8-K

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): May 3, 2019

CAPITAL PARK HOLDINGS CORP.

(Exact Name of Registrant as Specified in its Charter)

Delaware	000-55505	‎45-5523835‎
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

8117 Preston Road Suite 300

Dallas, Texas 75225

(Address of Principal Executive Offices and Zip Code)

Registrant’s telephone number, including area code: (972) 525-8546

Not Applicable

(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 following 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))

Indicate by check mark whether 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. [  ]

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock	LOGG	OTC Pink

Item 1.01 Entry into a Material Definitive Agreement.

Senior Secured Credit Facility

On May 3, 2019, C-PAK Consumer Product Holdings LLC, a Delaware limited liability company (“C-PAK”) and C-‎PAK Consumer Product IP SPV LLC, a Delaware limited liability company (“C-PAK IP”, together with C-PAK, the ‎‎“Borrowers”) entered into a loan agreement with Piney Lake Opportunities ECI Master Fund LP, a Cayman Islands ‎exempted limited partnership (“PLC ECI-Master Fund”), in its respective capacities as the “Administrative Agent”, ‎‎“Collateral Agent” and “Lender”, pursuant to which the Borrowers obtained a $22 million term loan (the “Loan ‎Agreement”). The proceeds of the loan were used to acquire certain assets from The Procter & Gamble Company, ‎an Ohio corporation (“P&G”) and to pay fees and expenses related thereto.‎

The Borrowers are subsidiaries of a majority-owned subsidiary of Capital Park Holdings Corp. ‎(“Capital Park,” “us,” “our” or the “Company”)‎, C-PAK Consumer Product Holdings SPV I LLC, a Delaware limited liability company (“C-PAK Holdings”). C-PAK Holdings is a guarantor under the Loan Agreement.

The interest rate applicable to the borrowing under the Loan Agreement is equal to LIBOR plus a margin of 12.00% which is payable monthly beginning on June 30, 2019. Under the Loan Agreement, the Borrowers must repay the unpaid principal amount of the loans quarterly in an amount equal to $440,000 beginning on September 30, 2019. The Loan Agreement will mature on May 3, 2024.

As security for its obligations under the Loan Agreement, C-PAK Holdings and the Borrowers granted a lien on substantially all of its assets to the Lender pursuant to a Guaranty and Security Agreement dated May 3, 2019, by and among the Borrowers, C-PAK Holdings and the Collateral Agent (the “Guaranty and Security Agreement”) and a Trademark Security Agreement dated May 3, 2019 by and between C-PAK IP and the Collateral Agent (the “Trademark Security Agreement”).

The Loan Agreement contains customary affirmative and negative covenants, which, among other things, limit the Borrower’s ability to (i) incur additional indebtedness, (ii) pay dividends or make certain distributions or (iii) dispose of its assets, grant liens or encumber its assets. These covenants are subject to a number of exceptions and qualifications.

The foregoing summaries of the Loan Agreement, Guaranty and Security Agreement and Trademark Security Agreement do not purport to be complete and are subject to, and qualified in its entirety by, the full text of the Loan Agreement, Guaranty and Security Agreement and Trademark Security Agreement which are filed as Exhibits 10.1, 10.2 and 10.3 respectively hereto and are incorporated herein by reference into this Item 1.01.

Subsidiary Equity Transactions

Prior to and in connection with the execution and delivery of the Loan Agreement, Capital Park formed C-PAK Holdings and incorporated C-PAK PREFCO SPV I, INC., a Delaware corporation (“PrefCo”).

Under the terms of the Amended and Restated Certificate of Incorporation of PrefCo (the “PrefCo Certificate of Incorporation”), (i) Capital Park purchased 10,000 shares of Common Stock from PrefCo for $1,000; and (ii) an affiliate of PLC ECI-Master Fund, Piney Lakes Opportunities NON-ECI Master Fund, LP, a Cayman Islands exempted limited partnership (“PLC NON-ECI Master Fund”), purchased 3,000 shares of Preferred Stock in PrefCo for $3,000,000.

Immediately upon receipt of proceeds from the sale of the 3,000 shares of Preferred Stock of PrefCo to PLC NON-ECI Master Fund, PrefCo purchased 3,000 Preferred Units of C-PAK Holdings for $3,000,000. In accordance with the terms of the Amended and Restated Limited Liability Company Agreement of C-PAK Holdings, dated as of May 3, 2019 (the “C-PAK Holdings LLC Agreement”) and pursuant to separate subscription agreements, (i) C-PAK Holdings issued and sold to PLC ECI-Master Fund 1,000 Common Units; and (ii) C-PAK Holdings issued and sold to PrefCo 9,000 Common Units.

Under the C-PAK Holdings LLC Agreement, holders of Preferred Units shall be entitled to receive cumulative preferred distributions which shall accrue on the sum of $1,000, plus the amount of accrued and unpaid preferred distributions at a rate of 13% per annum plus the LIBOR rate set forth under the Loan Agreement, as the same shall be increased by 2% per annum in the event the Company fails (a) to properly redeem the Preferred Units as required under the C-PAK Holdings LLC Agreement, (b) to pay the Redemption Price upon the liquidation, dissolution or winding-up of C-PAK Holdings; or (c) to redeem the Common Units owned by PLC ECI-Master Fund when and if PLC ECI-Master Fund exercised its right to put the Common Units to C-PAK Holdings, at the then fair market value thereof. The holders of the Preferred Units shall furthermore be entitled to receive distributions before the holders of the Common Units. On each Distribution Payment Date up to fifty percent (50%) of any Preferred Unit distributions accrued during the quarter ending on such date may be declared and paid in cash. For the portion of the distributions on Preferred Units that are not paid in cash on the Distribution Payment Date, that amount shall be added to the Liquidation Preference and shall thereafter accrue and compound at the Preferred Distribution Rate.

C-PAK Holdings may redeem Preferred Units at any time upon payment of the Redemption Price. In the event of a change of control, insolvency, or liquidation of C-PAK Holdings or any default and acceleration under the Loan Agreement, C-PAK Holdings must redeem the Preferred Units at the Redemption Price. Finally, holders of Preferred Units may elect to sell their Preferred Units to the Company at any time following May 2, 2024 at the applicable Redemption Price.

Under the C-PAK Holdings LLC Agreement, the “Redemption Price” to be paid (i) before May 2, 2022 is equal to the sum of two (2) times the sum of the sum of (A) $1,000, plus (B)(1) the amount of accrued and unpaid preferred distributions calculated at a rate of 13% per annum plus the LIBOR rate set forth under the Loan Agreement, plus (2) the amount of the preferred distributions that would accrue during the same period; and (ii) after May 2, 2022, shall be an amount equal to the sum of (Y) $1,000, plus (Z) the amount of accrued and unpaid preferred distributions calculated at a rate of 13% per annum plus the LIBOR rate set forth under the Loan Agreement, as the same may be adjusted to reflect defaults under the C-PAK Holdings LLC Agreement.

Under certain circumstances of a redemption breach, PLC ECI-Master Fund shall have the right, and not the obligation, to force C-PAK Holdings to effect a sale thereof.

The terms of the PrefCo Certificate of Incorporation mirror the provisions of the C-PAK Holdings LLC Agreement with the terms of the Preferred Stock and Common Stock being similar to the terms of the Preferred Units and the Common Units, respectively. Moreover, the manner in which the Redemption Price on the Preferred Stock is calculated mirrors the manner in which the Redemption Price on the Preferred Units is calculated. Once the Preferred Stock is redeemed under the PrefCo Certificate of Incorporation, PLC NON-ECI Master Fund shall no longer hold an equity interest in PrefCo. Furthermore, at any time after November 2, 2024 through and including November 2, 2025, PLC ECI-Master Fund may compel C-PAK Holdings LLC to repurchase its Common Units at the then fair market value.

In addition, Capital Park and/or its subsidiaries entered into additional agreements, including a Stockholders’ Agreement, Investors’ Rights Agreement and Management Services Agreement, each dated as of May 3, 2019, which memorialize supplemental agreements between the parties related to the transactions described above.

The foregoing summaries of the PrefCo Certificate of Incorporation, C-PAK Holdings LLC Agreement, Stockholders’ Agreement, ‎Investors’ Rights Agreement and Management Services Agreement do not purport to be complete and are subject to, and qualified ‎in its entirety by, the full text of the PrefCo Certificate of Incorporation, C-PAK Holdings LLC Agreement, Stockholders’ Agreement, ‎Investors’ Rights Agreement and Management Services Agreement which are filed as Exhibits 10.4, 10.5, 10.6, 10.7 and 10.8 respectively ‎hereto and are incorporated herein by reference into this Item 1.01.

‎

Item 2.01 Completion of Acquisition or Disposition of Assets.

Transaction Agreement

On May 3, 2019, C-PAK, P&G, and Capital Park, solely in its capacity as guarantor, entered in an agreement (the “Transaction Agreement”) and completed an acquisition under thereto of certain assets pertaining to the “Joy” and “Cream Suds” trademarks for $30,000,000 plus assumption of certain liabilities.

In the Transaction Agreement, C-PAK and P&G have agreed to certain customary representations, warranties and covenants, including, but not limited to, certain representations as to the financial statements, contracts, liabilities, and other attributes of the respective assets, and certain limited covenants of C-PAK not to solicit employees following the closing.

The foregoing description of the Transaction Agreement is qualified in its entirety by reference to the full text of the Transaction Agreement, a copy of which is filed herewith as Exhibit 10.9 and is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

10.1	Loan Agreement, dated May 3, 2019.
10.2	Guaranty and Security Agreement, dated May 3, 2019.
10.3	Trademark Security Agreement, dated May 3, 2019.
10.4	Amended and Restated Certificate of Incorporation of C-PAK PREFCO SPV I, INC., dated and filed ‎May 2, 2019, as corrected by that certain Certificate of Correction of Amended and Restated ‎Certificate of Incorporation of C-PAK PREFCO SPV I, Inc. dated May 9, 2019.
10.5	Amended and Restated Limited Liability Company Agreement of C-PAK Holdings, dated as of May 3, 2019‎.
10.6	Stockholders’ Agreement, dated May 3, 2019.‎
10.7	Investors’ Rights Agreement, dated May 3, 2019.‎
10.8	Management Services Agreement, dated May 3, 2019.‎
10.9	Transaction Agreement, dated May 3, 2019.‎

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

CAPITAL PARK HOLDINGS CORP.
By:	/s/ Eric Blue
	Eric Blue
	Chief Executive Officer

Dated: May 29, 2019

EX-10.1

Exhibit 10.1

EXECUTION VERSION

LOAN AGREEMENT

dated as of May 3, 2019

among

C-PAK Consumer Product Holdings LLC

and

C-PAK Consumer Product IP SPV LLC

as the Borrowers,

C-PAK Consumer Product HoldingS SPV I LLC

and the other GUARANTORS from time to time party hereto,

the LENDERS from time to time party hereto,

PINEY LAKE OPPORTUNITIES ECI MASTER FUND LP,

as Administrative Agent,

and Collateral Agent

and

PINEY LAKE OPPORTUNITIES ECI MASTER FUND LP,

as Sole Lead Arranger

TABLE OF CONTENTS

			Page(s)
ARTICLE I DEFINITIONS			1
	Section 1.01.	Defined Terms	1
	Section 1.02.	Other Interpretive Provisions	40
	Section 1.03.	Accounting Terms and Principles	41
	Section 1.04.	Rounding	42
	Section 1.05.	References to Agreements, Laws, etc	42
	Section 1.06.	Times of Day	42
	Section 1.07.	Timing of Payment or Performance	42
	Section 1.08.	Corporate Terminology	42
	Section 1.09.	Independence of Provisions	42
	Section 1.10.	Divisions	42
ARTICLE II AMOUNT AND TERMS OF CREDIT FACILITIES			43
	Section 2.01.	Term Loans	43
	Section 2.02.	Disbursement of Funds	43
	Section 2.03.	Payment of Loans; Notes	44
	Section 2.04.	Pro Rata Borrowings	45
	Section 2.05.	Interest	45
	Section 2.06.	Increased Costs, Illegality, etc	45
	Section 2.07.	Compensation	48
	Section 2.08.	Change of Lending Office	48
	Section 2.09.	Right of First Offer.	48
ARTICLE III FEES, PREMIUMS AND COMMITMENT TERMINATIONS			49
	Section 3.01.	Fees	49
	Section 3.02.	Prepayment Premiums	49
	Section 3.03.	[Reserved]	50
	Section 3.04.	Termination of Commitments	50
ARTICLE IV PAYMENTS			50
	Section 4.01.	Voluntary Prepayments	50
	Section 4.02.	Mandatory Prepayments	51
	Section 4.03.	Payment of Obligations; Method and Place of Payment	55
	Section 4.04.	Taxes	56
	Section 4.05.	[Reserved]	60
	Section 4.06.	Computations of Interest and Fees	60
	Section 4.07.	Investment Unit	60
	Section 4.08.	Debt	60

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(continued)

			Page(s)
ARTICLE V CONDITIONS PRECEDENT TO TERM LOANS			60
	Section 5.01.	Loan Documents	61
	Section 5.02.	Lien and other Searches; Filings	61
	Section 5.03.	Stock Pledges	61
	Section 5.04.	Legal Opinions	61
	Section 5.05.	Secretary’s Certificates	62
	Section 5.06.	Other Documents and Certificates	62
	Section 5.07.	Solvency	64
	Section 5.08.	Funding Notice	64
	Section 5.09.	Capitalization	64
	Section 5.10.	Financial and other Information	64
	Section 5.11.	Insurance	65
	Section 5.12.	Payment of Outstanding Indebtedness	65
	Section 5.13.	Material Adverse Effect	65
	Section 5.14.	[Reserved]	65
	Section 5.15.	[Reserved]	65
	Section 5.16.	Fees and Expenses	65
	Section 5.17.	Patriot Act Compliance and Reference Checks	65
	Section 5.18.	[Reserved]	66
	Section 5.19.	Banking Moratorium	66
	Section 5.20.	Structure and Terms of Acquisition; Transactions	66
	Section 5.21.	No Default	66
	Section 5.22.	Representations and Warranties	66
	Section 5.23.	No Injunctions	66
	Section 5.24.	No Adverse Actions	66
	Section 5.25.	IP Contribution	67
ARTICLE VI [Reserved]			67
ARTICLE VII REPRESENTATIONS AND WARRANTIES			67
	Section 7.01.	Status	67
	Section 7.02.	Power and Authority; Execution and Delivery	67
	Section 7.03.	Enforceability	67
	Section 7.04.	No Violation	68
	Section 7.05.	Approvals, Consents, etc	68
	Section 7.06.	Use of Proceeds; Regulations T, U and X	68
	Section 7.07.	Investment Company Act; Etc	68
	Section 7.08.	Litigation, Labor Controversies, etc	68
	Section 7.09.	Capitalization; Subsidiaries	69
	Section 7.10.	Accuracy of Information	69
	Section 7.11.	Financial Condition; Financial Statements	70
	Section 7.12.	Tax Returns and Payments	70
	Section 7.13.	Compliance with ERISA	71

ii

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(continued)

			Page(s)
	Section 7.14.	Intellectual Property; Licenses, etc	71
	Section 7.15.	Ownership of Properties; Title; Real Property; Leases	72
	Section 7.16.	Environmental Matters	72
	Section 7.17.	Solvency	73
	Section 7.18.	No Default	73
	Section 7.19.	Security Documents; Perfection	73
	Section 7.20.	Compliance with Laws and Permits; Authorizations	74
	Section 7.21.	No Material Adverse Effect	74
	Section 7.22.	Contractual or Other Restrictions	74
	Section 7.23.	No Brokers	74
	Section 7.24.	Insurance	74
	Section 7.25.	Evidence of Other Indebtedness	74
	Section 7.26.	Deposit Accounts, Securities Accounts and Commodity Accounts	75
	Section 7.27.	Principal Business	75
	Section 7.28.	Absence of any Undisclosed Liabilities	75
	Section 7.29.	Holdings	75
	Section 7.30.	Acquisition; Transaction Agreement, Other Related Agreements	75
	Section 7.31.	Anti-Terrorism Laws; The Patriot Act	76
	Section 7.32.	Economic Sanctions/OFAC	76
	Section 7.33.	Foreign Corrupt Practices Act	77
	Section 7.34.	Material Contracts; No Hedging Contracts	77
	Section 7.35.	Affiliate Transactions	78
	Section 7.36.	Material Customers	78
	Section 7.37.	Collective Bargaining Agreements	78
	Section 7.38.	Qualified Capital Stock	78
ARTICLE VIII AFFIRMATIVE COVENANTS			78
	Section 8.01.	Financial Information, Reports, Certificates and Other Information	78
	Section 8.02.	Books, Records and Inspections	83
	Section 8.03.	Maintenance of Insurance	84
	Section 8.04.	Payment of Taxes and Liabilities	84
	Section 8.05.	Maintenance of Existence; Compliance with Laws, etc.	84
	Section 8.06.	Environmental Compliance	85
	Section 8.07.	ERISA	86
	Section 8.08.	Maintenance of Properties	87
	Section 8.09.	End of Fiscal Years; Fiscal Quarters	88
	Section 8.10.	Additional Collateral, Guarantors and Grantors	88
	Section 8.11.	Pledges of Additional Stock and Indebtedness	88
	Section 8.12.	Use of Proceeds	89

iii

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(continued)

			Page(s)
	Section 8.13.	Mortgages; Landlord Agreements	89
	Section 8.14.	Accounts; Control Agreements	90
	Section 8.15.	Further Assurances	90
	Section 8.16.	Annual Lender Meetings	90
	Section 8.17.	Board Observation Rights	91
	Section 8.18.	Performance of Obligations	91
	Section 8.19.	Intellectual Property; Licenses, etc.	92
	Section 8.20.	Security Interests; Perfection, etc	92
	Section 8.21.	Credit Enhancement	92
	Section 8.22.	Post-Closing Obligation	92
ARTICLE IX NEGATIVE COVENANTS			93
	Section 9.01.	Limitation on Indebtedness	93
	Section 9.02.	Limitation on Liens	94
	Section 9.03.	Consolidation, Merger, Etc.	96
	Section 9.04.	Permitted Dispositions	96
	Section 9.05.	Investments	97
	Section 9.06.	Restricted Payments	98
	Section 9.07.	Payments and of Indebtedness; Cancellation of Indebtedness	100
	Section 9.08.	Modification of Certain Agreements	100
	Section 9.09.	Sale and Leaseback	100
	Section 9.10.	Transactions with, or by, Affiliates	100
	Section 9.11.	Restrictive Agreements, etc.	101
	Section 9.12.	Changes in Name, Form, Business and Fiscal Year	101
	Section 9.13.	Financial Covenants	102
	Section 9.14.	Repurchase of Capital Stock	104
	Section 9.15.	Acquisition of Debt	104
	Section 9.16.	Management	104
	Section 9.17.	Status of Holdings and Subsidiaries	104
	Section 9.18.	Economic Sanctions/OFAC	104
	Section 9.19.	Anti-Terrorism Laws; Foreign Corrupt Practices Act	105
	Section 9.20.	Use of Proceeds	105
	Section 9.21.	Key Person	105
ARTICLE X EVENTS OF DEFAULT			105
	Section 10.01.	Listing of Events of Default	105
	Section 10.02.	Remedies Upon Event of Default	108
ARTICLE XI THE AGENTS			110
	Section 11.01.	Appointments	110
	Section 11.02.	Delegation of Duties	111
	Section 11.03.	Exculpatory Provisions	111

iv

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(continued)

			Page(s)
	Section 11.04.	Reliance by Agents	112
	Section 11.05.	Notice of Default	112
	Section 11.06.	Non-Reliance on Agents and Other Lenders	113
	Section 11.07.	Indemnification by Lenders	113
	Section 11.08.	Agents in Their Individual Capacities	114
	Section 11.09.	Successor Agents	114
	Section 11.10.	Agents Generally	115
	Section 11.11.	Restrictions on Actions by Secured Parties; Sharing of Payments	115
	Section 11.12.	Agency for Perfection	116
	Section 11.13.	Credit Bid	116
	Section 11.14.	One Lender Sufficient	116
	Section 11.15.	License	116
ARTICLE XII MISCELLANEOUS			117
	Section 12.01.	Amendments and Waivers	117
	Section 12.02.	Notices and Other Communications	118
	Section 12.03.	No Waiver; Cumulative Remedies	120
	Section 12.04.	Survival of Representations and Warranties	120
	Section 12.05.	Payment of Expenses and Taxes; Indemnification	120
	Section 12.06.	Successors and Assigns; Participations and Assignments	122
	Section 12.07.	Replacements of Lenders Under Certain Circumstances	126
	Section 12.08.	Securitization	127
	Section 12.09.	Adjustments; Set-off	128
	Section 12.10.	Effectiveness of Facsimile Documents and Signatures	128
	Section 12.11.	Counterparts	129
	Section 12.12.	Severability	129
	Section 12.13.	Integration	129
	Section 12.14.	GOVERNING LAW	129
	Section 12.15.	Waiver of Certain Rights	129
	Section 12.16.	Acknowledgments	130
	Section 12.17.	No Arranger Duties	130
	Section 12.18.	Confidentiality	130
	Section 12.19.	Press Releases, etc.	132
	Section 12.20.	Termination of Obligations; Releases of Guaranties and Liens	132
	Section 12.21.	USA Patriot Act	133
	Section 12.22.	No Fiduciary Duty	133
	Section 12.23.	Reliance on Certificates	133
	Section 12.24.	No Waiver	133
	Section 12.25.	The Borrower as the Loan Parties’ Representative	134
	Section 12.26.	[Reserved]	134
	Section 12.27.	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	134
	Section 12.28.	Interest Rate Limitation	135
	Section 12.29.	Joint and Several Liability of the Borrowers	135
ARTICLE XIII JURISDICTION; WAIVERS; MISCELLANEOUS			136
	Section 13.01.	[Reserved]	136
	Section 13.02.	JURISDICTION; VENUE; SERVICE OF PROCESS; JURY TRIAL WAIVER; ETC	136

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		Page(s)
SCHEDULES
Schedule 1.01(a)	Term Loan Commitments
Schedule 7.08	Litigation
Schedule 7.09	Capitalization and Subsidiaries
Schedule 7.14	Intellectual Property
Schedule 7.15	Real Property
Schedule 7.19	Security Filings and Filing Offices
Schedule 7.23	Brokers
Schedule 7.24	Insurance
Schedule 7.25	Existing Indebtedness
Schedule 7.26	Deposit Accounts, Securities Accounts and Commodity Accounts
Schedule 7.34(a)	Material Contracts
Schedule 7.35	Affiliate Transactions
Schedule 7.37	Collective Bargaining Agreements
Schedule 8.13	Excluded Real Property
Schedule 9.02	Liens
Schedule 9.05	Investments
Schedule 9.12	Description of Business

EXHIBITS
Exhibit A	Form of Term Loan Note
Exhibit B	Reserved
Exhibit C	Reserved
Exhibit D	Form of Compliance Certificate
Exhibit E	Form of Perfection Certificate
Exhibit F	Form of Assignment and Acceptance

vi

LOAN AGREEMENT

LOAN AGREEMENT dated as of May 3, 2019 among C-PAK Consumer Product Holdings LLC, a Delaware limited liability company (“C-PAK”), C-PAK Consumer Product IP SPV LLC, a Delaware limited liability company (“C-PAK IP”, and collectively, jointly and severally with C-PAK, the “Borrowers”, and each individually, a “Borrower”), C-Pak Consumer Product Holdings SPV I LLC, a Delaware limited liability company (“Holdings”), the Subsidiaries of Holdings that are Guarantors or become Guarantors hereunder pursuant to Section 8.10 hereof, the Lenders from time to time party hereto, Piney Lake Opportunities ECI Master Fund LP (“Piney Lake”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”) and as collateral agent for the Secured Parties (in such capacity, together with its successors and assigns in such capacity, the “Collateral Agent”, and together with the Administrative Agent, each an “Agent” and collectively the “Agents”).

Introductory Statement

WHEREAS, the Borrowers have requested that the Lenders extend term loans to the Borrowers on the Closing Date in the aggregate principal amount of $22,000,000, on the terms and subject to the conditions set forth herein, the proceeds of which term loans the Borrowers will use in accordance with Section 8.12; and

WHEREAS, the Lenders desire to extend such term loans to the Borrowers, the Administrative Agent desires to act as administrative agent for the Lenders, and the Collateral Agent desires to act as collateral agent for the Secured Parties, in each case on and subject to the terms and conditions of this Loan Agreement.

NOW, THEREFORE, in consideration of the premises and the agreements contained herein, in reliance upon the representations, warranties and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, and intending to be legally bound, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01. Defined Terms. As used herein, the following terms have the meanings specified in this Section 1.01 unless the context otherwise requires:

“Account Control Agreement” means, with respect to a deposit account or a securities account (other than an Excluded Deposit Account), an account control agreement in form and substance reasonably satisfactory to the Collateral Agent, executed and delivered by the Loan Party owning such account, the Collateral Agent, and the applicable depositary bank or securities intermediary, as applicable, which account control agreement provides the Collateral Agent with, among other things, “control” over such account (as defined in, and for purposes of, the UCC) and the cash or investment property therein, as applicable.

1

“Accounting System” means an accounting system and related accounting processes that allow the Loan Parties to generate customary accounting reports and complete customary accounting functions, in each case, with respect to the Loan Parties and their Subsidiaries.

“Accounts Receivable” means “Accounts”, as such term is defined in the UCC as in effect on the date hereof.

“Acquisition” means the acquisition by the Borrowers of substantially all of the assets relating to the Joy Business (as defined in the Transaction Agreement) and the Cream Suds Business (as defined in the Transaction Agreement) pursuant to the Transaction Documents.

“Acquisition Consideration” means the consideration for any Permitted Acquisition and all other payments, directly or indirectly, by any Loan Party or any Subsidiary of any Loan Party in exchange for, or as part of, or in connection with, any Permitted Acquisition, whether paid in cash or by exchange of properties (including capital expenditures used to fund any portion of a purchase price) or otherwise (but excluding exchange of capital stock) and whether payable at or prior to the consummation of such Permitted Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency (calculated, in the case of an earn-out, as the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith and in its reasonable business judgment), and includes any and all payments representing the purchase price and any assumptions of Indebtedness, earn-outs and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like), or events or actions of any Person or business. The foregoing to the contrary notwithstanding, except to the extent expressly treated as a component of the purchase price calculation in connection with the applicable Permitted Acquisition, any fees, costs, or expenses of the Loan Parties associated with the Permitted Acquisition shall not constitute Acquisition Consideration.

“Acquisition Debt” has the meaning given to such term in Section 2.09(a).

“Additional Lender” has the meaning given to such term in Section 2.09(c).

“Administrative Agent” has the meaning given to such term in the preamble to this Loan Agreement.

“Affiliate” means, with respect to any Person, (i) any other Person that directly, or indirectly (through one or more intermediaries or otherwise), Controls or is Controlled by or is under common Control with such Person, and (ii) such Person’s officers, directors and other Persons functioning in substantially similar roles. The term “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise; provided that, for purposes of this definition, any Person which owns directly or indirectly 10% or more of the equity interests having ordinary voting power for the election of directors or other members of the governing body of a Person or 10% or more of the partnership or other ownership interests of a Person (other than as a limited partner of such Person) shall be deemed an Affiliate of such Person. The terms “Controlling” and “Controlled” have meanings correlative thereto. Notwithstanding anything herein to the contrary, neither Agent nor any Lender nor any of their respective managed or Approved Funds or Affiliates shall be deemed an Affiliate of any of Parent or any of its Subsidiaries or any other their respective Affiliates.

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“Agents” and “Agent” each has the meaning given to such term in the preamble to this Loan Agreement.

“Anti-Terrorism Laws” has the meaning given to such term in Section 7.31.

“Applicable Laws” means, as to any Person, any Laws applicable to, or otherwise binding upon, such Person or any of its property, products, business, assets or operations, or to which such Person or any of its property, products, business, assets or operations is subject.

“Applicable Term Loan Margin” means twelve percent (12.00%).

“Approved Fund” means any Person (other than a natural person) that is or will be engaged in making, purchasing, holding or investing in one or more debt securities, bank loans, other commercial loans, or other similar extensions of credit in the ordinary course of business, and which Person either: (i) is administered, managed, advised or underwritten by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, manages, advises or underwrites a Lender; or (ii) purchases, holds or invests in, or was formed for the purpose of purchasing, holding or investing in, one or more debt securities, bank loans, other commercial loans, or other similar extensions of credit originated by (a) a Lender or (b) an Affiliate of a Lender.

“Assignment and Acceptance” means an assignment and acceptance substantially in the form of Exhibit F.

“Assignment of Claims Act” means (i) Title 31, United States Code § 3727, and Title 41, United States Code § 15, in each case as revised or amended, and any rules or regulations issued pursuant thereto, and (ii) all other federal and state laws, rules and regulations governing the assignment of government contracts or claims against a Governmental Authority.

“Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear as a liability on a balance sheet of such Person prepared as of such date in accordance with GAAP.

“Authorized Officer” means, with respect to any Person, the president, chief executive officer, chief financial officer, chief operating officer or secretary of such Person (or a manager, in the case of a Person that is a limited liability company), provided that: (i) with respect to financial reporting and other financial matters (including Compliance Certificates, Consolidated Excess Cash Flow, and Solvency Certificates), “Authorized Officer” means the chief financial officer of the applicable Loan Party or such other officer or similar Person performing such duties for such Loan Party; and (ii) with respect to the certificate delivered pursuant to Section 5.10(a), in the case of clauses (ii) and (v) of such Section, “Authorized Officer” means each of the chief financial officer and the chief executive officer of the applicable Loan Party or such other officer or similar Person performing such duties for such Loan Party.

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

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

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

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

“Board of Directors” has the meaning given to such term in Section 8.17(a).

“Borrower(s)” has the meaning given to such term in the preamble to this Loan Agreement.

“Budget” has the meaning given to such term in Section 8.01(f).

“Business” means branded consumer product cleaning supplies, detergents and soaps, and any branded business reasonably related or incidental thereto.

“Business Day” means (a) any day that is not a Saturday, Sunday or other day on which commercial banks in the City of New York are required, authorized or otherwise permitted by law or other governmental actions to close, and (b) with respect to any notices or determinations in connection with any LIBOR Rate established hereunder, any day that is also a day for trading by and between banks in Dollar deposits in the London Interbank Eurodollar market (or its successor or replacement).

“C-PAK” has the meaning given to such term in the preamble to this Loan Agreement.

“C-PAK Exclusive License” means that certain Intercompany Trademark License Agreement, by and between C-PAK and C-PAK IP of even date herewith, in form and substance satisfactory to the Administrative Agent, as amended from time to time as permitted hereby.

“C-PAK IP” has the meaning given to such term in the preamble to this Loan Agreement.

“Capital Park Group” means collectively, Parent and its Controlled Investment Affiliates.

“Capital Stock” means any and all shares, interests, participations, units or other equivalents (however designated) of capital stock of a corporation, membership interests in a limited liability company, partnership interests of a limited partnership, any and all equivalent ownership interests in a Person, and in each case any and all warrants, rights or options to purchase, and all conversion or exchange rights, voting rights, calls or rights of any character with respect to, any of the foregoing.

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“Capitalized Lease Obligations” means, as applied to any Person, subject to Section 1.03, all obligations under Capitalized Leases of such Person or any of its Subsidiaries, in each case taken at the amount thereof accounted for as liabilities on the balance sheet (excluding the footnotes thereto) of such Person in accordance with GAAP.

“Capitalized Leases” means, as applied to any Person, all leases of property (real or personal) that have been or should be, in accordance with GAAP, classified as capitalized leases on the balance sheet of such Person or any of its Subsidiaries, on a consolidated basis.

“Cash Equivalents” means:

(a) any direct obligation of, or unconditional guaranty by, the United States of America (or any agency or political subdivision thereof, to the extent such obligations are supported by the full faith and credit of the United States of America) maturing not more than one (1) year after the date of acquisition thereof;

(b) commercial paper maturing not more than one hundred eighty (180) days from the date of issue and issued by a corporation (other than an Affiliate of any Loan Party) organized under the laws of any state of the United States of America or of the District of Columbia and, at the time of acquisition thereof, rated A 1 or higher by S&P or P 1 or higher by Moody’s;

(c) any Dollar denominated certificate of deposit, time deposit or bankers’ acceptance, maturing not more than one (1) year after its date of issuance, which is issued by a bank organized under the laws of the United States of America (or any state thereof) which has, at the time of acquisition of such certificate of deposit, time deposit or bankers’ acceptance, as applicable, (i) a credit rating of A or higher from S&P or A-2 or higher from Moody’s and (ii) a combined capital and surplus greater than $500,000,000;

(d) any repurchase agreement having a term of thirty (30) days or less entered into with any commercial banking institution satisfying, at the time of acquisition thereof, the criteria set forth in clause (c)(i) which (i) is secured by a fully perfected security interest in any obligation of the type described in clause (a), and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such commercial banking institution thereunder;

(e) mutual funds with assets in excess of $5,000,000, substantially all of which are of the type described in clauses (a) through (d) of this definition; and

(f) other short term liquid investments approved in writing by the Administrative Agent.

“Casualty Event” means the damage, destruction or condemnation, as the case may be, of property of any Person or any of its Subsidiaries.

“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601, et seq.), as amended, and all rules, regulations and binding standards and guidelines issued thereunder.

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“Change of Control” means the occurrence of any of the following:

(a) any “person” or “group” (within the meaning of Section 13(d) and 14(d) of the Exchange Act) becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of an amount of equity securities of Parent representing 35% or more of the aggregate ordinary voting power (or the equivalent thereof) represented by the issued and outstanding Capital Stock of Parent, and the percentage of the aggregate ordinary voting power (or the equivalent thereof) so owned by such “person” or “group” is greater than the aggregate ordinary voting power (or equivalent thereof) that is owned and controlled, directly or indirectly, by Permitted Holders, or (ii) the Permitted Holders at any time ceasing to own and control directly, beneficially and of record, on a fully diluted basis, the greater of (x) sixty-six and two-thirds percent (66 2/3%) of the Management Stock of Parent, or (y) the percentage of any class or series of Management Stock required to constitute Requisite Holders (or any other defined term, or component thereof, in each case, indicating the requisite percentage of such Management Stock necessary to authorize the actions set forth in Section 5 of the Parent’s Certificate of Designation, Preferences, and Rights of Series B Preferred Stock (or, to the extent such certificate is amended, restated, replaced, substituted, or otherwise modified, any section or provision thereof (or substitute therefor) setting forth equivalent or similar actions));

(b) Capital Park Group at any time ceasing to own and control directly, beneficially and of record, on a fully diluted basis, 100% of the outstanding voting and economic equity interests of PrefCo (other than any equity interests of PrefCo owned by Piney Lake or any of its Affiliates or assignees);

(c) PrefCo at any time ceasing to own and control directly, beneficially and of record, on a fully diluted basis, 90% of the outstanding voting and economic equity interests of Holdings;

(d) Holdings at any time ceasing to own and control directly, beneficially and of record, on a fully diluted basis, 100% of the outstanding voting and economic equity interests of C-PAK;

(e) C-PAK at any time ceasing to own and control directly, beneficially and of record, on a fully diluted basis, 100% of the outstanding voting and economic equity interests of C-PAK IP;

(f) other than as a result of a liquidation or dissolution of a Subsidiary of any Loan Party permitted under Section 9.03, any Borrower or any other Loan Party at any time ceasing to own and control, directly or indirectly, beneficially and of record, on a fully diluted basis, 100% of the Capital Stock of any Guarantor (other than Holdings); or

(g) a “change of control” (as defined in the Revolving Credit Agreement) or any term of similar effect under any Revolving Loan Document.

For purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person through the ability to exercise voting power, and the terms “controlling” and “controlled” have meanings correlative thereto. Notwithstanding anything herein to the contrary, neither Agent nor any Lender nor any of their respective managed or Approved Funds or Affiliates shall be deemed to have control over any Loan Party or Affiliate thereof solely by virtue of the transactions contemplated by this Loan Agreement and the other Loan Documents or on account of ownership of Holdings Common Units or Preferred Stock.

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“Charges” has the meaning given to such term in Section 12.28.

“Claims” has the meaning given to such term in the definition of Environmental Claims.

“Closing Date” means the first date upon which all conditions precedent listed in Article V have been satisfied pursuant to the terms thereof (i.e., May 3, 2019).

“Closing Date IP Contribution” has the meaning given to such term in Section 5.25.

“Closing Date IP Contribution Agreement” means that certain Assignment of Intellectual Property dated as of the date hereof, between C-PAK and C-PAK IP, in form and substance satisfactory to the Administrative Agent.

“Closing Date Leverage Test” has the meaning given to such term in Section 5.10(a).

“Code” means the Internal Revenue Code of 1986, as amended from time to time, and all rules, regulations, standards and guidelines issued thereunder. Section references to the Code are to the Code as in effect at the date of this Loan Agreement, and any subsequent provisions of the Code amendatory thereof, supplemental thereto or substituted therefor.

“Collateral” means any assets of any Loan Party or other assets upon which the Collateral Agent has been granted a Lien in connection with this Loan Agreement, including pursuant to the Security Documents.

“Collateral Agent” has the meaning given to such term in the preamble to this Loan Agreement.

“Collateral Assignee” has the meaning given to such term in Section 12.06(d).

“Collateral Assignee Default Notice” has the meaning given to such term in Section 11.09(b).

“Collateral Assignment of Transaction Documents” means that certain Collateral Assignment of Transaction Documents dated as of the Closing Date between C-PAK and the Collateral Agent (for the benefit of the Secured Parties), as amended, supplemented or otherwise modified, renewed or replaced from time to time.

“Collections” means all cash, checks, credit card slips or receipts, notes, instruments, and other items of payment (including insurance proceeds, proceeds of cash sales, rental proceeds, and tax refunds) of the Loan Parties.

“Commitment” means with respect to each Lender, such Lender’s Term Loan Commitment.

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“Compliance Certificate” means a certificate duly completed and executed by an Authorized Officer of Holdings on behalf of each Borrower substantially in the form of Exhibit D, together with such changes thereto or departures therefrom as the Administrative Agent may reasonably request or approve from time to time.

“Confidential Information” has the meaning given to such term in Section 12.18.

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

“Consolidated Adjusted EBITDA” means, for a specified period, an amount determined for the Consolidated Companies equal to, on a trailing twelve month basis (including, subject to the established Consolidated Adjusted EBITDA amounts provided below, any months that precede the Closing Date): (a) Consolidated Net Income of the Consolidated Companies, plus (b) to the extent reducing Consolidated Net Income, the sum of, without duplication, amounts for

(i) Consolidated Interest Expense during such measurement period,

(ii) provisions for Taxes based on income,

(iii) total depreciation expense,

(iv) total amortization expense,

(v) other non-cash charges and expenses reducing Consolidated Net Income (excluding any such non-cash item to the extent that it represents an accrual or reserve for potential cash items in any future period or amortization of a prepaid cash item that was paid in a prior period) including, without limitation, non-cash compensation expense in respect of stock option and incentive plans and accrued Management Fees and the Transaction Fee,

(vi) fees and expenses incurred in connection with the consummation of the Transactions to the extent paid on or within thirty (30) days of the Closing Date not to exceed $1,500,000 in the aggregate,

(vii) reasonable out-of-pocket fees and expenses paid in connection with (a) Permitted Acquisitions that have been consummated, (b) acquisitions (that would qualify as Permitted Acquisitions if consummated), other Investments, Capital Stock issuances and other similar non-ordinary course transactions that have not been (and will not be) consummated, in an aggregate amount, solely with respect to this clause (b), not to exceed $250,000 in the aggregate during any trailing twelve month period and $500,000 in the aggregate during the term of this Loan Agreement,

(viii) non-recurring costs, charges and expenses not to exceed $200,000 for the term of this Loan Agreement or that have otherwise been approved by the Administrative Agent as add-backs to Consolidated Adjusted EBITDA,

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(ix) amounts paid by any Borrower or its Subsidiaries during such period which (a) have been indemnified or reimbursed by third parties that are not Affiliates of such Borrower (excluding any seller under the Transaction Agreement) during such period or (b) are reasonably expected to be indemnified or reimbursed by third parties that are not Affiliates of such Borrower (excluding any seller under the Transaction Agreement) pursuant to a Contractual Obligation; provided that a readjustment to Consolidated Adjusted EBITDA shall be made if such amount is not indemnified or reimbursed in accordance with the terms of such Contractual Obligation within ninety (90) days of such expected indemnification or reimbursement,

(x) fees paid to the Administrative Agent and the Lenders to the extent not included above,

(xi) proceeds of any business interruption insurance,

(xii) each payments made to members of the Board of Directors of each Loan Party with respect to board of director fees and expenses to the extent permitted hereby,

(xiii) extraordinary (as such term was defined in GAAP prior to the effectiveness of FASB 2015-01) losses during the specified period, and

(xiv) other add-backs to Consolidated Adjusted EBITDA mutually agreed upon in writing by the Borrowers and the Administrative Agent.

minus (without duplication) (c) to the extent increasing Consolidated Net Income, the sum of, without duplication, (i) amounts for other non-cash gains increasing Consolidated Net Income for such period (excluding any such non-cash item to the extent it represents the reversal of an accrual or reserve for potential cash item in any prior period) and (ii) extraordinary (as such term was defined in GAAP prior to the effectiveness of FASB 2015-01) and other non-recurring items paid during the specified period;

For purposes of calculating Consolidated Adjusted EBITDA (other than for purposes of calculating Consolidated Excess Cash Flow) for any Test Period, if at any time during such Test Period the Loan Parties shall have consummated a Permitted Acquisition, the calculation of Consolidated Adjusted EBITDA shall be made on a pro forma basis giving effect to each Permitted Acquisition that shall have been consummated during such Test Period with each such Permitted Acquisition being deemed to have occurred on the first day of such Test Period, using Consolidated Adjusted EBITDA attributable to the Person, asset, Related Brand or license of a Related Brand acquired pursuant to each such Permitted Acquisition for the most recent four fiscal quarter period ending prior to the date on which such Permitted Acquisition is consummated, calculated in a manner acceptable to the Administrative Agent in its sole discretion.

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Notwithstanding anything herein to the contrary, (X) proceeds of an Equity Cure Investment shall not be included in the calculation of Consolidated Adjusted EBITDA for purposes of any calculation of Consolidated Excess Cash Flow and (Y) any positive EBITDA of any Foreign Subsidiary or any Domestic Subsidiary that is not a Loan Party shall be excluded for the purpose of calculating Consolidated Adjusted EBITDA for any purpose set forth herein, except to the extent of the amount of dividends or other distributions actually paid in cash to any Loan Party for such period.

Consolidated Adjusted EBITDA for each of the following periods set forth below shall be as set forth opposite such period:

Historical Consolidated Adjusted EBITDA figures:

Fiscal quarter ended March 31, 2018	$	2,116,999.18
Fiscal quarter ended June 30, 2018	$	2,444,153.47
Fiscal quarter ended September 31, 2018	$	1,772,282.23
Fiscal quarter ended December 31, 2018	$	1,672,130.89

“Consolidated Adjusted EBITDA Calculation” means the calculations set forth as Attachment (2a) to the Compliance Certificate.

“Consolidated Capital Expenditures” means, for any specified period, the sum of, without duplication, all expenditures made, directly or indirectly, by the Consolidated Companies during such period, determined on a consolidated basis in accordance with GAAP, that are or should be reflected as additions to property, plant or equipment or similar items reflected in the consolidated statement of cash flows of the Consolidated Companies, or have a useful life of more than one year, but excluding (i) expenditures made in connection with the acquisition, replacement, substitution, improvement, expansion or restoration of assets to the extent financed (a) from insurance proceeds (or other similar recoveries) paid on account of the loss of or damage to the assets being replaced or restored, (b) with cash awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced, (c) with cash proceeds of Dispositions that are reinvested in accordance with this Loan Agreement, (d) with proceeds of landlord financed leasehold improvements, or (e) with the Net Equity Proceeds of an equity issuance (other than the Net Equity Proceeds from any Equity Cure Investment) by Holdings to the extent not prohibited by this Loan Agreement, and (ii) expenditures made to fund the purchase price for assets acquired in Permitted Acquisitions or other Investments permitted hereunder in all or substantially all of the equity or assets of another Person or business unit or division.

“Consolidated Companies” means the Loan Parties and their Subsidiaries on a consolidated basis in accordance with GAAP.

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“Consolidated Excess Cash Flow” means, for a specified period, the excess (if any), of: (a) Consolidated Adjusted EBITDA for such period, minus (b) the sum for such period (without duplication and to the extent that the following amounts have not already been deducted in determining Consolidated Adjusted EBITDA for such period) of (i) Consolidated Interest Expense paid in cash, plus (ii) scheduled principal payments actually made during such period in accordance with Section 2.03(a), plus (iii) Taxes based on income required to be paid during such period and actually paid in cash by the Consolidated Companies, plus (iv) Consolidated Capital Expenditures made in cash (and not financed other than with the proceeds of Term Loans or loans under the Revolving Credit Facility or under any other revolving credit facility), plus (v) Tax distributions paid in cash during such period, plus (vi) [reserved], plus (vii) any cash add-backs to Consolidated Adjusted EBITDA, plus (viii) cash payments under any subordinated Indebtedness (including the Revolving Credit Facility to the extent accompanied by a permanent reduction of the commitments thereunder), to the extent permitted to be paid under this Loan Agreement, plus (ix) [reserved], plus (x) increases in Consolidated Working Capital (minus decreases in Consolidated Working Capital); plus (xi) insurance proceeds solely to the extent actually reinvested within the allotted reinvestment period pursuant to Section 4.02(a); plus (xii) amounts paid in cash to redeem Capital Stock in accordance with Section 9.06(e), in each case above to the extent permitted to be paid under the terms of the Loan Documents.

“Consolidated Interest Expense” means, for the Consolidated Companies, the sum of: all interest (net of interest income) in respect of Indebtedness (including, without limitation, the interest component of any payments in respect of Capitalized Lease Obligations) accrued or capitalized during such period (whether or not actually paid during such period); provided, however, that for purposes of calculating the Fixed Charge Coverage Ratio, Consolidated Interest Expense shall include the amount of any interest on the Term Loans that otherwise would be required to be paid if not for the prepayment of the Term Loans with the proceeds of any Equity Cure Investment, for the fiscal quarter immediately preceding such Equity Cure Investment and, without duplication, for each of the following three fiscal quarters.

“Consolidated Net Income” means, for any specified period, the consolidated net income (or deficit) of the Consolidated Companies, after deduction of all expenses, taxes, and other proper charges, determined in accordance with GAAP, after eliminating therefrom all extraordinary (as such term was defined in GAAP prior to the effectiveness of FASB 2015-01) nonrecurring items of income or loss, provided that there shall be excluded (i) the income (or loss) of any Person in which any Person (other than any of the Consolidated Companies) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid in cash to any of the Consolidated Companies by such Person during such specified period, (ii) the income (or loss) of any Person accrued prior to the date it becomes a consolidated Subsidiary of any of the Consolidated Companies or is merged into or consolidated with any of the Consolidated Companies or such Person’s assets are acquired by any of the Consolidated Companies, and (iii) the income of any consolidated Subsidiary of any of the Consolidated Companies to the extent that the declaration or payment of dividends or other distributions by that consolidated Subsidiary of that income is not at the time permitted by operation of the terms of any Contractual Obligation, its Organization Documents or Applicable Law applicable to that consolidated Subsidiary (iv) any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of income accrued during such period; (v) any gain attributable to the write-up of any asset and any loss attributable to the write-down of any asset; (vi) any net gain from the collection of the proceeds of life insurance policies; (vii) any net gain arising from the acquisition of any securities, or the extinguishment, under GAAP, of any Indebtedness, of any of the Consolidated Companies, (viii) in the case of a successor to any consolidated Subsidiary of any of the Consolidated Companies by consolidation or merger or as a transferee of its assets, any earnings of such successor prior to such consolidation, merger or transfer of asset (unless such successor was a consolidated Subsidiary of any of the Consolidated Companies prior to such consolidation, merger or transfer), (ix) any deferred credit representing the excess of equity in any consolidated Subsidiary of any of the Consolidated Companies at the date of acquisition of such consolidated Subsidiary over the cost to the Consolidated Companies of the investment in such Subsidiary, (x) the cumulative effect of any change in GAAP during such period, and (xi) any noncash FASB ASC 815 income (or loss) related to hedging activities.

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“Consolidated Working Capital” means, as of any date of determination, the excess of (a) the sum of all amounts (other than cash and current tax assets) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Consolidated Companies at such date minus (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Consolidated Companies on such date, including deferred revenue but excluding, without duplication, (i) the current portion of any Indebtedness, (ii) all Indebtedness consisting of the Term Loans to the extent otherwise included therein, (iii) the current portion of interest and (iv) the current portion of current and deferred income Taxes; provided, however, that if a Permitted Acquisition is consummated during the applicable period of determination, changes in Consolidated Working Capital for the target of such Permitted Acquisition will be measured for the period commencing on the first day of the first month after such Permitted Acquisition was consummated and ending on the last day of the period of determination.

“Contingent Liability” means, for any Person, any agreement, undertaking or arrangement by which such Person 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 of any other Person (other than by endorsements of instruments in the course of collection), or guarantees the payment of dividends or other distributions upon the Capital Stock of any other Person. The amount of any Person’s obligation under any Contingent Liability shall (subject to any limitation set forth therein) be determined in accordance with GAAP.

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

“Controlled Investment Affiliate” means, with respect to any Person, (x) any other investment fund or similar Person that (i) is organized for the purpose of making equity investments in one or more companies and (ii) is controlled by, or is under common control with, such Person or (y) any fund, investment vehicle or other Person that is a co-investor in such Person, directly or indirectly, but only so long as Parent controls such investment in such Person by such co-investor. For purposes of this definition “control” means the power to direct or cause the direction of management and policies of a Person through the ownership of voting Capital Stock.

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“Copyright Security Agreements” means any Copyright Security Agreements made in favor of the Collateral Agent (for the benefit of the Secured Parties) by each applicable Loan Party, in each case as amended, supplemented or otherwise modified, renewed or replaced from time to time.

“Cream Suds Business” has the meaning given to such term in the Transaction Agreement as in effect on the Closing Date.

“Cure Notice” has the meaning given to such term in Section 9.13(e)(i).

“Default” means any event, act or condition that, with notice or lapse of time, or both, would constitute an Event of Default.

“Diligence Materials” has the meaning given to such term in Section 2.09.

“Disposition” means, with respect to any Person, any sale, transfer, lease, contribution or other conveyance (including by way of merger) of, or the granting of options, warrants or other rights to, any of such Person’s or any of such Person’s Subsidiaries’ assets or properties (including Capital Stock of Subsidiaries) to any other Person in a single transaction or series of transactions. Without limiting any of the foregoing, a Disposition shall include the transfer or distribution of assets through a Division.

“Disqualified Capital Stock” means any Capital Stock that, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable) or upon the happening of any event or condition, (a) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof (other than solely for Qualified Capital Stock), in whole or in part, (c) provides for the scheduled payment of dividends in cash or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock, in each case, prior to the date that is six (6) months after the Maturity Date; provided, that if such Capital Stock is issued pursuant to a plan for the benefit of employees of any Loan Party or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by a Loan Party in order to satisfy applicable statutory or regulatory obligations. Notwithstanding anything here to the contrary, the Preferred Stock shall not be deemed to be Disqualified Capital Stock for purposes of this Loan Agreement.

“Division” means, in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons, with the dividing Person either continuing or terminating its existence as part of such division, including as contemplated under Section 18-217 of the Delaware Limited Liability Act for limited liability companies formed under Delaware law, or any analogous action taken pursuant to any other applicable Law with respect to any corporation, limited liability company, partnership or other entity. The word “Divide,” when capitalized, shall have a correlative meaning.

“Dollars” and “$” means dollars in lawful currency of the United States of America.

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“Domestic Subsidiary” means each Subsidiary of a Loan Party that is a “United States person” within the meaning of Section 7701(a)(30) of the Code.

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

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

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

“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender and (c) an Approved Fund, but excluding in every case each Loan Party, Permitted Holder, and each Affiliate of the foregoing (it being understood that, notwithstanding anything to the contrary, Piney Lake and its managed and Approved Funds and all Affiliates thereof are Eligible Assignees for all purposes hereunder).

“Environmental Claims” means any and all actions (including administrative, regulatory and judicial actions), suits, demands, demand letters, claims, liens, notices of noncompliance or violation, requests for information, warning letters, notices of deficiencies, investigations (other than internal reports prepared by the Loan Parties (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing transaction or an acquisition or disposition of real estate) or proceedings relating to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (“Claims”), including (i) any and all Claims by Governmental Authorities for enforcement, cleanup, removal, response, fines, penalties, remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, fines, penalties, compensation or injunctive relief resulting from the Release or threatened Release of Hazardous Materials or arising from any alleged violation of Environmental Law.

“Environmental Law” means any applicable federal, state, foreign, local or municipal statute, law, rule, regulation, order, ordinance, code, decree, or other binding written requirement of any Governmental Authority now or hereafter in effect, in each case as amended, and any binding judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree or judgment, relating to or imposing liability or standards of conduct concerning protection of the environment or natural resources, protection of human health or safety (from exposure to Hazardous Materials), or occupational health and safety (from exposure to Hazardous Materials), including public environmental notification requirements and environmental transfer of ownership, notification or approval statutes.

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“Equity Cure Investment” has the meaning given to such term in Section 9.13(e)(ii).

“Equity Cure Right” has the meaning given to such term in Section 9.13(e).

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder. Section references to ERISA are to ERISA as in effect at the date of this Loan Agreement and any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.

“ERISA Affiliate” means each person (as defined in Section 3(9) of ERISA) that, together with any Loan Party or any Subsidiary of any Loan Party, is, or within the last six (6) years was, treated as a “single employer” (i) within the meaning of Sections 414(b), (c), (m) or (o) of the Code or (ii) as a result of any Loan Party or any Subsidiary of any Loan Party being or having been a general partner of such person.

“ERISA Event” means any of the following: (i) a Reportable Event occurs or is reasonably likely to occur with respect to any Plan; (ii) any Plan is insolvent or in reorganization or in endangered or critical status within the meaning of Section 432 of the Code or Section 4241 or 4245 of ERISA (or is reasonably likely to be insolvent or in reorganization) or notice of any such insolvency or reorganization has been given to any of the Loan Parties, any of their respective Subsidiaries or any ERISA Affiliate; (iii) any Plan is, or is reasonably expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (iv) any Plan (other than a Multiemployer Plan) has failed to satisfy the minimum funding standard of Section 412 of the Code or Section 302 of ERISA (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA), or is reasonably likely to do so, or any of the Loan Parties or any Subsidiary of any Loan Party has applied for or received a waiver of the minimum funding standard or an extension of any amortization period within the meaning of Section 412 of the Code or Section 302, 303 or 304 of ERISA with respect to any Plan; (v) any Loan Party, any Subsidiary of any Loan Party or any ERISA Affiliate fails to make a required installment under Section 430(j) of the Code with respect to any Plan or to make any required contribution to a Multiemployer Plan when due; (vi) any of the Loan Parties, any of their respective Subsidiaries or to the extent applicable or potentially applicable to the Loan Parties or any of their respective Subsidiaries, any ERISA Affiliate incurs (or is reasonably expected to incur) any liability to or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 436(f), 4971, 4975 or 4980 of the Code or is notified in writing that it will incur any liability under any of the foregoing Sections with respect to any Plan; (vii) any proceeding in instituted (or is reasonably likely to be instituted) to terminate, partially terminate or reorganize any Plan or to appoint a trustee to administer any Plan, or any written notice of any such proceeding is given to any of the Loan Parties, any of their respective Subsidiaries or any ERISA Affiliate; (viii) the imposition of any Lien under the Code or ERISA on the assets of any of the Loan Parties, any of their respective Subsidiaries or any ERISA Affiliate or notification to any of the Loan Parties, any of their respective Subsidiaries or any ERISA Affiliate that such a Lien will be imposed on the assets of any of the Loan Parties, any of their respective Subsidiaries or any ERISA Affiliate on account of any Plan; (ix) engaging in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to a Plan; (x) the complete or partial withdrawal of any of the Loan Parties, any of their respective Subsidiaries or any ERISA Affiliate from a Multiemployer Plan which results in the imposition of Withdrawal Liability, the reorganization or insolvency under Title IV of ERISA of any Multiemployer Plan; or (xi) a determination that any Multiemployer Plan is in endangered or critical status under Section 432 of the Code or Section 305 of ERISA.

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

“Event of Default” has the meaning given to such term in Article X.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Excluded Deposit Accounts” means, collectively, deposit accounts which (i) are used for the sole purpose of making payroll for the then current payroll period and withholding Tax payments related thereto and other employee wage and benefit payments and accrued and unpaid employee compensation (including salaries, wages, benefits and expense reimbursements), (ii) are used for the sole purpose of paying Taxes, including withholding and sales Taxes, (iii) are zero balance deposit accounts, (iv) constitute custodian, trust, fiduciary or other escrow accounts established for the benefit of third parties in the ordinary course of business in connection with transactions permitted hereunder, or (v) deposit accounts, together with all other deposit accounts (other than those identified in clauses (i) through (iv) above) which have an average daily balance for each fiscal month of less than $100,000 in the aggregate.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Term Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Term Loan or Commitment (other than pursuant to an assignment request by the Borrowers under Section 12.07) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 4.04, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 4.04(f), and (d) any U.S. federal withholding Taxes imposed under FATCA.

“Executive Order” has the meaning given to such term in Section 7.31.

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“Extraordinary Receipts” means any cash or other amounts or receipts received by, on behalf of or on account of any Loan Party or any Subsidiary of any Loan Party from the following: (a) proceeds of judgments, proceeds of settlements and other consideration of any kind received in connection with any cause of action, (b) releases of escrowed amounts under the Transaction Documents or under any other purchase agreement or related documentation, (c) any cash or other receipts in the nature of indemnification payments under or in respect of the Transaction Agreement or any other purchase agreement or related documentation, (d) payment under any so-called “representation and warranty policy” or other insurance policy issued pursuant to the Transaction Document or under any other purchase agreement or related documentation or otherwise issued in relation to the transactions contemplated by the Transaction Documents or under any other purchase agreement or related documentation, (e) any pension plan reversions or purchase price adjustment (excluding any working capital adjustment) received pursuant to the Transaction Documents or under any other purchase agreement or related documentation, and (f) foreign, United States, state or local tax refunds, but excluding (1) any of the foregoing amounts that are received to the extent that such amounts so received are applied for the purpose of remedying the condition giving rise to the claim for reimbursement or to reimburse the Loan Party for any such claim previously remedied and (2) any amounts received which are subject to any other clause in Section 4.02(a).

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

“Federal Flood Insurance” means federally-backed or private insurance that either meets the requirements set forth by the Federal Emergency Management Agency in its Mandatory Purchase of Flood Insurance Guidelines or is available under the National Flood Insurance Program to owners of real property improvements located in Special Flood Hazard Areas in a community participating in the National Flood Insurance Program.

“Fee Letter” means the fee letter, dated as of the date hereof, among each Borrower and Administrative Agent, as amended, amended and restated, supplemented or otherwise modified, renewed or replaced from time to time.

“Fees” means all amounts payable pursuant to, or referred to in, Section 3.01 or in the Fee Letter.

“Financial Covenant Cure Amount” has the meaning given to such term in Section 9.13(e)(i).

“Financial Covenant Default” has the meaning given to such term in Section 9.13(e).

“Fixed Charge Coverage Ratio” means (without duplication), as of the last day of any specified Test Period, the ratio of (x) Consolidated Adjusted EBITDA for such Test Period ending on such date minus (a) cash income Taxes, (b) any Restricted Payments paid in cash, (c) unfinanced Consolidated Capital Expenditures (except to the extent financed with the Term Loans, loans under the Revolving Credit Facility or loans under any other revolving credit facility), excluding Consolidated Capital Expenditures made with Capital Stock contributions or reinvestment of asset sales or insurance proceeds within the permitted reinvestment period pursuant to Section 4.02(a), and (d) earn outs paid in cash, divided by (y) Fixed Charges.

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“Fixed Charges” means the sum of (a) cash interest expense (including on Capitalized Lease Obligations) and (b) regularly scheduled principal amortization (including on Capitalized Lease Obligations), in each case giving pro forma effect to any Permitted Acquisitions consummated during the relevant Test Period and the incurrence of any Indebtedness in connection therewith; provided, however, that for purposes of calculating the Fixed Charge Coverage Ratio for any Test Period ending on or prior to March 31, 2020, the amounts calculated pursuant to clauses (a) and (b) for the relevant Test Periods shall equal such actual amounts from the Closing Date to and including the last day of the relevant Test Period, multiplied by a fraction equal to (x) 365 divided by (y) the number of days actually elapsed from the Closing Date to such date of determination.

“Foreign Lender” means a Lender that is not a U.S. Person.

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

“Funded Debt” means, as of any date of determination, all then outstanding Indebtedness of the Consolidated Companies of the type described in clauses (a), (b), (d), (f) and (j) of the definition of “Indebtedness” and in each case, the Guaranty Obligations with respect to each of the foregoing; provided, however, that for purposes of financial covenant calculations, the amount of any prepayment of the Term Loans shall not include any such payment from the proceeds of any Equity Cure Investment for any period in which the proceeds of such Equity Cure Investment are deemed to increase Consolidated Adjusted EBITDA.

“GAAP” means generally accepted accounting principles in the United States of America set forth from time to time in statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession), including the FASB Accounting Standards Codification™, which are applicable to the circumstances as of the date of determination, subject to Section 1.03.

“Governmental Authority” means any federal, state or local government of the United States, any foreign country, any multinational authority, or any state, commonwealth, province, protectorate or political subdivision thereof, and any entity, body or authority exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, including the PBGC and other quasi-governmental entities established to perform such functions, and in each case any department or agency thereof.

“Guarantors” means (a) Holdings, (b) each Person that is a Subsidiary of Holdings (other than the Borrowers) on the Closing Date, and (c) each other Person that becomes a party to the Guaranty and Security Agreement or otherwise provides a guaranty for the payment and performance of the Obligations after the Closing Date pursuant to an agreement reasonably acceptable to the Collateral Agent pursuant to Section 8.10.

“Guaranty and Security Agreement” means that certain Guaranty and Security Agreement among each Loan Party and the Collateral Agent for the benefit of the Secured Parties dated as of the Closing Date, as amended, supplemented or otherwise modified, renewed or replaced from time to time.

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“Guaranty Obligations” means, as to any Person, any Contingent Liability of such Person or other obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided, that the term “Guaranty Obligations” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date, entered into in connection with any acquisition or disposition of assets permitted under this Loan Agreement (other than with respect to Indebtedness). The amount of any Guaranty Obligation shall be determined in accordance with GAAP.

“Hazardous Materials” means (a) any petroleum or petroleum products, radioactive materials, friable, asbestos, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing regulated levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “waste”, “recycled materials”, “sludge”, “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous waste”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants” or “pollutants”, or words of similar import under any applicable Environmental Law; and (c) any other chemical, waste, recycled material, material or substance, which is prohibited, limited or regulated by any Environmental Law.

“Hedging Agreement” means (a) any and all agreements or documents not entered into for speculative purposes that provide for an interest rate, credit, commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency option, or any combination of, or option with respect to, these or similar transactions, for the purpose of hedging exposure to fluctuations in interest or exchange rates, loan, credit exchange, security, or currency valuations or commodity prices, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“Hedging Obligations” means, with respect to any Person, the obligations of such Person under Hedging Agreements.

“Holdings” has the meaning given to such term in the preamble to this Loan Agreement.

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“Holdings Common Units” means any Common Units (as defined in the Holdings Limited Liability Company Agreement).

“Holdings Equity Investment Agreement” means that certain C-Pak Consumer Product Holdings SPV I LLC Subscription Agreement, dated as of the date hereof, by and between Holdings and Piney Lake, as amended, restated, amended and restated, supplemented or otherwise modified, renewed or replaced from time to time in accordance with the terms hereof.

“Holdings Equity Investment Documents” means the Holdings Equity Investment Agreement, the Holdings Investors’ Rights Agreement and any other agreements, documents and instruments executed in connection therewith, dated as of the date hereof, each of which shall be in form and substance satisfactory to the Administrative Agent.

“Holdings Investors’ Rights Agreement” means that certain Investors’ Rights Agreement, dated as of the date hereof, by and among Holdings, PrefCo and Piney Lake, as amended, restated, amended and restated, supplemented or otherwise modified, renewed or replaced from time to time in accordance with the terms hereof.

“Holdings Limited Liability Company Agreement” means that certain Amended and Restated Limited Liability Company Agreement of Holdings, dated as of the date hereof, as amended from time to time in accordance with the terms hereof.

“Indebtedness” means, as to any Person at a particular time, without duplication, the following:

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

(b) the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;

(c) net Hedging Obligations of such Person;

(d) all obligations of such Person from installment purchases of property or services or representing the deferred purchase price for property or services, other than trade accounts payable in the ordinary course of business (but including any earn-out obligations, calculated in accordance with GAAP);

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

(f) all Attributable Indebtedness;

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(g) all obligations of such Person in respect of Disqualified Capital Stock;

(h) all other obligations upon which interest charges are customarily paid or accrued, other than ordinary trade payables and balances on credit cards incurred in the ordinary course of business;

(i) all Guaranty Obligations of such Person in respect of any of the foregoing; and

(j) trade payables more than ninety (90) days past due which such Person is not disputing in good faith and by appropriate measures.

provided, however, that Indebtedness shall not include (i) prepaid or deferred revenue arising in the ordinary course of business, and (ii) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warranties or other unperformed obligations of the seller of such asset.

Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would constitute Funded Debt. The amount of any net Hedging Obligations on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e) above shall be deemed to be equal to the lesser of (x) the aggregate unpaid amount of such Indebtedness and (y) the fair market value of the property encumbered thereby as determined by such Person in good faith.

“Indemnified Liabilities” has the meaning given to such term in Section 12.05.

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

“Initial Accounting Termination Date” means the earlier to occur of (a) the date on which the Loan Parties shall have implemented an Accounting System reasonably satisfactory to the Administrative Agent and (b) November 2, 2019.

“Initial Lenders” means Piney Lake together with its Affiliates and Approved Funds, severally and not jointly.

“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of the Title 11 of the United States Code, as now or hereafter in effect, or any successor thereto or under any other state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.

“Intercompany Note” has the meaning given to such term in Section 9.01(j).

