOF), EACH LENDER AND
THE ISSUING BANK, AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (EACH SUCH PERSON BEING CALLED AN “INDEMNIFIED PERSON”)
AGAINST, AND HOLD EACH INDEMNIFIED PERSON HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES, PENALTIES, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES, AND DISBURSEMENTS (INCLUDING THE REASONABLE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNIFIED
PERSON), INCURRED BY ANY INDEMNIFIED PERSON OR ASSERTED AGAINST ANY INDEMNIFIED PERSON BY ANY THIRD PARTY OR BY ANY BORROWER OR ANY OTHER
LOAN PARTY ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF (I) THE EXECUTION OR DELIVERY OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER
OR THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, (II) ANY LOAN OR LETTER OF CREDIT OR THE USE OR
PROPOSED 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 MATERIALS OF ENVIRONMENTAL CONCERN ON OR FROM ANY PROPERTY OWNED OR OPERATED BY ANY LOAN PARTY OR ANY
OF ITS SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES, OR (IV) ANY ACTUAL
OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY, WHETHER BROUGHT BY A THIRD PARTY OR BY ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES OR ANY LOAN PARTY’S OR ANY OF ITS
SUBSIDIARIES’ DIRECTORS, MANAGERS, EQUITY OWNERS OR CREDITORS, AND REGARDLESS OF WHETHER ANY INDEMNIFIED PERSON IS A PARTY THERETO,
AND SUCH INDEMNITY SHALL EXTEND TO EACH INDEMNIFIED PERSON NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER
WHATSOEVER, INCLUDING ITS OWN ORDINARY NEGLIGENCE, WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN OMISSION, INCLUDING WITHOUT
LIMITATION, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE INDEMNIFIED PERSONS OR
BY REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE INDEMNIFIED PERSONS; PROVIDED THAT SUCH INDEMNITY
SHALL NOT, AS TO ANY INDEMNIFIED PERSON, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS (X) ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE
JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PERSON. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, THESE INDEMNITIES SHALL EXTEND TO ANY CLAIMS ASSERTED AGAINST ANY INDEMNIFIED PERSON BY ANY PERSON UNDER
ANY ENVIRONMENTAL LAWS BY REASON OF ANY LOAN PARTY’S OR ANY OTHER PERSON’S FAILURE TO COMPLY WITH LAWS APPLICABLE TO SOLID
OR HAZARDOUS WASTE MATERIALS OR OTHER TOXIC SUBSTANCES. NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT, THE OBLIGATION OF THE
LOAN PARTIES UNDER THIS SECTION 13.2 SHALL SURVIVE THE PAYMENT IN FULL OF THE OBLIGATIONS AND THE TERMINATION OF THIS AGREEMENT.
13.3 Amendment and Waivers.
13.3.1 No amendment or waiver of any provision of this Agreement or any other Loan Document (including without limitation any Note),
nor consent to any departure by the Loan Parties therefrom, shall in any event be effective unless the same shall be in writing and signed
by Majority Lenders and the Loan Parties, and then such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided that this Section shall not apply to amendments to this Agreement that have been made
pursuant to Section 4.9; provided further that no amendment, waiver or consent shall be effective to:
(i) (a) increase any Lender’s Revolving Credit Commitment or Term Loan Commitment; (b) reduce the principal of, interest
on, or fees due in respect to any amount payable hereunder to any Lender; or (c) postpone any date fixed for any payment of principal
of, or interest on, any amounts payable hereunder to any Lender, in each case, without the written consent of each Lender directly affected
thereby;
(ii) (a) amend the number of Lenders that shall be required for Lenders or any of them to take any action hereunder; (b) except
as otherwise expressly permitted herein or in any other Loan Document, release or discharge any Person liable for the performance of any
obligations of any Loan Party hereunder or under any of the Loan Documents; (c) amend the definition of the term Majority Lenders;
(d) amend this Section 13.3; (e) amend subsection 4.4.2; or (f) except as otherwise expressly permitted herein or in any
other Loan Document, release any substantial portion of the Collateral except to the extent expressly permitted by this Agreement or the
Intercreditor Agreement, in each case, without the written consent of each Lender;
(iii) change any definitions or any other provision in a manner that would alter the nature of the secured position of any Derivative
Obligation Provider or its entitlement to a pro rata allocation among Lenders of assets upon termination or acceleration of Obligations,
without the written consent of each Lender and Derivative Obligation Provider directly affected thereby; or
(iv) affect the rights or duties of any Agent or Issuing Bank (as applicable) under this Agreement or any other Loan Document,
without the written consent of such Agent or Issuing Bank (as applicable).
13.3.2 Notwithstanding the foregoing provisions of this Section 13.3:
(i) no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except to the extent the
consent of such Lender would be required under clause (i) of subsection 13.3.1; and
(ii)
[reserved]; and
(ii) (iii)
Administrative Agent and the Loan Parties may amend any Loan Document to correct an obvious, immaterial or administrative
error or omission, or to effect administrative changes that are not adverse to any Lender, and such amendment shall become effective
without any further consent of any other party to such Loan Document if the same is not objected to in writing by Majority Lenders within
five (5) Business Days following receipt of notice thereof.
13.3.3 If a fee is to be paid by the Loan Parties in connection with any waiver or amendment hereunder, the agreement evidencing
such amendment or waiver may, at the discretion of Administrative Agent (but shall not be required to), provide that only Lenders executing
such agreement by a specified date may share in such fee (and in such case, such fee shall be divided among the applicable Lenders on
a pro rata basis without including the interests of any Lenders who have not timely executed such agreement).
13.4 Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective
and valid under Applicable Law, but if any provision of this Agreement shall be prohibited by or invalid under Applicable Law, such provision
shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
13.5 Right of Sale; Assignment; Participations. This Agreement, the Other Agreements and the Security Documents shall
be binding upon and inure to the benefit of the successors and assigns of each Loan Party, Administrative Agent and each Lender; provided,
however, that, no Loan Party may sell, assign or transfer any interest in this Agreement, any of the other Loan Documents, or any
of the Obligations, or any portion thereof, including, without limitation, such Loan Party’s rights, title, interests, remedies,
powers and duties hereunder or thereunder. The Loan Parties hereby consent to any Lender’s participation, sale, assignment, transfer
or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents, or of any portion hereof
or thereof, including, without limitation, such Lender’s rights, title, interests, remedies, powers and duties hereunder or thereunder
subject to the terms and conditions set forth in this Section 13.5; provided, that no such participation, sale, assignment,
transfer or other disposition shall be made to (i) a Defaulting Lender, (ii) any Loan Party or any Subsidiary of a Loan Party, (iii) an
Affiliate of a Loan Party or (iv) any direct competitor of any Loan Party or any Subsidiary of a Loan Party.
13.5.1 Sales; Assignments. Each Lender hereby agrees that, with respect to any sale or assignment (i) no such sale or assignment
shall be for an amount of less than $5,000,000, (ii) each such sale or assignment shall be made on terms and conditions which are
customary in the industry at the time of the transaction, (iii) each such sale or assignment shall include an equal percentage of the
Revolving Credit Commitments and Term Loan Commitments of the assigning Lender, (iv) with respect to each such assignment to a Person
that is not a Lender or an Affiliate of a Lender, (a) Administrative Agent, (b) in the case of assignments of Revolving Credit Commitments
and Issuing Bank, and (c) in the absence of a Default or Event of Default, Borrower Representative shall have consented thereto, such
consent not to be unreasonably withheld or delayed, (v) the assigning Lender shall pay to Administrative Agent a processing and recordation
fee of $3,500; provided, that, Administrative Agent may waive such fee in its discretion, (vi) no sale or assignment shall be made
to any Ineligible Lender and (vii) Administrative Agent, the assigning Lender and the assignee Lender shall each have executed and delivered
an Assignment and Acceptance Agreement. After such sale or assignment has been consummated (x) the assignee Lender thereupon shall become
a “Lender” for all purposes of this Agreement and (y) the assigning Lender shall have no further liability for funding the
portion of Revolving Credit Commitments assumed by such other Lender.
13.5.2 Participations. Any Lender may grant participations in its extensions of credit hereunder to any other Lender or
other lending institution (a “Participant”), provided that (i) no such participation shall be for an amount
of less than $5,000,000, (ii) no Participant shall thereby acquire any direct rights under this Agreement, except that each Participant
shall be entitled to the benefits of Section 3.11 (subject to the requirements and limitations therein, including the requirements
of subsection 3.11.3 (it being understood that the documentation required under subsection 3.11.3 shall be delivered to
the originating Lender)), subsection 4.1.9 and Section 4.8 to the same extent as if it were a Lender and had acquired its
interest by assignment; provided however that such Participant (a) shall be subject to the provisions of subsection 13.5.6
as if it were an assignee and (b) shall not be entitled to receive any greater payment under Section 3.11, subsection 4.1.9
or Section 4.8, with respect to any participation, than its originating 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, (iii) no Participant shall be granted any right to consent to any amendment, except to the extent any of the same pertain
to (a) reducing the aggregate principal amount of, or interest rate on, or fees applicable to, its participation interest or (b) extending
the final stated maturity of its participation interest or the stated maturity of any portion of any payment of principal of, or interest
or fees applicable to, any of its participation interest; provided that the rights described in this subclause (b) shall not be
deemed to include the right to consent to any amendment with respect to or which has the effect of requiring any mandatory prepayment
of any portion of any Loan or any amendment or waiver of any Default or Event of Default, (iv) no sale of a participation in extensions
of credit shall in any manner relieve the originating Lender of its obligations hereunder, (v) the originating Lender shall remain solely
responsible for the performance of such obligations, (vi) the Loan Parties and Administrative Agent shall continue to deal solely and
directly with the originating Lender in connection with the originating Lender’s rights and obligations under this Agreement and
the other Loan Documents, and (vii) all amounts payable by the Loan Parties hereunder shall be determined as if the originating Lender
had not sold any such participation. Each Lender, acting for this purpose as an agent of Borrowers, shall maintain at its offices a record
of each agreement or instrument effecting any participation and a register (each a “Participation Register”) meeting
the requirements of 26 C.F.R. §5f.103-1(c) for the recordation in book entry form of the names and addresses of its Participants
and their rights with respect to principal amounts (and stated interest) of each Participant’s interest in the Loans from time to
time. The entries in each Participation Register shall be conclusive absent manifest error.
13.5.3 Certain Agreements of the Loan Parties. The Loan Parties agree that
(i) they will use their best efforts to assist and cooperate with each Lender in any manner reasonably requested by such Lender
to effect the sale of participation in or assignments of any of the Loan Documents or any portion thereof or interest therein, including,
without limitation, assisting in the preparation of appropriate disclosure documents and making members of management available at reasonable
times to meet with and answer questions of potential assignees and Participants; and (ii) subject to the provisions of Section 13.14
hereof, such Lender may disclose credit information regarding the Loan Parties to any potential Participant or assignee.
13.5.4 Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights
under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
13.5.5 Register. Administrative Agent, acting for this purpose as an agent of Borrowers, shall maintain at one of its offices
a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation in book
entry form of the names and addresses of the Lenders, and the commitment of, and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time. The entries in the Register shall be conclusive absent manifest error. The Register shall be available
for inspection by Borrowers, at any reasonable time and from time to time upon reasonable prior notice. Notwithstanding anything to the
contrary contained in this Agreement, the Loans are registered obligations for tax purposes and the right, title and interest of the Lenders
in and to such Loans shall be transferable only in accordance with the terms of this Agreement. This subsection 13.5.5 shall be
construed so that the Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2)
and 881(c)(2) of the Code.
13.5.6 Replacement of Lenders. If (i) any Lender requests compensation under Section 4.8, or (ii) a Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.11,
or (iii) any Lender, whose consent is required in connection with any proposed amendment, waiver, or consent hereunder that requires the
consent of all Lenders or all affected Lenders and as to which the consent of Majority Lenders is obtained, does not consent to such proposed
amendment, waiver, or consent, or (iv) any Lender is a Defaulting Lender, then the Loan Parties may, at their sole expense and effort
(including any processing and recordation fee required to be paid in accordance with this Section 13.5), upon notice to such Lender
and Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in this Section 13.5), all of its interests, rights and obligations under this Agreement to an assignee selected by the
Loan Parties that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided
that (a) the Loan Parties shall have received the prior written consents of Administrative Agent and, in the event of an assignment of
Revolving Credit Commitments and Issuing Bank, which consents shall not unreasonably be withheld, (b) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder from the assignee (to the extent of such outstanding principal, accrued interest and fees) or the Loan Parties (in the
case of all other amounts), (c) in the case of any such assignment resulting pursuant to clause (i) or (ii) above, such assignment will
result in a material reduction in such compensation or payments, (d) in the case of any such assignment resulting pursuant to clause (iii)
above, all such non-consenting Lenders shall be replaced and, at the time of such replacement, each such new Lender consents to the proposed
amendment, waiver, or consent and (e) the assignor under an assignment pursuant to this subsection 13.5.6 need not execute an Assignment
and Acceptance Agreement. 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 Loan Parties to require such assignment and delegation cease to
apply.
13.6 Cumulative Effect; Conflict of Terms. The provisions of the Other Agreements and the Security Documents are hereby
made cumulative with the provisions of this Agreement. Except as otherwise provided in any of the other Loan Documents by specific reference
to the applicable provision of this Agreement, if any provision contained in this Agreement is in direct conflict with, or inconsistent
with, any provision in any of the other Loan Documents, the provision contained in this Agreement shall govern and control.
13.7 Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts
taken together shall constitute but one and the same instrument. Any executed counterpart of this Agreement delivered by fax or as a PDF
file contained in an e-mail transmission to the other parties hereto shall constitute an original counterpart of this Agreement.
13.8 Notices and Communications.
13.8.1 Notices. Except as otherwise provided herein, all notices, requests and demands to or upon a party hereto, to be
effective, shall be in writing, and shall be sent by certified or registered mail, return receipt requested, by personal delivery against
receipt, by overnight courier or by facsimile and, unless otherwise expressly provided herein, shall be deemed to have been validly served,
given, delivered or received immediately when delivered against receipt, three (3) Business Days after deposit in the mail, postage prepaid,
one (1) Business Day after deposit with an overnight courier or, in the case of facsimile notice, when sent with respect to machine confirmed,
addressed as follows:
(A) If to Administrative Agent: |
PNC Bank, National Association
2100 Ross Avenue, Suite 1850
Dallas, Texas 75201
Attention: Brad Miller
Phone: ____________
Facsimile: _________
|
With a copy to: |
Dorsey &
WhitneyHolland & Knight LLP
300 Crescent
Ct1722 Routh Street, Suite 4001500
Dallas, Texas 75201
Attention: Jamie
G. Whatley
Facsimile:
(214) 292-8850Anthony Herrera
Email: Anthony.Herrera@hklaw.com
|
(B) If to the Loan Parties: |
Quest Resource Management Group, LLC
3481 Plano Parkway
The Colony, Texas 75056
Attention: Laurie L. LathamBrett Johnston
Phone: (972) 464-0011
Facsimile: (866) 492-7478
|
With a copy to: |
Olshan Frome Wolosky LLP
1325 Avenue of the Americas
New York, NY 10019
Attention: Jason S. Saltsberg
Phone: (212) 451-2222
|
(C) If to any Lender, at its address indicated on
the administrative detail forms delivered to Administrative Agent.
|
or to such other address as each party may designate
for itself by notice given in accordance with this Section 13.8; provided, however, that any notice, request or demand to
or upon Administrative Agent or a Lender pursuant to subsection 4.1.1 or 5.2.2 hereof shall not be effective until received
by Administrative Agent or such Lender.
13.8.2 The Platform. Each Loan Party hereby acknowledges that Administrative Agent will make available to the Lenders and
Issuing Bank materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Loan Party Materials”)
by posting Loan Party Materials on Debt Domain, SyndTrak, IntraLinks or another similar electronic system (the “Platform”).
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” ADMINISTRATIVE AGENT AND ITS RELATED PARTIES DO NOT WARRANT
THE ACCURACY OR COMPLETENESS OF THE LOAN PARTY MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS
IN OR OMISSIONS FROM THE LOAN PARTY MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY
AGENT IN CONNECTION WITH THE LOAN PARTY MATERIALS OR THE PLATFORM. In no event shall any Agent or any of its Related Parties have any
liability to any Loan Party, any Lender, any Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of a Loan Party’s or Agent’s transmission of the Loan Party
Materials through the internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court
of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Agent or any of its Related Parties; provided, however, that in no event shall any Agent or any of its Related Parties have any
liability to any Loan Party, any Lender, any Issuing Bank or any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
13.9 Consent. Whenever Administrative Agent’s, Collateral Agent’s, Majority Lenders’ or all Lenders’
consent is required to be obtained under this Agreement, any of the Other Agreements or any of the Security Documents as a condition to
any action, inaction, condition or event, except as otherwise specifically provided herein, Administrative Agent, Collateral Agent, Majority
Lenders or all Lenders, as applicable, shall be authorized to give or withhold such consent in its or their sole and absolute discretion
and to condition its or their consent upon the giving of additional Collateral security for the Obligations, the payment of money or any
other matter.
13.10 Credit Inquiries. The Loan Parties hereby authorize and permit Administrative Agent and each Lender to respond to
usual and customary credit inquiries from third parties concerning any Loan Party or any of its Subsidiaries.
13.11 Time of Essence. Time is of the essence of this Agreement, the Other Agreements and the Security Documents.
13.12 Entire Agreement. This Agreement and the other Loan Documents, together with all other instruments, agreements and
certificates executed by the parties in connection therewith or with reference thereto, embody the entire understanding and agreement
between the parties hereto and thereto with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings
and inducements, whether express or implied, oral or written.
13.13 Interpretation. No provision of this Agreement or any of the other Loan Documents shall be construed against or interpreted
to the disadvantage of any party hereto by any Governmental Authority by reason of such party having or being deemed to have structured
or dictated such provision.
13.14 Confidentiality. Each Agent and each Lender shall hold all nonpublic information obtained pursuant to the requirements
of this Agreement in accordance with such Agent’s and such Lender’s customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking practices and in any event may make disclosure reasonably required by a prospective
participant or assignee in connection with the contemplated participation or assignment or as required or requested by any Governmental
Authority or representative thereof or pursuant to legal process and shall require any such participant or assignee to agree to comply
with this Section 13.14.
13.15 GOVERNING LAW; CONSENT TO JURISDICTION, FORUM AND SERVICE OF PROCESS.
13.15.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS
WITHOUT GIVING EFFECT TO ANY APPLICABLE LAW THAT WOULD CAUSE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
13.15.2 CONSENT TO JURISDICTION, FORUM AND SERVICE OF PROCESS. AS PART OF THE CONSIDERATION FOR NEW VALUE RECEIVED, AND REGARDLESS
OF ANY PRESENT OR FUTURE DOMICILE OR PRINCIPAL PLACE OF BUSINESS OF ANY LOAN PARTY, ADMINISTRATIVE AGENT OR ANY LENDER, EACH LOAN PARTY
HEREBY CONSENTS AND AGREES THAT ANY STATE COURT SITTING IN DALLAS COUNTY, TEXAS, OR, AT ADMINISTRATIVE AGENT’S OPTION, THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THE LOAN PARTIES ON THE ONE HAND AND ADMINISTRATIVE AGENT OR ANY LENDER ON THE OTHER HAND PERTAINING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT. EACH LOAN PARTY EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH LOAN PARTY HEREBY WAIVES
ANY OBJECTION WHICH ANY LOAN PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH LOAN PARTY HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS,
COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE LOAN PARTIES AT THE ADDRESS SET FORTH IN THIS
AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF BY A LOAN PARTY OR THREE (3) DAYS
AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID. NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF ADMINISTRATIVE
AGENT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, OR TO PRECLUDE THE ENFORCEMENT BY ADMINISTRATIVE AGENT OF ANY JUDGMENT
OR ORDER OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.
13.16 WAIVERS BY THE LOAN PARTIES. EACH LOAN PARTY WAIVES (i) THE RIGHT TO TRIAL BY JURY (WHICH ADMINISTRATIVE AGENT AND EACH
LENDER HEREBY ALSO WAIVES) IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO ANY OF THE LOAN DOCUMENTS,
THE OBLIGATIONS OR THE COLLATERAL; (ii) PRESENTMENT, DEMAND AND PROTEST AND NOTICE OF PRESENTMENT, PROTEST, DEFAULT, NON PAYMENT, MATURITY,
RELEASE, COMPROMISE, SETTLEMENT, EXTENSION OR RENEWAL OF ANY OR ALL COMMERCIAL PAPER, ACCOUNTS, CONTRACT RIGHTS, DOCUMENTS, INSTRUMENTS,
CHATTEL PAPER AND GUARANTIES AT ANY TIME HELD BY ADMINISTRATIVE AGENT OR ANY LENDER ON WHICH THE LOAN PARTIES MAY IN ANY WAY BE LIABLE
AND HEREBY RATIFIES AND CONFIRMS WHATEVER ADMINISTRATIVE AGENT OR ANY LENDER MAY DO IN THIS REGARD; (iii) NOTICE PRIOR TO ADMINISTRATIVE
AGENT’S TAKING POSSESSION OR CONTROL OF THE COLLATERAL OR ANY BOND OR SECURITY WHICH MIGHT BE REQUIRED BY ANY COURT PRIOR TO ALLOWING
ADMINISTRATIVE AGENT TO EXERCISE ANY OF ADMINISTRATIVE AGENT’S REMEDIES; (iv) THE BENEFIT OF ALL VALUATION, APPRAISEMENT AND EXEMPTION
LAWS; (v) NOTICE OF ACCEPTANCE HEREOF; AND (vi) EXCEPT AS PROHIBITED BY APPLICABLE LAW, ANY RIGHT TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH LOAN PARTY ACKNOWLEDGES THAT THE
FOREGOING WAIVERS ARE A MATERIAL INDUCEMENT TO ADMINISTRATIVE AGENT’S AND EACH LENDER’S ENTERING INTO THIS AGREEMENT AND THAT
ADMINISTRATIVE AGENT AND EACH LENDER IS RELYING UPON THE FOREGOING WAIVERS IN ITS FUTURE DEALINGS WITH THE LOAN PARTIES. EACH LOAN PARTY
WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THE FOREGOING WAIVERS WITH ITS LEGAL COUNSEL AND HAS KNOWINGLY AND VOLUNTARILY WAIVED ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT
TO A TRIAL BY THE COURT.
13.17 Advertisement. The Loan Parties hereby authorize Administrative Agent to publish the name and logo of any Loan Party
and the amount and transaction details of the credit facility provided hereunder in any “tombstone” or comparable advertisement
or other marketing materials which Administrative Agent elects to publish.
13.18 Patriot Act Notice. Administrative Agent and Lenders hereby notify the Loan Parties that pursuant to the requirements
of the Patriot Act, Administrative Agent and Lenders are required to obtain, verify and record information that identifies each Loan Party,
including its legal name, address, tax ID number and other information that will allow Administrative Agent and Lenders to identify it
in accordance with the Patriot Act. Administrative Agent and Lenders will also require information regarding each personal guarantor,
if any, and may require information regarding any Loan Party’s management and owners, such as legal name, address, social security
number and date of birth.
13.19 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
13.20
Intercreditor Agreement. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document,
(a) the Liens granted to the Administrative Agent in favor of the Lenders pursuant to this Agreement and the other Loan Documents and
the exercise of any right related to any Collateral shall be subject, in each case, to the terms of the Intercreditor Agreement, and (b)
in the event of any conflict between the terms and provisions of this Agreement or any other Loan Document, on the one hand, and the terms
and provisions of the Intercreditor Agreement, on the other hand, the terms and provisions of the Intercreditor Agreement shall continue.
Article
XIV. CROSS-GUARANTY BY BORROWERS.
14.1 Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely
and unconditionally guarantees to Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment
(whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Administrative
Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment
and performance and not of collection, that its obligations under this Section 14 shall not be discharged until payment and performance,
in full, of the Obligations has occurred, and that its obligations under this Section 14 shall be absolute and unconditional, irrespective
of, and unaffected by, (i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement,
any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party; (ii) the absence
of any action to enforce this Agreement (including this Section 14) or any other Loan Document or the waiver or consent by Administrative
Agent and Lenders with respect to any of the provisions thereof; (iii) the existence, value or condition of, or failure to perfect its
Lien against, any security for the Obligations or any action, or the absence of any action, by Administrative Agent and Lenders in respect
thereof (including the release of any such security); (iv) the insolvency of any Loan Party; or (v) any other action or circumstances
that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and
shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
14.2 Waivers by Borrowers. Each Borrower expressly waives all rights it may have now or in the future under any statute,
or at common law, or at law or in equity, or otherwise, to compel Administrative Agent or Lenders to marshal assets or to proceed in respect
of the Obligations guaranteed hereunder against any other Loan Party, any other party or against any security for the payment and performance
of the Obligations before proceeding against, or as a condition to proceeding against, such Borrower. It is agreed among each Borrower,
Administrative Agent and Lenders that the foregoing waivers are of the essence of the transaction contemplated by this Agreement and the
other Loan Documents and that, but for the provisions of this Section 14 and such waivers, Administrative Agent and Lenders would
decline to enter into this Agreement.
14.3 Benefit of Guaranty. Each Borrower agrees that the provisions of this Section 14 are for the benefit of Administrative
Agent and Lenders and their respective successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as between
any other Borrower and Administrative Agent or Lenders, the obligations of such other Borrower under the Loan Documents.
14.4 Waiver of Subrogation, Etc. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document,
and except as set forth in Section 14.7, each Borrower hereby expressly and irrevocably waives any and all rights at law or in
equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses available to a surety,
guarantor or accommodation co-obligor. Each Borrower acknowledges and agrees that this waiver is intended to benefit Administrative Agent
and Lenders and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforceability of this Section
14, and that Administrative Agent, Lenders and their respective successors and assigns are intended third party beneficiaries of the
waivers and agreements set forth in this Section 14.4.
14.5 Election of Remedies. If Administrative Agent or any Lender may, under Applicable Law, proceed to realize its benefits
under any of the Loan Documents giving Administrative Agent or such Lender a Lien upon any Collateral, whether owned by any Borrower or
by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, Administrative Agent or any Lender may, at
its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section
14. If, in the exercise of any of its rights and remedies, Administrative Agent or any Lender shall forfeit any of its rights or remedies,
including its right to enter a deficiency judgment against any Borrower or any other Person, whether because of any Applicable Laws pertaining
to “election of remedies” or the like, each Borrower hereby consents to such action by Administrative Agent or such Lender
and waives any claim based upon such action, even if such action by Administrative Agent or such Lender shall result in a full or partial
loss of any rights of subrogation that each Borrower might otherwise have had but for such action by Administrative Agent or such Lender.