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“Intercreditor Agreement” means the intercreditor agreement to be executed in connection with the Revolving Credit Facility, which shall be in form and substance satisfactory to the Administrative Agent in its sole discretion, as such intercreditor agreement may be amended, supplemented, or otherwise modified, renewed or replaced from time to time.

“Interest Payment Date” means the last day of each fiscal month (or portion thereof), commencing with the last day of June 2019; provided that if any Interest Payment Date occurs on a day that is not a Business Day, then such Interest Payment Date shall be deemed to occur on the next succeeding Business Day.

“Interest Period” means, with respect to any Term Loan, initially the period from the Closing Date through the last day of the first calendar month to end after the Closing Date, and at all times thereafter each period of one (1) calendar month.

“Inventory” means any and all “goods” (as defined in the UCC) which shall at any time constitute “inventory” (as defined in the UCC) of any Loan Party, wherever located (including without limitation, goods in transit and goods in the possession of third parties), or which from time to time are held for sale, lease or consumption in any Loan Party’s business, furnished under any contract of service or held as raw materials, work in process, finished inventory or supplies (including without limitation, packaging and/or shipping materials).

“Investment” means, relative to any Person, (a) any loan, advance or extension of credit made by such Person to any other Person, including the purchase by such first Person of any bonds, notes, debentures or other debt securities of any such other Person; (b) the incurrence of Contingent Liabilities in favor of any other Person; and (c) the acquisition of, or capital contribution in respect of, any Capital Stock or other investment held by such Person in any other Person. The amount of any Investment at any time shall be the original principal or capital amount thereof less all returns of principal or equity or capital thereon received (in cash or in the same form as the Investment) on or before such time and shall, if made by the transfer or exchange of property other than cash, be deemed to have been made in an original principal or capital amount equal to the fair market value of such property at the time of such Investment. Without limiting any of the foregoing, an Investment shall include the effective acquisition, purchase, contribution or any other investment effected through a Division.

“IP Rights” has the meaning given to such term in Section 7.14.

“IRS” means the U.S. Internal Revenue Service.

“Joy Business” has the meaning given to such term in the Transaction Agreement as in effect on the Closing Date.

“Landlord Agreement” means, with respect to (i) the headquarters location of each Loan Party and (ii) each leased location of a Loan Party and each other location owned by a third party at which a Loan Party stores (1) original books and records, primary servers, or any other material systems necessary to operate the business in the ordinary course of business are located or (2) Collateral with an aggregate value of greater than $250,000, a landlord waiver, bailee letters, collateral access agreement or other acknowledgement agreement of the applicable landlord, lessor, warehouseman, processor, consignee, or other Person in possession of, having a Lien upon, or having rights or interests in such Collateral as may be reasonably requested by the Collateral Agent, in each case in form and substance reasonably satisfactory to the Collateral Agent.

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“Law” means any law (including common law), statute, regulation, ordinance, rule, order, decree, judgment, consent decree, writ, injunction, settlement agreement or binding governmental requirement enacted, promulgated or imposed or entered into or agreed by any Governmental Authority or determination of an arbitrator.

“Lender” means each Person identified as a “Lender” on Schedule 1.01(a), their assignees pursuant to Section 12.06, and each other Lender that has made or holds Term Loans, and “Lenders” means all such Persons collectively.

“LIBOR Rate” means, for any Interest Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1.00%) equal to the greater of (i) one percent (1.00%) per annum and (ii) Three Month London Inter-Bank Offered Rate for U.S. Dollar Deposits as set and published by ICE Benchmark Administration Limited (or its successor) and as obtained by the Administrative Agent from a wire that is sent through Bloomberg, L.P. (or, if unavailable, another service or publication selected by the Administrative Agent) two (2) Business Days prior to the first day of such Interest Period. If the applicable Bloomberg LP page (or the applicable successor page) no longer reports LIBOR or if such index no longer exists, the Administrative Agent may, in consultation with Borrowers, select a replacement index, replacement page or replacement rate, as the case may be.

“Lien” means any statutory or other lien, security interest, mortgage, pledge, hypothecation, assignment for collateral purposes, encumbrance, option, purchase right, call right, easement, right-of-way, license, restriction (including zoning restrictions), defect, exception or irregularity in title or similar charge or encumbrance, including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof.

“Liquidity” means unrestricted cash and Cash Equivalents of Holdings and its Domestic Subsidiaries plus amounts available to be drawn under the Revolving Credit Facility; provided that the amount available to be drawn under the Revolving Credit Facility shall be deemed to be $0 after the occurrence and during the continuance of an event of default under the Revolving Credit Facility.

“Loan Agreement” means this Loan Agreement, as amended, amended and restated, supplemented or otherwise modified, renewed or replaced from time to time.

“Loan Documents” means this Loan Agreement, the Notes, the Fee Letter, the Security Documents, the Perfection Certificates, any intercreditor or subordination agreements in favor of any Agent with respect to this Loan Agreement, and any other document, instrument, certificate or agreement executed by any Loan Party, or by either Borrower on behalf of any Loan Party, and delivered to any Agent or Lender in connection with any of the foregoing or the Obligations, in each case as amended, supplemented or otherwise modified, renewed or replaced from time to time.

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“Loan Party” means the Borrowers, Holdings, each of the other Guarantors, and each other Person that becomes a Loan Party pursuant to the execution of joinder documents.

“Make-Whole Amount” means, as to any prepayment (or deemed prepayment) under Sections 4.01 or 4.02 of the Term Loans (unless otherwise expressly provided in this Loan Agreement), occurring at any time on or prior to the second anniversary of the Closing Date, an amount equal to the present value at such prepayment date of (i) 4% of the aggregate principal amount of the Term Loans then prepaid (or deemed prepaid), plus (ii) all required remaining scheduled interest payments due on the principal amount of such Term Loans prepaid (or deemed prepaid) through the second anniversary of the Closing Date (excluding accrued but unpaid interest to the date of such prepayment). For purposes of this definition, (A) “present value” with respect to each clause hereof shall be computed using a discount rate applied quarterly equal to the Treasury Rate as of the date of such prepayment (or repayment) plus 50 basis points and (B) “Treasury Rate” means, as of any prepayment date, the yield to maturity as of such prepayment date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two (2) Business Days prior to the prepayment date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the prepayment date to and including the date that is the second anniversary of the Closing Date; provided that the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.

“Management Agreement” means that certain Management Services Agreement of even date herewith by and between C-PAK and Parent, as amended from time to time.

“Management Fees” means, collectively, that certain quarterly “Management Fee” (as defined in the Management Agreement as in effect on the date hereof) payable by C-PAK to Parent in an amount not to exceed 4% of EBITDA (as defined in the Management Agreement as in effect on the date hereof) for the subject fiscal quarter and any indemnities, fees, costs and expenses of Parent payable pursuant to the Management Agreement.

“Management Rights” shall mean the right to vote with respect to any one or more of the actions that are described in Section 5 of the Parent’s Certificate of Designation, Preferences, and Rights of Series B Preferred Stock (as in effect on the Closing Date, or, to the extent such certificate is amended, restated, replaced, substituted, or otherwise modified, any section or provision thereof (or substitute therefor) setting forth equivalent or similar voting rights).

“Management Stock” shall mean and include the Series B Preferred Stock of Parent, or any other class or series of Capital Stock, in each case, having the power to exercise Management Rights.

“Margin Stock” means “margin stock” as such term is defined in Regulations T, U or X of the Board.

“Master Agreement” has the meaning given to such term in the definition of the term “Hedging Agreement.”

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“Material Adverse Effect” means any event, development, state of facts, change, circumstance, occurrence, condition or effect that, either individually or in the aggregate: (a) has had or could reasonably be expected to have a material adverse effect or material adverse change on (i) the financial condition, results of operations, assets, liabilities (contingent or otherwise), properties, solvency, business, or value of the Loan Parties and their respective Subsidiaries, taken as a whole, (ii) the validity or enforceability of this Loan Agreement, any of the other Loan Documents, any material provision hereof or thereof, or any material right or remedy of the Secured Parties hereunder or thereunder or (iii) the attachment, perfection or priority of any Liens granted to the Collateral Agent in or to any material portion of the Collateral (other than as a result of any action or inaction of the Agents or any Lender), or (b) has materially impaired or could reasonably be expected to materially impair the ability of any Loan Party, or any of their respective Subsidiaries, to perform any of their obligations contained in this Loan Agreement or any of the other Loan Documents.

“Material Contracts” means (i) those contracts (as in effect on the Closing Date or as amended or modified in accordance with the terms of this Loan Agreement) listed on Schedule 7.34(a), which schedule may be updated from time to time by the Loan Parties in accordance with Section 7.34, (ii) the Transition Services Agreement, (iii) the Transitional Distribution Agreement, (iv) the Transitional Supply Agreement, (v) the Shared Technology License Agreement, (vi) the Senior Executive Consulting Agreement, (vii) any agreement entered into by any Loan Party or any Subsidiary of any Loan Party in connection with the Acquisition or any other acquisition consummated after the Closing Date pursuant to which any Loan Party or any Subsidiary of any Loan Party shall receive material transition services from any third Person in connection with the Acquisition or such other acquisition, (viii) the Transaction Agreement, (ix) any contract or related contracts between any Loan Party or any Subsidiary of any Loan Party (or, at any time that the Transition Services Agreement is in effect, any other party thereto) and any customer of any Loan Party or any Subsidiary of a Loan Party (or, at any time that the Transition Services Agreement is in effect, any other party thereto), pursuant to which contract or contracts the Loan Parties and their Subsidiaries generate ten percent (10%) or more of the annual aggregate revenue of the Loan Parties and their Subsidiaries without replacement thereof within thirty (30) days following expiry or termination thereof, (x) any Material License and (xi) any other contract, agreement, permit or license, the failure to comply with which, or the termination (without contemporaneous replacement) of which, could reasonably be expected to have a Material Adverse Effect.

“Material IP Rights” has the meaning given to such term in Section 7.14.

“Material License” means any license agreement pursuant to which any Loan Party or any Subsidiary of a Loan Party licenses Material IP Rights from any Person. For the avoidance of doubt, the C-PAK Exclusive License shall constitute a Material License.

“Maturity Date” means May 2, 2024.

“Maximum Rate” has the meaning given to such term in Section 12.28.

“Moody’s” means Moody’s Investors Service, Inc. or any successor by merger or consolidation to its business.

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“Mortgage” means a mortgage or a deed of trust, deed to secure debt, trust deed or other security document entered into by any applicable Loan Party and the Collateral Agent for the benefit of the Secured Parties in respect of any Real Property owned by such Loan Party, in form and substance satisfactory to the Collateral Agent.

“Mortgaged Property” means each parcel of Real Property and the improvements thereto (if any) with respect to which a Mortgage is granted pursuant to Section 8.13(a).

“Multiemployer Plan” means any multiemployer plan, as defined in Section 4001(a)(3) of ERISA, which is contributed to by (or to which there is or may be an obligation to contribute of) any Loan Party, any Subsidiary of any Loan Party or any ERISA Affiliate, and each such plan for the five-year period immediately following the latest date on which any Loan Party, any Subsidiary of any Loan Party or any ERISA Affiliate contributed to or had an obligation to contribute to such plan.

“National Flood Insurance Program” means the program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, as revised by the National Flood Insurance Reform Act of 1994, that mandates the purchase of flood insurance to cover real property improvements located in Special Flood Hazard Areas in participating communities and provides protection to property owners through a federal insurance program.

“Net Casualty Proceeds” means, with respect to any Casualty Event, the amount of any insurance proceeds or condemnation awards received by any Loan Party or any of its Subsidiaries in connection with such Casualty Event (net of all collection expenses thereof (including, without limitation, any legal or other professional fees) (except with respect to any expenses paid to a Loan Party or an Affiliate thereof)), but excluding any proceeds or awards required to be paid to a creditor (other than the Lenders) which holds a Lien that is senior in right of security to the Liens securing payment of the Obligations permitted by Section 9.02(c) or (d) on the property which is the subject of such Casualty Event, and less any Taxes payable by such Person on account of such insurance proceeds or condemnation award, actually paid, assessed or estimated by such Person (in good faith) to be payable within the next 12 months in cash in connection with such Casualty Event, in each case to the extent, but only to the extent, that the amounts are properly attributable to such transaction; provided, that if, after the expiration of such 12-month period, the amount of such estimated or assessed Taxes, if any, exceeded the Taxes actually paid in cash in respect of proceeds from such Casualty Event, the aggregate amount of such excess shall constitute additional Net Casualty Proceeds under Section 4.02(a)(iii) and be applied to the prepayment of the Obligations pursuant to Section 4.02(c).

“Net Debt Proceeds” means, with respect to the sale or issuance by any Loan Party or any of its Subsidiaries of any Indebtedness, the excess of: (a) the gross cash proceeds received by any Loan Party or any of its Subsidiaries of such Indebtedness from such sale or issuance, over (b) all underwriting commissions and legal, investment banking, underwriting, brokerage, accounting and other professional fees, sales commissions and disbursements and all other fees, costs, expenses and charges, in each case actually incurred in connection with such sale or issuance which have not been paid and are not payable to any Loan Party or, unless such expenses are permitted by Section 9.10 and payable pursuant to Section 9.06(g), an Affiliate thereof in connection therewith.

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“Net Disposition Proceeds” means, with respect to any Disposition by any Loan Party or any of its Subsidiaries, the excess of: (a) the gross cash proceeds received by such Person from such Disposition, over (b) the sum of: (i) all legal, investment banking, underwriting, brokerage and accounting and other professional fees, sales commissions and disbursements and all other fees, costs, expenses and charges, in each case actually incurred in connection with such Disposition which have not been paid and are not payable to any Loan Party or, unless such expenses are permitted by Section 9.10 and payable pursuant to Section 9.06(g), an Affiliate thereof in connection therewith, and (ii) all Taxes payable by such Person on account of proceeds from such Disposition, actually paid, assessed or estimated by such Person (in good faith) to be payable in cash within the next 12 months in connection with such proceeds, in each case to the extent, but only to the extent, that the amounts are properly attributable to such transaction; provided, that if, after the expiration of the twelve-month period referred to in clause (b)(ii) above, the amount of estimated or assessed Taxes, if any, pursuant to clause (b)(ii) above exceeded the Taxes actually paid in cash in respect of proceeds from such Disposition, the aggregate amount of such excess shall constitute Net Disposition Proceeds under Section 4.02(a)(ii) and be applied to the prepayment of the Obligations pursuant to Section 4.02(c).

“Net Equity Proceeds” means, with respect to the sale, issuance or exercise after the Closing Date by any Loan Party or any of its Subsidiaries of any Capital Stock or any capital contribution by any Person to any such Loan Party or Subsidiary, the excess of (a) the gross cash proceeds received by such Loan Party or Subsidiary from such sale, issuance or exercise, over (b) all underwriting commissions and legal, investment banking, brokerage, accounting and other professional fees, sales commissions and disbursements actually incurred in connection with such sale or issuance which have not been paid and are not payable to any Loan Party or, unless such expenses are permitted by Section 9.10 and payable pursuant to Section 9.06(g), an Affiliate thereof in connection therewith.

“Notes” means, collectively, the Term Loan Notes.

“Obligations” means (a) with respect to each Borrower, all obligations (monetary or otherwise, whenever arising, and whether absolute or contingent, liquidated or unliquidated, due or to become due, or matured or unmatured) of such Borrower arising under or in connection with this Loan Agreement, the Notes, the Fee Letter or any other Loan Document, including the principal of, and interest (including interest accruing after the commencement or during the pendency of any proceeding, action or case under the Bankruptcy Code or otherwise of the type described in Section 10.01(j), whether or not allowed in such proceeding, action or case) on, and the Prepayment Premium with respect to, the Term Loans, and all fees, expenses, costs, indemnities and other sums payable at any time under any Loan Document and (b) with respect to each Loan Party other than the Borrowers, all obligations (monetary or otherwise, whenever arising, and whether absolute or contingent, liquidated or unliquidated, due or to become due, or matured or unmatured) of such Loan Party arising under or in connection with this Loan Agreement or any other Loan Document.

“OFAC Sanctions” has the meaning given to such term in Section 7.32.

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“Organization Documents” means, (a) with respect to any corporation, its certificate or articles of incorporation and its bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, its certificate or articles of formation or organization and its operating agreement, (c) with respect to any partnership, joint venture, trust or other form of business entity, its partnership, joint venture or other applicable agreement of formation or organization and, if applicable, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity, and (d) with respect to any entity, any applicable stockholders agreement, shareholders agreement, voting agreement or other similar agreement.

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

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 12.07).

“Parent” means Capital Park Holdings Corp., a Delaware corporation.

“Participant” has the meaning given to such term in Section 12.06(c)(i).

“Participant Register” has the meaning given to such term in Section 12.06(c)(iii).

“Patent Security Agreements” means any Patent Security Agreements made in favor of the Collateral Agent (for the benefit of the Secured Parties) by each applicable Loan Party, in each case as amended, supplemented or otherwise modified, renewed or replaced from time to time.

“Patriot Act” has the meaning given to such term in Section 12.21.

“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.

“Perfection Certificate” means a Perfection Certificate substantially in the form of Exhibit E, or otherwise in form and substance reasonably satisfactory to the Collateral Agent, delivered by each Loan Party to the Administrative Agent pursuant to Section 5.06(b).

“Permits” means, with respect to any Person, any permit, approval, authorization, license, registration, certificate, concession, grant, franchise, variance or permission from, and any other Contractual Obligations with, any Governmental Authority, in each case whether or not having the force of law and applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

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“Permitted Acquisition” means a Related Brand Acquisition which satisfies and is conducted in accordance with the following requirements:

(a) the aggregate Acquisition Consideration for any such acquisition consummated after the Closing Date does not exceed $20,000,000;

(b) if such acquisition is structured as an acquisition of the Capital Stock of any Person, then the Person so acquired shall (1) become a wholly-owned direct Domestic Subsidiary of a Borrower or other Domestic Subsidiary of a Borrower that is a Loan Party and such applicable Loan Party shall comply with Section 8.11 hereof and cause such acquired Person to comply with Section 8.10 hereof or (2) be merged with and into such Loan Party (and, in the case of (i) a Borrower, such Borrower being the surviving entity and (ii) any other Loan Party, such Loan Party shall be the surviving entity), in each case, within ten (10) Business Days of the consummation of such acquisition; provided that any Related Brand and IP Rights related thereto acquired shall be transferred to, and owned by, C-PAK IP contemporaneously with the consummation of such acquisition or promptly thereafter;

(c) if such acquisition is structured as the acquisition of assets, such assets (other than a de minimis amount of assets and any Related Brand any license or other IP Rights related thereto) shall be acquired directly by a Loan Party and any Related Brand and IP Rights related thereto shall be acquired by C-PAK IP, and the Loan Parties shall comply with Section 8.10 hereof with respect to such acquired assets, in each case, within ten (10) Business Days of the consummation of such acquisition;

(d) the Loan Parties and their Subsidiaries shall have delivered to the Agents and the Lenders not less than fifteen (15) (or such shorter period of time agreed to by the Administrative Agent) nor more than ninety (90) days prior to the date of such acquisition, notice of such acquisition together with copies of all material documents relating to such acquisition (including the acquisition agreement and any license agreement, transition services agreement, distribution agreement, sales agreement or other related material document, each of which may be in the form of drafts with updated copies provided as available), all material due diligence information prepared in connection with such acquisition and historical financial information reasonably satisfactory to the Administrative Agent, the pro forma Projections, and such other information as the Administrative Agent may reasonably request, prior to the effective date of the acquisition;

(e) (i) both immediately before and immediately after the consummation of such acquisition, no Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties set forth in Article VII shall be true and correct in all material respects (except as already subject to a materiality qualifier, which representations and warranties shall be true and correct in all respects) on the date of the proposed acquisition (or if such representation or warranties specifically relates to an earlier date, on and as of such earlier date);

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(f) the board of directors (or other managers) of the seller of the assets or issuer of the Capital Stock being acquired shall not have disapproved such transaction or withdrawn any approval of such transaction;

(g) if such acquisition is structured as an acquisition of Capital Stock of any Person, then such Person so acquired shall have positive consolidated adjusted EBITDA for the trailing twelve month period most recently ended (to be calculated with add-backs to be mutually agreed upon by the Borrowers and the Administrative Agent);

(h) no Indebtedness or Liens shall be assumed in connection with such acquisition except to the extent permitted under this Loan Agreement;

(i) all licenses, authorizations, exemptions, qualifications, consents and approvals of any Governmental Authority necessary under any laws applicable to such Loan Party that is making the acquisition, or the acquisition target (if applicable) for or in connection with the proposed acquisition and all necessary non-governmental and other third-party approvals which, in each case, are material to such acquisition shall have been obtained, and all necessary or appropriate declarations, registrations or other filings with any court, Governmental Authority, securities exchange or any other Person, which in each case, are material to the consummation of such acquisition or to the acquisition target, if applicable, have been made, and evidence thereof satisfactory in form and substance to the Administrative Agent shall have been delivered, or caused to have been delivered, by the Loan Parties and their Subsidiaries to the Agents and the Lenders;

(j) both immediately before and after giving effect to the consummation of such acquisition, the Total Leverage Ratio calculated on a pro forma basis as of the most recent Test Period for which financial statements were required to have been delivered pursuant to Section 8.01(b) or (c), shall not be greater than the Total Leverage Ratio set forth in Section 9.13(a) for the corresponding fiscal quarter;

(k) in connection with such acquisition, any Related Brands acquired in the form a license or other right to use agreement shall be pursuant to an exclusive, perpetual, royalty-free license or other right to use agreement of such Related Brands, and such license or other agreement shall be freely assignable by the Loan Party acquiring such Related Brands;

(l) there are no actions pending or threatened against or affecting the acquisition target company or assets in any court which could reasonably be expected to have a material adverse effect on the business, prospects, operations, properties or financial condition of the acquisition target and its subsidiaries, taken as a whole, or would materially adversely affect the ability of the acquisition target or seller to enter into or perform its obligations in connection with the acquisition nor any actions pending or threatened against the Loan Parties that would materially adversely affect the ability of the Loan Party to enter into or perform its obligations in connection with the proposed acquisition;

(m) such acquisition shall be permitted under the Revolving Loan Documents (or shall have been consented to by the requisite parties thereto), to the extent such Revolving Loan Documents exist; and

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(n) the Loan Parties have delivered to the Administrative Agent a certificate signed by an Authorized Officer certifying that conditions set forth in clauses (a)-(m) above, to the extent applicable, have been satisfied (together with supporting calculations, as applicable), which certificate shall be delivered no earlier than fifteen (15) Business Days but no later than the date of such acquisition.

“Permitted Holders” means, collectively, Parent and its Controlled Investment Affiliates.

“Permitted Liens” has the meaning given to such term in Section 9.02.

“Person” means any individual, corporation, limited liability company, partnership, limited partnership, joint venture, firm, association, trust, unincorporated organization, or other enterprise (whether or not legally formed) or any Governmental Authority.

“Piney Lake” has the meaning given to such term in the preamble to this Loan Agreement.

“Plan” means any Multiemployer Plan or any “employee benefit plan,” as defined in Section 3 of ERISA subject to Title IV of ERISA, Section 412 of the Code or Sections 302 or 303 of ERISA, sponsored, maintained or contributed to by any Loan Party, Subsidiary of a Loan Party or any ERISA Affiliate (or to which any Loan Party, Subsidiary of a Loan Party or any ERISA Affiliate has or could have an obligation to contribute or to make payments), and each such plan for the five-year period immediately following the latest date on which any Loan Party, Subsidiary of a Loan Party or any ERISA Affiliate maintained, contributed to or had an obligation to contribute to (or is deemed under Sections 4069 or 4212(c) of ERISA to have maintained or contributed to or to have had an obligation to contribute to, or otherwise to have liability with respect to) such plan.

“Pledged Stock” has the meaning given to such term in the Guaranty and Security Agreement.

“PrefCo” means C-PAK PrefCo SPV I, Inc., a Delaware corporation.

“PrefCo Certificate of Incorporation” means that certain Certificate of Incorporation of PrefCo, dated May 3, 2019, as may be amended, restated, amended and restated otherwise modified from time to time,

“Preferred Equity Distribution” means any payment to PrefCo, in an amount equal to (a) the redemption price, calculated in accordance with the terms of the PrefCo Certificate of Incorporation, of any Preferred Stock that PrefCo is obligated to redeem under the terms of the PrefCo Certificate of Incorporation as of the date of such payment and (b) the amount of all due and unpaid dividends, liquidation preference, fees and expenses, and any other amounts arising due and payable in respect of the Preferred Stock.

“Preferred Equity Documents” means the Preferred Equity Investment Agreement and any other agreements, documents and instruments executed in connection therewith, dated as of the date hereof, each of which shall be in form and substance satisfactory to the Administrative Agent.

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“Preferred Equity Investment Agreement” means that certain C-Pak Consumer Product Holdings SPV I, LLC Subscription Agreement, dated as of the date hereof, by and between PrefCo, Parent and each party thereto as a subscriber, as amended, restated, amended and restated, supplemented or otherwise modified, renewed or replaced from time to time in accordance with the terms hereof.

“Preferred Stock” means any shares of Preferred Stock (in the PrefCo Certificate of Incorporation) owned by any Lender or any managed or Approved Funds or Affiliates.

“Prepayment Premium” means, as of the date of the occurrence of a Prepayment Premium Trigger Event:

(a) during the period of time from and after the Closing Date up to (and including) the date that is the second anniversary of the Closing Date, an amount equal to the Make-Whole Amount on such date in cash to the Administrative Agent for the ratable account of the Lenders;

(b) during the period of time from the date immediately succeeding the second anniversary of the Closing Date up to (and including) the date that is the third anniversary of the Closing Date, an amount equal to 4.0% of the principal amount of the Term Loan prepaid (or deemed to be prepaid) on such date in cash to the Administrative Agent for the ratable account of the Lenders;

(c) during the period of time from and after the date immediately succeeding the third anniversary of the Closing Date up to (and including) the date that is the fourth anniversary of the Closing Date, an amount equal to 2.0% of the principal amount of the Term Loan prepaid (or deemed to be prepaid) on such date in cash to the Administrative Agent for the ratable account of the Lenders; and

(d) from and after the date immediately succeeding the fourth anniversary of the Closing Date, zero.

“Prepayment Premium Trigger Event” means:

(a) any prepayment by any Loan Party of all, or any part, of the principal balance of any Term Loan for any reason (including, but not limited to, any optional prepayment or mandatory prepayment, and distribution in respect thereof, and any refinancing thereof), whether in whole or in part, and whether before or after (i) the occurrence of an Event of Default, or (ii) the commencement of any Insolvency Proceeding involving any Loan Party or Subsidiary thereof, and notwithstanding any acceleration (for any reason) of the Obligations; provided, that any payment required to be made pursuant to Section 4.02(a)(iii), Section 4.02(a)(iv) (solely with respect to any Net Equity Proceeds from any Equity Cure Investment), Section 4.02(a)(v) and Section 4.02(a)(vi), or any Term Loan Repayment Amount shall not constitute a Prepayment Premium Trigger Event;

(b) the acceleration of the Obligations for any reason, including, but not limited to, acceleration in accordance with Section 10.02, including as a result of the commencement of any proceeding under the Bankruptcy Code;

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(c) the satisfaction, release, payment, restructuring, reorganization, replacement, reinstatement, defeasance or compromise of any of the Obligations in any commencement of any proceeding under the Bankruptcy Code, foreclosure (whether by power of judicial proceeding or otherwise) or deed in lieu of foreclosure or the making of a distribution of any kind in any commencement of any proceeding under the Bankruptcy Code to the Administrative Agent, for the account of the Lenders in full or partial satisfaction of the Obligations; or

(d) the termination of this Loan Agreement for any reason.

For purposes of the definition of the term Prepayment Premium, if a Prepayment Premium Trigger Event occurs under clause (b), (c) or (d), solely for the purposes of determining whether such Prepayment Premium is due, the entire outstanding principal amount of the Term Loan shall be deemed to have been prepaid on the date on which such Prepayment Premium Trigger Event occurs.

“Prime Rate” means the prime rate of interest that under current practice is listed as such under the heading “Money Rates” in the Eastern Edition of The Wall Street Journal.

“Prior Financial Statements” means a report titled “CONSOLIDATED FINANCIALS FOR JOY RETAIL / JOY PROFESSIONAL / CREAM SUDS PROFESSIONAL / JOY LA EXPORT BUSINESS” prepared by The Procter & Gamble Company for the period beginning January 1, 2013 and ending December 31, 2018.

“Projections” means the all financial estimates, forecasts, models, projections, other forward-looking information, and underlying assumptions relating to any of the foregoing, concerning the Loan Parties and their respective Subsidiaries, that have been or are hereafter made available to the Administrative Agent or a Lender by or on behalf of a Loan Party.

“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock.

“Rating Agency” has the meaning given to such term in Section 12.08.

“Real Property” means, with respect to any Person, all right, title and interest of such Person (including, without limitation, any leasehold estate) in and to a parcel of real property owned, leased or operated by such Person together with, in each case, all improvements and appurtenant fixtures, equipment, personal property, easements and other property and rights incidental to the ownership, lease or operation thereof.

“Recipient” means (a) the Administrative Agent, (b) the Collateral Agent, and (c) any Lender, as applicable.

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

(a) such refinancings, renewals, or extensions do not result in an increase in the principal amount of the Indebtedness so refinanced, renewed, or extended (other than by the amount of the fees and expenses incurred in connection therewith);

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(b) such refinancings, renewals, or extensions do not result in a shortening of the average weighted maturity (measured as of the refinancing, renewal, or extension) of the Indebtedness so refinanced, renewed, or extended;

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

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

“Register” has the meaning given to such term in Section 12.06(b)(iv).

“Regulation T” means Regulation T of the Board as from time to time in effect, and any successor to all or a portion thereof establishing margin requirements.

“Regulation U” means Regulation U of the Board as from time to time in effect, and any successor to all or a portion thereof establishing margin requirements.

“Regulation X” means Regulation X of the Board as from time to time in effect, and any successor to all or a portion thereof establishing margin requirements.

“Related Brand” means an identifiable and differentiated name, symbol and/or design that is related to the Business.

“Related Brand Acquisition” means the acquisition by any Loan Party of a Related Brand or license of, or other right to use, a Related Brand, together, if applicable, with any assets held for use in the manufacture and distribution of products under the name of the Related Brand.

“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees, agents, trustees, members, partners, investors, holders of Capital Stock, auditors, funding and financing sources, attorneys, accountants, consultants and other professional advisors of such Person and any Person that possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.

“Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, depositing, disposing, emanating or migrating of Hazardous Materials in the environment, and in any event includes any “release” as such term is defined in CERCLA.

“Reportable Event” means an event described in Section 4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA and as to which the PBGC has not waived under subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043 the requirement that the PBGC be notified of such event.

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“Request for Funding” means a written request for funding from the Authorized Officers of each Borrower.

“Required Lenders” means, at any time, Lenders holding more than 50% of the sum of the aggregate outstanding principal amount of the Term Loans.

“Restricted Payment” means, with respect to any Person, (a) the declaration or payment of any dividend on, or the making of any payment or distribution on account of, or setting apart assets for a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of, any class of Capital Stock of such Person or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or the making of any other distribution in respect thereof, either directly or indirectly, whether in cash or property, (b) any payment of a management fee or other fee of a similar nature by such Person to any holder of its Capital Stock or any other Affiliate thereof, or (c) the payment or prepayment of principal of, or premium or interest on, any Indebtedness subordinate to the Obligations unless such payment is permitted under the terms of the subordination agreement applicable thereto, in each case, with respect to the foregoing clauses (a) through (c), whether by means of a Division or otherwise.

“Retained Excess Cash Flow” means, for any fiscal year of the Borrowers, commencing with the fiscal year ending December 31, 2020, an amount (which amount shall not be less than zero) equal to (x) the amount of Consolidated Excess Cash Flow for the applicable fiscal year, minus (y) the portion of such Consolidated Excess Cash Flow that is required to be applied to the prepayment of the Term Loans in accordance with Section 4.02(a)(vi) (without giving effect to the proviso set forth in the first sentence of Section 4.02(a)(vi)).

“Revolving Credit Agreement” means a revolving credit agreement evidencing a Revolving Credit Facility, which shall be in form and substance satisfactory to the Administrative Agent.

“Revolving Credit Facility” means a revolving credit facility to be provided to any of the Loan Parties.

“Revolving Loan Documents” means the Revolving Credit Agreement and any other agreements, documents and instruments executed in connection therewith, which shall be in form and substance reasonably satisfactory to the Administrative Agent.

“S&P” means Standard & Poor’s Ratings Services or any successor by merger or consolidation to its business.

“Sanctioned Country” has the meaning given to such term in Section 7.32.

“Sanctioned Person” has the meaning given to such term in Section 7.32.

“Sanctions” has the meaning given to such term in Section 7.32.

“SEC” means the Securities and Exchange Commission and any Governmental Authority succeeding to some or all of the functions thereof.

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“Secured Parties” means, collectively, (a) the Lenders, (b) the Agents, (c) the beneficiaries of each indemnification obligation undertaken by any Loan Party under the Loan Documents, (d) any successors, endorsees, transferees and assigns of each of the foregoing, and (e) any other holder of any Secured Obligation (as defined in the Guaranty and Security Agreement).

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Securitization” has the meaning given to such term in Section 12.08.

“Security Documents” means, collectively, the Guaranty and Security Agreement, the Collateral Assignment of Transaction Documents, each Mortgage, each Landlord Agreement, each Account Control Agreement, the Patent Security Agreements, the Trademark Security Agreements, the Copyright Security Agreements, and each other instrument or document executed and delivered pursuant to Sections 8.10, 8.11, 8.13, 8.14, 8.15, 8.20 or pursuant to any of the Security Documents to guarantee or secure any of the Obligations.

“Senior Executive Consulting Agreement” means that certain Senior Executive Consulting Agreement, dated as of the date hereof, by and among CPG Sales Solutions LLC and C-PAK, and in each case as amended, supplemented or otherwise modified, renewed or replaced from time to time to the extent permitted hereunder.

“Shared Technology License Agreement” means that certain Shared Technology License Agreement, dated as of the date hereof, by and among The Procter & Gamble Company and C-PAK, and in each case as amended, supplemented or otherwise modified, renewed or replaced from time to time to the extent permitted hereunder.

“Solvency Certificate” means a solvency certificate duly executed by an Authorized Officer of Holdings on behalf of the Borrower and delivered to the Administrative Agent, in form and substance satisfactory to the Administrative Agent.

“Solvent” means, with respect to the Loan Parties and their Subsidiaries, taken as a whole that:

(a)

the fair value of the assets (on a going concern basis) of the Loan Parties and their Subsidiaries on a consolidated basis taken as a whole, exceeds its and their respective debts and liabilities on a consolidated basis taken as a whole, subordinated, contingent or otherwise;

(b)

the present fair saleable value of the property (on a going concern basis) of the Loan Parties and their Subsidiaries on a consolidated basis taken as a whole, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their respective debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured;

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(c)	the Loan Parties and their Subsidiaries on a consolidated basis, taken as a whole, are able to pay their respective debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured; and
(d)	the Loan Parties and their Subsidiaries on a consolidated basis, taken as a whole, are not engaged in, and are not prepared to engage in following the Closing Date, business contemplated as of the date hereof for which they have unreasonably small capital.

“Special Flood Hazard Area” means an area that the Federal Emergency Management Agency’s current flood maps indicate has at least a one percent (1%) chance of a flood equal to or exceeding the base flood elevation (a “100-year flood”) in any given year.

“Subsidiary” of any Person means and includes (a) any corporation more than 50% of whose Voting Stock having by the terms thereof power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries and (b) any partnership, limited liability company, association, joint venture or other entity in which such Person directly or indirectly through one or more Subsidiaries has more than a 50% equity interest (measured by vote or value) at the time. Unless otherwise expressly provided, all references herein to a “Subsidiary” means a direct or indirect Subsidiary of Holdings.

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

“Tax Distributions” means payments to any direct or indirect parent entity of C-PAK (the “Parent Entity”) that files for each Tax year (or a portion thereof) a consolidated U.S. federal or combined or unitary state, local or foreign Tax return that includes the taxable income of C-PAK, in an amount equal to U.S. federal, state, local and foreign Taxes actually payable by such Parent Entity in respect of the taxable income of C-PAK; provided that if the Parent Entity receives a refund from a Governmental Authority in respect of any amounts paid as Tax Distributions, any subsequent Tax Distributions shall be reduced by the amount of such refund.

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

“Term Loan” has the meaning given to such term in Section 2.01(a).

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“Term Loan Commitment” means, in the case of each Lender as of the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.01(a) as such Lender’s “Term Loan Commitment”, as the same may be changed from time to time pursuant to the terms hereof including Section 2.09.

“Term Loan ECF Percentage” means (a) 50.0% for any fiscal year if the Total Leverage Ratio calculated as of the last day of such fiscal year is greater than or equal to 2.00:1.00, (b) 25.0% for any fiscal year if the Total Leverage Ratio calculated as of the last day of such fiscal year is less than 2.00:1.00 but greater than or equal to 1.50:1.00 and (c) 0.0% for any fiscal year if the Total Leverage Ratio calculated as of the last day of such fiscal year is less than 1.50:1.00.

“Term Loan Note” means a promissory note substantially in the form of Exhibit A.

“Term Loan Repayment Amount” has the meaning given to such term in Section 2.03(a).

“Term Loan Repayment Date” has the meaning given to such term in Section 2.03(a).

“Test Period” means, for any determination under this Loan Agreement, the four consecutive fiscal quarters of the Consolidated Companies most recently ended as of the date of such determination.

“Total Credit Exposure” means, as of any date of determination, (a) with respect to each Lender, the outstanding principal amount of such Lender’s Term Loans, and (b) with respect to all Lenders, the aggregate outstanding principal amount of all Term Loans.

“Total Leverage Ratio” means (i) Funded Debt divided by (ii) Consolidated Adjusted EBITDA.

“Total Term Loan Commitment” means the sum of all Lenders’ Term Loan Commitments, which as of the Closing Date is as set forth on Schedule 1.01(a). As of the Closing Date, the aggregate amount of Lenders’ Total Term Loan Commitments is $22,000,000.

“Trademark Security Agreements” means any Trademark Security Agreements made in favor of the Collateral Agent (for the benefit of the Secured Parties) by each applicable Loan Party, in each case as amended, supplemented or otherwise modified, renewed or replaced from time to time.

“Trading with the Enemy Act” has the meaning given to such term in Section 7.31.

“Transaction Agreement” means that certain Transaction Agreement, dated as of the date hereof, between The Procter & Gamble Company, C-PAK, and Parent, together with all schedules and exhibits thereto, as amended, supplemented or otherwise modified, renewed or replaced from time to time to the extent permitted thereunder and hereunder.

“Transaction Documents” means the Transaction Agreement, the Shared Technology License Agreement, the Transition Services Agreement, the Transitional Distribution Agreement and the each other material agreement, document or instrument executed pursuant to, or delivered in connection with, the Transaction Agreement (including without limitation any employment agreements, escrow agreements, subscription agreements, stockholder agreement, earnout stock warrants, and transaction bonus agreements executed and delivered in connection therewith), in each case together with all schedules and exhibits thereto, and in each case as amended, supplemented or otherwise modified, renewed or replaced from time to time to the extent permitted hereunder.

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“Transaction Fee” means, the “Transaction Fee Accrued Liability” (as defined in the Management Agreement as in effect on the date hereof) earned by C-PAK to Parent in an amount not to exceed $900,000.

“Transactions” means (i) the consummation of the Acquisition (including the entry into the Transition Services Agreement, the Transitional Distribution Agreement, the Transitional Supply Agreement, the Shared Technology License Agreement and the Senior Executive Consulting Agreement), (ii) the execution, delivery and performance by each Loan Party of the Loan Documents to which it is a party, and (iii) the disbursement of the Term Loans hereunder on the Closing Date.

“Transition Services Agreement” means that certain Transition Services Agreement, dated as of the date hereof, by and among The Procter & Gamble Company and C-PAK, and in each case as amended, supplemented or otherwise modified, renewed or replaced from time to time to the extent permitted hereunder.

“Transitional Distribution Agreement” means that certain Transitional Distribution Agreement, dated as of the date hereof, by and among The Procter & Gamble Company and C-PAK, and in each case as amended, supplemented or otherwise modified, renewed or replaced from time to time to the extent permitted hereunder.

“Transitional Supply Agreement” means that certain Transitional Supply Agreement, dated as of the date hereof, by and among The Procter & Gamble Company and C-PAK, and in each case as amended, supplemented or otherwise modified, renewed or replaced from time to time to the extent permitted hereunder.

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

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

“U.S. Tax Compliance Certificate” has the meaning given to such term in Section 4.04(f).

“UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York.

“Unasserted Contingent Obligations” has the meaning given to such term in the Guaranty and Security Agreement.

“Unfunded Current Liability” of any Plan means the amount, if any, by which the value of the accumulated plan benefits under the Plan, determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value of all plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions).

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“Voting Stock” means, with respect to any Person, shares of such Person’s Capital Stock having the right to vote for the election of directors (or Persons acting in a comparable capacity) of such Person under ordinary circumstances.

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

“Withholding Agent” means any Loan Party and the Administrative Agent.

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

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

(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

(b) The words “herein”, “hereto”, “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

(c) Article, Section, clause, Exhibit and Schedule references are to the Loan Document in which such reference appears.

(d) The terms “include”, “includes” and “including” are by way of example and not limitation, and shall be deemed to be followed by the words “without limitation” whether or not they are in fact followed by such words.

(e) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

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

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(g) Unless otherwise provided herein or in any other Loan Document, the words “execute”, “execution”, “signed”, and “signature” and words of similar import used in or related to any document to be signed in connection with this Loan Agreement, any other Loan Document or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and 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 in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest 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, and any other similar state laws based on the Uniform Electronic Transactions Act, provided that, notwithstanding anything herein to the contrary, neither Agent is under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by such Agent pursuant to procedures approved by such Agent.

(h) The Table of Contents and Article, Section and clause headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Loan Agreement or any other Loan Document.

Section 1.03. Accounting Terms and Principles. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Loan Agreement after the Initial Accounting Termination Date shall be prepared in conformity with, GAAP, consistently applied, except as otherwise specifically prescribed herein. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article IX, including Section 9.13, or otherwise in this Loan Agreement unless the Borrower and the Administrative Agent agree in writing to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein or in any other Loan Document (including any Compliance Certificate) shall be construed, and all computations of amounts and ratios referred to in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 or (ii) Accounting Standards Codifications 470-20 or 835-30 (or, in the case of clauses (i) and (ii), any other Financial Accounting Standard having a result or effect similar to any such standard), to value any Indebtedness or other liabilities of any Loan Party or any Subsidiary of any Loan Party at “fair value” or any other standard that does not reflect 100% of the outstanding principal amount thereof without deducting any debt issuance costs. A breach of a financial covenant contained in Article IX shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered or required to be delivered to any Agent or any Lender. In addition, any lease treated as an operating lease on the date it is entered into shall continue to be treated as an operating lease during the term of this Loan Agreement notwithstanding a change in the treatment thereof to a Capital Lease in accordance with any change in GAAP. 

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

Section 1.05. References to Agreements, Laws, etc. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including this Loan Agreement and each of the other Loan Documents) and other Contractual Obligations shall be deemed to include all subsequent amendments, restatements, amendment and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, amendment and restatements, extensions, supplements and other modifications are permitted by any Loan Document, and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

Section 1.06. Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight saving or standard, as then applicable).

Section 1.07. Timing of Payment or Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day.

Section 1.08. Corporate Terminology. All references to officers, shareholders, stock, shares, directors, boards of directors, corporate authority, articles of incorporation, bylaws or other matters relating to a corporation, herein or in any other Loan Document, with respect to a Person that is not a corporation, mean and are references to the comparable terms used with respect to such Person.

Section 1.09. Independence of Provisions. This Loan Agreement and the other Loan Documents may use different limitations, tests, “baskets”, thresholds or other measurements to regulate the same or similar matters. All such limitations, tests, “baskets”, thresholds and other measurements are cumulative, and each must be performed or complied with independently of all others.

Section 1.10. 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 company, 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 company (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).

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ARTICLE II

AMOUNT AND TERMS OF CREDIT FACILITIES

Section 2.01. Term Loans.

(a) Subject to and upon the terms and conditions set forth herein, each Lender agrees, severally and not jointly, to make a loan or loans (each a “Term Loan” and collectively the “Term Loans”) to the Borrower on the Closing Date in an amount equal to such Lender’s Term Loan Commitment on and as of the Closing Date. All such Term Loans in the aggregate on the Closing Date shall not exceed the Total Term Loan Commitment on and as of the Closing Date. Any Term Loans may be repaid or prepaid in accordance with the terms and conditions hereof, but once repaid or prepaid may not be re-borrowed.

(b) [Reserved].

(c) Each Lender may, at its option, make any Term Loan in its entirety by causing any domestic or foreign branch or Affiliate of such Lender to make such Term Loan; provided, that (i) any exercise of such option shall not affect the obligation of each Borrower to repay such Term Loan in accordance with the terms hereof and (ii) in exercising such option, such Lender shall use reasonable efforts to minimize any increased costs to the Borrowers resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it, and in the event of any Lender request for costs for which compensation is provided under this Loan Agreement, the provisions of Section 2.06 shall apply).

Section 2.02. Disbursement of Funds.

(a) Each Lender will make available its pro rata portion of the Term Loans to be made by it in the manner provided below by no later than 3:00 p.m. on the Closing Date.

(b) Each Lender shall make available to the Administrative Agent (or, at the direction of the Administrative Agent, directly to either Borrower) in immediately available funds, in Dollars, all amounts such Lender is required to fund to the Borrowers, and, following receipt thereof in an account designated by the Administrative Agent (to the extent not directed to be made available directly to either Borrower), the Administrative Agent will make available to the Borrowers in immediately available funds, in Dollars, the aggregate of the amounts so made available, by remitting such aggregate amount to an account designated by the Borrowers to the Administrative Agent in writing. The failure of any Lender to make available the amounts it is required to fund hereunder or to make a payment required to be made by it under any Loan Document shall not relieve any other Lender of its obligations under any Loan Document, but no Lender shall be responsible for the failure of any other Lender to make any payment required to be made by such other Lender under any Loan Document.

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(c) Nothing in this Section 2.02 shall be deemed to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights that the Borrowers may have against any Lender as a result of any default by such Lender hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to fulfill its commitments hereunder).

Section 2.03. Payment of Loans; Notes.

(a) The Borrowers agree to pay to the Administrative Agent, for the benefit of the Lenders, on the last Business Day of each March, June, September, and December of each year, beginning on September 30, 2019 (each, a “Term Loan Repayment Date”), the principal of the Term Loan in the amount of $440,000, (each a “Term Loan Repayment Amount”).

(b) The Borrowers agree to pay to the Administrative Agent, for the benefit of the Lenders, on the Maturity Date, the principal amount of the Term Loans then outstanding, together with all accrued interest thereon.

(c) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrowers to the appropriate lending office of such Lender resulting from each Term Loan made by such lending office of such Lender from time to time, including the amounts of principal and interest payable and paid to such lending office of such Lender from time to time under this Loan Agreement.

(d) At the request of any Lender, the Borrowers shall execute and deliver to the Administrative Agent on the Closing Date one or more Notes payable to such Lender which in the aggregate equal the amount of such Lender’s Term Loan Commitment.

(e) Any Lender may exchange its Note(s) for, and within five (5) Business Days following a written request from such Lender, the Borrowers shall issue, one or more replacement Notes in an aggregate principal amount equal to the principal amount of the Note(s) being replaced, in such smaller or larger denominations as such Lender may request.

(f) Each Borrower hereby irrevocably authorizes each Lender to make (or cause to be made) appropriate notations on the grid attached to such Lender’s Note(s) (or on any continuation of such grid), which notations, if made, shall be prima facie evidence (absent manifest error) of, among other things, the date of, the outstanding principal amount of, and the interest rate and Interest Period applicable to, the Term Loans evidenced thereby. Such notations shall, to the extent not inconsistent with notations made by the Administrative Agent in the Register, be conclusive and binding on each Loan Party absent manifest error; provided, that the failure of any Lender to make any such notations shall not limit or otherwise affect any Obligations of any Loan Party. The Administrative Agent shall maintain the Register pursuant to Section 12.06(b)(iv), with a subaccount for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Term Loan made hereunder and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent from the Borrowers and each Lender’s share thereof.

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(g) The entries made in the Register and accounts and subaccounts maintained pursuant to Section 2.03(c) and (f) shall, to the extent permitted by Applicable Law, be prima facie evidence (absent manifest error) of the existence and amounts of the obligations of the Borrowers recorded therein; provided, that the failure of any Lender or the Administrative Agent to maintain such account, such Register or such subaccount, as applicable, or any error therein, shall not in any manner affect the obligation of each Borrower to repay (with applicable interest) the Term Loans made to the Borrowers by such Lender in accordance with the terms of this Loan Agreement.

Section 2.04. Pro Rata Borrowings. Each borrowing of Term Loans under this Loan Agreement shall be granted by the Lenders, pro rata on the basis of their Term Loan Commitments. No Lender shall be responsible for any default by any other Lender in its obligation to make Term Loans hereunder, and each Lender shall be obligated to make the Term Loans, as applicable, committed to be made by it hereunder regardless of the failure of any other Lender to fulfill its commitments hereunder.

Section 2.05. Interest.

(a) Subject to Section 2.05(c), the unpaid principal amount of each Term Loan shall accrue interest from the date of the borrowing thereof to but excluding the date of any repayment in full thereof, at a rate per annum equal to the LIBOR Rate in effect hereunder from time to time plus the Applicable Term Loan Margin.

(b) On each Interest Payment Date, interest accrued on each Term Loan shall be payable in cash in arrears.

(c) From and after the occurrence and during the continuance of any Event of Default, the Borrowers shall pay interest on the principal amount of the Term Loans, as applicable, and all other unpaid Obligations, to the extent permitted by Applicable Law, at the rate applicable to such Term Loans pursuant to Section 2.05(a) plus two percent (2%) per annum. Such increase shall apply (i) automatically upon the occurrence and during the continuance of an Event of Default under Section 10.01(a) or Section 10.01(j) and (ii) upon the written election of Required Lenders (or the Administrative Agent acting at the direction of Required Lenders), retroactively from the date of occurrence and during the continuance of any other Event of Default. All such additional interest shall be payable in cash on demand.

(d) All computations of interest hereunder shall be made in accordance with Section 4.06.

(e) The Administrative Agent, upon determining the interest rate for any borrowing of Term Loans, shall promptly notify the Borrowers and the Lenders thereof. Each such determination shall be final and conclusive and binding on all parties hereto absent manifest error.

Section 2.06. Increased Costs, Illegality, etc.

(a) In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Lender, in each case, shall have determined (which determination shall, absent demonstrable error, be final and conclusive and binding upon all parties hereto):

(i) on any date for determining the LIBOR Rate for any Interest Period that (A) deposits in the principal amounts of the Term Loans are not generally available in the relevant market or (B) by reason of any changes arising after the Closing Date affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR Rate; or

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(ii) at any time, after the later of the Closing Date and the date such Person became a Lender hereunder, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Term Loan, including costs arising from Taxes (other than (x) Indemnified Taxes, (y) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (z) Connection Income Taxes) because of (A) any change since the date hereof in any Applicable Law (or in the interpretation or administration thereof and including the introduction of any new Applicable Law), such as, for example, without limitation, a change in official reserve requirements, and/or (B) other circumstances affecting the interbank Eurodollar market or the position of such Lender in such market; or

(iii) at any time, that the making or continuance of any Term Loan has become unlawful by compliance by such Lender in good faith with any Applicable Law (or would conflict with any such Applicable Law), or has become impracticable as a result of a contingency occurring after the date hereof that materially and adversely affects the interbank Eurodollar market,

then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice to the Borrowers and the Administrative Agent of such determination, which notice the Administrative Agent shall promptly transmit to each of the Lenders. Thereafter (A) in the case of clause (i) above, Term Loans shall no longer accrue interest with reference to the LIBOR Rate pursuant to Section 2.05(a) and, in lieu thereof, shall accrue interest under Section 2.05(a) at a rate per annum equal to the Prime Rate plus the Applicable Term Loan Margin minus the lesser of (1) 100 basis points and (2) the difference between the Prime Rate and the last available LIBOR Rate, until such time as the Administrative Agent notifies the Borrowers, the Collateral Agent and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when it becomes aware that such circumstances no longer exist), (B) in the case of clause (ii) above, the Borrowers shall pay to such Lender, within five (5) Business Days after receipt of written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its reasonable discretion shall determine) as shall be required to compensate such Lender or its parent for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrowers by such Lender shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (C) in the case of clause (iii) above, the Borrowers shall take the actions specified by Applicable Law as promptly as possible and, in any event, within the time period required by Applicable Law. Administrative Agent or any such Lender shall be required to provide written notice of any of the foregoing events not later than 180 days after knowledge thereof, provided that to the extent any such increased costs are applied retroactively to any Lender, such 180-day period shall be extended to include any such period of retroactive effect.

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(b) If at any time that the Administrative Agent determine (which determination shall be conclusive absent manifest error) a specific date after which LIBOR Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent shall, upon consultation with the Borrower, endeavor to establish an alternate rate of interest to LIBOR that gives due consideration to the then prevailing market convention for determining a rate of interest for loans similar to the Term Loans in the United States at such time, and shall enter into an amendment to this Loan Agreement to reflect such alternate rate of interest and such other related changes to this Loan Agreement as may be applicable. Notwithstanding anything to the contrary in Section 12.01, such amendment shall become effective without any further action or consent of any other party to this Loan Agreement (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Term Loan Margin).

(c) If, after the later of the date hereof and the date such entity becomes a Lender hereunder, the adoption of any Law, rule, guideline, request or directive (including, regardless of the date enacted, adopted or issued, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act, and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives 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)), whether or not having the force of law, regarding capital adequacy, or any change to any such Law, rule, guideline, request or directive, or any change in the interpretation or administration of any such Law rule, guideline, request or directive by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by a Lender (or its lending office) or its parent with any request or directive made or adopted after such date regarding capital adequacy (whether or not having the force of law) of any such authority, association, central bank or comparable agency, has the effect of reducing the rate of return on such Lender’s or its parent’s capital or assets as a consequence of such Lender’s commitments or obligations hereunder to a level below that which such Lender or its parent could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s or its parent’s policies with respect to capital adequacy), then within five (5) Business Days after receipt of written demand by such Lender (with a copy to the Administrative Agent), the Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent for such reduction; provided, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the date hereof or the later date on which it becomes a Lender, as the case may be. Each Lender (on its own behalf), upon determining in good faith that any additional amounts will be payable pursuant to this Section 2.06(c), will, as promptly as practicable upon ascertaining knowledge thereof, give written notice thereof to the Borrowers, which notice shall set forth in reasonable detail the basis of the calculation of such additional amounts. The failure or delay to give any such notice with respect to a particular event shall not release or diminish any of each Borrower’s obligations to pay additional amounts pursuant to this Section 2.06(c) for amounts accrued or incurred prior to the date that such notice with respect to such event is actually given, unless such notice is given more than 180 days (or such longer period based on any retroactive effect as described in Section 2.06(a)) after Lender has knowledge of any such event.

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Section 2.07. Compensation. If (a) any payment of principal of a Term Loan is made by either Borrower to or for the account of a Lender other than on the last day of the Interest Period for such Term Loans as a result of a payment pursuant to Sections 2.03, 4.01 or 4.02, as a result of acceleration of the maturity of the Term Loans pursuant to Article X or for any other reason, or (b) any prepayment of principal of a Term Loan is not made as a result of a withdrawn notice of prepayment pursuant to Sections 4.01 or 4.02, the Borrowers shall within five (5) Business Days after receipt of a written request by such Lender (which request shall set forth in reasonable detail the basis for requesting such amount), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that such Lender may reasonably incur as a result of such payment or failure to prepay, including any loss, cost or expense (excluding loss of anticipated profits) actually incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Term Loan.

Section 2.08. Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Sections 2.06(a)(ii), 2.06(a)(iii), or 4.04 with respect to such Lender, it will, if requested by the Borrowers use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Term Loans affected by such event if, in the judgment of such Lender, such designation will eliminate or reduce amounts payable pursuant to Sections 2.06(a)(ii), 2.06(a)(iii) or 4.04, as the case may be, in the future; provided, that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage or unreimbursed costs, with the object of avoiding the consequence of the event giving rise to the operation of any such Section. Nothing in this Section 2.08 shall affect or postpone any of the obligations of either Borrower or the right of any Lender provided in Sections 2.06 or 4.04.

Section 2.09. Right of First Offer.

(a) In connection with any Permitted Acquisition which is financed with debt (“Acquisition Debt”), the Lenders shall be offered the first opportunity, prior to the Borrowers soliciting from, offering opportunities or accepting offers to or from any other lender, to provide such Acquisition Debt. The Borrowers shall provide such information as the Lenders may reasonably request in order to permit the Lenders to propose terms for such Acquisition Debt (it being understood and agreed that the delivery requirements in this clause shall be subject to (x) customary access agreements for third party reports and (y) the execution and delivery by the Lenders of a customary confidentiality agreement for all non-Borrower information) to the Lenders as promptly as such materials are available (collectively the “Diligence Materials”). The Lenders shall have five (5) days after receipt of the Diligence Materials to advise the Borrowers, in writing, if they have an interest (which shall not constitute any obligation) to provide such Acquisition Debt (a “Notice of Interest”) and fifteen (15) Business Days after delivery of a Notice of Interest to the Borrowers to make an offer to provide such Acquisition Debt in writing to the Borrowers, which offer will set forth the material terms, and economics of such Acquisition Debt (the “Acquisition Debt Offer”). The Borrowers will in good faith negotiate the terms of the Acquisition Debt Offer. During such negotiation, the Borrowers shall not solicit, offer any opportunities or accept any other offer, to provide such Acquisition Debt to or from any other lenders (the “Exclusivity Period”). Notwithstanding anything set forth in this Section 2.09 to the contrary, if a Notice of Interest is not delivered to Borrowers as and when required hereby, the Lenders rights under this Section 2.09 shall not be exclusive and Borrowers may contact, negotiate with and obtain any such Acquisition Debt from any other Person so long as Borrowers continue to negotiate in good faith with Lenders for the provision of such Acquisition Debt.

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(b) If the Borrowers accept an Acquisition Debt Offer or the parties otherwise negotiate agreed-upon terms for the Acquisition Debt, then, the Borrowers shall use commercially reasonable efforts to consummate the transaction in respect of the Acquisition Debt in accordance with the terms thereof.

(c) If the Borrowers decline the terms of the Acquisition Debt Offer proposed by the Lenders, the Borrowers may seek financing from other lenders (each an “Additional Lender”); provided that, prior to the Borrowers or any Subsidiary of the Borrowers entering into a binding commitment with any Additional Lender in respect of such Acquisition Debt or consummating the funding of such Acquisition Debt by any Additional Lender, the Borrowers shall first have provided the Lenders with a new opportunity to provide such Acquisition Debt on terms no worse than the terms for the Acquisition Debt offered by such Additional Lender. The Borrowers shall provide the Lenders with (A) a written summary of the material terms of any Additional Lender’s bona fide offer to provide such Acquisition Debt and (B) all additional business due diligence materials subject to any required customary access or confidentiality agreement to be executed by the Lenders. The Borrowers agree to negotiate with the Lenders in good faith in respect of any such proposal. For the avoidance of doubt, the Lenders shall not have any obligation hereunder to provide any Acquisition Debt and the incurrence of such Acquisition Debt shall be subject to the terms of this Loan Agreement. Notwithstanding any of the foregoing, any Acquisition Debt, and the ability of the Loan Parties to incur such Acquisition Debt, shall otherwise be subject to the terms of this Loan Agreement.

(d) For the avoidance of doubt, this Section 2.09 shall not apply to the Revolving Credit Facility.

ARTICLE III

FEES, PREMIUMS AND COMMITMENT TERMINATIONS

Section 3.01. Fees. In addition to any fees and expenses described in this Loan Agreement and in any other Loan Document, the Borrowers agree to pay to the Administrative Agent and each Lender, as applicable, all the fees set forth in the Fee Letter.

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Section 3.02. Prepayment Premiums. Upon the occurrence of a Prepayment Premium Trigger Event, the Borrower shall pay to the Administrative Agent, for the account of the Lenders, the Prepayment Premium. Notwithstanding anything to the contrary in this Loan Agreement or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default (including by operation of law or otherwise), the Prepayment Premium, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Term Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein. Any Prepayment Premium payable pursuant to this Section 3.02 shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Prepayment Premium Trigger Event, and the Borrower and Guarantors agree that it is reasonable under the circumstances currently existing. The Prepayment Premium, if any, shall also be payable in the event the Obligations (and/or this Loan Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. TO THE EXTENT PERMITTED BY LAW, THE BORROWER AND GUARANTORS EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. The Borrower and Guarantors expressly agree that (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 3.02, (E) their agreement to pay the Prepayment Premium is a material inducement to the Lenders to provide the Commitments and make the Term Loans, (F) the Prepayment Premium represents a good faith, reasonable estimate of liquidated damages (including without limitation a calculation of the lost profits or other damages, and are a proportionate quantification of the actual loss of the anticipated stream of interest payments upon an early prepayment or acceleration of the Term Loans) of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Prepayment Premium Trigger Event for various reasons (including, without limitation, because such damages would depend on, among other things, (1) when the Term Loans might otherwise be repaid and (2) future changes in interest rates which are not readily ascertainable on the Closing Date), (G) the Prepayment Premium represents additional consideration for providing the Term Loans, and (H) the Prepayment Premium is not a penalty to punish the Borrower for their early prepayment of the Term Loans or for the occurrence of any Event of Default or acceleration.

Section 3.03. [Reserved].

Section 3.04. Termination of Commitments. The obligation of each Lender to make its respective Term Loan to the Borrowers pursuant to Section 2.01 shall terminate upon the full disbursement of the Term Loans on the Closing Date.

ARTICLE IV

PAYMENTS

Section 4.01. Voluntary Prepayments.

(a) The Borrowers shall have the right to prepay Term Loans, at any time after the Closing Date, in whole or in part from time to time on the following terms and conditions:

(i) as a specifically negotiated requirement, additional consideration for providing the Term Loans, and an important economic provision upon which the Agents and the Lenders are relying, the Borrowers shall deliver to the Administrative Agent written notice of the Borrower’s intent to make such prepayment and the amount of such prepayment, no more than twenty (20) Business Days (and if such shorter period of time, no less than three (3) Business Days, subject to the requirements of Section 4.01(a)(ii) below) prior to the date of such prepayment, specifying the date on which such prepayment is to be made;

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(ii) a notice delivered pursuant to Section 4.01(a)(i) shall be irrevocable, shall include or be accompanied by a certification of an Authorized Officer of the Borrower that the prepayment is being made pursuant to and in compliance with all provisions of Section 4.01(a), and shall obligate the Borrower to prepay the amount specified in such notice on the date specified therein together with accrued interest thereon and the applicable Prepayment Premium, if any, all of which shall become due and payable on the prepayment date set forth in such notice; provided that notwithstanding the foregoing any such voluntary prepayment occurring as a result of a Change of Control, a refinancing of the Obligations or the closing of any other transaction may be conditional upon the closing of any such transaction;

(iii) each partial prepayment of any Term Loans shall be in a multiple of $50,000 and in an aggregate principal amount of at least $250,000;

(iv) each prepayment of Term Loans pursuant to this Section 4.01 on any day other than the last day of the applicable Interest Period shall be subject to compliance by the Borrowers with the applicable provisions of Section 2.07; and

(v) on the date of prepayment of any Term Loan pursuant to this Section 4.01, the Borrowers shall pay to the Administrative Agent, for the benefit of the Lenders, the applicable Prepayment Premium, if any.

(b) Each prepayment pursuant to this Section 4.01 shall be applied first, on a pro rata basis to the remaining scheduled installments of the Term Loans (other than the payment due on the Maturity Date) until paid in full and, then to the installment of the Term Loans due on the Maturity Date, and shall be made, in each case, pro rata among the applicable Lenders, until paid in full.

Section 4.02. Mandatory Prepayments.

(a) The Borrowers shall prepay the Term Loans in accordance with the following:

(i) Concurrently with the incurrence of any Indebtedness by any Loan Party or any of its Subsidiaries (other than Indebtedness permitted under Section 9.01), the Borrowers shall prepay the Term Loans together with the applicable Prepayment Premium (if any) in an amount equal to one hundred percent (100%) of the applicable Net Debt Proceeds, to be applied as set forth in Section 4.02(b). Nothing in this Section 4.02(a)(i) shall be construed to permit or waive any Default or Event of Default arising from any incurrence of Indebtedness not permitted under the terms of this Loan Agreement.

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(ii) Within three (3) Business Days of the receipt by any Loan Party or any of its Subsidiaries of any proceeds from any Disposition (other than any Disposition permitted under Section 9.04 (other than clause (b) thereof) the Borrowers shall prepay the Term Loans together with the applicable Prepayment Premium (if any) in an amount equal to one hundred percent (100%) of the Net Disposition Proceeds from such Disposition in excess of $250,000, to be applied as set forth in Section 4.02(b); provided, however, that the Borrowers may, at their option by written notice to the Administrative Agent on or prior to the date of the Disposition giving rise to such Net Disposition Proceeds, within one hundred eighty (180) days after such event, reinvest or commit to reinvest such Net Disposition Proceeds in assets to be used in the business of the Borrowers so long as (A) the aggregate amount of Net Disposition Proceeds reinvested by the Borrowers at any time after the Closing Date pursuant to this clause (ii) shall not exceed $250,000 during any fiscal year, (B) no Event of Default has occurred and is continuing, and each Borrower certifies in writing to the Administrative Agent that no Event of Default has occurred and is continuing and (C) such Net Disposition Proceeds are held in an account subject to an Account Control Agreement while awaiting reinvestment; provided further, that, if such Net Disposition Proceeds are committed to be reinvested within such one hundred eighty (180) day period, such Net Disposition Proceeds shall actually be reinvested within an additional one hundred eighty (180) day period. Nothing in this Section 4.02(a)(ii) shall be construed to permit or waive any Default or Event of Default arising from any Disposition not permitted under the terms of this Loan Agreement.

(iii) Within three (3) Business Days of the receipt by any Loan Party or any of its Subsidiaries of any proceeds from any Casualty Event, the Borrowers shall prepay the Term Loans in an amount equal to one hundred percent (100%) of such Net Casualty Proceeds, to be applied as set forth in Section 4.02(b); provided, however, that the Borrowers may, at their option by written notice to the Administrative Agent no later than thirty (30) days following the occurrence of the Casualty Event resulting in such Net Casualty Proceeds, apply such Net Casualty Proceeds to the rebuilding or replacement of such damaged, destroyed or condemned assets or property so long as such Net Casualty Proceeds are in fact used or are committed to be used to rebuild or replace the damaged, destroyed or condemned assets or property within one hundred eighty (180) days following the receipt of such Net Casualty Proceeds, with the amount of Net Casualty Proceeds not so used after such period to be applied as set forth in Section 4.02(b); so long as (A) the aggregate amount of Net Casualty Proceeds reinvested by the Borrowers at any time after the Closing Date pursuant to this clause (iii) shall not exceed $500,000 during any fiscal year, (B) no Event of Default has occurred and is continuing, and each Borrower certifies in writing to the Administrative Agent that no Event of Default has occurred and is continuing and (C) such Net Casualty Proceeds are held in an account subject to an Account Control Agreement while awaiting reinvestment; provided further, that, if such Net Casualty Proceeds are committed to be reinvested within such one hundred eighty (180) day period, such Net Casualty Proceeds shall be actually reinvested within an additional one hundred eighty (180) days. Nothing in this Section 4.02(a)(iii) shall be construed to permit or waive any Default or Event of Default arising, directly or indirectly, from any Casualty Event.

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(iv) Within three (3) Business Days of the receipt by any Loan Party or any of its Subsidiaries of (A) any Net Equity Proceeds from the issuance of any Capital Stock (other than from an Equity Cure Investment which is covered by clause (B) below) in excess of $250,000 during any fiscal year (other than (w) Net Equity Proceeds received in connection with Permitted Acquisitions and Consolidated Capital Expenditures, (x) Qualified Capital Stock issued in connection with any employee stock option plan or employee incentive plan to employees or Affiliates of the Borrowers, (y) Net Equity Proceeds received from the issuance of Capital Stock by Parent to ‎Capital Park Group or any other equityholder of Parent or their respective Controlled Investment Affiliates as of the Closing Date or (z) Net Equity Proceeds received from the issuance of Capital Stock by Holdings to PrefCo or any other existing shareholder of Holdings (other than in connection with an Equity Cure Investment)), or (B) any Net Equity Proceeds from any Equity Cure Investment, the Borrowers shall prepay the Term Loans together with the applicable Prepayment Premium, in an amount equal to one hundred percent (100%) of such Net Equity Proceeds, to be applied as set forth in Section 4.02(b). Nothing in this Section 4.02(a)(iv) shall be construed to permit or waive any Default or Event of Default arising, directly or indirectly, from any such issuance of Capital Stock.

(v) Within three (3) Business Days of the receipt by or on behalf of any Loan Party or any Subsidiary of any Loan Party of any Extraordinary Receipts, the Borrowers shall prepay the Term Loans in an amount equal to one hundred percent (100%) of such Extraordinary Receipts in excess of $250,000, to be applied as set forth in Section 4.02(b).

(vi) For each fiscal year of the Borrowers, commencing with the fiscal year ending December 31, 2020, on the date on which annual financial statements are required to be delivered pursuant to Section 8.01(c) for such fiscal year, the Borrower shall deliver to the Administrative Agent a written calculation of Consolidated Excess Cash Flow for the applicable fiscal year, certified by an Authorized Officer of the Borrower, and prepay the Term Loan in amounts equal to the Term Loan ECF Percentage, of Consolidated Excess Cash Flow for such fiscal year; provided that all voluntary prepayments of the Term Loans paid in cash, prior to the date of any prepayment made pursuant to this Section 4.02(a)(vi) (but without duplication of any such payments made in prior periods that reduced any payment required to be made under this Section 4.02(a)(vi) with respect to a prior fiscal year) will reduce the amount of prepayments required to be made pursuant to this subsection (vi) on a dollar-for-dollar basis. Calculations of amounts payable under this Section 4.02(a)(vi) shall be based on the annual financial statements for Holdings and its Subsidiaries for the applicable fiscal year. Prepayments of Term Loans under this Section 4.02(a)(vi) shall be applied, in each case, first, on a pro rata basis to the remaining scheduled installments of the Term Loans (other than the payment due on the Maturity Date) until paid in full and, then to the installment of the Term Loans due on the Maturity Date, on a dollar for dollar basis, and shall be made, in each case, pro rata among the applicable Lenders.

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(vii) Notwithstanding anything to the contrary herein, immediately upon any acceleration of any Obligations pursuant to Section 10.02, (whether before, during or after the commencement of any proceeding under the Bankruptcy Code involving any Borrower or any other Loan Party), the Borrowers shall immediately repay all the Term Loans together with the applicable Prepayment Premium, unless only a portion of all the Term Loans is so accelerated (in which case the portion so accelerated shall be so repaid together with the applicable Prepayment Premium). The parties hereto acknowledge and agree that the Prepayment Premium referred to in this Section 4.02(a)(vii) (i) is additional consideration for providing the Term Loans, (ii) is a material inducement to the Lenders to make the Term Loans, (iii) is reasonable and is the product of an arm’s length transaction between sophisticated parties ably represented by counsel, (iv) constitutes reasonable liquidated damages to compensate the Lenders for (and is a proportionate quantification of) the actual loss of the anticipated stream of interest payments upon an early prepayment of the Term Loans (such damages being otherwise impossible to ascertain or even estimate for various reasons, including, without limitation, because such damages would depend on, among other things, (x) when the Term Loans might otherwise be repaid and (y) future changes in interest rates which are not readily ascertainable on the Closing Date), and (v) is not a penalty to punish the Borrowers for their early prepayment of the Term Loans or for the occurrence of any Event of Default.

(viii) Concurrently with any Change of Control, the Borrowers shall repay all the Term Loans together with the applicable Prepayment Premium.

(ix) Notwithstanding any other provisions of Section 4.01(a)(ii), (iii) or (v), (i) to the extent that any of or all the Net Disposition Proceeds from a Disposition by a Foreign Subsidiary or Net Casualty Proceeds or Extraordinary Receipts received by a Foreign Subsidiary are prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Cash Proceeds, Net Casualty Proceeds or Extraordinary Receipts so affected will not be required to be applied to repay Term Loans at the times provided in this Section 4.01(a)(ii), (iii) or (v), as applicable, but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Borrowers hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds, Net Casualty Proceeds or Extraordinary Receipts is permitted under the applicable local law, an amount equal to such Net Cash Proceeds, Net Casualty Proceeds or Extraordinary Receipts that is permitted to be repatriated will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to Section 4.01(a)(ii), (iii) or (v), as applicable, to the extent provided herein and (ii) to the extent that the Borrower Representative has determined in good faith that repatriation of any of or all the Net Disposition Proceeds from a Disposition by a Foreign Subsidiary or Net Casualty Proceeds or Extraordinary Receipts received by a Foreign Subsidiary would have materially adverse tax consequences to the Borrowers with respect to such Net Cash Proceeds, Net Casualty Proceeds or Extraordinary Receipts, such Net Cash Proceeds, Net Casualty Proceeds or Extraordinary Receipts so affected will not be required to be applied to repay Term Loans at the times provided in 4.01(a)(ii), (iii) or (v), as applicable, but may be retained by the applicable Foreign Subsidiary. Notwithstanding anything to the contrary, nothing in this Agreement shall be construed to require any Foreign Subsidiary to repatriate cash to the United States.

(b) Application of Payments.

(i) Each payment and prepayment of the Term Loans required by Section 2.03(a) shall be applied as set forth therein.

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(ii) Voluntary prepayments shall be applied as set forth in Section 4.01(b), and, except as set forth in Section 4.02(c), each payment and prepayment of Term Loans required by Section 4.02 (other than any prepayment of Term Loans required by Section 4.02(a)(vi) which shall be applied as set forth therein), and any other amount that the Administrative Agent receives from any Person as a result of a provision in any Loan Document requiring that such amount be paid to the Administrative Agent shall be applied first, on a pro rata basis to the remaining scheduled installments of the Term Loans (other than the payment due on the Maturity Date) until paid in full and then to the installment of the Term Loans due on the Maturity Date, on a dollar for dollar basis and shall be made, in each case, pro rata among the applicable Lenders, until paid in full and finally to any other outstanding Obligations until paid in full; provided, that the Borrowers shall pay all amounts, if any, required to be paid pursuant to Section 2.07 with respect to prepayments of Term Loans made on any date other than the last day of the applicable Interest Period. Each such prepayment shall be accompanied by all accrued interest on the Term Loans so prepaid, through the date of such prepayment, and, to the extent applicable (and whether before, during or after acceleration of the Term Loans and/or the occurrence of any Event of Default and/or the commencement of any proceeding under the Bankruptcy Code involving any Borrower or any other Loan Party), the Prepayment Premium.

(c) Application of Collateral Proceeds. Notwithstanding anything to the contrary in Section 4.01 or this Section 4.02, all proceeds of Collateral received by the Collateral Agent, the Administrative Agent, a Lender or any other Person pursuant to the exercise of remedies against the Collateral, and all payments received upon and after the acceleration of any of the Obligations, shall be applied as follows:

(i) first, to pay any and all costs, fees, and expenses of, and any indemnity payments then due to, the Agents under the Loan Documents, until paid in full;

(ii) second, ratably to pay any costs, fees (including, without limitation, any Prepayment Premium payable pursuant to Section 3.02, Section 4.02(a) and Section 10.02), and any other applicable premiums in respect of the Term Loan, and expenses of, and any indemnity payments then due to, any of the Lenders under the Loan Documents, until paid in full;

(iii) third, ratably to the Lenders to pay interest due in respect of the outstanding Term Loan until paid in full;

(iv) fourth, ratably to the Lenders to pay the outstanding principal balance of the Term Loan in the inverse order of maturity until the Term Loan is paid in full;

(v) fifth, to pay any other Obligations; and

(vi) sixth, to the Borrowers or such other Person entitled thereto under Applicable Law.

Section 4.03. Payment of Obligations; Method and Place of Payment.

(a) The obligations of each Loan Party hereunder and under each other Loan Document are not subject to counterclaim, set-off, rights of rescission, or any other defense of any kind whatsoever (other than defense of payment). Subject to Section 4.04, and except as otherwise specifically provided herein, all payments under any Loan Document shall be made by the Borrowers, without counterclaim, set-off, rights of rescission, or deduction of any kind, to the Administrative Agent for the ratable account of the Secured Parties entitled thereto, not later than 1:00 p.m. on the date when due and shall be made in immediately available funds in Dollars to the Administrative Agent. The Administrative Agent will thereafter cause to be distributed (within one (1) Business Day if payment was actually received by the Administrative Agent at or prior to 1:00 p.m., and within two (2) Business Days if payment was actually received by the Administrative Agent after 1:00 p.m.) like funds relating to the payment of principal or interest or Fees ratably to the Secured Parties entitled thereto.

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(b) For purposes of computing interest or fees, any payments under this Loan Agreement that are made later than 1:00 p.m. on any Business Day shall be deemed to have been made on the next succeeding Business Day. Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall continue to accrue during such extension at the applicable rate in effect immediately prior to such extension.

(c) Pursuant to Section 4.03(a), the Borrowers shall make each payment under any Loan Document by wire transfer to such U.S. account as the Administrative Agent may identify in a written notice to the Borrowers from time to time.

Section 4.04. Taxes.

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

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

(c) Indemnification by the Loan Parties. Without duplication of payments made pursuant to Section 4.04(a), the Loan Parties shall jointly and severally indemnify each Recipient, within thirty (30) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrowers by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

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(d) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within thirty (30) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.06(c)(iii) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 4.04(d).

(e) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 4.04, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment satisfactory to the Administrative Agent.

(f) Status of Lenders.

(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 4.04(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the relevant Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

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

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

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

(w) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (1) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E (as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (2) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E (as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(x) executed copies of IRS Form W-8ECI;

(y) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (1) a certificate to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of either Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (2) executed copies of IRS Form W-8BEN or W-8BEN-E (as applicable); or

(z) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E (as applicable), a U.S. Tax Compliance Certificate and/or other certification documents from each beneficial owner, as applicable;

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

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

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

(g) Treatment of Certain Refunds. If the Administrative Agent or any Lender determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 4.04, it shall pay to the applicable Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses incurred by the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Loan Parties, upon the request of the Administrative Agent or such Lender, shall repay the amount paid over to the Loan Parties (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Loan Parties or any other Person. Notwithstanding anything to the contrary in this paragraph (j), in no event will the Administrative Agent or any Lender be required to pay any amount to the Loan Parties pursuant to this paragraph (j) the payment of which would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the Administrative Agent or such Lender would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid.

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(h) Survival. Each party’s obligations under this Section 4.04 shall survive the resignation or replacement of either or both of the Agents or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments, and the repayment, satisfaction or discharge of all obligations under any Loan Document.

Section 4.05. [Reserved].

Section 4.06. Computations of Interest and Fees. All interest and fees shall be computed on the basis of the actual number of days occurring during the period for which such interest or fee is payable over a year comprised of three hundred sixty (360) days. Payments due on a day that is not a Business Day shall (except as otherwise required by) be made on the next succeeding Business Day and such extension of time shall be included in computing interest and fees in connection with that payment.

Section 4.07. Investment Unit. The Borrower and the Lenders agree that the Term Loans, taken together with the Holdings Common Units held by the Lenders constitute an “investment unit” for purposes of Section 1273(c)(2) of the Code. The Borrower and the Lenders mutually agree that for purpose of the allocation of the issue price of such investment unit among the Loans, the Holdings Common Units held by the Lenders in accordance with Section 1273(c)(2) of the Code and U.S. Treasury Regulation Section 1.1273-2(h), $907,954.40 shall be allocated to the Holdings Common Units held by the Lenders, and neither the Borrower nor the Lenders shall take any position inconsistent with such allocation in any Tax return unless otherwise required by a tax authority or court.

Section 4.08. Debt. Each Borrower and the Lenders agree that: (i) the Term Loans are debt for federal income tax purposes; (ii) the issue price of the Term Loans equals the principal amount of such Term Loans; (iii) such debt instrument is described in Treasury Regulations Section 1.1272-1(c)(2) and therefore is governed by the rules set out in Treasury Regulations Section 1.1272-1(c), including Section 1.1272-1(c)(5), and is not governed by the rules set out in Treasury Regulations Section 1.1275-4; and (iv) they will adhere to this Loan Agreement for federal income tax purposes and not take any action or file any tax return, report or declaration inconsistent herewith unless otherwise required due to a change in law. The inclusion of this Section 4.08 is not an admission by any Lender that it is subject to United States taxation.

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ARTICLE V

CONDITIONS PRECEDENT TO TERM LOANS

The obligation of the Lenders to fund the Term Loans under this Loan Agreement is subject to the satisfaction of, and no Agent or Lender shall have any obligation to take or perform any other action hereunder until the satisfaction of (or waiver in writing by the Administrative Agent) of the following conditions precedent on or before the Closing Date:

Section 5.01. Loan Documents. The Administrative Agent shall have received copies of the following documents, duly executed and delivered by an Authorized Officer of each applicable Loan Party and each other relevant party thereto:

(a) this Loan Agreement;

(b) the Guaranty and Security Agreement;

(c) the Collateral Assignment of Transaction Documents;

(d) Landlord Agreements as of the Closing Date, to the extent required by Section 8.13(b);

(e) each such Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements as are required to perfect the Lien granted to the Collateral Agent in the IP Rights described on Schedule 7.14;

(f) the Fee Letter; and

(g) each other Loan Document.

Section 5.02. Lien and other Searches; Filings.

(a) The Collateral Agent shall have received the results of a search of the UCC filings (or equivalent filings), tax Liens, judgment Liens, bankruptcies and litigations made with respect to each Loan Party, together with copies of the financing statements and other filings (or similar documents) disclosed by such searches, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in all such financing statements and other filings (or similar document) either are Permitted Liens or have been released or will be released on the Closing Date concurrently with the funding of the Term Loans hereunder.

(b) The Collateral Agent shall have received the results of searches of ownership of IP Rights in the United States Patent and Trademark Office and the United States Copyright Office.

(c) The Collateral Agent shall have received evidence in form and substance satisfactory to the Collateral Agent that appropriate UCC (or equivalent) financing statements have been provided for filing in such office or offices as may be necessary or, in the opinion of Collateral Agent, desirable, to perfect and evidence the Collateral Agent’s Liens in and to the Collateral.

Section 5.03. Stock Pledges. All Capital Stock of each Borrower and each of their Subsidiaries shall have been pledged pursuant to the Guaranty and Security Agreement, and the Collateral Agent shall have received all original certificates (if any) representing such Capital Stock accompanied by instruments of transfer and undated stock powers executed in blank.

Section 5.04. Legal Opinions. The Administrative Agent shall have received an executed legal opinion of Locke Lord LLP, counsel to the Loan Parties, which legal opinion shall be addressed to the Administrative Agent, the Collateral Agent and the Lenders and shall be in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel.

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Section 5.05. Secretary’s Certificates. The Administrative Agent shall have received a certificate for each Loan Party, dated the Closing Date, duly executed and delivered by such Loan Party’s secretary or assistant secretary, managing member or general partner, as applicable, as to:

(a) such Person’s Organization Documents, as amended, modified or supplemented as of Closing Date, certified by the appropriate officer or official body of the jurisdiction of organization of such Person;

(b) resolutions of each such Person’s board of directors (or other managing body, in the case of a Person that is not a corporation) then in full force and effect expressly and specifically authorizing, to the extent relevant, all aspects of the Loan Documents applicable to such Person and the execution, delivery and performance of each Loan Document, in each case to be executed by such Person; and

(c) the incumbency and specimen signatures of its Authorized Officers and any other of its officers, managing member or general partner, as applicable, authorized to act with respect to each Loan Document to be executed by such Person, and a list of all officers and directors of the Loan Parties.

Each such certificate shall provide that each Secured Party may conclusively rely thereon until such Secured Party shall have received a further certificate of the secretary, assistant secretary, managing member or general partner, as applicable, of such Person canceling or amending the prior certificate of such Person as provided in Section 8.01(m).

Section 5.06. Other Documents and Certificates. The Administrative Agent shall have received copies of the following documents and certificates, each of which shall be dated the Closing Date and duly executed by an Authorized Officer of each applicable Loan Party, in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:

(a) a certificate of an Authorized Officer of each Borrower, certifying as to such items as reasonably requested by the Administrative Agent, including, without limitation, the following:

(i) the contemporaneous consummation of the Acquisition on the Closing Date in accordance with the Transaction Agreement and all Applicable Laws;

(ii) that attached thereto are true, correct and complete copies of:

(A) the Transaction Agreement and all other Transaction Documents;

(B) the Transition Services Agreement;

(C) the Transitional Distribution Agreement;

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(D) the Transitional Supply Agreement;

(E) the Shared Technology License Agreement;

(F) the Senior Executive Consulting Agreement;

(G) the Preferred Equity Investment Agreement (as in effect on the Closing Date) and all other Preferred Equity Documents;

(H) the Holdings Equity Investment Agreement (as in effect on the Closing Date) and all other Holdings Equity Investment Documents;

(I) the Closing Date IP Contribution Agreement;

(J) the C-PAK Exclusive License; and

(K) all other Material Contracts of the Loan Parties and each other agreement not otherwise delivered pursuant to clauses (A) through (H) or between a Loan Party and any other Affiliate of any Loan Party (other than a Loan Party);

(iii) the receipt of all required consents and approvals of all Governmental Authorities and other third parties with respect to the consummation of the Transactions and the operation of the business of the Loan Parties, and the execution, delivery and performance of the Loan Documents, copies of all of which shall be attached thereto and certified as being true and complete copies thereof;

(iv) that both before and after giving effect to the Transactions, including the borrowing of the Term Loans on the Closing Date and the application of the proceeds thereof, (A) no Default or Event of Default has occurred, (B) no payment default or material default or event of default under, or event that could reasonably be expected to result in the termination of, any Material Contract has occurred, (C) there are no requested, proposed, anticipated or pending modifications to, or expiries or terminations of, any Material Contract that could reasonably be expected to have a Material Adverse Effect;

(v) with respect to all of the Loan Parties, all representations and warranties are true and correct; and

(vi) that all the conditions listed in this Article V have been fully satisfied or, if applicable, waived in writing by the Administrative Agent;

(b) a Perfection Certificate by, and in respect of, each Loan Party;

(c) certificates of good standing with respect to each Loan Party, each dated as of a date no more than fifteen (15) days prior to the Closing Date, such certificates to be issued (i) by the appropriate officer or official body of the jurisdiction of organization of such Loan Party, and (ii) the appropriate officer or official body of the other jurisdictions where such Loan Party is qualified to do business as a foreign entity (except for such jurisdictions where failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect), each of which certificates shall indicate that such Loan Party is in good standing in the applicable jurisdiction; and

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(d) a calculation or other written statement describing in detail the proposed use of the proceeds of the Term Loans, including all transaction fees, costs and expenses incurred and estimated as of the Closing Date in connection with this Loan Agreement and the Transactions, whether or not actually paid in cash on the Closing Date.

Section 5.07. Solvency. The Administrative Agent shall have received a Solvency Certificate duly executed by an Authorized Officer of Holdings on behalf of the Borrowers confirming the Solvency of the Loan Parties and their Subsidiaries, taken as a whole, after giving effect to the Transactions.

Section 5.08. Funding Notice. The Administrative Agent shall have received a written request for funding from an Authorized Officer of each Borrower, delivered to the Administrative Agent by 3:00 p.m. at least five (5) Business Days (or such shorter period, as the Administrative Agent may agree) in advance of the Closing Date.

Section 5.09. Capitalization. The Administrative Agent shall be satisfied with the Loan Parties’ capitalization on the Closing Date, which shall demonstrate an equity investment in Holdings of no less than $10,500,000 as of the Closing Date directly or indirectly held by the Permitted Holders and any existing management and shareholders and management (in form and substance reasonably satisfactory to the Administrative Agent).

Section 5.10. Financial and other Information.

(a) The Administrative Agent shall have received a certificate in form and substance satisfactory to it, dated the Closing Date and duly executed by an Authorized Officer of Holdings on behalf of each Borrower, attaching the following documents and reports (each in form and substance reasonably satisfactory to the Administrative Agent):

(i) the Prior Financial Statements;

(ii) calculations in form and substance satisfactory to the Administrative Agent demonstrating to the Administrative Agent’s satisfaction that the (i) Total Leverage Ratio of the Loan Parties for the last twelve (12) fiscal months ended prior to the Closing Date (the “Closing Date Leverage Test”) does not exceed 2.75:1.00 and (ii) the Consolidated Adjusted EBITDA of Loan Parties for the last twelve (12) fiscal months ended prior to the Closing Date is equal to at least $8,005,600, in each case on a pro forma basis after giving effect to the execution and delivery of this Loan Agreement, the incurrence of the Indebtedness hereunder, and the consummation of the other Transactions and calculated in a manner reasonably satisfactory to Administrative Agent (it being understood that calculations of Consolidated Adjusted EBITDA in substantially the same form as the Consolidated Adjusted EBITDA Calculation shall be satisfactory to the Administrative Agent); and

(iii) projections reasonably requested by Administrative Agent.

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(b) In the certificate delivered pursuant to clause (a), an Authorized Officer of Holdings on behalf of the Borrowers shall certify on behalf of each Borrower (i) that the documents and reports delivered pursuant to clauses (a)(i) through (a)(iii) above and attached to such certificate are true and complete in all material respects as of the Closing Date, (ii) that the projections delivered pursuant to clause (a)(iii) above were prepared in good faith based upon reasonable assumptions and utilizing due care in its preparation, it being understood that the forecasts and projections are subject to uncertainties and contingencies many of which are beyond the Loan Parties’ control and no assurance can be given that any forecast or projections will be realized and that actual results may differ and such differences may be material, and (iii) that the conditions described in clause (a)(ii) are satisfied.

Section 5.11. Insurance. The Collateral Agent shall have received certificates of insurance naming the Collateral Agent on behalf of the Secured Parties as additional insured and naming the Collateral Agent on behalf of the Secured Parties as loss payee, in each case with regard to the insurance required by Section 8.03, in form and substance reasonably satisfactory to the Collateral Agent.

Section 5.12. Payment of Outstanding Indebtedness.

(a) On the Closing Date, the Loan Parties and each of their respective Subsidiaries shall have no outstanding Indebtedness other than the Term Loans and the Indebtedness, if any, listed on Schedule 7.25 or otherwise permitted by Section 9.01, and the Administrative Agent shall have received copies of all documentation and instruments evidencing the discharge of all Indebtedness paid off in connection with the Transactions.

(b) All Liens (other than Permitted Liens) securing payment of any Indebtedness shall have been released, and the Administrative Agent shall have received pay-off letters, form UCC-3 termination statements, releases or terminations of mortgages, intellectual property security agreements and other instruments, all as may be reasonably requested by the Administrative Agent in connection therewith.

Section 5.13. Material Adverse Effect. No “Cream Suds Business MAE” (as defined in the Transaction Agreement) or “Joy Business MAE” (as defined in the Transaction Agreement) shall have occurred since July 1, 2017 and no Material Adverse Effect shall have occurred since the date of the Prior Financial Statements.

Section 5.14. [Reserved].

Section 5.15. [Reserved].

Section 5.16. Fees and Expenses. Each Agent and each Lender shall have received, for its own respective account, (a) all fees and expenses due and payable to such Person under the Fee Letter and (b) the reasonable fees, costs and expenses due and payable to such Person pursuant to Sections 3.01 and 12.05 (including the reasonable and documented fees, disbursements and other charges of counsel) due as of the Closing Date.

Section 5.17. Patriot Act Compliance and Reference Checks. The Administrative Agent shall have received completed background and reference checks with respect to each Loan Party’s senior management and any required Patriot Act compliance, in each case the results of which are satisfactory to the Administrative Agent in its sole discretion (the Administrative Agent hereby acknowledges receipt of such information and such information is satisfactory).

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Section 5.18. [Reserved].

Section 5.19. Banking Moratorium. No banking moratorium has been declared by either federal or state authorities that prohibits the Lenders from funding of the Term Loans.

Section 5.20. Structure and Terms of Acquisition; Transactions.

(a) The Administrative Agent shall have received evidence in form and substance satisfactory to the Administrative Agent that, substantially simultaneously with the making of the Term Loans hereunder, (i) the Acquisition shall have been consummated in accordance with the Transaction Agreement and all material Applicable Law, (ii) all necessary filings, if any, pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, have been made, and all applicable waiting periods thereunder have expired or been terminated, (iii) no provision of the Transaction Agreement shall have been waived, amended, supplemented or otherwise modified in a manner adverse to the Agents or the Lenders, and (iv) no consent to or approval of any such waiver, amendment, supplement or modification shall have been given by either Borrower on terms that are materially adverse to the Agents or the Lenders, in each case without the prior written consent of the Administrative Agent (in its reasonable discretion) and in accordance with all applicable requirements of Applicable Laws.

(b) The Administrative Agent and the Lenders shall be reasonably satisfied with all aspects with the Transactions, including without limitation (i) the capital and corporate structure of the Loan Parties and their respective Subsidiaries after giving effect to the Transactions, and (ii) the terms and provisions of each of the documents relating to the Transactions.

Section 5.21. No Default. No Default or Event of Default shall have occurred and be continuing.

Section 5.22. Representations and Warranties.

All representations and warranties made by each Loan Party herein or in any other Loan Document shall be true and correct, in each case with the same effect as though such representations and warranties had been made on and as of the Closing Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date).

Section 5.23. No Injunctions.

No injunction, writ, restraining order, or other order of any nature restricting or prohibiting, directly or indirectly, the Transactions shall have been issued and remain in force against the Loan Parties, any Agent or any Lender, and there shall be no pending litigation seeking to prohibit, enjoin or prevent any of the Transactions.

Section 5.24. No Adverse Actions.

There shall be no order or injunction or pending litigation in which there is a reasonable possibility of a decision that could reasonably be expected to have a Material Adverse Effect on any of the Loan Parties, or on the Loan Parties and their Subsidiaries taken as a whole.

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Section 5.25. IP Contribution.

C-PAK shall have contributed all IP Rights acquired by C-PAK pursuant to the Transaction Agreement to C-PAK IP (the “Closing Date IP Contribution”) pursuant to a the Closing Date IP Contribution Agreement, and C-PAK and C-PAK IP shall have entered into the C-PAK Exclusive License.

ARTICLE VI

[Reserved]

ARTICLE VII

REPRESENTATIONS AND WARRANTIES

To induce the Agents and the Lenders to enter into this Loan Agreement and the Lenders to make the Term Loans hereunder, each of the Loan Parties, jointly and severally, represents and warrants to the Agents and the Lenders (which representations and warranties the Agents and the Lenders are relying upon as a material inducement to enter into this Loan Agreement) as follows:

Section 7.01. Status. Each Loan Party (a) is a duly organized or formed and validly existing corporation or other registered entity in good standing under the laws of the jurisdiction of its organization and has the corporate or other organizational power and authority to own its property and assets and to transact its business as presently conducted and (b) is duly qualified and authorized to do business, and is in good standing, in all jurisdictions where it does business or owns assets, except in the case of clause (b) where the failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect.

Section 7.02. Power and Authority; Execution and Delivery. Each Loan Party has the corporate or other organizational power and authority to execute, deliver and carry out the terms and provisions of the Loan Documents to which it is a party (including, in the case of each Borrower, such power and authority to borrow the Term Loans as contemplated herein, in the case of the Guarantors, to guaranty the Obligations as contemplated by the Guaranty and Security Agreement, and in the case of all Loan Parties, to grant the Liens contemplated by this Loan Agreement and the other Security Documents) and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party. Each Loan Party has duly executed and delivered the Loan Documents to which it is a party.

Section 7.03. Enforceability. This Loan Agreement and the other Loan Documents to which each Loan Party is a party constitutes the legal, valid and binding obligation of such Loan Party, enforceable against each such Loan Party in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization, other similar laws relating to or affecting creditors’ rights generally and general principles of equity.

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Section 7.04. No Violation. The execution, delivery and performance by the Loan Parties of this Loan Agreement and the other Loan Documents to which it is a party, the compliance with the terms and provisions hereof and thereof, and the consummation of the Transactions and the other transactions contemplated hereby, do not and will not (i) conflict with, contravene or violate any provision of any Applicable Law, (ii) violate any order or decree of, or require any authorization, consent, approval, exemption or other action by or notice to, any Governmental Authority, (iii) conflict with, result in a breach of any of the terms, covenants, conditions or provisions of, constitute a default under, otherwise result in the termination of or a termination right under (x) any indenture, note, loan agreement or other financing or security agreement with respect to Indebtedness in an amount in excess of $1,000,000 or (y) any other Material Contract, (iv) result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of any Loan Party (other than Liens created under the Loan Documents or any other Permitted Liens) or (v) violate any provision of the Organization Documents or any material Permit of any Loan Party.

Section 7.05. Approvals, Consents, etc. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person, and no consent or approval under any contract or instrument (other than (a) those that have been duly obtained or made and which are in full force and effect or, if not obtained or made, individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect, (b) the filing of UCC financing statements, (c) any Hart-Scott-Rodino filing, if any, and (d) the filings or other actions necessary to perfect Liens under the Loan Documents) is required for the consummation of the Transactions or the due execution, delivery or performance by any Loan Party of any Loan Document to which it is a party, or for the due execution, delivery or performance of the Loan Documents, in each case by any of the Loan Parties party thereto. There is no judgment, order, injunction or other restraint issued or filed with respect to the transactions contemplated by the Loan Documents, the consummation of the Transactions, the making of any Term Loan or the performance by any Loan Party of its Obligations under the Loan Documents.

Section 7.06. Use of Proceeds; Regulations T, U and X. The Borrowers will use the proceeds of the Term Loans solely for the purposes set forth in, as permitted by, and in accordance with Section 8.12 and Section 9.20. No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying “margin stock” or “margin securities” within the meanings of Regulations T, U or X, and no proceeds of any Term Loan will be used to purchase or carry any margin stock or margin security or otherwise for a purpose which violates or would be inconsistent with Regulations T, U or Regulation X.

Section 7.07. Investment Company Act; Etc. No Loan Party is, or after giving effect to the Transactions and the other transactions contemplated under the Loan Documents will be, (i) an “investment company” or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, or (ii) subject to the Federal Power Act, the Interstate Commerce Act, or any other Law limiting its ability to incur any of its respective obligations hereunder or under any of the other Loan Documents.

Section 7.08. Litigation, Labor Controversies, etc. Except as disclosed on Schedule 7.08 in the case of clause (ii) only, there is no pending or, to the knowledge of any Loan Party, threatened in writing, litigation, action, proceeding or labor controversy (including without limitation, strikes, lockouts or slowdowns) against or involving any of the Loan Parties or any of their respective Subsidiaries which (i) purports to affect the legality, validity or enforceability of any Loan Document, any Transaction Document or any of the Transactions, (ii) the amount of which could reasonably be expected to result in liability of $250,000 (or its equivalent in another currency or currencies) or more, in the aggregate, for any Loan Party or Subsidiary of any Loan Party, individually or collectively, that the Agent has not been previously notified of pursuant to Section 8.01(h)(ii) hereof, or (iii) could reasonably be expected to have a Material Adverse Effect.

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Section 7.09. Capitalization; Subsidiaries.

(a) The “Capitalization and Subsidiaries Schedule” attached hereto as Schedule 7.09 sets forth all issued and outstanding Capital Stock of each Loan Party, including the number of authorized, issued and outstanding shares or other units of Capital Stock of each Loan Party and the holders of such Capital Stock, all on and as of the Closing Date. Each outstanding share or unit of Capital Stock of each Loan Party have been duly authorized, validly issued, are fully paid and non-assessable and have not been issued in violation of any preemptive or similar rights created by applicable Law, any Loan Party’s Organization Documents or by any agreement to which any Loan Party is a party or by which it is bound, and have been issued in compliance with applicable federal and state securities or “blue sky” Laws. All issued and outstanding Capital Stock of each Loan Party is free and clear of all Liens (except for the benefit of the Secured Parties and Liens permitted under Section 9.02(b)). No Loan Party has outstanding any Capital Stock convertible or exchangeable for any shares of its Capital Stock or any rights or options to subscribe for or to purchase its Capital Stock convertible into or exchangeable for its Capital Stock. No Loan Party is subject to any obligation (contingent or otherwise) to repurchase or acquire or retire any of its Capital Stock, other than stock repurchases otherwise permitted hereunder. None of the Loan Parties has violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its Capital Stock, and, to the knowledge of any Loan Party, the issuance of the Notes hereunder does not require registration under the Securities Act or any applicable state securities Laws. Except for the agreements listed on Schedule 7.09, there are no agreements among Holdings’ stockholders with respect to the voting or transfer of Holdings’ Capital Stock.

(b) None of the Loan Parties has any Subsidiaries other than the Subsidiaries listed on Schedule 7.09. Schedule 7.09 describes the direct and indirect ownership interest of each of the Loan Parties in each Subsidiary.

Section 7.10. Accuracy of Information.

(a) All written factual information and data at any time furnished by any Loan Party, any of their respective Affiliates or any of their respective representatives to any Agent or any Lender for purposes of or in connection with this Loan Agreement or any of the Transactions (including all information contained in the Loan Documents) is, and all other such written factual information and data hereafter furnished by any Loan Party, any of their respective Affiliates or any of their respective representatives to any Agent or any Lender will be, true, correct and complete in all material respects on the date as of which such information or data is or will be furnished, and none of the factual information or data at any time furnished by any Loan Party, any of their respective Affiliates or any of their respective representatives to any Agent or any Lender for purposes of or in connection with this Loan Agreement or any of the Transactions (including all information contained in the Loan Documents) contains any untrue statement of a material fact or omits to state any material fact necessary to make such information and data, taken as a whole, not materially misleading, in each case, at the time such information and data was furnished in light of the circumstances under which such information or data was furnished; provided that, to the extent any such information or data was based upon or constitutes a forecast or projection, the Loan Parties represent only that such forecast or projection was prepared by the Loan Parties in good faith based upon reasonable assumptions and utilizing due care in its preparation, it being understood that forecasts and projections are subject to uncertainties and contingencies, many of which are beyond the Loan Parties’ control, and no assurance can be given that any forecast or projection will be realized and that actual results may differ and such differences may be material.

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(b) The Budget and pro forma financial information provided to the Administrative Agent on or prior to the Closing Date were prepared in good faith based upon assumptions that were reasonable at the time made and as of the Closing Date, it being recognized by the Administrative Agent and the Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results.

Section 7.11. Financial Condition; Financial Statements. The Prior Financial Statements present fairly in all material respects the financial condition and results of operations of the Consolidated Companies at the respective dates of such information and for the respective periods covered thereby, subject in the case of unaudited financial information to changes resulting from normal year-end audit adjustments and to the absence of footnotes. The Prior Financial Statements have been prepared in a manner consistent with the historical accounting practices of The Procter & Gamble Company with respect to the Cream Suds Business and the Joy Business. For all periods following the Closing Date, all financial information furnished pursuant to Section 8.01 will be prepared in accordance with GAAP consistently applied. All of the financial information to be furnished pursuant to Section 8.01 will present fairly in all material respects the financial position and results of operations of the Loan Parties and their Subsidiaries at the respective dates of such information and for the respective periods covered thereby, subject in the case of unaudited financial information to changes resulting from normal year-end audit adjustments and to the absence of footnotes. Other than with respect to the Term Loans, none of the Loan Parties has, and none of their respective Subsidiaries has, any Indebtedness or other material obligations or liabilities, direct or contingent, that are not reflected in the financial information referenced in Section 5.10 to the extent required to be reflected therein in accordance with GAAP.

Section 7.12. Tax Returns and Payments. Each Loan Party has filed all applicable federal, state and local income Tax returns, and all other material Tax returns, domestic and foreign, required to be filed by them, and has paid all Taxes and assessments payable by them that have become due (whether or not reflected on a Tax return) other than those not yet delinquent or contested in good faith by appropriate proceedings in accordance with Section 9.02(i) and with respect to which the applicable Loan Party has maintained adequate reserves in accordance with GAAP. Each Loan Party and its Subsidiaries has paid, or has provided adequate reserves in accordance with GAAP for the payment of, all applicable federal, state, local and foreign income Taxes applicable for all prior fiscal years and for the current fiscal year. No Tax Lien has been filed.

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Section 7.13. Compliance with ERISA. Each Plan (and each related trust, insurance contract or fund) is in compliance in all material respects with its terms and with ERISA, the Code and all Applicable Laws. No ERISA Event has occurred or is reasonably expected to occur, which, individually or in the aggregate, has resulted or could result in material liability to any Loan Party or any Subsidiary of any Loan Party. Each Plan (and each related trust, if any) that is intended to qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS, including for all required amendments, regarding its qualification thereunder that considers the law changes incorporated in the Plan sponsor’s most recently expired remedial amendment cycle determined under the provisions of Rev. Proc. 2007-44, and nothing has occurred subsequent to the issuance of such determination or opinion letter which could reasonably be expected to prevent, or cause the loss of, such qualification. There has been no violation of the applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of the Code by any fiduciary or disqualified person with respect to any Plan for which any of the Loan Parties or any of their respective Subsidiaries may be directly or indirectly liable. No action, suit, proceeding, hearing, audit or investigation with respect to the administration, operation or the investment of assets of any Plan (other than routine claims for benefits) is pending, expected or threatened and anticipated to result in material liability. No Plan has an Unfunded Current Liability that has resulted or could reasonably be expected to result in material liability to any Loan Party or any Subsidiary of any Loan Party. No employee welfare benefit plan within the meaning of §3(1) or §3(2)(B) of ERISA of any Loan Party or any of their respective Subsidiaries, provides benefit coverage subsequent to termination of employment except as required by Title I, Part 6 of ERISA or applicable state insurance laws. No liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA has been, or is reasonably expected to be, incurred.

Section 7.14. Intellectual Property; Licenses, etc. Each Loan Party and each Subsidiary of each Loan Party owns, or possesses the right to use, all of the trademarks, service marks, trade names, Internet domain names, copyright registrations, issued patents, and other intellectual property rights or applications to register any of the foregoing and all rights to sue or recover at law or in equity for any past, present or future infringement, misappropriation, dilution, violation or other impairment thereof (collectively, the “IP Rights”) that are or could be reasonably necessary for the operation of its respective businesses (the “Material IP Rights”). The conduct and operations of the businesses of each Loan Party and each of its Subsidiaries do not infringe, misappropriate, dilute, or otherwise conflict with or violate any Material IP Rights of any other Person in any material respect. Except as set forth on Schedule 7.14, no Person has challenged in writing any right, title or interest of any Loan Party or any of its Subsidiaries in any Material IP Rights of such Loan Party or Subsidiary. Except as set forth on Schedule 7.14, no Person has contested in writing the use of any Material IP Rights by any Loan Party or Subsidiary or the validity or enforceability of such Material IP Rights or, to the knowledge of the Loan Parties and their Subsidiaries, the use of the Material IP Rights subject to the Transaction Documents by the Seller (as defined in the Transaction Agreement) or the validity and enforceability or chain of title of such Material IP Rights. Except as disclosed on Schedule 7.14, no Loan Party or Subsidiary pays or owes any royalty or other compensation to any Person with respect to any IP Rights. Schedule 7.14 is a complete and accurate list of (i) all IP Rights of each Loan Party and each of its Subsidiaries as of the Closing Date and (ii) all material license agreements or similar arrangements granting IP Rights of another Person to any Loan Party or any of its Subsidiaries (excluding any “shrink wrap” licenses and third-party software licenses generally available to the public at a cost of less than $25,000). As of the Closing Date, none of the IP Rights of any Loan Party or any of its Subsidiaries is subject to any licensing agreement or similar arrangement except as set forth on Schedule 7.14 and all Material IP Rights of the Loan Parties and their Subsidiaries have proper chain of title.

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Section 7.15. Ownership of Properties; Title; Real Property; Leases. Schedule 7.15 lists all of the Real Property owned or leased by any of the Loan Parties or their respective Subsidiaries as of the Closing Date, and each other location leased from or otherwise owned by a third party at which a Loan Party stores any Collateral as of the Closing Date, indicating in each case whether the respective property is owned or leased, the identity of the owner or lessor and the location of the respective property in each case as such Schedule may be updated in accordance with Section 8.13. Each Loan Party owns (a) in the case of material owned Real Property, good, indefeasible and valid fee simple title to such Real Property, (b) in the case of material owned personal property, good and valid title to such personal property, and (c) in the case of material leased Real Property or personal property, valid and enforceable (except as may be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or other laws applicable to creditors’ rights generally and by generally applicable equitable principles) leasehold interests in such leased property, in each case, free and clear of all Liens or claims except for Permitted Liens.

Section 7.16. Environmental Matters.

(a) The Loan Parties, each of their respective Subsidiaries, and each of their respective businesses, operations and Real Property (i) are in compliance with all Environmental Laws in all jurisdictions in which the Loan Parties or such Subsidiary, as the case may be, are currently doing business, and (ii) have obtained and are in compliance with all permits required under Environmental Laws, in each case except any such noncompliance or failure to obtain any such permits which could not reasonably be expected to have a Material Adverse Effect. None of the Loan Parties or any of their respective Subsidiaries has become subject to any pending or, to the knowledge of such Loan Party, threatened in writing, Environmental Claim or any other liability under any Environmental Law which could reasonably be expected to have a Material Adverse Effect.

(b) None of the Loan Parties or any of their respective Subsidiaries or, to the knowledge of any Loan Party, any other Person, has used, managed, handled, generated, treated, stored, transported, Released or disposed of Hazardous Materials in, on, at, under, to or from any currently or formerly owned or leased Real Property or facility relating to its business in a manner that requires or is reasonably expected to require corrective, investigative, monitoring, remedial or cleanup actions under any Environmental Law which could reasonably be expected to have a Material Adverse Effect.

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(c) To the knowledge of the Loan Parties, there are no actions, activities, circumstances, facts, conditions, events or incidents, including the presence of any Hazardous Material, which would be reasonably be expected to form the basis of any Environmental Claim against any Loan Party or any of their respective Subsidiaries which could reasonably be expected to have a Material Adverse Effect.

(d) The Loan Parties have delivered or otherwise made available for inspection to the Administrative Agent true, complete and correct copies and results of all material reports, data, investigations, audits, assessments (including Phase I environmental site assessments and Phase II environmental site assessments) studies, analyses, tests or monitoring in the custody, possession or control of the Loan Parties or any of their Subsidiaries pertaining to: (i) any Environmental Claims involving any Loan Party or any of their Subsidiaries; (ii) any Hazardous Materials in, on, beneath or adjacent to any property currently or formerly owned, operated or leased by any Loan Party or any of their Subsidiaries; or (iii) any Loan Party’s or any of their Subsidiaries’ compliance with applicable Environmental Laws, except any Environmental Claims, Hazardous Materials or noncompliance which could not reasonably be expected to have a Material Adverse Effect.

Section 7.17. Solvency. On the Closing Date after giving effect to the Transactions and the other transactions related thereto, the Loan Parties and their Subsidiaries on a consolidated basis are, Solvent.

Section 7.18. No Default. None of the Loan Parties or any of their respective Subsidiaries is in default under or with respect to, any Contractual Obligation or Material Contract that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 7.19. Security Documents; Perfection. (a) The Guaranty and Security Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable first priority (subject only to Permitted Liens which, pursuant to the terms of this Loan Agreement, are permitted to have priority over Collateral Agent’s Liens thereon) security interest in the Collateral described therein and proceeds thereof.

(b) In the case of the Pledged Stock described in the Guaranty and Security Agreement, when stock certificates representing such Pledged Stock are delivered to the Collateral Agent; in the case of deposit accounts and securities accounts, when Account Control Agreements are executed and delivered by the Loan Parties owning such accounts, the Collateral Agent and the applicable depository bank or securities intermediary; and in the case of the other Collateral described in the Guaranty and Security Agreement, when financing statements and other filings specified on Schedule 7.19 in appropriate form are filed in the offices specified on Schedule 7.19, the Lien granted under the Guaranty and Security Agreement shall constitute a fully perfected Lien on, and first priority (subject only to Permitted Liens which, pursuant to the terms of this Loan Agreement, are permitted to have priority over Collateral Agent’s Liens thereon) security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof (to the extent such proceeds can be perfected by a filing), as security for the Obligations.

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Section 7.20. Compliance with Laws and Permits; Authorizations. Each Loan Party and each of its Subsidiaries (a) is in compliance with all Applicable Laws and Permits and (b) has all requisite governmental licenses, Permits, authorizations, consents and approvals to operate its business as currently conducted, except in such instances in which (x) such requirement of Applicable Laws, Permits, government licenses, authorizations or approvals are being contested in good faith by appropriate proceedings diligently conducted or (y) the failure to have or comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

Section 7.21. No Material Adverse Effect. Since the date of the Prior Financial Statements, there has been no Material Adverse Effect, and there has been no circumstance, event or occurrence, and no fact exists to the actual knowledge of any of the Loan Parties, in each case that could reasonably be expected to result in a Material Adverse Effect.

Section 7.22. Contractual or Other Restrictions. Other than the Loan Documents and the Revolving Loan Documents, no Loan Party or any of its Subsidiaries is a party to any agreement or arrangement or subject to any Applicable Law that (a) limits its ability to pay dividends to, or otherwise make Investments in or other payments to, any Loan Party, (b) limits its ability to grant Liens in favor of the Collateral Agent or (c) otherwise limits its ability to perform the terms of the Loan Documents.

Section 7.23. No Brokers. Except as set forth on Schedule 7.23, no broker’s or finder’s fee or commission will be payable with respect to this Loan Agreement or any of the transactions contemplated hereby.

Section 7.24. Insurance. The properties of each Loan Party are insured with financially sound and reputable insurance companies that are not Affiliates of any Loan Party (other than any deductible or self-insured portion) against loss and damage in such amounts, with such deductibles and covering such risks, as are customarily carried by Persons of comparable size and of established reputation engaged in the same or similar businesses and owning similar properties in the general locations where such Loan Party operates, in each case as described on Schedule 7.24. As of the Closing Date, all premiums with respect thereto that are due and payable have been duly paid and no Loan Party has received or is aware of any notice of any material violation or cancellation thereof and each Loan Party has complied in all material respects with the requirements of each such policy.

Section 7.25. Evidence of Other Indebtedness. Schedule 7.25 is a complete and correct list of each credit agreement, loan agreement, promissory note, indenture, purchase agreement, guaranty, letter of credit or other arrangement providing for or otherwise relating to any Indebtedness or any extension of credit (or commitment for any extension of credit) to any Loan Party outstanding on the Closing Date which will remain outstanding after the Closing Date (other than this Loan Agreement and the other Loan Documents). The aggregate principal or face amount outstanding or that may become outstanding under each such arrangement as of the Closing Date is correctly described in Schedule 7.25.

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Section 7.26. Deposit Accounts, Securities Accounts and Commodity Accounts.

Schedule 7.26 lists as of the Closing Date all of the deposit accounts, securities accounts and commodity accounts of each Loan Party, including, with respect to each depository bank, securities intermediary or commodity intermediary at which such accounts are maintained by such Loan Party, (a) the name and location of such Person and (b) the account numbers of the deposit accounts, securities accounts and commodity accounts maintained with such Person.

Section 7.27. Principal Business. As of the Closing Date and at all times thereafter each Loan Party, other than Holdings, is engaged solely in the Business.

Section 7.28. Absence of any Undisclosed Liabilities. There are no material liabilities of any Loan Party of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, and there is no existing condition, situation or set of circumstances which could reasonably be expected to result in any such liabilities, other than those liabilities provided for or disclosed in the financial statements provided on or prior to the Closing Date or otherwise disclosed in writing to the Administrative Agent.

Section 7.29. Holdings.

(a) Holdings has not engaged in and does not engage in any activity prohibited by Section 9.17, and have not owned and do not own any assets or property prohibited by Section 9.17.

(b) Except as set forth in the Holdings Equity Investment Documents, none of the holders of any Capital Stock of Holdings has a contractual or other right to require Holdings to purchase or redeem any Capital Stock of Holdings.

Section 7.30. Acquisition; Transaction Agreement, Other Related Agreements.

(a) The Borrowers have delivered to the Administrative Agent a complete and correct copy of the Transaction Agreement and each of the other Transaction Documents (including all schedules, exhibits, amendments, supplements, modifications, assignments and all other documents delivered pursuant thereto or in connection therewith). As of the Closing Date, no Loan Party and, to the knowledge of any Loan Party, no other Person party thereto, is in default in any material respect in the performance or compliance with any provisions thereof.

(b) The Acquisition complies in all material respects with all applicable legal requirements, and all necessary governmental, regulatory, shareholder and other material consents and material approvals required for the consummation of the Acquisition have been, or prior to the consummation thereof will be, (i) duly waived or (ii) duly obtained and in full force and effect.

(c) Each of the Transaction Documents is in full force and effect as of the Closing Date, has not been terminated, rescinded or withdrawn, and the Loan Parties’ rights thereunder are fully assignable to the Collateral Agent by any Loan Party that is a party thereto.

(d) The consummation of the Acquisition will not violate in any material respects any statute or regulation of the United States or any other applicable jurisdiction, or any order, judgment or decree of any court or other Governmental Authority, nor will it result in a breach of, or constitute a default under, any material agreement or indenture, or any material order or decree, to which the Loan Parties or any of their Subsidiaries are a party or are subject.

(e) As of the Closing Date, no Loan Party has granted a collateral assignment of, or a security interest over, any of the Transaction Documents (other than in favor of the Collateral Agent, for the benefit of the Secured Parties), and no Loan Party has sold, transferred or assigned any Transaction Document to any Person. As of the Closing Date, no Transaction Document has been modified, amended, altered or changed in any manner adverse to the Lenders, and all such material modifications, amendments, alterations and changes (whether or not adverse to the Lenders) have been provided in writing to the Lenders.

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Section 7.31. Anti-Terrorism Laws; The Patriot Act. No Loan Party is in violation of any Law relating to terrorism or money laundering (“Anti-Terrorism Laws”), including the Patriot Act, the Trading with the Enemy Act of the United States of America (50 U.S.C. App. §§1 et seq.), as amended (the “Trading with the Enemy Act”), the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended), and Executive Order No. 13224 on Terrorism Financing, effective September 24, 2001 (the “Executive Order”). No Loan Party or other agents acting or benefiting in any capacity in connection with the Term Loans is (i) a Person that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order, (ii) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order, (iii) a Person with whom any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, (iv) a Person who commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order, (v) an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act, or (vi) a Person that is named as a “specially designated national and blocked person” on the most current list published by the United States Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list. No Loan Party or other agents acting or benefiting in any capacity in connection with the Term Loans (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Person described in the preceding sentence, (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in any property blocked pursuant to the Executive Order, or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the Anti-Terrorism Laws.

Section 7.32. Economic Sanctions/OFAC.

No Loan Party or any director, officer or employee of any Loan Party, and to the knowledge of any Loan Party no Affiliate, agent or representative of any Loan Party, is, or is owned or controlled by, a Person that is (i) the subject of any economic or financial sanctions or trade embargoes imposed, administered or enforced by any Governmental Authority (“Sanctions”), including those administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC Sanctions”) or (ii) located, organized or conducting business in a country, region or territory that is the subject of any OFAC Sanctions or other Sanctions (each, a “Sanctioned Country”), including, without limitation, Burma/Myanmar, Crimea, Cuba, Iran, North Korea, Sudan and Syria (any such Person referred to in clause (i) or (ii), a “Sanctioned Person”).

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Section 7.33. Foreign Corrupt Practices Act.

No Loan Party or any director, officer or employee of any Loan Party, and to the knowledge of any Loan Party no Affiliate, agent or representative of any Loan Party, has taken any action in violation of Applicable Law in furtherance of an offer, payment, promise to pay or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or a government-owned, government-controlled or other quasi-governmental entity or of a public international organization, or any Person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage, and each Loan Party has conducted its businesses in compliance in all material respects with applicable anti-corruption laws and has instituted and maintained and will continue to maintain policies and procedures designed to promote and achieve compliance in all material respects with all such laws and with the representation and warranty contained in this Section 7.33.

Section 7.34. Material Contracts; No Hedging Contracts.

(a) Set forth on Schedule 7.34(a) is a list of all Material Contracts of the Loan Parties, showing the parties and any amendments and modifications thereto; provided, however, that Borrowers may from time to time after the Closing Date amend such Schedule 7.34(a) to add additional Material Contracts or remove contracts no longer qualifying as Material Contracts so long as (i) in the case of adding additional Material Contracts, such amendment occurs by written notice to the Administrative Agent as set forth in the first Compliance Certificate required to be delivered after the effectiveness of such contract, (ii) in the case of removing contracts no longer qualifying as Material Contracts, such amendment occurs by written notice to the Administrative Agent promptly after the termination thereof; provided that, no such addition to, or removal from, Schedule 7.34(a) of a Material Contract shall be deemed a waiver of any Default or Event of Default. Each Material Contract (other than those that have expired at the end of their normal terms) (a) is in full force and effect and is binding upon and enforceable against the applicable Loan Party and, to the best of the Loan Parties’ knowledge, each other Person that is a party thereto, in accordance with its terms, (b) has not been otherwise amended or modified (other than amendments or modifications permitted by Section 9.08), and (c) is not in default due to the action or inaction of any Loan Party or, to the knowledge of the Loan Parties, any other party thereto. To the Borrowers’ knowledge, there exists no actual or threatened termination, limitation or modification of any business relationship between any Loan Party or Subsidiary and any customer or supplier, or any group of customers or suppliers, who individually or in the aggregate are material to the Business. To the Borrowers’ knowledge, there exists no condition or circumstance that could reasonably be expected to impair the ability of any Loan Party or Subsidiary to conduct the Business or utilize any Material IP Rights at any time after giving effect to the Acquisition in substantially the same manner as conducted by the Seller (as defined in the Transaction Agreement) and its subsidiaries prior to giving effect to the Acquisition.

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(b) Except as permitted pursuant to this Loan Agreement, there are no Hedging Agreements or similar agreements entered into by, between or applicable to any Loan Party or any of its Subsidiaries.

Section 7.35. Affiliate Transactions. Except as set forth on Schedule 7.35, no Loan Party is a party to any contracts or agreements with any of its Affiliates on terms and conditions which are less favorable to such Loan Party than would be usual and customary in similar contracts or agreements between Persons not affiliated with each other.

Section 7.36. Material Customers. To the knowledge of the Loan Parties, neither the Loan Parties, nor The Proctor & Gamble Company, have received notice from any material customer that such customer has or intends to terminate or otherwise materially alter its customer agreements with The Proctor & Gamble Company in respect of the Joy Business or the Cream Business in a manner that could result in a Material Adverse Effect.

Section 7.37. Collective Bargaining Agreements. Schedule 7.37 is a complete and correct list and description (including dates of termination) of all collective bargaining or similar agreements between or applicable to any Loan Party or any of its Subsidiaries and any union, labor organization or other bargaining agent in respect of the employees of any Loan Party or any of its Subsidiaries.

Section 7.38. Qualified Capital Stock. All Capital Stock issued by the Loan Parties and their Subsidiaries is Qualified Capital Stock.

ARTICLE VIII

AFFIRMATIVE COVENANTS

The Loan Parties hereby covenant and agree that, on the Closing Date and thereafter until the Term Loans, together with interest, Fees and all other Obligations incurred hereunder and under the other Loan Documents (other than Unasserted Contingent Obligations), are paid in full in cash in accordance with the terms of this Loan Agreement, and as inducement for the Agents and the Lenders to enter into this Loan Agreement and upon which the Agents and the Lenders are relying:

Section 8.01. Financial Information, Reports, Certificates and Other Information. The Loan Parties shall furnish to the Administrative Agent and each Lender copies of the following financial statements, reports, notices and information:

(a) Monthly Financial Statements. (i) Commencing with the calendar month ending June 30, 2019 and for each calendar month thereafter prior to the first full calendar month ending after the Initial Accounting Termination Date, within thirty (30) days after the end of each calendar month, a report as of the end of such month in the same form and substance as the Prior Financial Statements or otherwise reasonably satisfactory to the Administrative Agent, certified by an Authorized Officer of Holdings on behalf of the Borrowers as having been prepared in good faith and presenting fairly in all material respects the financial condition and results of operations of the Consolidated Companies at the respective dates of such information and for the respective periods covered thereby and (ii) commencing with the first full calendar month ending after the Initial Accounting Termination Date, within thirty (30) days after the end of each calendar month (A) unaudited (x) consolidated balance sheets of Holdings and its Subsidiaries as of the end of such month, and (y) unaudited consolidated statements of income and cash flow of Holdings and its Subsidiaries as of the end of such month, in each case, including in comparative form (both in Dollar and percentage terms) the figures for the corresponding month in the immediately preceding fiscal year of Holdings, and the year-to-date portion of the immediately preceding fiscal year of Holdings, and (B) a statement of Consolidated Adjusted EBITDA for the year-to-date portion of such fiscal year of Holdings ending concurrently with such month, including, (A) the Consolidated Adjusted EBITDA Calculation and (B) in comparative form (both in Dollar and percentage terms), Consolidated Adjusted EBITDA for the same year-to-date period in the immediately preceding fiscal year.

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(b) Quarterly Financial Statements. Commencing with the first full fiscal quarter ending after the Initial Accounting Termination Date, within forty-five (45) days after the end of each fiscal quarter ended March 31, June 30, September 30 and December 31, in each case, of Holdings, (i) unaudited (x) consolidated balance sheets of Holdings and its Subsidiaries as of the end of such fiscal quarter, and (y) consolidated statements of income and cash flow of Holdings and its Subsidiaries for such fiscal quarter, in each case and for the period commencing at the end of the previous fiscal year of Holdings and ending with the end of such fiscal quarter, including (in the case of each of clause (x) and clause (y) (if applicable)), in comparative form (both in Dollar and percentage terms) the figures for the corresponding fiscal quarter in, and year to date portion of, the immediately preceding fiscal year of Holdings, (ii) a statement of Consolidated Adjusted EBITDA (x) for the year-to-date portion of such fiscal year of Holdings ending concurrently with such fiscal quarter, including (A) the Consolidated Adjusted EBITDA Calculation and (B) in comparative form (both in Dollar and percentage terms) Consolidated Adjusted EBITDA for the same year-to-date period in the immediately preceding fiscal year of Holdings and (y) for the Test Period ending concurrently with such fiscal quarter, including, in comparative form (both in Dollar and percentage terms) Consolidated Adjusted EBITDA for such Test Period against the then current Budget, and for the Test Period immediately preceding such reported period and (iii) a management discussion and analysis (with reasonable detail and specificity) of the results of operations for the fiscal periods reported, including, in comparative form the figures for the corresponding fiscal quarter in, and year-to-date portion of, the immediately preceding fiscal year of Holdings, and period commencing at the end of the previous fiscal year of the Borrowers and ending with the end of such fiscal quarter.

(c) Annual Financial Statements. Commencing with the fiscal year ending December 31, 2019, within one hundred and twenty (120) days after the end of any fiscal year of Holdings (or, solely with respect to the fiscal year ending December 31, 2019, one hundred and eighty (180) days), (i) copies of the consolidated balance sheets of Holdings and its Subsidiaries for such fiscal year, and the related consolidated statements of income and cash flows of Holdings and its Subsidiaries for such fiscal year, and setting forth in comparative form (both in Dollar and percentage terms) the figures for the immediately preceding fiscal year (commencing with the 2020 fiscal year) and against the then-current Budget for such fiscal year, such statements audited and certified without “going concern” or other qualification, exception or assumption, without any explanatory paragraph or paragraph of emphasis with respect to “going concern”, and without qualification or assumption as to the scope of such audit as conducted in accordance with GAAP, by an independent public accounting firm of nationally recognized standing reasonably acceptable to the Administrative Agent (provided that BDO USA, LLP shall be deemed to be acceptable to the Administrative Agent), together with a management discussion and analysis (with reasonable detail and specificity) of the results of operations for the fiscal periods reported and (ii) a statement of Consolidated Adjusted EBITDA for such fiscal year, including (A) the Consolidated Adjusted EBITDA Calculation and (B) in comparative form (both in Dollar and percentage terms) Consolidated Adjusted EBITDA for such fiscal year against the then-current Budget and for the same year-to-date period in the immediately preceding fiscal year.

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(d) Compliance Certificates. Concurrently with the delivery of the financial information pursuant to clauses (b) and (c) above, a Compliance Certificate executed by an Authorized Officer of Holdings on behalf of the Borrowers (i) certifying that such financial information presents fairly in all material respects the financial condition, results of operations and cash flows of Holdings and its Subsidiaries in accordance with GAAP at the respective dates of such information and for the respective periods covered thereby, subject in the case of unaudited financial information, to changes resulting from normal year-end audit adjustments and to the absence of footnotes, (ii) showing compliance with the covenants set forth in Section 9.13 and stating that no Default or Event of Default has occurred and is continuing (or, if a Default or an Event of Default has occurred, specifying the details of such Default or Event of Default and the actions taken or to be taken with respect thereto), (iii) specifying any change in the identity of the Subsidiaries as at the end of such fiscal year or period, as the case may be, from the Subsidiaries listed on Schedule 7.09, or from the most recently delivered Compliance Certificate, as applicable and (iv) including (x) an updated Schedule 7.15, Schedule 7.26, and Schedule 7.34(a) of this Loan Agreement (if applicable) and (y) a written supplement substantially in the form of Schedules 1-5, as applicable, to the Guaranty and Security Agreement with respect to any additional assets and property acquired by any Loan Party after the date hereof if required to update the perfection of Collateral Agent’s Lien with respect to such assets, all in reasonable detail.

(e) Consolidated Excess Cash Flow. On or before the date upon which annual financial statements are required to be delivered pursuant to Section 8.01(c) for each fiscal year, a written calculation of Consolidated Excess Cash Flow for the applicable fiscal year in form reasonably acceptable to the Administrative Agent, certified by an Authorized Officer of each Borrower and in compliance with the requirements of Section 4.02(a)(vi).

(f) Budget. On or prior to the thirtieth (30^th) day of each calendar year (or, solely with respect to the calendar year ending December 31, 2020, on or prior to the forty-fifth (45^th) day of such year), forecasted financial projections for Holdings and its Subsidiaries for the then upcoming fiscal year (on a month-by-month and quarter-by-quarter basis), in each case including projections for Consolidated Capital Expenditures, a projected consolidated balance sheet of Holdings and its Subsidiaries as of the end of the following fiscal year, the related consolidated statements of projected cash flow, projected changes in financial position and projected income and a description of the underlying assumptions applicable thereto, and in each case prepared by management of the Loan Parties in good faith based upon reasonable assumptions, consistent in scope with the financial statements provided pursuant to Section 8.01(c) and setting forth the principal assumptions on which such projections are based (each such projections and the projections delivered as of the Closing Date pursuant to Section 5.10(a)(ii), being referred to as a “Budget”).

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(g) Defaults; Litigation. As soon as possible and in any event (i) within three (3) Business Days after an Authorized Officer of any Loan Party or any of their respective Subsidiaries obtains knowledge thereof, written notice from an Authorized Officer of each Borrower of the occurrence of any event that constitutes a Default or an Event of Default, which notice shall specify the nature thereof, the period of existence thereof, and what action the applicable Loan Parties have taken and propose to take with respect thereto, (ii) within five (5) Business Days after an Authorized Officer of any Loan Party or any of their respective Subsidiaries obtains knowledge thereof, written notice from an Authorized Officer of each Borrower of (1) the occurrence of any material adverse development with respect to any litigation, action, proceeding or labor controversy described in Schedule 7.08, (2) the commencement of any litigation, action, proceeding or labor controversy of the type and the materiality described in Section 7.08, and (3) to the extent the Administrative Agent requests and subject to any attorney client privilege requirements, copies of all documentation related thereto.