Any election of remedies that results in the denial or impairment of the right of Administrative Agent or any Lender to seek a deficiency
judgment against any Borrower shall not impair any other Borrower’s obligation to pay the full amount of the Obligations. In the
event Administrative Agent or any Lender shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law
or the Loan Documents, Administrative Agent or such Lender may bid all or less than the amount of the Obligations and the amount of such
bid need not be paid by Administrative Agent or such Lender but shall be credited against the Obligations. The amount of the successful
bid at any such sale, whether Administrative Agent, Lender or any other party is the successful bidder, shall be conclusively deemed to
be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall
be conclusively deemed to be the amount of the Obligations guaranteed under this Section 14, notwithstanding that any present or
future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which Administrative Agent
or any Lender might otherwise be entitled but for such bidding at any such sale.
14.6 Limitation. Notwithstanding any provision herein contained to the contrary, each Borrower’s liability under
this Section 14 (which liability is in any event in addition to amounts for which such Borrower is primarily liable under any other
provision of this Agreement) shall be limited to an amount not to exceed as of any date of determination the greater of: (i) the net amount
of all Loans advanced to any other Borrower under this Agreement and then re-loaned or otherwise transferred to, or for the benefit of,
such Borrower; and (ii) the amount that could be claimed by Administrative Agent and Lenders from such Borrower under this Section
14 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable
state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among
other things, such Borrower’s right of contribution and indemnification from each other Borrower under Section 14.7.
14.7 Contribution with Respect to Guaranty Obligations.
14.7.1 To the extent that any Borrower shall make a payment under this
Section 14 of all or any of the Obligations
(other than Loans made to that Borrower for which it is primarily liable) (a “Guarantor Payment”) that, taking into
account all other Guarantor Payments then previously or concurrently made by any other Borrower, exceeds the amount that such Borrower
would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payment in the same proportion
that such Borrower’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment)
bore to the aggregate Allocable Amounts of each Borrower as determined immediately prior to the making of such Guarantor Payment, then,
following indefeasible payment in full in cash of the Obligations and termination of the Revolving Credit Commitments, such Borrower shall
be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Borrower for the amount of such
excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
14.7.2 As of any date of determination, the “Allocable Amount” of any Borrower shall be equal to the maximum
amount of the claim that could then be recovered from such Borrower under this Section 14 without rendering such claim voidable
or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform
Fraudulent Conveyance Act or similar statute or common law.
14.7.3 This Section 14.7 is intended only to define the relative rights of Borrowers and nothing set forth in this Section
14.7 is intended to or shall impair the obligations of Borrowers, jointly and severally, to pay any amounts as and when the same shall
become due and payable in accordance with the terms of this Agreement, including Section 14.1. Nothing contained in this Section
14.7 shall limit the liability of any Borrower to pay the Loans made directly or indirectly to that Borrower and accrued interest,
fees and expenses with respect thereto for which such Borrower shall be primarily liable.
14.7.4 The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of
Borrowers to which such contribution and indemnification is owing.
14.7.5 The rights of the indemnifying Borrowers against other Loan Parties under this Section 14.7 shall be exercisable
upon the full and indefeasible payment of the Obligations and the termination of the Revolving Credit Commitments.
14.8 Liability Cumulative. The liability of Borrowers under this Section 14 is in addition to and shall be cumulative
with all liabilities of each Borrower to Administrative Agent and Lenders under this Agreement and the other Loan Documents to which such
Borrower is a party or in respect of any Obligations or obligation of the other Borrowers, without any limitation as to amount, unless
the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.
14.9 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 hereunder
or under the Security Documents in respect of Swap Obligations; provided, that each Qualified ECP Guarantor shall only be liable
under this Section 14.9 for the maximum amount of such liability that can be hereby incurred without rendering its obligations
under this Section 14.9, or otherwise hereunder or under the Security Documents, voidable under applicable requirements of law
relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount. The obligations of each Qualified ECP Guarantor
under this Section 14.9 shall remain in full force and effect until the guarantees in respect of Swap Obligations have been discharged,
or otherwise released or terminated in accordance with the terms of this Agreement. Each Qualified ECP Guarantor intends that this Section
14.9 constitute, and this Section 14.9 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.
Article
XV. GUARANTY
15.1 Guaranty of the Obligations. Subject to the provisions of Section 15.2, Guarantors jointly and severally hereby
irrevocably and unconditionally guaranty to Administrative Agent and Lenders the due and punctual payment in full of all Obligations (other
than Excluded Swap Obligations) when the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code) (collectively, the “Guaranteed Obligations”).
15.2 Contribution by Guarantors. All Guarantors desire to allocate among themselves (collectively, the “Contributing
Guarantors”), in a fair and equitable manner, their obligations arising under this Guaranty. Accordingly, in the event any payment
or distribution is made on any date by a Guarantor (a “Funding Guarantor”) under this Guaranty such that its Aggregate
Payments exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other Contributing
Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as of such
date. “Fair Share” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal
to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor, to (ii) the aggregate of the Fair
Share Contribution Amounts with respect to all Contributing Guarantors multiplied by, (b) the aggregate amount paid or distributed on
or before such date by all Funding Guarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution
Amount” means, with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate amount of the
obligations of such Contributing Guarantor under this Guaranty that would not render its obligations hereunder subject to avoidance as
a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable applicable provisions of
state law; provided, solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Contributing
Guarantor for purposes of this Section 15.2, any assets or liabilities of such Contributing Guarantor arising by virtue of any
rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be considered
as assets or liabilities of such Contributing Guarantor. “Aggregate Payments” means, with respect to a Contributing
Guarantor as of any date of determination, an amount equal to (1) the aggregate amount of all payments and distributions made on or before
such date by such Contributing Guarantor in respect of this Guaranty (including, without limitation, in respect of this Section 15.2),
minus (2) the aggregate amount of all payments received on or before such date by such Contributing Guarantor from the other Contributing
Guarantors as contributions under this Section 15.2. The amounts payable as contributions hereunder shall be determined as of the
date on which the related payment or distribution is made by the applicable Funding Guarantor. The allocation among Contributing Guarantors
of their obligations as set forth in this Section 15.2 shall not be construed in any way to limit the liability of any Contributing
Guarantor hereunder. Each Guarantor is a third-party beneficiary to the contribution agreement set forth in this Section 15.2.
15.3 Payment by Guarantors. Subject to Section 15.2, Guarantors hereby jointly and severally agree, in furtherance
of the foregoing and not in limitation of any other right which Administrative Agent or any Lender may have at law or in equity against
any Guarantor by virtue hereof, that upon the failure of any Borrower to pay any of the Guaranteed Obligations when and as the same shall
become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that
would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), Guarantors will upon demand
pay, or cause to be paid, in cash, to Administrative Agent, for the benefit of itself and the Lenders, an amount equal to the sum of the
unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on such Guaranteed Obligations
(including interest which, but for any Borrower’s becoming the subject of a case under the Bankruptcy Code, would have accrued on
such Guaranteed Obligations, whether or not a claim is allowed against such Borrower for such interest in the related bankruptcy case)
and all other Guaranteed Obligations then owed to Agent and Lenders as aforesaid.
15.4 Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder are irrevocable, absolute,
independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor
or surety other than payment in full of the Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality
thereof, each Guarantor agrees as follows:
15.4.1 this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each
Guarantor and not merely a contract of surety;
15.4.2 Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence
of any dispute between any Borrower and Administrative Agent or any Lender with respect to the existence of such Event of Default;
15.4.3 the obligations of each Guarantor hereunder are independent of the obligations of Borrowers and the obligations of any other
guarantor (including any other Guarantor) of the obligations of Borrowers, and a separate action or actions may be brought and prosecuted
against such Guarantor whether or not any action is brought against any Borrower or any of such other guarantors and whether or not any
Borrower is joined in any such action or actions;
15.4.4 payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify
or abridge any Guarantor’s liability for any portion of the Guaranteed Obligations which has not been paid. Without limiting the
generality of the foregoing, if Administrative Agent or any Lender is awarded a judgment in any suit brought to enforce any Guarantor’s
covenant to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant
to pay the portion of the Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent
satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the Guaranteed
Obligations;
15.4.5 Administrative Agent and/or Lenders, upon such terms as they deem appropriate, without notice or demand and without affecting
the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s
liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time,
place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any
offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate
the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations
and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise,
settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations,
any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect
to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of Administrative Agent
for the benefit of itself and the Lenders in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof,
or exercise any other right or remedy that Administrative Agent may have against any such security, in each case as Administrative Agent
in its discretion may determine consistent herewith or any applicable security agreement, including foreclosure on any such security pursuant
to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though
such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against
any Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan Documents;
and 15.4.6 this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to
any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guaranteed Obligations),
including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i)
any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of
court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether
arising under the Loan Documents, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating
thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver,
amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events
of default) hereof, any of the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty
or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document, or
any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any
time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other
than payments received pursuant to the other Loan Documents or from the proceeds of any security for the Guaranteed Obligations, except
to the extent such security also serves as collateral for indebtedness other than the Guaranteed Obligations) to the payment of indebtedness
other than the Guaranteed Obligations, even though Administrative Agent or Lenders might have elected to apply such payment to any part
or all of the Guaranteed Obligations; (v) Administrative Agent’s or Lenders’ consent to the change, reorganization or termination
of the corporate structure or existence of any Borrower and to any corresponding restructuring of the Guaranteed Obligations; (vi) any
failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii)
any defenses, set-offs or counterclaims which any Borrower may allege or assert against Administrative Agent or any Lender in respect
of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations,
accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or
might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
15.5 Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of Administrative Agent and each Lender: (a)
any right to require Administrative Agent or any Lender, as a condition of payment or performance by such Guarantor, to (i) proceed against
any Borrower, any other guarantor (including any other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed against
or exhaust any security held from any Borrower, any such other guarantor or any other Person, (iii) proceed against or have resort to
any balance of any Deposit Account, securities account or commodities account or credit on the books of Administrative Agent or any Lender
in favor of any Borrower or any other Person, or (iv) pursue any other remedy in the power of Administrative Agent or any Lender whatsoever;
(b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of any Borrower or any other
Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations
or any agreement or instrument relating thereto or by reason of the cessation of the liability of any Borrower or any other Guarantor
from any cause other than payment in full of the Guaranteed Obligations; (c) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d)
any defense based upon Administrative Agent’s or any Lender’s errors or omissions in the administration of the Guaranteed
Obligations; (e) (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof
and any legal or equitable discharge of such Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations affecting
such Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims, and
(iv) promptness, diligence and any requirement that Administrative Agent or any Lender protect, secure, perfect or insure any security
interest or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of dishonor
and notices of any action or inaction, including acceptance hereof, notices of default hereunder or any agreement or instrument related
thereto, notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto, notices of
any extension of credit to Borrowers and notices of any of the matters referred to in Section 15.4 and any right to consent to
any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors
or sureties, or which may conflict with the terms hereof.
15.6 Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations shall have been indefeasibly
paid in full and the Revolving Credit Commitment shall have terminated and all Letters of Credit shall have expired or been cancelled,
each Guarantor hereby waives any claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against
any Borrower or any other Guarantor or any of its assets in connection with this Guaranty or the performance by such Guarantor of its
obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute, under common law
or otherwise and including without limitation (a) any right of subrogation, reimbursement or indemnification that such Guarantor now has
or may hereafter have against any Borrower with respect to the Guaranteed Obligations, (b) any right to enforce, or to participate in,
any claim, right or remedy that Administrative Agent or any Lender now has or may hereafter have against any Borrower, and (c) any benefit
of, and any right to participate in, any collateral or security now or hereafter held by Administrative Agent or any Lender. In addition,
until the Guaranteed Obligations shall have been indefeasibly paid in full and the Revolving Credit Commitment shall have terminated and
all Letters of Credit shall have expired or been cancelled, each Guarantor shall withhold exercise of any right of contribution such Guarantor
may have against any other guarantor (including any other Guarantor) of the Guaranteed Obligations, including, without limitation, any
such right of contribution as contemplated by Section 15.2. Each Guarantor further agrees that, to the extent the waiver or agreement
to withhold the exercise of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification such
Guarantor may have against any Borrower or against any collateral or security, and any rights of contribution such Guarantor may have
against any such other guarantor, shall be junior and subordinate to any rights Administrative Agent or any Lender may have against any
Borrower, to all right, title and interest Administrative Agent or Lender may have in any such collateral or security, and to any right
Administrative Agent or any Lender may have against such other guarantor. If any amount shall be paid to any Guarantor on account of any
such subrogation, reimbursement, indemnification or contribution rights at any time when all Guaranteed Obligations shall not have been
finally and indefeasibly paid in full, such amount shall be held in trust for Administrative Agent and Lenders and shall forthwith be
paid over to Administrative Agent to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance
with the terms hereof.
15.7 Subordination of Other Obligations. Any indebtedness of any Borrower or any Guarantor now or hereafter held by any
Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of payment to the Guaranteed Obligations, and any
such indebtedness collected or received by the Obligee Guarantor after an Event of Default has occurred and is continuing shall be held
in trust for Administrative Agent and Lenders and shall forthwith be paid over to Administrative Agent to be credited and applied against
the Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any
other provision hereof.
15.8 Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect until all of the Guaranteed
Obligations shall have been indefeasibly paid in full and the Revolving Credit Commitment shall have terminated and all Letters of Credit
shall have expired or been cancelled. Each Guarantor hereby irrevocably waives any right to revoke this Guaranty as to future transactions
giving rise to any Guaranteed Obligations.
15.9 Authority of Guarantors or Borrowers. It is not necessary for Administrative Agent or any Lender to inquire into
the capacity or powers of any Guarantor or any Borrower or the officers, directors or any agents acting or purporting to act on behalf
of any of them.
15.10 Financial Condition of Borrowers. Any Loan may be made to Borrowers or continued from time to time, without notice
to or authorization from any Guarantor regardless of the financial or other condition of Borrowers at the time of any such grant or continuation.
Neither Administrative Agent nor any Lender shall have any obligation to disclose or discuss with any Guarantor its assessment, or any
Guarantor’s assessment, of the financial condition of any Borrower. Each Guarantor has adequate means to obtain information from
each Borrower on a continuing basis concerning the financial condition of such Borrower and its ability to perform its obligations under
the Loan Documents, and each Guarantor assumes the responsibility for being and keeping informed of the financial condition of Borrowers
and of all circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor hereby waives and relinquishes
any duty on the part of Administrative Agent or any Lender to disclose any matter, fact or thing relating to the business, operations
or conditions of any Borrower now known or hereafter known by Administrative Agent or any Lender.
15.11 Bankruptcy,
etc. So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the prior written consent of Administrative
Agent, commence or join with any other Person in commencing any bankruptcy, reorganization or insolvency case or proceeding of or against
any Borrower or any other Guarantor.
15.11.1 The obligations of Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or terminated
by any case or proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of any Borrower or any other Guarantor or by any defense which any Borrower or any other Guarantor may have by reason of the
order, decree or decision of any court or administrative body resulting from any such proceeding.
15.11.2 Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed Obligations which accrues after
the commencement of any case or proceeding referred to in Section 15.11.1 above (or, if interest on any portion of the Guaranteed
Obligations ceases to accrue by operation of law by reason of the commencement of such case or proceeding, such interest as would have
accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been commenced) shall be included in the Guaranteed
Obligations because it is the intention of Guarantors and Administrative Agent and Lenders that the Guaranteed Obligations which are guaranteed
by Guarantors pursuant hereto should be determined without regard to any rule of law or order which may relieve any Borrower of any portion
of such Guaranteed Obligations. Guarantors will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit
of creditors or similar person to pay Administrative Agent and Lenders, or allow the claim of Administrative Agent and Lenders in respect
of, any such interest accruing after the date on which such case or proceeding is commenced.
15.11.3 In the event that all or any portion of the Guaranteed Obligations are paid by any Borrower, the obligations of Guarantors
hereunder shall continue and remain in full force and effect or be reinstated, as the case may be, in the event that all or any part of
such payment(s) are rescinded or recovered directly or indirectly from Administrative Agent or any Lender as a preference, fraudulent
transfer or otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed Obligations for all purposes
hereunder.
(Signature Page Follows)
(Signature Page to Loan, Security and Guaranty
Agreement)
IN WITNESS WHEREOF, this Agreement has been duly
executed on the day and year specified at the beginning of this Agreement.
BORROWERS: |
QUEST RESOURCE MANAGEMENT |
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GROUP, LLC |
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By: |
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Name: Laurie L. Latham |
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Title: Chief Financial Officer, |
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Secretary, and Treasurer |
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LANDFILL
DIVERSION
INNOVATIONS,
L.L.C.
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QUEST EQUIPMENT, LLC |
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By: |
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Name: Laurie L. Latham |
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Title: Chief Financial Officer, |
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Secretary, and Treasurer |
(Signature Page to Loan, Security and Guaranty
Agreement)
GUARANTORS: |
QUEST RESOURCE HOLDING CORPORATION |
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By: |
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Name: Laurie L. Latham |
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Title: Senior Vice President, Chief |
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Financial Officer, Secretary, and Treasurer |
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QUEST SUSTAINABILITY SERVICES, INC. (F/K/A EARTH911, INC.) |
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By: |
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Name: Laurie L. Latham |
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Title: Chief Financial Officer, |
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Secretary, and Treasurer |
(Signature Page to Loan, Security and Guaranty
Agreement)
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YOUCHANGE, INC. |
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By: |
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Title: |
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QUEST VERTIGENT CORPORATION |
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By: |
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Title: |
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QUEST VERTIGENT ONE, LLC |
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By: |
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Title: |
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GLOBAL ALERTS, LLC |
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By: |
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Name: |
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Title: |
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(Signature Page to Loan, Security and Guaranty
Agreement)
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PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent, Collateral Agent and as a Lender |
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By: |
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PNC BANK, NATIONAL ASSOCIATION, as Issuing Bank By: |
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By: |
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THIRD AMENDMENT TO
INTERCREDITOR AGREEMENT
THIS THIRD AMENDMENT TO
INTERCREDITOR AGREEMENT (this “Amendment”) is made and entered into as of December 30, 2024, by and among PNC BANK,
NATIONAL ASSOCIATION, successor to BBVA USA, in its capacity as agent under the ABL Documents (including its permitted successors an assigns
in such capacity from time to time, the “ABL Agent”), and Monroe Capital Management
Advisors, LLC, in its capacity as agent under the Term Loan Documents (including its permitted successors and assigns in such capacity
from time to time, the “Term Loan Agent”).
RECITALS
A. Quest Resource Management Group, LLC, a Delaware limited liability company (“Quest”), Quest Equipment, LLC,
a Delaware limited liability company (“Quest Equipment”, and collectively with Quest, each as a “Borrower”
and collectively the “Borrowers”), the lenders party thereto, and ABL Agent, have entered into that certain Loan, Security
and Guaranty Agreement, dated as of August 5, 2020 (as amended, supplemented or otherwise modified from time to time, the “ABL
Credit Agreement”). The obligations of Borrowers to repay such loans and other financial accommodations under the ABL Credit
Agreement are guaranteed by Quest Resource Holding Corporation, a Nevada corporation (“Holdings”), Quest Sustainability
Services, Inc., a Delaware corporation (F/K/A Earth911, Inc.) (“Parent”), Youchange, Inc., an Arizona corporation (“Youchange”),
Quest Vertigent Corporation, a Nevada corporation (“Vertigent”), Quest Vertigent One, LLC, a Delaware limited liability
company (“Vertigent One”), and Global Alerts, LLC, a Delaware limited liability company (“Global Alerts”,and
together with Holdings, Parent, Youchange, Vertigent, and Vertigent One, jointly and severally, each a “Guarantor”
and collectively, the “Guarantors”, and together with the Borrowers, the “Loan Parties” and each
a “Loan Party”).
B. The Loan Parties, the lenders party thereto, and Term Loan Agent have entered into that certain Credit Agreement, dated as of October
19, 2020 (as amended, supplemented, or otherwise modified from time to time, the “Term Loan Agreement”), pursuant to
which such lenders have agreed to make loans and financial accommodations to certain of the Loan Parties. The obligations of such Loan
Parties to repay such notes and other amounts under the Term Loan Agreement are guaranteed by all other Loan Parties.
C. ABL Agent and Term Loan Agent are parties to that certain Intercreditor Agreement, dated as of October 19, 2020 (as amended, supplemented,
or otherwise modified from time to time, the “Intercreditor Agreement”), relating to the ABL Credit Agreement and Term
Loan Agreement.
D. On or about the date of this Amendment, the ABL Agent and Loan Parties are entering into that certain Fifth Amendment to Loan,
Security and Guaranty Agreement (the “ABL Amendment”) that will, among other things, increase the size of the revolving
credit facility available to the Borrowers under the ABL Credit Agreement and provide for certain term loans to the Borrowers. On or about
the date of this Amendment, the Term Loan Agent, the lenders party thereto and the Loan Parties are entering into that certain Sixth Amendment
to Credit Agreement (the “Term Loan Amendment”). It is a condition precedent to the ABL Agent’s entry into the
ABL Amendment and the Term Loan Agent’s entry into the Term Loan Amendment that the Term Loan Agent and ABL Agent, respectively,
agree to amendments to the Intercreditor Agreement in the manner set forth herein, and, subject to the terms and conditions hereinafter
set forth, the Term Loan Agent and ABL Agent have agreed to amend the Intercreditor Agreement in the manner set forth herein.
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, intending to be legally bound, agree as follows:
AGREEMENT
ARTICLE I
Definitions
1.01 Capitalized terms used in this Amendment are defined in the Intercreditor Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
Amendments
2.01 Amendments to the Intercreditor Agreement. The Intercreditor Agreement is hereby amended (a) to delete the red
or green stricken text (indicated textually in the same manner as the following examples: stricken text
and stricken text) and (b) to add the blue or green double-underlined text (indicated
textually in the same manner as the following examples: double-underlined
text and double-underlined text), in each case, as set forth in
the marked copy of the Intercreditor Agreement attached hereto as Annex A and incorporated herein and made a part hereof for
all purposes, including the addition of the revised Exhibit A (ABL Equipment detail) included with the marked Intercreditor Agreement
attached hereto as Annex A.
ARTICLE III
Conditions Precedent
3.01 Conditions to Effectiveness. The effectiveness of this Amendment is subject to the satisfaction of the following conditions
precedent in a manner satisfactory to ABL Agent and the Term Loan Agent:
(a) ABL Agent shall have received this Amendment duly executed by each party hereto (and acknowledged by the Loan Parties).
(b) Term Loan Agent shall have received this Amendment duly executed by each party hereto (and acknowledged by the Loan Parties).
(c) The ABL Amendment shall have become effective in accordance with its terms and the Term Loan Agent shall have received a duly executed
copy thereof.
(d) The Term Loan Amendment shall have become effective in accordance with its terms and the ABL Agent shall have received a duly executed
copy thereof.
ARTICLE IV
Ratifications, Representations and Warranties
4.01 Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms
and provisions set forth in the Intercreditor Agreement and, except as expressly modified and superseded by this Amendment, the terms
and provisions of the Intercreditor Agreement are ratified and confirmed and shall continue in full force and effect. On and after the
date hereof, each reference in any of the ABL Documents or the Term Loan Documents to the “Intercreditor Agreement” shall
mean and be a reference to the Intercreditor Agreement as amended by this Amendment.
4.02 Representations and Warranties. Each of the ABL Agent and the Term Loan Agent hereby represents and warrants as follows
to the other agent:
(a) This Amendment and the Intercreditor Agreement, as amended hereby, constitute legal, valid and binding obligations of the ABL Agent
and Term Loan Agent and are enforceable against it in accordance with their respective terms, except as such enforceability may be limited
by any applicable bankruptcy, insolvency moratorium, or similar laws affecting creditors’ rights generally or by general principles
of equity.
(b) The representations and warranties made by it in the Intercreditor Agreement are true and correct in all material respects on and
as of the date hereof to the same extent as made on and as of the date hereof, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects
on and as of such date.
ARTICLE V
Miscellaneous Provisions
5.01 Survival of Representations and Warranties. All representations and warranties made in this Amendment shall be considered
to have been relied upon by the other party hereto and shall survive the execution and delivery of this Amendment, regardless of any investigation
made by any such other party.
5.02 Severability. Any provision of this Amendment that is prohibited or unenforceable shall not impair or invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
5.03 Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of the ABL Agent, the ABL Claimholders,
the Term Loan Agent, the Term Loan Claimholders, and their respective successors and assigns.
5.04 Counterparts; Electronic Signatures. This Amendment may be executed in one or more counterparts (and by different parties
hereto in different counterparts), each of which when so executed shall be deemed to be an original, but all of which when taken together
shall constitute one and the same instrument. This Amendment may be executed by facsimile transmission or other electronic means, which
facsimile or other electronic signatures shall be considered original executed counterparts, and each party to this Amendment agrees that
it will be bound by its own facsimile or other electronic signature and that it accepts the facsimile or other electronic signature of
each other party to this Amendment. The words “execution”, “execute”, “signed”, “signature”
and words of like import in or related to this Amendment or any other document to be signed in connection with this Amendment and the
transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract
formations on electronic platforms approved by the ABL Agent and Term Loan Agent, or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global
and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary neither the ABL Agent, nor
the Term Loan Agent, is under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed
to by the ABL Agent or Term Loan Agent (as applicable) pursuant to procedures approved by it.
5.05 Headings. The headings, captions, and arrangements used in this Amendment are for convenience only and shall not affect
the interpretation of this Amendment.
5.06 Submission to Jurisdiction; Waivers. Section 9.6 of the Intercreditor Agreement is hereby incorporated herein, mutatis
mutandis.
5.07 Applicable Law. Section 9.9 of the Intercreditor Agreement is hereby incorporated herein, mutatis mutandis.
5.08 Amendment Consents. The ABL Agent consents to the Term Loan Agent’s entry into the Term Loan Amendment (in the
form previously presented to the ABL Agent). The Term Loan Agent consents to the ABL Agent’s entry into the ABL Amendment (in the
form previously presented to the Term Loan Agent).
5.09 Final Agreement. THE INTERCREDITOR AGREEMENT, AS AMENDED HEREBY, REPRESENTS THE ENTIRE EXPRESSION OF THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE INTERCREDITOR AGREEMENT, AS AMENDED HEREBY, MAY NOT BE
CONTRADICTED OR QUALIFIED BY ANY OTHER AGREEMENT, ORAL OR WRITTEN, BEFORE THE DATE HEREOF. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES. NO MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN
AGREEMENT SIGNED BY THE ABL AGENT AND TERM LOAN AGENT.
[Signature pages follow.]
IN WITNESS WHEREOF, this
Amendment has been executed on the date first written above, to be effective as the date set forth above.
ABL AGENT: |
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PNC BANK, National Association, |
Successor to BBVA USA, as ABL Agent |
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By: |
/s/ Brad Miller |
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Name: |
Brad Miller |
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Title: |
Vice President |
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Signature Page – Quest – Third Amendment
to Intercreditor Agreement
TERM LOAN AGENT: |
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MONROE CAPITAL MANAGEMENT ADVISORS, LLC, |
as Term Loan Agent |
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By: |
/s/ Andrés Bañuelos |
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Name: |
Andrés Bañuelos |
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Title: |
Vice President |
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Signature Page – Quest – Third Amendment
to Intercreditor Agreement
ACKNOWLEDGMENT AND AGREEMENT
Each of the Loan Parties hereby
acknowledges that is has received a copy of the Third Amendment to Intercreditor Agreement to which this Acknowledgement and Agreement
is attached (the “Amendment”) and agrees to recognize all rights granted by the Intercreditor Agreement (as amended
by the Amendment) to the ABL Claimholders and the Term Loan Claimholders, waives the provisions of Section 9-615(a) of the UCC in connection
with the application of Proceeds of Collateral in accordance with the provisions of the Intercreditor Agreement (as amended by the Amendment),
and agrees that it will not do any act in violation of any express restriction or prohibition in the Intercreditor Agreement (as amended
by the Amendment). The Loan Parties each further acknowledge and agree that they are not an intended beneficiary or third party beneficiary
under the Intercreditor Agreement, as amended, restated, supplemented, or otherwise modified hereafter.
ACKNOWLEDGED AND AGREED AS OF THE DATE FIRST WRITTEN ABOVE:
LOAN PARTIES:
QUEST RESOURCE MANAGEMENT GROUP, LLC |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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QUEST EQUIPMENT, LLC
(F/K/A LANDFILL DIVERSION INNOVATIONS, L.L.C.) |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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QUEST RESOURCE HOLDING CORPORATION |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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Signature Page – Quest – Loan Party
Acknowledgement re: Third Amendment to Intercreditor Agreement
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QUEST SUSTAINABILITY SERVICES, INC. |
(F/K/A EARTH 911, INC.) |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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YOUCHANGE, INC. |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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QUEST VERTIGENT CORPORATION |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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QUEST VERTIGENT ONE, LLC |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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GLOBAL ALERTS, LLC |
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By: |
/s/ Brett Johnston |
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Name: |
Brett Johnston |
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Title: |
Chief Financial Officer |
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Annex A
Amended Intercreditor Agreement
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT
(this “Agreement”) is dated as of October 19, 2020, and entered into by and between BBVA USA, in its capacity
as agent under the ABL Documents, including its permitted successors and assigns in such capacity from time to time (“ABL Agent”),
and MONROE CAPITAL MANAGEMENT ADVISORS, LLC, in its capacity as agent under the Term Loan Documents, including its permitted successors
and assigns in such capacity from time to time (“Term Loan Agent”).
RECITALS
WHEREAS, Quest Resource Management
Group, LLC, a Delaware limited liability company (“Quest”), Landfill Diversion
Innovations, L.L.C., a Delaware limited liability company (“Landfill”), RWS Facility ServicesQuest
Equipment, LLC, a Delaware limited liability company (“RWS”),
Sustainable Solutions Group, LLC, a Delaware limited liability company (“SSGQuest
Equipment”, and together with Quest, Landfill, and RWS, jointly
and severally, the “Borrowers” and each a “Borrower”), provided, that, to the extent the borrowers
under the Term Loan Agreement are different from the Borrowers under the ABL Credit Agreement, the term “Borrowers” shall
refer to the borrowers under either agreement, as applicable) the lenders party thereto, and ABL Agent, have entered into that certain
Loan, Security and Guaranty Agreement dated as of August 5, 2020 (as amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof, the “ABL Credit Agreement”) providing for a term loan and a revolving credit facility
pursuant to which such lenders have or may, from time to time, make loans and provide other financial accommodations to Borrowers. The
obligations of Borrowers to repay such loans and other financial accommodations under the ABL Credit Agreement are guaranteed by Quest
Resource Holding Corporation, a Nevada corporation (“Holdings”), Quest Sustainability Services, Inc., a Delaware corporation
(F/K/A Earth911, Inc.) (“Parent”), Youchange, Inc., an Arizona corporation (“Youchange”), Quest
Vertigent Corporation, a Nevada corporation (“Vertigent”), Quest Vertigent One, LLC, a Delaware limited liability
company (“Vertigent One”), and Global Alerts, LLC, a Delaware limited liability
company (“Global Alerts”), and Sequoia Waste Management Solutions, LLC, a Delaware
limited liability company (“Sequoia”; and together with Youchange, Vertigent, Vertigent One,
Global Alerts, Parent and Holdings and any other Person that guaranties any of the ABL Debt, the “Guarantors”;
and together with the Borrowers, the “Loan Parties”);
WHEREAS, the Loan Parties,
the lenders party thereto, and Term Loan Agent have entered into that certain Credit Agreement dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time in accordance with the terms hereof, the “Term Loan Agreement”)
pursuant to which such lenders have agreed to make loans and financial accommodations to Borrowers. The obligations of Borrowers to repay
such notes and other amounts under the Term Loan Agreement are guaranteed by the Loan Parties;
WHEREAS, the obligations
of Loan Parties under the ABL Documents are to be secured (a) on a first priority basis by Liens on the ABL Priority Collateral, and (b)
on a second priority basis by Liens on the Term Loan Priority Collateral;
WHEREAS, the obligations
of Borrowers and the Guarantors under the Term Loan Documents are to be secured (a) on a first priority basis by Liens on the Term Loan
Priority Collateral, and (b) on a second priority basis by Liens on the ABL Priority Collateral; and
WHEREAS, ABL Agent,
for itself and on behalf of the ABL Claimholders, and Term Loan Agent, for itself and on behalf of the Term Loan Claimholders, desire
to enter into this Agreement to (a) confirm the relative priority of their respective security interests in the assets of Borrowers and
the Guarantors, (b) provide for the application, in accordance with such priorities, of proceeds of such assets and properties, and (c)
address certain other matters.
AGREEMENT
In consideration of the foregoing,
the mutual covenants and obligations herein set forth, and for other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION
1 . Definitions;
Rules of Construction.
1.1
Defined Terms. Any terms (whether capitalized or lower case) used in this Agreement that are defined in the UCC shall be
construed and defined as set forth in the UCC unless otherwise defined herein; provided, that to the extent that the UCC is used
to define any term used herein and if such term is defined differently in different Articles of the UCC, the definition of such term contained
in Article 9 of the UCC shall govern. As used in the Agreement, the following terms shall have the following meanings:
“ABL Agent”
has the meaning set forth in the preamble to this Agreement.
“ABL Cap”
means, as of any date of determination, the result of:
(a) the
sum of (which amount, to the extent permitted in accordance with the terms of this Agreement, shall be increased by the amount of all
interest, fees, costs, expenses, indemnities, and other amounts accrued or charged with respect to any ABL Debt (other than Excess ABL
Debt) as and when the same accrues or becomes due and payable, irrespective of whether the same is added to the principal amount of the
ABL Debt and including the same as would accrue and become due but for the commencement of an Insolvency Proceeding, whether or not such
amounts are allowed or allowable, in whole or in part, in any such Insolvency Proceeding):
(i) $44,000,00055,960,000,
plus
(ii) [reserved];
(iii) the
amount of Bank Product Obligations in an amount not to exceed $7,750,000 and Derivative Obligations in an amount not to exceed $1,500,000,
plus
(iv) the
ABL DIP Amount,
minus
(b) the
sum of:
(i) the
aggregate amount of all permanent reductions of the revolving credit commitments under the ABL Credit Agreement, including those accompanied
by permanent repayments and prepayments of the principal amount of the revolving loan obligations (other than the permanent reduction
of revolving credit commitments replaced dollar for dollar with a Refinancing thereof), plus
(ii) the
aggregate amount of all permanent repayments and prepayments of the principal amount of term loan obligations under the ABL Credit Agreement
(other than payments of such term loan obligations in connection with a Refinancing thereof).
“ABL Cash Collateral”
has the meaning set forth in Section 6.2(a).
“ABL Claimholders”
means, as of any date of determination, the holders of the ABL Debt at that time, including (a) ABL Agent, (b) the ABL Lenders, (c) the
Issuing Bank (as defined in the ABL Credit Agreement), and (d) any of their respective Affiliates holding ABL Debt.
“ABL Collateral”
means the assets of each and every Grantor, whether real, personal or mixed, with respect to which a Lien is granted (or purported to
be granted) as security for any ABL Debt, including all Proceeds and products thereof.
“ABL Collateral Documents”
means the ABL Security Documents and any other agreement, document, or instrument pursuant to which a Lien is granted (or purported to
be granted) securing any ABL Debt or under which rights or remedies with respect to such Liens are governed.
“ABL Credit Agreement”
has the meaning set forth in the recitals to this Agreement.
“ABL Debt”
means all Obligations (as defined in the ABL Credit Agreement), and all other amounts owing, due, or secured under the terms of the ABL
Credit Agreement or any other ABL Document, whether now existing or arising hereafter, including all principal, premium, interest, fees,
attorneys’ fees, costs, charges, expenses, reimbursement obligations, obligations with respect to loans, Letters of Credit, Bank
Product Obligations, obligations to provide cash collateral in respect of Letters of Credit or Bank Product Obligations or indemnities
in respect thereof, any other indemnities or guarantees, and all other amounts payable under or secured by any ABL Document (including,
in each case, all amounts accruing on or after the commencement of any Insolvency Proceeding relating to any Grantor, or that would have
accrued or become due under the terms of the ABL Documents but for the effect of the Insolvency Proceeding and irrespective of whether
a claim for all or any portion of such amounts is allowable or allowed in such Insolvency Proceeding), in each case whether direct or
indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, secured or unsecured.
For the avoidance of doubt, the foregoing shall constitute “ABL Debt” notwithstanding any limitations on, restrictions of,
or agreements by, Grantors in the Term Loan Documents with respect to the incurrence of any ABL Debt (whether as a result of Overadvances
(as defined in the ABL Credit Agreement) or otherwise).
“ABL Default”
means any “Event of Default”, as such term is defined in any ABL Document.
“ABL Deficiency Claim”
means any portion of the ABL Priority Debt consisting of an allowed unsecured claim under Section 506(a) of the Bankruptcy Code (or any
similar provision under any other law governing an Insolvency Proceeding).
“ABL DIP Amount”
means, after the commencement of an Insolvency Proceeding, the incremental principal amount of ABL DIP Financing, not to exceed 10% of
the sum of the principal amount of the ABL Debt and all unfunded commitments to extend ABL Debt under the ABL Credit Agreement, in each
case, outstanding immediately prior to the commencement of an Insolvency Proceeding.
“ABL DIP Financing”
has the meaning set forth in Section 6.2(a).
“ABL DIP Financing
Conditions” means (a) that (i) Term Loan Agent retains its Liens with respect to the Collateral that existed as of the date
of the commencement of the applicable Insolvency Proceeding (including Proceeds thereof arising after the commencement of such Insolvency
Proceeding), (ii) as to the Term Loan Priority Collateral that existed as of the date of the commencement of such Insolvency Proceeding
(including Proceeds thereof arising after such commencement of the Insolvency Proceeding), Term Loan Agent’s Liens with respect
to such Term Loan Priority Collateral remain senior and prior to the Liens (inclusive of any Liens securing the ABL DIP Financing) of
ABL Agent with respect to such Term Loan Priority Collateral, (iii) as to Term Loan Priority Collateral acquired by the applicable Grantor
after the commencement of such Insolvency Proceeding (excluding identifiable Proceeds of Term Loan Priority Collateral existing prior
to the commencement of applicable Insolvency Proceeding), if a Lien with respect to such Collateral is granted to secure the ABL DIP Financing,
then Term Loan Agent obtains a Lien with respect to such Collateral and the Liens with respect to such Collateral securing the ABL DIP
Financing are junior and subordinate to the Liens of Term Loan Agent with respect to such Collateral and the Term Loan Agent is not restricted
from seeking, and the ABL Agent does not object to, a replacement or additional Lien as adequate protection as permitted by Section
6.5; (b) in the case of ABL DIP Financing, that the aggregate principal amount of such ABL DIP Financing does not exceed the ABL DIP
Amount, and the aggregate outstanding principal amount of other ABL Priority Debt outstanding as of the commencement of the Insolvency
Proceeding plus the ABL DIP Amount does not exceed the ABL Cap, (c) that the proposed ABL Cash Collateral order or ABL DIP Financing documentation
does not expressly require the sale of all or substantially all of the Collateral prior to a default under such order or documentation,
(d) the ABL Agent does not seek to obtain a priming Lien of any of the Term Loan Priority Collateral, (e) that the proposed cash collateral
use or ABL DIP Financing does not compel any Grantor to seek conformation of a specific plan of reorganization for which all or substantially
all of the material terms are set forth in the cash collateral order or documentation governing such ABL DIP Financing and (f) that the
ABL DIP Financing is otherwise subject to the terms of this Agreement.
“ABL Documents”
means the ABL Collateral Documents, the ABL Credit Agreement, the Line of Credit and Investment Sweep Rider, dated as of December 2, 2022,
by and among the Borrowers and ABL Agent, and each of the other Loan Documents (as that term is defined in the ABL Credit Agreement).
“ABL Equipment”
means all equipment of the Grantors described in reasonable detail on Exhibit A (which will be updated automatically when an updated
Exhibit A is sent by the ABL Agent to the Term Loan Agent) hereto, the purchase of which was financed at least 80% from the proceeds
of the term loan included in ABL Debt (evidenced by an invoice not more than six (6) months prior to the date of the proposed advance
of term loan ABL Debt and specifically identified by Borrower as constituting the basis for such requested advance).
“ABL Lenders”
means the “Lenders” as that term is defined in the ABL Credit Agreement (including each Issuing Bank (as defined in the ABL
Credit Agreement)).
“ABL Priority Collateral”
means all of each and every Grantor’s right, title, and interest in and to the following types of property of such Grantor, wherever
located and whether now owned by such Grantor or hereafter acquired (including, for the avoidance of doubt, any such assets that, but
for the application of Section 552 of the Bankruptcy Code (or any provision of any other Bankruptcy Law), would constitute ABL Priority
Collateral):
(a) all
accounts;
(b) all
inventory;
(c) all
ABL Equipment;
(d) all
instruments, documents, chattel paper (including all tangible and electronic chattel paper) and other contracts, in each case to the extent
governing, evidencing, substituting for, arising from or constituting Proceeds of any accounts and ABL Equipment;
(e) all
deposit accounts and securities accounts, and cash and cash equivalents included in such deposit accounts or securities accounts, but
excluding identifiable Proceeds of Term Loan Priority Collateral and the Term Loan Collateral Account, and including identifiable Proceeds
of ABL Priority Collateral contained in the Term Loan Collateral Account;
(f) all
guaranties, contracts of suretyship, trade-credit insurance, letters of credit, letter-of-credit rights, security and other credit enhancements
(including repurchase agreements), and supporting obligations, in each case in respect of accounts, including identifiable deposits by
and property of account debtors or other persons securing the obligations of account debtors in respect of accounts;
(g) all
proceeds of commercial tort claims arising solely from claims for loss solely with respect to ABL Equipment;
(h) all
claims under policies of casualty and liability insurance arising solely from a loss of, or damage to, ABL Priority Collateral and all
trade credit insurance;
(i) all
substitutions, replacements, accessions, products, rents or Proceeds of any of the foregoing, in any form, of any kind or nature of any
or all of the foregoing.
For purposes of clarification,
and notwithstanding anything to the contrary set forth in this Agreement, (i) Intellectual Property and, subject to Section 3.11,
any and all Proceeds thereof shall not constitute ABL Priority Collateral, but instead shall constitute Term Loan Priority Collateral,
(ii) any inventory that is or becomes branded, or produced through the use or other application of, any Intellectual Property, whether
pursuant to the exercise of rights pursuant to Section 3.9 or otherwise, shall constitute ABL Priority Collateral, and no Proceeds arising
from any Disposition of any such inventory shall be, or be deemed to be, attributable to Term Loan Priority Collateral and (iii) Equity
Interests of any Grantor or any Subsidiary thereof and any and all Proceeds thereof shall not constitute ABL Priority Collateral but instead
shall constitute Term Loan Priority Collateral.
“ABL Priority Debt”
means all ABL Debt other than Excess ABL Debt.
“ABL Retained Interest”
has the meaning set forth in Section 10.7.
“ABL Secured Claim”
means any portion of the ABL Priority Debt not constituting an ABL Deficiency Claim.
“ABL Security Documents”
means the “ABL Credit Agreement” and the “Security Documents” as that term is defined in the ABL Credit Agreement.
“Agent”
means ABL Agent or Term Loan Agent, as the context requires. “Agreement” has the meaning set forth in the preamble
hereto.
“Bank Product Obligations”
means the “Product Obligations,” as that term is defined in the ABL Credit Agreement as in effect on the date hereof.
“Bankruptcy Code”
means Title 11 of the United States Code entitled “Bankruptcy,” as in effect from time to time, or any successor statute.
“Bankruptcy Law”
means, as applicable, the Bankruptcy Code and any other federal, state, provincial or foreign law for the relief of debtors or affecting
creditors’ rights generally.
“Books”
means books and records of each Grantor (including each Grantor’s Records indicating, summarizing, or evidencing such Grantor’s
assets (including the Collateral) or liabilities, each Grantor’s Records relating to such Grantor’s business operations or
financial condition, including customer lists, invoices, credit memos, purchase and file orders, and each Grantor’s goods or general
intangibles related to such items).
“Borrower”
and “Borrowers” have the meanings set forth in the recitals to this Agreement.
“Business Day”
means any day other than a Saturday, Sunday, or day on which banks in New York, New York are authorized or required by law to close.
“Claimholders”
means the ABL Claimholders and the Term Loan Claimholders, or any one of them.
“Collateral”
means all of the assets of each and every Grantor, whether real, personal or mixed, moveable or immoveable, constituting ABL Collateral
or Term Loan Collateral.
“Collateral Documents”
means the ABL Collateral Documents or the Term Loan Collateral Documents, as the context requires.
“Debt”
means the ABL Debt or the Term Loan Debt, as the context requires.
“Disposition”
or “Dispose” means the sale, assignment, transfer, license, lease (as lessor), exchange, or other disposition (including
any sale and leaseback transaction) of any property by any person (or the granting of any option or other right to do any of the foregoing).
“Enforcement Action”
means
(a) the
taking of any action to enforce any Lien in respect of the Collateral, including the institution of any foreclosure proceedings or the
noticing of any public or private sale or other disposition pursuant to Article 9 of the UCC, Bankruptcy Code or other applicable law,
or the taking of any action in an attempt to vacate or obtain relief from a stay or other injunction restricting any other action described
in this definition,
(b) the
exercise of any right or remedy provided to a secured creditor with respect to Collateral under the ABL Documents or the Term Loan Documents
(excluding any exercise of dominion of funds under a control agreement but including, in either case, any delivery of any notice to seek
to obtain payment directly from any account debtor of any Grantor or any depositary bank, securities intermediary, or other person obligated
on any Collateral of any Grantor, the making of any test verifications of accounts by reaching out to account debtors or notification
to any account debtor of any assignment of any account, the taking of any action or the exercise of any right or remedy in respect of
the Collateral, or the exercise of any right of setoff or recoupment with respect to obligations owed to any Grantor), under applicable
law, at equity, in an Insolvency Proceeding or otherwise, including the acceptance of Collateral in full or partial satisfaction of an
obligation,
(c) the
Disposition of all or any portion of the Collateral, by private or public sale or any other means, in connection with the exercise of
enforcement rights relating to the Collateral,
(d) the
solicitation of bids from third parties to conduct the Disposition of all or a material portion of the Collateral, in connection with,
or in anticipation of, the exercise of enforcement rights relating to the Collateral,
(e) the
engagement or retention of sales brokers, marketing agents, investment bankers, accountants, appraisers, auctioneers, or other third parties
for the purpose of valuing, marketing, or Disposing of all or a material portion of the Collateral within a commercially reasonable period
of time, following the occurrence and during the continuance of an “Event of Default” under the ABL Credit Agreement or Term
Loan Agreement, as applicable,
(f) the
exercise of any other enforcement right relating to the Collateral (including the exercise of any voting rights relating to any Equity
Interests composing a portion of the Collateral) whether under the ABL Documents, the Term Loan Documents, under applicable law of any
jurisdiction, in equity, in an Insolvency Proceeding, or otherwise (including the commencement of applicable legal proceedings or other
actions with respect to the Collateral to facilitate the actions described in the preceding clauses), or
(g) the
pursuit of ABL Default Dispositions or Term Loan Default Dispositions relative to all or a material portion of the Collateral to the extent
undertaken and being diligently pursued in good faith to consummate the Disposition of such Collateral within a commercially reasonable
time.
Notwithstanding the foregoing,
an “Enforcement Action” shall not include (a) the imposition of a default rate or late fee, (b) the filing of a proof of claim
in any Insolvency Proceeding, (c) the acceleration of the ABL Debt or the Term Loan Debt or (d) the exercise of any other rights and remedies
of an unsecured creditor in a manner consistent with the terms of this Agreement.
“Enforcement Notice”
means a written notice delivered by either ABL Agent or Term Loan Agent to the other stating (a) that an ABL Default or a Term Loan Default,
as applicable, has occurred and is continuing under the ABL Credit Agreement or the Term Loan Agreement, as applicable, and specifying
the nature of the relevant event of default, and (b) that an Enforcement Period has commenced with respect to the applicable Priority
Collateral.
“Enforcement Period”
means the period of time following the receipt by either ABL Agent or Term Loan Agent of an Enforcement Notice from the other and
continuing until the earliest of (a) in case of an Enforcement Period commenced by Term Loan Agent, the Payment in Full of Term Loan Debt,
(b) in the case of an Enforcement Period commenced by ABL Agent, the Payment in Full of ABL Priority Debt, or (c) ABL Agent or Term Loan
Agent (as applicable) terminates, or agrees in writing to terminate, the Enforcement Period (including in connection with a waiver or
cure of the event of default that gave rise to such Enforcement Notice).
“Equity Interests”
means, with respect to a Person, all of the shares, options, warrants, interests, participations, or other equivalents (regardless of
how designated) of or in such Person, whether voting or nonvoting, including capital stock (or other ownership or profit interests or
units), preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations
promulgated by the United States Securities and Exchange Commission under the Securities Exchange Act of 1934).
“Excess ABL Debt”
means the sum of (a) the portion of the ABL Debt that is in excess of the ABL Cap, plus (b) the portion of interest, costs, expenses and
fees that accrues or is charged with respect to that portion of the principal amount of the loans and Letters of Credit described in clause
(a) of this definition.
“Excess Availability”
means, on any specific date, an amount equal to (a) the Line Cap (as defined in the ABL Credit Agreement as in effect on the date hereof),
minus (b) the Aggregate Revolving Extensions (as defined in the ABL Credit Agreement as in effect on the date hereof), plus (c) unrestricted
cash accounts of any Grantor in which ABL Agent has a first-priority perfected Lien; provided, however, the amount in this subsection
(c) cannot exceed $3,000,000.
“Excess Term Loan
Debt” means the sum of (a) the portion of the Term Loan Debt that is in excess of the Term Loan Cap, plus (b) the portion of
interest, costs, expenses and fees that accrues or is charged with respect to that portion of the principal amount of the loans described
in clause (a) of this definition.
“Final Order”
means an order of a court of competent jurisdiction as to which the time to appeal, petition for certiorari, or move for re-argument
or rehearing has expired and as to which no appeal, petition for certiorari, or other proceedings for re-argument or rehearing
shall then be pending or, in the event that an appeal, writ of certiorari, or re-argument or rehearing thereof has been filed or sought,
such order shall have been affirmed or confirmed by the highest court to which such order was appealed, or from which certiorari, re-argument
or rehearing was sought and the time to take any further appeal, petition for certiorari or move for re-argument or rehearing shall have
expired; provided, that the possibility that a motion under Rule 59 or Rule 60 of the Federal Rules of Civil Procedure or any analogous
rule under the Federal Rules of Bankruptcy Procedure or applicable state court rules of civil procedure, may be filed with respect to
such order shall not cause such order not to be a Final Order.
“Governmental Authority”
means the government of the United States of America, or any other nation, any political subdivision thereof, whether state, provincial,
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.
“Grantors”
means Parent, each Borrower and each Guarantor, and each other person that may, from time to time, execute and deliver an ABL Collateral
Document or a Term Loan Collateral Document as a “debtor,” “grantor,” “obligor,” or “pledgor”
(or the equivalent thereof) or that may, from time to time, be (or whose assets may be) subject to a judgment lien in favor of any of
the ABL Claimholders or any of the Term Loan Claimholders in respect of the ABL Debt or the Term Loan Debt, as applicable, and “Grantor”
means any one of them.
“Guarantors”
has the meaning set forth in the recitals to this Agreement and “Guarantor” means any one of them.
“Inalienable Interests”
has the meaning set forth in Section 4.4. “Insolvency Proceeding” means:
(a) any
voluntary or involuntary case or proceeding under any Bankruptcy Law with respect to any Grantor; or any filing by any Grantor of a notice
of intention to make a proposal;
(b) any
other voluntary or involuntary insolvency or bankruptcy case or proceeding, or any interim receivership or other receivership, liquidation
or other similar case or proceeding with respect to any Grantor or with respect to a material portion of its assets;
(c) any
liquidation, dissolution, or winding up of any Grantor whether voluntary or involuntary and whether or not involving insolvency or bankruptcy;
(d) any
assignment for the benefit of creditors or any other marshaling of assets or liabilities of any Grantor; or
(e) any
event analogous to any of the foregoing in any jurisdiction.
“Investment Property”
means any and all investment property (as that term is defined in the UCC).
“Intellectual Property”
means all past, present and future: trade secrets, know-how and other proprietary information; trademarks, internet domain names, service
marks, trade dress, trade names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations
of the foregoing) indicia and other source and/or business identifiers, and the goodwill of the business relating thereto and all registrations
or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights (including
copyrights for computer programs) and copyright registrations or applications for registrations which have heretofore been or may hereafter
be issued throughout the world and all tangible property embodying the copyrights, unpatented inventions (whether or not patentable);
patent applications and patents; industrial design applications and registered industrial designs; license agreements related to any of
the foregoing and income therefrom; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software,
source codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any of
the foregoing; the right to sue for all past, present and future infringements of any of the foregoing; all other intellectual property;
and all common law and other rights throughout the world in and to all of the foregoing.
“Junior Agent”
means, with respect to the ABL Priority Collateral, Term Loan Agent, and with respect to the Term Loan Priority Collateral, ABL Agent.
“Junior Claimholders”
means, with respect to the ABL Priority Collateral, the Term Loan Claimholders, and with respect to the Term Loan Priority Collateral,
the ABL Claimholders.