(h) Notices. Written notice promptly upon becoming aware of (and in no event later than three (3) Business Days (except for item (iv) below which shall be provided no later than five (5) Business Days) and after an Authorized Officer of any Loan Party becomes aware of) each the following, and copies of all notices and related documents and correspondence with respect to:

(i) any pending or, to the knowledge of an Authorized Officer of a Loan Party, threatened in writing litigation, action, proceeding or other controversy which purports to affect the legality, validity or enforceability of any Loan Document, Transaction Document or any other document or instrument referred to in Section 9.08, which notice shall include a statement of an Authorized Officer of each Borrower specifying the nature thereof and what actions the applicable Loan Parties have taken and propose to take with respect thereto;

(ii) the commencement of, and any material development in, each litigation, investigation or proceeding affecting any Loan Party or any Subsidiary thereof (A) the amount of which, if adversely determined could reasonably be expected to result in liability of $250,000 (or its equivalent in another currency or currencies) or more, in the aggregate, for any Loan Party or Subsidiary of any Loan Party, individually or collectively, (B) in which injunctive or similar relief is sought and which, could reasonably be expected to have a Material Adverse Effect, (C) in which the relief sought is an injunction or other stay of the performance of this Loan Agreement, any other Loan Document or any Transaction Document or (D) which alleges potential violations of any securities laws that could reasonably be expected to result in material liability to any Loan Party or any criminal liability with respect to any Loan Party;

(iii) each pending or, to the knowledge of an Authorized Officer of a Loan Party, threatened in writing labor dispute, strike, walkout, or union organizing activity with respect to any employees of a Loan Party that would reasonably be expected to have a Material Adverse Effect;

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(iv) the discharge, withdrawal or resignation by a Loan Party’s independent accountants and any replacement by nationally recognized accountants or other accountants reasonably acceptable to the Administrative Agent;

(v) the creation or acquisition of any Subsidiary of any Borrower no later than ten (10) Business Days prior to such creation or acquisition;

(vi) each other material notice or notification (other than borrowing notices) given by any Loan Party under the Preferred Equity Investment Agreement, the Holdings Equity Investment Documents, any other Transaction Document, any other Material Contract or any Revolving Loan Document;

(vii) all amendments, consent letters, waivers or modifications to a Loan Party’s Organization Documents that increase or change any payment obligations or which could otherwise be adverse to the Lenders;

(viii) all significant written final reports submitted to a Loan Party or any Subsidiary of a Loan Party by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any final comment letters delivered to management and all responses thereto; and

(ix) all (i) notices submitted or delivered to a Loan Party or any Subsidiary of a Loan Party by a regulatory agency when such notice could reasonably have a Material Adverse Effect and (ii) material reports submitted or delivered to a Loan Party or any Subsidiary of a Loan Party which were prepared by the SEC.

(i) Loan Documents, etc. As soon as possible and in any event within three (3) Business Days after any Loan Party obtains knowledge of the occurrence of a breach or default or termination or notice of termination or intent or threat to terminate by any party under, or material amendment (and copies thereof) entered into by any party to, any Loan Document, any Preferred Equity Documents, any Holdings Equity Investment Documents, any Transaction Document, any other Material Contract, any Revolving Loan Document or any other material agreement between a Loan Party and any other Affiliate of any Loan Party (other than a Loan Party), or any other document or instrument referred to in Section 9.07, a statement of an Authorized Officer of the Borrowers setting forth details of such breach or default or notice of termination or intent or threat to terminate and the actions taken or to be taken with respect thereto and, if applicable, a copy of such amendment.

(j) Management Letters. Promptly upon, and in any event within five (5) Business Days after, receipt thereof, copies of all “management letters” submitted to any Loan Party by the independent public accountants referred to in Section 8.01(c) in connection with each audit made by such accountants.

(k) Reports to SEC and Shareholders. Promptly upon the filing or sending thereof, copies of (a) all regular, periodic or special reports of each Loan Party or any direct or indirect parent of any Loan Party filed with the Securities Exchange Commission and (b) all registration statements of Holdings and each Loan Party filed with the Securities Exchange Commission (other than on Form S-8).

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(l) Bankruptcy, etc. Immediately upon becoming aware thereof, notice (whether involuntary or voluntary) of the bankruptcy, insolvency, reorganization of any Loan Party, or the appointment of any trustee in connection with or anticipation of any such occurrence, or the taking of any step by any Person in furtherance of any such action or occurrence.

(m) Corporate Information. Promptly upon, and in any event within five (5) Business Days after, any change in the identity of the chief executive officer, chief operations officer, chief financial officer or other “C-Level” officers, a certificate, certified to the extent of any change from a prior certification, from the secretary, assistant secretary, managing member or general partner of such Loan Party notifying the Administrative Agent of such information or change and attaching thereto any relevant documentation in connection therewith.

(n) Insurance Report. Substantially concurrently with the delivery of the financial statements provided for in Section 8.01(c), a current report of a reputable insurance broker with respect to insurance policies maintained by the Loan Parties.

(o) Leased Property. Promptly upon, and in any event within five (5) Business Days after, entering into any new material lease in respect of Real Property, a copy of such lease.

(p) Borrowing Base Certificates. Within two (2) Business Days of any borrowing base certificate pursuant to the Revolving Loan Documents (to the extent such Revolving Loan Documents exist), a copy of such borrowing base certificate and any related calculations, reports or exhibits delivered in connection therewith.

(q) Other Information. Promptly, such other information (financial or otherwise) as any Agent on its own behalf or on behalf of any Lender may reasonably request in writing from time to time.

Section 8.02. Books, Records and Inspections. The Loan Parties shall, and shall cause each of their respective Subsidiaries to, maintain proper books of record and account, in which entries that are complete, true and correct in all material respects and are in conformity with GAAP consistently applied shall be made of all material financial transactions and matters involving the assets and business of the Loan Parties or such Subsidiary, as applicable, in accordance with GAAP. The Loan Parties shall, and shall cause each of their respective Subsidiaries to, permit the Administrative Agent and its representatives and independent contractors to visit and inspect and audit any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Loan Parties and (unless an Event of Default then exists) at reasonable times during normal business hours, upon reasonable advance notice to the Loan Parties; provided that (i) unless an Event of Default has occurred and is continuing, the Administrative Agent shall not be permitted to conduct, and, the Loan Parties shall not be required to reimburse the Administrative Agent for, (x) during each year prior to the second anniversary of the Closing Date, more than two (2) such inspections and collateral audits in any calendar year and (y) during each year thereafter, more than one (1) such inspection or collateral audit in any calendar year and (ii) the Administrative Agent shall be permitted to conduct unlimited inspections and audits during any calendar year during the occurrence and continuance of an Event of Default, and the Loan Parties shall reimburse the Administrative Agent for any such inspections. Any information obtained by the Administrative Agent pursuant to this Section 8.02 may be shared with the Collateral Agent or any Lender upon such Person’s request. The Administrative Agent shall give the Loan Parties the opportunity to participate in any discussions with the Loan Parties’ independent public accountants.

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Section 8.03. Maintenance of Insurance. The Loan Parties shall, and shall cause each of their respective Subsidiaries to, maintain in full force and effect at all times (including by paying all applicable premiums), with insurance companies that are financially sound and reputable at the time the relevant coverage is placed or renewed, insurance in at least such amounts and against at least such risks (and with such risk retentions) as reasonably determined by the Loan Parties in the exercise of reasonable business judgment , and in any case insuring against casualty, general liability, product liability, employment practices liability, business interruption, errors and omissions, and “D&O” insurance. The Loan Parties shall furnish to the Collateral Agent for further delivery to the Lenders, upon written request from the Collateral Agent, information presented in reasonable detail as to all such insurance so carried, and in any case including, without limitation, (i) endorsements to (x) all “All Risk” and business interruption policies naming the Collateral Agent, on behalf of the Secured Parties, as loss payee, and (y) all general liability, product liability, employment practices liability, other liability, and errors and omissions policies naming the Agents, the Lenders and the other Secured Parties as additional insureds, and (ii) legends providing that no cancellation, material reduction in amount or material change in insurance coverage thereof shall be effective until at least thirty (30) days (ten (10) days with respect to failing to pay premiums) after receipt by the Collateral Agent of written notice thereof.

Section 8.04. Payment of Taxes and Liabilities. Each Loan Party shall pay and discharge, and shall cause each of its Subsidiaries to pay and discharge, all federal, state and local income and other material Taxes, assessments, governmental charges, levies imposed upon it or upon its income or profits, or upon any properties belonging to it, prior to the date on which penalties attach thereto, all lawful claims respecting the foregoing that, if unpaid, could reasonably be expected to become a Lien upon any properties of the Loan Parties or any of their respective Subsidiaries and all other liabilities and obligations of such Loan Party and its Subsidiaries; provided, that no Loan Party or any of its Subsidiaries shall be required to pay any such Tax, assessment, charge, levy or claim that is being contested in good faith and by proper proceedings in accordance with Section 9.02(i) and as to which such Loan Party has maintained adequate reserves with respect thereto in accordance with GAAP and such amount is not in excess of $250,000 in the aggregate.

Section 8.05. Maintenance of Existence; Compliance with Laws, etc. Each Loan Party shall, and shall cause its Subsidiaries to, (a) preserve and maintain in full force and effect its organizational existence (except in a transaction permitted by Section 9.03), (b) preserve and maintain its good standing under the laws of its state or jurisdiction of incorporation, organization or formation; and preserve and maintain its good standing under the laws of each other state or jurisdiction where such Person is qualified, or is required to be so qualified, to do business as a foreign entity, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect, (c) comply in all material respects with all Applicable Laws, rules, regulations and orders (including all Anti-Terrorism Laws) material to the business, (d) do or cause to be done all things reasonably necessary to preserve, renew and keep in full force and effect its Material Contracts and the rights, agreements, licenses, registrations, permits, certifications, approvals, consents, franchises, patents, copyrights, trademarks and trade names that are material to the conduct of such Loan Party’s or such Subsidiary’s business except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect, (e) maintain, preserve and protect all property of the Loan Parties, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect and (f) except for obsolete or worn out equipment, keep their property in good repair, working order and condition and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto necessary in order that such Loan Party’s or such Subsidiary’s business carried on in connection therewith may be properly conducted at all times, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

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Section 8.06. Environmental Compliance.

(a) Each Loan Party shall, and shall cause its Subsidiaries to, use and operate all of its and their businesses, facilities and properties in compliance with all Environmental Laws, including (i) keeping all necessary permits, approvals, certificates, licenses and other authorizations relating to environmental matters in effect and remaining in material compliance therewith, (ii) using, handling, managing, generating, treating, storing, transporting and disposing of all Hazardous Materials in material compliance with all applicable Environmental Laws, and (iii) keeping its and their property free of any Lien imposed by any Environmental Law, except in each case where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

(b) The Borrowers shall promptly give notice to the Administrative Agent upon any Loan Party or Subsidiary thereof becoming aware of (i) any violation by any Loan Party or any of its Subsidiaries of any Environmental Law, (ii) any inquiry with respect to, proceeding against, investigation of or other Environmental Claim with respect to any Loan Party under any Environmental Law, including without limitation a written request for information or a written notice of violation or potential environmental liability from any foreign, federal, state or local environmental agency or board or any other Governmental Authority or Person, or (iii) the discovery of a Release or threat of a Release in, at, on, under, to or from any of the Real Property of any Loan Party or any facility or assets therein in excess of reportable or allowable standards or levels under any Environmental Law, or under circumstances, or in a manner or amount which could reasonably be expected to require responsive, corrective, investigative, remedial, monitoring, cleanup or other corrective action under any Environmental Law, which in each case could reasonably be expected to have a Material Adverse Effect.

(c) In the event of material violation of any Environmental Law or the Release or presence of any Hazardous Material in, at, on, under, to or from any Real Property of any Loan Party in amounts which require responsive, corrective, investigative, remedial, monitoring, cleanup or other corrective or other action under any Environmental Law or which subject any Loan Party to material liability under any Environmental Law, each Loan Party and its respective Subsidiaries, upon discovery thereof, shall take all steps required by Environmental Laws to initiate and expeditiously complete all responsive, corrective, investigative, remedial, monitoring, cleanup or other corrective action or other action to mitigate and eliminate any such violation or potential liability, and shall keep the Administrative Agent informed on a regular basis of their actions and the results of such actions.

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(d) Each Loan Party shall provide the Administrative Agent with copies of any material notice, submittal or documentation (other than notices, submittals and documentation submitted in the ordinary course of any Loan Party’s business) provided by any Loan Party or any of its Subsidiaries to any Governmental Authority or other Person under any Environmental Law. Such notice, submittal or documentation shall be provided to the Administrative Agent promptly and, in any event, within five (5) Business Days after such material is provided to any Governmental Authority or third party.

Section 8.07. ERISA. (a) As soon as possible and, in any event, within ten (10) days after any Loan Party, any of its Subsidiaries or any ERISA Affiliate knows or has reason to know of the occurrence of any of the following events, the Borrowers shall deliver to the Agents and each Lender a certificate of an Authorized Officer of each Borrower setting forth the full details as to such occurrence and the action, if any, that such Loan Party, such Subsidiary or such ERISA Affiliate has taken and is required or proposes to take, together with any notices (required, proposed or otherwise) given to or filed with or by such Loan Party, such Subsidiary, such ERISA Affiliate, the PBGC, a Plan participant (other than notices relating to an individual participant’s benefits) or the Plan administrator with respect thereto: (i) the institution of any steps by any Person to terminate any Plan; (ii) the failure to make a required contribution to any Plan if such failure is sufficient to give rise to a Lien under Sections 303(k) or 4068 of ERISA or under Section 430(k) of the Code; (iii) the taking of any action with respect to a Plan which could result in the requirement that any Loan Party furnish a bond or other security to the PBGC or such Plan; (iv) the occurrence of any event with respect to any Plan which could result in the incurrence by any Loan Party of any material liability, fine or penalty, notice thereof and copies of all documentation relating thereto; (v) that a Reportable Event has occurred (except to the extent that the Borrowers has previously delivered to the Agents and Lenders a certificate and notices (if any) concerning such event pursuant to the next clause hereof); (vi) that a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance reporting requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof), and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected to occur with respect to such Plan within the following thirty (30) days; (vii) that a failure to satisfy the minimum funding standard within the meaning of Section 430 of the Code or Section 303 of ERISA (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA) has occurred (or is reasonably likely to occur) or an application may be or has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including any required installment payments) or an extension of any amortization period under Section 412, 430 or 431 of the Code or Section 302, 303 or 304 of ERISA with respect to a Plan; (viii) the adoption of, or the commencement of, contributions to, any Plan subject to Title IV of ERISA, Section 412 of the Code or Section 302 of ERISA which results in a material increase in the contribution obligations of any Loan Party, any Subsidiary of any Loan Party or any ERISA Affiliate; (ix) that a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to a Plan has occurred; (x) that any Loan Party, any Subsidiary of any Loan Party or, to the knowledge of the Loan Parties, an ERISA Affiliate files a Schedule B (or such other schedule as contains actuarial information ) to IRS Form 5500 in respect of a Plan with Unfunded Current Liabilities; (xi) that a Plan having any material Unfunded Current Liability has been or is to be terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA (including the giving of written notice thereof); (xii) that a Plan has an Unfunded Current Liability that has or will result in a Lien under ERISA or the Code; (xiii) that proceedings may be or have been instituted to terminate a Plan having an Unfunded Current Liability (including the giving of written notice thereof); (xiv) that a proceeding may be or has been instituted against a Loan Party, a Subsidiary thereof or an ERISA Affiliate pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan; (xv) that the PBGC has notified any Loan Party, any Subsidiary thereof or any ERISA Affiliate of its intention to appoint a trustee to administer any Plan; (xvi) that any Loan Party, any Subsidiary thereof or any ERISA Affiliate has failed to make a required installment or other payment pursuant to Section 412 of the Code with respect to a Plan; (xvii) that any Loan Party, any Subsidiary thereof or , to the extent applicable or potentially applicable to the Loan Parties or any of their respective Subsidiaries, any ERISA Affiliate has incurred or will incur (or has been notified in writing that it will incur) any material liability (including any indirect, contingent or secondary liability) to or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 436(f), 4971, 4975 or 4980 of the Code; (xviii) that any Loan Party or any Subsidiary thereof may be directly or indirectly liable for a violation of the applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of the Code by any fiduciary or disqualified person with respect to any Plan; or (xix) that any Loan Party, any Subsidiary thereof or any ERISA Affiliate has incurred or will incur (or has been notified in writing that it will incur) any Withdrawal Liability; and

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(b) Promptly following any request therefor, copies of any documents described in Section 101(k) of ERISA that any Loan Party, any of its Subsidiaries or any ERISA Affiliate may request with respect to any Plan, any notices described in Section 101(l) of ERISA that any Loan Party, any of its Subsidiaries or any ERISA Affiliate may request with respect to any Plan and any information that any Loan Party, any of its Subsidiaries or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided, that if any Loan Party, any of its Subsidiaries or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Plan, the applicable Loan Party, the applicable Subsidiary(ies) or the ERISA Affiliate(s) shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof.

Section 8.08. Maintenance of Properties. Each Loan Party shall, and shall cause its Subsidiaries to, (a) maintain, preserve, protect and keep its material Real Property, properties and assets in good repair, working order and condition (ordinary wear and tear excepted, and subject to dispositions permitted pursuant to Section 9.04), (b) make necessary repairs, renewals and replacements thereof, (c) maintain and renew as necessary all material leases, licenses, permits and other clearances necessary to use and occupy such properties and assets, in each case so that the business carried on by such Person may be properly conducted in all material respects at all times consistent with the manner in which business is conducted as of the Closing Date or such changes thereto as reasonably determined by the Loan Parties in their good faith business judgment from time to time, and (d) continue to conduct at all times its business consistent with the manner in which business is conducted as of the Closing Date or such changes thereto as reasonably determined by the Loan Parties in their good faith business judgment from time to time.

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Section 8.09. End of Fiscal Years; Fiscal Quarters.

The Loan Parties shall cause (a) each of their fiscal years and the fiscal years of each of their Subsidiaries to end on December 31 of each year and (b) each of their fiscal quarters and the fiscal quarters of each of their Subsidiaries to end on dates consistent with such fiscal year-end.

Section 8.10. Additional Collateral, Guarantors and Grantors. The Loan Parties shall, upon the formation or acquisition thereof, promptly (but in any event, within ten (10) days after the date of formation or acquisition or such longer time as the Administrative Agent may agree in writing, in its sole discretion) cause any direct or indirect Domestic Subsidiary formed or otherwise purchased or acquired after the Closing Date to (i) execute a supplement to the Guaranty and Security Agreement in the form of Annex I to the Guaranty and Security Agreement or otherwise in form and substance satisfactory to the Collateral Agent, (ii) execute a joinder to this Loan Agreement, whereby such Subsidiary becomes a Loan Party hereunder, (iii) obtain all consents and approvals required to be obtained by it in connection with the execution and delivery of the aforementioned joinder and the Security Documents and the performance of its obligations hereunder and thereunder and the granting by it of the Liens thereunder, and (iv) cause its assets to be subject to a first priority perfected Lien (subject only to Permitted Liens that, pursuant to the terms of this Loan Agreement, are permitted to have priority over the Collateral Agent’s Liens thereon) in favor of the Collateral Agent for the benefit of the Secured Parties and take such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect or record such first priority Lien. Not later than ten (10) Business Days after the acquisition by any Loan Party of any asset (including without limitation, any IP Rights) that is required to be provided as Collateral pursuant to this Loan Agreement or any Security Document, which asset would not automatically be subject to the Collateral Agent’s first priority perfected Lien pursuant to pre-existing Security Documents, the applicable Loan Party shall cause such asset to be subject to a first priority perfected Lien (subject only to Permitted Liens that, pursuant to the terms of this Loan Agreement, are permitted to have priority over the Collateral Agent’s Liens thereon) in favor of the Collateral Agent for the benefit of the Secured Parties and take such actions as shall be necessary or requested by the Collateral Agent to grant and perfect or record such first priority Lien. Without limitation of any of the foregoing, each Loan Party shall deliver to the Collateral Agent a collateral assignment, in form and substance satisfactory to the Collateral Agent, of its right under (i) any Material License Agreement not later than ten (10) Business Days after entering into such Material License Agreement and (ii) any acquisition or similar agreement not later than ten (10) Business Days after entering into such acquisition or similar agreement.

Section 8.11. Pledges of Additional Stock and Indebtedness. The Loan Parties shall promptly (but in any event, within ten (10) days after the date of issuance or acquisition or such longer time as the Administrative Agent may agree in writing, in its sole discretion) pledge to the Collateral Agent for the benefit of the Secured Parties, (i) all the Capital Stock of each Domestic Subsidiary and each Foreign Subsidiary (to the extent such Foreign Subsidiary is not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code), and 66 2/3% of the issued and outstanding Voting Stock and 100% of the outstanding non-voting Capital Stock of each Foreign Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957(a) of the Code directly held by such Loan Party, in each case formed or otherwise purchased or acquired after the Closing Date, (ii) to the extent required by the Security Documents, all promissory notes executed after the Closing Date evidencing Indebtedness of any Loan Party or Subsidiary of any Loan Party, and (iii) to the extent required by the Security Documents all other evidences of Indebtedness.

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Section 8.12. Use of Proceeds. The proceeds of the Term Loans shall be used on the Closing Date only (i) to finance the Acquisition, (ii) to pay the transaction fees, costs and expenses incurred directly in connection with this Loan Agreement and the Transactions, and (iii) for working capital and other general corporate purposes explicitly permitted by this Loan Agreement.

Section 8.13. Mortgages; Landlord Agreements.

(a) Within forty-five (45) days after the Closing Date (or such longer time as the Administrative Agent may agree to in its sole discretion), the Loan Parties shall cause each Loan Party’s fee simple interests in Real Property with a fair market value in excess of $500,000 to be subject to a Lien in favor of the Collateral Agent pursuant to a Mortgage securing the Obligations. If any Loan Party acquires a fee simple interest in Real Property with a fair market value in excess of $500,000 after the Closing Date, the Borrowers shall promptly notify the Agents and the Lenders thereof in writing and update Schedule 7.15 accordingly. With respect to all Loan Parties’ fee simple interests in Real Property with a fair market value in excess of $500,000 in each case, or $1,000,000 in the aggregate, the Loan Parties shall take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and/or perfect such Liens consistent with the applicable requirements of the Security Documents, including actions described in Section 8.15, all at the sole cost and expense of the Borrowers. Each Mortgage delivered to the Collateral Agent hereunder shall be accompanied by (i) a policy or policies (or unconditional binding commitment thereof) of title insurance issued by a nationally recognized title insurance company insuring the Lien of each Mortgage as a valid Lien (with the priority described therein) on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 9.02, together with such endorsements and reinsurance as the Collateral Agent may reasonably request, (ii) a current ALTA survey by a licensed surveyor, sufficient to allow the issuer of the title insurance policy to issue such policy without a survey inspection, (iii) an environmental site assessment prepared by a qualified firm reasonably acceptable to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, (iv) if the Mortgaged Property or any portion thereof is located in a Special Flood Hazard Area, Federal Flood Insurance and (v) if requested by the Collateral Agent, an opinion of local counsel to the applicable Loan Parties with respect to the Mortgage and the Liens granted thereunder, in form and substance satisfactory to the Collateral Agent.

(b) Within thirty (30) days of the Closing Date (or such longer time as the Administrative Agent may agree to in its sole discretion), the Loan Parties shall use commercially reasonable efforts to cause (i) the headquarters location of each Loan Party and (ii) each other location where (1) original books and records, primary servers, or any other material systems necessary to operate the business in the ordinary course of business are located or (2) Collateral having a value greater than $250,000 is stored to be subject to a Landlord Agreement to be provided by the landlord of such leased location or other applicable lessor, warehouseman, processor, consignee, or other Person in possession of, having a Lien upon, or having rights or interests in such Collateral.

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Section 8.14. Accounts; Control Agreements.

(a) Within thirty (30) days after the Closing Date (or such longer time as the Administrative Agent may agree in writing, in its sole discretion), the Loan Parties shall cause each deposit account, securities account and commodity account listed on Schedule 7.26 (other than any Excluded Deposit Account) to be subject to an Account Control Agreement; provided, however, that, so long as no Event of Default has occurred and is continuing, the Loan Parties may open new deposit accounts, new securities accounts and new commodity accounts so long as, prior to or concurrently with opening each such account, (i) the Loan Parties shall have delivered to the Agents an amended Schedule 7.26 including such account and (ii) the Loan Parties shall have delivered to the Collateral Agent an Account Control Agreement with respect to such account (other than any Excluded Deposit Account).

(b) Within five (5) Business Days after the request of the Collateral Agent, the Loan Parties shall provide the Collateral Agent with copies of all monthly or other periodic account statements with respect to all deposit accounts, securities accounts, commodity accounts, and investment property of the Loan Parties.

Section 8.15. Further Assurances.

(a) The Loan Parties shall execute any and all further documents, financing statements, agreements and instruments, and shall take all such further actions, which may be required under any Applicable Law or which either Agent may reasonably request, in order to grant, preserve, protect, perfect and evidence the validity and priority of the security interests created or intended to be created by the Guaranty and Security Agreement or any other Security Document (including, without limitation, the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents, and assisting the Collateral Agent in completing all documentation relating to the Assignment of Claims Act, if applicable), all at the sole and reasonable cost and expense of the Borrowers.

(b) Notwithstanding anything herein to the contrary, if the Collateral Agent determines in its sole discretion that the cost of creating or perfecting any Lien on any property is excessive in relation to the practical benefits afforded to the Lenders thereby, then such property may be excluded from the Collateral for all purposes of the Loan Documents.

Section 8.16. Annual Lender Meetings. Each Loan Party shall, and shall cause each of its Subsidiaries to, upon the request of the Administrative Agent, participate in a meeting of the Lenders, (a) so long as no Event of Default under Sections 10.01(a) or 10.01(j) shall have occurred and be continuing, once per fiscal year, and (b) when an Event of Default under Sections 10.01(a) or 10.01(j) shall have occurred and be continuing, as frequently as may be required by the Administrative Agent, in each case to be held via teleconference or in person (at the Administrative Agent’s election) at least once per year, at a time selected by the Administrative Agent and reasonably acceptable to the Lenders and the Borrowers. The purpose of this meeting shall be to present the Loan Parties’ previous fiscal year’s financial results and to present the Loan Parties’ Budget for the current fiscal year.

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Section 8.17. Board Observation Rights.

(a) The Initial Lenders shall have the right to appoint a single observer to the governing body of each Loan Party (each, a “Board of Directors”), which Person shall be entitled to attend (or at the option of such observer, monitor by telephone) all meetings of each Board of Directors and each committee of each Board of Directors (other than any portions of any meetings that relate to this Loan Agreement or which involve the exchange of privileged attorney-client information or work product) but shall not be entitled to vote on, or consent to or otherwise approve any activity or policy taken of adopted by the Board of Directors, and which Person shall receive all reports, meeting materials, notices, written consents, and other materials, including but not limited to, consents in lieu of meetings (in each case other than any portions of such reports or materials that contain confidential information relating to this Loan Agreement or attorney-client privileged information or work product) as and when provided to the members of the applicable Board of Directors. For the avoidance of doubt, in no event shall such observer have any fiduciary duties or be considered or deemed to be a director of such Loan Party or be required to be present for purposes of a quorum. The Borrowers shall reimburse the Initial Lenders for the reasonable travel expenses incurred by any such observer appointed by the Initial Lenders in connection with attendance at or participation in meetings in person or by telephone to the same extent as directors of the applicable Loan Party are reimbursed for such expenses.

(b) Each Borrower and each other Loan Party agrees that such observer may share with the Administrative Agent and Lenders with which such observer is affiliated and any of the Administrative Agent’s and any Lender’s legal and financial advisors any information, confidential or otherwise, related to the business and operations of any of the Loan Parties disclosed to such observer.

(c) Each Borrower agrees to hold at least one meeting of its Board of Directors in person in each fiscal year of the Borrowers. Each Borrower further agrees to hold at least two other meetings of its Board of Directors, either in person or via teleconference other than the fiscal quarter in which an in-person Board of Directors meeting is held pursuant to the immediately preceding sentence.

Section 8.18. Performance of Obligations. Each Loan Party shall, and shall cause each of its Subsidiaries to, pay, discharge and perform as the same shall become due and payable or required to be performed, all their respective material obligations and liabilities, including:

(a) all Tax liabilities, assessments and governmental charges or levies upon it or its property and assets, unless the same are being contested in good faith by appropriate proceedings diligently prosecuted which stay the enforcement or execution of any Lien and for which adequate reserves in accordance with GAAP are being maintained by such Person or such amounts do not exceed $250,000 in the aggregate;

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(b) all lawful claims which, if unpaid, would by law become a Lien (other than a Permitted Lien) upon its property and assets unless the same are being contested in good faith by appropriate proceedings diligently prosecuted which stay the imposition or enforcement of any Lien and for which adequate reserves in accordance with GAAP are being maintained by such Person; and

(c) all payments of any amount when due (whether by scheduled maturity, mandatory prepayment, acceleration, demand or otherwise, but subject to any applicable grace period) and the timely performance or observance of all material obligations and conditions of any Material Contract (subject to any applicable grace period) unless such failure to pay or perform or observe such other obligation or condition continues unremedied for a period of (i) if such obligation or condition has an applicable grace period, fifteen (15) days after the occurrence (or termination of the applicable grace period) thereof, (ii) if such obligation or condition does not have an applicable grace period, twenty (20) days after the occurrence thereof.

Section 8.19. Intellectual Property; Licenses, etc. Each Loan Party shall, and shall cause each Subsidiary to, maintain ownership, control and possession of the Material IP Rights that are used in the operation of its respective businesses. Each Loan Party shall, and shall cause each Subsidiary to, conduct and operate the businesses of such Loan Party or such Subsidiary in a manner that does not, to the knowledge of any Loan Party, infringe, misappropriate, dilute, or otherwise violate any IP Rights owned by any other Person.

Section 8.20. Security Interests; Perfection, etc. Each Loan Party shall, and shall cause each Subsidiary to, take all necessary actions to ensure that the Guaranty and Security Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable first priority (subject only to Permitted Liens which, pursuant to the terms of this Loan Agreement, are permitted to have priority over Collateral Agent’s Liens thereon) security interest in the Collateral described therein and proceeds thereof.

Section 8.21. Credit Enhancement. If any lender or any agent under the Revolving Loan Documents receives any (i) additional Collateral, guaranty, letter of credit, or any other credit enhancement from the Loan Parties or any of their Subsidiaries after the date the parties first enter into the Revolving Loan Documents or (ii) any additional Collateral granted on behalf of the Loan Parties, the Loan Parties shall promptly (but in any event, within five (5) days or such longer time as the Administrative Agent may agree in writing in its sole discretion) grant, or cause to be granted the same to the Agents for the benefit of the Lenders.

Section 8.22. Post-Closing Obligation. 

(a) On or prior to the date that is five (5) Business Days after the Closing Date (or such later date as the Administrative Agent may agree to in its sole discretion), the Administrative Agent shall have received evidence of the filing with the Delaware Secretary of State a Certificate of Amendment or a Certificate of Correction to the PrefCo Certificate of Incorporation in which (i) the definition of “Loan Agreement” set forth in the PrefCo Certificate of Incorporation is amended by replacing the words “as of May 2” therein with “as of May 3” and replacing the words “as in effect on the date of this Agreement” therein with “as in effect on May 3, 2019” and (ii) the definition of “Stockholders’ Agreement” set forth in the PrefCo Certificate of Incorporation is amended by replacing the words “as of May 2” therein with “as of May 3” and replacing the words “as in effect on the date of this Certificate of Incorporation” therein with “as in effect on May 3, 2019”.

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(b) Notwithstanding anything set forth in Section 8.03, on or prior to the date that is forty-five (45) days after the Closing Date (or such later date as the Collateral Agent may agree to in its sole discretion), the Loan Parties shall furnish to the Collateral Agent for further delivery to the Lenders, endorsements to (i) all “All Risk” and business interruption policies naming the Collateral Agent, on behalf of the Secured Parties, as lender’s loss payee, and (ii) all general liability, product liability, employment practices liability, other liability, and errors and omissions policies naming the Collateral Agent as additional insured.

ARTICLE IX

NEGATIVE COVENANTS

The Loan Parties hereby covenant and agree that, on the Closing Date and thereafter until the Term Loans, together with interest, Fees and all other Obligations incurred hereunder and under the other Loan Documents (other than Unasserted Contingent Obligations), are paid in full in cash in accordance with the terms of this Loan Agreement, and as inducement for the Agents and the Lenders to enter in this Loan Agreement and upon which the Agents and the Lenders are relying:

Section 9.01. Limitation on Indebtedness. Each Loan Party will not, and will not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee, suffer to exist or otherwise become directly or indirectly liable, contingently or otherwise with respect to any Indebtedness, except for:

(a) Indebtedness in respect of the Obligations;

(b) Indebtedness constituting Capitalized Lease Obligations assumed in connection with any Permitted Acquisition in an aggregate amount not to exceed, together with the Indebtedness under Section 9.01(e) below, $350,000 in the aggregate at any time outstanding;

(c) Indebtedness existing as of the Closing Date which is identified in Schedule 7.25 and which is not otherwise permitted by this Section 9.01, and any Refinancing Indebtedness in respect of such Indebtedness;

(d) Indebtedness incurred under the Revolving Credit Facility and evidenced by the Revolving Loan Documents in an aggregate principal amount not to exceed the maximum amount of such Indebtedness permitted under the Intercreditor Agreement as may be agreed to by the Administrative Agent in its sole discretion;

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(e) Indebtedness (i) evidencing the deferred purchase price of newly acquired property or incurred to finance the acquisition of equipment of such Loan Party and its Subsidiaries (pursuant to purchase money mortgages or otherwise, whether owed to the seller or a third party) used in the ordinary course of business of such Loan Party and its Subsidiaries; provided, that such Indebtedness is incurred within ninety (90) days of the acquisition of such property, and (ii) consisting of Capitalized Lease Obligations, in an aggregate amount for clause (i) and (ii) not to exceed, together with the Indebtedness under Section 9.01(b) above, $350,000 in the aggregate at any time outstanding;

(f) Guaranty Obligations of a Loan Party in respect of Indebtedness of a Loan Party otherwise permitted hereunder, and Guaranty Obligations of a Subsidiary of a Loan Party in respect of Indebtedness of a Loan Party or any Subsidiary of a Loan Party otherwise permitted hereunder;

(g) [reserved];

(h) non-recourse Indebtedness incurred by a Borrower or any of its Subsidiaries to finance the payment of insurance premiums of such Person in the ordinary course of business;

(i) Indebtedness owed to any Person providing worker’s compensation, health, disability or other employee benefits or property, casualty or liability insurance to any Borrower or any of their Subsidiaries incurred in connection with such Person providing such benefits or insurance pursuant to customary reimbursement or indemnification obligations to such Person in the ordinary course of business;

(j) Indebtedness consisting of unsecured intercompany loans and advances made by or among any Loan Parties (other than Holdings) to any other Loan Party (other than Holdings); provided that, (y) concurrently with the incurrence of any such Indebtedness in excess of $250,000 in the aggregate, each Loan Party shall have executed and delivered to each other Loan Party one or more demand notes (collectively, the “Intercompany Notes”) to evidence all such intercompany Indebtedness owing at any time by such Loan Party to such other Loan Party, which Intercompany Notes shall be in form and substance satisfactory to the Administrative Agent and shall be pledged and delivered to the Collateral Agent for the benefit of the Secured Parties pursuant to the Guaranty and Security Agreement as additional collateral security for the Obligations; and (z) the obligations of each Loan Party under all Intercompany Notes shall be subordinated to the Obligations of such Loan Party hereunder in a manner satisfactory to the Administrative Agent;

(k) [reserved];

(l) other unsecured Indebtedness of the Loan Parties or their Subsidiaries not exceeding $500,000 in the aggregate at any time outstanding; and

(m) Indebtedness incurred under the Preferred Equity Documents.

Section 9.02. Limitation on Liens. Each Loan Party will not, and will not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any property or assets of any kind (real or personal, tangible or intangible) of any such Person (including its Capital Stock), whether now owned or hereafter acquired, except for the following (collectively, “Permitted Liens”):

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(a) Liens securing payment of the Obligations;

(b) Liens created by or existing under the Revolving Credit Facility in accordance with the Revolving Loan Documents;

(c) Liens existing as of the Closing Date and listed on Schedule 9.02, securing Indebtedness permitted under Section 9.01(c); provided, that (i) no such Lien shall encumber any additional property not encumbered as of the Closing Date, (ii) the amount of Indebtedness secured by such Lien shall not be increased from the amount outstanding on the Closing Date and (iii) the term of such Indebtedness shall not be extended from that existing on the Closing Date (as such Indebtedness may be permanently reduced subsequent to the Closing Date);

(d) Liens securing Indebtedness of the type permitted under Section 9.01(e); provided, that (i) such Lien is granted within ninety (90) days after such Indebtedness is incurred, and (ii) such Lien secures only the assets that are the subject of the Indebtedness referred to in Section 9.01(e) and the proceeds thereof;

(e) Liens arising by operation of law in favor of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for amounts not yet overdue or being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been established on its books;

(f) Liens incurred or deposits made in the ordinary course of business in connection with worker’s compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of tenders, statutory obligations, bids, leases or other similar obligations (other than for borrowed money) entered into in the ordinary course of business or to secure obligations on surety, appeal or performance bonds;

(g) judgment Liens in existence for less than thirty (30) days after the entry thereof, or with respect to which execution has been stayed or the payment of which is covered in full by insurance maintained with responsible insurance companies, and which judgment Liens do not otherwise result in an Event of Default under Section 10.01(h);

(h) easements, rights-of-way, zoning restrictions, minor defects or irregularities in title and other similar encumbrances not interfering in any material respect with the value or use of the property to which such Lien is attached;

(i) Liens for Taxes, assessments or other governmental charges or levies not yet due and payable, or that are being diligently contested in good faith by appropriate proceedings where the execution or enforcement of such Lien has been stayed and for which adequate reserves in accordance with GAAP shall have been established on its books;

(j) Liens arising in the ordinary course of business by virtue of any contractual, statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies covering deposit or securities accounts (including funds or other assets credited thereto) or other funds maintained with a depository institution or securities intermediary, provided the applicable provisions of Section 8.14 have been complied with in respect of such deposit or securities accounts;

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(k) any interest or title of a lessor, licensor or sublessor under any lease, license or sublease entered into by any such Loan Party or Subsidiary in the ordinary course of its business and covering only the assets so leased, licensed (on a non-exclusive basis) or subleased;

(l) Liens of sellers of goods to such Person arising under Article II of the UCC or similar provisions of Applicable Law in the ordinary course of business, covering only the goods sold or securing only the unpaid purchase price of such goods and related expenses to the extent such Indebtedness is permitted hereunder;

(m) Liens on insurance policies and the proceeds thereof securing the financing of premiums with respect thereto, to the extent permitted under Section 9.01(h);

(n) precautionary Uniform Commercial Code filings made by a lessor pursuant to an operating lease of a Loan Party entered into in the ordinary course of business; and

(o) other Liens with respect to which the aggregate amount of the obligations secured thereby does not exceed $500,000 in the aggregate at any time outstanding.

Section 9.03. Consolidation, Merger, Etc.. Each Loan Party will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, Divide, consolidate with, or merge into or with, any other Person, or purchase or otherwise acquire all or substantially all of the assets of any Person or any division of any Person; provided, however, that (a) any Loan Party (other than Holdings or C-PAK IP) or Subsidiary of any Loan Party (other than C-PAK IP) may liquidate or dissolve voluntarily into, and may merge with and into, C-PAK, so long as C-PAK is the surviving entity, (b) any Guarantor (other than Holdings) may liquidate or dissolve voluntarily into, and may merge with and into, any other Guarantor (other than Holdings), (c) any Subsidiary of a Loan Party that is not itself a Loan Party may liquidate or dissolve voluntarily into, and may merge with and into, any Loan Party (other than Holdings or C-PAK IP) or Domestic Subsidiary, (d) the assets of any Loan Party (other than the assets of Holdings or C-PAK IP) or Capital Stock of any Loan Party (other than Holdings) or Subsidiary of any Loan Party may be purchased or otherwise acquired by C-PAK, (e) the assets or Capital Stock of any Guarantor (other than Holdings) may be purchased or otherwise acquired by any Loan Party (other than Holdings or C-PAK IP), (f) the assets or Capital Stock of any Subsidiary that is not a Loan Party may be purchased or otherwise acquired by any Loan Party (other than Holdings or C-PAK IP) or Domestic Subsidiary (other than Holdings or C-PAK IP) and (g) the Capital Stock of Holdings may be purchased by any Person so long as no Change of Control results from such purchase.

Section 9.04. Permitted Dispositions. Each Loan Party will not, and will not permit any of its Subsidiaries to, make a Disposition, or enter into any agreement to make a Disposition, of such Loan Party’s or such other Person’s assets (including, without limitation, Accounts Receivable, Capital Stock or IP Rights) to any Person in one transaction or a series of transactions, unless such Disposition either:

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(a) is in the ordinary course of its business and is of obsolete, worn out or surplus property or property not presently used or useful in its business;

(b) is for fair market value and the following conditions are met:

(i) the aggregate amount of Dispositions during any year does not exceed $500,000;

(ii) immediately prior to and immediately after giving effect to such Disposition, no Default or Event of Default shall have occurred and be continuing or would result therefrom;

(iii) the Borrowers shall apply any Net Disposition Proceeds arising therefrom pursuant to Section 4.02(a)(ii); and

(iv) no less than eighty percent (80%) of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash;

(c) is a sale of Inventory in the ordinary course of business;

(d) is the leasing, as lessor, of real or personal property not presently used or useful in such Person’s business and is otherwise in the ordinary course of business;

(e) is a sale or disposition of equipment or other assets, to the extent that such equipment or other assets are exchanged for credit against the purchase price of similar replacement equipment or assets or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement equipment, all in the ordinary course of business;

(f) is an abandonment, failure to renew, or other disposition in the ordinary course of business of any IP Rights that are not material to the conduct of the business of any Loan Party or any Subsidiary of such Loan Party;

(g) is otherwise permitted by Section 9.03; or

(h) is a Disposition of assets other than Capital Stock by (i) any Loan Party or Subsidiary thereof to either Borrower, (ii) any Subsidiary of a Loan Party (other than the Borrowers) to any Loan Party or (iii) by any Foreign Subsidiary to any Domestic Subsidiary;

provided that, notwithstanding anything to the contrary herein, no Disposition shall be permitted hereunder to the extent that it results in any Material IP Rights or any other property that is material to the business of the Loan Parties being owned or licensed on an exclusive basis by any Person that is not a Loan Party.

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Section 9.05. Investments. Each Loan Party will not, and will not permit any of its Subsidiaries to, purchase, make, incur, assume or permit to exist any Investment in any other Person, except:

(a) Investments existing on the Closing Date and listed on Schedule 9.05;

(b) Investments in cash and Cash Equivalents;

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

(d) except as otherwise prohibited herein, Investments by way of contributions to capital or purchases of Capital Stock by any Loan Party in any of its Subsidiaries that are Loan Parties; provided, that no Investment otherwise permitted under clause (d) shall be permitted to be made if any Default or Event of Default has occurred and is continuing or would result therefrom;

(e) Investments constituting (i) Accounts Receivable arising, (ii) trade debt granted, or (iii) deposits made, in connection with the purchase price of goods or services, in each case in the ordinary course of business;

(f) Investments consisting of any deferred portion of the sales price received by any Loan Party in connection with any Disposition permitted under Section 9.04;

(g) other Investments in an aggregate principal amount at any time not to exceed $500,000;

(h) intercompany Indebtedness advanced by any Loan Party to any other Loan Party to the extent permitted pursuant to Section 9.01(j);

(i) the maintenance of deposit accounts in the ordinary course of business, so long as the applicable provisions of Section 8.14 have been complied with in respect of each such deposit account;

(j) Guaranty Obligations permitted by Section 9.01(f);

(k) loans and advances to officers, directors and employees of any Loan Party for reasonable and customary business related travel expenses, entertainment expenses, moving expenses and similar expenses, in each case incurred in the ordinary course of business, in an aggregate principal amount at any time not to exceed $100,000;

(l) the Acquisition pursuant to the Transaction Documents;

(m) Permitted Acquisitions;

(n) and the Closing Date IP Contribution; and

(o) the license of IP Rights by C-PAK from C-PAK IP pursuant to the C-PAK Exclusive License.

Section 9.06. Restricted Payments. Each Loan Party will not, and will not permit any of its Subsidiaries to, make or declare any Restricted Payment, or make any deposit for any Restricted Payment, other than:

(a) so long as no Event of Default has occurred and is continuing, cash Restricted Payments to Holdings to be used for (i) customary director indemnification payments to Holdings’ directors, (ii) financial and other reporting and similar customary administrative costs and expenses attributable and fairly allocable to the Loan Parties (including audit and professional fees and other ordinary course operating and administrative expenses incurred by Holdings in its capacity as the holding company of the Borrowers) (in an amount not to exceed $250,000 in the aggregate under clause (i) and (ii) in any fiscal year) and (iii) Board of Director fee payments in amount not to exceed $100,000 in the aggregate in any fiscal year;

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(b) Restricted Payments in cash by any Subsidiary of any Borrower to (i) either Borrower or (ii) such Subsidiary’s direct parent company so long as such parent company is a Loan Party and a direct or indirect wholly-owned Subsidiary of such Borrower;

(c) Restricted Payments by any Loan Party or any Subsidiary of any Loan Party to pay dividends with respect to its Capital Stock payable solely in additional shares of its common stock (other than Disqualified Capital Stock);

(d) Restricted Payments in cash consisting of Tax Distributions;

(e) cash repurchases of Capital Stock under equity incentive plans approved by Holdings’ board of directors in the exercise of their reasonable business judgment, to occur upon the exercise of stock options or warrants or similar equity incentive awards; provided, that (i) no Event of Default exists or would result immediately after giving effect to such payment, and (ii) the amount paid in respect of such repurchases does not exceed $100,000 in the aggregate in any fiscal year;

(f) during each fiscal year of the Borrowers beginning with the fiscal year ending December 31, 2021, if Consolidated Excess Cash Flow for the most recently ended fiscal year of the Borrowers exceeds $5,000,000, Restricted Payments solely to pay accrued and unpaid amounts of Management Fees or the Transaction Fee required to be paid under the Management Agreement in cash in an amount not to exceed the lesser of (x) $750,000 for the fiscal year ended December 31, 2021 and $1,000,000 for each fiscal year thereafter and (y) Retained Excess Cash Flow for the most recently ended fiscal year of the Borrowers; provided that, (i) no Restricted Payment shall be made pursuant to this clause (f) during any fiscal year of the Borrowers prior to the date on which the Borrowers shall have (A) delivered a written calculation of Excess Cash Flow for the most recently ended fiscal year of the Borrowers pursuant to Section 8.01(e) and (B) made the prepayment of the Term Loans due during such fiscal year of the Borrowers pursuant to Section 4.02(a)(vi), to the extent any such prepayment is required, (ii) no Default or Event of Default shall have occurred and be continuing or would result from such Restricted Payment, (iii) after giving effect to such Restricted Payment, the Loan Parties shall have Liquidity of not less than $3,000,000, (iv) after giving effect to each such Restricted Payment, the Total Net Leverage Ratio calculated on a pro forma basis as of the most recent Test Period for which financial statements were required to have been delivered pursuant to Section 8.01(b) or Section 8.01(c) shall not be greater than 2.25:1.00 and (v) the Borrowers shall have delivered to the Administrative Agent a certificate signed by an Authorized Officer of the Borrowers certifying that each condition set forth in this clause (f) shall have been satisfied (together with supporting calculations, as applicable) with respect to such Restricted Payment, which certificate shall be delivered not less than three (3) Business Days prior to the date on which such Restricted Payment is made;

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(g) cash repurchases of Holdings Common Units held by Piney Lake or any of its Approved Funds or Affiliates pursuant to an exercise of Piney Lake’s or any of its Approved Fund’s or Affiliate’s put right with respect to Holdings Common Units under Section 15.2 of the Holdings Limited Liability Company Agreement; and

(h) Restricted Payments in cash consisting of Preferred Equity Distributions.

Section 9.07. Payments and of Indebtedness; Cancellation of Indebtedness. 

(a) Except in connection with Refinancing Indebtedness permitted by Section 9.01, and to the extent permitted by Section 9.06, each Loan Party will not, and will not permit any of its Subsidiaries to, make any payment on account of Indebtedness that has been contractually subordinated in right of payment to the Obligations, if such payment is not permitted at such time under the subordination terms and conditions applicable thereto.

(b) Each Loan Party will not, and will not permit any of its Subsidiaries to, forgive, cancel, settle or otherwise forfeit any amount in excess of $250,000 owing to it as of the Closing Date or at any time thereafter other than in the ordinary course of business.

Section 9.08. Modification of Certain Agreements. Each Loan Party will not, and will not permit any of its Subsidiaries to, amend, supplement, waive, otherwise modify, or forbear from exercising any rights with respect to the terms or provisions of, or consent to any amendment, supplement, waiver, other modification or forbearance from exercising any rights with respect to the terms or provisions of: (a) any Transaction Document, any other Material Contract, or any other material agreement between a Loan Party and any other Affiliate of any Loan Party (other than a Loan Party) or any Organization Document, in each case, other than any amendment, supplement, waiver, modification or forbearance which could not reasonably be expected to be materially adverse to any Agent or Secured Party; (b) the Revolving Credit Facility or any documents executed in connection therewith, unless expressly permitted by the terms of the Intercreditor Agreement or (c) any document, agreement or instrument evidencing or governing any Indebtedness that has been subordinated to the Obligations in right of payment or any Liens that have been subordinated in priority to the Liens of the Collateral Agent, unless such amendment, supplement, waiver, other modification or forbearance is expressly permitted under the terms of the subordination agreement applicable thereto.

Section 9.09. Sale and Leaseback. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, directly or indirectly, enter into or consummate any agreement or arrangement providing for the sale or transfer by any Loan Party, its Subsidiaries or their respective Affiliates, of any Property (now owned or hereafter acquired) to any other Person and the subsequent lease or rental of such Property or other similar Property by any Loan Party, its Subsidiaries or their respective Affiliates, from such Person or any of its Affiliates.

Section 9.10. Transactions with, or by, Affiliates. Each Loan Party will not, and will not permit any of its Subsidiaries to (whether effected by means of a Division or any other means), enter into or cause or permit to exist any arrangement, transaction or contract (including for the purchase, lease or exchange of property or the rendering of services) with any Affiliate except: (a) on fair and reasonable terms no less favorable to such Loan Party or such Subsidiary thereof than such Person could obtain in an arm’s-length transaction with a Person that is not an Affiliate or a seller under the Transaction Agreement; (b) any transaction expressly permitted under Section 9.03, Section 9.05 or Section 9.06; and (c) so long as it has been approved by such Borrower’s or its applicable Subsidiary’s board of directors or other governing body to the extent required in accordance with Applicable Law, (i) customary indemnifications of non-officer directors of the Loan Parties and their respective Subsidiaries and (ii) the payment of reasonable and customary compensation and indemnification arrangements and benefit plans for officers and employees of the Loan Parties and their respective Subsidiaries in the ordinary course of business. Each Loan Party shall not permit any of its Affiliates to acquire, directly or indirectly, any Related Brands; it being understood that any such acquisition, to the extent permitted hereunder, shall be the exclusive opportunity of the Loan Parties.

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Section 9.11. Restrictive Agreements, etc.. Each Loan Party will not, and will not permit any of its Subsidiaries to, enter into any agreement prohibiting or conflicting with any right granted hereunder (other than the prohibitions and restrictions contained in a Loan Document, the Revolving Loan Documents, the Holdings Equity Investment Agreement and documents related thereto) with respect to:

(a) the creation or assumption of any Lien upon its properties, revenues or assets, whether now owned or hereafter acquired (other than documentation related to Permitted Liens);

(b) the ability of such Person to amend or otherwise modify any Loan Document; or

(c) the ability of such Person to make any payments, directly or indirectly, to either Borrower, including by way of dividends, advances, repayments of loans, reimbursements of management and other intercompany charges, expenses and accruals or other returns on investments;

provided, however, the foregoing prohibitions shall not apply to customary restrictions of the type described in clause (a) above (which do not prohibit the Loan Parties from complying with or performing the terms of this Loan Agreement and the other Loan Documents) which are contained in any agreement, (i) governing any Indebtedness permitted by Section 9.01(e) as to the transfer of assets financed with the proceeds of such Indebtedness, (ii) for the creation or assumption of any Lien on the sublet or assignment of any leasehold interest of any Loan Party or any of its Subsidiaries entered into in the ordinary course of business, (iii) for the assignment of any contract entered into by any Loan Party or any of its Subsidiaries in the ordinary course of business or (iv) for the transfer of any asset pending the close of the sale of such asset pursuant to a Disposition permitted under this Loan Agreement.

Section 9.12. Changes in Name, Form, Business and Fiscal Year. Each Loan Party will not, and will not permit any of its Subsidiaries to:

(a) engage in any business activity other than business activities described on Schedule 9.12;

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(b) modify or change its fiscal year to end other than on December 31 of each year;

(c) modify or change its method of accounting in any material respect except as may be required to conform to GAAP and in accordance with Section 1.03;

(d) change its legal form;

(e) change its jurisdiction of organization; or

(f) change its name as it appears in official filings in its jurisdiction of organization;

in the case of clauses (d), (e), and (f), without at least thirty (30) days’ (or such shorter period of time as may be agreed to by the Administrative Agent) prior written notice to the Administrative Agent and the acknowledgment of the Administrative Agent that all actions required by the Administrative Agent, including those to continue the perfection of any Liens, have been completed.

Section 9.13. Financial Covenants. The Loan Parties will not permit:

(a) Total Leverage Ratio. The Total Leverage Ratio, as of the last day of each Test Period set forth below, to be greater than the Total Leverage Ratio set forth below opposite such Test Period:

Test Period	Total Leverage Ratio
September 30, 2019	5.00:1.00
December 31, 2019	5.00:1.00
March 31, 2020	5.00:1.00
June 30, 2020	4.50:1.00
September 30, 2020	4.50:1.00
December 31, 2020	4.00:1.00
March 31, 2021	4.00:1.00
June 30, 2021	3.50:1.00
September 30, 2021	3.50:1.00
December 31, 2021 and as of the end of each fiscal quarter thereafter	3.00:1.00

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(b) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio, as of the last day of any Test Period ending on or after September 30, 2019, to be less than 1.50:1.00.

(c) Minimum Liquidity. Liquidity as of the last day of the fiscal quarter ending September 30, 2019 to be less than $2,500,000 and of the last day of any fiscal quarter thereafter to be less than $3,000,000.

(d) [Reserved].

(e) Equity Cure. In the event the Borrowers fail to comply with any covenant contained in Sections 9.13(a), (b) or (c) for any Test Period or fiscal quarter, as applicable (any such failure, a “Financial Covenant Default”), the Borrowers shall have the right to cure the resulting Event of Default on the following terms and conditions (the “Equity Cure Right”):

(i) In the event the Borrowers desire to cure any Financial Covenant Default, the Borrower shall deliver to the Administrative Agent irrevocable written notice of the Borrowers’ intent to cure (a “Cure Notice”) no later than five (5) Business Days after the earlier of (x) the date on which financial statements and a Compliance Certificate executed by an Authorized Officer of Holdings on behalf of each Borrower for the applicable fiscal quarter are required to be delivered and (y) the date on which financial statements and a Compliance Certificate for the applicable fiscal quarter were actually delivered. The Cure Notice shall set forth the calculation of the amount of the Equity Cure Investment necessary to cure the applicable Financial Covenant Default pursuant to the terms hereof (the “Financial Covenant Cure Amount”).

(ii) If the Borrowers deliver a Cure Notice, (x) the Permitted Holders shall, directly or indirectly, make a cash capital contribution to Holdings and (y) Holdings shall, directly, simultaneously make a cash capital contribution to the Borrowers, (collectively, an “Equity Cure Investment”) in an amount equal to the Financial Covenant Cure Amount, no later than ten (10) Business Days after the earlier of (x) the date on which financial statements and a Compliance Certificate for the applicable fiscal quarter are required to be delivered and (y) the date on which financial statements and a Compliance Certificate for the applicable fiscal quarter were actually delivered. The cash proceeds received by the Borrowers from such contributions shall be deemed to increase Consolidated Adjusted EBITDA (or, solely with respect to the minimum Liquidity Financial Covenant, cash) on a dollar-for-dollar basis, and the amount of such increase may be included in a recalculation of the financial covenant(s) giving rise to the Financial Covenant Default for the fiscal quarter immediately preceding such purchase or contribution, as applicable, and, other than with respect to the Liquidity Financial Covenant, without duplication, for each of the following three fiscal quarters and for no other purpose under this Loan Agreement.

(iii) The Equity Cure Right shall not be exercised (x) in more than two fiscal quarters in any four consecutive fiscal quarter period or (y) more than four times during the term of this Loan Agreement, and the amount of any Equity Cure Investment shall be no greater than the amount of Consolidated Adjusted EBITDA (or cash, solely with respect to the minimum Liquidity Financial Covenant) required to cause the Borrowers to be in compliance with all financial covenants.

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(iv) Upon timely receipt by either of the Borrowers of the cash proceeds from the Equity Cure Investment, and the application of the mandatory prepayment thereof by the Borrowers pursuant to Section 4.02(a)(iv), the applicable Financial Covenant Default shall be deemed cured.

(v) Any Term Loans prepaid with the proceeds of an Equity Cure Investment shall be deemed outstanding for the purposes of determining compliance with the financial covenants for the fiscal quarter being cured and the next three fiscal quarters.

Section 9.14. Repurchase of Capital Stock. Holdings and the Borrowers will not, and will not permit any of any of their respective Subsidiaries to become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of any Capital Stock of any Loan Party or Subsidiary of any Loan Party, or any option, warrant or other right to acquire any such Capital Stock.

Section 9.15. Acquisition of Debt. The Loan Parties shall not, and shall not permit any Subsidiary or Affiliate to, purchase, redeem, prepay, tender for or otherwise acquire, directly or indirectly, any Indebtedness of a Loan Party, including, without limitation, any Indebtedness incurred under the Revolving Credit Facility. The Loan Parties will promptly cancel or cause to be cancelled all Indebtedness of a Loan Party acquired by it or any of its Subsidiaries or Affiliates pursuant to any purchase, redemption, prepayment or tender, and no loans or notes may be issued in substitution or exchange for any such Indebtedness.

Section 9.16. Management. The Loan Parties shall not, and shall not permit any Subsidiary to, permit any of their senior management to engage in any activity related to the Related Brands other than on behalf of or for the benefit of the Loan Parties and their Subsidiaries.

Section 9.17. Status of Holdings and Subsidiaries.

(a) Holdings shall not (i) engage in any business or other commercial activities, (ii) own any assets or property, (iii) incur any Indebtedness, Guaranty Obligations or other Contractual Obligations, or (iv) grant any Liens over any of its assets or property, other than: (v) ownership of the Capital Stock of C-PAK; (w) the maintenance of its corporate existence, and activities and contractual rights incidental thereto; (x) assets and liabilities customary of and incidental to the conduct of its business as a holding company, (y) incurrence of Indebtedness, granting Liens and performance of its obligations under the Loan Documents and Revolving Credit Documents to which it is a party and (z) performing its obligations under any Transaction Document or Material Contract or any Holdings Equity Investment Document to which it is a party.

Section 9.18. Economic Sanctions/OFAC. The Loan Parties shall not, and shall not permit any of their Subsidiaries to, (i) use or permit any of its or any of their respective directors, officers, employees, representatives or agents to use, any proceeds of any Term Loans, directly or indirectly, or (ii) lend, contribute or otherwise make available any proceeds of any Term Loans, directly or indirectly, to any Person: (x) to fund, finance or facilitate any activity, business or transaction of or with any Sanctioned Person or in any Sanctioned Country, to the extent such activity, businesses or transaction would be prohibited by Sanctions if conducted by a corporation incorporated in the United States; or (y) in any manner that could reasonably be expected to result in a violation of any Sanctions (including OFAC Sanctions) applicable to a Loan Party, a Subsidiary of a Loan Party, or a Secured Party.

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Section 9.19. Anti-Terrorism Laws; Foreign Corrupt Practices Act. The Loan Parties shall not, and shall not permit any of their Subsidiaries to, fail to comply with any Anti-Terrorism Law or other Law referred to in Section 7.31 or Section 7.33.

Section 9.20. Use of Proceeds. No Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, use any portion of the Loan proceeds, directly or indirectly, to purchase or carry Margin Stock or repay or otherwise refinance Indebtedness of any Loan Party or others incurred to purchase or carry Margin Stock, or otherwise in any manner which is in contravention of any Law or in violation of this Loan Agreement.

Section 9.21. Key Person. Eric C. Blue shall cease to be the Chairman of the Board of Managers of Holdings unless he is replaced as Chairman of the Board of Managers of Holdings within sixty (60) days of his ceasing to be Chairman of the Board of Managers of Holdings by an individual reasonably satisfactory to the Administrative Agent who shall exercise and discharge the same or substantially similar responsibilities as Eric C. Blue exercised and discharged in his capacity as Chairman of the Board of Managers of Holdings.

ARTICLE X

EVENTS OF DEFAULT

Section 10.01. Listing of Events of Default. Each of the following events or occurrences described in this Section 10.01 shall constitute an “Event of Default”:

(a) Non-Payment of Obligations. The Borrowers shall default in the payment of:

(i) any principal of any Term Loan when such amount is due (whether by scheduled maturity, mandatory prepayment, acceleration, demand or otherwise); or

(ii) any interest on any Term Loan and such default shall continue unremedied for a period of three (3) Business Days after such amount is due; or

(iii) any fee described in Article III or any other monetary Obligation, and such default shall continue unremedied for a period of three (3) Business Days after such amount is due.

(b) Breach of Representation or Warranty. Any representation or warranty made or deemed to be made by any Loan Party in any Loan Document (including any certificate delivered pursuant to Article V) is or shall be incorrect in any material respect (or in any respect, to the extent already qualified by materiality or Material Adverse Effect) on or as of the date when made or deemed to have been made.

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(c) Non-Performance of Certain Covenants and Obligations. Any Loan Party shall default in the due performance or observance of any of its obligations under Section 8.01, Section 8.02, Section 8.03 (solely with respect to maintenance of insurance), Section 8.05 (solely with respect to such Loan Party’s existence and its maintenance of good standing in its jurisdiction of organization), Section 8.09, Section 8.10, Section 8.11(i), Section 8.12, Section 8.13, Section 8.14, Section 8.16 (except for as specified in clause (d) hereof), Section 8.17 (except for as specified in clause (d) hereof), Section 8.20, Section 8.22 or Article IX.

(d) Non-Performance of Other Covenants and Obligations. Any Loan Party shall default in the due performance and observance of any obligation contained in Section 8.11(ii), Section 8.11(iii), Section 8.15, Section 8.16 (solely with respect to rescheduling an annual lender meeting), Section 8.17 (solely with respect to a Borrower’s failure to (1) provide all reports, meeting materials, written consents and consents in lieu of meetings or (2) reimburse the Initial Lenders for reasonable travel expenses, in each case as required pursuant to such section), Section 8.18 or Section 8.21, and such default shall continue unremedied for a period of five (5) Business Days after the occurrence thereof.

(e) Non-Performance of Other Covenants and Obligations. Any Loan Party shall default in the due performance and observance of any obligation in any Loan Document executed by it (other than as specified in Sections 10.01(a) through (d) above), and such default, breach, failure to perform or failure to comply shall continue unremedied for a period of thirty (30) days after the later to occur of (i) the occurrence thereof or (ii) the date on which an Authorized Officer of the Borrowers knew or should have known (in the exercise of his or her reasonable business judgment) of the occurrence thereof.

(f) Default on Other Indebtedness. (i) A Loan Party shall default in the payment of any amount when due (whether by scheduled maturity, mandatory prepayment, acceleration, demand or otherwise, but subject to any applicable grace period), whether by acceleration or otherwise, of any principal or stated amount of, or interest or fees on, (x) any Indebtedness under or in respect of the Preferred Equity Investment Agreement, (y) any Indebtedness under or in respect of the Revolving Credit Facility or (z) any other Indebtedness of any Loan Party or Subsidiary of any Loan Party (other than the Obligations) having a principal or stated amount, individually or in the aggregate, in excess of $500,000, or a Loan Party shall default in the performance or observance of any obligation or condition with respect to the Preferred Equity Investment Agreement or any such other Indebtedness and the effect of such default is to accelerate the maturity of such Indebtedness or to permit the holder or holders of such Indebtedness, or any trustee or agent for such holders, to cause or declare such Indebtedness under the Preferred Equity Investment Agreement or such other Indebtedness to become immediately due and payable, (ii) any Loan Party shall default (after expiration of any available grace or cure periods) in the performance or observance of any obligation or condition with respect to any Indebtedness which has been subordinated (whether as to payment or Lien priority) to the Obligations or the liens in respect of which have been subordinated to the Collateral Agent’s Liens, or any such Indebtedness shall be required to be or prepaid, redeemed, purchased or defeased, or require an offer to purchase or defease such Indebtedness to be made, prior to its expressed maturity, or (iii) any Indebtedness of any Loan Party or any Subsidiary of any Loan Party under or in respect of (x) the Preferred Equity Investment Agreement or (y) otherwise having a principal or stated amount, individually or in the aggregate, in excess of $500,000 shall otherwise be required to be prepaid, redeemed, purchased or defeased, or require an offer to purchase or defease such Indebtedness to be made, prior to its expressed maturity.

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(g) [Reserved].

(h) Judgments. Any judgment, order or court-approved settlement for the payment of money individually or in the aggregate in excess of $500,000 (exclusive of any amounts fully covered by insurance (less any applicable deductible) and as to which the insurer has acknowledged its responsibility to cover such judgment, order or court-approved settlement) shall be rendered against any Loan Party or any Subsidiary of any Loan Party and such judgment, order or court-approved settlement shall not have been paid, vacated or discharged or stayed or bonded pending appeal within thirty (30) days after the entry thereof or enforcement proceedings shall have been commenced by any creditor upon such judgment, order or court-approved settlement.

(i) Plans. Any of the following events shall occur:

(i) one or more ERISA Events that results or could reasonably be expected to result in a liability to or obligation of such Plan or any of the Loan Parties or any Subsidiary of any of the Loan Parties (individually or collectively) in excess of $250,000 in the aggregate; or

(ii) a contribution failure occurs with respect to any Plan sufficient to give rise to a Lien under Sections 303(k) or 4068 of ERISA or Section 430(k) of the Code.

(j) Bankruptcy, Insolvency, etc. Any Loan Party or any Subsidiary of any Loan Party shall:

(i) become insolvent or generally fail to pay, or admit in writing its inability or unwillingness generally to pay, its debts as they become due;

(ii) apply for, consent to, or acquiesce in the appointment of a trustee, receiver, sequestrator or other custodian for any substantial part of the assets or other property of any such Person, or make a general assignment for the benefit of creditors;

(iii) in the absence of such application, consent or acquiesce to or permit or suffer to exist, the appointment of a trustee, receiver, sequestrator or other custodian for a substantial part of the property of any thereof, and such trustee, receiver, sequestrator or other custodian shall not be discharged within forty-five (45) days; provided, that each Loan Party hereby expressly authorizes each Secured Party to appear in any court conducting any relevant proceeding during such 45-day period to preserve, protect and defend such Secured Party’s rights under the Loan Documents;

(iv) permit or suffer to exist the commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding or action under the Bankruptcy Code or any other bankruptcy or insolvency law or any dissolution, winding up or liquidation proceeding in respect thereof, and, if any such case or proceeding is not commenced by such Person, such case or proceeding shall be consented to or acquiesced to by such Person or shall result in the entry of an order for relief or shall remain undismissed for forty-five (45) days; provided, that each Loan Party hereby expressly authorizes each Secured Party to appear in any court conducting any such case or proceeding during such 45-day period to preserve, protect and defend such Secured Party’s rights under the Loan Documents; or

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(v) take any action authorizing, or in furtherance of, any of the foregoing.

(k) Impairment of Security, etc. Any Loan Document or any Lien with respect to more than $250,000 of the Collateral granted under any Loan Document shall, in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of any Loan Party thereto (other than as the result of the action or inaction of the Collateral Agent, the Administrative Agent or the Lenders), or any Loan Party shall, directly or indirectly, contest, deny or limit in any manner such effectiveness, validity, binding nature or enforceability; or, except as expressly permitted under any Loan Document, any Lien with respect to more than $250,000 of the Collateral securing any Obligation or pledge of Capital Stock of the Borrowers shall, in each case, in whole or in part, cease to be a valid and perfected Lien (other than as the result of the action or inaction of the Collateral Agent, the Administrative Agent or the Lenders) or shall become subordinated to any Lien not securing any Obligation, or any Loan Party or any Affiliate of any Loan Party shall assert that any Lien securing any Obligation shall, in whole or in part, ceases to be a valid or perfected Lien.

(l) Change of Control. The occurrence of a Change of Control.

(m) Restraint of Operations; Loss of Assets. If any Loan Party or any Subsidiary of a Loan Party is enjoined, restrained or in any way prevented by court order or other Governmental Authority from continuing to conduct all or any material part of its business affairs, or if any material portion of any Loan Party’s or any Loan Party’s Subsidiary’s assets is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes into the possession of any third Person and the same is not discharged before the earlier of forty-five (45) days after the date it first arises or five (5) days prior to the date on which such property or asset is subject to forfeiture by such Loan Party or the applicable Subsidiary.

(n) Invalidity of Subordination Provisions. The subordination provisions of any agreement or instrument governing any Indebtedness required to be subordinated to the Obligations pursuant to the terms hereof shall for any reason be revoked or invalidated, or otherwise cease to be in full force and effect, or any Loan Party or any Affiliate of any Loan Party shall contest (or support any other Person contesting) in any manner the validity or enforceability thereof or deny that it has any further liability or obligation thereunder, or the Obligations, for any reason shall not have the priority contemplated by this Loan Agreement or such subordination provisions.

Section 10.02. Remedies Upon Event of Default. 

(a) If any Event of Default under Section 10.01(j) shall occur for any reason, whether voluntary or involuntary, all of the outstanding principal amount of the Term Loans and other Obligations shall automatically be due and payable together with the Prepayment Premium (payable pursuant to Section 3.02 and Section 4.02(a)(vii)) applicable to the date such Event of Default occurs, without further notice, demand or presentment. The parties hereto acknowledge and agree that the (A) Prepayment Premium referred to in this Section 10.02(a) (i) is additional consideration for providing the Term Loans, (ii) is a material inducement to the Lenders to make the Term Loans, (iii) is reasonable and is the product of an arm’s length transaction between sophisticated parties ably represented by counsel, (iv) constitutes reasonable liquidated damages to compensate the Lenders for (and is a proportionate quantification of) the actual loss of the anticipated stream of interest payments upon an acceleration of the Term Loans (such damages being otherwise impossible to ascertain or even estimate for various reasons, including, without limitation, because such damages would depend on, among other things, (x) when the Term Loans might otherwise be repaid and (y) future changes in interest rates which are not readily ascertainable on the Closing Date), (v) shall be payable notwithstanding any then-prevailing market rates at the time payment is made, and (vi) is not a penalty to punish the Borrowers for their early prepayment of the Term Loans or for the occurrence of any Event of Default or acceleration; (B) there has been a course of conduct between the Lenders and the Loan Parties giving specific consideration in this transaction for the agreement to pay the Prepayment Premium; and (C) the Loan Parties shall be estopped from claiming differently from as agreed to in this Section 10.02(a).

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(b) If any Event of Default (other than any Event of Default under Section 10.01(j)) shall occur for any reason, whether voluntary or involuntary, and be continuing, the Administrative Agent may, and upon the direction of the Required Lenders, the Administrative Agent shall, by notice to the Borrowers declare all or any portion of the outstanding principal amount of the Term Loans and other Obligations to be due and payable together with the Prepayment Premium (payable pursuant to Section 3.02 and Section 4.02(a)(vii)) applicable to the date such Event of Default occurs, whereupon the full unpaid amount of such Term Loans, Prepayment Premium and other Obligations that shall be so declared due and payable shall be and become immediately due and payable, in each case, without further notice, demand or presentment. The parties hereto acknowledge and agree that: (A) the Prepayment Premium referred to in this Section 10.02(b) (i) is additional consideration for providing the Term Loans, (ii) is a material inducement to the Lenders to make the Term Loans, (iii) is reasonable and is the product of an arm’s length transaction between sophisticated parties ably represented by counsel, (iv) constitutes reasonable liquidated damages to compensate the Lenders for, and is a proportionate quantification of, the actual loss of the anticipated stream of interest payments upon an acceleration of the Term Loans (such damages being otherwise impossible to ascertain or even estimate for various reasons, including, without limitation, because such damages would depend on, among other things, (x) when the Term Loans might otherwise be repaid and (y) future changes in interest rates which are not readily ascertainable on the Closing Date), (v) shall be payable notwithstanding any then-prevailing market rates at the time payment is made, and (vi) is not a penalty to punish the Borrowers for their early prepayment of the Term Loans or for the occurrence of any Event of Default or acceleration; (B) there has been a course of conduct between the Lenders and the Loan Parties giving specific consideration in this transaction for the agreement to pay the Prepayment Premium; and (C) the Loan Parties shall be estopped from claiming differently from as agreed to in this Section 10.02(b).

(c) All Prepayment Premiums referred to in Sections 10.02(a) and (b) above shall be payable upon an acceleration of any Obligations, whether before, during or after the commencement of any proceeding under the Bankruptcy Code involving any Borrower or any other Loan Party. The Prepayment Premium shall also be payable in the event the Obligations (or any portion thereof) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or any other means, including any foreclosure, sale or other disposition of or realization upon any Collateral or any other satisfaction, release, restructuring, reorganization, defeasance or compromise of any Obligations in any insolvency or other similar proceeding (under the Bankruptcy Code or otherwise). Notwithstanding anything in this Loan Agreement or any other Loan Document to the contrary, if the Obligations are accelerated following the occurrence of an Event of Default (including pursuant to this Section 10.02, by operation of law or otherwise), the Prepayment Premium determined as of the date of such acceleration will also be due and payable and will be treated and deemed as if the Term Loans were prepaid as of such date, and shall constitute part of the Obligations for all purposes. Each Borrower and each Guarantor expressly waive the provisions of any present or future statute or other law that prohibits or may prohibit the collection of the Prepayment Premium in connection with any acceleration of the Obligations or any portion thereof.

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(d) The Lenders and the Agents shall have all other rights and remedies available at law or in equity or pursuant to this Loan Agreement or any other Loan Document.

ARTICLE XI

THE AGENTS

Section 11.01. Appointments 

(a) Each Lender and each other Secured Party hereby appoints Piney Lake as its Administrative Agent under and for purposes of each Loan Document, and hereby authorizes the Administrative Agent to act on behalf of such Secured Party under each Loan Document and, in the absence of other written instructions from the Lenders pursuant to the terms of the Loan Documents received from time to time by the Administrative Agent, to exercise such powers hereunder and thereunder as are specifically delegated to or required of the Administrative Agent by the terms hereof and thereof, together with such powers as may be incidental thereto.

(b) Each Lender and each other Secured Party hereby appoints Piney Lake as its Collateral Agent under and for purposes of each Loan Document, and hereby authorizes the Collateral Agent to act on behalf of such Secured Party under each Loan Document and, in the absence of other written instructions from the Lenders pursuant to the terms of the Loan Documents received from time to time by the Collateral Agent, to exercise such powers hereunder and thereunder as are specifically delegated to or required of the Collateral Agent by the terms hereof and thereof, together with such powers as may be incidental thereto.

(c) Each Lender and each other Secured Party hereby directs the Agents to execute and deliver the Loan Documents (including any intercreditor agreements and subordination agreements contemplated hereby and, in each case, any amendments, supplements and other modifications thereto not prohibited by the terms of this Loan Agreement) on behalf of such Secured Party, in all cases in such form as the applicable Agent shall determine. Upon execution and delivery of the Loan Documents by an Agent, each Secured Party shall be bound by the terms and conditions thereof. Without limiting the foregoing, the Administrative Agent is hereby expressly authorized to execute and deliver any and all such documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the terms and conditions of this Loan Agreement and the other Loan Documents. For purposes of determining compliance with, and satisfaction of, the conditions specified in Article V, each Lender that has signed this Loan Agreement (or an Assignment and Acceptance, as applicable) shall be deemed to have consented to, approved, accepted and be satisfied with, each document and other matter required thereunder to be consented to, approved by or otherwise satisfactory or acceptable to such Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying such Lender’s objection thereto.

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(d) Each Lender and each other Secured Party hereby irrevocably designates and appoints each Agent as the agent of such Lender. Notwithstanding any provision to the contrary elsewhere in this Loan Agreement, (i) each Agent is acting solely on behalf of the Secured Parties and with duties that are entirely administrative in nature, notwithstanding the use of the terms “Administrative Agent,” “Collateral Agent,” “Agent,” and “agent,” which terms are used for title purposes only, and (ii) no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender or other Secured Party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Loan Agreement or any other Loan Document or otherwise exist against any Agent. Anything contained in any of the Loan Documents to the contrary notwithstanding, each Loan Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party (other than the Agents) shall have any right individually to realize upon any of the Collateral or to enforce this Loan Agreement, the Guaranty and Security Agreement or any other Security Document unless instructed to do so by the applicable Agent in writing, it being understood and agreed that all powers, rights and remedies hereunder or thereunder may be exercised solely by the Agents, on behalf of the Secured Parties, in accordance with the terms hereof or thereof, as applicable, and (ii) in the event of a foreclosure by any of the Agents on any of the Collateral pursuant to a public or private sale or other disposition, any Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and each Agent as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities), shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations (including Obligations owed to any other Secured Party) as a credit on account of the purchase price for any Collateral payable by such Agent at such sale or other disposition, the Lenders hereby agreeing that they may not exercise any right to credit bid at any public or private foreclosure sale or other disposition of Collateral unless instructed to do so by the applicable Agent in writing.

Section 11.02. Delegation of Duties. Each Agent may execute any of its duties under this Loan Agreement and the other Loan Documents by or through agents or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall be responsible for the negligence or misconduct of any agents or attorneys in fact selected by it with reasonable care.

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Section 11.03. Exculpatory Provisions. Neither an Agent nor any officers, director, employee, agent, attorney in fact or Affiliate of an Agent shall be (a) liable for any loss, damage, expense or liability directly or indirectly arising from any action lawfully taken or omitted to be taken by any such Person under or in connection with this Loan Agreement or any other Loan Document, except to the extent that any of the foregoing are found by a final, non-appealable order of a court of competent jurisdiction to have resulted from such Person’s own gross negligence or willful misconduct, and, without limiting the foregoing, in no event shall any Agent be required to take any action that, in its opinion or in the opinion of its counsel or other professional advisor, may expose such Agent to liability or that is contrary to any Loan Document or Applicable Law, including any action that may be in violation of the automatic stay under the Bankruptcy Code or any other bankruptcy or insolvency laws, or (b) responsible in any manner to any of the Lenders or any other Secured Party for any recitals, statements, representations or warranties made or deemed made by or on behalf of any Loan Party or any officer of any Loan Party in this Loan Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents under or in connection with, this Loan Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Loan Agreement or any other Loan Document or for any failure of any Loan Party or other Person to perform its obligations hereunder or thereunder. The Agents shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Loan Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party.

Section 11.04. Reliance by Agents. Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the Loan Parties), independent accountants and other experts selected by such Agent. The Agents may deem and treat the payee of any note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Agents. Each Agent shall be fully justified in failing or refusing to take any action under this Loan Agreement or any other Loan Document unless it shall first receive such advice or concurrence of Administrative Agent (or, if so specified by this Loan Agreement, all or other requisite Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Agents shall in all cases be fully protected in acting, or in refraining from acting, under this Loan Agreement and the other Loan Documents in accordance with a request of the Administrative Agent (or, if so specified by this Loan Agreement, all Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Term Loans and all other Secured Parties.

Section 11.05. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, except with respect to any Default or Event of Default in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent has received written notice from a Lender or the Borrowers referring to this Loan Agreement, describing such Default or Event of Default, and stating that such notice is a “notice of default”. The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Collateral Agent has received notice from a Lender or the Borrowers referring to this Loan Agreement, describing such Default or Event of Default, and stating that such notice is a “notice of default”. In the event that an Agent receives such a notice, such Agent shall give notice thereof to the other Agent and the Lenders. Each Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Loan Agreement, all Lenders or any other instructing group of Lenders specified by this Loan Agreement); provided, that unless and until the applicable Agent shall have received such directions, such Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as such Agent shall deem advisable in the interests of the Secured Parties.

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Section 11.06. Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges that neither the Agents nor any of their respective officers, directors, employees, agents, attorneys in fact or Affiliates have made any representations or warranties to such Lender and that no act by any Agent hereafter taken, including any review of the affairs of a Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any Secured Party. Each Lender represents to the Agents that such Lender has, independently and without reliance upon any Agent or any other Lender or any other Secured Party, and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates and made its own decision to enter into this Loan Agreement and make its Term Loans hereunder. Each Lender also represents that it will, independently and without reliance upon any Agent or any other Lender or any other Secured Party, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Loan Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by any Agent hereunder, the Agents shall not have any duty or responsibility to provide any Lender or any other Secured Party with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a Loan Party that may come into the possession of such Agent or any of its officers, directors, employees, agents, attorneys in fact or Affiliates.

Section 11.07. Indemnification by Lenders. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Loan Parties and without limiting the obligation of the Loan Parties to do so), ratably according to their respective Total Credit Exposure in effect on the date on which indemnification is sought under this Section 11.07 (or, if indemnification is sought after the date upon which the Term Loans shall have been paid in full in cash, ratably in accordance with such Total Credit Exposure immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Term Loans) be imposed on, incurred by, or asserted against, such Agent in any way relating to or arising out of, this Loan Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the foregoing; provided, that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final, non-appealable order of a court of competent jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct. The agreements in this Section 11.07 shall survive the repayment, satisfaction or discharge of the Term Loans and all other amounts payable under the Loan Documents, and the termination of this Loan Agreement.

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Section 11.08. Agents in Their Individual Capacities. Each Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Loan Party, and any Affiliate of any Loan Party, all as though such Agent were not an Agent. With respect to its Term Loans made or renewed by it, each Agent shall have the same rights and powers under this Loan Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not an Agent, and the terms “Lender”, “Lenders”, “Secured Party” and “Secured Parties” shall include each Agent in its individual capacity.

Section 11.09. Successor Agents. 

(a) Either Agent may resign as Agent upon thirty (30) days’ written notice to the Lenders, the other Agent and the Borrowers; provided that either Agent may resign as Agent immediately upon written notice to the Lenders, the other Agent and the Borrowers if an Event of Default has occurred and is continuing. If either Agent resigns as such Agent in its applicable capacity under this Loan Agreement and the other Loan Documents, then Required Lenders shall appoint from among the Lenders a successor agent, whereupon such successor agent shall succeed to the rights, powers and duties of such Agent in its applicable capacity, and the term “Administrative Agent” or “Collateral Agent”, as applicable, shall thereafter mean such successor agent effective upon such appointment and approval, and the former Agent’s rights, powers and duties as Agent in its applicable capacity shall be terminated, without any other or further act or deed on the part of such former Agent or any of the other parties to this Loan Agreement or any holders of the Term Loans. If no successor agent has accepted appointment as such Agent in its applicable capacity by the date upon which the retiring Agent’s notice of resignation is effective in accordance with the first sentence of this Section 11.09(a), such retiring Agent’s resignation shall nevertheless become effective on the applicable date and the Lenders shall assume and perform all of the duties of such Agent hereunder until such time, if any, as Required Lenders appoint a successor agent as provided for above. After any retiring Agent’s resignation as the Administrative Agent or the Collateral Agent, as applicable, the provisions of this Article XI shall inure to its benefit as to any actions taken or omitted to be taken by it while it was an Agent under this Loan Agreement and the other Loan Documents.

(b) Notwithstanding, but without limiting, the foregoing, if and to the extent Piney Lake is a holder of the Term Loans, unless and until the Agents resign or are replaced in accordance with the provisions hereof, upon receipt by an Agent of written notice of the occurrence of any event of default under any of the documents or agreements pursuant to which any Term Loans were pledged by Piney Lake to a Collateral Assignee (a “Collateral Assignee Default Notice”), each such Agent agrees to act on behalf of, serve as agent for, and take direction from, such Collateral Assignee, and shall no longer serve as agent for or on behalf of Piney Lake. In furtherance of the provisions hereof, subject to the provisions of Section 12.01, each Agent agrees, after receipt of a Collateral Assignee Default Notice, to execute and deliver such documents or to take such other actions as are reasonably requested by any such Collateral Assignee, in order to enforce, perfect, protect, realize upon or otherwise preserve any of its interests hereunder or in any of the Term Loans, including, without limitation, upon the removal of Piney Lake as Agent, the filing of such amendments to UCC financing statements in order to reflect such Collateral Assignee as the new secured party of record. Any such Collateral Assignee shall be entitled to specific performance with respect to, and is made an express third party beneficiary of, the provisions of this Section 11.09(b).

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Section 11.10. Agents Generally. Except as expressly set forth in this Loan Agreement or any other Loan Document, no Agent shall have any duties or responsibilities hereunder in its capacity as such.

Section 11.11. Restrictions on Actions by Secured Parties; Sharing of Payments. 

(a) Each of the Lenders agrees that it shall not, without the express written consent of the Collateral Agent, and that it shall, to the extent it is lawfully entitled to do so, upon the written request of the Collateral Agent, set off against the Obligations, any amounts owing by such Lender to any Loan Party or any of their respective Subsidiaries or any deposit accounts of any Loan Party or any of their respective Subsidiaries now or hereafter maintained with such Lender. Each of the Lenders further agrees that it shall not, unless specifically requested to do so in writing by the Collateral Agent or the Collateral Agent otherwise consents in writing, take or cause to be taken any action, including the commencement of any legal or equitable proceedings, judicial or otherwise, to enforce any Loan Document or any right or remedy against any Loan Party or to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. The provisions of this Section 11.11(a) are for the sole benefit of the Secured Parties and shall not afford any right to, or constitute a defense available to, any Loan Party or other Person.

(b) Subject to Section 12.09(b), if at any time or times any Lender receives (i) by payment, foreclosure, setoff, or otherwise, any proceeds of Collateral or any payments with respect to the Obligations, except for any such proceeds or payments received by such Lender from the Agents pursuant to the terms of this Loan Agreement, or (ii) payments from the Agents in excess of such Lender’s pro rata share of all such distributions by the Agents, then in each such case such Lender promptly shall (A) turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent, or in immediately available funds, as applicable, for the account of all of the applicable Lenders and for application to the Obligations in accordance with the applicable provisions of this Loan Agreement, or (B) purchase, without recourse or warranty, an undivided interest and participation in the Obligations owed to the other applicable Lenders so that such excess payment received shall be applied ratably as among the applicable Lenders in accordance with their pro rata shares; provided, that to the extent that such excess payment received by the purchasing party is thereafter recovered from it, those purchases of participations shall be rescinded in whole or in part, as applicable, and the applicable portion of the purchase price paid therefor shall be returned to such purchasing party, but without interest except to the extent that such purchasing party is required to pay interest in connection with the recovery of the excess payment.

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Section 11.12. Agency for Perfection. The Collateral Agent hereby appoints each other Secured Party as its agent and bailee and as sub-agent for the other Secured Parties (and each Secured Party hereby accepts such appointment) for the purpose of perfecting all Liens with respect to the Collateral, including with respect to assets which, in accordance with Article 8 or Article 9, as applicable, of the Uniform Commercial Code of any applicable state can be perfected by possession or control. Should any Secured Party obtain possession or control of any such Collateral, such Secured Party shall notify the Collateral Agent thereof and, promptly upon the Collateral Agent’s request therefor, shall deliver possession or control of such Collateral to the Collateral Agent and take such other actions as agent or sub-agent in accordance with the Collateral Agent’s instructions to the extent, and only to the extent, so authorized or directed by the Collateral Agent.

Section 11.13. Credit Bid. Each Loan Party, each Lender and the Collateral Agent each hereby irrevocably authorizes the Administrative Agent or its designee, based upon the written instruction of Required Lenders, to bid and purchase for an amount approved by Required Lenders (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof conducted (i) by any Agent under the provisions of the UCC, including pursuant to Sections 9-610 or 9-620 of the UCC, (ii) under the provisions of the Bankruptcy Code, including Sections 363, 365 and 1129 of the Bankruptcy Code, or (iii) by any Agent (whether by judicial action or otherwise, including a foreclosure sale) in accordance with Applicable Law (any such sale described clauses (i), (ii) or (iii), a “Collateral Sale”), and in connection with any Collateral Sale, the Administrative Agent or its designee may (with the consent of Required Lenders) accept non-cash consideration, including debt and equity securities issued by such acquisition vehicle under the direction or control of any Agent and the Administrative Agent may (with the consent of Required Lenders) offset all or any portion of the Obligations against the purchase price for such Collateral.

Section 11.14. One Lender Sufficient. This Loan Agreement shall be and shall remain in full force and effect, and all agency provisions shall be and shall remain effective, notwithstanding the fact that from time to time (including on the Closing Date) there may be only one Lender hereunder and the fact that such Lender may be the same Person that is serving as the Administrative Agent or the Collateral Agent hereunder.

Section 11.15. License. The Loan Parties hereby grant the Agents an irrevocable, non-exclusive license or other right to use, license or sub-license (without payment of royalty or other compensation to any Person) any or all IP Rights of the Loan Parties and their Subsidiaries, computer hardware and software, trade secrets, brochures, customer and supplier/vendor lists, promotional and advertising materials, labels, packaging materials and all other property, in advertising for sale, marketing, selling, collecting, completing manufacture of, or otherwise exercising any rights or remedies with respect to, any and all Collateral. Each Loan Party’s rights and interests under or in connection with all IP Rights shall inure to the Agents, for the benefit of the Secured Parties.

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ARTICLE XII

MISCELLANEOUS

Section 12.01. Amendments and Waivers 

(a) Neither this Loan Agreement nor any other Loan Document other than the Fee Letter, nor any terms hereof or thereof, may be amended, supplemented or modified except in accordance with the provisions of this Section 12.01.

(b) The Required Lenders may, or with the consent of the Required Lenders, the Administrative Agent shall, from time to time, (a) enter into with the relevant Loan Party or Loan Parties written amendments, supplements or other modifications hereto and to the other Loan Documents and (b) waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Loan Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that no such amendment, supplement, other modification or waiver shall:

(i) without the prior written consent of each Lender directly and adversely affected thereby, (A) reduce or forgive any portion of any Term Loan, or extend the final expiration date of any Lender’s Commitment, or extend the final scheduled maturity date of any Term Loan, or reduce the stated interest rate on any Term Loan; provided that only the consent of Required Lenders shall be necessary to waive any obligation of any Borrower to pay interest at the “default rate” or amend Section 2.05(d), or (B) reduce or forgive any portion, or extend the date for the payment, of any interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates and other than as a result of a waiver or amendment of any mandatory prepayment of Term Loans (which shall not constitute an extension, forgiveness or postponement of any date for payment of principal, interest or fees)), or (C) decrease or forgive any Term Loan Repayment Amount or any other mandatory payment or prepayment hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates and other than as a result of a waiver or amendment of any mandatory prepayment of Term Loans or Term Loan Repayment Amount (which shall not constitute a decrease or forgiveness of any repayment or prepayment of principal hereunder)) or (D) extend any scheduled Term Loan Repayment Date, or (E) amend or modify any provisions of Section 11.11(b), Section 12.09 or any other provision that provides for the pro rata nature of disbursements by or payments to Lenders, or (F) amend, modify or waive any provision of this Section 12.01, or reduce the percentages specified in the definitions of the term “Required Lenders”, or (G) consent to the assignment or transfer by any Loan Party of its rights and obligations under any Loan Document to which it is a party (except as permitted pursuant to Section 9.03);

(ii) increase the aggregate amount of any Commitment of any Lender without the prior written consent of such Lender;

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(iii) amend, modify or waive any provision of Article XI without the prior written consent of the then-current Collateral Agent and Administrative Agent; or

(iv) without the prior written consent of each Lender, release Holdings or all or substantially all of the Guarantors under the Guaranty and Security Agreement (except as expressly permitted by the Guaranty and Security Agreement), or release all or substantially all of the Collateral (except as expressly permitted thereby and by Section 12.20).

(c) Notwithstanding anything in Section 12.01(b) to the contrary, the Administrative Agent and the Borrowers, without the consent of any Lenders or any other Loan Parties, may amend, modify or supplement this Loan Agreement or any other Loan Document (i) solely to correct mistakes or typographical errors or cure ambiguities, inconsistencies or omissions herein or therein, so long as (x) such amendment, modification or supplement does not materially and adversely affect the rights of any Lender or (y) the Lenders shall have received at least five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days following the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, modification or supplement and (ii) to effect the granting, perfection, protection, expansion or enhancement of any security interest of the Secured Parties in any Collateral or additional property to become Collateral for the benefit of the Secured Parties or as required by local law to give effect to or protect any such security interests in any property or so that the security interests therein comply with the Loan Documents or Applicable Law or in each case otherwise enhance the rights or benefits of any Agent or any Lender under any Loan Document.

Section 12.02. Notices and Other Communications. 

(a) Subject to Section 12.02(c) below, all notices and other communications provided for in, or otherwise given under or in connection with, this Loan Agreement or any other Loan Document, shall be in writing and shall be delivered either by hand, by overnight courier service, by certified or registered mail or by email (in portable document format (“pdf”) or tagged image file format (“TIFF”)) as follows:

(i) if to any Loan Party, to it at:

C-PAK Consumer Product Holdings LLC

38 E. Holister Street

Cincinnati, Ohio 45219
Attention: Sam Ross and Britt Jeffcoat
Email:  sam.ross@prestigevaluebrands.com britt.jeffcoat@prestigevaluebrands.com

with a copy to:

Capital Park Group

c/o Capital Park Holdings Corp.

2100 Cedar Springs Road, Suite 601

Dallas, Dallas County, Texas 75201

Attention: Eric C. Blue
email: eric.blue@capitalpark.net

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with a copy to:

Locke Lord LLP
2200 Ross Avenue, Suite 2800
Dallas, Texas 75201
Attention: Arthur E. Anthony, Esq.

Facsimile No.: aanthony@lockelord.com

(ii) if to Piney Lake in its capacity as the Administrative Agent, the Collateral Agent or a Lender hereunder, to it at:

Piney Lake Opportunities ECI Master Fund LP
Four Greenwich Office Park
Greenwich, CT 06831
Attention: Michael Cassetta
Facsimile No.: (203) 307-5988

Email: notices@piney-lake.com

with a copy to (such copy not to constitute notice):

Proskauer Rose LLP
One International Place
Boston, MA 02110
Attention: Peter J. Antoszyk
Facsimile No.: 617-526-9899
Email: pantoszyk@proskauer.com

(iii) if to any other Lender, to it at its address, facsimile number or email address set forth either on the signature pages hereto or in the Assignment and Acceptance by which such Lender becomes a party hereto, as applicable.

(b) Any party hereto may change its address, facsimile number or email address for notices and other communications hereunder by notice delivered to all of the other parties hereto in accordance with Section 12.02(a) above.

(c) All notices and other communications given to any party hereto in accordance with the provisions of this Loan Agreement shall be deemed to have been given (i) in the case of notices and other communications delivered by hand or overnight courier service, upon actual receipt thereof, (ii) in the case of notices and other communications delivered by certified or registered mail, upon the earlier of actual delivery and the third (3^rd) Business Day after the date deposited in the U.S. mail with postage prepaid and properly addressed, provided, that no notice or communication to either Agent or to Piney Lake in its capacity as a Lender pursuant to this clause (ii) shall be effective until actually received by such Agent or Piney Lake, as applicable, (iii) in the case of notices and other communications delivered by telefacsimile, upon receipt by the sender of an acknowledgment or transmission report generated by the machine from which the telefacsimile was sent indicating that the telefacsimile was sent in its entirety to the recipient’s telefacsimile number and (iv) in the case of notices and other communications delivered by email, upon receipt by the sender of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, a return email or other written acknowledgement), provided, that no notice or communication to either Agent or to Piney Lake in its capacity as a Lender pursuant to this clause (iv) shall be effective until receipt by the sender of written confirmation of receipt affirmatively initiated by such Agent or Piney Lake, as applicable; provided, however, that in each case, if a notice or other communication would be deemed to have been given in accordance with the foregoing at any time other than during the recipient’s normal business hours on a Business Day for such recipient, such notice or other communication shall be deemed given on the next succeeding Business Day for such recipient; and provided further, that no notice to Piney Lake shall be effective until delivered by at least two, not one, of the methods described in clauses (i) through (iv) above.

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(d) Each Loan Party and each Secured Party acknowledges and agrees that the use of electronic transmission in general, and email in particular, is not necessarily secure and that there are risks associated with the use thereof, including risks of interception, disclosure and abuse, and each indicates it assumes and accepts such risks by hereby authorizing the use of electronic transmission.

(e) The Agents and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf of any Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.

(f) Each Loan Party acknowledges, understands and agrees that: (a) some or all of the Lenders from time to time borrow funds from one or more lenders pursuant to loan agreements with notice provisions that are strictly enforced by such lenders; (b) the provisions in this Loan Agreement and the other Loan Documents requiring delivery of notices and governing delivery of such notices (i) are of the essence of this Loan Agreement and such other Loan Documents, and without such provisions the Lenders would not enter into this Loan Agreement and (ii) require technical compliance in all material respects, not just notice in fact, whether or not there is any prejudice to a Lender or any other Person.

Section 12.03. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of any Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

Section 12.04. Survival of Representations and Warranties. All representations and warranties made hereunder and in the other Loan Documents shall survive the execution and delivery of this Loan Agreement and the making of the Term Loans hereunder.

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Section 12.05. Payment of Expenses and Taxes; Indemnification. Each Borrower and each other Loan Party agrees: (a) to pay or reimburse the Agents for all their reasonable and documented costs, fees and expenses incurred in connection with the development, negotiation, preparation, execution, delivery and administration of, and any amendment, supplement, or other modification to, and any waiver of any provision of, and any consent under, this Loan Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including without limitation such costs, fees and expenses related to due diligence, lien searches and filing fees and such costs, fees and expenses in relation to any payoff letter or other termination agreement and associated lien releases, and including the reasonable fees, disbursements and other charges of counsel to the Agents and tax professionals, accounting professionals, and other consultants and advisors, in all cases whether or not the Closing Date occurs and whether or not the transactions contemplated hereby or thereby are consummated; (b) [reserved]; (c) to pay or reimburse the Agents and each Lender for all of their costs, fees and expenses incurred in connection with the enforcement or preservation of any rights under this Loan Agreement, the other Loan Documents and any other documents prepared in connection herewith or therewith, in connection with any workout, restructuring or negotiations in respect thereof, in connection with any action to protect, collect, sell, liquidate or dispose of any Collateral, and in connection with any litigation, arbitration or other contest, dispute, suit, or proceeding relating to any of the foregoing, including in each case the fees, disbursements and other charges of counsel to the Agents, counsel to each Lender, and tax professionals, accounting professionals, and other consultants and advisors of the Agents and of each Lender; (d) to pay, indemnify, and hold harmless the Agents and each Lender from any and all Other Taxes, if any, that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Loan Agreement, the other Loan Documents and any such other documents; (e) to pay or reimburse the Agents and the Lenders for all reasonable fees, costs and expenses incurred in exercising their rights under Section 8.02 and Section 8.16 and to pay and reimburse Piney Lake for all reasonable fees and expenses incurred in exercising its rights under Section 8.17; and (f) to pay, indemnify and hold harmless the Agents, each Lender, each other Secured Party, and the respective Related Parties of each of them, from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, and reasonable and documented costs, expenses and disbursements of any kind or nature whatsoever, including reasonable and documented fees, disbursements and other charges of counsel, with respect to the negotiation, execution, delivery, enforcement, performance and administration of this Loan Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to any Environmental Claim that relates to any Loan Party or any property owned or leased by any Loan Party, the violation of, noncompliance with or liability under, any Environmental Law by any Loan Party or any property owned or leased by any Loan Party or any actual or alleged presence of Hazardous Materials on any property owned or leased by any Loan Party or resulting from any Loan Party in connection with the operations of each Loan Party, any of its Subsidiaries or any of their Real Property (all the foregoing in this clause (f), collectively, the “Indemnified Liabilities”); provided, however, that the Loan Parties shall have no obligation under this clause (f) to the Agents, any Lender, any other Secured Party, or any Related Parties of any of them, for Indemnified Liabilities arising from (A) the gross negligence or willful misconduct of the party to be indemnified, as determined by a final, non-appealable order of a court of competent jurisdiction or (B) any Claim resulting from one party to be indemnified against any other party to be indemnified and that does not involve an act or omission of the Borrowers, any Guarantor or any of their respective Affiliates. To the fullest extent permitted by Applicable Law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against any Agent, any Lender, any other Secured Party, and the Related Parties of each of them, on any theory of liability, for any general or consequential damages, or direct or indirect damages, in each case of any kind, and in each case whether special, reliance, punitive, compensatory, benefit of the bargain, “cover”, expectancy, exemplary, incidental, “lost profits”, or similar or other damages (including, but not limited to, damages resulting from loss of profits, revenue or business opportunity, business impact or anticipated savings) or multiples of damages, other than direct, foreseeable, actual out-of-pocket damages, arising out of, in connection with, or as a result of, this Loan Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Term Loan or the use of the proceeds thereof. No Lender, no Agent, no other Secured Party, and no Related Party of any of them shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Loan Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, in the absence of the willful misconduct or gross negligence of such Person as determined by a final, non-appealable order of a court of competent jurisdiction. The agreements in this Section 12.05 shall survive the termination of the Commitments, the repayment, satisfaction or discharge of the Term Loans and all other amounts payable under the Loan Documents, and the termination of this Loan Agreement.

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Section 12.06. Successors and Assigns; Participations and Assignments. 

(a) This Loan Agreement shall inure to the benefit of the respective successors and permitted assigns of the parties hereto and of the Related Parties and other indemnified Persons hereunder and their respective successors and permitted assigns, and the obligations and liabilities assumed in this Loan Agreement by the parties hereto shall be binding upon their respective successors and permitted assignees (including, in the case of any Loan Party, any debtor in possession on behalf of such Loan Party, except that (i) except as permitted under Section 9.03, no Loan Party may assign, transfer, hypothecate or otherwise convey any of its rights or obligations hereunder without the prior written consent of each Agent and each Lender, and any attempted assignment, transfer, hypothecation or other conveyance by any Loan Party without such prior written consent shall be null and void and of no effect ab initio, and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 12.06. Nothing in this Loan Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this Section 12.06) and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the Lenders and the other Secured Parties) any legal or equitable right, remedy or claim under or by reason of this Loan Agreement. Notwithstanding anything to the contrary herein, (a) any Lender shall be permitted to pledge or grant a security interest in all or any portion of such Lender’s rights hereunder including, but not limited to, any Term Loans (without the consent of, or notice to or any other action by, any other party hereto) to secure the obligations of such Lender or any of its Affiliates to any Person providing any loan, letter of credit or other extension of credit to or for the account of such Lender or any of its Affiliates and (b) the Agents shall be permitted to pledge or grant a security interest in all or any portion of their respective rights hereunder or under the other Loan Documents, including, but not limited to, rights to payment (without the consent of, or notice to or any other action by, any other party hereto), to secure the obligations of such Agent or any of its Affiliates to any Person providing any loan, letter of credit or other extension of credit to or for the account of such Agent or any of its Affiliates.

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(b) (i) Subject to the conditions set forth in Section 12.06(b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Loan Agreement (including all or a portion of the Term Loans at the time owing to it) with the prior written consent of:

(A) the Borrowers, which consent shall not be unreasonably withheld, conditioned, delayed or burdened (provided that it shall be deemed to be reasonable for the Borrowers not to consent to any assignment to a direct competitor of the Borrowers or a Subsidiary of a direct competitor of the Borrowers); provided, however, that (1) no consent of the Borrowers shall be required for an assignment to any Eligible Assignee or, if an Event of Default has occurred and is continuing, to any other assignee and (2) the Borrowers shall be deemed to have consented to any such assignment (and shall not be a party to or be required to sign any Assignment and Acceptance related thereto) unless it objects thereto by written notice delivered to the Administrative Agent within five (5) Business Days after having received notice thereof; and

(B) the Administrative Agent, which consent shall not be unreasonably withheld, conditioned, delayed or burdened; provided, that no consent of the Administrative Agent shall be required for an assignment to an Eligible Assignee; and provided further that the withholding, conditioning, delaying or burdening of consent by the Administrative Agent to an assignment to any Permitted Holder, Loan Party or to any Affiliate of the foregoing shall be deemed to be reasonable and not unreasonable.

(C) Notwithstanding anything herein to the contrary, no assignment, participation or other transfer of any Lender’s rights and obligations under this Loan Agreement (including all or a portion of the Term Loans at the time owing to it) may be made to any Loan Party, Permitted Holder or Affiliate of the foregoing and any such proposed transfer or participation shall be null and void ab initio.

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

(A) except in the case of an assignment to an Eligible Assignee, or an assignment of the entire remaining amount of the assigning Lender’s Term Loans, the amount of the (i) Term Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $500,000, unless each of the Borrowers and the Administrative Agent otherwise consent, which consent, in each case, shall not be unreasonably withheld, delayed, conditioned or burdened; provided, however, that no such consent of the Borrowers shall be required if an Event of Default has occurred and is continuing; and provided further, that contemporaneous assignments to a single assignee made by affiliated Lenders or related Approved Funds, and contemporaneous assignments by a single assignor to affiliated Lenders or related Approved Funds, shall in each case be aggregated for purposes of meeting the minimum assignment amount requirements stated above;

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(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Loan Agreement as to the Term Loans so assigned; provided, that this paragraph shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect its Term Loans; and

(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500; provided, that only one such fee shall be payable in connection with simultaneous assignments to two or more Approved Funds.

(iii) Subject to acceptance and recording thereof pursuant to Section 12.06(b)(v), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Loan Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Loan Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Loan Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.06, 2.07, 4.04 and 12.05 to the extent of any amounts owed to such Lender under any of such provisions). Any assignment or transfer by a Lender of rights or obligations under this Loan Agreement that does not comply with this Section 12.06 shall be treated for purposes of this Loan Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 12.06(c).

(iv) The Administrative Agent, acting solely as a non-fiduciary agent of the Borrowers for tax purposes and solely with respect the actions described in this Section 12.06(b)(iv), shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders and principal amount (and stated interest) of the Term Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The Register shall contain the name and address of each Lender and the lending office through which each Lender acts under this Loan Agreement. The entries in the Register shall be conclusive absent manifest error, and the Loan Parties, the Agents and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Loan Agreement, notwithstanding notice to the contrary. The Register, as in effect at the close of business on the preceding Business Day, shall be available for inspection by the Borrowers and any Lender at any reasonable time and from time to time on any Business Day upon reasonable prior written notice; provided, that no Lender shall, in such capacity, have access to or be otherwise permitted to review any information in the Register other than information with respect to such Lender unless otherwise agreed by the Administrative Agent in its sole discretion. This Section 12.06(b)(iv) shall be construed such that the Term 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.

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(v) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, and any written consent to such assignment required by Section 12.06(b)(i), the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Loan Agreement unless and until it has been recorded in the Register as provided in this paragraph.

(c) (i) Any Lender may, without the consent of either Borrower or the Agents, sell participations to one or more banks or other entities (each, a “Participant”) in all or a portion of such Lender’s rights and obligations under this Loan Agreement (including all or a portion of the Term Loans owing to it); provided, that (A) such Lender’s obligations under this Loan Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (C) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Loan Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Loan Agreement and to approve any amendment, modification or waiver of any provision of this Loan Agreement or any other Loan Document; provided, that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Sections 12.01(b)(i), 12.01(b)(ii), 12.01(b)(iii) or 12.01(b)(iv). Subject to Section 12.06(c)(ii), each Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.06, 2.07 and 4.04 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 12.06(b). To the extent permitted by Applicable Law, each Participant also shall be entitled to the benefits of Section 12.09(b) as if it were a Lender; provided, that such Participant agrees to be subject to Section 12.09(a) as if it were a Lender.

(ii) A Participant shall not be entitled to receive any greater payment under Sections 2.06, 2.07 or 4.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. Each Borrower agrees that each Participant shall be entitled to the benefits of Section 4.04 so long as the documentation required by Section 4.04(f) is delivered by the participant to the participating Lender.

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(iii) Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain at one of its offices in the United States a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in such Lender’s Term Loans or other obligations under the Loan Documents (the “Participant Register”). The entries in each Participant Register shall be conclusive absent manifest error, and the applicable Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Loan Agreement notwithstanding any notice to the contrary. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The Administrative Agent shall have no responsibility for maintaining any Participant Register, and any notices or other documents required to be delivered by the Loan Parties shall be deemed to be delivered to a Participant upon actual delivery to the Lender that sold the participation to such Participant.

(d) Nothing herein is intended to prevent, impair, limit or otherwise restrict the ability of a Lender to collaterally assign or pledge all or any portion of its interests in the Term Loans and the other rights and benefits under the Loan Documents to an unaffiliated third party lender of such Lender (each such Person, a “Collateral Assignee”); provided that unless and until the Borrowers receive notification from a Collateral Assignee of such assignment directing payments to be made to such Collateral Assignee, any payment made by the Borrowers for the benefit of such Lender in accordance with the terms of the Loan Documents shall satisfy the Borrowers’ obligations thereunder to the extent of such payment. Any such Collateral Assignee, upon foreclosure of its security interests in the Term Loans pursuant to the terms of such assignment and in accordance with Applicable Law, shall succeed to all the interests of or shall be deemed to be a Lender, with all the rights and benefits afforded thereby, and such transfer shall not be deemed to be a transfer for purposes of and otherwise subject to the provisions of this Section 12.06. Notwithstanding the foregoing, each Lender shall remain responsible for all obligations and liabilities arising hereunder or under any other Loan Document, and, except as otherwise expressly set forth in any applicable pledge or assignment, nothing herein is intended or shall be construed to impose any obligations upon or constitute an assumption by a Collateral Assignee thereof.

(e) The Administrative Agent and the Lenders may enter into an agreement on or at any time after the Closing Date, pursuant to which they may agree to certain voting arrangements relating to matters requiring the consent or approval of some or all of the Lenders, to pricing or yield arrangements, to the manner in which payments and proceeds are applied, and to such other matters as they may deem appropriate in their sole discretion; provided that a copy of such agreement shall be provided to the Borrower. Any such agreement shall be binding on the parties thereto with respect to the matters addressed therein, notwithstanding any conflicting or other terms in this Loan Agreement to the contrary. Each Person who becomes a Lender pursuant to an assignment permitted under Section 12.06(b)(i) shall be bound by the terms of each such agreement as if such Person was an original party thereto.

Section 12.07. Replacements of Lenders Under Certain Circumstances. The Administrative Agent, at the Borrowers sole cost and expense, shall be permitted to replace any Lender or any Participant that (i) requests reimbursement for amounts owing pursuant to Section 2.06, Section 2.08, or Section 4.04 if such Lender has declined or is unable to designate a different lending office in accordance with Section 2.08, or (ii) is affected in the manner described in Section 2.06(a)(iii) and as a result thereof any of the actions described in such Section 2.06(a)(iii) is required to be taken; provided, that (A) such replacement does not conflict with any Applicable Law, (B) no Default or Event of Default shall have occurred and be continuing at the time of such replacement, (C) the Borrowers shall repay (or the replacement bank or institution shall purchase), at par, all Term Loans and other amounts (including any applicable Prepayment Premium and Fees (excluding any disputed amount which shall be placed into an escrow account on terms and conditions reasonably satisfactory to the Administrative Agent, until such dispute is resolved) owing to such replaced Lender pursuant to this Loan Agreement, (D) the replacement bank or institution (if not already a Lender), and the terms and conditions of such replacement, shall be reasonably satisfactory to the Administrative Agent, and the withholding of consent by the Administrative Agent to any Loan Party or any Affiliate of any Loan Party becoming a replacement Lender shall be deemed to be reasonable and not unreasonable, (E) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 12.06 (except that such replaced Lender shall not be obligated to pay any processing and recordation fee required pursuant thereto), (F) any such replacement shall not be deemed to be a waiver of any rights that the Borrowers, any Agent or any other Lender shall have against the replaced Lender, and (G) in the case of any such assignment resulting from a claim for compensation under Section 2.06 or payments required to be made pursuant to Section 4.04, such assignment will result in a reduction in such compensation or payments thereafter. A Lender shall not be required to make any such assignment or delegation if prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.

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Section 12.08. Securitization. The Loan Parties acknowledge that the Lenders and their Affiliates may (i) pledge all or a portion of the Term Loans as collateral security for loans to such Lenders or their Affiliates, (ii) sell all or a portion of the Term Loans to a third party, (iii) issue direct or indirect interests in the Term Loans to their controlled Affiliates or (iv) otherwise securitize all or a portion of the Term Loans (any transaction described in clauses (i) through (iv), a “Securitization”), and that the Lenders and their Affiliates may seek to have such loans to such Lenders or their Affiliates, such sold Term Loans, such direct or indirect interests or such securitization rated by Moody’s, S&P or one or more other rating agencies (each, a “Rating Agency”). The Loan Parties shall cooperate with the Lenders and their Affiliates to effect any and all Securitizations and to obtain a public or unpublished loan rating or a corporate rating from any Rating Agency requested by any Lender, including, without limitation, by (a) amending this Loan Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by such Lenders, in connection with any Securitization (provided that, if such request occurs at any time before the aggregate principal amount of the Term Loans is less than or equal to $250,000,000 (i) any such amendment or additional documentation does not impose additional costs on the Loan Parties in excess of $10,000 throughout the term of this Loan Agreement (unless such costs are reimbursed by the Lenders requesting such Securitization on a pro rata basis) and (ii) any such amendment or additional documentation does not adversely affect the rights, or increase the obligations, of the Loan Parties under the Loan Documents or change or affect in a manner adverse to the Loan Parties the financial terms of the Obligations) and (b) providing such information as may be reasonably requested by such Lenders, in connection with the rating of the Obligations or any Securitization, including, if so requested by a Lender, by meeting with representatives of such Rating Agency and discussing its business and affairs with such representatives to the extent required to obtain such rating. No Securitization shall (i) release any Lender from any of its obligations hereunder, (ii) restrict or limit an Agent’s discretion in connection with any amendment, supplement, waiver or other modification of any of the terms of this Loan Agreement or any other Loan Document or (iii) substitute any pledgee, secured party or any other party to such Securitization for such Lender as a party hereto, and no change in ownership of the Term Loans may be effected, in each case except pursuant to Section 12.06.

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Section 12.09. Adjustments; Set-off. 

(a) If any Lender at any time receives any payment of all or part of its Term Loans, interest thereon or Prepayment Premium in respect thereof, or receives any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 10.01(j), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of such other Lender’s Term Loans, interest thereon or Prepayment Premium in respect thereof, such recipient Lender shall purchase for cash from the other Lenders a participating interest in such portion of each such other Lender’s Term Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such recipient Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the other Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such recipient Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The foregoing provisions of this Section 12.09 shall not apply to payments made and applied in accordance with the terms of this Loan Agreement and the other Loan Documents.

(b) After the occurrence and during the continuance of an Event of Default, to the extent consented to by the Administrative Agent, in addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to the Borrowers or any other Loan Party, any such notice being expressly waived by the Loan Parties to the extent permitted by Applicable Law, upon any amount becoming due and payable by either Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final, but excluding any Excluded Deposit Account), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrowers, as the case may be. Each Lender agrees promptly to notify the Borrowers and the Agents after any such set-off and application made by such Lender; provided, that the failure to give such notice shall not affect the validity of such set-off and application.

Section 12.10. Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted and signed and delivered by facsimile or other electronic means. The effectiveness of any such documents and signatures shall have the same force and effect as manually signed originals and shall be binding on all Loan Parties, the Agents and the Lenders.

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Section 12.11. Counterparts. Any number of counterparts of this Loan Agreement and the other Loan Documents, including facsimiles and other electronic copies, may be executed by the parties hereto. Each such counterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one and the same agreement.

Section 12.12. Severability. All provisions of this Loan Agreement are severable, and the unenforceability or invalidity of any of the provisions of this Loan Agreement shall not affect the validity or enforceability of the remaining provisions of this Loan Agreement. Should any part of this Loan Agreement be held invalid or unenforceable in any jurisdiction, the invalid or unenforceable portion or portions shall be removed (and no more) only in that jurisdiction, and the remainder shall be enforced as fully as possible (removing the minimum amount possible) in that jurisdiction. In lieu of such invalid or unenforceable provision, the parties hereto will negotiate in good faith to add as a part of this Loan Agreement a legal, valid and enforceable provision as similar in terms to such invalid or unenforceable provision as may be possible.

Section 12.13. Integration. This Loan Agreement and the other Loan Documents contain the entire agreement of the parties with respect to the subject matter hereof and thereof and supersede all prior negotiations, agreements and understandings with respect thereto, both written and oral. This Loan Agreement may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten or oral agreements between the parties. By executing and delivering this Loan Agreement, each Loan Party hereby fully and irrevocably releases and agrees not to assert in any manner any and all claims which such Loan Party may have at law or in equity in relation to all prior written and oral discussions and understandings relating to this Loan Agreement, the other Loan Documents, the subject matter hereof and thereof, and the Transactions. When this Loan Agreement or any other Loan Document refers to a party’s “sole discretion”, such phrase means that party’s sole and absolute discretion as to process and result, which shall be final for all purposes hereunder, to be exercised (to the fullest extent the law permits) for any reason, subject to no standard of reasonableness or review and part of no claim before any court, arbitrator or other tribunal or forum or otherwise.

Section 12.14. GOVERNING LAW. THIS LOAN AGREEMENT, THE OTHER LOAN DOCUMENTS (EXCEPT AS MAY OTHERWISE BE PROVIDED THEREIN), AND THE VALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE HEREOF AND THEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND ANY CLAIM BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE DETERMINED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK FOR CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS REQUIRING APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.

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Section 12.15. Waiver of Certain Rights. Each Loan Party irrevocably and unconditionally waives, to the maximum extent not prohibited by Applicable Law, all rights of rescission, setoff, counterclaims, and other defenses in connection with the repayment of the Obligations.

Section 12.16. Acknowledgments. Each Loan Party hereby acknowledges that:

(a) it has been advised by counsel of its choice in the negotiation, execution and delivery of this Loan Agreement and the other Loan Documents, such counsel has reviewed this Loan Agreement and the other Loan Documents, this Loan Agreement and the other Loan Documents (including, without limitation, Section 12.14, Section 12.15 and Article XIII hereof) are the result of such advice and review, and neither this Loan Agreement nor any other Loan Document shall be construed against an Agent or any Lender merely because of such Agent’s or such Lender’s involvement in the preparation of any such document;

(b) neither any Agent nor any Lender has any fiduciary relationship with or duty to any Loan Party arising out of or in connection with this Loan Agreement or any of the other Loan Documents, and the relationship between any Agent and any Lender, on one hand, and each Loan Party, on the other hand, in connection herewith or therewith is solely that of debtor and creditor;

(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Agents and the Lenders or among the Loan Parties and the Agents and the Lenders; and

(d) this Loan Agreement does not give rise now or in the future to an agency or partnership relationship between any Loan Party on the one hand and any Agent, any Lender or any of their respective Affiliates on the other hand.

Section 12.17. No Arranger Duties. Notwithstanding anything herein or elsewhere to the contrary, the “Sole Lead Arranger” referred to on the cover page hereof does not, and shall not, have any powers, duties, responsibilities or liabilities to the Borrowers or any other Person under this Loan Agreement or any of the other Loan Documents in such capacity.

Section 12.18. Confidentiality. Each Agent and each Lender shall use commercially reasonable efforts to hold all non-public information relating to any Loan Party or any Subsidiary of any Loan Party obtained pursuant to the requirements of this Loan Agreement (“Confidential Information”) confidential in accordance with its customary procedure for handling confidential information of this nature and, in the case of a Lender that is a bank, in accordance with safe and sound banking practices; provided, however, that in any event any Agent or Lender may disclose Confidential Information:

(a) as such Person reasonably believes is required by Law (including, without limitation, SEC rules and regulations);

(b) pursuant to any subpoena or any other legal process or as is otherwise required or requested by any court or other tribunal, securities exchange, or any other judicial, governmental, quasi-governmental, supervisory or regulatory board or agency, or representative thereof (including, without limitation, the SEC), or any representative of any such court, other tribunal, securities exchange, board or body;

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(c) in connection with, and at all times following, the enforcement of any rights or exercise of any remedies by any Agent or any Lender under this Loan Agreement or any other Loan Document, or any action or proceeding relating to this Loan Agreement or any other Loan Document;

(d) to such Agent’s or Lender’s Affiliates, and to such Agent’s, Lender’s and Affiliates’ respective Related Parties;

(e) in connection with:

(i) the establishment of any special purpose funding vehicle with respect to the Term Loans,

(ii) any Securitization permitted under Section 12.08;

(iii) any prospective assignment of, or participation in, its rights and obligations pursuant to Section 12.06, to prospective assignees or Participants, as applicable, provided that such prospective assignees or Participants agree to treat such information as confidential substantially in accordance with the terms of this Section 12.18 as if such prospective assignees or Participants were Agents or Lenders hereunder;

(iv) any actual or proposed credit facility for loans, letters of credit or other extensions of credit to or for the account of such Agent or Lender or any of its Affiliates, to any Person providing or proposing to provide such loan, letter of credit or other extension of credit or any agent, trustee or representative of such Person; and

(v) any public or regulatory filing or reporting;

(f) to any Rating Agency; and

(g) to any other creditor of any Loan Party or Subsidiary thereof; and

(h) to any other Person with the consent of the Borrowers.

Notwithstanding the foregoing, (A) each of the Agents, the Lenders and any Affiliate thereof is hereby expressly permitted by the Loan Parties to refer to any Loan Party and any of their respective Subsidiaries in connection with any promotion or marketing undertaken by such Agent, Lender or Affiliate and, for such purpose, such Agent, Lender or Affiliate may utilize any trade name, trademark, logo or other distinctive symbol associated with such Loan Party or such Subsidiary or any of their businesses and (B) no Agent or Lender shall have any obligation to keep information confidential if such information: (i) is or becomes public or known to participants in the Borrowers industry from a source other than an Agent, a Lender or an Agent’s or a Lender’s legal or financial advisors; (ii) is, was or becomes known on a non-confidential basis to or discovered by an Agent, Lenders or any of their legal or financial advisors independently from communications by or on behalf of any Loan Party, provided that the source of such information was not actually known by the disclosing Agent, Lender or advisor to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the relevant Loan Party; or (iii) is independently developed by an Agent or a Lender without use of such confidential information.

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Section 12.19. Press Releases, etc.. Each Loan Party will not, and will not permit any of its Affiliates or its or its Affiliates’ respective officers, directors, shareholders or employees to, directly or indirectly, (i) publish or permit to be published any press release or other similar public disclosure or announcements (including any marketing materials) regarding this Loan Agreement, the other Loan Documents or any of the Transactions, without the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld, or (ii) publish or permit to be published Piney Lake’s name or logo, or otherwise refer to Piney Lake or any of its Affiliates, in connection with this Loan Agreement, the other Loan Documents or any of the Transactions, without the prior written consent of the Administrative Agent. Each Loan Party respects the fact that public relations and investor relations are core missions for Piney Lake and commits to work constructively and in good faith with Piney Lake on any press release in connection with the financing contemplated by this Loan Agreement such that any such press release advances Piney Lake’s mission and is satisfactory to Piney Lake.

Section 12.20. Termination of Obligations; Releases of Guaranties and Liens 

(a) At such time as the Term Loans and the other Obligations (other than Unasserted Contingent Obligations) shall have been paid in full in cash, all obligations of the Administrative Agent, the Collateral Agent and the Lenders under this Loan Agreement and under the other Loan Document shall automatically terminate without delivery of any instrument or performance of any act by any Person, and at the Borrowers’ request and sole cost and expense, the Collateral Agent shall terminate the Security Documents and release the Collateral from the Liens created by the Security Documents.

(b) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Collateral Agent is hereby irrevocably authorized by each Secured Party (without requirement of notice to or consent of any Secured Party except as expressly required by Section 12.01) to take any action requested by the Borrowers having the effect of releasing any Collateral or guarantee obligations (i) to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document or that has been consented to in accordance with Section 12.01 or (ii) under the circumstances described in Section 12.21(c).

(c) [Reserved].

(d) Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release its interest in particular types or items of property, or to release any guarantee obligations pursuant to this Section 12.21. In each case as specified in this Section 12.21, the Collateral Agent will (and each Lender irrevocably authorizes the Collateral Agent to), at the Borrowers sole cost and expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral or guarantee obligation from the assignment and security interest granted under the Security Documents, in each case in accordance with the terms of the Loan Documents and this Section 12.21.

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(e) Notwithstanding anything herein to the contrary, the agreements of the parties in Sections 12.02, 12.12, 12.13, 12.14, 12.16, 12.17, 12.22 and Article XIII shall survive the repayment, satisfaction or discharge of the Term Loans and all other amounts payable under the Loan Documents, and the termination of this Loan Agreement.

(f) This Loan Agreement shall remain in full force and effect and continue to be effect should any petition be filed by or against either Borrower for liquidation or reorganization, should either Borrower become insolvent or make an assignment for the benefit of any creditor or creditors or should a receiver or trustee be appointed for all or any significant part of such Borrower’s assets, and this Loan Agreement shall continue to be effective or to be reinstated, as the case may be, if at any time payment and performance of all or any portion of the Obligations is, pursuant to Applicable Law, rescinded or reduced in amount, or must otherwise be restored or returned by any oblige of any Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

Section 12.21. USA Patriot Act. Each Lender hereby notifies each Loan Party that, pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of each Loan Party and other information that will allow such Lender to identify each Loan Party in accordance with the Patriot Act. Each Loan Party agrees to provide all such information to the Lenders upon request by any Agent at any time, whether with respect to any Person who is a Loan Party on the Closing Date or who becomes a Loan Party thereafter.

Section 12.22. No Fiduciary Duty. Each Loan Party, on behalf of itself and its Subsidiaries, agrees that in connection with all aspects of the transactions contemplated hereby and any communications in connection therewith, the Loan Parties, their respective Subsidiaries and Affiliates, on the one hand, and the Agents, the Lenders, the other Secured Parties, and all of their respective Affiliates, on the other hand, will have a business relationship that does not create, by implication or otherwise, any fiduciary duty on the part of the Agents the Lenders or their respective Affiliates, and no such duty will be deemed to have arisen in connection with any such transactions or communications.

Section 12.23. Reliance on Certificates. Notwithstanding anything to the contrary herein, the Secured Parties shall be entitled to rely and act upon any certificate, notice or other document delivered by or on behalf of any Person purporting to be an Authorized Officer of a Loan Party, and shall have no duty to inquire as to the actual incumbency or authority of such Person.

Section 12.24. No Waiver. A Secured Party’s failure to insist at any time upon strict compliance with this Loan Agreement or with any of the terms of this Loan Agreement or any continued course of such conduct on its part will not constitute or be considered a waiver by such Secured Party of any of its rights or privileges. A waiver or consent, express or implied, of or to any breach or default by any party in the performance by that party of its obligations with respect to this Loan Agreement is not a waiver or consent of or to any other breach or default in the performance by that party of the same or any other obligations of that party.

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Section 12.25. The Borrower as the Loan Parties’ Representative. Each Loan Party (other than the Borrowers) hereby irrevocably appoints the Borrowers as the borrowing agent and attorney-in-fact for all Loan Parties, which appointment is coupled with an interest and shall remain in full force and effect unless and until the Administrative Agent (i) in its sole discretion shall have consented in writing to the revocation of such appointment and (ii) received prior written notice signed by the Loan Parties that such appointment has been revoked and that another Loan Party has been appointed. Each Loan Party hereby irrevocably appoints and authorizes the Borrowers to (a) provide the Agents and the Lenders with all notices with respect to all Term Loans and other extensions of credit obtained for the benefit of the Borrowers and all other notices and instructions under this Loan Agreement and the other Loan Documents, (b) amend, supplement or otherwise modify any term or condition of this Loan Agreement or any other Loan Document in accordance with Section 12.01(b) without any requirement that such Loan Party also sign any documents or instruments to effectuate any such amendment, supplement or other modification, and (c) take such action as the Borrowers deems appropriate on such Loan Party’s behalf to exercise such powers as are reasonably incidental thereto to carry out the purposes of this Loan Agreement and the other Loan Documents. Each Loan Party acknowledges that the handling of this Loan Agreement, the other Loan Documents and the Collateral in a combined fashion, as more fully set forth herein and in the other Loan Documents, is done solely as an accommodation to the Loan Parties in order to utilize the collective borrowing powers of the Loan Parties in the most efficient and economical manner and at their request, and that no Agent or Lender shall incur liability to any Loan Party as a result thereof. Each Loan Party expects to derive substantial benefit, directly or indirectly, from the handling of this Loan Agreement, the other Loan Documents and the Collateral in a combined fashion because the successful operation of each Loan Party is dependent on the continued successful performance of the integrated group. To induce the Agents and Lenders to do so, and in consideration thereof, each Loan Party hereby jointly and severally agrees to indemnify each Agent and each Lender against, and hold each Agent and each Lender harmless from, any and all liability, expense, loss or claim of damage or injury made against any Agent or Lender by any Loan Party or by any third party whosoever, arising from or incurred by reason of (a) the handling of this Loan Agreement, the other Loan Documents and the Collateral as provided herein, or (b) an Agent or a Lender relying on any instructions of the Borrowers, except that the Loan Parties will have no liability to any Agent or Lender pursuant to this Section 12.25 with respect to any liability that has been finally determined by a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of such Agent or such Lender, as applicable.

Section 12.26. [Reserved].

Section 12.27. Acknowledgement and Consent to Bail-In of EEA Financial Institutions.

(a) 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 Lender that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(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 Lender that is an EEA Financial Institution; and

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

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

(iv) 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 Loan Agreement or any other Loan Document; or

(v) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

Section 12.28. Interest Rate Limitation. Notwithstanding anything in this Loan Agreement or any other Loan Document to the contrary, the interest paid or agreed to be paid under this Loan Agreement and the other Loan Documents, together with all fees, charges and other amounts which are treated as interest under Applicable Law (collectively, “Charges”), shall not exceed the maximum rate of non-usurious interest permitted to be contracted for, charged, taken or received pursuant to Applicable Law (the “Maximum Rate”). If at any time the interest rate and Charges applicable to any Term Loan exceed the Maximum Rate, then, ipso facto as of the first date on which the interest rate and Charges applicable to any Term Loan exceed the Maximum Rate, such interest rate and Charges shall be limited to the Maximum Rate and, to the extent permitted by Applicable Law, the amount of all interest and Charges that would have been payable but were not payable as a result of the operation of this Section 12.09 shall be applied first, to the outstanding principal amount of the Term Loans, and second, to all other outstanding Obligations (other than interest and Charges), and then third, any remaining excess shall be refunded to either Borrower.

Section 12.29. Joint and Several Liability of the Borrowers. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to each Agent and the Secured Parties 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 each Agent it’s the Secured Parties 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 12.29 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12.29 shall be absolute, unconditional and irrevocable, irrespective of, and unaffected by, (i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, any Obligation or any agreement, document or instrument to which any Borrower is or may become a party; (ii) the absence of any action to enforce any Obligation or the waiver or consent by any Agent or any Secured Party with respect to any of the provisions governing any Obligation; (iii) the insolvency of any Borrower or Subsidiary thereof; and (iv) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor (other than defense of payment in full). Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.

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ARTICLE XIII

JURISDICTION; WAIVERS; MISCELLANEOUS

Section 13.01. [Reserved].

Section 13.02. JURISDICTION; VENUE; SERVICE OF PROCESS; JURY TRIAL WAIVER; ETC. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES AS FOLLOWS:

(a) EACH LOAN PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN IN THE STATE OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE TERM LOANS, THIS LOAN AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOTHING IN THIS LOAN AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THE TERM LOANS, THIS LOAN AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES BY WAY OF ARBITRATION OR IN THE COURTS OF ANY JURISDICTION.

(b) EACH LOAN PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE TERM LOANS, THIS LOAN AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT IN ANY STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

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(c) EACH PARTY TO THIS LOAN AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER AND AT THE ADDRESSES PROVIDED FOR NOTICES IN SECTION 12.02 BY MAIL. NOTHING IN THIS LOAN AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS LOAN AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

(d) EACH LOAN PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION WITH THE TERM LOANS, THIS LOAN AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT, OR (II) ARISING FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH OR RELATED TO THE TERM LOANS, THIS LOAN AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT, AND AGREES THAT ANY SUCH ACTION OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH LOAN PARTY ACKNOWLEDGES THAT (A) IT HAD THE OPPORTUNITY TO REVIEW THIS JURY TRIAL WAIVER WITH ITS LEGAL COUNSEL, (B) IT KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHT TO A JURY TRIAL AND (C) NO PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF A LITIGATION, SEEK TO ENFORCE THE FOREGOING JURY TRIAL WAIVERS. THIS SECTION 13.02(d) IS A MATERIAL INDUCEMENT FOR THE AGENTS AND THE LENDERS GRANTING ANY FINANCIAL ACCOMMODATIONS TO THE LOAN PARTIES.