“Junior Collateral”
means, with respect to the ABL Debt, all Collateral other than ABL Priority Collateral, and with respect to the Term Loan Debt, all Collateral
other than Term Loan Priority Collateral.
“Junior Debt”
means, with respect to the ABL Priority Collateral, the Term Loan Debt and the Excess ABL Debt, and with respect to the Term Loan Priority
Collateral, the ABL Debt and the Excess Term Loan Debt.
“Junior 507(b) Claims”
has the meaning set forth in Section 6.5(f).
“Junior Lenders”
means, with respect to the ABL Priority Collateral, the Term Lenders, and with respect to the Term Loan Priority Collateral, the ABL Lenders.
“Letters of Credit”
means the “Letters of Credit” as that term is defined in the ABL Credit Agreement.
“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory
or other), security interest, or other security arrangement and any other preference, priority, or preferential arrangement of any kind
or nature whatsoever, including any conditional sale contract or other title retention agreement, the interest of a lessor under a capital
lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.
“Loan Documents”
means ABL Documents or Term Loan Documents, as the context requires.
“Loan Parties”
has the meaning set forth in the recitals to this Agreement.
“Monroe Capital”
means Monroe Capital Management Advisors, LLC and its affiliates and controlled investment vehicles.
“Ordinary Course
Collections” has the meaning set forth in Section 4.1.
“Payment Conditions”
means with respect to any applicable transaction, (i) no Default (as defined under the ABL Credit Agreement as in effect on the date
hereof) and no ABL Default shall exist immediately after giving effect to such transaction, (ii) after giving effect to such payment,
Excess Availability shall exceed $3,000,0004,000,000,
(iii) the Fixed Charge Coverage Ratio (as defined under the ABL Credit Agreement as in effect on the date hereof) for the most recently
ended trailing twelve calendar month period shall not be less than 1.10 to 1.00, and (iv) before and immediately after giving effect
to such transaction, the Loan Parties are in compliance with each of the financial covenants set forth in Section 9.2.12 of the ABL Credit
Agreement as in effect on the date hereof as of the last day of the most recent Fiscal Quarter for which financial statements have been
delivered.
“Payment in Full
of ABL Priority Debt” means, except to the extent otherwise expressly provided in Section 5.5 or in Section 6.8:
(a) payment
in full in cash or immediately available funds of all of the ABL Priority Debt (other than outstanding Letters of Credit, Bank Product
Obligations and unasserted contingent indemnification and reimbursement obligations);
(b) termination
or expiration of all commitments, if any, of the ABL Lenders to extend credit to Borrowers;
(c) termination
of, providing cash collateral (in an amount not to exceed 103% of the face amount of outstanding Letters of Credit) or the making of other
arrangements reasonably satisfactory to the ABL Agent in respect of, all outstanding Letters of Credit that compose a portion of the ABL
Priority Debt;
(d) termination
of (and paying the outstanding amount due in respect of), or, at Agent’s election, providing cash collateral in respect of Bank
Product Obligations in an amount not greater than 103% of, all Bank Product Obligations then outstanding and termination of (and paying
the outstanding amount due in respect of) Derivative Obligations;
(e) termination
of and paying the outstanding amount due in respect of Derivative Obligations (as defined in the Credit Agreement as in effect on the
date hereof);
(f) providing
cash collateral to ABL Agent in such amount as ABL Agent reasonably determines is reasonably necessary to secure the ABL Claimholders
in respect of any asserted or threatened (in writing) claims, demands, actions, suits, proceedings, investigations, liabilities, fines,
costs, penalties, or damages for which any of the ABL Claimholders may be entitled to indemnification or reimbursement by any Grantor
pursuant to the indemnification and reimbursement provisions in the ABL Documents.
“Payment in Full
of Priority Debt” means, (a) if the Term Loan Priority Debt constitutes the Priority Debt, the Payment in Full of Term Loan
Priority Debt, and (b) if the ABL Priority Debt constitutes the Priority Debt, the Payment in Full of ABL Priority Debt.
“Payment in Full
of Term Loan Priority Debt” means, except to the extent otherwise expressly provided in Section 5.5 or in Section
6.8:
(a) payment
in full in cash or immediately available funds of all of the Term Loan Priority Debt (other than unasserted contingent indemnification
and reimbursement obligations);
(b) termination
or expiration of all commitments, if any, of the Term Lenders to extend credit to Borrowers; and
(c) providing
cash collateral to Term Loan Agent in such amount as Term Loan Agent reasonably determines is reasonably necessary to secure the Term
Loan Claimholders in respect of any asserted or threatened (in writing) claims, demands, actions, suits, proceedings, investigations,
liabilities, fines, costs, penalties, or damages for which any of the Term Loan Claimholders may be entitled to indemnification or reimbursement
by any Grantor pursuant to the indemnification and reimbursement provisions in the Term Loan Documents.
“person”
means any natural person, corporation, trust, business trust, joint venture, joint stock company, association, company, limited liability
company, partnership, Governmental Authority, or other entity.
“Pledged Collateral”
has the meaning set forth in Section 5.4(a).
“Priority Agent”
means, with respect to the ABL Priority Collateral, ABL Agent, and with respect to the Term Loan Priority Collateral, Term Loan Agent.
“Priority Collateral”
means, with respect to the ABL Debt, all ABL Priority Collateral, and with respect to the Term Loan Debt, all Term Loan Priority Collateral.
“Priority Claimholders”
means, with respect to the ABL Priority Collateral, the ABL Claimholders, and with respect to the Term Loan Priority Collateral, the Term
Loan Claimholders, in each case subject to the reciprocal rights set forth in Section 9.16.
“Priority Debt”
means, with respect to the ABL Priority Collateral, the ABL Priority Debt, and with respect to the Term Loan Priority Collateral, the
Term Loan Priority Debt.
“Priority Lenders”
means, with respect to the ABL Priority Collateral, the ABL Lenders, and with respect to the Term Loan Priority Collateral, the Term Lenders.
“Proceeds”
means (a) all “proceeds,” as defined in Article 9 of the UCC, of the Collateral and (b) whatever is recovered when Collateral
is Disposed of, voluntarily or involuntarily, including any additional or replacement Collateral provided during any Insolvency Proceeding
and any payment or property received in an Insolvency Proceeding on account of any “secured claim” (within the meaning of
Section 506(b) of the Bankruptcy Code).
“Purchase Notice”
has the meaning set forth in Section 10.1.
“Records”
means information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable
form.
“Recovery”
has the meaning set forth in Section 6.8.
“Refinance”
means, in respect of any indebtedness, to refinance, extend, renew, supplement, restructure, replace, refund, amend and restate, or repay,
or to issue other indebtedness in exchange or replacement for such indebtedness, in whole or in part, whether with the same or different
lenders, arrangers, or agents provided that the Liens securing such indebtedness are subject to this Agreement. “Refinanced”
and “Refinancing” shall have correlative meanings.
“Seller Subordination
Agreement” means that certain Subordination Agreement, dated as of the date hereof, by and among the ABL Agent, the Term Loan
Agent and the Subordinated Creditor (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance
with such agreement).
“Senior 507(b) Claims”
has the meaning set forth in Section 6.5(e).
“Standstill Notice”
means a written notice from ABL Agent to Term Loan Agent or from Term Loan Agent to ABL Agent, as applicable, identified by its terms
as a “Standstill Notice” for purposes of this Agreement and stating that an ABL Default or Term Loan Default, as applicable,
has occurred and is continuing.
“Standstill Period”
means the period of 180 consecutive days commencing on the date on which ABL Agent or Term Loan Agent, as applicable, receives the applicable
Standstill Notice from the other Agent.
“Subordinated Creditor”
means Green Remedies Waste and Recycling, Inc., a North Carolina corporation, and its successors and assigns.
“Subsidiary”
of a person means a corporation, partnership, limited liability company, or other entity as to which that person directly or indirectly
owns or controls the Equity Interests having ordinary voting power to elect a majority of the board of directors (or appoint other comparable
managers) of such corporation, partnership, limited liability company, or other entity.
“Term Lender”
means the “Lenders” as that term is defined in the Term Loan Agreement.
“Term Loan Agent”
has the meaning set forth in the preamble to this Agreement.
“Term Loan Agreement”
has the meaning set forth in the recitals to this Agreement.
“Term Loan Cap”
means, as of any date of determination, the result of:
(a) the
sum of (which amount, to the extent permitted in accordance with this Agreement, shall be increased by the amount of all interest, fees,
costs, expenses, indemnities, and other amounts accrued or charged with respect to any of the Term Loan Debt (other than Excess Term Loan
Debt) as and when the same accrues or becomes due and payable, irrespective of whether the same is added to the principal amount of the
Term Loan Debt and including the same as would accrue and become due but for the commencement of an Insolvency Proceeding, whether or
not such amounts are allowed or allowable, in whole or in part, in any such Insolvency Proceeding):
(i) $14,375,00067,500,000,
(ii) 125%
of the principal amount of the Delayed Draw Term B
Loans (as defined in the Term Loan Agreement) actually funded but in no event in excess of $15,625,00031,250,000,
(iii) 125%
of the principal amount of the Incremental Loans (as defined in the Term Loan Agreement) actually funded, but in no event in excess of
$50,000,00031,250,000 plus
(iv) the
Term Loan DIP Amount,
minus
(b) the aggregate amount of all permanent repayments
and prepayments of the principal amount of Term Loan obligations under the Term Loan Agreement (other than payments of such Term Loan
obligations in connection with a Refinancing thereof).
“Term Loan Cash Collateral”
has the meaning set forth in Section 6.2(b).
“Term Loan Claimholders”
means, as of any date of determination, the holders of the Term Loan Debt at that time, including (a) Term Loan Agent, and (b) the Term
Lenders.
“Term Loan Collateral”
means all of the assets of each and every Grantor, whether real, personal, or mixed, with respect to which a Lien is granted (or purported
to be granted) as security for any Term Loan Debt, including all Proceeds and products thereof.
“Term Loan Collateral
Account” shall mean any deposit account established after the date hereof by any Grantor and the Term Loan Agent to hold Proceeds
of Term Loan Priority Collateral.
“Term Loan Collateral
Documents” means the Term Loan Security Agreement, the Term Loan Mortgages, and any other agreement, document, or instrument
pursuant to which a Lien is granted (or purported to be granted) securing any Term Loan Debt or under which rights or remedies with respect
to such Liens are governed.
“Term Loan Debt”
means all Obligations (as that term is defined in the Term Loan Agreement) and all other amounts owing, due, or secured under the terms
of the Term Loan Agreement or any other Term Loan Document, whether now existing or arising hereafter, including all principal, premium,
interest, fees, attorneys’ fees, costs, charges, expenses, reimbursement obligations, obligations with respect to loans, indemnities,
guarantees, and all other amounts payable under or secured by any Term Loan Document (including, in each case, all amounts accruing on
or after the commencement of any Insolvency Proceeding relating to any Grantor, or that would have accrued or become due under the terms
of the Term Loan Documents but for the effect of the Insolvency Proceeding and irrespective of whether a claim for all or any portion
of such amounts is allowable or allowed in such Insolvency Proceeding), in each case whether direct or indirect, absolute or contingent,
joint or several, due or not due, primary or secondary, liquidated or unliquidated, secured or unsecured. For the avoidance of doubt,
the foregoing shall constitute “Term Loan Debt” notwithstanding any limitations on, restrictions of, or agreements by, Grantors
in the ABL Documents with respect to the incurrence of any Term Loan Debt (whether as a result of incremental facilities or otherwise).
“Term Loan Default”
means any “Event of Default”, as such term is defined in any Term Loan Document.
“Term Loan Deficiency
Claim” means any portion of the Term Loan Priority Debt consisting of an allowed unsecured claim under Section 506(a) of the
Bankruptcy Code (or any similar provision under any other law governing an Insolvency Proceeding).
“Term Loan DIP Amount”
means, after the commencement of an Insolvency Proceeding, the aggregate outstanding principal amount of Term Loan DIP Financing not to
exceed 10% of the sum of the principal amount of the Term Loan Debt and all unfunded commitments to extend Term Loan Debt under the Term
Loan Agreement, in each case, outstanding immediately prior to the commencement of an Insolvency Proceeding.
“Term Loan DIP Financing”
has the meaning set forth in Section 6.2(b).
“Term Loan DIP Financing
Conditions” means (a) that (i) ABL Agent retains its Liens with respect to the Collateral that existed as of the date of the
commencement of the applicable Insolvency Proceeding (including Proceeds thereof arising after the commencement of such Insolvency Proceeding),
(ii) as to the ABL Priority Collateral that existed as of the date of such commencement of such Insolvency Proceeding (including Proceeds
thereof arising after the commencement of such Insolvency Proceeding), ABL Agent’s Liens with respect to such ABL Priority Collateral
remain senior and prior to the Liens (inclusive of any Liens securing the Term Loan DIP Financing) of Term Loan Agent with respect to
such ABL Priority Collateral, and (iii) as to ABL Priority Collateral acquired by the applicable Grantor after the commencement of Insolvency
Proceeding (excluding identifiable Proceeds of ABL Priority Collateral existing prior to the commencement of such Insolvency Proceeding),
if a Lien with respect to such Collateral is granted to secure the Term Loan DIP Financing, then ABL Agent obtains a Lien with respect
to such Collateral and the Liens with respect to such Collateral securing the Term Loan DIP Financing are junior and subordinate to the
Liens of ABL Agent with respect to such Collateral, and the ABL Agent is not restricted from seeking, and the Term Loan Agent does not
object to, a replacement or additional Lien as adequate protection as permitted by Section 6.5; (b) in case of Term Loan DIP Financing,
the aggregate principal amount of such Term Loan DIP Financing does not exceed the Term Loan DIP Amount and the aggregate principal amount
of the Term Loan DIP Financing plus the outstanding principal amount of other Term Loan Priority Debt does not exceed the Term Loan DIP
Amount, (c) that the interest rate, advance rates and fees are commercially reasonable under the circumstances, (d) the Term Loan Agent
does not seek to obtain a priming Lien on any ABL Priority Collateral, (e) that the proposed cash collateral use or Term Loan DIP Financing
does not compel any Grantor to seek conformation of a specific plan of reorganization for which all or substantially all of the material
terms are set forth in the cash collateral order or documentation governing such Term Loan DIP Financing and (f) that the Term Loan DIP
Financing is otherwise subject to the terms of this Agreement.
“Term Loan Documents”
means the Term Loan Collateral Documents, the Term Loan Agreement, and each of the other “Loan Documents” (as that term is
defined in the Term Loan Agreement).
“Term Loan Mortgages”
means each mortgage, deed of trust, and any other document or instrument under which any Lien on real property owned or leased by any
Grantor is granted to secure any Term Loan Debt or under which rights or remedies with respect to any such Liens are governed.
“Term Loan Priority
Collateral” means all of each and every Grantor’s right, title and interest in and to Term Loan Collateral that does not
constitute ABL Priority Collateral (including, for the avoidance of doubt, any such assets that, but for the application of Section 552
of the Bankruptcy Code (or any similar provision of any other Bankruptcy Law), would constitute ABL Priority Collateral), wherever located
and whether now owned or hereafter acquired, including the following:
(a) all
Equipment (excluding the ABL Equipment);
(b) all
Intellectual Property;
(c) all
general intangibles;
(d) all
commercial tort claims, other than commercial tort claims arising solely from claims for loss or damage solely with respect to ABL Equipment;
(e) all
Equity Interests of each Grantor and each Subsidiary thereof;
(f) all
instruments, chattel paper (including all tangible and electronic chattel paper) and documents and contracts (in each case, other than
such items constituting ABL Priority Collateral) and all payment intangibles;
(g) all
insurance (and all claims under all policies of insurance) of any kind relating to any of the Term Loan Priority Collateral (other than
trade-credit insurance constituting ABL Priority Collateral);
(h) Books;
(i) all
identifiable Proceeds of any Term Loan Priority Collateral;
(j) the
Term Loan Collateral Account and all cash and cash equivalents held therein (other than identifiable proceeds of ABL Priority Collateral);
(k) all
investment property (including securities, whether certificated or uncertificated, securities accounts, security entitlements, commodity
contracts, or commodity accounts) and all monies, credit balances, deposits, and other property of Grantor now or hereafter held, or received
by, or in transit to, an Term Loan Claimholder, any bank, securities intermediary, depository, or other institution from or for the account
of any Grantor, whether for safekeeping, pledge, custody, transmission, collection, or otherwise, in each case, (other than such items
that constitute ABL Priority Collateral);
(l) all
claims under policies of business interruption insurance, all proceeds of business interruption insurance of any Grantor, and all tax
refunds received by any Grantor;
(m) all
interests in real property (“Land”), including fee and leasehold interests, and all the buildings, structures, improvements
and fixtures of every kind or nature now or hereafter situated on such real property (“Improvements”); and all easements,
tenements, rights-of-way, vaults, gores of land, streets, ways, alleys, passages, sewer rights, water courses, water rights, timber, crops,
mineral rights, development rights, utility commitments, water and wastewater taps, living unit equivalents, capital improvement project
contracts, letters of credit, and utility construction agreements with any governmental authority, including municipal utility districts,
or with any utility companies (and all refunds and reimbursements thereunder), and powers and appurtenances in any way belonging, relating
or appertaining to any of the Land or Improvements, or which hereafter shall in any way belong, relate or be appurtenant thereto, whether
now owned or hereafter acquired (“Appurtenances”); any and all leases, licenses and other occupancy agreements now
or hereafter affecting the Land, Improvements or Appurtenances, together with all security therefor and guaranties thereof and all monies
payable thereunder, and all books and records owned by any Grantor which contain evidence of payments made under such leases, licenses
and other occupancy agreements and all security given therefor (collectively, the “Term Loan Real Property Collateral”);
and
(n) all
substitutions, replacements, accessions, products and Proceeds of any of the foregoing, in any form, including insurance proceeds and
all claims against third parties for loss or damage to, or destruction of, or other voluntary conversion (including claims in respect
of condemnation or expropriation) of any kind or nature of any or all of the foregoing.
“Term Loan Priority
Debt” means all Term Loan Debt other than Excess Term Loan Debt.
“Term Loan Secured
Claim” means any portion of the Term Loan Priority Debt not constituting a Term Loan Deficiency Claim.
“Term Loan Security
Agreement” means the “Guaranty and Collateral Agreement” as that term is defined in the Term Loan
Agreement.
“Triggering Event”
means with respect to the purchase option in favor of the Term Note Claimholders (other than Monroe Capital) any of the following events:
(a) the acceleration of the ABL Priority Debt and termination of the commitments to advance further revolving loans under the ABL Credit
Agreement, (b) ABL Agent’s taking of any Enforcement Action with respect to all or a material portion of the ABL Priority Collateral,
(c) the occurrence of a Term Note Default as a result of a failure to make principal or interest payments of any Term Note Debt when due
under the terms of the Term Note Documents, and (d) the commencement of an Insolvency Proceeding with respect to any Grantor.
“UCC” means
the Uniform Commercial Code (or any similar or comparable legislation) as in effect in any applicable jurisdiction.
“Use Period”
means the ninety (90) day period beginning on the earlier of (i) the date on which the ABL Agent provides Term Loan Agent with written
notice that it intends to exercise its use and access rights with respect to the Term Loan Priority Collateral and (ii) the 5th Business
Day after Term Loan Agent provides the ABL Agent with written notice that Term Collateral Agent has obtained possession or control, as
applicable, of such Term Loan Priority Collateral; provided, that if any stay or other order has occurred by operation of law or
has been entered by a court of competent jurisdiction that prohibits or limits any of the ABL Agent from commencing and continuing to
undertake Enforcement Actions or to Dispose of the ABL Priority Collateral, such Use Period described above shall be tolled during the
pendency of such stay or other order and the Use Period shall be so extended.
“Warrant”
has the meaning set forth in the Term Loan Agreement.
1.2
Construction. The definitions of terms in this Agreement shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine, and neuter forms. The words
“include,” “includes,” and “including” shall be deemed to be followed by the phrase “without
limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.”
The term “or” shall be construed to have, except where otherwise indicated, the inclusive meaning represented by the phrase
“and/or.” Unless the context requires otherwise:
(a) except as otherwise provided herein, 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, supplemented, modified or otherwise
Refinanced in accordance with the terms of this Agreement;
(b) any reference to a definition in an ABL Document shall be construed to also refer to any comparable term in any agreement, instrument,
or other document the debt under which Refinances the ABL Debt;
(c) any reference to a definition in a Term Loan Document shall be construed to also refer to any comparable term in any agreement,
instrument, or other document the debt under which Refinances the Term Loan Debt;
(d) any reference to any agreement, instrument, or other document herein “as in effect on the date hereof” shall be construed
as referring to such agreement, instrument, or other document without giving effect to any amendment, restatement, supplement, modification,
or Refinancing thereto or thereof occurring after the date hereof;
(e) any definition of, or reference to, ABL Debt or the Term Loan Debt herein shall be construed as referring to the ABL Debt or the
Term Loan Debt (as applicable) as from time to time amended, supplemented, modified or Refinanced in accordance with the terms of this
Agreement;
(f) any definition of, or reference to, ABL Collateral or Term Loan Collateral herein shall not be construed as referring to any amounts
recovered by a Grantor, as a debtor in possession, or a trustee for the estate of a Grantor, under Section 506(c) of the Bankruptcy Code
(or by comparable Persons under any other Bankruptcy Law);
(g) any reference herein to any person shall be construed to include such person’s successors and assigns and as to any Grantor
shall be deemed to include a receiver, trustee, or debtor-in-possession on behalf of any of such person or on behalf of any such successor
or assignee of such person;
(h) except as otherwise expressly provided herein, any reference to ABL Agent agreeing to or having the right to do, or refraining
from or having the right to refrain from doing, an act shall be construed as binding upon each of the ABL Claimholders, any reference
to ABL Agent shall be construed as referring to ABL Agent, for itself and on behalf of the other ABL Claimholders, any reference to Term
Loan Agent agreeing to or having the right to do, or refraining from or having the right to refrain from doing, an act shall be construed
as binding upon each of the Term Loan Claimholders, any reference to Term Loan Agent shall be construed as referring to Term Loan Agent
for itself and on behalf of the other Term Loan Claimholders, any reference to the ABL Claimholders shall be construed as including ABL
Agent, and any reference to the Term Loan Claimholders shall be construed as referring to Term Loan Agent;
(i) 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;
(j) all references herein to Sections shall be construed to refer to Sections of this Agreement; and
(k) 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
2 Lien Priorities.
2.1
Relative Priorities.
(a) Notwithstanding the date, time, method, manner, or order of grant, attachment, or perfection of any Liens in the Collateral securing
the Term Loan Debt or of any Liens in the Collateral securing the ABL Debt (including, in each case, notwithstanding whether any such
Lien is granted (or secures Debt relating to the period) before or after the commencement of any Insolvency Proceeding) and notwithstanding
any contrary provision of the UCC or any other applicable law, the Term Loan Documents or the ABL Documents or the or any defect or deficiencies
in, or failure to attach or perfect, the Liens securing the ABL Debt or the Term Loan Debt, or any other circumstance whatsoever, ABL
Agent and Term Loan Agent hereby agree that:
(i) any Lien with respect to the ABL Priority Collateral securing any ABL Priority Debt, whether such Lien is now or hereafter held
by or on behalf of, or created for the benefit of, any of the ABL Claimholders or any agent or trustee therefor, regardless of how or
when acquired, whether by grant, possession, statute, operation of law, subrogation, or otherwise, shall be senior in all respects and
prior to any Lien with respect to the ABL Priority Collateral securing (A) any Term Loan Debt or (B) any Excess ABL Debt;
(ii) any Lien with respect to the ABL Priority Collateral securing any Term Loan Debt, now or hereafter held by or on behalf of, or
created for the benefit of, any of the Term Loan Claimholders or any agent or trustee therefor, regardless of how or when acquired, whether
by grant, possession, statute, operation of law, subrogation or otherwise, shall be (A) junior and subordinate in all respects to all
Liens with respect to the ABL Priority Collateral securing any ABL Priority Debt, (B) other than the extent to which such Lien secures
Excess Term Loan Debt, senior in all respects and prior to any Lien with respect to the ABL Priority Collateral securing any Excess ABL
Debt and (C) to the extent such Lien secures Excess Term Loan Debt, junior and subordinate to all Liens with respect to the ABL Priority
Collateral securing Excess ABL Debt;
(iii) any Lien with respect to the Term Loan Priority Collateral securing any Term Loan Priority Debt, whether such Lien is now or hereafter
held by or on behalf of, or created for the benefit of, any of the Term Loan Claimholders or any agent or trustee therefor, regardless
of how or when acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be senior in all respects
and prior to any Lien with respect to the Term Loan Priority Collateral securing (A) any ABL Debt or (B) any Excess Term Loan Debt;
(iv) any Lien with respect to the Term Loan Priority Collateral securing any ABL Debt now or hereafter held by or on behalf of, or
created for the benefit of, any of the ABL Claimholders or any agent or trustee therefor, regardless of how or when acquired, whether
by grant, possession, statute, operation of law, subrogation or otherwise, shall be (A) junior and subordinate in all respects to all
Liens with respect to the Term Loan Priority Collateral securing any Term Loan Priority Debt, (B) other than the extent to which such
Lien secures Excess ABL Debt, senior in all respects and prior to any Lien with respect to the Term Loan Priority Collateral securing
any Excess Term Loan Debt and (C) to the extent such Lien secures Excess ABL Debt, junior and subordinate to all Liens with respect to
the Term Loan Priority Collateral securing Excess Term Loan Debt; and
(b) The foregoing priorities with respect to the Collateral securing any Term Loan Debt or any Excess ABL Debt, in each case, shall
be effective for all purposes, whether or not such Liens are subordinated to any Lien securing any other obligation of any Grantor or
any other person (but only to the extent that such subordination is permitted pursuant to the terms of the ABL Credit Agreement and the
Term Loan Debt Agreement, or as contemplated in Section 6.2).
2.2 Prohibition on Contesting Liens or Claims. Each of Term Loan Agent and ABL Agent agrees that it will not (and hereby waives
any right to), directly or indirectly, contest, or support any other person in contesting, in any proceeding (including any Insolvency
Proceeding), the extent, validity, attachment, perfection, priority, or enforceability of a Lien held by or on behalf of any of the ABL
Claimholders in the Collateral (or the extent, validity, allowability, or enforceability of any ABL Debt secured thereby or purported
to be secured thereby) or by or on behalf of any of the Term Loan Claimholders in the Collateral (or the extent, validity, allowability,
or enforceability of any Term Loan Debt secured thereby or purported to be secured thereby), as the case may be, or the provisions of
this Agreement; provided, that nothing in this Agreement shall be construed to prevent or impair the rights of ABL Agent or Term
Loan Agent to enforce the terms of this Agreement, including the provisions of this Agreement relating to the priority of the Liens securing
the ABL Debt and the Term Loan Debt as provided in Sections 2.1 and 3.
2.3 New Liens.
(a) So long as no Insolvency Proceeding has been commenced by or against any Grantor, the parties hereto agree that no Grantor shall:
(i) grant or permit any additional Liens on any asset that is not Collateral to secure any Term Loan Debt unless such Grantor gives
ABL Agent at least 5 Business Days prior written notice thereof and unless such notice also offers to grant a Lien on such asset to secure
the ABL Debt concurrently with the grant of a Lien thereon in favor of Term Loan Agent; or
(ii) grant or permit any additional Liens on any asset that is not Collateral to secure any ABL Debt unless such Grantor gives Term
Loan Agent at least 5 Business Days prior written notice thereof and unless such notice also offers to grant a Lien on such asset to secure
the Term Loan Debt concurrently with the grant of a Lien thereon in favor of ABL Agent.
(b) To the extent that the foregoing provisions are not complied with for any reason, without limiting any other rights and remedies
available to the Claimholders, each Agent agrees that any amounts received by or distributed to any of the Claimholders pursuant to or
as a result of Liens granted in contravention of this Section 2.3 shall be subject to Section 4.2.
2.4 Similar Liens and Agreements.
(a) The parties hereto agree that it is their intention that the ABL Collateral and the Term Loan Collateral be identical except as
provided in Section 6 hereof and subject to Section 2.4(b) below. In furtherance of the foregoing and of Section 9.8,
the parties hereto agree, subject to the other provisions of this Agreement:
(i) upon reasonable request by ABL Agent or Term Loan Agent, to cooperate in good faith (and to direct their counsel to cooperate
in good faith) from time to time in order to determine the specific items included in the ABL Collateral and the Term Loan Collateral
and the steps taken or to be taken to perfect their respective Liens thereon and the identity of the respective parties obligated under
the ABL Documents and the Term Loan Documents; and
(ii) that the ABL Collateral Documents and Term Loan Collateral Documents and guarantees for the ABL Debt and the Term Loan Debt, shall
be, in all material respects, the same forms of documents other than with respect to the priorities of the Liens granted thereunder.
(b) The foregoing to the contrary notwithstanding, each of the parties agrees that to the extent that ABL Agent or Term Loan Agent
obtains a Lien in an asset (of a type that is not included in the types of assets included in the Collateral as of the date hereof or
which would not constitute Collateral without a grant of a security interest or lien separate from the ABL Documents or Term Loan Documents,
as applicable, as in effect immediately prior to obtaining such Lien on such asset) which the other party to this Agreement elects, by
written notice to the Agent obtaining such Lien, not to obtain after receiving prior written notice thereof in accordance with the provisions
of Section 2.3, the Collateral securing the ABL Debt and the Term Loan Debt will not be identical, and the provisions of the documents,
agreements and instruments evidencing such Liens also will not be substantively similar, and any such difference in the scope or extent
of perfection with respect to the Collateral resulting therefrom are hereby expressly permitted by this Agreement.
SECTION
3 Exercise of
Remedies.
3.1 Exercise of Remedies with respect to the ABL Priority Collateral. Until the Payment in Full of ABL Priority Debt has occurred,
whether or not any Insolvency Proceeding has been commenced by or against any Grantor, the Term Loan Claimholders will not exercise or
seek to exercise any rights, powers, or remedies with respect to any ABL Priority Collateral (including taking any Enforcement Action
with respect to any ABL Priority Collateral); provided, that (i) if a Term Loan Default has occurred and is continuing, Term Loan
Agent may take Enforcement Actions with respect to any ABL Priority Collateral after the expiration of the applicable Standstill Period
(it being understood that if at any time after the delivery of a Standstill Notice that commences a Standstill Period, no Term Loan Default
is continuing, Term Loan Agent may not take Enforcement Actions with respect to any ABL Priority Collateral until the expiration of a
new Standstill Period commenced by a new Standstill Notice relative to the occurrence of a new Term Loan Default that had not occurred
as of the date of the delivery of the earlier Standstill Notice), and (ii) in no event shall Term Loan Agent or any other Term Loan Claimholder
exercise any rights or remedies with respect to the ABL Priority Collateral if, notwithstanding the expiration of the Standstill Period,
ABL Agent or any other ABL Claimholder shall have commenced prior to the expiration of the Standstill Period (or thereafter but prior
to the commencement of any Enforcement Action by Term Loan Agent with respect to all or any material portion of the ABL Priority Collateral)
and be diligently pursuing in good faith an Enforcement Action with respect to all or any material portion of the ABL Priority Collateral.
3.2 Exercise of Remedies With Respect to the Term Loan Priority Collateral. Until the Payment in Full of the Term Loan Priority
Debt has occurred, whether or not any Insolvency Proceeding has been commenced by or against any Grantor, the ABL Claimholders will not
exercise or seek to exercise any rights, powers, or remedies with respect to any Term Loan Priority Collateral (including taking any Enforcement
Action with respect to any Term Loan Priority Collateral); provided, that (i) if an ABL Default has occurred and is continuing,
ABL Agent may take Enforcement Actions with respect to any Term Loan Priority Collateral after the expiration of the applicable Standstill
Period (it being understood that if at any time after the delivery of a Standstill Notice that commences a Standstill Period, no ABL Default
is continuing, ABL Agent may not take Enforcement Actions with respect to any Term Loan Collateral until the expiration of a new Standstill
Period commenced by a new Standstill Notice relative to the occurrence of a new ABL Default that had not occurred as of the date of the
delivery of the earlier Standstill Notice), and (ii) in no event shall ABL Agent or any other ABL Claimholder exercise any rights or remedies
with respect to the Term Loan Priority Collateral if, notwithstanding the expiration of the Standstill Period, Term Loan Agent or any
other Term Loan Claimholder shall have commenced prior to the expiration of the Standstill Period (or thereafter but prior to the commencement
of any Enforcement Action by ABL Agent with respect to all or any material portion of the Term Loan Priority Collateral) and be diligently
pursuing in good faith an Enforcement Action with respect to all or any material portion of Term Loan Priority Collateral.
3.3 Exclusive Enforcement Rights.
(a) Until the Payment in Full of ABL Priority Debt has occurred, whether or not any Insolvency Proceeding has been commenced by or
against any Grantor, the ABL Claimholders shall have the exclusive right to take Enforcement Actions with respect to the ABL Priority
Collateral (and in connection therewith, make determinations regarding the release or Disposition thereof or any restrictions with respect
thereto) without any consultation with or the consent of any of the Term Loan Claimholders. Until the Payment in Full of Term Loan Priority
Debt has occurred, whether or not any Insolvency Proceeding has been commenced by or against any Grantor, the Term Loan Claimholders shall
have the exclusive right to take Enforcement Actions with respect to the Term Loan Priority Collateral (and in connection therewith, subject
to Section 3.9 (but without affecting their rights to freely release, restrict, or make a Disposition thereof in accordance with
such section), make determinations regarding the release or Disposition thereof or any restrictions with respect thereto) without any
consultation with or the consent of any of the ABL Claimholders.
(b) In connection with (i) any Enforcement Action with respect to the ABL Priority Collateral, the ABL Claimholders may enforce the
provisions of the ABL Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise
of their sole discretion, or (ii) any Enforcement Action with respect to the Term Loan Priority Collateral, the Term Loan Claimholders
may enforce the provisions of the Term Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may
determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them
to Dispose of Collateral, to incur expenses in connection with such Disposition, and to exercise all the rights and remedies of a secured
creditor under applicable law.
(c) The provisions of clauses (a) and (b) above shall be subject in all respects to the provisions of Section 3.1 and Section
3.2.
3.4 Permitted Actions. Anything to the contrary in this Section 3 notwithstanding, any Claimholder may:
(a) if an Insolvency Proceeding has been commenced by or against any Grantor, file a claim or statement of interest with respect to
any Debt and the Collateral securing such Debt;
(b) take any action in order to create, perfect or preserve its Lien in and to the Collateral, to prevent the running of any applicable
statute of limitation or similar restriction on claims or to assert a compulsory cross-claim or counterclaim against any Person;
(c) before or after the commencement of an Insolvency Proceeding, file any necessary responsive or defensive pleadings (i) in opposition
to any motion, claim, adversary proceeding, or other pleading made by any Person objecting to or otherwise seeking the disallowance of
the claims of (A) in the case of a claim of an ABL Claimholder, the ABL Claimholders, or (B) in the case of a claim of a Term Loan Claimholder,
the Term Loan Claimholders, or (ii) asserting rights available to unsecured creditors of the applicable Grantor, in each case in accordance
with and not in contravention of the terms of this Agreement;
(d) during an Insolvency Proceeding, vote on any plan of reorganization, scheme or arrangement, or liquidation (or similar arrangement
affecting creditors’ rights generally) and make any filings and motions therein that are, in each case, not in contravention of
the provisions of this Agreement, with respect to (i) in the case of an ABL Claimholder, the ABL Debt, and (ii) in the case of a Term
Loan Claimholder, the Term Loan Debt, and (in each case) the Collateral;
(e) in the case of a Junior Agent, join (but not exercise any control with respect to) any judicial foreclosure proceeding or other
judicial lien enforcement proceeding with respect to the Priority Collateral of the Priority Agent initiated by such Priority Agent to
the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material
period or otherwise interfere with an Enforcement Action by such Priority Agent (it being understood that neither the Junior Agent nor
any Junior Claimholder shall be entitled to receive any Proceeds from the Priority Collateral unless otherwise expressly permitted herein);
(f) subject to Section 3.6(a), inspect, appraise or value the Collateral (and to engage or retain investment bankers or appraisers
for the purposes of appraising or valuing the Collateral) or to receive information or reports concerning the Collateral, in each case
pursuant to the terms of the ABL Documents or Term Loan Documents, as applicable, or applicable law;
(g) subject to Section 3.6(a), take any action to seek and obtain specific performance or injunctive relief to compel a Grantor
to comply with (or not to violate or breach) an obligation under the ABL Documents or Term Loan Documents, as applicable; provided
that such action does not include any action by a Junior Claimholder to seek specific performance or injunctive relief against any Priority
Claimholder or the Disposition of any such Priority Claimholder’s Priority Collateral in contravention of the other provisions of
this Agreement;
(h) bid for Collateral at any public or private sale thereof, provided that (i) such Claimholder does not challenge the bid of the
Priority Agent for its Priority Collateral other than by the submission of a competing cash bid, (ii) each Priority Lender may subject
to the terms of its Collateral Documents offset its Priority Debt against the purchase price for the Priority Collateral and (iii) if
such sale includes Junior Collateral and Priority Collateral, the Junior Lenders may only bid cash with respect to the Priority Collateral;
provided, that the cash portion of any such bid need not exceed the amount of the ABL Priority Debt or the Term Loan Priority Debt,
as applicable, in respect of such Priority Collateral; and
(i) enforce the terms of any subordination agreement with any Person (other than a Grantor) with respect to debt of a Grantor that
is subordinated to the ABL Debt or the Term Loan Debt provided (i) prior written notice of such action is provided to each Agent, (ii)
no such action includes any Enforcement Action, (iii) any payment or other property received by such Claimholder, to the extent resulting
from a payment or other transfer of property or an interest in property of any Grantor, shall be deemed to be Proceeds of Collateral subject
to the other terms of this Agreement and (iv) any other payments received by such Claimholder in connection with such action shall otherwise
be subject to the terms of such subordination agreement with any other Person, any related subordination agreement with either or both
of the Agents and this Agreement.
3.5 Retention of Proceeds.
(a) Subject to the provisions of Section 3.5(c) below, until the Payment in Full of ABL Priority Debt has occurred, the Term
Loan Claimholders shall not be permitted to retain any identifiable Proceeds of ABL Priority Collateral in connection with any Enforcement
Action, and any such Proceeds received or retained will be subject to Section 4.2.
(b) Subject to the provisions of Section 3.5(c) below, until the Payment in Full of Term Loan Priority Debt has occurred, the
ABL Claimholders shall not be permitted to retain any identifiable Proceeds of Term Loan Priority Collateral in connection with any Enforcement
Action, and any such Proceeds received or retained in any other circumstance will be subject to Section 4.2.
(c) Notwithstanding anything contained in this Agreement to the contrary, in the event of any Disposition or series of related Dispositions
that includes ABL Priority Collateral and Term Loan Priority Collateral, if the ABL Agent and Term Loan Agent are unable to agree in writing
upon an allocation of Proceeds of such Collateral which does not result in Payment in Full of ABL Priority Debt and the Payment in Full
of Term Loan Priority Debt, the ABL Agent and the Term Loan Agent shall use commercially reasonable efforts in good faith to negotiate
a proper allocation of the Proceeds received in connection with such Disposition as between the ABL Priority Collateral and Term Loan
Priority Collateral and if no such agreement occurs, then such allocations will be as determined by a Final Order.
3.6 Non-Interference. Subject to any specific provision of this Agreement to the contrary, each of Term Loan Agent and ABL Agent
hereby:
(a) agrees that it not take or cause to be taken any action, the purpose or effect of which is to make any Lien on any Priority Collateral
that secures any Junior Debt pari passu with or senior to, or to give any Junior Secured Party any preference or priority relative
to, the Liens on the Priority Collateral securing the Priority Debt;
(b) agrees that, subject to Sections 3.1 and 3.2, the Junior Claimholders will not take any action that would restrain,
hinder, limit, delay, or otherwise interfere with any Enforcement Action by the Priority Agent with respect to its Priority Collateral,
including any Disposition of such Priority Collateral, whether by foreclosure or otherwise;
(c) waives, subject to Sections 3.1 and 3.2, any and all rights that any Junior Claimholder may have as a junior lien
creditor or otherwise to object to the manner in which the Priority Agent or the Priority Claimholders seek to enforce or collect their
Debt or the Liens securing such Debt granted in any of the Priority Collateral, regardless of whether any action or failure to act by
or on behalf of such Priority Agent or the Priority Claimholders is adverse to the interest of the Junior Agent or the Junior Claimholders;
(d) waives any and all rights that any Junior Claimholder may have to oppose, object to, or seek to restrict the Priority Agent or
any Priority Claimholder from exercising their rights to set off or credit bid its Debt; and
(e) acknowledges and agrees that no covenant, agreement, or restriction contained in its Collateral Documents or any other of its Loan
Documents (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the Priority Agent or the Priority
Claimholders with respect to their Priority Collateral as set forth in this Agreement and such Priority Agent’s Loan Documents.
3.7 Unsecured Creditor Remedies. Except as set forth in Sections 2.2, 3.6, and 6, the Agents and the other Claimholders
may exercise rights and remedies as unsecured creditors generally against any Grantor in accordance with the terms of the applicable Loan
Documents and applicable law so long as doing so is not in contravention of the terms of this Agreement; provided, that in the
event that any Claimholder becomes a judgment Lien creditor in respect of Collateral as a result of its enforcement of its rights as an
unsecured creditor with respect to its Debt, such judgment Lien shall be subject to the terms of this Agreement for all purposes as the
other Liens securing such Debt.
3.8 Notice of Exercise. Each Agent shall endeavor to provide reasonable prompt written notice to the other Agent of its initial
material Enforcement Action, but failure to do so shall not result in a breach of this Agreement.
3.9 Inspection and Access Rights.
(a) Prior to the Payment in Full of ABL Priority Debt, if the Term Loan Collateral Agent obtains possession or physical control of
any Term Loan Priority Collateral, Term Loan Agent shall promptly (and in any event within five Business Days) notify ABL Agent in writing
of that fact, and ABL Agent shall promptly notify Term Loan Agent (and in any event within five Business Days) in writing of whether ABL
Agent desires to exercise its access rights under this Section 3.9. Upon delivery of such notice by ABL Agent to Term Loan Agent,
the parties shall confer in good faith to coordinate with respect to ABL Agent’s exercise of such access rights.
(b) Without limiting any rights any of the ABL Claimholders may otherwise have under applicable law or by agreement and whether or
not any of the Term Loan Claimholders has commenced and is continuing to undertake any Enforcement Action prior to the Payment in Full
of ABL Priority Debt, ABL Agent or any other person (including any of the ABL Claimholders) acting with the consent, or on behalf, of
ABL Agent, shall have an irrevocable, non-exclusive right to have access to, and a royalty-free license and right to use the Term Loan
Priority Collateral (including, without limitation, machinery and equipment (including computers and processors), Intellectual Property
and general intangibles) during the Use Period (i) during normal business hours on any Business Day, to access the ABL Priority Collateral
that (A) is stored or located in or on, (B) has become an accession with respect to (within the meaning of Section 9-335 of the UCC),
or (C) has been commingled with (within the meaning of Section 9-336 of the UCC), Term Loan Priority Collateral, and (ii) in order to
assemble, inspect, copy or download information stored on, take actions to perfect its Lien on, process raw materials or work-in-process
into finished Inventory, take possession of, move, package, prepare and advertise for sale or disposition, store, collect, take reasonable
actions to protect, secure and otherwise enforce the rights of ABL Agent in and to the ABL Priority Collateral, or otherwise deal with
the ABL Priority Collateral in accordance with applicable law, in each case, subject to clause (c) below, without liability to any of
the Term Loan Claimholders and without the involvement of, or interference or restriction by any of the Term Loan Claimholders; provided,
however, that this Section 3.9 shall not require that ABL Agent’s use of the Term Loan Priority Collateral be on an exclusive
basis. This Agreement will not restrict the rights of Term Loan Agent to sell, assign or otherwise transfer the related Term Loan Priority
Collateral prior to the expiration of the Use Period if (but only if) the purchaser, assignee or transferee thereof agrees to be bound
by the provisions of this Section 3.9.
(c) During the period of actual occupancy, use or control by ABL Agent (or its respective employees, agents, advisers and representatives)
of any Term Loan Priority Collateral pursuant to this Section 3.9, ABL Agent shall be obligated to (x) repair at expense any physical
damage (ordinary wear and tear excepted) to such Term Loan Priority Collateral caused by such occupancy, use or control of or by ABL Claimholders
or their agents, representatives or designees, and to leave such Term Loan Priority Collateral or other assets or property in substantially
the same condition as it was at the commencement of such occupancy, use or control, ordinary wear and tear excepted, and (y) pay to the
applicable landlord (or the Term Loan Agent if such Term Loan Agent has already paid such landlord), on a monthly basis all utilities,
insurance, rent (at the then current rental rate) and all other maintenance and operating costs of such Term Loan Priority Collateral
during the Use Period for any premises that the ABL Agent accesses, or on which tangible ABL Priority Collateral is stored (other than
Books), to the extent that such rent or other amounts are not timely paid by a Grantor. In furtherance of the foregoing, ABL Agent shall
indemnify, defend and hold harmless the Term Loan Agent and the other Term Loan Claimholders for any claims or causes of action, losses,
expenses and damages (including all reasonable fees and charges of any counsel to the Term Loan Claimholders and all court costs an similar
legal expenses) caused by the actions of the ABL Claimholders during the Use Period (or any of their respective employees, agents, advisers
and representatives). The undertaking in this Section 3.9(c) will survive the Payment in Full of the Term Loan Priority Debt, termination
of this Agreement and the resignation or replacement of the Term Loan Agent under the Term Loan Agreement.
(d) Consistent with the definition of the term “Use Period,” if any order or injunction is issued or stay is granted or
is otherwise effective by operation of law prior to the Payment in Full of ABL Priority Debt that prohibits ABL Agent from exercising
any of its rights hereunder, then the Use Period granted to ABL Agent under this Section 3.9 shall be stayed during the period
of such prohibition and shall continue thereafter for the number of days remaining as required under this Section 3.9. The rights
of Term Loan Agent under this Section 3.9 during the Use Period shall continue notwithstanding such foreclosure, sale or other
disposition by ABL Agent.
(e) Notwithstanding the termination of the Use Period, ABL Agent shall have the right to Dispose of any inventory that is branded or
becomes branded, or produced through the use or other application of, any Intellectual Property, whether pursuant to the exercise by the
ABL Agent of its rights pursuant to this Section 3.9 or otherwise, and to use such branded trademarks and tradenames in connection
with the advertising and marketing of such Dispositions; and all such branded inventory shall constitute ABL Priority Collateral, and
no Proceeds arising from any Disposition of any such ABL Priority Collateral shall be, or be deemed to be, attributable to Term Loan Priority
Collateral.
3.10 Sharing of Information and Access. In the event that ABL Agent shall, in the exercise of its rights under the ABL Collateral
Documents or otherwise, receive possession or control of any Books, ABL Agent shall, upon request from Term Loan Agent and as promptly
as practicable thereafter, provide such Books to Term Loan Agent; ABL Agent may retain copies of such Books to use and to transfer in
connection with the sale of any ABL Priority Collateral. Term Loan Agent will permit the ABL Agent to make copies of any Books and take
possession of all documents of title for ABL Equipment necessary in connection with the sale of any ABL Priority Collateral.
3.11 Tracing of and Priorities in Proceeds. Until the Payment in Full of ABL Priority Debt occurs, except with respect to (1)
Term Loan Priority Collateral, (2) reasonably identifiable Proceeds thereof, (3) other Proceeds of Term Loan Priority Collateral identified
by the Term Loan Agent to the ABL Agent in writing and (4) cash and cash equivalents held in the Term Loan Collateral Account (other than
identifiable Proceeds of ABL Priority Collateral), the ABL Claimholders are hereby permitted to treat all cash, cash equivalents, money,
collections and payments as ABL Priority Collateral to the extent deposited in or credited to any other Grantor’s deposit account
or securities account that constitutes ABL Priority Collateral; provided, this consent shall not inure to the benefit of any of
the Grantors or be deemed a waiver of or modification of any provision of the Term Loan Documents, including any provision requiring application
of such Proceeds to repayment of the Term Loan Debt or otherwise in the manner provided for in the Term Loan Documents or any default
or event of default that may result from any Grantor’s failure to comply with such requirements.
SECTION
4 Proceeds.
4.1 Application of Proceeds.
(a) Except as otherwise provided in Section 2.1, any ABL Priority Collateral, or Proceeds thereof, received in connection with
any Enforcement Action or in connection with any Insolvency Proceeding involving a Grantor shall (at such time as such ABL Priority Collateral
or Proceeds or other amounts have been monetized) be applied:
(i) first, to the payment in full in cash of costs and expenses of ABL Agent in connection with such Enforcement Action or
Insolvency Proceeding,
(ii) second, to the Payment in Full of ABL Priority Debt, and in the case of payment of any revolving loans (other than pursuant
to ABL DIP Financing except in connection with the consummation of a plan of reorganization), together with a concurrent permanent reduction
of the ABL Priority Debt,
(iii) third, to the payment in full in cash of costs and expenses of Term Loan Agent in connection with such Enforcement Action
or Insolvency Proceeding,
(iv) fourth, to the Payment in Full of Term Loan Priority Debt,
(v) fifth, to the payment in full in cash of the Excess ABL Debt in accordance with the ABL Documents, and
(vi) sixth, to the payment in full in cash of the Excess Term Loan Debt in accordance with the Term Loan Documents.
(b) Notwithstanding the foregoing, if any Enforcement Action with respect to any Priority Collateral produces non-cash Proceeds, then
if the Payment in Full of the Priority Debt related thereto has not occurred, such non-cash Proceeds shall be held by the Priority Agent
as additional collateral and, at such time as such non-cash Proceeds are monetized by the Priority Agent, shall be applied in the order
of application set forth above. The Priority Agent shall have no duty or obligation to Dispose of such non-cash Proceeds and may Dispose
of such non-cash Proceeds or continue to hold such non-cash Proceeds, in each case, in its discretion; provided, that any non-cash
Proceeds received by ABL Agent (other than any non-cash Proceeds received on account of any Term Loan Secured Claim) may be distributed
by ABL Agent to the ABL Claimholders in full or partial satisfaction of ABL Priority Debt in an amount reasonably determined by ABL Agent
acting at the direction of the requisite ABL Claimholders or as a court of competent jurisdiction may direct pursuant to a Final Order,
including an order confirming a plan of reorganization in an Insolvency Proceeding. Prior to the Payment in Full of ABL Priority Debt,
no receipt and application of any Collateral, or Proceeds thereof, received in the ordinary course of business or as a result of the exercise
of dominion of funds under a control agreement (such Collateral, and the Proceeds thereof, “Ordinary Course Collections”)
shall constitute an Enforcement Action for purposes of this Agreement unless the ABL Claimholders as a result of an ABL Default fail to
fund advances or revolving loans to the Grantors (whether or not the conditions to funding are satisfied) for more than 5 consecutive
Business Days unless Term Loan Agent otherwise consents to a different application. Ordinary Course Collections received by ABL Agent
may be applied, reversed, reapplied, credited, or reborrowed, in whole or in part, pursuant to the ABL Credit Agreement.
(c) Except as otherwise provided in Section 2.1, any Term Loan Priority Collateral, or Proceeds thereof, received in connection
with any Enforcement Action or in connection with any Insolvency Proceeding involving a Grantor shall (at such time as such Term Loan
Priority Collateral or Proceeds or other amounts have been monetized) be applied:
(i) first, to the payment in full in cash of costs and expenses of Term Loan Agent in connection with such Enforcement Action
or Insolvency Proceeding,
(ii) second, to the Payment in Full of Term Loan Priority Debt,
(iii) third, to the payment in full in cash of costs and expenses of ABL Agent in connection with such Enforcement Action or
Insolvency Proceeding,
(iv) fourth, to the Payment in Full of ABL Priority Debt, and in the case of payment of any revolving loans (other than pursuant
to ABL DIP Financing except in connection with the consummation of a plan of reorganization), together with a concurrent permanent reduction
of the ABL Priority Debt,
(v) fifth, to the payment in full in cash of the Excess Term Loan Debt in accordance with the Term Loan Documents,
(vi) sixth, to the payment in full in cash of the Excess ABL Debt in accordance with the ABL Documents.
(d) Notwithstanding the foregoing, if any Enforcement Action with respect to the Term Loan Priority Collateral produces non-cash Proceeds,
then such non-cash Proceeds shall be held by the Priority Agent as additional collateral and, at such time as such non-cash Proceeds are
monetized, shall be applied by the Priority Agent in the order of application set forth above. Term Loan Agent shall have no duty or obligation
to Dispose of such non-cash Proceeds and may Dispose of such non-cash Proceeds or continue to hold such non-cash Proceeds, in each case,
in its discretion; provided, that any non-cash Proceeds received by Term Loan Agent (other than any non-cash Proceeds received
on account of any ABL Secured Claim) may be distributed by Term Loan Agent to the Term Loan Claimholders in full or partial satisfaction
of Term Loan Priority Debt in an amount reasonably determined by Term Loan Agent acting at the direction of the requisite Term Loan Claimholders
or as a court of competent jurisdiction may direct pursuant to a Final Order, including an order confirming a plan of reorganization in
an Insolvency Proceeding.