(e) EACH LOAN PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND AGREES NOT TO INITIATE, MAKE OR PURSUE, IN EACH CASE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT ANY ARBITRATION, ACTION OR PROCEEDING COMMENCED BY AN AGENT OR A LENDER RELATING TO THE TERM LOANS, THIS LOAN AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT SHOULD BE DISMISSED OR STAYED BY REASON OF, OR PENDING THE RESOLUTION OF, ANY ACTION OR PROCEEDING COMMENCED BY A LOAN PARTY RELATING IN ANY WAY TO THE TERM LOANS, THIS LOAN AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT WHETHER OR NOT COMMENCED EARLIER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH LOAN PARTY WILL TAKE ALL MEASURES NECESSARY FOR ANY ARBITRATION, ACTION OR PROCEEDING COMMENCED BY AN AGENT OR ANY LENDER TO PROCEED TO JUDGMENT PRIOR TO THE ENTRY OF JUDGMENT IN ANY SUCH ACTION OR PROCEEDING COMMENCED BY A LOAN PARTY.

(f) No provision of, nor the exercise of any rights under, Section 13.02(a) or Section 13.02(b) above shall limit the right of any Agent or any other Secured Party to (i) foreclose against any real or personal property collateral through judicial foreclosure, by the exercise of a power of sale under a deed of trust, mortgage or other security agreement or instrument, pursuant to applicable provisions of the UCC, or otherwise pursuant to applicable Law, (ii) exercise self-help remedies including but not limited to set-off and repossession, or (iii) request and obtain from a court having jurisdiction before, during or after the pendency of any arbitration provisional or ancillary remedies and relief including but not limited to injunctive or mandatory relief or the appointment of a receiver. The institution and maintenance of an action or judicial proceeding for, or pursuit of, provisional or ancillary remedies or exercise of self-help remedies shall not constitute a waiver of any rights of an Agent or any other Secured Party to submit any Dispute to arbitration if an Agent or another Secured Party would otherwise have such right.

[signatures begin on next page]

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IN WITNESS WHEREOF, each of the parties hereto has duly executed and delivered this Loan Agreement as of the date first above written.

THE BORROWERS:	C-PAK CONSUMER PRODUCT HOLDINGS LLC, a Delaware limited liability company
	By:	/s/ Sam Ross‎
		Sam Ross, President and Chief Operating Officer
	C-PAK Consumer Product IP SPV LLC, a Delaware limited liability company
	By:	/s/ Sam Ross‎ ‎‎ ‎‎ ‎‎ ‎
		Sam Ross, President and Chief Operating Officer
HOLDINGS:	C-PAK CONSUMER PRODUCT HOLDINGS SPV I LLC, a Delaware limited liability company
	By:	/s/ Eric Blue ‎‎ ‎‎ ‎‎ ‎
		Eric C. Blue, Manager

[Signature Page to Loan Agreement]

ADMINISTRATIVE AGENT AND COLLATERAL AGENT:	PINEY LAKE OPPORTUNITIES ECI MASTER FUND LP
	By:	Piney Lake Capital Manager LP, as Advisor
‎‎	By:	/s/ Michael Lazar‎
	Name:	Michael B. Lazar
	Title:	President

[Signature Page to Loan Agreement]

LENDER:	Piney Lake Opportunities ECI Master Fund LP
	By:	Piney Lake Capital Manager LP, as Advisor
‎‎	By:	/s/ Michael Lazar‎
	‎Name:	Michael B. Lazar
	‎Title:	President

[Signature Page to Loan Agreement]

SCHEDULE 1.01(a)

TERM LOAN COMMITMENTS

Lenders	Term Loan Commitment		Pro Rata Portion
Piney Lake Opportunities ECI Master Fund LP	$	22,000,000.00		100.00	%
Total	$	22,000,000.00		100.00	%

EX-10.2

Exhibit 10.2

Execution Version

GUARANTY AND SECURITY AGREEMENT

dated as of May 3, 2019

among

C-PAK Consumer Product Holdings LLC

and

C-PAK CONSUMER PRODUCT IP SPV LLC

collectively, jointly and severally, as the Borrowers, and each individually as a Borrower,

C-Pak Consumer Product Holdings SPV I LLC,

as Holdings,

the other GRANTORS from time to time party hereto,

and

PINEY LAKE OPPORTUNITIES ECI MASTER FUND LP,

as the Collateral Agent

TABLE OF CONTENTS

SECTION 1.	DEFINED TERMS	2
1.1.	Definitions	2
1.2.	Other Definitional Provisions	6
SECTION 2.	Guaranty	7
2.1.	Guaranty	7
2.2.	Right of Contribution	8
2.3.	No Subrogation	9
2.4.	Actions with Respect to Guaranteed Obligations	9
2.5.	Guaranty Absolute and Unconditional	10
2.6.	Inability to Accelerate Loans	12
2.7.	Acknowledgment of Waivers and Losses of Defenses	13
2.8.	Reinstatement	13
2.9.	Payments	14
SECTION 3.	GRANT OF SECURITY INTEREST	14
SECTION 4.	REPRESENTATIONS AND WARRANTIES	16
4.1.	[Reserved]	16
4.2.	Other Representations	16
4.3.	Title; No Other Liens	16
4.4.	Perfected Priority Liens	17
4.5.	Perfection Certificate; Jurisdiction of Organization; Chief Executive Office	17
4.6.	Farm Products	17
4.7.	Investment Property	17
4.8.	Receivables	19
4.9.	Contracts	19
4.10.	Intellectual Property	19
4.11.	Commercial Tort Claims	20
4.12.	Inventory and Equipment; Books and Records	21
4.13.	Instruments and Tangible Chattel Paper	21
SECTION 5.	COVENANTS	21
5.1.	[Reserved]	21
5.2.	Delivery of Instruments and Chattel Paper	21
5.3.	Maintenance of Perfected Security Interest; Further Documentation	21
5.4.	Changes in Locations, Name, etc	22
5.5.	Investment Property	22
5.6.	Receivables	24
5.7.	Intellectual Property	25
5.8.	Intellectual Property Filing	27
5.9.	Commercial Tort Claims	27
5.10.	Collateral in the Possession of a Bailee	28
5.11.	Electronic Chattel Paper	28

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5.12.	Letter-of-Credit Rights	28
5.13.	[Reserved]	29
5.14.	Insurance	29
5.15.	[Reserved]	29
5.16.	[Reserved]	29
5.17.	Further Assurances; Pledge of Instruments	29
5.18.	No Perfection	30
SECTION 6.	REMEDIAL PROVISIONS	30
6.1.	Certain Matters Relating to Receivables	30
6.2.	Communications with Obligors; Grantors Remain Liable	30
6.3.	Pledged Stock	32
6.4.	Proceeds To Be Turned Over to Collateral Agent	34
6.5.	Application of Proceeds	34
6.6.	UCC and Other Remedies	34
6.7.	Sales of Pledged Stock	35
6.8.	IP Licenses	35
6.9.	Waiver; Deficiency	36
SECTION 7.	THE COLLATERAL AGENT	36
7.1.	Collateral Agent’s Appointment as Attorney-in-Fact, etc	36
7.2.	Duty of Collateral Agent	38
7.3.	Financing Statements	38
7.4.	Authority of Collateral Agent	39
SECTION 8.	MISCELLANEOUS	39
8.1.	Amendments and Waivers	39
8.2.	Notices	39
8.3.	No Waiver by Course of Conduct; Cumulative Remedies	39
8.4.	Successors and Assigns	39
8.5.	Set-Off	40
8.6.	Counterparts	40
8.7.	Severability	40
8.8.	Section Headings	40
8.9.	Integration	40
8.10.	GOVERNING LAW	41
8.11.	Waiver	41
8.12.	Acknowledgements	41
8.13.	Additional Grantors and Guarantors	41
8.14.	Releases of Guaranty and Liens	42
8.15.	Subordination	42
8.16.	Intercompany Debt Subordination	43
8.17.	WAIVER OF JURY TRIAL; DISPUTE RESOLUTION; JURISDICTION; VENUE; SERVICE OF PROCESS	44
8.18.	Marshaling	44
8.19.	Intercreditor Agreement	44

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SCHEDULES

Schedule 1	Investment Property
Schedule 2	Filings and other Actions
Schedule 3	Capital Stock
Schedule 4	Intellectual Property
Schedule 5	Commercial Tort Claims
Schedule 6	Inventory and Equipment

ANNEXES

Annex I	Form of Joinder and Assumption Agreement
Annex II	Form of Intellectual Property Security Agreement
Annex III	Form of Issuer Control Agreement

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GUARANTY AND SECURITY AGREEMENT

GUARANTY AND SECURITY AGREEMENT dated as of May 3, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified, renewed or replaced from time to time, this “Agreement”) among C-PAK Consumer Product Holdings LLC, a Delaware limited liability company (“C-PAK”), C-PAK Consumer Product IP SPV LLC (“C-PAK IP”, and collectively, jointly and severally with C-PAK, the “Borrowers”, and each individually, a “Borrower”), C-PAK Consumer Product Holdings SPV I LLC, a Delaware limited liability company (“Holdings” and together with the Borrowers, the Subsidiaries of the Borrowers that are Guarantors or become Guarantors, and any other Person that becomes a party hereto as a grantor as provided herein, the “Grantors”) and Piney Lake Opportunities ECI Master Fund LP (“Piney Lake”), as collateral agent for the benefit of the Lenders and the other Secured Parties (in such capacity, together with its successors and assigns in such capacity, the “Collateral Agent”).

Introductory Statement

WHEREAS, pursuant to the Loan Agreement dated as of May 3, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified, renewed or replaced from time to time, the “Loan Agreement”) among the Borrowers, Holdings, the other Guarantors from time to time party thereto, the Lenders from time to time party thereto, Piney Lake, as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), and Piney Lake, as the Collateral Agent (the Collateral Agent together with the Administrative Agent, each an “Agent” and collectively the “Agents”), the Lenders have severally agreed to make Term Loans to the Borrowers upon and subject to the terms and conditions set forth therein; and

WHEREAS, each Grantor (other than the Borrowers) has agreed to guarantee the payment and performance of the Borrowers’ obligations and liabilities under the Loan Agreement and the other Loan Documents as more fully set forth therein and herein; and

WHEREAS, the Borrowers are a member of an affiliated group of companies that includes each of the other Grantors, and each Guarantor either is a parent company of a Borrower or is a Subsidiary of a Borrower; and

WHEREAS, the Borrowers and the other Grantors are engaged in related businesses, and each Grantor will derive substantial direct and indirect benefit from the making of the Term Loans and other financial accommodations extended under the Loan Agreement; and

WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective Term Loans to the Borrowers under the Loan Agreement that the Grantors shall have executed this Agreement and delivered this Agreement to the Collateral Agent for the benefit of the Secured Parties.

NOW, THEREFORE, in consideration of the premises and the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, and to induce the Agents and the Lenders to enter into the Loan Agreement, to induce the Lenders to make their respective Term Loans to the Borrowers thereunder and extend other financial accommodations to the Borrowers thereunder, and to induce the Agents to act in their respective agency capacities thereunder, and intending to be legally bound, each Grantor hereby agrees with the Collateral Agent, for the benefit of the Secured Parties, as follows:

SECTION 1. DEFINED TERMS

1.1. Definitions.

(a) Uppercase terms used but not otherwise defined herein have the meanings given to them in the Loan Agreement. The following terms have the meanings given to them in the UCC: Account, Certificated Security, Chattel Paper, Commercial Tort Claim, Commodity Account, Commodity Contract, control, Document, Electronic Chattel Paper, Farm Product, Fixtures, General Intangible, Goods, Instrument, Inventory, Investment Company Security, Letter-of-Credit Right, Payment Intangible, Securities Account, Securities Entitlement, Uncertificated Security and Supporting Obligation. All other uppercase terms used herein but not otherwise defined herein or in the Loan Agreement have the meanings given to them in the UCC.

(b) The following terms have the following meanings:

“Administrative Agent” has the meaning given to such term in the Introductory Statement hereto.

“Agent” and “Agents” have the respective meanings given to such terms in the Introductory Statement hereto.

“Agreement” has the meaning given to such term in the preamble hereto.

“Assumption Agreement” means a Joinder and Assumption Agreement substantially in the form attached hereto as Annex I, with such changes thereto to which the Collateral Agent may agree in its reasonable discretion.

“Borrower” and “Borrowers” have the respective meanings given to such terms in the preamble hereto.

“Collateral” has the meaning given to such term in Section 3 hereof.

“Collateral Account” means any Deposit Account subject to an Account Control Agreement pursuant to Section 8.14 of the Loan Agreement (“Accounts; Control Agreements”), that is established by the Collateral Agent as provided in Section 6.1 or Section 6.4 hereof.

“Collateral Agent” has the meaning given to such term in the preamble hereto.

“Copyright Licenses” means any agreement now or hereafter in effect, naming any Grantor as licensor or licensee (including those listed in Schedule 4 hereto), granting any right in, to or under any Copyright, including the grant of rights to copy, publicly perform, display, create derivative works, manufacture, distribute, exploit and sell materials derived from any Copyright.

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“Copyrights” means (a) all copyrights arising under the laws of the United States, any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished (including those listed in Schedule 4 hereto), all registrations and recordings thereof, and all applications in connection therewith, including all registrations, recordings and applications in the United States Copyright Office or any foreign counterpart thereof (including those listed in Schedule 4 hereto), (b) the right to obtain all extensions and renewals thereof, and (c) all income, royalties, and proceeds at any time due or payable or asserted under or with respect to any of the foregoing, including all rights to sue or recover at law or in equity for any past, present or future infringement, misappropriation, violation or other impairment thereof.

“Deposit Account” has the meaning given to such term in the UCC and, in any event, includes any demand, time, savings, passbook or similar account maintained with a depositary institution.

“Equipment” means (a) any “equipment”, as defined in Section 9-102(a)(33) of the UCC, (b) all machinery, equipment, furnishings and Fixtures, and (c) any and all additions, substitutions, and replacements of any of the foregoing, wherever located, together with all attachments, components, parts, equipment, and accessories installed thereon or affixed thereto (in each case, regardless of whether characterized as equipment under the UCC).

“Excluded Property” means property that, but for any one or more of clauses (i) through (x) of the last paragraph of Section 3 hereof, would constitute Collateral.

“Fraudulent Transfer Laws” has the meaning given to such term in Section 2.1(c) hereof.

“Grantor Insolvency Events” has the meaning given to such term in Section 8.16(a) hereof.

“Grantors” has the meaning given to such term in the preamble hereto.

“Guaranteed Obligations” has the meaning given to such term in Section 2.1(a) hereof.

“Guarantors” means, collectively, Holdings and each other Grantor (other than the Borrowers) in its capacity as a guarantor of the Guaranteed Obligations.

“Guaranty” means the guaranty of the Guaranteed Obligations made by the Guarantors pursuant to Section 2 hereof.

“Intellectual Property” means, collectively, all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including without limitation the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, Internet Domain Names, Trade Secrets, and all licenses and permits, registrations, franchises, corporate or other business records, compositions, drawings, specifications, systems, designs, plans, proposals and technical data and manuals, computer software (including object code, source code and associated data and related documentation), goodwill, indicia, business identifiers, inventions, formulas, processes and techniques, production methods, research and development information, proprietary information, know-how, and trade-secrets and, in each case, all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

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“Intercompany Debt” means, with respect to each Grantor, all indebtedness, liabilities, and other obligations of any other Grantor owing to such Grantor in respect of any and all loans or advances made by such Grantor to such other Grantor whether now existing or hereafter arising, and whether due or to become due, absolute or contingent, liquidated or unliquidated, determined or undetermined, including all fees and all other amounts payable by any other Grantor to such Grantor under or in connection with any documents or instruments related thereto, and including all claims for contribution pursuant to Section 2.2 hereof.

“Intercompany Note” means any promissory note evidencing any Intercompany Debt.

“Internet Domain Names” means all rights, title and interests arising under any law, in or relating to Internet domain names.

“Investment Property” means, collectively, (a) all “investment property”, as defined in Section 9-102(a)(49) of the UCC, and (b) whether or not constituting “investment property” as so defined, all Securities (all Certificated Securities and Uncertificated Securities), Securities Accounts, Securities Entitlements, Commodity Contracts, Commodity Accounts, Pledged Notes and Pledged Stock.

“IP License” means all agreements now or hereafter in effect, granting any right, title or interest in, to or under any Intellectual Property, including all Copyright Licenses, Patent Licenses, and Trademark Licenses.

“Issuer Control Agreement” means an Issuer Control Agreement substantially in the form attached hereto as Annex III, among a Grantor, the Collateral Agent and the relevant Issuer, in form and substance reasonably acceptable to such Grantor and the Collateral Agent, pursuant to which control over any Uncertificated Security of such Issuer issued or granted to, or held by, any Grantor is granted to the Collateral Agent.

“Issuers” means, collectively, each issuer of any Investment Property.

“Loan Agreement” has the meaning given to such term in the Introductory Statement hereto.

“Material Electronic Chattel Paper” has the meaning given to such term in Section 5.11 hereof.

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“Patent License” means all agreements now or hereafter in effect, providing for the grant by or to any Grantor of any right to manufacture, use, sell, offer for sale or import any invention covered in whole or in part by a Patent, including any of the foregoing referred to in Schedule 4 hereto.

“Patents” means (a) all letters patent of the United States, any other country or any political subdivision thereof, all reissues and extensions thereof and all goodwill associated therewith, including any of the foregoing referred to in Schedule 4 hereto, (b) all applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof, including any of the foregoing referred to in Schedule 4 hereto, other than registrations and applications that have been cancelled or abandoned, (c) all rights to obtain any reissues or extensions of the foregoing, and (d) all income, royalties, and proceeds at any time due or payable or asserted under or with respect to any of the foregoing, including all rights to sue or recover at law or in equity for any past, present or future infringement, misappropriation, violation or other impairment thereof.

“Piney Lake” has the meaning given to such term in the preamble hereto.

“Pledged”, when used in connection with any type of asset, means, at any time, an asset of such type that is included or required to be included (or that creates rights that are included or required to be included) in the Collateral at such time pursuant to the terms of this Agreement.

“Pledged Notes” means all promissory notes listed on Schedule 1 hereto, all Intercompany Notes at any time issued to any Grantor, and all other promissory notes issued to or held by any Grantor, in each case to the extent required to be pledged pursuant to the Loan Agreement.

“Pledged Stock” means the shares of Capital Stock listed on Schedule 1 hereto and all other shares, stock certificates, options, interests, units or rights of any nature whatsoever in respect of the Capital Stock of any Person that may be issued or granted to, or held by, any Grantor while this Agreement is in effect (other than any Capital Stock that is Excluded Property).

“Proceeds” means all “proceeds”, as defined in Section 9-102(a)(64) of the UCC, and, in any event, includes all dividends and other income from the Investment Property, collections thereon and distributions or payments with respect thereto.

“Receivable” means any right to payment for goods sold or leased or for services rendered, whether or not such right is evidenced by an Instrument or Chattel Paper and whether or not it has been earned by performance (including any Account).

“Secured Obligations” means (a) in the case of each Borrower, the “Obligations” as defined in the Loan Agreement, and (b) in the case of the Guarantors, the Guaranteed Obligations.

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“Termination Date” means the date on which the Term Loans and the other Secured Obligations (other than Unasserted Contingent Obligations) shall have been paid in full in cash in accordance with the terms of the Loan Agreement and the other Loan Documents.

“Trade Secrets” means anything that would constitute a trade secret under Applicable Law and information that derives independent economic value (actual or potential) from not being generally known to and not being readily ascertainable by proper means by a person able to obtain economic value from its use or disclosure, and all other inventions (whether patentable or not), industrial designs, discoveries, improvements, ideas, designs, models, formulae, patterns, compilations, databases, data collections, drawings, blueprints, mask works, devices, methods, techniques, processes, know-how, confidential information, proprietary information, customer lists, software, and technical information.

“Trademark License” means any agreement now or hereafter in effect, providing for the grant by or to any Grantor of any right to use any Trademark, including any of the foregoing referred to in Schedule 4 hereof.

“Trademarks” means (a) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers (whether registered or unregistered), and all goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, or otherwise, and all common-law rights related thereto, including any of the foregoing referred to in Schedule 4 hereof, (b) the right to obtain all extensions and renewals thereof, and (c) all income, royalties, and proceeds at any time due or payable or asserted under or with respect to any of the foregoing, including all rights to sue or recover at law or in equity for any past, present or future infringement, misappropriation, dilution, violation or other impairment thereof.

“Unasserted Contingent Obligations” means, at any time, Secured Obligations for indemnifications, reimbursements, costs, damages and other liabilities in respect of which no assertion of liability (whether oral or written) and no claim or demand for payment or indemnification (whether oral or written) has been made as of such time.

1.2. Other Definitional Provisions.

(a) The words “hereof”, “herein”, “hereto” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section and Schedule references are to this Agreement unless otherwise specified.

(b) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.

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SECTION 2. Guaranty

2.1. Guaranty.

(a) To induce the Lenders to make the Term Loans and extend other financial accommodations to the Borrowers thereunder, and to induce each other Secured Party to extend financial accommodations to or for the benefit of one or more Grantors, each Guarantor hereby, jointly and severally, absolutely, unconditionally and irrevocably, guarantees, as primary obligor and not merely as surety, the full and punctual payment when due, whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise in accordance with any Loan Document, of all Obligations of each Borrower and of the other Guarantors, whether existing on the date hereof or hereafter incurred, created or arising and whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, and whether enforceable or unenforceable as against any Borrower or any of the other Guarantors, now or hereafter in effect, or due or to become due, including, without limitation, all principal, interest (including interest accruing at the then applicable rate provided in the Loan Agreement after the maturity thereof and interest accrued or accruing at the then applicable rate provided in the Loan Agreement upon the commencement or during the pendency of any Insolvency Proceeding, regardless of whether such interest or a claim for post-filing or post-petition interest is allowed or allowable in such Insolvency Proceeding), and any applicable Prepayment Premium in respect of the Term Loans, and all other monetary obligations of each Borrower and of the other Guarantors arising under, out of, in respect of or in connection with the Loan Agreement, the Notes or any of the other Loan Documents, including but not limited to fees, costs, expenses and indemnities, in all cases whether primary or secondary, direct or indirect, absolute or contingent, liquidated or unliquidated, due or to become due, or now existing or hereafter incurred (collectively, the “Guaranteed Obligations”).

(b) Each Guarantor’s Guaranty hereunder constitutes a continuing guaranty of payment and not of collection, and a debt of each Guarantor for its own account. Accordingly, neither an Agent nor any of the other Secured Parties shall be obligated or required before enforcing this Guaranty against any Guarantor, to: (i) pursue any right or remedy any of them may have against any Borrower, any other Guarantor or any other Person or commence any suit or other proceeding against any Borrower, any other Guarantor or any other Person in any court or other tribunal; (ii) make any claim in a liquidation, bankruptcy or other Insolvency Proceeding of or in respect of any Borrower, any other Guarantor or any other Person; (iii) make demand of any Borrower, any other Guarantor or any other Person; or (iv) enforce or seek to enforce or realize upon any collateral security held by the Collateral Agent or any other Secured Party which may secure any of the Guaranteed Obligations.

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(c) Any term or provision of this Agreement or any other Loan Document to the contrary notwithstanding, the maximum aggregate amount for which any Guarantor shall be liable under this Guaranty shall not exceed the maximum amount for which such Guarantor can be liable without rendering the obligations of such Guarantor under this Guaranty or any other Loan Document, as it relates to such Guarantor, subject to avoidance under Applicable Laws relating to fraudulent conveyance or fraudulent transfer (including the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act, Section 548 of Title 11 of the United States Code, and any applicable provisions of comparable Applicable Laws) (collectively, the “Fraudulent Transfer Laws”). Any analysis of the provisions of this Guaranty for purposes of the Fraudulent Transfer Laws shall take into account the right of contribution established in Section 2.2 hereof and, for purposes of such analysis, give effect to any discharge of intercompany debt as a result of any payment made under this Guaranty. Notwithstanding the foregoing, this Section 2.1(c) is intended solely to preserve the rights of the Collateral Agent and the other Secured Parties hereunder to the maximum extent that would not cause the obligations of any Guarantor hereunder to be subject to avoidance under the Fraudulent Transfer Laws, and no Guarantor or any other Person shall have any right or claim under this Section 2.1(c) or otherwise as against the Collateral Agent or any other Secured Party that would not otherwise be available to such Person under the Fraudulent Transfer Laws.

(d) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of such Guarantor hereunder without impairing this Guaranty or affecting the rights and remedies of any Secured Party hereunder.

(e) This Guaranty shall remain in full force and effect until the Termination Date occurs, notwithstanding that from time to time during the term of the Loan Agreement no Guaranteed Obligations may be outstanding.

(f) No payment made by the Borrowers, any of the Guarantors, any other guarantor or any other Person or received or collected by any Secured Party from the Borrowers, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder, and each Guarantor shall, notwithstanding any such payment (other than any payment made by such Guarantor in respect of the Guaranteed Obligations or any payment received or collected from such Guarantor in respect of the Guaranteed Obligations), remain liable for the Guaranteed Obligations up to the maximum liability of such Guarantor hereunder until the Termination Date occurs.

2.2. Right of Contribution. Each Guarantor hereby agrees that, to the extent that a Guarantor shall have paid any portion of the Guaranteed Obligations exceeding the greater of (i) the amount of the value actually received by such Guarantor and its Subsidiaries from the Term Loans and other Obligations and (ii) the amount such Guarantor would otherwise have paid if such Guarantor had paid the aggregate amount of the Guaranteed Obligations (excluding the amount thereof repaid by the Borrowers) in the same proportion as such Guarantor’s net worth on the date enforcement is sought hereunder bears to the aggregate net worth of all the Guarantors on such date, then such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment. Each Guarantor’s right of contribution shall be subject to the terms and conditions of Sections 2.1 and 2.3 hereof. The provisions of this Section 2.2 shall in no respect limit the obligations and liabilities of any Guarantor to any Secured Party, and each Guarantor shall remain liable to the Secured Parties for the full amount guaranteed by such Guarantor hereunder. This Section 2.2 is for the benefit of the Collateral Agent, the other Secured Parties, and the Guarantors, and may be enforced by any one or more of them in accordance with the terms hereof.

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2.3. No Subrogation. Notwithstanding any payment made by any Guarantor hereunder or any set-off or application of funds of any Guarantor by any Secured Party, no Guarantor shall (a) be entitled to be subrogated to any of the rights of any Secured Party against any Borrower or any other Guarantor or any collateral security or guaranty or right of offset held by any Secured Party for the payment of the Obligations, (b) seek or be entitled to seek any contribution or reimbursement from any Borrower or any other Guarantor in respect of payments made by such Guarantor under this Guaranty, or (c) assert any right, claim or cause of action, including, without limitation, any claim of subrogation, contribution or indemnification that such Guarantor has against any Borrower or any other Loan Party, in all cases until the Termination Date occurs. If any amount is paid to any Guarantor on account of such subrogation rights at any time prior to the Termination Date, such amount shall be held by such Guarantor in trust for the benefit of the Secured Parties, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Collateral Agent in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Collateral Agent, if required), to be applied against the Obligations, whether matured or unmatured, as the Collateral Agent may determine in accordance with Sections 4.02(b) and 4.02(c) of the Loan Agreement.

2.4. Actions with Respect to Guaranteed Obligations.

(a) Each Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against any Guarantor and without notice to or further assent by any Guarantor, any demand for payment of any of the Guaranteed Obligations made by any Secured Party may be rescinded by such Secured Party and any of the Guaranteed Obligations continued, and the Guaranteed Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by any Secured Party, and the Loan Agreement and the other Loan Documents, and any other documents executed and delivered in connection therewith may be amended, amended and restated, supplemented or otherwise modified or terminated, in whole or in part, as the Collateral Agent (or the Required Lenders or all Lenders, as the case may be) may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by any Secured Party for the payment of the Guaranteed Obligations may be sold, exchanged, waived, surrendered or released. No Secured Party shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Guaranteed Obligations or for this Guaranty or any property subject thereto.

(b) Without limiting the foregoing, the Collateral Agent or any Secured Party may, at any time and from time to time, without the consent of, or notice to, any Guarantor, and without discharging any Guarantor from any of its obligations hereunder, take any and all actions described in Section 2.5 hereof and may otherwise: (i) amend, modify, alter or supplement the terms of any of the Guaranteed Obligations in accordance with the terms of the Loan Agreement or any of the applicable Loan Documents, including, but not limited to, extending or shortening the time of payment of any of the Guaranteed Obligations or changing the interest rate that may accrue on any of the Guaranteed Obligations; (ii) amend, modify, alter or supplement the Loan Agreement or any of the other Loan Documents in accordance with the terms of the Loan Agreement or such other Loan Documents; (iii) sell, exchange, release or otherwise deal with all, or any part, of any collateral securing all or any portion of the Guaranteed Obligations; (iv) release any other Loan Party or other Person liable in any manner for the payment or collection of any or all of the Guaranteed Obligations; (v) exercise, or refrain from exercising, any rights against any Borrower, any other Guarantor or any other Person; and (vi) apply any sum, by whomsoever paid or however realized, to the Guaranteed Obligations in accordance with the terms of the Loan Agreement.

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2.5. Guaranty Absolute and Unconditional.

(a) Each Guarantor, to the fullest extent permitted by Applicable Law, waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations, notice of or proof of reliance by any Secured Party upon this Guaranty, and notice of acceptance of this Guaranty. The Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty and all dealings between the Borrowers and any of the Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.

(b) Each Guarantor, to the fullest extent permitted by Applicable Law, waives diligence, presentment, protest, demand for payment, dishonor, and notice of default or nonpayment to or upon any Borrower or any of the Guarantors with respect to the Obligations, notice of any kind to which such Guarantor may be entitled, and any other act or thing, or omission or delay to do any other act or thing, which in any manner or to any extent might vary the risk of such Guarantor or which otherwise might operate to discharge such Guarantor from any of its Guaranteed Obligations.

(c) Each Guarantor waives, to the fullest extent permitted by Applicable Law, any right such Guarantor may now have or hereafter acquire to revoke, rescind, terminate or limit (except as expressly provided herein) this Guaranty or any of its obligations hereunder.

(d) Each Guarantor understands and agrees that, to the fullest extent permitted by Applicable Law, this Guaranty shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (i) the validity or enforceability of the Loan Agreement or any other Loan Document, any of the Guaranteed Obligations or any other collateral security therefor or guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party, (ii) any defense, set-off or counterclaim which may at any time be available to or be asserted by each Borrower, any other Guarantor or any other Person against any Secured Party (other than the defense of payment in full), or (iii) any other circumstance whatsoever (with or without notice to or knowledge of such Borrower or such Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of each Borrower with respect to any Obligations, or of such Guarantor under this Guaranty, in bankruptcy or in any other instance. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against any Borrower, any other Guarantor or any other Person or against any collateral security or guaranty for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from any Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guaranty or to exercise any such right of offset, or any release of any Borrower, any other Guarantor or any other Person or any such collateral security, guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof, “demand” shall include the commencement and continuance of any legal proceedings.

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(e) Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the documents evidencing such Guaranteed Obligations, regardless of any Applicable Law now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Collateral Agent or any other Secured Party with respect thereto. To the extent permitted by Applicable Law, the liability of each Guarantor under this Guaranty shall be absolute, irrevocable and unconditional in accordance with its terms and shall remain in full force and effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever, including without limitation, the following (whether or not such Guarantor consents thereto or has notice thereof), and each Guarantor hereby irrevocably waives any defenses (other than, in each case, the defense of payment in full) it may now have or hereafter acquire in any way relating to, any or all of the following:

(i) (x) any change in the amount, interest rate, due date or other term of all or any portion of the Guaranteed Obligations, (y) any change in the time, place or manner of payment of all or any portion of the Guaranteed Obligations, or (z) any amendment, release, consent to the departure from, or other indulgence with respect to, or any waiver, renewal, extension, addition, or supplement to, or deletion from, or any other action or inaction under or in respect of, the Loan Agreement, any of the other Loan Documents or any other documents, instruments or agreements relating to all or any portion of the Guaranteed Obligations or any other instrument or agreement referred to therein or evidencing all or any portion of the Guaranteed Obligations or any assignment or transfer of any of the foregoing;

(ii) any lack of validity or enforceability of the Loan Agreement, any of the other Loan Documents, or any other document, instrument or agreement referred to therein or evidencing all or any portion of the Guaranteed Obligations or any assignment or transfer of any of the foregoing;

(iii) any furnishing to the Collateral Agent or any other Secured Party of any security for all or any portion of the Guaranteed Obligations, or any sale, exchange, release or surrender of, or realization on, any collateral securing all or any portion of the Guaranteed Obligations unless resulting in the payment in full of the Guaranteed Obligations;

(iv) any settlement or compromise of all or any portion of the Guaranteed Obligations (unless resulting in payment in full of the Guaranteed Obligations), any security therefor, or any liability of any other party with respect to all or any portion of the Guaranteed Obligations, or any subordination of the payment of all or any portion of the Guaranteed Obligations to the payment of any other liability of any Borrower or any other Loan Party;

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(v) any Insolvency Proceeding relating to such Guarantor, any Borrower, any other Loan Party or any other Person, or any action taken with respect to this Guaranty by any trustee or receiver, or by any court, in any such Insolvency Proceeding;

(vi) any act or failure to act by any Borrower, any other Loan Party or any other Person which may adversely affect such Guarantor’s subrogation rights, if any, against any Borrower to recover payments made under this Guaranty;

(vii) any release, amendment or waiver of, or consent to any departure from, any guaranty of all or any portion of the Guaranteed Obligations;

(viii) any pledge, exchange, release or non-perfection or impairment of any security interest or other Lien on any Collateral or other collateral securing in any way all or any portion of the Guaranteed Obligations;

(ix) any application of sums paid by any Borrower, any other Guarantor or any other Person with respect to the liabilities of each Borrower to the Collateral Agent or any other Secured Party, regardless of what liabilities of each Borrower remain unpaid;

(x) any defect, limitation or insufficiency in the borrowing power of any Borrower or any Guarantor or in the exercise thereof;

(xi) any exercise, non-exercise or waiver of any right, remedy, power or privilege under or in respect of this Agreement, the Loan Agreement or any other Loan Document; or

(xii) any other circumstance which might otherwise constitute a defense available to, or a discharge of, a Guarantor hereunder (other than the payment in full in cash and performance in full of the Obligations (other than Unasserted Contingent Obligations)), including the failure by Administrative Agent or any Secured Party to provide copies of any notice delivered to any Borrower or any Guarantor in accordance with the terms of any of the Loan Documents.

2.6. Inability to Accelerate Loans. If any Agent or any other Secured Party is prevented under Applicable Law or otherwise from demanding or accelerating payment of any of the Guaranteed Obligations by reason of any automatic stay or otherwise, to the extent such demand or acceleration is permitted under the Loan Agreement or another applicable Loan Document, the Agents and the other Secured Parties shall be entitled to receive from each Guarantor, upon demand therefor, the sums which otherwise would have been due had such demand or acceleration been permitted and occurred.

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2.7. Acknowledgment of Waivers and Losses of Defenses.

(a) Each Guarantor acknowledges that certain provisions of this Guaranty operate as waivers of rights that each Guarantor would otherwise have under Applicable Law. Other provisions permit the Secured Parties to: (i) take actions that the Secured Parties would otherwise not have a right to take; (ii) fail to take actions that the Secured Parties would otherwise have an obligation to take; or (iii) take actions that may prejudice the Guarantors’ rights and obligations under this Guaranty and against the Borrowers. In the absence of these provisions, each Guarantor might have defenses against its obligations under this Guaranty. These defenses might permit each Guarantor to avoid some or all of its obligations under this Guaranty.

(b) Each Guarantor intends by the waivers and other provisions of this Guaranty, including the acknowledgment set forth in this Section 2.7, to be liable to the greatest extent permitted by applicable law for all of the Guaranteed Obligations and all other Obligations. Each Guarantor intends to have this liability even if the terms of the Loan Documents change or if such Guarantor does not have any rights against any Borrower.

(c) Each Guarantor acknowledges that: (i) it understands the seriousness of the provisions of this Guaranty; (ii) it has had a full opportunity to consult with counsel of its choice; and (iii) it has consulted with counsel of its choice or has decided not to avail itself of that opportunity.

2.8. Reinstatement. This Guaranty shall remain in full force and effect and continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Guaranteed Obligations is rescinded or must otherwise be reduced, restored or returned by any Secured Party (whether as a “voidable preference”, “fraudulent conveyance”, “fraudulent transfer” or otherwise) upon the commencement of, or otherwise in relation to, any Insolvency Proceeding of or in respect of any Borrower or any other Loan Party, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer, official or designee for, any Borrower or any Guarantor or any substantial part of the property of any Borrower or any Guarantor, or otherwise, all as though such payments had not been made. In the event that any payment, or any part thereof, of any of the Guaranteed Obligations is rescinded or otherwise reduced, restored or returned by any Secured Party, the Guaranteed Obligations shall be reinstated to the extent of the payment so rescinded, reduced, restored or returned and shall be reduced only by the amount paid and not so rescinded, reduced, restored or returned. If claim is ever made on the Collateral Agent or any other Secured Party for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations, and the Collateral Agent or such other Secured Party repays all or part of such amount by reason of (i) any judgment, decree or order of any court or administrative body of competent jurisdiction or (ii) any settlement or compromise of any such claim effected by the Collateral Agent or such other Secured Party with any such claimant (including any Borrower or a trustee in bankruptcy for such Borrower), then and in such event each Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding on such Guarantor notwithstanding any revocation hereof or the cancellation of the Loan Agreement, any of the other Loan Documents or any other instrument evidencing any liability of such Borrower, and such Guarantor shall be and remain liable to the Collateral Agent or such other Secured Party for the amounts so repaid or recovered to the same extent as if such amount had never originally been paid to the Collateral Agent or such other Secured Party.

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2.9. Payments. Each Guarantor hereby guarantees that payments hereunder will be paid to the Collateral Agent in Dollars, without counterclaim, set-off, rights of rescission or deduction, at the account specified in or pursuant to Section 4.03(c) of the Loan Agreement.

SECTION 3. GRANT OF SECURITY INTEREST

Each Grantor hereby pledges and collaterally assigns to the Collateral Agent for the benefit of the Secured Parties, and hereby grants to the Collateral Agent for the benefit of the Secured Parties, a Lien on and a security interest in all of such Grantor’s right, title and interest in and to all personal property and other assets, whether now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest, including without limitation all of the following property of such Grantor, wherever located (collectively, the “Collateral”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations:

(a) all Accounts;

(b) all cash and cash equivalents;

(c) all Chattel Paper;

(d) all Deposit Accounts;

(e) all Documents;

(f) all Equipment;

(g) all Fixtures;

(h) all General Intangibles;

(i) all Instruments;

(j) all Intellectual Property;

(k) all Inventory;

(l) all Investment Property;

(m) all Letter-of-Credit Rights;

(n) all Supporting Obligations;

(o) all insurance policies of any kind maintained by any Grantor;

(p) all Goods and other property not otherwise described above (except for (i) any property specifically excluded from any clause in this Section 3 and (ii) any property specifically excluded from any defined term used in any clause of this Section 3);

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(q) all books and records pertaining to the Collateral;

(r) all Commercial Tort Claims listed on Schedule 5 hereto or described in any notice sent pursuant to Section 5.9 hereof; and

(s) to the extent not otherwise included, all Proceeds, Payment Intangibles, Supporting Obligations and products of any and all of the foregoing and all collateral security and guaranties given by any Person with respect to any of the foregoing.

Notwithstanding the foregoing, neither the “Collateral” nor any defined term comprising any portion of the Collateral shall include, and no rights, Liens or security interests shall be granted to Collateral Agent in, any of the following: (i) leasehold interests; (ii) motor vehicles and other assets subject to certificates of title; (iii) Letter-of-Credit Rights with a value of less than $100,000 in each case or $250,000 in the aggregate; (iv) Commercial Tort Claims with a value of less than $150,000 in each case or $350,000 in the aggregate; (v) Excluded Deposit Accounts; (vi) any fee-owned Real Property with a fair market value of less than $500,000 (provided that all such Real Property has a fair market value of less than $1,000,000 in the aggregate; excluding the properties listed on Schedule 8.13 of the Loan Agreement); (vii) any rights or interests (other than any Proceeds and Receivables thereof unless such Proceeds and Receivables would otherwise be excluded from Collateral pursuant to the terms of this paragraph) in any lease, license, contract, or agreement, as such or the assets subject thereto if under the terms of such lease, license, contract, or agreement, or Applicable Law with respect thereto, the valid grant of a Lien therein or in such assets to the Collateral Agent is prohibited and such prohibition has not been or is not waived or the consent of the other party to such lease, license, contract, or agreement or any applicable Governmental Authority has not been or is not otherwise obtained or under Applicable Law such prohibition cannot be waived; (viii) any lease, license or other agreement or any property subject to a purchase money security interest or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money arrangement or create a right of termination in favor of any other party thereto (other than any Borrower or any other Grantor) after giving effect to the applicable anti-assignment provisions of the UCC, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibition, other than proceeds and receivables thereof; (ix) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal law; and (x) more than sixty-six and two thirds percent (66 2/3%) of the Voting Stock of any Foreign Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957(a) of the Code directly held by any Grantor; provided, however, the foregoing exclusions contained in clauses (vii), (viii) and (ix) shall in no way be construed (1) to apply if any such prohibition would be rendered ineffective under the UCC (including Sections 9-406, 9-407 and 9-408 thereof) or other Applicable Law (including the Bankruptcy Code) or principles of equity, (2) so as to limit, impair or otherwise affect the Collateral Agent’s unconditional continuing Liens upon any rights or interests of any Grantor in or to the Proceeds thereof (including proceeds from the sale, license, lease or other disposition thereof), including monies due or to become due under any such lease, license, contract, or agreement (including any Accounts or other Receivables) unless such Proceeds or other amounts would otherwise be excluded from Collateral pursuant to the terms of this paragraph or (3) to apply at such time as the condition causing such prohibition shall be remedied and, to the extent severable, the Collateral shall include any portion of such lease, license, contract or other agreement or property subject thereto that does not result in such prohibition.

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SECTION 4. REPRESENTATIONS AND WARRANTIES

To induce the Agents and the Lenders to enter into the Loan Agreement and to induce the Lenders to make their respective Term Loans to the Borrowers thereunder and extend other financial accommodations to the Borrowers thereunder, each Grantor hereby represents and warrants to each Secured Party that:

4.1. [Reserved].

4.2. Other Representations.

(a) Each Guarantor has knowledge of each other Loan Party’s financial condition and affairs and has adequate means to obtain from each other Loan Party, on an ongoing basis, information relating thereto and to such Loan Party’s ability to pay and perform its Obligations, and agrees to assume the responsibility for keeping, and to keep, so informed until the Termination Date. Each Guarantor acknowledges and agrees that the Secured Parties shall have no obligation to investigate the financial condition or affairs of any other Loan Party for the benefit of such Guarantor nor to advise such Guarantor of any fact respecting, or any change in, the financial condition or affairs of any other Loan Party that might become known to any Secured Party at any time, whether or not such Secured Party knows or believes or has reason to know or believe that any such fact or change is unknown to such Guarantor, or might (or does) materially increase the risk of such Guarantor as guarantor, or might (or would) affect the willingness of such Guarantor to continue as a guarantor of the Guaranteed Obligations.

(b) It is in the interest of each Guarantor to execute this Agreement and provide the Guaranty inasmuch as such Guarantor will derive direct and indirect benefits from the Term Loans and other financial accommodations extended to the Borrowers by the Secured Parties pursuant to the Loan Documents, and each Guarantor agrees that the Secured Parties are relying on this representation in agreeing to make Term Loans and extend other financial accommodations to the Borrowers thereunder.

4.3. Title; No Other Liens. Such Grantor has title to, and good and valid rights to, the Collateral of such Grantor. Except for Permitted Liens, such Grantor owns each such item of Collateral free and clear of any and all Liens. No financing statement or other public notice or record of a Lien with respect to all or any part of the Collateral, in each case, which has been authorized by any Grantor and subject to Section 4.4 below, is on file or of record in any public office, except such as have been filed in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to this Agreement, such as are expressly permitted by the terms of the Loan Agreement or such filings for which termination statements have been delivered to the Collateral Agent. Except as otherwise permitted by the Loan Agreement or this Agreement, no Collateral owned by any Grantor will be in the possession or under the control of any other Person having a claim thereto or security interest therein except as permitted by the terms of the Loan Agreement and the Intercreditor Agreement (to the extent the Intercreditor Agreement exists); provided, however, that any Grantor may, in the ordinary course of its business, grant non-exclusive licenses to third parties to use Intellectual Property owned or developed by a Grantor. For purposes of this Agreement and the other Loan Documents, such licensing activity shall not constitute a “Lien” on such Intellectual Property.

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4.4. Perfected Priority Liens. Upon completion of the filings and other actions specified on Schedule 2 hereto (which, in the case of all filings and other documents referred to on Schedule 2 hereto, have been delivered to the Collateral Agent in completed and duly executed form), the security interests granted pursuant to this Agreement will constitute valid and perfected security interests in substantially all of the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, as collateral security for the Secured Obligations, enforceable in accordance with the terms hereof against all creditors of each Grantor and any Persons purporting to purchase any Collateral from any Grantor and are prior to all other Liens on the Collateral, except for, solely with respect to (a) Collateral that does not constitute Pledged Stock, Permitted Liens which, pursuant to the terms of the Loan Agreement, are permitted to have priority over Collateral Agent’s Liens thereon as collateral security for the Secured Obligations and (b) Permitted Liens pursuant to Section 9.02(b) of the Loan Agreement.

4.5. Perfection Certificate; Jurisdiction of Organization; Chief Executive Office. Each Grantor has previously delivered to the Collateral Agent a Perfection Certificate signed by such Grantor. Each Grantor represents and warrants to the Secured Parties as follows: (a) such Grantor’s exact legal name is that indicated on the Perfection Certificate and on the signature page hereof; (b) such Grantor is an organization of the type, and is organized in the jurisdiction, set forth in the Perfection Certificate; (c) the Perfection Certificate accurately sets forth such Grantor’s organizational identification number or accurately states that such Grantor has no organizational identification number; (d) the Perfection Certificate accurately sets forth such Grantor’s place of business or, if such Grantor has more than one place of business, its chief executive office, as well as such Grantor’s mailing address, if different; and (e) all other information set forth on the Perfection Certificate pertaining to such Grantor is accurate and complete. Each Grantor has furnished to the Collateral Agent a certified charter, certificate of incorporation, certificate of formation or other organization document and a good standing certificate from its jurisdiction of organization as of a recent date.

4.6. Farm Products. None of the Collateral constitutes, or is the Proceeds of, Farm Products.

4.7. Investment Property.

(a) Schedule 3 hereto sets forth all the issued and outstanding shares of all classes of the Capital Stock of each Issuer owned by a Grantor. The shares of Pledged Stock (x) constituting Excluded Property or (y) pledged by such Grantor hereunder together constitute all the issued and outstanding shares of all classes of the Capital Stock of each Issuer owned by such Grantor.

(b) All the shares of the Pledged Stock (including shares of Capital Stock in respect of which such Grantor owns a Security Entitlement) issued by any Subsidiary of any Grantor have been duly authorized and duly and validly issued and are fully paid and non-assessable. None of the Pledged Stock that is Capital Stock of or issued by a partnership or limited liability company is subject to any capital call or other additional capital requirements.

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(c) To the knowledge of the Grantors, each of the Pledged Notes issued to or held by any Grantor constitutes the legal, valid and binding obligation of the obligor with respect thereto, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and general equitable principles (whether considered in a proceeding in equity or at law).

(d) Such Grantor is the record and beneficial owner of, and has good and valid title to, the Investment Property pledged by it hereunder, free and clear of, and prior to, all other Liens on such Collateral except, (i) other than in the case of Pledged Stock, for Permitted Liens which, pursuant to the terms of the Loan Agreement, are expressly permitted to have priority over Collateral Agent’s Liens thereon to secure the Secured Obligations and (ii) Permitted Liens pursuant to Section 9.02(b) of the Loan Agreement.

(e) Such Grantor is not and will not become a party to or otherwise bound by any agreement (except the Loan Documents and any Revolving Loan Documents), including any stockholders agreement, limited partnership agreement or limited liability company operating agreement, which restricts in any manner the rights of any present or future holder of any Pledged Stock with respect thereto, or restricts, limits or requires notice of the right of the Collateral Agent to foreclose upon, or exercise any voting rights or other right or remedy hereunder with respect to, any Pledged Stock. None of the Pledged Stock is subject to any option, call, warrant, purchase right, preemptive right, right of first refusal or similar contractual or other right or restriction of any Person (other than laws affecting the transfer of securities generally).

(f) There is no agreement of or among any owners of any Grantor or Issuer, nor any provision in the Organization Documents of any Grantor or Issuer, requiring any vote or consent of any holders of Capital Stock of any Grantor or Issuer, as applicable, or of any other Person to authorize or permit the creation of a Lien and security interest in favor of the Collateral Agent (on behalf of the Secured Parties) in the Pledged Stock or other Capital Stock of such Grantor, except as have already been obtained or are adequately provided pursuant to this Agreement.

(g) None of the Pledged Stock (i) issued by an Issuer that is not a corporation either (x) is, or is of a type, dealt in or traded on a securities exchange or a securities market or (y) is a medium for investment and by its terms provides that it is a “security” subject to Article 8 of the Uniform Commercial Code of any jurisdiction, unless certificates evidencing such Pledged Stock have been delivered to the Collateral Agent, (ii) is an Investment Company Security or (iii) has a value in excess of $150,000 and is held in a Securities Account not subject to an Account Control Agreement.

(h) All of the Pledged Stock either (i) is issued by a corporation, is represented by a security certificate, and constitutes a “security” subject to Article 8 of the UCC, or (ii) is issued by an Issuer that is not a corporation and either (x) (1) is (and is identified on Schedule 3 hereto as being) “uncertificated” or (2) such Issuer’s Organization Documents do not provide that such Pledged Stock is a “security” for purposes of Article 8 of the UCC or (y) is represented by a security certificate, and constitutes a “security” subject to Article 8 of the UCC. All of the Pledged Stock other than the Pledged Stock referred to in sub-clause (i) or (ii)(y) of this Section 4.7(h) constitutes General Intangibles and does not constitute “securities” subject to Article 8 of the Uniform Commercial Code of any jurisdiction.

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(i) Other than (i) Excluded Property and (ii) the Pledged Stock delivered to or in which a Lien is granted to the Collateral Agent in accordance with the terms of this Agreement, such Grantor does not hold, own or have any interest in any Certificated Securities, Uncertificated Securities or Commodity Contracts other than those maintained in Securities Accounts or Commodity Accounts listed on Schedule 7.26 to the Loan Agreement.

4.8. Receivables.

(a) No amount in excess of $250,000 payable to such Grantor under or in connection with any Receivable is evidenced by any Instrument or Chattel Paper which has not been delivered to the Collateral Agent.

(b) The amounts represented by such Grantor to the Secured Parties from time to time as owing to such Grantor in respect of the Receivables will at such times be accurate in all material respects.

(c) None of the Receivables in excess of $75,000 individually or $250,000 in the aggregate (collectively, “Material Receivables”) are owed to such Grantor by obligors that are Governmental Authorities.

(d) Each Receivable is: (i) a bona fide, valid and legally enforceable indebtedness of the obligor thereunder in accordance with its terms, arising out of or in connection with the sale, lease or performance of goods or services by the applicable Grantor, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and general equitable principles (whether considered in a proceeding in equity or at law); and (ii) subject to no material offsets, discounts, counterclaims, contra accounts or any other defense of any kind and character, other than warranties and discounts customarily given by the Grantors in the ordinary course of business consistent with customary business practice and other than warranties or refunds provided by Applicable Law, in each case except as would not have a material adverse effect on the value of all Receivables taken as a whole.

4.9. Contracts. No amount in excess of $250,000 payable to such Grantor under or in connection with any contract is evidenced by any Instrument or Chattel Paper which has not been delivered to the Collateral Agent.

4.10. Intellectual Property.

(a) Schedule 4 hereto lists all items of registered Intellectual Property and all applications for registered Intellectual Property owned by such Grantor, including for each of the foregoing items (i) the owner, (ii) the title, (iii) the jurisdiction in which the item has been registered or for which an application for registration has been filed, and (iv) as applicable, the registration number and registration date or the application number and filing date.

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(b) All Intellectual Property material to the business of such Grantor described on Schedule 4 hereto is valid, subsisting, unexpired and enforceable, has not been abandoned and to the knowledge of any Grantor does not infringe the intellectual property rights of any other Person.

(c) Except as set forth in Schedule 4 hereto, no Intellectual Property is the subject of any licensing or franchise agreement pursuant to which such Grantor is the licensor or franchisor.

(d) No holding, decision or judgment has been rendered by any Governmental Authority which would, in any material respect, limit, cancel or question the validity of, or such Grantor’s rights in, any Intellectual Property material to the conduct of any Grantor’s business.

(e) No action, suit, claim, demand, order or proceeding is pending, or, to the knowledge of such Grantor, threatened in writing, (i) seeking, in any material respect, to limit, cancel or question the validity of any Intellectual Property material to the conduct of any Grantor’s business, or such Grantor’s ownership interest therein (other than office actions issued in the ordinary course of prosecution of any pending applications for Patents or applications for registration of other Intellectual Property), or (ii) which, if adversely determined, is reasonably likely to have a material adverse effect on any Intellectual Property material to the conduct of any Grantor’s business.

(f) To such Grantor’s knowledge, no Person has been or is infringing, misappropriating, or diluting any Intellectual Property material to the conduct of any Grantor’s business owned by such Grantor.

(g) Such Grantor, and to such Grantor’s knowledge each other party thereto, is not in material breach or default of any material IP License, and no breach or default of any such IP License shall be caused by the consummation of the Transactions.

4.11. Commercial Tort Claims.

(a) No Grantor has rights in any Commercial Tort Claim for an amount in excess of $150,000 with respect to any one claim or in excess of $350,000 for all such claims, in each case except as set forth on Schedule 5 hereto.

(b) Upon the granting to the Collateral Agent of a security interest in any Commercial Tort Claim pursuant to Section 3 hereof or Section 5.9 hereof, such security interest will constitute a valid and perfected security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, as Collateral for the Secured Obligations, enforceable in accordance with the terms hereof against all creditors of such Grantor and any Persons purporting to purchase such Collateral from such Grantor, which security interest shall be prior to all other Liens on such Collateral except for Permitted Liens which, pursuant to the terms of the Loan Agreement, are expressly permitted to have priority over the Collateral Agent’s Liens thereon.

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4.12. Inventory and Equipment; Books and Records. As of the Closing Date, the Inventory and the Equipment (including for the avoidance of doubt, and without limitation, any primary servers, or any other systems necessary to operate the business) of each Grantor (other than Inventory or Equipment in transit in the ordinary course of business) and books and records concerning the Collateral are kept at the locations listed on Schedule 6 hereto.

4.13. Instruments and Tangible Chattel Paper. No amounts payable under or in connection with any of the Collateral required to be delivered to Collateral Agent hereby are evidenced by any Intercompany Notes, Instruments or Tangible Chattel Paper other than Intercompany Notes, Instruments and Tangible Chattel Paper listed on Schedule 1 hereto (other than promissory notes issued in connection with extensions of trade credit in the ordinary course of business). Each Intercompany Note, each Instrument and each item of Tangible Chattel Paper owned by a Grantor and required to be delivered to the Collateral Agent from time to time pursuant to Section 5.2 hereof has been properly endorsed, assigned and delivered to the Collateral Agent and, if necessary, is accompanied by an instrument of transfer or assignment duly executed in blank.

SECTION 5. COVENANTS

Each Grantor covenants and agrees with the Collateral Agent and the other Secured Parties that, from and after the date of this Agreement until the Termination Date:

5.1. [Reserved].

5.2. Delivery of Instruments and Chattel Paper. Without limiting Section 5.5 hereof, if any amount in excess of 250,000 in the aggregate for all such Collateral, payable under or in connection with any of the Collateral, shall be or become evidenced by any Instrument, Certificated Security or Chattel Paper, such Instrument, Certificated Security or Chattel Paper shall promptly, and in any event within five (5) Business Days of such Collateral arising, being acquired or being so evidenced, be delivered to the Collateral Agent, together with such endorsements, notations and applicable transfer instruments with respect thereto, in each case as the Collateral Agent may reasonably request, duly endorsed in a manner satisfactory to the Collateral Agent, to be held in trust for the benefit of the Secured Parties, as Collateral under this Agreement.

5.3. Maintenance of Perfected Security Interest; Further Documentation.

(a) Such Grantor shall maintain the security interest in the Collateral created by this Agreement as a perfected security interest to the extent required hereby having at least the priority described in Section 4.4 hereof, and shall defend such security interest against the claims and demands of all Persons whomsoever (other than holders of Permitted Liens).

(b) Such Grantor shall furnish to the Collateral Agent and the other Secured Parties from time to time statements and schedules further identifying and describing such Grantor’s Collateral and such other reports in connection with such Grantor’s Collateral as the Collateral Agent may reasonably request, all in reasonable detail and in form and substance reasonably satisfactory to the Collateral Agent.

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(c) At any time and from time to time, upon the written request of the Collateral Agent and at the sole expense of such Grantor, such Grantor will promptly, and in any event within five (5) Business Days, duly execute and deliver, and have recorded, such further instruments and documents and take such further actions as the Collateral Agent may reasonably request (and which do not contravene the express terms of this Agreement) for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including (i) the filing of any financing or continuation statements under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interests created hereby, and (ii) without limitation of Section 5.5(c) hereof, in the case of Investment Property, Deposit Accounts (other than Excluded Deposit Accounts), Securities Entitlements, Letter-of-Credit Rights and any other relevant Collateral, taking any actions necessary to enable the Collateral Agent to obtain “control” (within the meaning of the UCC) with respect thereto.

(d) To ensure that a Lien and security interest is granted on any of the Excluded Property set forth in clauses (vii) and (viii) of the definition of “Excluded Property”, if reasonably requested by Collateral Agent, such Grantor shall use its commercially reasonable efforts to obtain any required consents from any Person with respect to any material permit or license or any Material Contract with such Person entered into by such Grantor that requires such consent as a condition to the creation by such Grantor of a Lien on any right, title or interest in such permit, license, lease, contract or agreement.

5.4. Changes in Locations, Name, etc. Such Grantor will not:

(a) without five (5) Business Days’ prior written notice to Collateral Agent, change the location of its chief executive office or sole place of business from that referred to in Section 4.5 hereof;

(b) except as permitted by Section 9.12 of the Loan Agreement, change its legal name, jurisdiction of organization, type of organization, organizational identification number, identity or corporate structure; or

(c) without the prior written consent of Collateral Agent, permit any Inventory or Equipment (excluding Inventory or Equipment in transit in the ordinary course of business) and books and records concerning the Collateral to be kept at a location other than those listed on Schedule 6 hereto.

5.5. Investment Property.

(a) If such Grantor shall become entitled to receive or shall receive any certificate in respect of any Pledged Stock (including any certificate representing a stock dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization of such Pledged Stock), option or rights in respect of any Pledged Stock, whether in addition to, in substitution of, as a conversion of, or in exchange for, any shares of the Pledged Stock, or otherwise in respect thereof, such Grantor shall accept the same as the agent of the Secured Parties, hold the same in trust for the benefit of the Secured Parties and, within five (5) Business Days of such receipt, deliver the same forthwith to the Collateral Agent in the exact form received, duly endorsed by such Grantor to the Collateral Agent, if required, together with an undated stock power covering such certificate duly executed in blank by such Grantor and otherwise in form and substance satisfactory to Collateral Agent, to be held by the Collateral Agent as additional Collateral under this Agreement. In case any distribution shall be made on or in respect of the Investment Property or any property shall be distributed upon or with respect to the Investment Property in a manner which is not otherwise permitted by the Loan Agreement, the property so distributed shall be delivered to the Collateral Agent within five (5) Business Days of receipt by a Grantor, to be held by the Collateral Agent as additional Collateral under this Agreement.

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(b) In the case of each Grantor which is an Issuer, such Issuer agrees that (i) it will be bound by the terms of this Agreement relating to the Investment Property issued by it and will comply with such terms insofar as such terms are applicable to it, (ii) it will notify the Collateral Agent promptly in writing of the occurrence of any of the events described in Section 5.5(a) hereof with respect to the Investment Property issued by it, and (iii) the terms of Sections 6.3(b) and 6.7 hereof shall apply to it, mutatis mutandis, with respect to all actions that may be required of it pursuant to Section 6.3(b) hereof with respect to the Investment Property issued by it.

(c) On the Closing Date or, if applicable, the date on which it signs, executes and delivers an Assumption Agreement, such Grantor will duly execute (and cause the relevant Issuer to duly execute) an Issuer Control Agreement in respect of each Pledged Uncertificated Security then owned by such Grantor, and shall deliver such Issuer Control Agreement to the Collateral Agent for counter-execution. Thereafter, whenever such Grantor acquires any other Pledged Uncertificated Security constituting Capital Stock in a Subsidiary, such Grantor will promptly, and in any event within five (5) Business Days after acquiring such Pledged Uncertificated Security, duly execute (and cause the relevant Issuer to duly execute) an Issuer Control Agreement in respect of such Pledged Uncertificated Security and deliver such Issuer Control Agreement to the Collateral Agent for counter-execution.

(d) Unless an Event of Default shall have occurred and be continuing (and during an Event of Default, as permitted under Section 9.06(b) the Loan Agreement), each Grantor shall be permitted to receive dividends and other distributions in respect of the Pledged Stock and all payments made in respect of the Pledged Notes, to the extent permitted by the Loan Agreement, and to exercise all voting, corporate, consensual and other rights and privileges with respect to the Investment Property; provided, that no vote shall be cast or corporate or other consensual right exercised or other action taken which, in the Collateral Agent’s reasonable discretion, would violate any provision of the Loan Agreement, this Agreement or any other Loan Document.

(e) Without the prior written consent of the Collateral Agent, such Grantor will not (i) vote to enable, or take any other action to permit, any Issuer to issue any stock or other equity securities of any nature or to issue any other securities convertible into or granting the right to purchase or exchange for any stock or other equity securities of any nature of any Issuer (except as otherwise permitted by the Loan Agreement), (ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any option with respect to, the Investment Property or Proceeds thereof (except pursuant to a transaction expressly permitted by the Loan Agreement), (iii) create, incur or permit to exist any Lien or option in favor of, or any claim of any Person with respect to, any of the Investment Property or Proceeds thereof, or any interest therein, except for the security interests created by this Agreement, as otherwise permitted by the Loan Agreement or Liens arising by operation of law or (iv) enter into any agreement or undertaking restricting the right or ability of such Grantor or the Collateral Agent to sell, assign or transfer any of the Investment Property or Proceeds thereof other than agreements expressly permitted under the Loan Agreement.

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(f) To the extent required by any Organization Document or Applicable Law, such Grantor hereby consents to the pledge of the Pledged Stock by each other Grantor pursuant to the terms hereof and, upon the occurrence and during the continuance of an Event of Default, to the transfer of such Pledged Stock to the Collateral Agent or its nominee and to the substitution of the Collateral Agent or its nominee as a substituted partner, member or other equity holder in any applicable partnership, limited liability company or other entity, with all the rights, powers and duties of a general partner, limited partner, member or other equity holder, as applicable, and such Grantor shall cause each relevant Issuer to promptly execute and deliver to the Collateral Agent an acknowledgment of this Agreement in form and substance reasonably satisfactory to the Collateral Agent.

5.6. Receivables.

(a) Other than as expressly permitted by the Loan Agreement or in the ordinary course of business consistent with its past practice, such Grantor will not (i) grant any extension of the time of payment of any Material Receivable, (ii) compromise or settle any Material Receivable for less than the full amount thereof, (iii) rescind or cancel any obligations evidenced by any Material Receivable or otherwise release, wholly or partially, any Person liable for the payment of any Material Receivable, (iv) allow any credit or discount whatsoever on any Material Receivable, or (v) amend, supplement or modify any Material Receivable in any manner that could adversely affect the value thereof; provided that none of such actions may be taken by such Grantor upon the occurrence and during the continuance of an Event of Default. The Collateral Agent hereby authorizes each Grantor to collect such Grantor’s Receivables; provided that the Collateral Agent may curtail or terminate such authority at any time after the occurrence and during the continuance of an Event of Default.

(b) Such Grantor shall keep and maintain at its own cost and expense complete records of each Receivable of such Grantor, with at least such specificity and in a manner at least as comprehensive and detailed as is prudent and customary for businesses engaged in such Grantor’s industry and of similar size as such Grantor, including records of all payments received, all credits granted thereon, all merchandise returned, and all other documentation relating thereto. Upon the Collateral Agent’s demand made at any time after the occurrence and during the continuance of any Event of Default, and at such Grantor’s sole cost and expense, such Grantor shall deliver to the Collateral Agent or its designee all tangible evidence of any Receivables, including all documents evidencing Receivables and any books and records relating thereto (copies of which evidence and books and records may be retained by such Grantor).

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(c) Upon the occurrence and during the continuance of an Event of Default, at the request of the Collateral Agent and in form and manner reasonably satisfactory to the Collateral Agent, such Grantor shall legend the Receivables and the other books, records and documents of such Grantor evidencing or pertaining to the Receivables with a reference to the fact that the Receivables have been collaterally assigned to the Collateral Agent for the benefit of the Secured Parties and that the Collateral Agent has a security interest therein.

(d) Such Grantor shall cause to be collected from the obligor of each Material Receivable, as and when due, any and all amounts owing under or on account of such Receivable, and apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Receivable, except that such Grantor may, with respect to any Receivable, allow in the ordinary course of business (i) a refund or credit due as a result of returned or damaged or defective merchandise and (ii) such extensions of time to pay amounts due in respect of Receivables and such other modifications of payment terms or settlements in respect of Receivables as shall be commercially reasonable under the circumstances, all in accordance with such Grantor’s ordinary course of business consistent with its collection practices as in effect from time to time. The costs and expenses of collection, whether incurred by such Grantor, the Collateral Agent or any other Secured Party, shall be paid by the Grantors.

(e) Such Grantor shall promptly inform the Collateral Agent in writing of any disputes with any obligor under any Receivable and of any claimed offset and counterclaim in respect of any Receivable that may be asserted with respect thereto involving, in each case, $250,000 or more, where such Grantor reasonably believes that the likelihood of payment by such account debtor is materially impaired, indicating in detail the reason for the dispute, all claims relating thereto and the amount in controversy.