(e) In the event that the ABL Agent or any other ABL Claimholder receives any payment or proceeds from the Subordinated Creditor pursuant
to the terms of the Seller Subordination Agreement, so long as proceeds of ABL Priority Collateral was not utilized to pay the Subordinated
Creditors, then such payment or proceeds shall immediately be turned over to the Term Loan Agent and applied in accordance with Section
4.1(c).
4.2 Turnover.
(a) Unless and until the Payment in Full of ABL Priority Debt has occurred (irrespective of whether any Insolvency Proceeding has been
commenced by or against any Grantor) and except as otherwise provided in Section 2.1, any ABL Priority Collateral, or Proceeds
thereof (including assets or Proceeds subject to Liens referred to in the final sentence of Section 2.3) received by any of the
Term Loan Claimholders in connection with an Enforcement Action with respect to the Collateral by any of the Term Loan Claimholders, shall
be segregated and held in trust and forthwith paid over to ABL Agent in the same form as received, with any necessary endorsements or
as a court of competent jurisdiction may otherwise direct. ABL Agent is hereby authorized to make any such endorsements as agent for the
Term Loan Claimholders and this authorization is coupled with an interest and is irrevocable until the Payment in Full of ABL Priority
Debt.
(b) Unless and until the Payment in Full of ABL Priority Debt has occurred and except as otherwise expressly provided in Sections
6.5 or 6.9, if a Grantor (or any of its assets) is the subject of an Insolvency Proceeding and if any distribution is received
by the Term Loan Claimholders (or any of them) on account of their Term Loan Secured Claims in respect of their interest in the ABL Priority
Collateral in connection with such Insolvency Proceeding (unless such distribution is made under a confirmed plan of reorganization of
such Grantor that is accepted by the requisite affirmative vote of each class composed of the secured claims of the ABL Claimholders or
otherwise provides for the Payment in Full of ABL Priority Debt), then such distribution shall be segregated and held in trust and forthwith
paid over to ABL Agent for the benefit of the ABL Claimholders in the same form as received, with any necessary endorsements or as a court
of competent jurisdiction may otherwise direct. Notwithstanding anything in this Agreement to the contrary, Term Loan Claimholders may
receive and retain any cash, debt, or equity securities on account of Term Loan Deficiency Claims or in respect of any other portion of
their Term Loan Secured Claims that are not on account of their interest in the ABL Priority Collateral.
(c) Unless and until the Payment in Full of Term Loan Priority Debt has occurred (irrespective of whether any Insolvency Proceeding
has been commenced by or against any Grantor) and except as otherwise provided in Section 2.1, any Term Loan Priority Collateral,
or Proceeds thereof (including assets or Proceeds subject to Liens referred to in the final sentence of Section 2.3 received by
any of the ABL Claimholders in connection with an Enforcement Action with respect to the Collateral by any of the ABL Claimholders, shall
be segregated and held in trust and forthwith paid over to Term Loan Agent for the benefit of the Term Loan Claimholders in the same form
as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. Term Loan Agent is hereby authorized
to make any such endorsements as agent for the ABL Claimholders and this authorization is coupled with an interest and is irrevocable
until the Payment in Full of Term Loan Priority Debt.
(d) Unless and until the Payment in Full of Term Loan Priority Debt has occurred and except as otherwise expressly provided in Sections
6.5 or 6.9, if a Grantor (or any of its assets) is the subject of an Insolvency Proceeding and if any distribution is received
by the ABL Claimholders (or any of them) on account of their ABL Secured Claims in respect of their interest in the Term Loan Priority
Collateral in connection with such Insolvency Proceeding (unless such distribution is made under a confirmed plan of reorganization of
such Grantor that is accepted by the requisite affirmative vote of each class composed of the secured claims of the Term Loan Claimholders
or otherwise provides for the Payment in Full of Term Loan Priority Debt), then such distribution shall be segregated and held in trust
and forthwith paid over to Term Loan Agent for the benefit of the Term Loan Claimholders in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise direct. Notwithstanding anything in this Agreement to the contrary,
ABL Claimholders may receive and retain any cash, debt, or equity securities on account of ABL Deficiency Claims or in respect of any
other portion of their ABL Secured Claims that are not on account of their interest in the Term Loan Priority Collateral.
(e) Term Loan Agent agrees that if, at any time, all or part of any payment with respect to any ABL Priority Debt secured by any ABL
Priority Collateral previously made shall be rescinded for any reason whatsoever, it will upon request promptly pay over to ABL Agent
any payment received by it in respect of any such ABL Priority Collateral and shall promptly turn any such ABL Priority Collateral then
held by it over to ABL Agent, and the provisions set forth in this Agreement will be reinstated as if such payment had not been made,
until the payment and satisfaction in full of such ABL Priority Debt.
(f) ABL Agent agrees that if, at any time, all or part of any payment with respect to any Term Loan Priority Debt secured by any Term
Loan Priority Collateral previously made shall be rescinded for any reason whatsoever, it will upon request promptly pay over to Term
Loan Agent any payment received by it in respect of any such Term Loan Priority Collateral and shall promptly turn any such Term Loan
Priority Collateral then held by it over to Term Loan Agent, and the provisions set forth in this Agreement will be reinstated as if such
payment had not been made, until the payment and satisfaction in full of such Term Loan Priority Debt.
4.3 No Subordination of the Relative Priority of Claims. Anything to the contrary contained herein notwithstanding, the subordination
of the Liens of the Term Loan Claimholders in respect of the ABL Priority Collateral to the Liens of the ABL Claimholders therein and
of the Liens of the ABL Claimholders in respect of the Term Loan Priority Collateral to the Liens of the Term Loan Claimholders therein
as set forth herein is with respect to the priority of their respective Liens in and to the Collateral held by or on behalf of them only
and shall not constitute a subordination in right of payment of the Term Loan Debt to the ABL Debt or a subordination in right of payment
of the ABL Debt to the Term Loan Debt.
4.4 Non-Lienable Assets. Notwithstanding anything to the contrary contained herein (including Section 4.3), if any assets,
licenses, rights, or privileges of any Grantor are incapable of being the subject of a Lien in favor of a secured party including because
of restrictions under applicable law, the nature of the rights or interests of such Grantor, or the absence of a consent to such Lien
by a third party, and irrespective of whether the applicable collateral documents attempt (or purport) to encumber such assets, licenses,
rights, or privileges (the “Inalienable Interests”), then ABL Agent and Term Loan Agent agree that any distribution
or recovery that the ABL Claimholders or the Term Loan Claimholders may receive with respect to, or that is allocable to, the value of
any such Inalienable Interests, or any Proceeds thereof, whether received in their capacity as unsecured creditors or otherwise, shall
be turned over and applied in accordance with Section 4.1 and 4.2 as if such distribution or recovery were, or were on account
of, Collateral or the Proceeds of Collateral. With respect to Inalienable Interests that would be of the same type as the ABL Priority
Collateral if such Inalienable Interests were able to be included in the Collateral, until the Payment in Full of ABL Priority Debt occurs,
Term Loan Agent hereby appoints ABL Agent, and any officer or agent of ABL Agent, with full power of substitution, as the attorney-in-fact
of each of the Term Loan Claimholders for the limited purpose of carrying out the provisions of this Section 4.4 and taking any
action and executing any instrument that ABL Agent may reasonably deem necessary or advisable to accomplish the purposes of this Section
4.4, which appointment is irrevocable and coupled with an interest. With respect to Inalienable Interests that would be of the same
type as the Term Loan Priority Collateral if such Inalienable Interests were able to be included in the Collateral, until the Payment
in Full of Term Loan Priority Debt occurs, ABL Agent hereby appoints Term Loan Agent, and any officer or agent of Term Loan Agent, with
full power of substitution, the attorney-in-fact of each of the ABL Claimholders for the limited purpose of carrying out the provisions
of this Section 4.4 and taking any action and executing any instrument that Term Loan Agent may reasonably deem necessary or advisable
to accomplish the purposes of this Section 4.4, which appointment is irrevocable and coupled with an interest.
4.5 Application of Payments. Subject to the other terms of this Agreement, all payments received (not in violation of this Agreement)
by (a) the ABL Claimholders may be applied, reversed, and reapplied, in whole or in part, to the ABL Priority Debt to the extent provided
for in the ABL Documents, and (b) the Term Loan Claimholders may be applied, reversed, and reapplied, in whole or in part, to the Term
Loan Priority Debt to the extent provided for in the Term Loan Documents.
4.6 Revolving Nature of ABL Debt. Term Loan Agent, acknowledges and agrees that the ABL Credit Agreement includes a revolving
commitment and that the amount of the ABL Debt that may be outstanding at any time or from time to time may be increased or reduced and
subsequently reborrowed subject to the terms hereof.
4.7 Voluntary
and Mandatory Prepayments of the Term Loan Debt. Neither Borrowers nor any Guarantor shall make any (a) voluntary prepayment of the
Term Loan Debt or the term debt included in ABL Debt, unless (i) no Default (as defined in the ABL Credit Agreement) and no ABL Default
has occurred and is continuing or would immediately result therefrom, (ii) with respect to a voluntary prepayment of term debt included
in the ABL Debt, no Default (as defined in the Term Loan Agreement) and no Term Loan Default has occurred and is continuing or would
immediately result therefrom and (iii) after giving effect to any such voluntary prepayment, Excess Availability exceeds $5,000,0006,000,000,
or (b) mandatory prepayment of the Term Loan Debt from Excess Cash Flow (as defined in the Term Loan Agreement in effect on the date
hereof) unless (i) no Default (as defined in the ABL Credit Agreement) and no ABL Default has occurred and is continuing or would immediately
result therefrom, and (ii) after giving effect to such mandatory prepayment, Excess Availability exceeds $1,250,0003,000,000;
provided, that, to the extent Loan Parties were not permitted to make a mandatory prepayment described in this clause (b) because such
conditions were not met, then the Loan Parties shall be obligated to make (and the Term Loan Claimholders shall be permitted to accept)
such payments on the next Business Day that such conditions are satisfied so long as for the 30 day period ending on the date of such
prepayment, Excess Availability has exceeded the sum of $1,250,0003,000,000.
In accepting any prepayment, all ABL Claimholders and all Term Loan Claimholders shall be permitted to rely on a certificate from Holdings
certifying as to the satisfaction of the applicable condition regarding Excess Availability, and to the extent Excess Availability is
in fact less than the required levels above, the ABL Claimholders and the Term Loan Claimholders shall have no obligation to turn over
any such prepayment and no liability for accepting such prepayment when accepted in reliance on such certificate.
4.8 Payments on Warrant Obligations. Neither the Borrowers nor any Guarantor shall make any cash payment under the Warrants
or the Warrant Letter (as defined in the Term Loan Agreement) including, without limitation, in connection with the exercise of either
of the Warrants and/or a sale to Holdings of the corresponding Equity Interests (as defined in the Term Loan Credit Agreement) issuable
in connection therewith, pursuant to a sale of any Warrant to Holdings, pursuant to a payment of the Buy-In Price (as defined in any Warrant)
or similar obligations, in each case, unless the Payment Conditions have been satisfied.
SECTION
5 Releases;
Dispositions; Other Agreements.
5.1 Releases.
(a) Prior to the Payment in Full of any Priority Debt and subject to the other specific provisions of this Agreement including Section
5.1(e), the Priority Agent shall have the exclusive right to make determinations regarding the release or Disposition of any Priority
Collateral pursuant to the terms of the applicable Documents or in accordance with the provisions of this Agreement, in each case without
any consultation with or consent of any of the Junior Claimholders.
(b) If, in connection with an Enforcement Action by the Priority Agent as provided for in Section 3 and prior to the Payment
in Full of the related Priority Debt, the Priority Agent releases any of its Liens on any part of the Priority Collateral (or such Liens
are released by operation of law), then the Liens of the Junior Agent on such Priority Collateral, shall be automatically, unconditionally,
and simultaneously released to the extent, and only to the extent, the Priority Agent has released its Liens in such Priority Collateral.
(c) If, in connection with any Disposition of any Priority Collateral permitted under the terms of the ABL Documents and the Term Loan
Documents, each as in effect as of the date hereof, the Priority Agent releases any of its Liens on the portion of the Priority Collateral
that is the subject of such Disposition, then the Liens of the Junior Agent on such Priority Collateral shall be automatically, unconditionally,
and simultaneously release so long as the net cash Proceeds of any such Default Disposition are applied in accordance with Section
4.1(a) (as if they were Proceeds received in connection with an Enforcement Action).
(d) In the event of any private or public Disposition of all or any material portion of the Priority Collateral by one or more Grantors
with the consent of the Priority Agent after the occurrence and during the continuance of an Event of Default (and prior to the Payment
in Full of the Priority Debt), including any Disposition contemplated by Section 9-620 of the UCC, which Disposition is conducted by such
Grantors with the consent of the Priority Agent in connection with good faith efforts by the Priority Agent to collect the Priority Debt
through the Disposition of Priority Collateral (any such Disposition, an “Default Disposition”), then the Liens of
the Junior Agent shall be automatically, unconditionally, and simultaneously released so long as (i) such Default Disposition is conducted
by the applicable Grantor(s) in a commercially reasonable manner (as if such Disposition were a disposition of collateral by a secured
party in accordance with the UCC) and in accordance with applicable law, (ii) the Priority Agent also releases its Liens on such Priority
Collateral, and (iii) the net cash Proceeds of any such Default Disposition are applied in accordance with Section 4.1(a) (as if
they were Proceeds received in connection with an Enforcement Action).
(e) To the extent that the Liens of the Junior Agent in and to any Priority Collateral are to be released as provided in this Section
5.1,
(i) The Junior Agent shall promptly, upon the written request of the Priority Agent, at the joint and several expense of the Grantors,
execute and deliver such release documents and confirmations of the authorization to file UCC amendments, in each case, as the Priority
Agent may reasonably require in connection with such Disposition to evidence and effectuate such release; provided, that any such
release or UCC amendment by the Junior Agent shall not extend to or otherwise affect any of the rights, if any, of Agent to the Proceeds
from any such Disposition of any Collateral,
(ii) from and after the time that the Liens of the Priority Agent in and to such Priority Collateral are released, the Junior Agent
shall be automatically and irrevocably deemed to have authorized the Priority Agent to file UCC amendments releasing the Priority Collateral
subject to such Disposition,
(iii) the Junior Claimholders shall be deemed to have consented under the applicable Documents to such Disposition to the same extent
as the consent of the Priority Claimholders, and
(iv) in accordance with the provisions of applicable law, the Liens of the Junior Agent shall automatically attach to any Proceeds
of any Collateral subject to any such Disposition to the extent not used to repay Priority Debt.
(f) Until the Payment in Full of the applicable Priority Debt occurs, the Junior Agent hereby irrevocably constitutes and appoints
the Priority Agent and any officer or agent of the Priority Agent, with full power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead of Junior Agent or in the Priority Agent’s own name, from time
to time in the Priority Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1, to take any and
all appropriate action with respect to the Priority Collateral and to execute and deliver any and all documents and instruments with respect
thereto that may be necessary to accomplish the purposes of this Section 5.1, including any financing statement amendments (form
UCC-3) or any other endorsements or other instruments of transfer or release with respect to the Priority Collateral; provided that all
such actions must be made without recourse or warranty to the Junior Claimholders and the expenses of the Junior Agent shall have been
reimbursed by the Grantors.
(g) To the extent any Claimholders (i) have released any Lien on their Collateral or any Grantor with respect to their Debt, and any
such Liens or obligations are later reinstated, or (ii) obtain any new Liens from any Grantor or obtain a guaranty from any Grantor of
their Debt, then other Claimholders shall be entitled to obtain a Lien on any such Collateral, subject to the terms (including the lien
subordination provisions) of this Agreement, and a guaranty from such Grantor of their Debt, as the case may be.
5.2 Insurance.
(a) Unless and until the Payment in Full of ABL Priority Debt has occurred: (i) ABL Agent shall have the sole and exclusive right,
subject to the rights of Grantors under the ABL Documents, to adjust and settle any claim under any insurance policy (other than business
interruption) or any trade credit insurance policy in each case, in respect of the ABL Priority Collateral in the event of any loss thereunder
(collectively, the “ABL Insured Claims”); and (ii) all proceeds of any such insurance policy (other than business interruption)
or any trade credit insurance policy with respect to an insured claim on ABL Priority Collateral shall be paid, subject to the rights
of Grantors under the ABL Documents and the Term Loan Documents, first to ABL Claimholders and Term Loan Claimholders in accordance
with the priorities set forth in Section 4.1, until paid in full in cash, and second, to the Grantors, such other person
as may be entitled thereto, or as a court of competent jurisdiction may otherwise direct. If any Term Loan Claimholders shall, at any
time, receive any proceeds of any such insurance policy or any trade credit insurance policy in contravention of this Section 5.2(a),
it shall pay such proceeds over to ABL Agent in accordance with the terms of Section 4.2.
(b) Unless and until the Payment in Full of Term Loan Priority Debt has occurred: (i) the Term Loan Claimholders shall have the sole
and exclusive right, subject to the rights of Grantors under the Term Loan Documents, to adjust and settle any claim under any insurance
policy in the event of any loss thereunder and to approve any award granted in any condemnation, expropriation or similar proceeding (or
any deed in lieu of condemnation and/or expropriation) other than ABL Insured Claims and (ii) all proceeds of any such insurance policy
and any such award (or any payments with respect to a deed in lieu of condemnation and/or expropriation) shall be paid, subject to the
rights of Grantors under the Term Loan Documents and the ABL Documents, first to the Term Loan Claimholders and the ABL Claimholders
in accordance with the priorities set forth in Section 4.1, until paid in full in cash, and second, to the Grantors, such
other person as may be entitled thereto, or as a court of competent jurisdiction may otherwise direct. If any ABL Claimholders shall,
at any time, receive any proceeds of any such insurance policy or any such award or payment in contravention of this Section 5.2(b),
it shall pay such proceeds over to Term Loan Agent in accordance with the terms of Section 4.2.
(c) In the event that any Proceeds are derived from any insurance policy that covers ABL Priority Collateral and Term Loan Priority
Collateral, ABL Agent and Term Loan Agent will work jointly and in good faith to collect, adjust or settle (subject to the rights of the
Grantors under the ABL Documents and the Term Loan Documents) any claim under the relevant insurance policy.
(d) To effectuate the foregoing, Grantors shall provide ABL Agent and Term Loan Agent with separate lender’s loss payable endorsements
naming themselves as loss payee and additional insured, as their interests may appear, with respect to policies which insure Collateral
hereunder.
(e) Notwithstanding anything contained in this Agreement to the contrary, in the event that any Proceeds derived from any insurance
policy includes both ABL Priority Collateral and Term Loan Priority Collateral, if the ABL Agent and Term Loan Agent are unable to agree
in writing upon an allocation of such Proceeds which does not result in Payment in Full of ABL Priority Debt and the Payment in Full of
Term Loan Priority Debt, then the ABL Agent and the Term Loan Agent shall use commercially reasonable efforts in good faith to negotiate
a proper allocation of such Proceeds as between ABL Priority Collateral and Term Loan Priority Collateral and if no such agreement occurs,
then such allocations will be as determined by a Final Order.
5.3 Amendments; Refinancings.
(a) The ABL Documents may be amended, supplemented, waived or otherwise modified in accordance with their terms and the ABL Debt may
be Refinanced, in each case without notice to, or the consent of, the Term Loan Claimholders, all without affecting the lien subordination
or other provisions of this Agreement; provided, that, in the case of a Refinancing, the holders of such Refinancing debt shall
have bound themselves (in a writing addressed to Term Loan Agent) to the terms of this Agreement; provided further, that any such
amendment, supplement, modification, waiver or Refinancing shall not, without the prior written consent of Term Loan Agent (which it shall
be authorized to consent to based upon an affirmative vote of the Term Loan Claimholders holding no more than a majority of the debt under
the Term Loan Agreement):
(i) contravene the provisions of this Agreement;
(ii) increase the “Applicable Margin” or similar component of the interest rate (including any “floor”) by
more than 3.00 percentage points per annum (excluding increases resulting from (A) increases in the underlying reference rate not caused
by an amendment, supplement, modification or Refinancing of the ABL Credit Agreement, (B) the application of the pricing grid set forth
in the ABL Credit Agreement as in effect on the date hereof, or (C) the accrual of interest at the default rate set forth in the ABL Credit
Agreement as in effect on the date hereof);
(iii)
change to earlier dates any dates upon which payments of principal or interest are due thereon or extend the scheduled final
maturity date of the ABL Debt beyond the scheduled maturity date of the Term Debt set forth in the Term Loan Documents;
(iv) modify (or have the effect of a modification of) the mandatory prepayment, redemption or defeasance provisions of the ABL Credit
Agreement or any ABL Document in a manner that makes them more restrictive to Grantors than as in effect on the date hereof (other than
such modifications that permit payments to permanently reduce the Term Loan Debt or with respect to a Disposition of ABL Priority Collateral
after an ABL Default); or
(v) change any covenants, defaults, or events of default under the ABL Credit Agreement or any other ABL Document (including the addition
of covenants, defaults, or events of default not contained in the ABL Credit Agreement or other ABL Documents as in effect on the date
hereof) to restrict any Grantor from making payments of the Term Loan Debt that would otherwise be permitted under the ABL Documents as
in effect on the date hereof.
(b) The Term Loan Documents may be amended, supplemented, waives or otherwise modified in accordance with their terms and the Term
Loan Debt may be Refinanced, in each case without notice to, or the consent of, any of the ABL Claimholders, all without affecting the
lien subordination or other provisions of this Agreement; provided, that, in the case of a Refinancing, the holders of such Refinancing
debt shall have bound themselves (in a writing addressed to ABL Agent) to the terms of this Agreement; provided further, that any
such amendment, supplement, modification, or waiver or Refinancing shall not, without the prior written consent of ABL Agent (which it
shall be authorized to consent to based upon an affirmative vote of the ABL Claimholders holding no more than a majority of the ABL Debt):
(i) contravene the provisions of this Agreement;
(ii) increase the “Applicable Margin” or similar component of the cash pay portion of any interest rate by more than 3.00
percentage points per annum (excluding increases resulting from (A) increases in the underlying reference rate not caused by an amendment,
supplement, modification or Refinancing of the Term Loan Agreement, (B) the application of the pricing grid set forth in the Term Loan
Agreement as in effect on the date hereof, or (C) the accrual of interest at the default rate set forth in the Term Loan Credit Agreement
as in effect on the date hereof);
(iii) change to earlier dates any dates upon which payments of principal or interest are due thereon or shorten the final maturity date
of the Term Debt to be due within six (6) months of the scheduled maturity date of the ABL Debt;
(iv) change any covenants, defaults, or events of default under the Term Loan Agreement or any other Term Loan Document (including
the addition of covenants, defaults, or events of default not contained in the Term Loan Agreement or other Term Loan Documents as in
effect on the date hereof) to restrict any Grantor from making payments of the ABL Debt that would otherwise be permitted under the Term
Loan Documents as in effect on the date hereof; or
(v) modify (or have the effect of a modification of) the mandatory prepayment, redemption or defeasance provisions of the Term Loan
Agreement or any Term Loan Document in a manner that makes them more restrictive to Grantors (other than such modifications that permit
payments to permanently reduce the ABL Debt or with respect to a Disposition of Term Loan Priority Collateral after a Term Loan Default
has occurred and is continuing).
5.4 Bailee for Perfection.
(a) ABL Agent and Term Loan Agent each agree to hold that part of the Collateral that is in its possession (or in the possession of
its agents or bailees), to the extent that possession is necessary to perfect a Lien thereon under the UCC or other applicable law (such
possessory Collateral being referred to as the “Pledged Collateral”), as gratuitous bailee and as a non-fiduciary representative
for Term Loan Agent or ABL Agent, as applicable, solely for the purpose of perfecting the security interest granted under the Term Loan
Documents or the ABL Documents, as applicable, subject to the terms and conditions of this Section 5.4. Term Loan Agent hereby
appoints ABL Agent as its gratuitous bailee and non-fiduciary representative for the purposes of perfecting their security interest in
all Pledged Collateral in which ABL Agent has a perfected security interest under the UCC. ABL Agent hereby appoints Term Loan Agent as
its gratuitous bailee and non-fiduciary representative for the purposes of perfecting their security interest in all Pledged Collateral
in which Term Loan Agent has a perfected security interest under the UCC. Each of ABL Agent and Term Loan Agent hereby accept such appointments
pursuant to this Section 5.4 Subject to Sections 2.1 and 4 and unless and until the Payment in Full of ABL Priority Debt,
Term Loan Agent agrees to promptly notify ABL Agent of any Pledged Collateral constituting ABL Priority Collateral held by it or by any
other Term Loan Claimholder, and, immediately upon the request of ABL Agent to deliver to ABL Agent any such Pledged Collateral, together
with any necessary endorsements (or otherwise allow ABL Agent to obtain possession of such Pledged Collateral) for Disposition and distribution
of Proceeds in accordance with Sections 2 and 4. Subject to Sections 2.1 and 4 and unless and until the Payment in Full
of Term Loan Priority Debt and payment in full in cash of all Excess Term Loan Debt, ABL Agent agrees to promptly notify Term Loan Agent
of any Pledged Collateral constituting Term Loan Priority Collateral held by it or by any other ABL Claimholder, and, immediately upon
the request of Term Loan Agent to deliver to Term Loan Agent any such Pledged Collateral held by it or by any other ABL Claimholder, together
with any necessary endorsements (or otherwise allow Term Loan Agent to obtain possession of such Pledged Collateral) for Disposition and
distribution of Proceeds in accordance with Sections 2.1 and 4.
(b) ABL Agent shall have no obligation whatsoever to any of the Term Loan Claimholders to ensure that the Pledged Collateral is genuine
or owned by any of Grantors or to preserve rights or benefits of any person except as expressly set forth in this Section 5.4.
Term Loan Agent shall have no obligation whatsoever to any of the ABL Claimholders to ensure that the Pledged Collateral is genuine or
owned by any of Grantors or to preserve rights or benefits of any person except as expressly set forth in this Section 5.4. The
duties or responsibilities of ABL Agent under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee
and non-fiduciary representative in accordance with this Section 5.4 and delivering any Pledged Collateral in its possession (or
in the possession of its agents or bailees) upon a Payment in Full of ABL Priority Debt as provided in Section 5.6. The duties
or responsibilities of Term Loan Agent under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee
and non-fiduciary representative in accordance with this Section 5.4 and delivering any Pledged Collateral in its possession (or
in the possession of its agents or bailees) as provided in Section 5.6.
(c) ABL Agent, in acting pursuant to this Section 5.4, shall not have, or be deemed to have, a fiduciary relationship in respect
of any of the Term Loan Claimholders. Term Loan Agent, in acting pursuant to this Section 5.4, shall not have, or be deemed to
have, a fiduciary relationship in respect of any of the ABL Claimholders.
5.5 When Payment in Full of ABL Priority Debt or Payment in Full of Term Loan Priority Debt Deemed to Not Have Occurred.
(a) If any Borrower enters into any Refinancing of the ABL Debt that is intended to be secured by the ABL Priority Collateral on a
first priority basis, then a Payment in Full of ABL Priority Debt shall be deemed not to have occurred for all purposes of this Agreement,
and the obligations under such Refinancing of such ABL Debt shall be treated as ABL Debt for all purposes of this Agreement, including
for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and ABL Agent under the ABL Documents effecting
such Refinancing shall be ABL Agent for all purposes of this Agreement. ABL Agent under such ABL Documents shall agree (in a writing addressed
to Term Loan Agent) to be bound by the terms of this Agreement.
(b) If Borrowers enter into any Refinancing of the Term Loan Debt that is intended to be secured by the Term Loan Priority Collateral
on a first priority basis, then a Payment in Full of Term Loan Priority Debt shall be deemed not to have occurred for all purposes of
this Agreement, and the obligations under such Refinancing of such Term Loan Debt shall be treated as Term Loan Debt for all purposes
of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and Term Loan Agent
under the Term Loan Documents effecting such Refinancing shall be Term Loan Agent for all purposes of this Agreement. Term Loan Agent
under such Term Loan Documents shall agree (in a writing addressed to ABL Agent) to be bound by the terms of this Agreement.
5.6 Transfer of Pledged Collateral; Other Actions.
(a) Subject to Sections 2.1 and 4 and upon the Payment in Full of ABL Priority Debt, ABL Agent hereby agrees to the extent permitted
by applicable law, upon the written request of Term Loan Agent (with all costs and expenses in connection therewith to be for the account
of Term Loan Agent and to be paid by Grantors):
(i) ABL Agent shall, without recourse or warranty, take commercially reasonable steps to transfer the possession of the Pledged Collateral,
if any, then in its possession to Term Loan Agent, except in the event and to the extent (A) such Collateral is sold, liquidated, or otherwise
disposed of by any of the ABL Claimholders or by a Grantor as provided herein in full or partial satisfaction of any of the ABL Priority
Debt or (B) it is otherwise required by any order of any court or other governmental authority or applicable law; and
(ii) in connection with the terms of any collateral access agreement, whether with a landlord, processor, warehouseman, or other third
party or any control agreement, ABL Agent shall notify the other parties thereto that it no longer has rights as secured party thereunder.
(b) Subject to Sections 2.1 and 4 and upon the Payment in Full of the Term Loan Priority Debt, the Term Loan Agent hereby agrees
to the extent permitted by applicable law, upon the written request of the ABL Agent (with all costs and expenses in connection therewith
to be for the account of ABL Agent and to be paid by Grantors):
(i) Term Loan Agent shall, without recourse or warranty, take commercially reasonable steps to transfer the possession of the Pledged
Collateral, if any, then in its possession to ABL Agent, except in the event and to the extent (A) such Collateral is sold, liquidated,
or otherwise disposed of by any of the Term Loan Claimholders or by a Grantor as provided herein in full or partial satisfaction of any
of the Term Loan Priority Debt or (B) it is otherwise required by any order of any court or other governmental authority or applicable
law; and
(ii) in connection with the terms of any collateral access agreement, whether with a landlord, processor, warehouseman, or other third
party or any control agreement, Term Loan Agent shall notify the other parties thereto that it no longer has rights as secured party thereunder.
(c) The foregoing provisions shall not impose on any of the ABL Claimholders or any of the Term Loan Claimholders any obligations that
would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or other governmental
authority or any applicable law or give rise to risk of legal liability.
SECTION
6 Insolvency
Proceedings.
6.1 Enforceability and Continuing Priority. This Agreement shall be applicable both before and after the commencement of any
Insolvency Proceeding and all converted or succeeding cases in respect thereof. The relative rights of the Claimholders in or to any distributions
from or in respect of any Collateral, or Proceeds of Collateral, shall continue after the commencement of any Insolvency Proceeding. Accordingly,
the provisions of this Agreement are intended to be and shall be enforceable as a subordination agreement within the meaning of Section
510 of the Bankruptcy Code (or any similar Bankruptcy Law).
6.2 Financing.
(a) Until the Payment in Full of ABL Priority Debt, if any Grantor shall be subject to any Insolvency Proceeding and if ABL Agent consents
to the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code (or similar Bankruptcy Law)) constituting
ABL Priority Collateral (herein, “ABL Cash Collateral”), or consents to such Grantor obtaining financing from any of
the ABL Claimholders, provided under Section 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law secured solely
by a Lien on such ABL Priority Collateral (such financing, an “ABL DIP Financing”), and if such ABL Cash Collateral
use or ABL DIP Financing, as applicable, meets the applicable ABL DIP Financing Conditions, then Term Loan Agent unconditionally agrees
that it will consent as a secured creditor to such ABL Cash Collateral use and will raise no objection as a secured creditor to such ABL
DIP Financing, as applicable, and, if ABL DIP Financing is involved, Term Loan Agent will subordinate its Liens in the ABL Priority Collateral
(and in any other assets (other than Term Loan Priority Collateral) of the Grantors that may serve as collateral (including avoidance
actions or the proceeds thereof) for such ABL DIP Financing) to the Liens securing such ABL DIP Financing so long as the Term Loan Agent
is not prohibiting from seeking adequate protection as contemplated by Section 6.5. Term Loan Agent agrees that it shall not, and
nor shall any of the Term Loan Claimholders, directly or indirectly, provide, offer to provide, or support any DIP Financing secured by
a Lien on the ABL Priority Collateral senior to or pari passu with the Liens securing the ABL Priority Debt. If, in connection
with any ABL Cash Collateral use or ABL DIP Financing, any Liens on the ABL Priority Collateral held by the ABL Claimholders to secure
the ABL Debt are subject to a surcharge or are subordinated to an administrative priority claim, a professional fee “carve-out,”
or fees owed to the United States Trustee, then the Liens on the ABL Priority Collateral of the Term Loan Claimholders securing the Term
Loan Priority Debt shall also be subordinated to such interest or claim and shall remain subordinated to the Liens on the ABL Priority
Collateral of the ABL Claimholders consistent with this Agreement. The foregoing to the contrary notwithstanding but subject to Section
2.2, the Term Loan Claimholders may oppose or raise any objections to such use of ABL Cash Collateral or ABL DIP Financing that could
be raised by a creditor of Grantors whose claims are not secured by Liens on ABL Priority Collateral, provided that such opposition or
objections are not based on their status as secured creditors.
(b) Until the Payment in Full of Term Loan Priority Debt, if any Grantor shall be subject to any Insolvency Proceeding and if Term
Loan Agent consents to the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code (or similar Bankruptcy
Law)) constituting Term Loan Priority Collateral (herein, “Term Loan Cash Collateral”), or consents to such Grantor
obtaining financing from the Term Loan Claimholders provided under Section 364 of the Bankruptcy Code or any similar provision of any
other Bankruptcy Law secured by a Lien on such Term Loan Priority Collateral (such financing, a “Term Loan DIP Financing”),
and if such Term Loan Cash Collateral use or Term Loan DIP Financing, as applicable, meets the applicable Term Loan DIP Financing Conditions,
then ABL Agent unconditionally agrees that it will consent as a secured creditor to such Term Loan Cash Collateral use and will raise
no objection as a secured creditor to such Term Loan DIP Financing, as applicable, and, if Term Loan DIP Financing is involved, ABL Agent
will subordinate its Liens in the Term Loan Priority Collateral (and in any other assets other than ABL Priority Collateral of the Grantors
that may serve as collateral (including avoidance actions or the proceeds thereof) for such Term Loan DIP Financing) to the Liens securing
such Term Loan DIP Financing so long as the ABL Agent is not prohibiting from seeking adequate protection as contemplated by Section
6.5. ABL Agent agrees that it shall not, and nor shall any of the ABL Claimholders, directly or indirectly, provide, offer to provide,
or support any DIP Financing secured by a Lien on the Term Loan Priority Collateral that is senior to or pari passu with the Liens
securing the Term Loan Priority Debt. If, in connection with any Term Loan Cash Collateral use or Term Loan DIP Financing, any Liens on
the Term Loan Priority Collateral held by the Term Loan Claimholders to secure the Term Loan Debt are subject to a surcharge or are subordinated
to an administrative priority claim, a professional fee “carve-out,” or fees owed to the United States Trustee, then the Liens
on the Term Loan Priority Collateral of the ABL Claimholders securing the ABL Debt shall also be subordinated to such interest or claim
and shall remain subordinated to the Liens on the Term Loan Priority Collateral of the Term Loan Claimholders consistent with this Agreement.
The foregoing to the contrary notwithstanding but subject to Section 2.2, the ABL Claimholders may oppose or raise any objections
to use of Term Loan Cash Collateral or Term Loan DIP Financing that could be raised by a creditor of Grantors whose claims are not secured
by Liens on Term Loan Priority Collateral, provided that such opposition or objections are not based on their status as secured creditors.
(c) All Liens granted to ABL Agent or Term Loan Agent in any Insolvency Proceeding, whether as adequate protection or otherwise, are
intended by the parties to be and shall be deemed to be subject to the Lien priorities in Section 2.1 and the other terms and conditions
of this Agreement.
6.3 Sales. Each Junior Agent agrees that it will consent to, and will not object or oppose, or support, directly or indirectly,
any other person seeking to object or oppose, a motion by a Grantor that is supported by the Priority Agent to Dispose of any of its Priority
Collateral free and clear of the Liens of the Junior Agent under Section 363 or 1129 of the Bankruptcy Code (or under any similar provision
of any applicable Bankruptcy Law) if (a) the Priority Agent has consented to the sale of such Collateral free and clear of the Liens of
the Priority Agent, (b) such motion does not impair, subject to the priorities set forth in this Agreement, the rights of the Junior Claimholders
under Section 363(k) of the Bankruptcy Code or similar provision of any applicable Bankruptcy Law (so long as the right of the Junior
Claimholders to offset their claims against the purchase price only arises after the Priority Debt has been paid in full in cash), and
(c) either (i) pursuant to court order, the Liens of the Junior Agent attach to the net Proceeds of the Disposition with the same priority
and validity as the Liens held by such Junior Agent on such Priority Collateral, and the Liens remain subject to the terms of this Agreement,
or (ii) the Proceeds of the Disposition are applied to permanently reduce the ABL Priority Debt or Term Loan Priority Debt, as applicable,
in accordance with Section 4.1. The foregoing to the contrary notwithstanding but subject to Section 2.2, the Junior Claimholders
may oppose or raise any objections to such Disposition of such Priority Collateral that could be raised by a creditor of Grantors whose
claims are not secured by Liens on such Priority Collateral, provided that such opposition or objections are not based on their status
as secured creditors (without limiting the foregoing, the Junior Claimholders may not oppose or raise any objections based on rights afforded
by Sections 363(e) and (f) of the Bankruptcy Code to secured creditors (or any comparable provision of any other Bankruptcy Law) with
respect to the Liens granted to the Junior Agent in respect of such assets).
6.4 Relief from the Automatic Stay. Until the Payment in Full of Priority Debt has occurred, Junior Agent agrees not to (a)
seek (or support any other person seeking) relief from the automatic stay or any other stay in any Insolvency Proceeding in respect of
any Priority Collateral, without the prior written consent of Priority Agent; provided, that Junior Agent may seek relief from
the automatic stay or any other stay in any Insolvency Proceeding in respect of such Priority Collateral if and to the extent that Priority
Agent has obtained relief from or modification of such stay in respect of the Priority Collateral, or (b) oppose any request by the Priority
Agent or any Priority Claimholder to seek relief from the automatic stay or any other stay in any Insolvency Proceeding in respect of
any Priority Collateral.
6.5 Adequate Protection. In any Insolvency Proceeding involving a Grantor,
(a) each Junior Claimholder agrees that it shall not object to or contest, or support any other person objecting or contesting (and
instead shall be deemed to have hereby irrevocably, absolutely, and unconditionally waived any right to do so):
(i) any request by any Priority Claimholder with respect to any Priority Collateral prior to the applicable Payment in Full of Priority
Debt, for “adequate protection” (within the meaning of such term under the Bankruptcy Code and any similar concept under applicable
Bankruptcy Law) of its interest in the Priority Collateral, including a request for replacement or additional Liens on post-petition assets
of the same type as such Priority Collateral; provided, any ABL Claimholder, solely in its capacity as a Priority Claimholder,
may object to adequate protection in the form of cash payments to the extent such payment is sought to be paid from ABL Priority Collateral
or the Proceeds thereof and any Term Loan Claimholder, solely in its capacity as a Priority Claimholder, may object to adequate protection
in the form of cash payments to the extent such payment is sought to be paid from Term Loan Priority Collateral or the Proceeds thereof;
(ii) as applicable any (A) objection by any Priority Claimholder to any motion, relief, action, or proceeding based on such Priority
Claimholders claiming a lack of adequate protection with respect to its Liens in their Priority Collateral, or (B) request by any of the
Priority Claimholders for relief from the automatic stay with respect to its Priority Collateral.
(b) if any Priority Claimholder is granted adequate protection with respect to its rights in the Priority Collateral in the form of
an additional or replacement Lien with respect to assets of the type included in such Priority Collateral, then Priority Agent agrees
that Junior Agent shall also be entitled to seek, without objection from the Priority Claimholders, adequate protection in the form of
an additional or replacement Lien with respect to the assets that are the subject of the Priority Claimholder’s additional or replacement
Lien, which additional or replacement adequate protection Lien of the Junior Agent, if obtained, shall be subordinate to the adequate
protection Liens in and to such assets securing the Priority Debt on the same basis as the other Liens securing the Junior Debt on the
Junior Priority Collateral are subordinated to the Liens on the Priority Collateral securing the Priority Debt under this Agreement;
(c) no Junior Claimholder may seek adequate protection with respect to its rights in the Priority Collateral except for adequate protection
in the form of an additional or replacement Lien in and to existing or future assets of Grantors, and Junior Agent agrees that Priority
Agent shall also be entitled to seek, without objection from the Junior Claimholders, a senior adequate protection Lien in and to such
existing or future assets of Grantors as security for the Priority Debt and that any adequate protection Lien in and to the Priority Collateral
securing the Junior Debt shall be subordinated to such senior adequate protection Lien in and to the Priority Collateral securing the
Priority Debt on the same basis as the other Liens securing the Junior Debt are subordinated to the Liens on the Priority Collateral securing
the Priority Debt under this Agreement;
(d) any adequate protection granted in favor of any Priority Claimholder in the form of a superpriority or other administrative expense
claim and any claim in favor of any Priority Claimholder arising under Section 507(b) of the Bankruptcy Code (or similar Bankruptcy Law)
(“Senior 507(b) Claims”), shall be pari passu with the grant of adequate protection in favor of the other Priority
Claimholders in the form of a superpriority or other administrative expense claim and any Senior 507(b) Claims in favor of such other
Priority Claimholders;
(e) any claim arising under Section 507(b) of the Bankruptcy Code in favor of any Junior Claimholder shall be pari passu with
the claims arising under Section 507(b) of the Bankruptcy Code (or similar Bankruptcy Law) in favor of the other Junior Claimholders (collectively,
“Junior 507(b) Claims”), all Junior 507(b) Claims shall be junior and subordinate in right of payment to the
Senior 507(b) Claims, and the holders of the Junior 507(b) Claims agree that, in connection with any plan of reorganization in such Insolvency
Proceeding, such Junior 507(b) Claims may be paid in any combination of cash, securities, or other property having a present value equal
to the amount of such Junior 507(b) Claims as of the effective date of confirmation of such plan;
(f) No Junior Claimholder shall object to, oppose, or challenge the determination of the extent of any Liens held by any of the Priority
Claimholders, the value of Collateral securing any claims of Priority Claimholders under Section 506(a) of the Bankruptcy Code or any
claim by any Priority Claimholder for allowance of Priority Debt consisting of post-petition interest, fees, or expenses.
6.6 Specific Sections of the Bankruptcy Code. The Junior Claimholders shall not object to, oppose, support any objection, or
take any other action to impede, the right of any Priority Claimholder to make an election under Section 1111(b)(2) of the Bankruptcy
Code (or similar provision of Bankruptcy Law). The Junior Claimholders waive any claim they may hereafter have against any Priority Claimholder
arising out of the election by any Priority Claimholder of the application of Section 1111(b)(2) of the Bankruptcy Code (or similar provision
of Bankruptcy Law). The Junior Claimholders agree that they will not, directly or indirectly, assert or support the assertion of, and
hereby waive any right that they may have to assert or support the assertion of any claim under Section 506(c) or the “equities
of the case” exception of Section 552(b) of the Bankruptcy Code (or similar provisions of Bankruptcy Law) as against any Priority
Claimholder or with respect to any of the Priority Collateral to the extent securing the Priority Debt; provided, that nothing
herein shall restrict the holder of any DIP Financing from having, or seeking to have, such DIP Financing repaid, in whole or in part,
from the proceeds of the assertion of any claim under Section 506(c) of the Bankruptcy Code (or any similar provision of any other Bankruptcy
Law).
6.7 No
Waiver; Limitation.
(a) Subject to Sections 3.1(a), 3.2(a), and the other provisions of Section 6, nothing contained herein shall prohibit
or in any way limit any Agent or any other Claimholder from objecting in any Insolvency Proceeding involving a Grantor to any action taken
by the other Agent or any other Claimholder, including the seeking by the other Agent or any other Claimholder of adequate protection
or the assertion by the other Agent or any other Claimholder of any of its rights and remedies under the Term Loan Documents or the ABL
Documents, as applicable.
6.8 Avoidance Issues. If any Claimholder is required in any Insolvency Proceeding or otherwise to turn over, disgorge, or otherwise
pay to the estate of any Grantor any amount paid in respect of the Debt of such Claimholder (or if any Claimholder elects to do so upon
the advice of counsel) (a “Recovery”), then such Claimholder shall be entitled to a reinstatement of the applicable
Debt with respect to all such amounts, and all rights, interests, priorities, and privileges recognized in this Agreement shall apply
with respect to any such Recovery. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated
in full force and effect, and such prior termination shall not diminish, release, discharge, impair, or otherwise affect the obligations
of the parties hereto from such date of reinstatement.
6.9 Plan of Reorganization.
(a) If, in any Insolvency Proceeding involving a Grantor, debt obligations of the reorganized debtor secured by Liens upon any property
of the reorganized debtor are distributed pursuant to a confirmed plan of reorganization or similar dispositive restructuring plan, compromise
or arrangement, both on account of ABL Debt and on account of Term Loan Debt, then, to the extent the debt obligations distributed on
account of the ABL Debt and on account of the Term Loan Debt are secured by Liens upon the same property, the provisions of this Agreement
will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such
debt obligations.
(b) The provisions of Section 1129(b)(1) of the Bankruptcy Code (or similar Bankruptcy Law) notwithstanding, the Claimholders agree
that they will not propose, support, or vote in favor of any plan of reorganization, compromise, arrangement or similar proposal of a
Grantor that is inconsistent with the priorities or other provisions of this Agreement.
SECTION
7 Reliance;
Waivers; Etc.
7.1 Reliance. Other than any reliance on the terms of this Agreement, ABL Agent acknowledges that it and each of the other ABL
Claimholders have, independently and without reliance on any of the Term Loan Claimholders, and based on documents and information deemed
by them appropriate, made their own credit analysis and decision to enter into each of the ABL Documents and be bound by the terms of
this Agreement and they will continue to make their own credit decision in taking or not taking any action under the ABL Documents or
this Agreement. Other than any reliance on the terms of this Agreement, Term Loan Agent acknowledges that it and each of the other Term
Loan Claimholders have, independently and without reliance on any of the ABL Claimholders, and based on documents and information deemed
by them appropriate, made their own credit analysis and decision to enter into each of the Term Loan Documents and be bound by the terms
of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the Term Loan Documents
or this Agreement.
7.2 No Warranties or Liability. ABL Agent acknowledges and agrees that none of the Term Loan Claimholders have made any express
or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability, or enforceability
of any of the Term Loan Documents, the ownership of any Collateral, or the perfection or priority of any Liens thereon. Except as otherwise
expressly provided herein, the Term Loan Claimholders will be entitled to manage and supervise their respective loans and extensions of
credit under the Term Loan Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate. Term
Loan Agent acknowledges and agrees that none of the ABL Claimholders has made any express or implied representation or warranty, including
with respect to the execution, validity, legality, completeness, collectability, or enforceability of any of the ABL Documents, the ownership
of any Collateral, or the perfection or priority of any Liens thereon. Except as otherwise expressly provided herein, the ABL Claimholders
will be entitled to manage and supervise their respective loans and extensions of credit under the ABL Documents in accordance with law
and as they may otherwise, in their sole discretion, deem appropriate. The Term Loan Claimholders shall have no duty to the ABL Claimholders,
and the ABL Claimholders shall have no duty to the Term Loan Claimholders, to act or refrain from acting in a manner that allows, or results
in, the occurrence or continuance of an event of default or default under any agreements with any Grantor (including the ABL Documents
and the Term Loan Documents), regardless of any knowledge thereof which they may have or be charged with.
7.3 No Waiver of Lien Priorities.
(a) No right of any of the Claimholders, any Agent or any of them to enforce any provision of this Agreement or any Loan Document shall
at any time in any way be prejudiced or impaired by any act or failure to act on the part of any Grantor or by any act or failure to act
by any other Claimholder or any Agent, or by any noncompliance by any person with the terms, provisions, and covenants of this Agreement,
any of the Loan Documents, regardless of any knowledge thereof which any Agent or any other Claimholder may have (or be otherwise charged
with).
(b) Without in any way limiting the generality of the foregoing provisions of Section 7.3(a) (but subject to any rights of Grantors
under the ABL Documents and subject to the provisions of Section 5.3(a)), the ABL Claimholders may, at any time and from time to
time in accordance with the ABL Documents or applicable law, without the consent of, or notice to, any of the Term Loan Claimholders,
without incurring any liabilities to any of the Term Loan Claimholders and without impairing or releasing the Lien priorities and other
benefits provided in this Agreement (even if any right of subrogation or other right or remedy of any of the Term Loan Claimholders is
affected, impaired, or extinguished thereby) do any one or more of the following without the prior written consent of Term Loan Agent:
(i) change the manner, place, or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase,
or alter, the terms of any of the ABL Debt or any Lien on any ABL Collateral or guarantee thereof or any liability of any Grantor, or
any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the ABL Debt, without any
restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify, or supplement
in any manner any Liens held by any of the ABL Claimholders, the ABL Debt, or any of the ABL Documents;
(ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order all or any part
of the ABL Priority Collateral or any liability of any Grantor to any of the ABL Claimholders, or any liability incurred directly or indirectly
in respect thereof;
(iii) settle or compromise any ABL Debt or any other liability of any Grantor or any security therefor or any liability incurred directly
or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the ABL Debt)
in any manner or order; and
(iv) exercise or delay in or refrain from exercising any right or remedy against any Grantor or any other person, elect any remedy
and otherwise deal freely with any Grantor or any ABL Priority Collateral and any guarantor or any liability of any Grantor to any of
the ABL Claimholders or any liability incurred directly or indirectly in respect thereof.
(c) Except as otherwise provided herein, Term Loan Agent also agrees that the ABL Claimholders shall have no liability to any of the
Term Loan Claimholders, and Term Loan Agent hereby waives any claim of the Term Loan Claimholders against any of the ABL Claimholders
arising out of any and all actions which any of the ABL Claimholders may, pursuant to the terms hereof, take, permit, or omit to take
with respect to:
(i) the ABL Documents;
(ii) the collection of the ABL Debt; or
(iii)
the foreclosure upon, or sale, liquidation, or other disposition of, or the failure to foreclose upon, or sell, liquidate, or
otherwise dispose of, any ABL Priority Collateral.
Term Loan Agent agrees that the ABL Claimholders
have no duty to the Term Loan Claimholders in respect of the maintenance or preservation of the ABL Priority Collateral, the ABL Debt,
or otherwise.
(d) Without in any way limiting the generality of the provisions of Section 7.3(a) (but subject to any rights of Grantors under
the Term Loan Documents and subject to the provisions of Section 5.3(b)) the Term Loan Claimholders may, at any time and from time
to time in accordance with the Term Loan Documents or applicable law, without the consent of, or notice to, any of the ABL Claimholders,
without incurring any liabilities to any of the ABL Claimholders and without impairing or releasing the Lien priorities and other benefits
provided in this Agreement (even if any right of subrogation or other right or remedy of any of the ABL Claimholders is affected, impaired,
or extinguished thereby) do any one or more of the following without the prior written consent of ABL Agent:
(i) change the manner, place, or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase,
or alter, the terms of any of the Term Loan Debt or any Lien on any Term Loan Collateral or guarantee thereof or any liability of any
Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the Term Loan
Debt, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend,
modify, or supplement in any manner any Liens held by the Term Loan Claimholders, the Term Loan Debt, or any of the Term Loan Documents;
(ii) subject to Section 3.9, sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner
and in any order any part of the Term Loan Priority Collateral or any liability of any Grantor to any Term Loan Claimholder, or any liability
incurred directly or indirectly in respect thereof;
(iii) settle or compromise any Term Loan Debt or any other liability of any Grantor or any security therefor or any liability incurred
directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the Term
Loan Debt) in any manner or order; and
(iv) exercise or delay in or refrain from exercising any right or remedy against any Grantor or any other person, elect any remedy
and otherwise deal freely with any Grantor or any Term Loan Priority Collateral and any guarantor or any liability of any Grantor to any
Term Loan Claimholder or any liability incurred directly or indirectly in respect thereof.
(e) Except as otherwise provided herein, ABL Agent also agrees that the Term Loan Claimholders shall have no liability to any of the
ABL Claimholders, and ABL Agent hereby waives any claim of the ABL Claimholders against any of the Term Loan Claimholders arising out
of any and all actions which any of the Term Loan Claimholders may, pursuant to the terms hereof, take, permit or omit to take with respect
to:
(i) the Term Loan Documents;
(ii) the collection of the Term Loan Debt; or
(iii) the foreclosure upon, or sale, liquidation, or other disposition of, or the failure to foreclose upon, or sell, liquidate, or
otherwise dispose of, any Term Loan Priority Collateral.
ABL Agent agrees that the Term Loan Claimholders
have no duty to the ABL Claimholders in respect of the maintenance or preservation of the Term Loan Priority Collateral, the Term Loan
Debt, or otherwise.
(f) Until the Payment in Full of ABL Priority Debt and the Payment in Full of Term Loan Priority Debt, each of Term Loan Agent and
ABL Agent agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead, or otherwise
assert, or otherwise claim the benefit of, any marshaling, appraisal, valuation, or other similar right that may otherwise be available
under applicable law with respect to the other Agent’s Priority Collateral or any other similar rights a junior secured creditor
may have under applicable law.