5.7. Intellectual Property. With respect to each item of Intellectual Property that is material to the conduct of such Grantor’s business:

(a) With respect to each such Trademark, such Grantor (either itself or through licensees) will (i) continue to use each such Trademark on each and every trademarked class of goods applicable to its then current lines of products and services as reflected in its current catalogs, brochures, price lists and other sales materials in order to maintain such Trademark in full force and effect free from any claim of abandonment for non-use, (ii) maintain in all material respects the quality of products and services offered under each such Trademark, (iii) use each such Trademark with the appropriate notice of registration and all other notices and legends in compliance with Applicable Laws, (iv) not adopt or use any mark which is confusingly similar or a colorable imitation of any such Trademark unless the Collateral Agent, for the benefit of the Secured Parties, shall obtain a perfected security interest in such mark pursuant to this Agreement, and (v) not (and not permit any licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby such Trademark may become invalidated or impaired in any way.

(b) Such Grantor (either itself or through licensees) will not do any act, or knowingly or negligently omit to do any act, whereby any such Patent may become forfeited, invalidated, abandoned or dedicated to the public (other than at the end of its applicable statutory term).

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(c) Such Grantor (either itself or through licensees) (i) will employ each such Copyright, and (ii) will not (and will not permit any licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby any such Copyright may become invalidated or otherwise materially impaired. Such Grantor will not (either itself or through licensees) do any act whereby any such Copyright may fall into the public domain (other than at the end of its applicable statutory term).

(d) Such Grantor (either itself or through licensees) will not do any act that knowingly infringes the intellectual property rights or otherwise violates any other rights or privileges of any other Person.

(e) Such Grantor will take all reasonably necessary steps, including in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency in any other country or any political subdivision thereof, to maintain and pursue each application (and to obtain the relevant registration) and to maintain each registration of such Intellectual Property, including timely filing of applications for renewal, affidavits of use and affidavits of incontestability and payment of all applicable maintenance fees.

(f) Such Grantor shall take the actions reasonably necessary to protect the confidentiality of such Intellectual Property and its rights therein, including (i) protecting the secrecy and confidentiality of its confidential information and Trade Secrets upon commercially reasonable terms, (ii) taking actions reasonably necessary to ensure that no Trade Secret falls or has fallen into the public domain and (iii) initiating and pursuing opposition, interference and cancelation proceedings against all applicable Persons to the extent deemed appropriate in Grantors’ reasonable business judgment.

(g) Such Grantor shall execute and deliver to the Collateral Agent in form and substance reasonably acceptable to the Collateral Agent and suitable for filing in the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency in any other country or any political subdivision thereof, short-form intellectual property security agreements in the form attached hereto as Annex II for all Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses of such Grantor.

(h) Such Grantor will promptly, and in any event within five (5) Business Days, notify the Collateral Agent in writing if such Grantor knows, or has reason to know, that any application or registration relating to any of such Grantor’s Intellectual Property may become forfeited, abandoned or dedicated to the public, or of any materially adverse determination (including, without limitation, the institution of, or any such determination in, any adversarial proceeding with a third party in the United States Patent and Trademark Office, the United States Copyright Office or any court or tribunal in any country) regarding such Grantor’s ownership of, or the validity of, any of such Grantor’s Intellectual Property or such Grantor’s right to register such Intellectual Property or to own and maintain such Intellectual Property. In the event that such Grantor knows that any of such Grantor’s Intellectual Property has been infringed, misappropriated or diluted by a third party, such Grantor shall take such actions as such Grantor shall reasonably deem appropriate under the circumstances to protect such Intellectual Property.

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(i) Such Grantor shall use commercially reasonable efforts so as not to permit the inclusion in any IP License to which it becomes a party of any provision that could in any way impair or prevent the creation of a security interest in, or the collateral assignment of, such Grantor’s rights and interests in such Intellectual Property.

(j) Notwithstanding anything to the contrary contained in this Section 5.7, nothing herein contained shall prohibit any Grantor from causing or permitting expiration, abandonment or invalidation of any Intellectual Property or failing to renew, abandoning or permitting to expire any applications or registrations for any of the Intellectual Property if, in such Grantor’s reasonable good faith judgment, such Intellectual Property, applications or registrations (as applicable) are no longer useful in the conduct of such Grantor’s business.

5.8. Intellectual Property Filing. Whenever such Grantor, either by itself or through any agent, employee, licensee or designee, files an application for the registration of any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency in any other country or any political subdivision thereof, such Grantor shall notify the Collateral Agent in writing of such filing within five (5) Business Days of such filing; provided, that, upon receipt from the United States Copyright Office of notice of registration of any such Copyright(s), such Grantor shall promptly (but in no event later than five (5) Business Days following such receipt) notify the Collateral Agent in writing of such registration by delivering, or causing to be delivered to the Collateral Agent, documentation sufficient for the Collateral Agent to perfect the Collateral Agent’s Liens on such Copyright(s). Upon the request of the Collateral Agent, such Grantor shall execute and deliver within five (5) Business Days of such request, in recordable form, any and all agreements, instruments, documents, and papers as the Collateral Agent may reasonably request to evidence the Collateral Agent’s Lien on any such registered Copyright, Patent, Trademark or application therefor and the goodwill and general intangibles of such Grantor relating thereto or represented thereby.

5.9. Commercial Tort Claims. If such Grantor shall obtain an interest in any Commercial Tort Claim for an amount in excess of $100,000 for any one such claim or in excess of $250,000 in the aggregate for all such claims, such Grantor shall promptly (and in any event within five (5) Business Days after obtaining such Commercial Tort Claim) notify the Collateral Agent in writing, and upon the request of the Collateral Agent, promptly (and in any event within five (5) Business Days after such request) amend Schedule 5 hereto, authorizing the Collateral Agent to do such acts or things deemed necessary or desirable by the Collateral Agent to give the Collateral Agent a first priority perfected security interest in any such Commercial Tort Claim (subject only to Permitted Liens which, pursuant to the terms of the Loan Agreement, are expressly permitted to have priority over the Collateral Agent’s Liens thereon) and such Grantor and the Collateral Agent acknowledge and agree that the notification of the Commercial Tort Claim and amendment of Schedule 5 hereto shall be sufficient to grant to the Collateral Agent a security interest in such Commercial Tort Claim. Without limiting the foregoing, such Grantor agrees that the notice described in the first sentence of this Section 5.9 shall constitute the grant to the Collateral Agent by such Grantor of a security interest in the Commercial Tort Claim described therein (subject only to Permitted Liens which, pursuant to the terms of the Loan Agreement, are expressly permitted to have priority over Collateral Agent’s Liens thereon).

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5.10. Collateral in the Possession of a Bailee. If any Collateral having a book value in excess of $250,000 for any one bailee or in excess of $500,000 in the aggregate for all bailees, is now or at any time hereafter, in the possession of a bailee, such Grantor shall promptly, but in any event within five (5) Business Days, notify the Collateral Agent thereof in writing and, at the Collateral Agent’s request and option, such Grantor shall use commercially reasonable efforts to promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Collateral Agent, that the bailee holds such Collateral in trust for the benefit of the Collateral Agent and such bailee’s agreement to comply, without further consent of such Grantor, at any time with instructions of the Collateral Agent as to such Collateral. The Collateral Agent agrees with the Grantors that the Collateral Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by any of the Grantors with respect to the bailee.

5.11. Electronic Chattel Paper. If any Grantor, now or at any time hereafter, holds or acquires an interest in any Electronic Chattel Paper, any electronic document or any “transferable record”, as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction having a value of more than $150,000 in any one instance or more than $350,000 in the aggregate for all such assets (“Material Electronic Chattel Paper”), such Grantor shall promptly (and in any event within five (5) Business Days after obtaining any such asset) notify the Collateral Agent thereof in writing and, at the request and option of the Collateral Agent, shall promptly take such action as the Collateral Agent may reasonably request to vest in the Collateral Agent control, under Section 9-105 of the UCC or the Uniform Commercial Code of any other relevant jurisdiction, of such Material Electronic Chattel Paper, control, under Section 7-106 of the UCC or the Uniform Commercial Code of any other relevant jurisdiction, of such electronic document or control, under Section 201 of the federal Electronic Signatures in Global and National Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Collateral Agent agrees with each Grantor that the Collateral Agent will arrange, pursuant to procedures reasonably satisfactory to the Collateral Agent and so long as such procedures will not result in the Collateral Agent’s loss of control, for such Grantor to make alterations to the Electronic Chattel Paper, electronic document or transferable record permitted under UCC Section 9-105, UCC Section 7-106, or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless a Default or an Event of Default has occurred and is continuing or would occur after taking into account any action by such Grantor with respect to such Electronic Chattel Paper, electronic document or transferable record.

5.12. Letter-of-Credit Rights. If any Grantor is now or at any time hereafter a beneficiary under a letter of credit having a face amount of more than $150,000 in any one instance or more than $350,000 in the aggregate for all such letters of credit, such Grantor shall promptly, but in any event within five (5) Business Days, notify the Collateral Agent thereof in writing and, at the request of the Collateral Agent, such Grantor shall, use commercially reasonable efforts to promptly pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (a) arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Collateral Agent of the proceeds of the letter of credit, or (b) arrange for the Collateral Agent to become the transferee beneficiary of the letter of credit.

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5.13. [Reserved].

5.14. Insurance. Such Grantor shall maintain or cause to be maintained insurance covering physical loss or damage to the Collateral in accordance with Section 8.03 of the Loan Agreement (“Maintenance of Insurance”), and makes, designates, constitutes and appoints the Collateral Agent and its designees as such Grantor’s true and lawful agent and attorney-in-fact, effective after the occurrence and during the continuance of an Event of Default, for the purpose of making, settling and adjusting claims in respect of Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance, and making all determinations and decisions with respect thereto.

5.15. [Reserved].

5.16. [Reserved].

5.17. Further Assurances; Pledge of Instruments. At the sole expense of such Grantor, such Grantor shall promptly duly execute and deliver any and all such further instruments and documents and take such further action as the Collateral Agent may reasonably request (except in contravention of the express terms of this Agreement) to obtain the full benefits of this Agreement and of the rights and powers granted herein, which shall in any case include, but shall not be limited to: (a) using commercially reasonable efforts if requested by the Collateral Agent to secure all consents and approvals necessary or appropriate for the grant of a security interest to the Collateral Agent in any lease, license, contract or agreement held by such Grantor or in which such Grantor has any right or interest (or with respect to which such Grantor has any right or interest in the assets subject to such lease, license, contract or agreement) not heretofore assigned; (b) authorizing the filing of and delivering and causing to be filed any financing or continuation statements under the UCC with respect to the security interests granted hereby; (c) filing or reasonably cooperating with the Collateral Agent in filing any forms or other documents required to be recorded with the United States Patent and Trademark Office or the United States Copyright Office (in each case including short-form intellectual property security agreements in the form attached hereto as Annex II for all Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses of such Grantor), or if reasonably requested by the Collateral Agent, any actions, filings, recordings or registrations in any foreign jurisdiction or under any international treaty, required to secure or protect the Collateral Agent’s interest in such Grantor’s Collateral; (d) at the Collateral Agent’s reasonable request, transferring such Grantor’s Collateral to the Collateral Agent’s possession (if a security interest in such Collateral can be perfected by possession); and (e) upon the Collateral Agent’s reasonable request, executing and delivering or causing to be delivered written notice to insurers of the Collateral Agent’s security interest in, or claim in or under, any policy of insurance (including unearned premiums). Such Grantor also hereby authorizes the Collateral Agent to file any such financing or continuation statement without the signature of such Grantor.

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5.18. No Perfection. Notwithstanding anything in this Section 5 to the contrary, the Collateral Agent and the Borrowers may agree (each in their sole discretion) that the cost to perfect any security interest in any Collateral granted herein or in any other Loan Document is excessive in relation to the benefit to the Secured Parties to be afforded thereby. If the Collateral Agent and the Borrowers so agree, no further actions to obtain perfection, on the part of any Grantor or the Collateral Agent, shall be required.

SECTION 6. REMEDIAL PROVISIONS

6.1. Certain Matters Relating to Receivables.

(a) Upon the occurrence and during the continuance of an Event of Default, (i) the Collateral Agent shall have the right to make test verifications of the Receivables in any manner and through any medium that it considers advisable, and each Grantor shall furnish all such assistance and information as the Collateral Agent may require, and shall reimburse the Collateral Agent for any and all expenses incurred by the Collateral Agent, in connection with such test verifications, and (ii) upon the Collateral Agent’s reasonable request and at the expense of the relevant Grantor, such Grantor shall promptly cause independent public accountants or others satisfactory to the Collateral Agent to furnish to the Collateral Agent reports showing reconciliations, aging and test verifications of, and trial balances for, the Receivables.

(b) If requested by the Collateral Agent at any time after the occurrence and during the continuance of an Event of Default, any payments of Receivables, when collected by any Grantor, (i) shall forthwith (and, in any event, within one (1) Business Day) be deposited by such Grantor in the exact form received, duly endorsed by such Grantor to the Collateral Agent if requested, in a Collateral Account maintained under the sole dominion and control of the Collateral Agent, subject to withdrawal by the Collateral Agent for the account of the Secured Parties as provided in Sections 6.4 and 6.5 hereof, and (ii) until so turned over, shall be held by such Grantor in trust for the benefit of the Secured Parties, segregated from other funds of such Grantor. Each such deposit of Proceeds of Receivables shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.

(c) At the Collateral Agent’s request at any time after the occurrence and during the continuance of an Event of Default, each Grantor shall promptly deliver to the Collateral Agent all original and other documents evidencing, and relating to, the agreements and transactions which gave rise to the Receivables, including all original orders, invoices and shipping receipts.

6.2. Communications with Obligors; Grantors Remain Liable.

(a) At any time after the occurrence and during the continuance of an Event of Default, upon written notice to the applicable Grantor, the Collateral Agent in its own name or in the name of the applicable Grantor may at any time communicate with obligors under the Receivables and parties to any contract that constitutes Collateral to verify with them to the Collateral Agent’s satisfaction the existence, amount and terms of any Receivables.

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(b) At any time after the occurrence and during the continuance of an Event of Default, upon the request of the Collateral Agent, each Grantor shall promptly notify obligors on the Receivables and parties to any contract that constitutes Collateral that the Receivables and such contracts have been assigned to the Collateral Agent for the benefit of the Secured Parties and that payments in respect thereof shall be made directly to the Collateral Agent.

(c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each of the Receivables and each contract that constitutes Collateral to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto. No Secured Party shall have any obligation or liability under any Receivable (or any agreement giving rise thereto) or any contract that constitutes Collateral by reason of or arising out of this Agreement or the receipt by any Secured Party of any payment relating thereto, nor shall any Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Receivable (or any agreement giving rise thereto) or any contract that constitutes Collateral, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times. From and after the occurrence and during the continuance of an Event of Default and upon notice thereof by the Collateral Agent to the Grantors, the Collateral Agent shall have the sole and exclusive authority to enforce all contracts that constitute Collateral and no Grantor shall take any action under any such contract, including amending, waiving, extending, terminating or cancelling any such contract, or taking any action in furtherance thereof, without the prior written consent of the Collateral Agent in each instance.

(d) At any time after the occurrence and during the continuance of an Event of Default, the Collateral Agent may, in its sole discretion, in its name or in the name of any Grantor, or otherwise: (i) demand, sue for, collect or receive any money or property at any time payable or receivable on account of or in exchange for, or make any compromise or settlement deemed necessary with respect to any of the Collateral, but shall be under no obligation to do so; or (ii) extend the time of payment, arrange for payment in installments, or otherwise modify the term of, or release, any of the Collateral, without thereby incurring responsibility to, or discharging or otherwise affecting any liability of, any Grantor, other than to discharge a Grantor in so doing with respect to liabilities of such Grantor to the extent that the liabilities are paid or repaid. At any time after the occurrence and during the continuance of an Event of Default, any Collateral or other money, checks, notes, bills, drafts, or commercial paper received by any Grantor shall be held in trust for the Secured Parties and shall be promptly (in any event within two (2) Business Days) turned over to the Collateral Agent on behalf of the Secured Parties. The Collateral Agent may make such payments and take such actions as the Collateral Agent, in its sole discretion, deems necessary to protect its Liens and security interests in the Collateral or the value thereof, and the Collateral Agent is hereby unconditionally and irrevocably authorized (without limiting the general nature of the authority hereinabove conferred) to pay, purchase, contest or compromise any Liens which in the judgment of the Collateral Agent appear to be equal to, prior to or superior to its Liens and security interests in the Collateral and any Liens not created by this Agreement.

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6.3. Pledged Stock.

(a) Upon the occurrence and during the continuance of an Event of Default, in addition to all other rights and remedies available to the Collateral Agent under any other agreement, at law, in equity, or otherwise, and in all cases without any requirement that any notice be delivered to any Person (except as explicitly set forth in clause (iv) below), (i) the Collateral Agent shall have the sole and exclusive right to receive any and all dividends, payments or other Proceeds paid in respect of the Pledged Stock and other Investment Property and make application thereof to the Secured Obligations in the manner set forth in Section 4.02(c) of the Loan Agreement, (ii) the Collateral Agent shall have the sole and exclusive right (but shall be under no obligation) to register any or all of the Pledged Stock and other Investment Property in the name of the Collateral Agent or its nominee, (iii) all rights of such Grantor to exercise or refrain from exercising the voting, corporate, consensual and other rights and privileges pertaining to the Pledged Stock and other Investment Property to which such Grantor would otherwise be entitled shall automatically cease and become vested in the Collateral Agent, and (iv) the Collateral Agent or its nominee shall have (except to the extent, if any, specifically waived in each instance by the Collateral Agent in writing in its sole discretion) the sole and exclusive right to exercise or refrain from exercising, but under no circumstances is the Collateral Agent obligated by the terms of this Agreement or otherwise to exercise, (x) all voting, corporate, consensual and other rights and privileges pertaining to the Pledged Stock and other Investment Property, whether at any meeting of shareholders of the relevant Issuer or Issuers, by written consent in lieu of a meeting or otherwise, and (y) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to the Pledged Stock and other Investment Property as if it were the absolute owner thereof (including the right to exchange, at its discretion, any and all of the Pledged Stock or other Investment Property upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate structure of any Issuer, or upon the exercise by any Grantor or the Collateral Agent of any right, privilege or option pertaining to the Pledged Stock or other Investment Property, and in connection therewith, the right to deposit and deliver any and all of the Pledged Stock or other Investment Property with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Collateral Agent may determine in its sole discretion), all without liability except to account for property actually received by the Collateral Agent, but the Collateral Agent shall have no duty to any Grantor or any other Person to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing. Each Grantor hereby appoints the Collateral Agent as such Grantor’s true and lawful attorney-in-fact, with full power of substitution, and grants to the Collateral Agent this IRREVOCABLE PROXY, to vote all or any part of the Pledged Stock and other Investment Property from time to time following the occurrence and during the continuance of an Event of Default, in each case in any manner the Collateral Agent deems advisable in its sole discretion for or against any or all matters submitted, or which may be submitted, to a vote of shareholders (including holders of any Capital Stock of any Issuer), partners or members, as the case may be, and to exercise all other rights, powers, privileges and remedies to which any such shareholders (including holders of any Capital Stock of any Issuer), partners or members would be entitled (including, without limitation, giving or withholding written consents of holders of Capital Stock of any Issuer, calling special meetings of the holders of the Capital Stock of any Issuer and voting at such meetings). The power-of-attorney and irrevocable proxy granted hereby are effective automatically upon the occurrence and during the continuance of an Event of Default without the necessity that any action (including, without limitation, that any transfer of any of the Pledged Stock or other Investment Property be recorded on the books and records of the relevant Issuer or that any of the Pledged Stock or other Investment Property be registered in the name of the Collateral Agent or any other Person) be taken by any Person (including the Issuer of the relevant Pledged Stock or other Investment Property or any officer or agent thereof), are coupled with an interest and shall be irrevocable, shall survive the bankruptcy, dissolution or winding up of each relevant Grantor, and shall terminate only on the Termination Date.

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(b) Each Grantor hereby authorizes and instructs each Issuer of any Pledged Stock or any other Investment Property pledged by such Grantor hereunder to comply with any instruction received by such Issuer from the Collateral Agent in writing that states that an Event of Default has occurred and is continuing, without any other or further instructions from such Grantor, and each Grantor agrees that each Issuer shall be fully protected in so complying and shall have no duty or right to inquire as to the Collateral Agent’s authority to give such instruction, including the payment of any dividends or other payments with respect to any Pledged Stock or other Investment Property directly to the Collateral Agent. Each party hereto that is an Issuer acknowledges the rights, remedies and privileges of the Collateral Agent set forth in Section 6.3(a) above and agrees to abide and comply with any action taken by the Collateral Agent thereunder or pursuant thereto.

(c) In furtherance of, and without in any way limiting, any of the foregoing, promptly (and in any event within two (2) Business Days) following a request from the Collateral Agent, each Grantor shall execute and deliver (or cause to be executed and delivered) to the Collateral Agent any and all such further proxies, dividend payment orders and other instruments as the Collateral Agent may from time to time reasonably request to facilitate the exercise of, or otherwise in connection with, any of the rights or remedies granted to the Collateral Agent in or pursuant to Section 6.3(a) hereof.

(d) Each Grantor covenants and agrees that, on the date that is thirty (30) days prior to the date of expiration (by operation of Applicable Law) of the irrevocable proxy granted pursuant to Section 6.3(a) hereof, such Grantor shall automatically be deemed to have granted to the Collateral Agent a new irrevocable proxy on the same terms as the terms of the irrevocable proxy previously granted pursuant to Section 6.3(a) hereof. Promptly upon any request by the Collateral Agent, each Grantor agrees to deliver to the Collateral Agent any further written evidence of such new irrevocable proxy reasonably requested by the Collateral Agent to enable the Collateral Agent to exercise all of the rights relating to the Pledged Stock set forth in Section 6.3(a) hereof on the same terms as set forth therein. The Collateral Agent shall also have the right (but not the obligation) to bring suit or otherwise commence any action or proceeding in the name of any Grantor, the Collateral Agent or otherwise, in the Collateral Agent’s sole discretion, to enforce any Intellectual Property, in which event the applicable Grantor shall, at the request of the Collateral Agent, do any and all lawful acts and execute any and all documents required by the Collateral Agent in aid of such enforcement and such Grantor shall promptly, upon demand, reimburse and indemnify the Collateral Agent in connection with the exercise of its rights under this Section 6.8.

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6.4. Proceeds To Be Turned Over to Collateral Agent. In addition to the rights of the Secured Parties specified in Section 6.1 hereof with respect to payments of Receivables, if an Event of Default shall have occurred and be continuing and the Collateral Agent shall so notify the relevant Grantor, all Collections thereon shall be held by such Grantor in trust for benefit of the Secured Parties, segregated from other funds of such Grantor, and shall, forthwith (and in any event within one (1) Business Day) upon receipt by such Grantor, be turned over to the Collateral Agent in the exact form received by such Grantor (duly endorsed by such Grantor to the Collateral Agent, if so requested by the Collateral Agent). All Proceeds received by the Collateral Agent hereunder shall be held by the Collateral Agent in a Collateral Account maintained under the sole dominion and control of the Collateral Agent. All Proceeds, while held by the Collateral Agent in a Collateral Account (or by such Grantor in trust for the benefit of the Secured Parties), shall continue to be held as Collateral under this Agreement and shall not constitute payment thereof until applied as provided in Section 6.5 hereof.

6.5. Application of Proceeds. If an Event of Default shall have occurred and be continuing, at the Collateral Agent’s election, the Collateral Agent may, at any such time, apply all or any part of the Proceeds of Collateral, whether or not held in any Collateral Account, in payment of the Secured Obligations in the manner set forth in Section 4.02(c) of the Loan Agreement.

6.6. UCC and Other Remedies. If an Event of Default shall have occurred and be continuing, the Collateral Agent, on behalf of the Secured Parties, may exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to any of the Secured Obligations, all rights and remedies of a secured party under the UCC or any other Applicable Law. Without limiting the generality of the foregoing, the Collateral Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem advisable, for cash or on credit, or for future delivery, without assumption of any credit risk. Any Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Grantor, which right or equity is hereby waived and released. Each Grantor further agrees, at the Collateral Agent’s request during the continuance of an Event of Default, to assemble the Collateral, or any part thereof, and make it available to the Collateral Agent at places that the Collateral Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The Collateral Agent shall apply the proceeds of any action taken by it pursuant to this Section 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Secured Parties hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations in accordance with Section 6.5 hereof, and only after such application and after the payment by the Collateral Agent of any other amount required by any provision of law, including Section 9-615(a)(3) of the UCC, need the Collateral Agent account for the surplus, if any, to any Grantor. Each Grantor hereby acknowledges that the Secured Obligations arose out of a commercial transaction, and agrees that, if an Event of Default shall have occurred and shall be continuing, the Collateral Agent shall have the right to an immediate writ of possession without notice of a hearing. If an Event of Default shall have occurred and be continuing, the Collateral Agent shall have the right to the appointment of a receiver for the properties and assets of each Grantor, and each Grantor hereby consents to such rights and such appointment and hereby waives any objection such Grantor may have thereto or the right to have a bond or other security posted by Collateral Agent. To the extent permitted by Applicable Law, each Grantor waives all claims, damages and demands it may acquire against any Secured Party arising out of the exercise by them of any rights hereunder, except to the extent that any of the foregoing are found by a final, non-appealable order of a court of competent jurisdiction to have resulted from such Person’s own gross negligence or willful misconduct. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least ten (10) days before such sale or other disposition.

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6.7. Sales of Pledged Stock.

(a) Each Grantor recognizes that the Collateral Agent may be unable to effect a public sale of any or all the Pledged Stock, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and the Collateral Agent may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that selling Collateral in a private sale as opposed to a public sale shall not be deemed to make such sale other than in a commercially reasonable manner. The Collateral Agent shall be under no obligation to delay a sale of any of the Pledged Stock for the period of time necessary to permit the Issuer thereof to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if such Issuer would agree to do so.

(b) Each Grantor agrees to promptly do or cause to be done all such other acts as may be necessary or advisable to make such sale or sales of all or any portion of the Pledged Stock pursuant to this Section 6.7 valid and binding and in compliance with any and all Applicable Laws.

6.8. IP Licenses. For the purpose of enabling the Collateral Agent to exercise rights and remedies (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, convey, transfer or grant options to purchase any Collateral) in respect of the Intellectual Property of the Grantors following the occurrence and during the continuance of an Event of Default, each Grantor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, (i) an irrevocable, non-exclusive, worldwide license to use all Intellectual Property of such Grantor in connection therewith (exercisable without payment of royalty or other compensation to such Grantor), subject, in the case of registered Trademarks, to the Collateral Agent maintaining, or causing to be maintained, the quality of the respective goods and services associated with the use of the registered Trademarks at substantially the same level maintained by the Grantor immediately prior to the relevant Event of Default, including in such license the right to sublicense, use and practice any Intellectual Property now owned or hereafter acquired by such Grantor and access to all media in which any of the licensed items may be recorded or stored and to all software and programs used for the compilation or printout thereof and (ii) to the extent permitted by Applicable Law and the terms and conditions applicable to sublicenses of such IP License, an irrevocable, non-exclusive sublicense of each IP License with respect to which such Grantor is a licensee.

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6.9. Waiver; Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral or any portion thereof are insufficient to pay the Secured Obligations and the fees and disbursements of any attorneys employed by any Secured Party to collect such deficiency.

SECTION 7. THE COLLATERAL AGENT

7.1. Collateral Agent’s Appointment as Attorney-in-Fact, etc.

(a) Each Grantor hereby irrevocably appoints the Collateral Agent and any officer or agent thereof, with full power of substitution, until the Termination Date, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to take any and all action deemed appropriate by the Collateral Agent, and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Collateral Agent the power and right, on behalf of such Grantor, without notice to or further assent by such Grantor, to do any or all of the following, in each case at the Collateral Agent’s sole option:

(i) in the name of such Grantor or its own name, or otherwise, receive, take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable or any contract that constitutes Collateral or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Collateral Agent for the purpose of collecting any and all such moneys due under any Receivable, any contract that constitutes Collateral or with respect to any other Collateral whenever payable;

(ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Collateral Agent may reasonably request to evidence the Secured Parties’ security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby;

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(iii) pay or discharge taxes and Liens levied or placed on any of the Collateral, effect any repairs to any of the Collateral and obtain any insurance called for by the terms of this Agreement, the Loan Agreement or any other Loan Document and pay all or any part of the premiums therefor and the costs thereof, which amounts shall constitute Secured Obligations;

(iv) execute, in connection with any sale provided for in Sections 6.6 or 6.7 hereof, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral, or any part thereof;

(v) (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Collateral Agent or as the Collateral Agent shall direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) cause any mail to be transferred to the Collateral Agent’s own offices and to receive and open all mail addressed to such Grantor for the purposes of removing any items referred to in clause (i) above; (5) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (6) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (7) settle, compromise, compound, adjust or defend any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Collateral Agent may deem appropriate; (8) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Copyright, Patent or Trademark pertains), throughout the world for such term or terms, on such conditions, and in such manner, as the Collateral Agent shall in its sole discretion determine; (9) perform any obligations of any Grantor under any contract that constitutes Collateral; and (10) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Collateral Agent were the absolute owner thereof for all purposes, and do, at the Collateral Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Collateral Agent deems necessary to protect, preserve or realize upon the Collateral and the Secured Parties’ security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do;

(vi) take all actions and execute all documents in respect of contracts that constitute Collateral and Pledged Stock contemplated by Sections 6.2 and 6.3 hereof; and

(vii) execute and deliver any and all agreements, documents and other instruments required to be executed and delivered by a Grantor pursuant to the terms hereof or the terms of the Loan Agreement or any other Loan Document.

Anything in this Section 7.1(a) to the contrary notwithstanding, the Collateral Agent agrees that it will not exercise any rights under the power of attorney provided for in this Section 7.1(a) unless an Event of Default shall have occurred and be continuing.

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(b) If any Grantor fails to perform or comply with any of its agreements contained herein or in any other Loan Document beyond any applicable notice, cure or grace period, the Collateral Agent, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement.

(c) As and when required by the Loan Agreement, each Grantor agrees to promptly pay on written demand in cash all costs and expenses of the Collateral Agent incurred in connection with all actions undertaken pursuant to this Section 7.1, together with interest thereon accrued at a rate per annum equal to the highest interest rate applicable to Term Loans under the Loan Agreement (including any default rate applicable pursuant to Section 2.05(c) of the Loan Agreement), from the date of payment by the Collateral Agent to the date reimbursed by the relevant Grantor.

(d) Each Grantor hereby ratifies all actions taken by the Collateral Agent and its officers and agents pursuant to this Section 7.1. All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until the Termination Date.

7.2. Duty of Collateral Agent. The Collateral Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession, under Section 9-207 of the UCC or otherwise, shall be to deal with the Collateral in the same manner as the Collateral Agent deals with similar property for its own account. No Secured Party or any of their respective officers, directors, employees or agents shall (i) be liable for failure to demand, collect or realize upon any of the Collateral, or for any delay in doing so, or (ii) be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person, or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Collateral Agent and the other Secured Parties hereunder are solely to protect the interests of the Collateral Agent and the other Secured Parties in the Collateral and shall not impose any duty upon the Collateral Agent or any other Secured Party to exercise any such powers. Each of the Collateral Agent and the other Secured Parties shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and none of the Collateral Agent, any other Secured Party or any of their respective officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except in the case of such Person’s own gross negligence or willful misconduct as finally determined in a non-appealable order of a court of competent jurisdiction.

7.3. Financing Statements. Each Grantor authorizes the Collateral Agent to file or record financing statements and other filing or recording documents or instruments with respect to the Collateral, without the signature of such Grantor, in such form (if no signature is required) and in such offices as the Collateral Agent determines appropriate to perfect the security interests of the Collateral Agent under this Agreement. Each Grantor authorizes the Collateral Agent to use the collateral description “all personal property”, “all assets” or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC or the Uniform Commercial Code of any other applicable state, in any such financing statements.

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7.4. Authority of Collateral Agent. Each Grantor acknowledges that the rights and responsibilities of the Collateral Agent under this Agreement with respect to any action taken by the Collateral Agent or the exercise or non-exercise by the Collateral Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Secured Parties, be governed by the Loan Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Collateral Agent and the Grantors, the Collateral Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.

SECTION 8. MISCELLANEOUS

8.1. Amendments and Waivers. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Section 12.01 of the Loan Agreement (“Amendments and Waivers”).

8.2. Notices. All notices, requests, demands and other communications to or upon the Collateral Agent or any Grantor hereunder shall be (i) in writing, (ii) delivered and deemed received in accordance with the procedures set forth in Section 12.02 of the Loan Agreement (“Notices and Other Communications”), and (iii) addressed to the parties at the address, facsimile number or email address provided in Section 12.02 of the Loan Agreement. Any party hereto may change its address, facsimile number or email address for notices and other communications hereunder by notice to all of the other parties hereto in accordance with the foregoing.

8.3. No Waiver by Course of Conduct; Cumulative Remedies. No Secured Party shall by any act (except by a written instrument pursuant to Section 8.1 hereof), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which such Secured Party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.

8.4. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of the Collateral Agent and the other Secured Parties and their successors and permitted assigns; provided, that no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Collateral Agent.

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8.5. Set-Off. Each Grantor hereby irrevocably authorizes the Agents and each other Secured Party at any time and from time to time after the occurrence and during the continuance of an Event of Default, upon any amount becoming due and payable by such Grantor hereunder or under any other Loan Document (whether at the stated maturity, by acceleration or otherwise), to set off, appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Secured Party to or for the credit or the account of such Grantor, or any part thereof in such amounts as such Agent or such Secured Party may elect, against and on account of the obligations and liabilities of such Grantor to such Agent or such Secured Party hereunder and claims of every nature and description of such Agent or such Secured Party against such Grantor, in any currency, whether arising hereunder, under the Loan Agreement, any other Loan Document or otherwise, as such Agent or such Secured Party may elect, whether or not any Secured Party has made any demand for payment and although such obligations, liabilities and claims may be contingent or unmatured. Each Secured Party, or the Collateral Agent on such Secured Party’s behalf, shall notify such Grantor promptly of any such set-off and the application made by such Secured Party of the proceeds thereof; provided, that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Secured Party under this Section 8.5 are in addition to other rights and remedies (including other rights of set-off) that such Secured Party may have.

8.6. Counterparts. Any number of counterparts of this Agreement, including facsimiles and other electronic copies, may be executed by the parties hereto. Each such counterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one and the same agreement. This Agreement may be transmitted and signed and delivered by facsimile or other electronic means. The effectiveness of any such documents and signatures shall have the same force and effect as manually signed originals and shall be binding on all parties.

8.7. Severability. All provisions of this Agreement are severable, and the unenforceability or invalidity of any of the provisions of this Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement. Should any part of this Agreement be held invalid or unenforceable in any jurisdiction, the invalid or unenforceable portion or portions shall be removed (and no more) only in that jurisdiction, and the remainder shall be enforced as fully as possible (removing the minimum amount possible) in that jurisdiction. In lieu of such invalid or unenforceable provision, the parties hereto will negotiate in good faith to add as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such invalid or unenforceable provision as may be possible.

8.8. Section Headings. The Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

8.9. Integration. This Agreement and the other Loan Documents contain the entire agreement of the parties with respect to the subject matter hereof and thereof and supersede all prior negotiations, agreements and understandings with respect thereto, both written and oral. This Agreement may not be contradicted or supplemented by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten or oral agreements between the parties. When this Agreement or any other Loan Document refers to a party’s “sole discretion”, such phrase means that party’s sole and absolute discretion as to process and result, which shall be final for all purposes hereunder, to be exercised (to the fullest extent the law permits) as arbitrarily and capriciously as that party may wish, for any reason, subject to no standard of reasonableness or review and part of no claim before any court, arbitrator or other tribunal or forum or otherwise.

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8.10. GOVERNING LAW. THIS AGREEMENT AND THE VALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND ANY CLAIM BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE DETERMINED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK FOR CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS REQUIRING APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.

8.11. Waiver. THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, ALL RIGHTS OF RESCISSION, SETOFF, COUNTERCLAIMS, AND OTHER DEFENSES IN CONNECTION WITH THE REPAYMENT OF THE GUARANTEED OBLIGATIONS (OTHER THAN THE DEFENSE OF PAYMENT IN FULL).

8.12. Acknowledgements. Each party hereto hereby acknowledges that:

(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party, and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation hereof or thereof;

(b) no Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Grantors, on the one hand, and the Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and

(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Secured Parties or among the Grantors and the Secured Parties.

8.13. Additional Grantors and Guarantors. Each Subsidiary of any Loan Party that is required to become a party to this Agreement pursuant to Section 8.10 of the Loan Agreement (“Additional Collateral, Guarantors and Grantors”) shall become a Grantor and a Guarantor for all purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption Agreement.

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8.14. Releases of Guaranty and Liens.

(a) On the Termination Date, (i) the Collateral shall automatically be released from the Liens created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of each Grantor hereunder shall automatically terminate, all without delivery of any instrument or performance of any act by any Person, and all rights to the Collateral shall revert to the Grantors, and (ii) all obligations of the Collateral Agent under this Agreement and the other Security Documents shall automatically terminate without delivery of any instrument or performance of any act by any Person, and at the Borrowers’ request and sole cost and expense, the Collateral Agent shall terminate the Security Documents and release the Collateral from the Liens created by the Security Documents.

(b) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Collateral Agent is hereby irrevocably authorized by each Secured Party (without requirement of notice to or consent of any Secured Party except as expressly required by Section 12.01 of the Loan Agreement) to take any action requested by the Grantor having the effect of releasing any Collateral or Guaranteed Obligations (i) to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document or that has been consented to in accordance with Section 12.01 of the Loan Agreement, or (ii) under the circumstances described in Section 8.14(a) hereof.

(c) Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release its interest in particular types or items of property, or to release any Guaranteed Obligations pursuant to this Section 8.14. In each case as specified in this Section 8.14, the Collateral Agent will (and each Lender irrevocably authorizes the Collateral Agent to), at the Loan Parties’ expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under this Agreement and the other Security Documents or such Guaranteed Obligations, as applicable, in each case in accordance with the terms of the Loan Documents and this Section 8.14.

8.15. Subordination. Notwithstanding any provision of this Agreement to the contrary, and except as otherwise provided by Applicable Law, all rights of the Grantors to indemnity, contribution, reimbursement or subrogation under Applicable Law or otherwise shall be fully subordinated to the payment in full in cash of the Secured Obligations (other than Unasserted Contingent Obligations). No failure on the part of any Borrower or any other Grantor to make the payments required under Applicable Law or otherwise shall in any respect limit the obligations and liabilities of any Grantor with respect to its obligations hereunder, and each Grantor shall remain liable for the full amount of the obligations of such Grantor hereunder. Each Grantor hereby agrees that all Indebtedness owed to it by any other Grantor shall be fully subordinated to the payment in full in cash of the Secured Obligations (other than Unasserted Contingent Obligations).

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8.16. Intercompany Debt Subordination. 

(a) As to each Grantor, all payments on account of an Intercompany Debt shall be subject, subordinate, and junior, in right of payment and exercise of remedies, to the extent and in the manner set forth herein, to the prior payment, in full, in cash of the Secured Obligations (other than Unasserted Contingent Obligations). As to each Grantor, in the event of any payment or distribution of assets of any other Grantor of any kind or character, whether in cash, property, or securities, upon any Insolvency Proceeding or other dissolution, winding up, or total or partial liquidation or reorganization, readjustment, arrangement, or similar proceeding relating to such other Grantor or its property, whether voluntary or involuntary, or in bankruptcy, insolvency, receivership, arrangement, or similar proceedings or upon an assignment for the benefit of creditors, or upon any other marshaling or composition of the assets and liabilities of such other Grantor, or otherwise, (such events, collectively, the “Grantor Insolvency Events”): (i) all amounts owing on account of the Secured Obligations shall first be paid in full before any payment on account of an Intercompany Debt is made; and (ii) to the extent permitted by Applicable Law, any payment on account of an Intercompany Debt to which such Grantor would be entitled except for the provisions hereof, shall be paid or delivered by the trustee in bankruptcy, receiver, assignee for the benefit of creditors, or other liquidating agent making such payment or distribution directly to the Collateral Agent for the benefit of the Secured Parties for application to the payment of the Secured Obligations in accordance with sub-clause (i), after giving effect to any concurrent payment or distribution or provision therefor to the Secured Parties or the Collateral Agent for the benefit thereof in respect of such Secured Obligations.

(b) So long as no Default or Event of Default has occurred and is continuing, each Grantor may make, and each other Grantor shall be entitled to accept and receive, payments not prohibited under the Loan Agreement in respect of any Intercompany Debt; provided that upon the occurrence and during the continuance of any Default or Event of Default, at the election of the Collateral Agent, no Grantor shall make, and no other Grantor shall accept or receive, any payment on account of any Intercompany Debt.

(c) In the event that, notwithstanding the provisions of Sections 8.16(a) and (b) above, any payment on account of any Intercompany Debt shall be received in contravention of Sections 8.16(a) or (b) above by any Grantor before all Secured Obligations are paid in full in cash, such payment on account of Intercompany Debt shall be held in trust for the benefit of the Secured Parties and shall be paid over or delivered to the Collateral Agent for application to the payment in full of all Secured Obligations remaining unpaid to the extent necessary to give effect to such Sections 8.16(a) and (b) above, after giving effect to any concurrent payments or distributions to the Collateral Agent in respect of the Secured Obligations.

(d) If, while any Intercompany Debt is outstanding, any Grantor Insolvency Event shall occur and be continuing with respect to any Grantor or its property: (i) the Collateral Agent hereby is irrevocably authorized and empowered (in the name of each other Grantor or otherwise), but shall have no obligation, to demand, sue for, collect, and receive every payment or distribution in respect of the Intercompany Debt and give acquittance therefor and to file claims and proofs of claim and take such other action (including voting the Intercompany Debt) as it may deem necessary or advisable for the exercise or enforcement of any of the rights or interests of the Collateral Agent; and (ii) each other Grantor shall promptly take such action as the Collateral Agent may request (x) to collect the Intercompany Debt for the account of the Secured Parties and to file appropriate claims or proofs of claim in respect of the Intercompany Debt, (y) to execute and deliver to the Collateral Agent such powers of attorney, assignments, and other instruments as it may request to enable it to enforce any and all claims with respect to the Intercompany Debt, and (z) to collect and receive any and all payment on account of the Intercompany Debt.

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8.17. WAIVER OF JURY TRIAL; DISPUTE RESOLUTION; JURISDICTION; VENUE; SERVICE OF PROCESS. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR (II) ARISING FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS AGREEMENT. EACH PARTY FURTHER AGREES THAT THE TERMS AND PROVISIONS OF ARTICLE XIII OF THE LOAN AGREEMENT (“DISPUTE RESOLUTION”) ARE HEREBY INCORPORATED HEREIN BY REFERENCE, AND SHALL APPLY TO THIS AGREEMENT MUTATIS MUTANDIS AS IF FULLY SET FORTH HEREIN.

8.18. Marshaling. Neither the Collateral Agent nor any other Secured Party shall be required to marshal any present or future collateral security (including but not limited to the Collateral) or other assets for or against, or other assurances of payment of, the Obligations or any of them or to resort to such collateral security, other assets or other assurances of payment in any particular order, and all of the rights and remedies of the Secured Parties hereunder and of the Secured Parties in respect of such collateral security, other assets and other assurances of payment shall be cumulative and in addition to all other rights and remedies, however existing or arising. To the extent that it lawfully may, each Guarantor hereby agrees that it will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of the Collateral Agent’s rights and remedies under this Agreement or under any other instrument creating or evidencing any of the Obligations or under which any of the Obligations is outstanding or by which any of the Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, each Guarantor hereby irrevocably waives the benefits of all such laws. 

8.19. Intercreditor Agreement. The Grantors and the Collateral Agent (on behalf of each Secured Party) acknowledge and agree that the Lien and security interest granted to the Collateral Agent pursuant to this Agreement and the exercise of certain of the Collateral Agent’s and Secured Parties’ rights, remedies and obligations hereunder may, after the execution thereof, be subject to, and restricted by, the Intercreditor Agreement. At any time that the Intercreditor Agreement is in effect, in the event of a conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.

[signatures begin on next page]

44

IN WITNESS WHEREOF, each of the parties hereto has duly executed and delivered this Agreement as of the date first above written.

GRANTORS:
C-PAK Consumer Product Holdings LLC, a Delaware limited liability company, as a Borrower
By:	/s/ Sam Ross‎
	Sam Ross, President and Chief Operating Officer
C-Pak Consumer Product IP SPV LLC, a Delaware limited liability company, as a Borrower
By:	C-PAK Consumer Product Holdings LLC, its sole member and manager
By:	/s/ Sam Ross‎
	Sam Ross, President and Chief Operating Officer
C-PAK CONSUMER PRODUCT HOLDINGS SPV I LLC, a Delaware limited liability company
By:	/s/ Eric Blue
	Eric C. Blue, Manager

45

COLLATERAL AGENT:	PINEY LAKE OPPORTUNITIES ECI MASTER FUND LP
	By:	Piney Lake Capital Manager LP, as Advisor
	By:	/s/ Michael Lazar
	Name:	Michael B. Lazar
	Title:	President

46

SCHEDULE 1

INVESTMENT PROPERTY

Pledged Stock:

Name of Grantor	Name of Pledged Company	Number of Shares/Units		Class of Interests	Percentage of Class Owned			Percentage of Class Pledged			Certificate Nos.
C-Pak Consumer Product Holdings SPV I LLC	C-PAK Consumer Product Holdings LLC		N/A	LLC membership interests		100	%		100	%		1
C-PAK Consumer Product Holdings LLC	C-Pak Consumer Product IP SPV LLC		N/A	LLC membership interests		100	%		100	%		1

Pledged Notes: None

SCHEDULE 2

FILINGS AND OTHER ACTIONS

UCC Filings:

Grantor	Jurisdictions
C-Pak Consumer Product Holdings SPV I LLC	Delaware Secretary of State
C-PAK Consumer Product Holdings LLC	Delaware Secretary of State
C-Pak Consumer Product IP SPV LLC	Delaware Secretary of State

Copyright, Patent and Trademark Filings:

Trademark Security Agreement to be filed with U.S. Patent and Trademark Office

Actions with respect to Pledged Stock:

Delivery of membership unit certificates and stock powers to the Collateral Agent

Other Actions:

Execution of Deposit Account Control Agreements with respect to Deposit Accounts (other than Excluded Accounts)

SCHEDULE 3

CAPITAL STOCK

Name of Grantor	Name of Pledged Company	Number of Shares/Units		Class of Interests	Percentage of Class Owned			Percentage of Class Pledged			Certificate Nos.
C-Pak Consumer Product Holdings SPV I LLC	C-PAK Consumer Product Holdings LLC		N/A	LLC Membership Interests		100	%		100	%		1
C-PAK Consumer Product Holdings LLC	C-Pak Consumer Product IP SPV LLC		N/A	LLC Membership Interests		100	%		100	%		1

SCHEDULE 4

INTELLECTUAL PROPERTY

I. Copyrights and Copyright Licenses:

None.

II. Patents and Patent Licenses:

None.

III. Trademarks and Trademark Licenses:

Trademarks: See Attachment A to this Schedule 4

Trademark Licenses:

Shared Technology License Agreement of even date herewith by and between The Procter &

Gamble Company and C-PAK

Intercompany Trademark License Agreement of even date herewith by and between C-PAK and C-PAK IP

Attachment A to Schedule 4

Trademarks:

Grantor	Logo	Name	Country	Class	Goods	Status	App Date	App No	Reg date	Reg No	Next Renewal Due
C-Pak Consumer Product IP SPV LLC		CREAMSUDS	Canada	3	Soap	Registered	26-May-1966	297309	07-Apr-1967	TMA150074	07-Apr-2027
C-Pak Consumer Product IP SPV LLC		JOY	Aruba	3	Washing products, soaps, bleaching products and other preparations for washing, cleansing agents, polishing and scouring materials.	Registered	01-Jan-1986	N/A	12-Oct-1989	13853	31-Dec-2025
C-Pak Consumer Product IP SPV LLC		JOY	Bahamas	3	Common soaps, detergents; cleaning and cleansing preparations; bleaching preparations; starch, blue and other preparations for laundry use.	Registered	03-Mar-1971	6660	04-Mar-1971	6660	03-Mar-2027
C-Pak Consumer Product IP SPV LLC		JOY	Bermuda	3	A synthetic, soap-like liquid detergent for household use.	Registered	N/A	N/A	03-Nov-1953	2866	03-Nov-2023
C-Pak Consumer Product IP SPV LLC		JOY	Bermuda	3	Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations.	Registered	17-Feb-1971	6762	17-Feb-1971	6762	17-Feb-2027
C-Pak Consumer Product IP SPV LLC		JOY	Brazil	3	Dishwashing preparations	Pending (published)	31-Jan-2018 06-Mar-2018	914108050

C-Pak Consumer Product IP SPV LLC	JOY	Canada	3	Soap & synthetic detergents.	Registered	27-Feb-1946	189973	27-Feb-1946	UCA23905	27-Feb-2021
C-Pak Consumer Product IP SPV LLC	JOY	Caribbean Netherlands (BES Islands)	3	Detergents, soaps, bleaching preparations and other substances for laundry use, cleaning, polishing and scouring and abrasive preparations.	Registered	30-Jun-2011	1309	30-Jun-2011	1309	30-Jun-2022
C-Pak Consumer Product IP SPV LLC	JOY	Costa Rica	3	Bleaching preparations and other substances for laundry use, detergents for washing dishes; cleaning, polishing, scouring and abrasive preparations.	Registered	11-Jun-1997	N/A	03-Dec-1997	104838	Renewal filed in 2017; awaiting renewal cert
C-Pak Consumer Product IP SPV LLC	JOY	Cuba	3	Bleaching preparations and other substances for laundry use, cleaning, polishing, scouring and abrasive preparations, specially liquid dishwashing detergents.	Registered	31-Jul-1997	1098-97	17-Mar-2000	128137	Renewal filed in 2017; awaiting renewal cert
C-Pak Consumer Product IP SPV LLC	JOY	Curacao	3	Detergents, soaps, bleaching preparations and other substances for laundry use, cleaning, polishing and scouring and abrasive preparations.	Registered	21-Mar-1972	N/A	04-May-1972	1849	21-Mar-2022
C-Pak Consumer Product IP SPV LLC	JOY	Dominican Republic	3	Soaps for industrial purposes and domestic use, substances for washing, bleaching, cleaning and removing stains; specifically, a dishwashing detergent.	Registered	24-Jun-1996	N/A	15-Sep-1996	85595	15-Sep-2026

C-Pak Consumer Product IP SPV LLC	JOY	Ecuador	3	Liquid detergent for dishwashing, also used to wash delicate fabrics; bleaching preparations and other substances for laundry use, cleaning, polishing, scouring and abrasive substances, soaps.	Registered	16-Oct-1981	N/A	25-Feb-1982	154	25-Feb-2022
C-Pak Consumer Product IP SPV LLC	JOY	El Salvador	3	Detergents and soaps, except toilet and bath soaps.	Registered	03-Jan-2001	012001000024	06-Sep-2001	123BK-138	06-Sep-2021
C-Pak Consumer Product IP SPV LLC	JOY	Guatemala	3	Detergents and soaps; except toilet soaps.	Registered	12-May-2002	2002-3206	16-Aug-2004	131480	15-Aug-2024
C-Pak Consumer Product IP SPV LLC	JOY	Haiti	3	Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations.	Registered	30-Jan-1990	N/A	30-Jan-1990	154168	30-Jan-2020
C-Pak Consumer Product IP SPV LLC	JOY	Honduras	3	Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations.	Registered	23-Sep-2005	25769-2005	23-Feb-2006	96243	23-Feb-2026
C-Pak Consumer Product IP SPV LLC	JOY	Jamaica	3	Common soap, detergents and other preparations for laundry use.	Registered	26-Jan-1952	5862	26-Jan-1952	5862	Renewal filed in 2017; awaiting renewal cert
C-Pak Consumer Product IP SPV LLC	JOY	Mexico	3	Exclusively detergents.	Registered	08-Nov-1993	182445	22-Aug-1994	470598	8-Nov-2023
C-Pak Consumer Product IP SPV LLC	JOY	Nicaragua	3	Detergents and soaps, other than toilet and bath soaps.	Registered	10-Jun-1997	97-01923	30-Jan-1998	36381-CC	Renewal filed in 2017; awaiting renewal cert

C-Pak Consumer Product IP SPV LLC		JOY	Panama	3	Detergents and soaps, except for toilet and bath soaps.	Registered	18-Aug-1997	089435	18-Aug-1997	89435	Renewal filed in 2017; awaiting renewal cert
C-Pak Consumer Product IP SPV LLC		JOY	Panama	3	Cleaning, polishing, scouring and abrasive preparations.	Registered	07-Oct-1946	1797	08-Apr-1947	1764	08-Apr-2027
C-Pak Consumer Product IP SPV LLC		JOY	St. Maarten	3	Detergents, soaps, bleaching preparations and other substances for laundry use, cleaning, polishing and scouring and abrasive preparations.	Registered	21-Mar-1972	N/A	05-May-1972	1638	21-Mar-2022
C-Pak Consumer Product IP SPV LLC		JOY	Trinidad & Tobago	3	Common soaps, detergents, bleaching preparations, starch, blue and other preparations for laundry purposes.	Registered	03-Jun-1971	N/A	03-Jun-1971	6806	2-Jun-2019
C-Pak Consumer Product IP SPV LLC		JOY	U.S.A.	3	Sudsing cleaner, cleanser and detergent, excepting soap in bar form.	Registered	09-Oct-1948	71566767	21-Mar-1950	522721	21-Mar-2020
C-Pak Consumer Product IP SPV LLC		JOY (stylized & Lemon device 16 color)	Canada	3	Dishwashing detergents	Published	08-Dec-2016	1813169
C-Pak Consumer Product IP SPV LLC		JOY (stylized & Lemon device 16 color)	U.S.A.	3	Dishwashing detergents	Registered	05-Dec-2016	87256621	23-Jan-2018	5388018	23-Jan-2024

C-Pak Consumer Product IP SPV LLC		JOY (stylized & Orange device 16 color)	Canada	3	Dishwashing detergents	Published	08-Dec-2016	1813181
C-Pak Consumer Product IP SPV LLC		JOY (stylized & Orange device 16 color)	U.S.A.	3	Diswashing detergents	Allowed - 2nd RET due 06-Jun-2018	05-Dec-2016	87256624
C-Pak Consumer Product IP SPV LLC		Joy 2 (& Device Color)	Canada	3	Light duty liquid detergent.	Registered	16-Apr-1981	468579	27-Aug-1982	TMA272259	27-Aug-2027
C-Pak Consumer Product IP SPV LLC		JOY PROFESSIONAL	Canada	3	Dishwashing Detergent	Registered	17-Jul-2012	1586460	29-Jun-2015	TMA907419	29-Jun-2030
C-Pak Consumer Product IP SPV LLC		POWERFUL CLEANING! A LITTLE GOES A LONG WAY! (Joy 06)	U.S.A.	3	Dishwashing detergent.	Registered	23-Jan-2006	78796886	23-Oct-2007	3321020	NO USE – 6 mos grace period ended 23-Mar-2018 but not officially cancelled yet
C-Pak Consumer Product IP SPV LLC		ULTRA JOY	Canada	3	Dishwashing detergent.	Registered	05-Dec-1990	671825	22-May-1992	TMA398516	22-May-2022

SCHEDULE 5

COMMERCIAL TORT CLAIMS

None

SCHEDULE 6

INVENTORY AND EQUIPMENT

C-PAK Consumer Products Holdings LLC

38 E. Holister Street

Cincinnati, Ohio 45219

ANNEX I

FORM OF JOINDER AND ASSUMPTION AGREEMENT

JOINDER AND ASSUMPTION AGREEMENT (this “Assumption Agreement”) dated as of [_______________], 201[__] made by [____________________], a [_______________] (the “Additional Grantor”), in favor of Piney Lake Opportunities ECI Master Fund LP (“Piney Lake”), as Collateral Agent for the Secured Parties (in such capacity, together with its successors and assigns in such capacity, the “Collateral Agent”). All uppercase terms used but not otherwise defined herein have the meanings given to them in the Guaranty and Security Agreement (as defined below).

Introductory Statement

WHEREAS, pursuant to the Loan Agreement dated as of dated as of May 3, 2019 (as amended, amended and restated, supplemented or otherwise modified, renewed or replaced from time to time, the “Loan Agreement”) among C-PAK Consumer Product Holdings LLC, a Delaware limited liability company (“C-PAK”), and C-PAK Consumer Product IP SPV LLC, a Delaware limited liability company (“C-PAK IP”, and collectively, jointly and severally with C-PAK, the “Borrowers”, and each individually, a “Borrower”), C-Pak Consumer Product Holdings SPV I LLC (“Holdings”), the Subsidiaries of Holdings that are Guarantors or become Guarantors thereunder pursuant to Section 8.10 thereof, the Lenders from time to time party thereto, Piney Lake as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), and Piney Lake as the Collateral Agent, the Lenders made Term Loans to the Borrowers on and subject to the terms and conditions set forth therein; and

WHEREAS, in connection with the Loan Agreement, the Loan Parties (other than the Additional Grantor) and the Collateral Agent (for the benefit of the Secured Parties) have entered into the Guaranty and Security Agreement dated as of May 3, 2019 (as amended, supplemented or otherwise modified, renewed or replaced from time to time, the “Guaranty and Security Agreement”); and

WHEREAS, as a condition to the Agents and the Lenders entering into the Loan Agreement and as an inducement to the Lenders to make the Term Loans thereunder, the Loan Agreement requires that the Additional Grantor become a party to the Guaranty and Security Agreement; and

WHEREAS, the Additional Grantor is [a Subsidiary] [an Affiliate] of the Borrowers and derives substantial economic and other benefit from the Term Loans and other financial accommodations extended to the Borrowers under the Loan Agreement; and

WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption Agreement in order to become a party to the Guaranty and Security Agreement.

NOW, THEREFORE, in consideration of the premises and the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, and intending to be legally bound, the Additional Grantor hereby agrees as follows:

1. Guaranty and Security Agreement. By executing and delivering this Assumption Agreement, the Additional Grantor, as provided in Section 8.13 of the Guaranty and Security Agreement (“Additional Grantors and Guarantors”), hereby (a) becomes a party to the Guaranty and Security Agreement as a Guarantor and a Grantor thereunder with the same force and effect as if originally named therein as a Guarantor and a Grantor and (b) agrees that all references in the Guaranty and Security Agreement to the terms “Guarantor” and “Grantor” shall be deemed to include the Additional Grantor. Without limiting the generality of the foregoing, the Additional Grantor hereby (a) jointly and severally with the other Guarantors, unconditionally and irrevocably, guarantees to the Collateral Agent, for the benefit of the Secured Parties and their respective successors, endorsees, transferees and assigns, the prompt and complete payment and performance by each Borrower and the other Guarantors when due (whether at the stated maturity, by acceleration or otherwise) of the Guaranteed Obligations, (b) pledges, collaterally assigns and transfers to the Collateral Agent for the benefit of the Secured Parties, and hereby grants to the Collateral Agent for the benefit of the Secured Parties, a Lien on and a security interest in the Collateral described in clauses (a) through (s) of Section 3 of the Guaranty and Security Agreement, but excluding any Excluded Property (Section 3 of the Guaranty and Security Agreement is incorporated mutatis mutandis in its entirety as if fully set forth herein), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of its Secured Obligations, (c) expressly assumes and affirms all covenants, obligations and liabilities of a Guarantor and a Grantor under the Guaranty and Security Agreement, and (d) makes all representations and warranties included in the Guaranty and Security Agreement. The information set forth in Annex 1-A hereto is hereby added to the information set forth in Schedule[s] [___], [___] and [___] to the Guaranty and Security Agreement. The Additional Grantor hereby represents and warrants that, with respect to the Additional Grantor, each of the representations and warranties contained in Section 4 of the Guaranty and Security Agreement is true and correct on and as the date hereof (after giving effect to this Assumption Agreement) as if made on and as of such date.

2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT AND THE VALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND ANY CLAIM BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE DETERMINED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK FOR CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS REQUIRING APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.

3. WAIVER OF JURY TRIAL; DISPUTE RESOLUTION; JURISDICTION; VENUE; SERVICE OF PROCESS. THE ADDITIONAL GRANTOR HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION WITH THIS ASSUMPTION AGREEMENT, OR (II) ARISING FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS ASSUMPTION AGREEMENT. EACH PARTY FURTHER AGREES THAT THE TERMS AND PROVISIONS OF SECTION 8.17 OF THE GUARANTY AND SECURITY AGREEMENT (“WAIVER OF JURY TRIAL; DISPUTE RESOLUTION; JURISDICTION; VENUE; SERVICE OF PROCESS”) ARE HEREBY INCORPORATED HEREIN BY REFERENCE, AND SHALL APPLY TO THIS AGREEMENT MUTATIS MUTANDIS AS IF FULLY SET FORTH HEREIN.

4. Miscellaneous. The terms and provisions of Sections 8.1, 8.2, 8.4, 8.6, 8.7, 8.8, 8.9 and 8.12 of the Guaranty and Security Agreement (“Amendments and Waivers”; “Notices”; “Successors and Assigns”; “Counterparts”; “Severability”; “Section Headings”; “Integration”; and “Acknowledgements”, respectively) are hereby incorporated herein by reference, and shall apply to this Assumption Agreement mutatis mutandis as if fully set forth herein. This Assumption Agreement shall constitute a “Loan Document” for all purposes of the Loan Agreement and the other Loan Documents. No reference to this Agreement need be made in the Guaranty and Security Agreement or in any other document or instrument referring to the Guaranty and Security Agreement, and each reference to the Guaranty and Security Agreement in the Guaranty and Security Agreement or in any other document or instrument referring to the Guaranty and Security Agreement shall be deemed to be a reference to the Guaranty and Security Agreement as supplemented hereby. The Additional Grantor agrees to execute and deliver such further instruments and documents and do such further acts and things as the Collateral Agent may reasonably deem necessary or proper to carry out or further evidence the purposes of this Agreement.

5. No Novation or Release. Nothing in this Assumption Agreement shall be construed to release any other Guarantor or Grantor at any time party to the Guaranty and Security Agreement from its obligations and liabilities thereunder or otherwise affect any other Guarantor’s or Grantor’s obligations or liabilities under any Loan Document.

[signatures begin on next page]

IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written.

[ADDITIONAL GRANTOR]

By

Name:

Title:

ACKNOWLEDGED:

PINEY LAKE OPPORTUNITIES ECI MASTER

FUND LP, as Collateral Agent

By:	Piney Lake Capital Manager LP, as Advisor
By
Name:
Title:

Annex 1-A

[Insert Information To Be Added to the Applicable

Guaranty and Security Agreement Schedules]

ANNEX II

FORM OF [COPYRIGHT] [TRADEMARK] [PATENT] SECURITY AGREEMENT

THIS [COPYRIGHT] [TRADEMARK] [PATENT] SECURITY AGREEMENT dated as of [__________], 201[__] is made by each of the entities listed on the signature pages hereof (each, a “Grantor”, and collectively, the “Grantors”), in favor of Piney Lake Opportunities ECI Master Fund LP (“Piney Lake”), as Collateral Agent for the benefit of the Secured Parties (in such capacity, together with its successors and permitted assigns, the “Collateral Agent”).

Introductory Statement

WHEREAS, pursuant to the Loan Agreement dated as of dated as of May 3, 2019 (as amended, amended and restated, supplemented or otherwise modified, renewed or replaced from time to time, the “Loan Agreement”) among C-PAK Consumer Product Holdings LLC, a Delaware limited liability company (“C-PAK”), and C-PAK Consumer Product IP SPV LLC, a Delaware limited liability company (“C-PAK IP”, and collectively, jointly and severally with C-PAK, the “Borrowers”, and each individually, a “Borrower”), C-Pak Consumer Product Intermediate Holdings SPV I LLC (“Holdings”), the Subsidiaries of Holdings that are Guarantors or become Guarantors thereunder pursuant to Section 8.10 thereof, the Lenders from time to time party thereto, Piney Lake as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), and Piney Lake as the Collateral Agent, the Lenders made Term Loans to the Borrowers on and subject to the terms and conditions set forth therein; and

WHEREAS, in connection with the Loan Agreement, all of the Grantors are party to a Guaranty and Security Agreement dated as of May 3, 2019 (as amended, supplemented or otherwise modified, renewed or replaced from time to time, the “Guaranty and Security Agreement”), pursuant to which the Grantors are required to execute and deliver this [Copyright] [Trademark] [Patent] Security Agreement.

NOW, THEREFORE, in consideration of the premises and the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, and to induce the Agents and the Lenders to enter into the Loan Agreement, to induce the Lenders to make their respective Term Loans to the Borrowers thereunder, and to induce the Agents to act in their respective agency capacities thereunder, and intending to be legally bound, each Grantor hereby agrees with the Collateral Agent, for the benefit of the Secured Parties, as follows:

Section 1. Defined Terms. All uppercase terms used but not otherwise defined herein have the meanings given to them in the Guaranty and Security Agreement.

Section 2. Grant of Security Interest in [Copyright] [Trademark] [Patent] Collateral. Each Grantor, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of such Grantor, hereby pledges, collaterally assigns and transfers to the Collateral Agent for the benefit of the Secured Parties, and grants to the Collateral Agent for the benefit of the Secured Parties, a Lien on and security interest in, all of its right, title and interest in, to and under the following Collateral of such Grantor (the “[Copyright] [Trademark] [Patent] Collateral”):

(a) [all of its Copyrights and all Copyright Licenses providing for the grant by or to such Grantor of any right in, to or under any Copyright, including those referred to on Schedule 1 hereto;

(b) all renewals, reversions and extensions of the foregoing; and

(c) all income, royalties, proceeds and liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.]

[or]

(a) [all of its Trademarks and all Trademark Licenses providing for the grant by or to such Grantor of any right in, to or under any Trademark, including those referred to on Schedule 1 hereto;

(b) all renewals and extensions of the foregoing;

(c) all goodwill of the business connected with the use of, and symbolized by, each such Trademark; and

(d) all income, royalties, proceeds and liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof. Notwithstanding the foregoing, there shall be no security interest or Lien on any Trademark application that is filed on an “intent-to-use” basis (until such time as a statement of use is filed with respect to such application and duly accepted by the United States Patent and Trademark Office).]

[or]

(a) [all of its Patents and all Patent Licenses providing for the grant by or to such Grantor of any right in, to or under any Patent, including those referred to on Schedule 1 hereto;

(b) all reissues, reexaminations, continuations, continuations-in-part, divisionals, and extensions of the foregoing; and

(c) all income, royalties, proceeds and liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.]