7.4 Obligations Unconditional. For so long as this Agreement is in full force and effect, all rights, interests, agreements,
and obligations of the ABL Claimholders and the Term Loan Claimholders, respectively, hereunder shall remain in full force and effect
irrespective of:
(a) any lack of validity or enforceability of any ABL Documents or any Term Loan Documents;
(b) except as otherwise expressly restricted in this Agreement, any change in the time, manner, or place of payment of, or in any other
terms of, all or any of the ABL Debt or Term Loan Debt, or any amendment or waiver or other modification, including any increase in the
amount thereof, whether by course of conduct or otherwise, of the terms of any ABL Document or any Term Loan Document;
(c) except as otherwise expressly restricted in this Agreement, any exchange of any security interest in any Collateral or any other
collateral, or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of
the ABL Debt or Term Loan Debt or any guarantee thereof;
(d) the commencement of any Insolvency Proceeding in respect of any Grantor; or
(e) any other circumstances which otherwise might constitute a defense available to any Grantor in respect of the ABL Debt or the Term
Loan Debt.
SECTION
8 Representations
and Warranties.
8.1 Representations and Warranties of Each Party. Each party hereto represents and warrants to the other parties hereto as follows:
(a) Such party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and
has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder.
(b) This Agreement has been duly executed and delivered by such party and constitutes a legal, valid and binding obligation of such
party, enforceable in accordance with its terms.
(c) The execution, delivery, and performance by such party of this Agreement (i) do not require any consent or approval of, registration
or filing with or any other action by any governmental authority and (ii) will not violate any provision of law, statute, rule or regulation,
or of the certificate or articles of incorporation or other constitutive documents or bylaws of such party or any order of any governmental
authority or any provision of any indenture, agreement or other instrument binding upon such party.
8.2 Representations and Warranties of Each Agent. ABL Agent and Term Loan Agent each represents and warrants to the other that
it has been authorized by the ABL Claimholders or the Term Loan Claimholders, as applicable, under the ABL Credit Agreement or the Term
Loan Agreement, as applicable, to enter into this Agreement and that each of the agreements, covenants, waivers, and other provisions
hereof is valid, binding, and enforceable against the ABL Lenders or Term Lenders, as applicable, as fully as if they were parties hereto.
8.3 Survival. All representations and warranties made by one party hereto in this Agreement shall be considered to have been
relied upon by the other party hereto and shall survive the execution and delivery of this Agreement, regardless of any investigation
made by any such other party.
SECTION
9 Miscellaneous.
9.1 Conflicts. In the event of any conflict between the provisions of this Agreement and the provisions of any of the ABL Documents
or any of the Term Loan Documents, the provisions of this Agreement shall govern and control.
9.2 Effectiveness; Continuing Nature of this Agreement; Severability. This Agreement shall become effective when executed and
delivered by the parties hereto. This is a continuing agreement of lien subordination and the ABL Claimholders may continue, at any time
and without notice to any Term Loan Claimholder, to extend credit and other financial accommodations to or for the benefit of any Grantor
constituting ABL Debt in reliance hereof. Each Agent hereby waives any right it may have under applicable law to revoke this Agreement
or any of the provisions of this Agreement. The terms of this Agreement shall survive, and shall continue in full force and effect, in
any Insolvency Proceeding. Any provision of this Agreement that is prohibited or unenforceable shall not invalidate the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. All references to any Grantor shall include such Grantor as debtor and debtor-in-possession and any receiver or
trustee for such Grantor in any Insolvency Proceeding. Subject to the terms of this Agreement that provide for reinstatement of Debt,
this Agreement shall terminate and be of no further force and effect:
(a) with respect to the ABL Claimholders and the ABL Debt, on the date of Payment in Full of ABL Priority Debt; and
(b) with respect to the Term Loan Claimholders and the Term Loan Debt, on the date of Payment in Full of the Term Loan Priority Debt.
9.3 Amendments; Waivers. No amendment, modification, or waiver of any of the provisions of this Agreement shall be effective
unless the same shall be in writing signed on behalf of the ABL Agent (or its authorized agent) and the Term Loan Agent (or its authorized
agent) and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights
of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time.
9.4 Information Concerning Financial Condition of Parent and its Subsidiaries. The ABL Claimholders, on the one hand, and the
Term Loan Claimholders, on the other hand, shall each be responsible for keeping themselves informed of (a) the financial condition of
Parent and its Subsidiaries and all endorsers or guarantors of the ABL Debt or the Term Loan Debt and (b) all other circumstances bearing
upon the risk of nonpayment of the ABL Debt or the Term Loan Debt. The ABL Claimholders shall have no duty to advise the Term Loan Claimholders
of information known to them regarding such condition or any such circumstances or otherwise. The Term Loan Claimholders shall have no
duty to advise the ABL Claimholders of information known to them regarding such condition or any such circumstances or otherwise. In the
event any of the ABL Claimholders or any of the Term Loan Claimholders, in its sole discretion, undertakes at any time or from time to
time to provide any such information to any other party to this Agreement, it shall be under no obligation:
(a) to make nor shall it be deemed to have made, and the ABL Claimholders and the Term Loan Claimholders, as the case may be, shall
not be under any obligation to make nor shall they be deemed to have made, any express or implied representation or warranty, including
with respect to the accuracy, completeness, truthfulness, or validity of any such information so provided;
(b) to provide any additional information or to provide any such information on any subsequent occasion;
(c) to undertake any investigation; or
(d) to disclose any information, which pursuant to accepted or reasonable commercial practices, such party wishes to maintain confidential
or is otherwise required to maintain confidential.
9.5 Subrogation. (a) With respect to any payments or distributions in cash, property, or other assets that any Term Loan Claimholder
pays over to ABL Agent under the terms of this Agreement, such Term Loan Claimholders shall be subrogated to the rights of the ABL Claimholders,
and (b) with respect to any payments or distributions in cash, property, or other assets that any ABL Claimholder pays over to Term Loan
Agent under the terms of this Agreement, such ABL Claimholders shall be subrogated to the rights of the Term Loan Claimholders; provided,
that (x) the Term Loan Claimholders shall not assert or enforce any such rights of subrogation they may acquire as a result of any payment
hereunder until the Payment in Full of all ABL Priority Debt has occurred, and (y) the ABL Claimholders hereby agree not to assert or
enforce any such rights of subrogation they may acquire as a result of any payment hereunder until the Payment in Full of all Term Loan
Priority Debt has occurred.
9.6 SUBMISSION TO JURISDICTION; WAIVERS.
(a) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY
IN THE COURTS OF THE STATE OF NEW YORK OR IN ANY FEDERAL COURT SITING IN THE BOROUGH OF MANHATTAN. BY EXECUTING AND DELIVERING THIS AGREEMENT,
EACH PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY:
(i) ACCEPTS GENERALLY AND UNCONDITIONALLY THE JURISDICTION AND VENUE OF SUCH COURTS;
(ii) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT NOW HAS OR HEREAFTER MIGHT HAVE TO THE LAYING OF VENUE
OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(iii) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED MAIL, POSTAGE PREPAID,
OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK; AND
(iv) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (iii) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PARTY
IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT.
(b) EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
HEREUNDER. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT EACH HAS ALREADY
RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS.
EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE; MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 9.6(b) AND EXECUTED BY
ABL AGENT AND TERM LOAN AGENT), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS HERETO.
IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
9.7 Notices. All notices permitted or required under this Agreement shall be sent to Term Loan Agent and ABL Agent, as the case
may be. Unless otherwise specifically provided herein, any notice hereunder shall be in writing and may be personally served or sent by
telefacsimile or United States mail or courier service or electronic mail and shall be deemed to have been given when delivered in person
or by courier service and signed for against receipt thereof, upon receipt of telefacsimile or electronic mail, or 5 Business Days after
depositing it in the United States mail with postage prepaid and properly addressed. For the purposes hereof, the addresses of the parties
hereto shall be the addresses set forth in the applicable Loan Documents or as may be designated by such party in a written notice to
all of the other parties.
9.8 Further Assurances. ABL Agent and Term Loan Agent each agrees to take such further action and shall execute and deliver
such additional documents and instruments (in recordable form, if requested) as ABL Agent or Term Loan Agent may reasonably request to
effectuate the terms of and the Lien priorities contemplated by this Agreement, all at the expense of Borrowers (to the extent required
under the ABL Credit Agreement or Term Loan Agreement, as applicable). In furtherance of the foregoing, (a) ABL Agent agrees that, if
there is a Refinancing of the Term Loan Debt and if the agent or other representative of the holders of the indebtedness that Refinances
the Term Loan Debt so requests, it will execute and deliver either an acknowledgement of the joinder of such agent or representative to
this Agreement or an agreement with such agent or representative identical to this Agreement (subject to changing names of parties, documents
and addresses, as appropriate) in favor of any such agent or representative, and (b) Term Loan Agent agrees that if there is a Refinancing
of the ABL Debt and if the agent or other representative of the holders of the indebtedness that Refinances the ABL Debt so requests,
it will execute and deliver either an acknowledgement of the joinder of such agent or representative to this Agreement or an agreement
with such agent or representative identical to this Agreement (subject to changing names of parties, documents and addresses, as appropriate)
in favor of any such agent or representative.
9.9 APPLICABLE LAW. THIS AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES
HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT-OF-LAWS PRINCIPLES.
9.10 Binding on Successors and Assigns. This Agreement shall be binding upon ABL Agent, the ABL Claimholders, Term Loan Agent,
the Term Loan Claimholders, and their respective successors and assigns.
9.11 Headings. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute
a part of this Agreement for any other purpose or be given any substantive effect.
9.12 Counterparts. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts),
each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Agreement or any document or instrument delivered in connection herewith by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement or such other document or instrument, as applicable.
9.13 No Third Party Beneficiaries. This Agreement and the rights and benefits hereof shall inure to the benefit of each of the
parties hereto and its respective successors and assigns and shall inure to the benefit of and bind each of the ABL Claimholders and the
Term Loan Claimholders. Except as provided in the preceding sentence, in no event shall any Grantor be a third party beneficiary of any
other provision of this Agreement.
9.14 Provisions Solely to Define Relative Rights. The provisions of this Agreement are and are intended solely for the purpose
of defining the relative rights of the ABL Claimholders, on the one hand, and the Term Loan Claimholders on the other hand. Except as
set forth in Section 9.13, no Grantor or any other creditor thereof shall have any rights hereunder and no Grantor may rely on
the terms hereof. Nothing in this Agreement shall impair, as between Grantors and the ABL Claimholders, or as between Grantors and the
Term Loan Claimholders, the obligations of Grantors to pay principal, interest, fees and other amounts as provided in the ABL Documents
and the Term Loan Documents, respectively. Nothing in this Agreement shall create vary or modify the rights or duties of the ABL Claimholders,
inter se, under the ABL Documents or the rights or duties of the Term Loan Claimholders, inter se, under the Term Loan Documents.
9.15 Integration. This Agreement reflects the entire understanding of the parties with respect to the subject matter hereof and
shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof.
9.16 Reciprocal Rights. The parties agree that the provisions of Sections 2.3, 2.4(b), 3, 4.2, 5.1, 5.2, 5.3, 5.4, 5.6, 6.2,
6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9(b) and 9.5, including, as applicable, the defined terms referenced therein (but only to the
extent used therein), which govern the relationship, and certain rights, restrictions, and agreements, between the ABL Claimholders with
respect to the ABL Debt, on the one hand, and the Term Loan Claimholders with respect to the Term Loan Debt, on the other hand, (a) with
respect to the ABL Priority Collateral shall, from and after the Payment in Full of ABL Priority Debt apply to and govern, mutatis
mutandis, (i) until the Payment in Full of the Term Loan Priority Debt, the relationship between the Term Loan Claimholders as Priority
Claimholders with respect to the Term Loan Priority Debt, on the one hand, and the ABL Claimholders as Junior Claimholders with respect
to the Excess ABL Debt, on the other hand and (ii) after Payment in Full of the Term Loan Priority Debt, the relationship between the
ABL Claimholders as Priority Claimholders with respect to the Excess ABL Debt, on the one hand, and the Term Loan Claimholders as Junior
Claimholders with respect to the Excess Term Loan Debt, on the other hand and (b) with respect to the Term Loan Priority Collateral shall,
from and after the Payment in Full of the Term Loan Priority Debt, apply to and govern, mutatis mutandis, (i) until the Payment
in Full of the ABL Priority Debt, the relationship between the ABL Claimholders as Priority Claimholders with respect to the ABL Priority
Debt, on the one hand, and the Term Loan Claimholders as Junior Claimholders with respect to the Excess Term Loan Debt, on the other hand
and (ii) after Payment in Full of the ABL Priority Debt, the relationship between the Term Loan Claimholders as Priority Claimholders
with respect to the Excess Term Loan Debt, on the one hand, and the ABL Claimholders as Junior Claimholders with respect to the Excess
ABL Debt, on the other hand.
SECTION
10 Term Claimholder Purchase Option.
10.1 The Term Loan Claimholders (acting in their individual capacity or through one or more affiliates) shall have the right, but not
the obligation (each Term Loan Claimholder having a ratable right to make an offer to the purchase, with each Term Loan Claimholder’s
right to purchase being automatically proportionately increased by the amount not purchased by another Term Loan Claimholder), upon not
less than 5 Business Days prior written notice from (or on behalf of) such Term Loan Claimholders which, other than with respect to Monroe
Capital (it being understood and agreed that Monroe Capital shall have the option to exercise the purchase option under this Section
10 at any time), cannot be exercised until twelve (12) months after the date of this Agreement unless a Triggering Event has occurred
(a “Purchase Notice”) to ABL Agent to acquire from the ABL Claimholders at any time all (but not less than all) of
the right, title, and interest of the ABL Claimholders in and to the ABL Priority Debt and the ABL Documents. The Purchase Notice, if
given, shall be irrevocable.
10.2 If one or more Term Loan Claimholders elect to exercise their right under this Section 10, then not more than 5 Business Days after
the receipt by ABL Agent of the Purchase Notice, the ABL Claimholders shall sell to the purchasing Term Loan Claimholders and the purchasing
Term Loan Claimholders shall purchase from the ABL Claimholders, the ABL Priority Debt.
10.3 On the date of such purchase and sale, the purchasing Term Loan Claimholders shall
(a) pay to ABL Agent, for the benefit of the ABL Claimholders, as the purchase price therefor, the full amount of all the ABL Priority
Debt then outstanding and unpaid, other than (i) indemnification obligations for which no claim or demand for payment has been made at
such time, and (ii) ABL Priority Debt cash collateralized in accordance with clause (b) below,
(b) furnish cash collateral to ABL Agent in such amounts as ABL Agent determines is reasonably necessary to secure ABL Agent and the
ABL Claimholders in respect of (A) any issued and outstanding Letters of Credit (but not in any event in an amount greater than 103% of
the aggregate undrawn amount of such Letters of Credit) (such cash collateral to be applied to the reimbursement of any drawing under
a Letter of Credit as and when such drawing is paid and, if a Letter of Credit expires undrawn, the cash collateral held by ABL Agent
in respect of such Letter of Credit shall be remitted to the Term Loan Agent for the benefit of the purchasing Term Loan Claimholders),
(B) Bank Product Obligations (such cash collateral shall be applied to the reimbursement of the Bank Product Obligations as and when such
obligations become due and payable and, at such time as all of the Bank Product Obligations are paid in full, the remaining cash collateral
held by ABL Agent in respect of Bank Product Obligations shall be remitted to the Term Loan Agent for the benefit of the purchasing Term
Loan Claimholders) and terminate and pay all obligations associated with an Derivatives Obligations (as defined in the ABL Credit Agreement),
and (C) any asserted or threatened (in writing) claims, demands, actions, suits, proceedings, investigations, liabilities, fines, costs,
penalties, or damages that are the subject of the indemnification provisions of the ABL Credit Agreement (such cash collateral shall be
applied to the reimbursement of such obligations as and when they become due and payable and, at such time as all of such obligations
are paid in full, the remaining cash collateral held by ABL Agent in respect of indemnification obligations shall be remitted to the Term
Loan Agent for the benefit of the purchasing Term Loan Claimholders), and
(c) to the extent not paid by the Grantors, pay to ABL Agent and the other ABL Claimholders the amount of all expenses to the extent
earned or due and payable in accordance with the terms of ABL Documents against presentation of a documented invoice in reasonable detail
(including, to the extent earned or due and payable in accordance with the terms of the ABL Documents, the reimbursement of attorneys’
fees, financial examination expenses, and appraisal fees, but excluding, solely for purposes of this Section 10.3(c), any amount in respect
of indemnification or reimbursement rights under any ABL Documents not yet due and payable); provided that if all or any portion
of the amount paid to ABL Agent and the other ABL Claimholders in respect of any such indemnification or reimbursement right under any
ABL Documents exceeds the amount in fact required to be paid to ABL Agent and/or the other ABL Claimholders in respect of any such indemnification
or reimbursement right under any ABL Documents, whether pursuant to a Final Order, a final settlement agreement or otherwise, ABL Agent
and the other ABL Claimholders shall pay to Term Loan Agent (whether for its own account and/or the account of other Term Loan Claimholders,
as determined by Term Loan Agent) an amount equal to such excess).
10.4 Such purchase price and cash collateral shall be remitted by wire transfer of federal funds to such bank account of ABL Agent as
ABL Agent may designate in writing to Term Loan Agent for such purpose. Interest shall be calculated to but excluding the Business Day
on which such purchase and sale shall occur if the amounts so paid by the purchasing Term Loan Claimholders to the bank account designated
by ABL Agent are received in such bank account prior to 2:00 p.m., New York, New York time, and interest shall be calculated to and including
such Business Day if the amounts so paid by the purchasing Term Loan Claimholders to the bank account designated by ABL Agent are received
in such bank account later than 2:00 p.m., New York, New York time.
10.5 Such purchase shall be effected by the execution and delivery of an assignment and acceptance agreement substantially in the form
attached hereto as Exhibit B.
10.6 In the event that any one or more of the Term Loan Claimholders exercises and consummates the purchase option set forth in this
Section 10, (i) ABL Agent shall have the right, but not the obligation, to immediately resign under the ABL Credit Agreement, and
(ii) the purchasing Term Loan Claimholders shall have the right, but not the obligation, to require ABL Agent to immediately resign under
the ABL Credit Agreement. If ABL Agent shall resign under this Section 10.6, to the extent permitted by applicable law, upon the
written request of Term Loan Agent (with all costs and expenses in connection therewith to be for the account of Term Loan Agent and to
be paid by Grantors) ABL Agent shall, without recourse or warranty, take commercially reasonable steps to transfer the possession of the
Collateral, if any, then in its possession to Term Loan Agent.
10.7 In the event that any one or more of the Term Loan Claimholders exercises and consummates the purchase option set forth in this
Section 10, (i) the ABL Claimholders shall retain their indemnification and reimbursement rights under the ABL Credit Agreement
for actions or other matters arising on or prior to the date of such purchase, and (ii) and in the event that, at the time of such purchase,
there exists Excess ABL Debt, the consummation of such purchase option shall not, at the option of the Term Loan Claimholders, include
(nor shall the purchase price be calculated with respect to) such Excess ABL Debt (clauses (i) and (ii), the “ABL Retained Interest”).
10.8 In the event that an ABL Retained Interest exists, each ABL Claimholder shall, at the request of the purchasing Term Loan Claimholders,
execute an amendment to the ABL Credit Agreement acknowledging that such ABL Retained Interest consisting of Excess ABL Debt is a last-out
tranche, payable after Payment in Full of all ABL Priority Debt and payment in full of all of the Term Loan Debt. Interest with respect
to such ABL Retained Interest consisting of Excess ABL Debt shall continue to accrue and be payable in accordance with the terms of the
ABL Documents, the ABL Retained Interest shall continue to be secured by the Collateral, and the ABL Retained Interest shall be paid (or
cash collateralized, as applicable) in accordance with the terms of the ABL Credit Agreement and this Agreement. Each ABL Claimholder
shall continue to have all rights and remedies of a lender under the ABL Credit Agreement and the other ABL Documents; provided,
that no ABL Claimholder shall have any right to vote on or otherwise consent to any amendment, waiver, departure from, or other modification
of any provision of any ABL Document except that the consent of ABL Agent shall be required for (i) those matters that require the agreement
of all lenders under the ABL Credit Agreement to reduce interest or principal and (ii) matters in contravention of the provisions and
priorities set forth in this Agreement with respect to the ABL Retained Interest.
10.9 Notwithstanding anything set forth herein to the contrary, with respect to any cash management administered by ABL Agent, in the
event that the Purchase Option is exercised by any Term Loan Claimholder (other than Monroe Capital), the parties agree that ABL Agent
shall be permitted, if it elects in its sole discretion, to continue to provide cash management and Bank Products to the Loan Parties
during a 90 day transition period while such cash management is transitioned to another financial institution. With respect to any deposit
account control agreements, the ABL Agent agrees to deliver a “Notice of Termination” (or similar notice) to the depositary
bank at which such deposit account is maintained indicating that such deposit account control agreement is terminated with respect to
the ABL Agent except with respect to the ABL Retained Interest and Term Loan Agent is the controlling agent or similar term for purposes
of the deposit account control agreement. All Bank Products offered by ABL Agent during such transition period shall be subject to customary
bank product agreements and customary Liens encumbering deposits or other funds maintained with ABL Agent (including the right of set
off) and which are within the general parameters customary in the banking industry.
IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the date first written above.
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BBVA USA, |
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as ABL Agent |
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By: |
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Name: Jason Nichols |
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Its Authorized Signatory |
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MONROE CAPITAL MANAGEMENT |
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ADVISORS, LLC, |
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as Term Loan Agent |
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IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the date first written above.
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BBVA USA, |
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Its Authorized Signatory |
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MONROE CAPITAL MANAGEMENT |
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ADVISORS, LLC, |
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as Term Loan Agent |
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By: |
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Name: Alex Parmacek |
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Title: Vice President |
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ACKNOWLEDGED AND ACCEPTED BY: |
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QUEST RESOURCE HOLDING CORPORATION |
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QUEST RESOURCE MANAGEMENT GROUP, LLC |
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QUEST SUSTAINABILITY SERVICES, INC. |
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LANDFILL DIVERSION INNOVATIONS, L.L.C. |
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QUEST EQUIPMENT, LLC |
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YOUCHANGE, INC. |
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QUEST VERTIGENT CORPORATION |
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QUEST VERTIGENT ONE, LLC |
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GLOBAL ALERTS, LLC |
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Quest Resource Holding Corporation Announces
Successful Completion of Debt Refinancing
New Terms Significantly Reduce Interest Expense
& Borrowing Costs, Extend Maturities, and Enhance Financial Flexibility
THE COLONY, TX – December 30, 2024 –
Quest Resource Holding Corporation (Nasdaq: QRHC) (“Quest” or the “Company”), a national leader in
environmental waste and recycling services, today announced that the Company has successfully completed its refinancing process, and has
amended its financing agreements with Monroe Capital Management Advisors, LLC (“Monroe”) and PNC Bank (“PNC”).
“Earlier this year, the Board of Directors announced the formation
of a financing committee to evaluate alternative debt structures focused on lowering the Company’s long-term cost of capital and
supporting long-term growth. After an exhaustive process, which included discussions and proposals from multiple financing sources, the
Company has executed on a new lending package that will decrease our blended interest rate margin by about 150 basis points, reducing
interest expense by approximately $1 million annually. Our current lenders, Monroe and PNC, reflecting their confidence in our business,
ultimately offered the most attractive terms,” said Dan Friedberg, Chairman of the Board of Directors.
S. Ray Hatch, President and Chief Executive Officer of Quest, added,
“The substantial reduction in interest expense and rates, reduced fees, and improved terms all reflect the strong credit profile
of our company and the strength of our business model. With an increased revolving credit line, improved terms, and extended maturities,
our balance sheet is stronger and is well-positioned to support our long-term organic growth and opportunistic M&A strategies.”
“We greatly appreciate the support of our partners at PNC and
Monroe and are looking forward to continuing to work with them going forward. Their confidence in our business was clearly demonstrated
and positions us well for the future,” said Brett Johnston, Chief Financial Officer.
Summary of the amended credit agreement with Monroe
Capital Management Advisors, LLC
| · | $54 million aggregate principal amount of term loan; |
| · | Extended maturity date to June of 2030; |
| · | Reduced interest rate of SOFR plus 450 to 550 basis points that varies based on leverage, reflecting a
margin reduction of 100 to 200 basis points from the previous agreement. |
Summary of the amended credit agreement with PNC
Bank
| · | Increased revolver commitment from $35 million to $45 million; |
| · | Extended maturity date to December of 2029; |
| · | Reduced interest rate of SOFR plus 200 basis points, reflecting a margin reduction of 25 basis points
from the previous agreement; |
| · | Improved terms to increase availability. |
Additional information about the terms of the
financing agreements can be found in our Current Report on Form 8-K filed today with the U.S. Securities and Exchange Commission (the
“SEC”).
About Quest Resource Holding Corporation
Quest is a national provider of waste and recycling
services that enable larger businesses to excel in achieving their environmental and sustainability goals and responsibilities. Quest
delivers focused expertise across multiple industry sectors to build single-source, client-specific solutions that generate quantifiable
business and sustainability results. Addressing a wide variety of waste streams and recyclables, Quest provides information and data that
tracks and reports the environmental results of Quest’s services, gives actionable data to improve business operations, and enables
Quest’s clients to excel in their business and sustainability responsibilities. For more information, visit www.qrhc.com.
Safe Harbor Statement
This press release contains forward-looking statements
within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, which provides a “safe harbor” for such
statements in certain circumstances. The forward-looking statements include, but are not limited to, our belief that with an increased
revolving credit line, improved terms and extended maturities, our balance sheet is stronger and is well-positioned to support our long-term
organic growth and opportunistic M&A strategies. Actual events or results could differ materially from those discussed in the forward-looking
statements as a result of various factors, including, but not limited to, competition in the environmental services industry, the impact
of the current economic environment, the spread of major epidemics (including Coronavirus) and other related uncertainties such as government-imposed
travel restrictions, interruptions to supply chains, commodity price fluctuations, extended shut down of businesses, and other factors
discussed in greater detail in our filings with the SEC, including in our Annual Report on Form 10-K for the year ended December 31, 2023.
You are cautioned not to place undue reliance on such statements and to consult our SEC filings for additional risks and uncertainties
that may apply to our business and the ownership of our securities. Our forward-looking statements are presented as of the date made,
and we disclaim any duty to update such statements unless required by law to do so.
Investor Relations Contact:
Three Part Advisors, LLC
Joe Noyons
817.778.8424
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Quest Resource (NASDAQ:QRHC)
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