Section 3. Guaranty and Security Agreement. The security interest granted pursuant to this [Copyright] [Trademark] [Patent] Security Agreement is granted in conjunction with the Liens and security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Guaranty and Security Agreement. Each Grantor hereby acknowledges and agrees that the rights and remedies of the Collateral Agent and the obligations of each Grantor with respect to the Liens and security interests in the [Copyright] [Trademark] [Patent] Collateral made and granted hereby are more fully set forth in the Guaranty and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this [Copyright] [Trademark] [Patent] Security Agreement conflicts with any provision of the Guaranty and Security Agreement, the Guaranty and Security Agreement shall govern.

Section 4. Grantor Remains Liable. Each Grantor hereby agrees that, anything herein to the contrary notwithstanding, such Grantor shall assume full and complete responsibility for the prosecution, defense, enforcement or any other necessary or desirable actions in connection with their [Copyrights] [Trademarks] [Patents] and the IP Licenses subject to a security interest hereunder.

Section 5. Counterparts. This [Copyright] [Trademark] [Patent] Security Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.

Section 6. GOVERNING LAW. THIS [COPYRIGHT] [TRADEMARK] [PATENT] SECURITY AGREEMENT AND THE VALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND ANY CLAIM BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE DETERMINED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK FOR CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS REQUIRING APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.

Section 7. WAIVER OF JURY TRIAL; DISPUTE RESOLUTION; JURISDICTION; VENUE; SERVICE OF PROCESS. EACH GRANTOR HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION WITH THIS [COPYRIGHT] [TRADEMARK] [PATENT] SECURITY AGREEMENT, OR (II) ARISING FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS [COPYRIGHT] [TRADEMARK] [PATENT] SECURITY AGREEMENT. EACH PARTY FURTHER AGREES THAT THE TERMS AND PROVISIONS OF SECTION 8.17 OF THE GUARANTY AND SECURITY AGREEMENT (“WAIVER OF JURY TRIAL; DISPUTE RESOLUTION; JURISDICTION; VENUE; SERVICE OF PROCESS”) ARE HEREBY INCORPORATED HEREIN BY REFERENCE, AND SHALL APPLY TO THIS AGREEMENT MUTATIS MUTANDIS AS IF FULLY SET FORTH HEREIN.

Section 8. Miscellaneous. The terms and provisions of Sections 8.1, 8.2, 8.4, 8.6, 8.7, 8.8 and 8.9 of the Guaranty and Security Agreement (“Amendments and Waivers”; “Notices”; “Successors and Assigns”; “Counterparts”; “Severability”; “Section Headings”; “Integration”) are hereby incorporated herein by reference, and shall apply to this [Copyright] [Trademark] [Patent] Security Agreement mutatis mutandis as if fully set forth herein. This [Copyright] [Trademark] [Patent] Security Agreement shall constitute a “Loan Document” for all purposes of the Loan Agreement and the other Loan Documents.

[signatures begin on next page]

IN WITNESS WHEREOF, each Grantor has caused this [Copyright] [Trademark] [Patent] Security Agreement to be duly executed and delivered as of the date first above written.

[GRANTOR], as Grantor

By

Name:

Title:

SCHEDULE 1

TO

[COPYRIGHT] [TRADEMARK] [PATENT] SECURITY AGREEMENT

1. REGISTERED [COPYRIGHTS] [TRADEMARKS] [PATENTS]

[Include Registration Number and Date]

2. [COPYRIGHT] [TRADEMARK] [PATENT] APPLICATIONS

[Include Application Number and Date]

3. [COPYRIGHT] [TRADEMARK] [PATENT] LICENSES

[Include complete legal description of agreement (name of agreement, parties and date)]

ANNEX III

FORM OF ISSUER CONTROL AGREEMENT

ISSUER CONTROL AGREEMENT (this “Issuer Agreement”) dated as of [__________], 20[__] among [_______________], a [__________] (the “Grantor”), [_______________], a [__________] (the “Issuer”), and Piney Lake Opportunities ECI Master Fund LP (“Piney Lake”), as Collateral Agent for the benefit of the Secured Parties (in such capacity, together with its successors and assigns in such capacity, the “Collateral Agent”). All uppercase terms used but not otherwise defined herein have the meanings given to them in the Guaranty and Security Agreement (as defined below).

Introductory Statement

WHEREAS, pursuant to the Loan Agreement dated as of dated as of May 3, 2019 (as amended, amended and restated, supplemented or otherwise modified, renewed or replaced from time to time, the “Loan Agreement”) among C-PAK Consumer Product Holdings LLC, a Delaware limited liability company (“C-PAK”), and C-PAK Consumer Product IP SPV LLC, a Delaware limited liability company (“C-PAK IP”, and collectively, jointly and severally with C-PAK, the “Borrowers”, and each individually, a “Borrower”), C-Pak Consumer Product Intermediate Holdings SPV I LLC (“Holdings”), the Subsidiaries of Holdings that are Guarantors or become Guarantors thereunder pursuant to Section 8.10 thereof, the Lenders from time to time party thereto, Piney Lake as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), and Piney Lake as the Collateral Agent, the Lenders made Term Loans to the Borrowers on and subject to the terms and conditions set forth therein; and

WHEREAS, in connection with the Loan Agreement, the Grantor and the other Loan Parties are party to a Guaranty and Security Agreement dated as of May 3, 2019 (as amended, supplemented or otherwise modified, renewed or replaced from time to time, the “Guaranty and Security Agreement”); and

WHEREAS, the Guaranty and Security Agreement requires that the Grantor become a party to (and to cause the Issuer to become a party to) an Issuer Control Agreement in respect of each Pledged Uncertificated Security of such Issuer owned by such Grantor; and

WHEREAS, the Grantor and the Issuer have agreed to execute and deliver this Issuer Agreement.

NOW, THEREFORE, in consideration of the premises and the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, each of the Grantor and the Issuer hereby agrees as follows:

1. Pledged Stock. By executing and delivering this Issuer Agreement, the Issuer, as provided in Section 5.5(c) of the Guaranty and Security Agreement, hereby (a) acknowledges receipt of a copy of the Guaranty and Security Agreement, (b) agrees promptly to note on its books and records the security interests in the applicable Pledged Stock granted to the Collateral Agent under the Guaranty and Security Agreement, (c) agrees that, upon the occurrence and during the continuance of an Event of Default and written notice from the Collateral Agent, it will comply with all instructions from the Collateral Agent or its nominee with respect to the applicable Pledged Stock, including as contemplated by Section 6.3 of the Guaranty and Security Agreement (“Pledged Stock”), without further consent by the Grantor, (d) to the maximum extent permitted by Applicable Law, agrees that the “issuer’s jurisdiction” (as defined in Section 8-110 of the UCC) is the State of New York, and (e) waives any right or requirement at any time hereafter to receive a copy of the Guaranty and Security Agreement in connection with the registration of any Pledged Stock thereunder in the name of the Collateral Agent or its nominee or the exercise of voting rights by the Collateral Agent or its nominee.

2. GOVERNING LAW. THIS ISSUER AGREEMENT AND THE VALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND ANY CLAIM BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE DETERMINED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK FOR CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS REQUIRING APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.

3. WAIVER OF JURY TRIAL; DISPUTE RESOLUTION; JURISDICTION; VENUE; SERVICE OF PROCESS. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION WITH THIS ISSUER AGREEMENT, OR (II) ARISING FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS ISSUER AGREEMENT. EACH PARTY FURTHER AGREES THAT THE TERMS AND PROVISIONS OF SECTION 8.17 OF THE GUARANTY AND SECURITY AGREEMENT (“WAIVER OF JURY TRIAL; DISPUTE RESOLUTION; JURISDICTION; VENUE; SERVICE OF PROCESS”) ARE HEREBY INCORPORATED HEREIN BY REFERENCE, AND SHALL APPLY TO THIS AGREEMENT MUTATIS MUTANDIS AS IF FULLY SET FORTH HEREIN.

4. Miscellaneous. The terms and provisions of Sections 8.1, 8.2, 8.4, 8.6, 8.7, 8.8 and 8.9 of the Guaranty and Security Agreement (“Amendments and Waivers”; “Notices”; “Successors and Assigns”; “Counterparts”; “Severability”; “Section Headings”; “Integration”) are hereby incorporated herein by reference, and shall apply to this Issuer Agreement mutatis mutandis as if fully set forth herein. This Issuer Agreement shall constitute a “Loan Document” for all purposes of the Loan Agreement and the other Loan Documents.

5. No Novation or Release. Nothing in this Issuer Agreement shall be construed to release any Grantor at any time party to the Guaranty and Security Agreement from its obligations and liabilities thereunder or otherwise affect any of such other Grantor’s obligations or liabilities under any Loan Document.

IN WITNESS WHEREOF, the undersigned has caused this Issuer Agreement to be duly executed and delivered as of the date first above written.

[ISSUER], as Issuer

By

Name:

Title:

ACKNOWLEDGED AND AGREED:

[GRANTOR], as Grantor

By

Name:

Title:

EX-10.3

Exhibit 10.3

Execution Version

TRADEMARK SECURITY AGREEMENT

THIS TRADEMARK SECURITY AGREEMENT dated as of May 3, 2019 is made by the entity listed on the signature page hereof (the “Grantor”), in favor of Piney Lake Opportunities ECI Master Fund LP (“Piney Lake”), as Collateral Agent for the benefit of the Secured Parties (in such capacity, together with its successors and permitted assigns, the “Collateral Agent”).

Introductory Statement

WHEREAS, pursuant to the Loan Agreement dated as of dated as of May 3, 2019 (as amended, amended and restated, supplemented or otherwise modified, renewed or replaced from time to time, the “Loan Agreement”) among C-PAK Consumer Product Holdings LLC, a Delaware limited liability company (“C-PAK”), and C-PAK Consumer Product IP SPV LLC, a Delaware limited liability company (“C-PAK IP”, and collectively, jointly and severally with C-PAK, the “Borrowers”, and each individually, a “Borrower”), C-Pak Consumer Product Intermediate Holdings SPV I LLC (“Holdings”), the Subsidiaries of Holdings that are Guarantors or become Guarantors thereunder pursuant to Section 8.10 thereof, the Lenders from time to time party thereto, Piney Lake as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), and Piney Lake as the Collateral Agent, the Lenders made Term Loans to the Borrowers on and subject to the terms and conditions set forth therein; and

WHEREAS, in connection with the Loan Agreement, the Grantor is party to a Guaranty and Security Agreement dated as of May 3, 2019 (as amended, supplemented or otherwise modified, renewed or replaced from time to time, the “Guaranty and Security Agreement”), pursuant to which the Grantor is required to execute and deliver this Trademark Security Agreement.

NOW, THEREFORE, in consideration of the premises and the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, and to induce the Agents and the Lenders to enter into the Loan Agreement, to induce the Lenders to make their respective Term Loans to the Borrowers thereunder, and to induce the Agents to act in their respective agency capacities thereunder, and intending to be legally bound, the Grantor hereby agrees with the Collateral Agent, for the benefit of the Secured Parties, as follows:

Section 1. Defined Terms. All uppercase terms used but not otherwise defined herein have the meanings given to them in the Guaranty and Security Agreement.

Section 2. Grant of Security Interest in Trademark Collateral. The Grantor, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of the Grantor, hereby pledges, collaterally assigns and transfers to the Collateral Agent for the benefit of the Secured Parties, and grants to the Collateral Agent for the benefit of the Secured Parties, a Lien on and security interest in, all of its right, title and interest in, to and under the following Collateral of the Grantor (the “Trademark Collateral”):

(a) all of its Trademarks and all Trademark Licenses providing for the grant by or to the Grantor of any right in, to or under any Trademark, including those referred to on Schedule 1 hereto;

(b) all renewals and extensions of the foregoing;

(c) all goodwill of the business connected with the use of, and symbolized by, each such Trademark; and

(d) all income, royalties, proceeds and liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof. Notwithstanding the foregoing, there shall be no security interest or Lien on any Trademark application that is filed on an “intent-to-use” basis (until such time as a statement of use is filed with respect to such application and duly accepted by the United States Patent and Trademark Office).

Section 3. Guaranty and Security Agreement. The security interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the Liens and security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Guaranty and Security Agreement. The Grantor hereby acknowledges and agrees that the rights and remedies of the Collateral Agent and the obligations of the Grantor with respect to the Liens and security interests in the Trademark Collateral made and granted hereby are more fully set forth in the Guaranty and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Trademark Security Agreement conflicts with any provision of the Guaranty and Security Agreement, the Guaranty and Security Agreement shall govern.

Section 4. Grantor Remains Liable. The Grantor hereby agrees that, anything herein to the contrary notwithstanding, the Grantor shall assume full and complete responsibility for the prosecution, defense, enforcement or any other necessary or desirable actions in connection with their Trademark and the IP Licenses subject to a security interest hereunder.

Section 5. Counterparts. This Trademark Security Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.

Section 6. GOVERNING LAW. THIS TRADEMARK SECURITY AGREEMENT AND THE VALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND ANY CLAIM BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE DETERMINED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK FOR CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS REQUIRING APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.

Section 7. WAIVER OF JURY TRIAL; DISPUTE RESOLUTION; JURISDICTION; VENUE; SERVICE OF PROCESS. THE GRANTOR HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION WITH THIS TRADEMARK SECURITY AGREEMENT, OR (II) ARISING FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS TRADEMARK SECURITY AGREEMENT. EACH PARTY FURTHER AGREES THAT THE TERMS AND PROVISIONS OF SECTION 8.17 OF THE GUARANTY AND SECURITY AGREEMENT (“WAIVER OF JURY TRIAL; DISPUTE RESOLUTION; JURISDICTION; VENUE; SERVICE OF PROCESS”) ARE HEREBY INCORPORATED HEREIN BY REFERENCE, AND SHALL APPLY TO THIS AGREEMENT MUTATIS MUTANDIS AS IF FULLY SET FORTH HEREIN.

Section 8. Miscellaneous. The terms and provisions of Sections 8.1, 8.2, 8.4, 8.6, 8.7, 8.8 and 8.9 of the Guaranty and Security Agreement (“Amendments and Waivers”; “Notices”; “Successors and Assigns”; “Counterparts”; “Severability”; “Section Headings”; “Integration”) are hereby incorporated herein by reference, and shall apply to this Trademark Security Agreement mutatis mutandis as if fully set forth herein. This Trademark Security Agreement shall constitute a “Loan Document” for all purposes of the Loan Agreement and the other Loan Documents.

[signatures begin on next page]

IN WITNESS WHEREOF, the Grantor has caused this Trademark Security Agreement to be duly executed and delivered as of the date first above written.

C-PAK Consumer Product IP SPV LLC, a Delaware limited liability company
By:	C-PAK Consumer Product Holdings LLC, its sole member and manager
By:	/s/ Sam Ross‎
	Sam Ross, President and Chief Operating Officer

[Signature Page to Trademark Security Agreement]

Agreed and Accepted

As of the Date First Written Above:

PINEY LAKE OPPORTUNITIES ECI

MASTER FUND LP, as Collateral Agent

By: Piney Lake Capital Management LP, as

Advisor

By:	/s/ Michael Lazar‎ ‎
Name:	Michael B. Lazar
Title:	President

[Signature Page to Trademark Security Agreement]

SCHEDULE 1

TO

TRADEMARK SECURITY AGREEMENT

Logo	Name	Application Date	Application Number	Registration Date	Registration Number
	CREAM SUDS	24-Oct-2016	87213234	10-Oct-2017	5304982
	JOY	09-Oct-1948	71566767	21-Mar-1950	522721
	JOY (stylized & Lemon device 16 color)	05-Dec-2016	87256621	23-Jan-2018	5388018
	JOY (stylized & Orange device 16 color)	05-Dec-2016	87256624
	POWERFUL CLEANING! A LITTLE GOES A LONG WAY! (Joy 06)	23-Jan-2006	78796886	23-Oct-2007	3321020

EX-10.4

Exhibit 10.4

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

C-PAK PREFCO SPV I, INC.

C-PAK PREFCO SPV I, INC., a Delaware corporation (the “Corporation”), hereby certifies as of the 2^nd day of May 2019 that this Amended and Restated Certificate of Incorporation (this “Certificate of Incorporation”) has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware (the “DGCL”), and that:

1.	the name of the Corporation is C-PAK PREFCO SPV I, INC.;
2.	the Corporation was originally incorporated pursuant to the DGCL on May 1, 2019 under the name C-PAK PREFCO SPV I, INC.; and
3.	the Board of Directors and stockholders of the Corporation duly adopted resolutions amending and restating the initial certificate of incorporation of the Corporation, which resolution setting forth the proposed amendment and restatement is as follows:

1. The name of the Corporation is “C-PAK PREFCO SPV I, INC”.

2. The registered office of the Corporation in the State of Delaware is located at 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.

3. The purpose of the Corporation is to undertake any and all activities related to the ownership of the Interests which may be a lawful act or activity under the DGCL.

4. Capital Stock.

4.1. Authorized Shares. The total number of shares of capital stock that the Corporation has authority to issue is THIRTEEN THOUSAND (13,000) shares, consisting of:

4.1.1 TEN THOUSAND (10,000) shares of common stock, par value $0.0001 per share (the “Common Stock”); and

4.1.2 THREE THOUSAND (3,000) shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”).

The shares of Common Stock and Preferred Stock shall have the rights, preferences, privileges and limitations set forth below.

4.2. Rights of Common Stock.

4.2.1. The voting, dividend and liquidation rights of the holders of shares of the Common Stock are subject to and qualified by the rights, powers and preferences of the holders of shares of the Preferred Stock set forth herein.

4.2.2. The holders of record of shares of the Common Stock, as such, shall be entitled to one vote for each share of Common Stock held by such stockholder as of the record date for voting at any meeting or for purposes of any action by written consent in lieu of a meeting; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to ‎vote on any amendment to this Certificate of Incorporation that ‎relates solely to the terms of the Preferred Stock if the holders of the Preferred Stock are entitled, separately, to vote thereon pursuant to this Certificate of ‎Incorporation or pursuant to the DGCL. ‎There shall be no cumulative voting.

4.2.3. Dividends may be declared and paid on the Common Stock from funds lawfully available therefor as and when determined by the Board of Directors and subject to any preferential dividend and other approval rights of any then outstanding Preferred Stock.

4.3. Ranking of Preferred Stock. The Preferred Stock shall rank senior in right of payment to all other classes or series of capital stock of the Corporation as to dividends and upon liquidation, dissolution or winding up of the Corporation.

4.4. Dividends on Preferred Stock.

4.4.1. Subject to Section 4.4.2, each holder of Preferred Stock shall be entitled to receive, when, as and if dividends are declared by the Board of Directors, out of funds legally available therefor, cumulative preferential dividends (“Preferred Dividends”) from the date of issuance of their respective shares of Preferred Stock, which dividends shall accrue on the Liquidation Preference at the rate per share equal to the Preferred Dividend Rate. Preferred Dividends shall accrue daily whether or not declared, whether or not the Corporation has earnings or profits and whether or not there are funds legally available for the payment of such Preferred Dividends and shall be computed on the basis of a 360-day year consisting of twelve 30-day months.

4.4.2. Preferred Dividends on any shares of Preferred Stock shall be paid on each March 31, June 30, September 30 and December 31 of each year (each, a “Dividend Payment Date”), beginning June 30, 2019, to the extent declared by the Board and subject to the limitations set forth in this Section 4.4.2, for the period beginning on the date after the prior Dividend Payment Date and ending on such Dividend Payment Date. To the extent all or some portion of the Preferred Dividends are not declared and paid, in cash, on any Dividend Payment Date for the calendar quarter ending on such Dividend Payment Date, the amount of such Preferred Dividends that was not paid in cash shall be added to the Liquidation Preference and shall thereafter accrue and compound at the Preferred Dividend Rate. Notwithstanding anything to contrary herein, the Corporation may not declare or pay Preferred Dividends in cash except that on each Dividend Payment Date up to fifty percent (50%) of any Preferred Dividends accrued during the quarter ending on such Dividend Payment Date may be declared and paid in cash.

4.4.3. Without limiting the rights of the holders of Preferred Stock to receive the Redemption Price upon a Liquidation Event as set forth in Section 4.8, or pursuant to Sections 5 or 7, holders of Preferred Stock shall not be entitled to any dividends, whether payable in cash, property, or equity interests, in respect of their shares of Preferred Stock in excess of the full cumulative dividends as described in this Section 4.4.

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4.4.4. Following a Liquidation Event, a Mandatory Redemption Event or a holder of Preferred Stock exercising its right to sell Preferred Stock to the Corporation pursuant to Section 7, no dividends shall be declared or paid upon, or any sum set apart for the payment of dividends upon, any classes or series of capital stock of the Corporation until the Redemption Price is paid in full in cash on all shares of Preferred Stock pursuant to Sections 4.8, 5 or 7, as applicable.

4.5. Voting Rights of Preferred Stock. Except as required by law or as specifically set forth in this Certificate of Incorporation, holders of Preferred Stock will have no voting rights with respect to their shares of Preferred Stock. Any action as to which a class vote of holders of Preferred Stock is required pursuant to the terms of this Certificate of Incorporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by Required Preferred Stockholders.

4.6. Sale Right. Notwithstanding anything to the contrary contained herein, upon the occurrence of, and during the continuation of, any Sale Trigger Event, the Required Preferred Stockholders shall have the right to cause the Corporation to effect a Sale of the Corporation (any such sale, an “Exit Sale”). The Required Preferred Stockholders may exercise such right by delivering written notice (a “Sale Notice”) thereof to the Corporation at any time, and from time to time, after the occurrence of and during the continuation of a Sale Trigger Event. The Corporation shall effect an Exit Sale in accordance with the terms of the Stockholders’ Agreement.

4.7. Protective Provisions.

4.7.1. For so long as any shares of Preferred Stock are outstanding, the prior vote or written consent of the Required Preferred Stockholders shall be required for the following, including any such actions effected pursuant to or as a result of a merger, consolidation or business combination, and the Corporation shall not take, and shall cause its subsidiaries not to take, any such action without such prior vote or written consent:

(i) the entry into by the Corporation or any of its subsidiaries of any contract that imposes restrictions or limitations on the amounts payable to holders of Preferred Stock in accordance with this Certificate of Incorporation;

(ii) the issuance by the Corporation of any capital stock that is senior to or pari passu with the Preferred Stock (including issuance of additional shares of Preferred Stock but excluding increases in Liquidation Preference pursuant to Section 4.4);

(iii) the issuance or sale of any capital stock of any subsidiary of the Corporation, other than to the Corporation or a wholly owned subsidiary, or the creation or ownership of any subsidiary, other than a wholly owned subsidiary or C-PAK Consumer Product Holdings SPV I LLC, a Delaware limited liability company (the “SPV”); provided, however, that this Section 4.7.1(iii) shall not apply in connection with the Corporation’s entry into a bona fide joint venture transaction with an unaffiliated third party so long as such unaffiliated third party agrees to subordinate its interest in such joint venture to the Preferred Stock in a manner satisfactory to the holders of Preferred Stock;

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(iv) the incurrence of any Indebtedness other than as permitted under Section 9.01 the Loan Agreement;

(v) the commencement of an Insolvency Event;

(vi) the amendment, modification or waiver of this Certificate of Incorporation, the Bylaws, any other organizational documents of the Corporation, the Amended and Restated Limited Liability Company Agreement of the SPV or any other organizational agreements of the SPV that (A) amends, modifies or waives in any respect the powers, preferences or other rights of the Preferred Stock or (B) has an adverse effect on holders of Preferred Stock in their capacity as such;

(vii) the declaration or payment of dividends upon, or any sum set apart for the payment of dividends upon, any classes or series of capital stock of the Corporation other than the Preferred Stock as contemplated by this Certificate of Incorporation;

(viii) the purchase, redemption, acquisition or retirement for value by the Corporation or any of its subsidiaries, of any classes or series of capital stock of the Corporation other than the Preferred Stock as contemplated by this Certificate of Incorporation or pursuant to a Plan to the extent not prohibited by Section 9.06(e) of the Loan Agreement and so long as no Redemption Breach has occurred and is continuing;

(ix) the direct or indirect purchase of warrants, rights, calls or options of any classes or series of capital stock by the Corporation other than Preferred Stock or pursuant to a Plan to the extent not prohibited by Section 9.06(e) of the Loan Agreement and so long as no Redemption Breach has occurred and is continuing;

(x) the payment into or set apart or made available for a sinking or other like fund monies for the purchase, redemption or other acquisition or retirement for value of any classes or series of capital stock of the Corporation, other than Preferred Stock, by the Corporation or any of its subsidiaries or pursuant to a Plan to the extent not prohibited by Section 9.06(e) of the Loan Agreement and so long as no Redemption Breach has occurred and is continuing;

(xi) the taking of any act (including the incurrence of any indebtedness) other than owning the common and preferred equity of the SPV;

(xii) any transaction or series of transactions that would result in a Change of Control unless the shares of Preferred Stock are redeemed in full in cash upon the consummation of such Change of Control; or

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(xiii) the taking of any act or omission that would result in a failure of the Corporation or any of its subsidiaries to comply with their obligations under (i) Section 8 (other than Sections 8.01(d), 8.10, 8.11, 8.12, 8.13, 8.14, 8.16, 8.17, 8.20, 8.21, 8.22 and 8.23); or (ii) Section 9 (other than (A) Sections 9.02, 9.07, 9.11, 9.13, 9.15, 9.16 and 9.20, (B) in the case of Section 9.03, any transaction where the shares of Preferred Stock are redeemed in full in cash upon the consummation of such transaction; (C) in the case of Section 9.06, Restricted Payments payable solely in shares of Common Stock; and (D) in the case of Section 9.14, becoming liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of the shares of Preferred Stock pursuant to this Certificate of Incorporation) of the Loan Agreement, treating the Corporation in the same manner as the “Borrower” thereunder, and each subsidiary of the Corporation as a “Subsidiary” thereunder, but giving effect to all baskets, thresholds, limitations, and qualifications set forth therein and for purposes hereof, treating the Corporation and each of its subsidiaries as “Loan Parties”; provided, that the foregoing shall not be interpreted to alter the treatment of the “Borrower” or any other “Loan Party” under the Loan Agreement); it being understood that if any failure to comply with any of such provisions of Section 8 or Section 9 of the Loan Agreement is cured in accordance with the terms thereof, such provisions shall be deemed (with retroactive effect to the first date of any such failure to so comply) to have been complied with for purposes of this Certificate of Incorporation.

4.7.2. For the avoidance of doubt, each of the foregoing clauses (i) through (xiii) is an independent covenant and any action or transaction involving the Corporation or its subsidiaries, as applicable, requiring the vote or consent of the Required Preferred Stockholders under any such clause shall require such consent, notwithstanding that such action or transaction may be permitted without such vote or consent by any other clause in this Section 4.7.

4.8. Liquidation Rights of Preferred Stock.

4.8.1. Upon the occurrence of a Liquidation Event, each holder of Preferred Stock shall be entitled to receive and to be paid out of the assets of the Corporation legally available for distribution to the stockholders, before any dividend or payment may be made on any Common Stock or other class or series of capital stock of the Corporation, an amount per share of Preferred Stock equal to the Redemption Price as of such time payable at the time of such Liquidation Event. If, upon any such Liquidation Event, the assets of the Corporation legally available for distribution to the stockholders are insufficient to pay the holders of Preferred Stock the full amount of such Redemption Price for each outstanding share of Preferred Stock, the holders of Preferred Stock will share ratably in any such distribution of the assets of the Corporation in proportion to the full respective amounts (if any) to which they are entitled with respect to their shares of Preferred Stock. After payment to the holders of Preferred Stock of the full amount of such Redemption Price to which they are entitled, the holders of Preferred Stock as such will have no right or claim to any of the assets of the Corporation. No stockholder shall receive any cash or other consideration upon a Liquidation Event by reason of their ownership of shares of Common Stock or class or series of capital stock of the Corporation other than shares of Preferred Stock unless the full amount of such Redemption Price to which the holders of Preferred Stock are entitled in respect of all outstanding shares of Preferred Stock have been paid in full.

4.8.2. Notwithstanding the provisions of this Section 4.8, the Corporation shall not be obligated to pay distributions pursuant to this Section 4.8 to the extent there exists a Preferred Delay Condition. In such event, the Corporation shall notify the holders of Preferred Stock in writing as soon as practicable of such Preferred Delay Condition. The Corporation shall then pay the distributions pursuant to Section 4.8.1 with respect to as many shares of Preferred Stock entitled to such distributions without running afoul of the Preferred Delay Condition and thereafter pay the Redemption Price with respect to as many of the other shares of Preferred Stock entitled to such distributions without running afoul of the Preferred Delay Condition at the earliest practicable date or dates, in which case, the Redemption Price shall accrue interest at the Preferred Dividend Rate.

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4.9. Replacement. Upon receipt of an affidavit of the registered owner of one or more shares of Common Stock or Preferred Stock (or such other evidence as may be reasonably satisfactory to the Corporation) with respect to the ownership and the loss, theft, destruction or mutilation of any certificate evidencing such shares of Common Stock or Preferred Stock, and in the case of any such loss, theft or destruction, upon receipt of indemnity (without bond) reasonably satisfactory to the Corporation, or, in the case of any such mutilation upon surrender of such certificate, the Corporation shall execute and deliver in lieu of such certificate a new certificate of like kind representing the number of shares of Common Stock or Preferred Stock, as the case may be, represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.

5. Redemption.

5.1. Optional Redemption. The Corporation may elect to redeem any or all of the shares of Preferred Stock at any time, and from time to time, then held by the holders of Preferred Stock, for cash, in an amount per share of Preferred Stock being redeemed equal to the Redemption Price as of such time.

5.2. Mandatory Redemption. Upon the occurrence of a Mandatory Redemption Event, to the extent not prohibited by applicable law or postponed in writing by the Required Preferred Stockholders, in their sole and absolute discretion, the Corporation shall redeem all then outstanding shares of Preferred Stock for cash in an amount per share of Preferred Stock equal to the Redemption Price as of such time. Any such redemption shall occur concurrently with the consummation of any Mandatory Redemption Event, or if postponed by the Required Preferred Stockholders, within five (5) Business Days following written notice from such Required Preferred Stockholders ending such postponement. If the Corporation does not have sufficient funds legally available to redeem all shares of Preferred Stock, the Corporation shall redeem the maximum number of shares of Preferred Stock that can be redeemed at such time out of funds legally available therefor, and shall redeem the remaining shares of Preferred Stock as soon as practicable after the Corporation has funds legally available therefor.

5.3. Notice of Redemption. The Corporation shall provide notice of any redemption pursuant to this Section 5, at least ten (10) days but not more than sixty (60) days prior to such redemption, to each holder of Preferred Stock. Each such notice shall state (i) the date fixed for such redemption, (ii) the Redemption Price and (iii) that if fewer than all of the shares of Preferred Stock owned by such holder of Preferred Stock are to be redeemed, the number of shares of Preferred Stock that are to be redeemed.

5.4. Delay Condition. Notwithstanding the provisions of this Section 5, the Corporation shall not be obligated to redeem any shares of Preferred Stock pursuant to this Section 5 to the extent there exists a Preferred Delay Condition. In such event, the Corporation shall notify the holders of Preferred Stock in writing as soon as practicable of such Preferred Delay Condition. The Corporation shall then consummate the redemption of shares of Preferred Stock on the applicable date set forth in this Section 5.4 with respect to as many shares of Preferred Stock as can be redeemed without running afoul of the Preferred Delay Condition and thereafter redeem as many of the shares of Preferred Stock as can be redeemed without running afoul of the Preferred Delay Condition at the earliest practicable date or dates, in which case, the Redemption Price shall accrue interest at the Preferred Dividend Rate.

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5.5. Surrender of Certificates; Payment. On or before the applicable redemption date, each holder of outstanding Preferred Stock shall surrender the certificate or certificates representing such shares (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement (without bond) reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation, in the manner and at the place reasonably designated by the Corporation, and thereupon the Redemption Price for such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof. If fewer than all shares represented by any such certificate are not redeemed, the Corporation shall issue a new certificate to the holder thereof representing the shares not so redeemed.

5.6. Rights Subsequent to Redemption. If on the applicable redemption date the Redemption Price payable upon redemption of the shares of Preferred Stock to be redeemed on the applicable redemption date is paid or tendered for payment or irrevocably deposited with an independent payment agent so as to be available therefor, then notwithstanding that the certificates evidencing any of the shares of Preferred Stock so called for redemption shall not have been surrendered, dividends with respect to such shares of Preferred Stock shall cease to accrue after the applicable redemption date and all rights with respect to such shares shall forthwith after such redemption date terminate, except only the right of the holders to receive the Redemption Price without interest upon surrender of their certificate or certificates therefor.

5.7. Pro Rata Redemption. In the event that at any time fewer than all of the outstanding shares of Preferred Stock are to be redeemed pursuant to this Section 5, the redemption shall be made pro rata among all holders of Preferred Stock in proportion to the number of shares of Preferred Stock then held by them.

6. Redeemed or Otherwise Acquired Shares. Any shares of Preferred Stock which are redeemed or otherwise acquired by the Corporation or any of its subsidiaries shall be automatically and immediately cancelled and retired and shall not be reissued, sold or transferred.

7. Preferred Stock Put Right.

7.1. Each holder of Preferred Stock may, at its election, elect to sell to the Corporation at any time following May 2, 2024 all, but in no event less than all, of the shares of Preferred Stock then held thereby, for a purchase price per share of Preferred Stock equal to the Redemption Price.

7.2. If any holder of Preferred Stock desires to exercise its right to sell shares of Preferred Stock pursuant to this Section 7, such holder of Preferred Stock shall provide notice (a “Preferred Put Notice”), which notice may be delivered prior to May 2, 2024, requesting that the Corporation repurchase shares of Preferred Stock and setting forth the number of shares of Preferred Stock that are to be so repurchased. The Corporation shall consummate the purchase of shares of Preferred Stock pursuant to this Section 7 within forty five (45) days of receipt of the Preferred Put Notice, but in no event prior to May 2, 2024.

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7.3. Notwithstanding the provisions of this Section 7, the Corporation shall not be obligated to purchase any shares of Preferred Stock pursuant to this Section 7 to the extent there exists a Preferred Delay Condition. In such event, the Corporation shall notify the holders of Preferred Stock in writing as soon as practicable of such Preferred Delay Condition and shall permit such holders of Preferred Stock, within ten (10) days of receipt thereof, to rescind its decision to sell their shares of Preferred Stock to the Corporation pursuant to this Section 7. If such holders of Preferred Stock do not rescind their decision to sell their respective shares of Preferred Stock to the Corporation pursuant to this Section 7, the Corporation shall consummate the purchase of shares of Preferred Stock on the applicable date set forth in this Section 7.3 with respect to as many shares of Preferred Stock as can be purchased without running afoul of the Preferred Delay Condition and thereafter pay the Redemption Price with respect to as many of the other shares of Preferred Stock to be purchased as can be purchased without running afoul of the Preferred Delay Condition at the earliest practicable date or dates, in which case, the Redemption Price shall accrue interest at the Preferred Dividend Rate.

7.4. On or before the closing of any sale and purchase pursuant to this Section 7, each holder of outstanding Preferred Stock shall surrender the certificate or certificates representing such shares (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement (without bond) reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation, in the manner and at the place reasonably designated by the Corporation, and thereupon the Redemption Price for such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof. If fewer than all shares represented by any such certificate are not redeemed, the Corporation shall issue a new certificate to the holder thereof representing the shares not so redeemed

7.5. If on the closing date of any sale and purchase pursuant to this Section 7 the Redemption Price payable upon redemption of the shares of Preferred Stock to be redeemed on the applicable closing date of any such sale and purchase is paid or tendered for payment or irrevocably deposited with an independent payment agent so as to be available therefor, then notwithstanding that the certificates evidencing any of the shares of Preferred Stock so called for redemption shall not have been surrendered, dividends with respect to such shares of Preferred Stock shall cease to accrue after the applicable closing date of any such sale and purchase and all rights with respect to such shares shall forthwith after such date terminate, except only the right of the holders to receive the Redemption Price without interest upon surrender of their certificate or certificates therefor.

8. Definitions. The following terms shall have the following meanings for purposes of this Certificate of Incorporation:

“Board of Directors” shall mean the board of directors of the Corporation.

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“Business” shall have the meaning set forth in the Loan Agreement.

“Business Day” means any day except a Saturday, Sunday or legal holiday in the State of New York.

“Bylaws” is defined in Section 10.

“Capital Park” means Capital Park Holdings Corp., a Delaware corporation.

“Certificate of Incorporation” is defined in the preamble.

“Change of Control” shall have the meaning set forth in the Loan Agreement and shall also include the incurrence of any of the following: (i) any “person” or “group” (within the meaning of Section 13(d) and 14(d) of the Exchange Act) other than Capital Park becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), of any capital stock of the Corporation other than the Preferred Stock; and (ii) any “person” or “group” (within the meaning of Section 13(d) and 14(d) of the Exchange Act) not affiliated with Capital Park on the date of this Certificate of Incorporation becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of an amount of equity securities of Capital Park representing 50% or more of the aggregate ordinary voting power (or the equivalent thereof) represented by the issued and outstanding capital stock of Capital Park.

“Common Stock” is defined in Section 4.1.1.

“Corporation” is defined in the preamble.

“Covered Person” is defined in Section 13.1.

“DGCL” is defined in the preamble.

“Dividend Payment Date” is defined in Section 4.4.2.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Exit Sale” is defined in Section 4.6.

“Indebtedness” shall have the meaning set forth in the Loan Agreement. For the avoidance of doubt, “Indebtedness” of the Corporation shall not include the Preferred Stock or accrued and unpaid dividends or increases in the Liquidation Preference thereon.

“Insolvency Event” means the occurrence of any event that would constitute an “Event of Default” under Article X of the Loan Agreement.

“Interests” are the equity membership interests issued by the SPV.

“Issue Price” means $1,000 per share of Preferred Stock.

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“LIBOR Rate” shall mean the LIBOR Rate in effect under the terms of the Loan Agreement.

“Liquidation Event” means when the Corporation liquidates, dissolves or winds up its affairs.

“Liquidation Preference” means, with respect to each share of Preferred Stock, as of any time of determination, the Issue Price plus the amount of accrued and unpaid Preferred Dividends.

“Loan Agreement” means the Loan Agreement, dated as of May 3, 2019, entered into by and among C-PAK Consumer Product Holdings LLC, a Delaware limited liability company, and C-PAK Consumer Product IP SPV LLC, a Delaware limited liability company, as borrowers, C-PAK Consumer Product Holdings SPV I LLC, a Delaware limited liability company, and its subsidiaries that are Guarantors (as defined therein) or become Guarantors thereunder, the Lenders (as defined therein) from time to time party thereto, and Piney Lake Opportunities ECI Master Fund LP, a Cayman Islands exempted limited partnership, as administrative agent for the Lenders and as collateral agent for the Secured Parties (as defined therein), as in effect on the date of this Agreement.

“Mandatory Redemption Event” means any of (i) a Change of Control, (ii) an Insolvency Event, (iii) a Liquidation Event and (iv) acceleration under the Loan Agreement as modified, amended or replaced from time to time.

“Material Non-Compliance Event” means any of (i) the occurrence of a Redemption Breach or (ii) the Corporation’s breach of any provision of Section 4.7.1, which breach remains uncured for five (5) days after the earlier of (i) prior written notice to the Corporation of the aforementioned breach by the Corporation or (ii) actual knowledge of such breach by an officer of the Corporation.

“Participating Sellers” is defined in Section 4.6.2.

“Person” means any individual, company, corporation, partnership, limited liability company, trust or other entity.

“Plan” shall have the meaning set forth in the Amended and Restated Limited Liability Company Agreement of the SPV, dated May 3, 2019.

“Preferred Delay Condition” means the Corporation is prohibited from purchasing any shares of Preferred Stock by any law.

“Preferred Dividend Rate” means 13.00% per annum plus the LIBOR Rate; provided, that upon a Material Non-Compliance Event the Preferred Dividend Rate shall increase by 2.00% per annum on such Material Non-Compliance Event and so long as such Material Non-Compliance Event continues without cure, on each anniversary thereof. Any such increase shall continue until such time as there is no longer any Material Non-Compliance Event, Sale Trigger Event or Preferred Delay Condition, as applicable, or the Redemption Price is paid in full in cash, subject to reinstatement upon the occurrence of a subsequent Material Non-Compliance Event.

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“Preferred Dividends” is defined in Section 4.4.1.

“Preferred Put Notice” is defined in Section 7.2.

“Preferred Stock” is defined in Section 4.1.2.

“Prospective Buyer” is defined in Section 4.6.2.

“Redemption Breach” means the failure of the Corporation to (i) timely redeem shares of Preferred Stock in accordance with Section 5 or Section 7, including the failure of the Corporation to timely (y) redeem all outstanding shares of Preferred Stock for the Redemption Price pursuant to Section 5 or (z) pay the Redemption Price on all shares of Preferred Stock that the holders of Preferred Stock have elected to sell to the Corporation pursuant to Section 7, in each case, without regard to any Preferred Delay Condition, or (ii) pay the Redemption Price payable upon a Liquidation Event in accordance with Section 4.8 without regard to any Preferred Delay Condition.

“Redemption Price” means an amount per share of Preferred Stock equal to (i) in the case of any determination of Redemption Price occurring on or before May 2, 2022, two (2) times the sum of the Liquidation Preference as of the date of such determination plus the Preferred Dividends that would accrue on such Liquidation Preference from the date of such determination through May 2, 2022 or (ii) in the case of any determination of Redemption Price occurring after May 2, 2022, two (2) times the Liquidation Preference as of the date of such determination.

“Required Preferred Stockholders” means holders of Preferred Stock holding more than fifty percent (50%) of the then issued and outstanding shares of Preferred Stock.

“Restricted Payment” shall have the meaning set forth in the Loan Agreement.

“Sale Notice” is defined in Section 4.6.

“Sale of the Corporation” means a transaction pursuant to which all of the capital stock of the Corporation or all or substantially all of the assets of the Corporation or the SPV are purchased by an unaffiliated third party.

“Sale Trigger Event” means any Redemption Breach which continues for a period of six (6) consecutive months.

“SPV” is defined in Section 4.7.1(iii).

“Stockholders’ Agreement” means the Stockholders’ Agreement, dated as of May 3, 2019, entered into by and among the Corporation, Capital Park and Piney Lake Opportunities Non-ECI Master Fund LP, as in effect on the date of this Certificate of Incorporation.

9. Except as otherwise provided in the provisions establishing a class of stock, the number of authorized shares of any class or series of stock (other than Preferred Stock) may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of the Corporation entitled to vote irrespective of the provisions of Section 242(b)(2) of the DGCL.

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10. Except as otherwise provided herein or by the DGCL, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The total number of directors constituting the Board of Directors shall be no less than three (3) and no more than nine (9) as further set forth in the bylaws of the Corporation, as in effect from time to time (the “Bylaws”). The election of directors need not be by written ballot unless the Bylaws shall so require.

11. Except as otherwise provided in this Certificate of Incorporation, in furtherance and not in limitation of the power conferred upon the Board of Directors by law, the Board of Directors shall have power to make, adopt, alter, amend and repeal from time to time the Bylaws of the Corporation, subject to the right of the stockholders entitled to vote with respect thereto to alter and repeal Bylaws made by the Board of Directors.

12. To the fullest extent permitted by law, a director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. No amendment or repeal of this Section 12 shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.

13. Indemnification.

13.1. The Corporation shall, to the maximum extent permitted from time to time under the law of the State of Delaware, indemnify any person who is or was a party or is threatened to be made a party to any threatened, pending or completed action, suit, proceeding or claim, whether civil, criminal, administrative or investigative, (i) by reason of the fact that such person is or was a director or is or was serving at the request of the Corporation as a director of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans or (ii) in such person’s capacity as an officer of the Corporation or in such person’s capacity as an officer of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, that such person is or was serving at the request of the Corporation (each such person described in the foregoing clauses (i) and (ii), a “Covered Person”), against expenses (including attorney’s fees and expenses), judgments, fines, penalties and amounts paid in settlement incurred (and not otherwise recovered) in connection with the investigation, preparation to defend or defense of such action, suit, proceeding or claim; provided, however, that the foregoing shall not require the Corporation to indemnify any person in connection with any action, suit, proceeding, claim or counterclaim initiated by or on behalf of such person other than an action authorized by the Board of Directors. Such indemnification shall not be exclusive of other indemnification rights arising under any bylaw, agreement, vote of directors or stockholders or otherwise and shall inure to the benefit of the heirs and legal representatives of such person. Any person seeking indemnification under this Section 13 shall be deemed to have met the standard of conduct required for such indemnification unless the contrary shall be established. Any repeal or modification of the foregoing provisions of this Section 13 shall not adversely affect any right or protection of a Covered Person with respect to any acts or omissions of such Covered Person occurring prior to such repeal or modification.

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13.2. The Corporation shall pay on a current and as-incurred basis expenses incurred by any Covered Person in defending or otherwise participating in any action, suit, proceeding or claim in advance of the final disposition of such action, suit, proceeding or claim, including appeals, upon presentation of (i) an unsecured written undertaking to repay such amounts if it is ultimately determined that the person is not entitled to indemnification hereunder and (ii) adequate documentation reflecting such expenses.

13.3. It is the intent that with respect to all advancement and indemnification obligations under this Section 13, the Corporation shall be the primary source of advancement, reimbursement and indemnification relative to any direct or indirect shareholder of the Corporation (or any affiliate of such shareholder, other than the Corporation or any of its direct or indirect subsidiaries). The Corporation shall have no right to seek contribution, indemnity or other reimbursement for any of its obligations under this Section 13 from any such direct or indirect shareholder of the Corporation (or any affiliate of such shareholder, other than the Corporation or any of its direct or indirect subsidiaries).

13.4. The Corporation shall have the power to purchase and maintain, at its expense, insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, against any expense, liability or loss asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL or the terms of this Certificate of Incorporation.

14. To the maximum extent permitted from time to time under the law of the State of Delaware, the Corporation renounces any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to its officers, directors or stockholders, other than those officers, directors or stockholders who are employees of the Corporation. No amendment or repeal of this Section 14 shall apply to or have any effect on the liability or alleged liability of any officer, director or stockholder of the Corporation for or with respect to any opportunities of which such officer, director or stockholder becomes aware prior to such amendment or repeal. To the fullest extent permitted by law, any Person purchasing or otherwise acquiring any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Section 14.

15. The books of the Corporation may (subject to any statutory requirements) be kept outside the State of Delaware as may be designated by the Board of Directors or in the Bylaws.

16. The Corporation shall not be governed by Section 203 of the DGCL.

[Remainder of page left blank intentionally.]

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IN WITNESS WHEREOF, the undersigned incorporator has caused this Amended and Restated Certificate of Incorporation to be signed this 2^nd day of May 2019.

By:	/s/ Eric C. Blue
Name:	Eric C. Blue
Title:	President

[C-PAK PREFCO SPV I, INC. Amended and Restated Certificate of Incorporation Signature Page]

EX-10.5

Exhibit 10.5

Execution Version

AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT

OF

C-PAK Consumer Product Holdings SPV I LLC

(a Delaware Limited Liability Company)

THE MEMBERSHIP INTERESTS CREATED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY JURISDICTION. NO MEMBERSHIP INTEREST MAY BE SOLD OR OFFERED FOR SALE (WITHIN THE MEANING OF ANY SECURITIES LAWS) UNLESS A REGISTRATION STATEMENT UNDER ALL APPLICABLE SECURITIES LAWS WITH RESPECT TO THE INTEREST IS THEN IN EFFECT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS IS THEN APPLICABLE TO THE INTEREST. A MEMBERSHIP INTEREST ALSO MAY NOT BE TRANSFERRED OR ENCUMBERED UNLESS THE PROVISIONS OF THIS AGREEMENT ARE SATISFIED.

Dated as of May 3, 2019

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

C-PAK Consumer Product Holdings SPV I LLC

(a Delaware Limited Liability Company)

This Amended and Restated Limited Liability Company Agreement is made and entered into and shall be effective as of the 3^rd day of May, 2019, by and among C-PAK CONSUMER PRODUCT HOLDINGS SPV I LLC, a Delaware limited liability company, and each other Person whose name is set forth on Exhibit A attached to this Agreement, as the Members.

W I T N E S S E T H:

WHEREAS, the Company was formed on May 17, 2017 by the filing of a certificate of formation with the Secretary of State of the State of Delaware;

WHEREAS, the initial limited liability company agreement of the Company was entered into on May 17, 2017 (the “Original Company Agreement”); and

WHEREAS, the parties hereto desire to amend, restate and supersede the Original Company Agreement in its entirety.

NOW, THEREFORE, in consideration of the premises and the agreements contained herein and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree to amend and restate the Original Company Agreement in its entirety, as follows:

ARTICLE I.

DEFINITIONS

1.1. Certain Definitions. The terms specified in this Section 1.1 shall, for all purposes of this Agreement, have the meanings herein specified, unless the context expressly or by necessary implication otherwise requires.

“Act” means the Delaware Limited Liability Company Act, as amended to date and as may be amended from time to time hereafter and any successor to such Act.

“Additional Member” means a Person who is admitted into the Company as a Member pursuant to the terms of Section 14.4.

“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in a Member’s Capital Account as of the end of the relevant fiscal year or other period, after giving consideration to the following adjustments:

(a) There shall be credited to such Capital Account any amounts which the Member is obligated to restore to the Company or is deemed obligated to restore pursuant to Treasury Regulations Section 1.704-1(b)(2)(ii)(c) or to the penultimate sentences of Treasury Regulations Sections 1.704-2(g)(1) or 1.704-2(i)(5); and

(b) There shall be debited to such Capital Account the items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6).

“Affiliate” means, with respect to any Member, (a) any Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a Member; (b) any entity of which a Member is an officer, director, general partner or trustee, or serves in a similar capacity; or (c) any child, grandchild (whether through marriage, adoption or otherwise), sibling (whether through adoption or otherwise), parent, or spouse of a Member. As used in this definition of “Affiliate,” the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person whether through ownership of voting securities, by contract or otherwise.

“Agreement” means this Amended and Restated Limited Liability Company Agreement, as it may be amended, modified, supplemented or restated from time to time in accordance with the provisions of the Act and this Agreement.

“Applicable Tax Rate” means (i) if the Member is a partnership for U.S. federal income tax purposes for such year, the highest effective marginal rate of individual U.S. federal income tax and Medicare tax (imposed by Code Section 1411 on income and gain allocated by the Company) in effect at such time of distribution and (ii) if the Member is a corporation for U.S. federal income tax purposes for such year, the U.S. federal corporate income tax rate.

“Available Cash” means all cash, demand deposits and short term marketable securities received from the conduct of Company operations or capital transactions, less the portion thereof used to pay, or establish reserves or cash set asides for, all reasonably foreseeable Company expenses and contingencies, all as reasonably determined by the Board of Managers. Available Cash shall not be reduced by depreciation, amortization, cost recovery deductions or similar allowances, but shall be increased by any reductions of reserves previously established.

“Bankruptcy” means, as to any Member, the Member’s taking, or acquiescing to the taking, of any action seeking relief under, or advantage of, any applicable debtor relief, liquidation, receivership, conservatorship, bankruptcy, moratorium, rearrangement, insolvency, reorganization or similar law affecting the rights or remedies of creditors generally, as in effect from time to time. For the purpose of this definition, the term “acquiescing” shall include, without limitation, the failure to file within the time specified by law, an answer or opposition to any proceeding commenced against such Member under any such law and a failure to file, within thirty (30) days after its entry, a petition, answer or motion to vacate or to discharge any order, judgment or decree providing for any relief under any such law.

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“Bipartisan Budget Act” means the Bipartisan Budget Act of 2015, H.R. 1314, P.L. 114-74, 114th Cong. (2015).

“Board of Managers” means the governing body of the Company, having all of the rights, duties and powers of the managers of a limited liability company under the Act, subject to the terms of this Agreement.

“Buyout Notice” is defined in Section 15.1(a).

“Capital Account” means that separate Capital Account maintained by the Company for each Member and the amount of each such Member’s Capital Account, as of any given date, which shall be computed as follows:

(a) the Capital Account balance of each Member shall be credited (increased) by (i) the amount of cash contributed by such Member to the capital of the Company, (ii) the fair market value of property contributed by such Member to the capital of the Company (net of liabilities secured by such property that the Company assumes or takes subject to under Code Section 752), and (iii) such Member’s allocable share of Company income and gain (or items thereof) including income and gain exempt from U.S. federal income taxation and income and gain attributable to adjustments to reflect book value pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(g), but excluding income and gain attributable to tax items which differ as a result of the revaluation of Company property as described in Treasury Regulations Section 1.704-1(b)(4); and

(b) the Capital Account balance of each Member shall be debited (decreased) by (i) the amount of cash distributed to such Member, (ii) the fair market value of property distributed to such Member (net of liabilities secured by such property which the Member assumes or takes subject to under Code Section 752), (iii) such Member’s allocable share of expenditures of the Company described in Code Section 705(a)(2)(B), and (iv) such Member’s allocable share of Company losses, depreciation and other deductions (or items thereof) including loss and deduction attributable to adjustments to reflect book value pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(g) but excluding expenditures described in (iii) above and loss or deduction attributable to tax items which differ as a result of the revaluation of Company property or excess percentage depletion as described in Treasury Regulations Section 1.704-1(b)(4).

The Board of Managers (acting in good faith and in accordance with customary valuation methods) shall determine the fair market value of any property contributed to the Company.

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In the event any Units are Transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the Transferred Units.

In determining the amount of any liability for purposes of subparagraphs (a) and (b) above, there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and Treasury Regulations.

Notwithstanding the foregoing, a Member’s Capital Account shall not be adjusted to reflect gain or loss attributable to the disposition of property contributed by such Member to the extent such Member’s Capital Account reflected such inherent gain or loss in the property on the date of its contribution to the Company.

The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations Sections 1.704-1(b) and 1.704-2, and shall be interpreted and applied in a manner consistent with such Treasury Regulations. In the event the Board of Managers determines that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto, are computed in order to comply with such Treasury Regulations, the Board of Managers may make such modification; provided, that it is not likely to have a material effect on the amounts distributable to any Member upon the termination or dissolution of the Company. The Board of Managers also shall (a) make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Members and the amount of Company capital reflected on the Company’s balance sheet, as computed for book purposes in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(g), and (b) make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Treasury Regulations Sections 1.704-1(b) and 1.704-2.

“Capital Contribution” means, with respect to any Member, the amount of cash and/or the initial Gross Asset Value of property contributed by such Member to the Company with respect to the Units held by such Member. In the event such term is used in this Agreement and such Capital Contribution amount has not been adjusted in the applicable provision to reduce the Capital Contribution amount by the liabilities which the Company assumes or takes the property subject to with respect to property contributed by a Member, such Member’s Capital Contribution will be reduced by such liabilities where applicable for U.S. federal income tax or state law purposes.

“Certificate of Formation” means the Certificate of Formation of the Company, initially filed in the office of the Secretary of State of the State of Delaware on May 17, 2017, as amended on May 3, 2019.

“Code” means the Internal Revenue Code of 1986, as amended from time to time. All references herein to sections of the Code shall include any provision or corresponding provisions of succeeding law.

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“Common Delay Condition” means the Company is prohibited from purchasing any Common Units by any law.

“Common Distribution Rate” means 15%; provided, that the Common Distribution Rate with respect to any Intended Common Put Closing Date shall increase by 2.00% on each anniversary of the Intended Common Put Closing Date.

“Common Interests” is defined in Section 3.3.

“Common Member” means a Person identified on Exhibit A hereto as a Common Member, and such other Members that at such time hold one or more Common Units, but excluding any Person who ceases to hold any Common Units.

“Common Put Notice” is defined in Section 15.2(b).

“Common Put Price” is defined in Section 15.2(a).

“Common Units” is defined in Section 3.3.

“Company” means C-PAK Consumer Product Holdings SPV I LLC, a Delaware limited liability company, and its successors and assigns.

“Company Minimum Gain” shall have the meaning set forth in Treasury Regulations Section 1.704-2(b)(2) and shall mean the amount determined under Treasury Regulations Section 1.704-2(d)(1) by (i) computing for each Nonrecourse Liability of the Company any gain the Company would realize if it disposed of the property subject to that liability for no consideration other than full satisfaction of the liability and (ii) aggregating the separately computed gains. If, pursuant to Treasury Regulations Sections 1.704-1(b)(2)(iv)(d) or 1.704-1(b)(2)(iv)(f), Company property is properly reflected on the books of the Company at a book value that differs from the adjusted tax basis of such property, the calculation of Company Minimum Gain pursuant to the preceding sentence shall be made by reference to such book value. For purposes hereof, a liability of the Company is a Nonrecourse Liability to the extent that no Member or related Person bears the economic risk of loss for that liability within the meaning of Treasury Regulations Section 1.752-2.

“Depreciation” means, for each taxable year or other period, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for such taxable year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for U.S. federal income tax purposes at the beginning of the year or other period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the U.S. federal income tax depreciation, amortization, or other cost recovery deduction for such fiscal year or other period bears to such beginning adjusted tax basis. If the U.S. federal income tax depreciation, amortization or other cost recovery deduction for the year or other period is zero, Depreciation will be determined using any reasonable method selected by the Board of Managers.

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“Exercise Period” means any Business Day that occurs at any time during the twelve (12) month period ending after November 2, 2024, through and including November 2, 2025.

“Governmental Authority” means any and all U.S. federal, state or local governments, governmental institutions, public authorities and any other governmental entities of any nature whatsoever, and any subdivisions or instrumentalities thereof, including but not limited to departments, boards, bureaus and panels, and any divisions or instrumentalities thereof, whether permanent or ad hoc and whether now or hereafter constituted or existing.

“Gross Asset Value” means with respect to any asset, the adjusted basis for U.S. federal income tax purposes of such asset, except as follows:

(a) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset on the date of contribution, as determined by the Board of Managers;

(b) The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values, as determined by the Board of Managers, as of the following times: (i) the acquisition of additional Units in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution; (ii) the distribution by the Company to a Member of more than a de minimis amount of Company property as consideration for Units in the Company, if the Board of Managers reasonably determines that, with respect to adjustments pursuant to subsections (i) and (ii) above, such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company; and (iii) the liquidation of the Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g);

(c) The Gross Asset Value of any Company asset distributed to any Member shall be the gross fair market value of such asset on the date of distribution; and

(d) The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Sections 734(b) or 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m) and Section 6.2(f); provided, however, that Gross Asset Values shall not be adjusted pursuant to this subparagraph (d) to the extent the Board of Managers determines that an adjustment pursuant to subparagraph (b) hereof is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (d).

“Indemnified Party” is defined in Section 13.1.

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“Independent Appraiser” means an independent certified appraiser, investment banker or similar valuation specialist of national or international recognition that is in the practice of evaluation businesses of the size of the Company and is mutually agreed upon by the Company and PLC; provided, that if the Company and PLC cannot agree on such an appraiser, bank or specialist, then the Company and PLC shall each select an appraiser, banker or specialist meeting the foregoing requirements, and the persons chosen by the Company and PLC shall mutually agree and appoint an appraiser, banker or specialist meeting the foregoing requirements, which person shall be the Independent Appraiser.

“Interest” means a limited liability company interest of the Company, including, without limitation, the rights of a Member holding such Interest in distributions from the Company and allocations of the Profits, Losses, gains, deductions and credits of the Company and the other rights and obligations of such Member with respect to such Interest as set forth in this Agreement.

“IRA” means the Investors’ Rights Agreement, dated as of May 3, 2019, entered into by and among the Company, PrefCo and PLC.

“Lender” is defined in Section 4.3.

“Liquidator” is defined in Section 16.2(a).

“Loan Agreement” means the Loan Agreement, dated as of May 3, 2019, entered into by and among C-PAK Consumer Product Holdings LLC, a Delaware limited liability company, and C-PAK Consumer Product IP SPV LLC, a Delaware limited liability company, as borrowers, Pak Consumer Product Holdings SPV I LLC, a Delaware limited liability company, and its subsidiaries that are Guarantors (as defined therein) or become Guarantors thereunder, the Lenders (as defined therein) from time to time party thereto, and PLC as administrative agent for the Lenders and as collateral agent for the Secured Parties (as defined therein), as in effect on the date of this Agreement.

“Majority Interest” means such of the Members as shall own, at the time of any determination, more than fifty percent (50%) of all then issued and outstanding Common Units.

“Manager” means each Person who has been elected as and continues to be, a member of the Board of Managers, and the term Manager shall for all purposes have the same connotation as the term “manager” under the Act.

“Member” means any Person who has been admitted as a Member and whose name is set forth on Exhibit A hereto, and any other Person admitted to the Company as a Member in accordance with this Agreement, but excluding any Person who ceases to be a Member of the Company pursuant to this Agreement.

“Member Loan Minimum Gain” means an amount, with respect to each Member Loan Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Loan Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulations Section 1.704-2(i)(3).

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“Member Loan Nonrecourse Debt” shall have the meaning set forth in Treasury Regulations Section 1.704-2(b)(4).

“Member Loan Nonrecourse Deductions” shall have the meaning set forth in Treasury Regulations Section 1.704-2(i)(2). The amount of Member Loan Nonrecourse Deductions with respect to a Member Loan Nonrecourse Debt for a Company fiscal year or other period equals the excess, if any, of the net increase, if any, in the amount of Member Loan Minimum Gain attributable to such Member Loan Nonrecourse Debt during that fiscal year or other period over the aggregate amount of any distributions during that fiscal year to the Member that bears the economic risk of loss for such Member Loan Nonrecourse Debt to the extent such distributions are from the proceeds of such Member Loan Nonrecourse Debt and are allocable to an increase in Member Loan Minimum Gain attributable to such Member Loan Nonrecourse Debt, determined in accordance with Treasury Regulations Section 1.704-2(i)(2).

“Net Cash From Sales or Refinancings” means the net cash proceeds from all sales and other dispositions (other than in the ordinary course of business) and all refinancings of Company property, less any portion thereof used to establish reserves, all as determined by the Board of Managers. Net Cash From Sales or Refinancings shall include all principal and interest payments at the time of receipt with respect to any note or other obligation received by the Company in connection with sales and other dispositions (other than in the ordinary course of business) of Company property.

“Nonrecourse Deductions” shall have the meaning set forth in Treasury Regulations Section 1.704-2(b)(1). The amount of Nonrecourse Deductions for a Company fiscal year or other period equals the excess, if any, of the net increase in the amount of Company Minimum Gain during the fiscal year or other period, over the aggregate amount of any distributions during such year or other period of proceeds of a Nonrecourse Liability that are allocable to an increase in Company Minimum Gain, determined according to the provisions of Treasury Regulations Section 1.704-2(c).

“Nonrecourse Liability” shall have the meaning set forth in Treasury Regulations Section 1.704-2(b)(3).

“Observer” is defined in Section 9.15.

“Original Company Agreement” is defined in the recitals to this Agreement.

“Percentage Interest” means, with respect to any Member, the number of Common Units held by such Member expressed as a percentage of the number of Common Units held by all Members.

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“Permitted Transferee” means, with respect to the Units of any Member:

(a) any Person who is approved in writing by a Required Interest of the Members as a transferee of Units and admission as a Member;

(b) a trust of which there are no principal beneficiaries other than such Member and/or one or more of such Member’s Relatives and in which the Member controls all management decisions;

(c) a partnership, corporation, limited liability company or other entity of which there are no equity owners other than such Member and/or one or more of such Member’s Relatives and in which the Member controls all management decisions;

(d) with respect to any Member that is an entity, any transfer to a Person that is an Affiliate of such Member; or

(e) with respect to PLC, any transfer to a Person (or its Affiliate) to whom PLC is transferring notes, loans or other evidence of indebtedness for borrowed money of the Company or its subsidiaries, including indebtedness governed by the Loan Agreement.

“Person” means any individual, company, corporation, partnership, limited liability company, trust or other entity.

“PLC” means Piney Lake Opportunities ECI Master Fund LP, a Cayman Islands exempted limited partnership, together with its permitted transferees and assigns.

“PLC Manager” is defined in Section 9.4(b).

“PrefCo” means C-PAK PREFCO SVP I, Inc., a Delaware corporation.

“PrefCo Managers” is defined in Section 9.4(a).

“Preferred Interest” is defined in Section 3.3.

“Preferred Member” means PrefCo in its capacity as a Preferred Member, and such other Members that at such time hold one or more Preferred Units, but excluding any Person who ceases to hold any Preferred Units.

“Preferred Units” is defined in Section 3.3.

“Profits and Losses”: “Profits” means, for each fiscal year of the Company or other period, an amount equal to the Company’s taxable income for such year or period, and “Losses” means, for each fiscal year of the Company or other period, an amount equal to the Company’s taxable loss for such year or period, in each case determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

(a) any income of the Company that is exempt from U.S. federal income tax and not otherwise taken into account in computing Profits and Losses for purposes of this definition shall be added to such taxable income or loss;

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(b) any expenditures of the Company described in Code Section 705(a)(2) (B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses for purposes of this definition shall be subtracted from such taxable income or loss;

(c) in the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraphs (b) or (d) of the definition of Gross Asset Value, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Profits or Losses;

(d) gain or loss resulting from any disposition of Company property with respect to which gain or loss is recognized for U.S. federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;

(e) in lieu of depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such fiscal year or other period, computed in accordance with the definition thereof; and

(f) notwithstanding any other provision of this definition, any items of income, gain, loss or deduction that are specially allocated pursuant to Sections 6.2 or 6.3 shall not be taken into account in computing Profits and Losses.

“Proportionate Share” means a Member’s share of an item, based upon the respective Percentage Interest of that Member as compared to the Percentage Interests of all Members entitled to share in the item.

“Relative” means any of the following: spouse; natural or adoptive parent, child or sibling; stepparent, stepchild, stepbrother or stepsister; father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law; grandparent or grandchild; and spouse of grandparent or grandchild.

“Securities Act” shall mean the Securities Act of 1933, as amended (or any successor federal statute then in effect), and a reference to a particular section thereof shall be deemed to include a reference to the comparable section, if any, of any such successor federal statute.

“Subsidiary” means, with respect to any Person, any other Person of which (i) if a corporation, a majority of the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof or (ii) if a partnership, limited liability company or other business entity, a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof.

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“Substituted Member” means any Person admitted to the Company pursuant to Section 14.2.

“TMP” is defined in Section 8.5.

“Transfer” means to sell, assign, transfer, pledge, hypothecate or otherwise dispose of.

“Treasury Regulations” or “Regulations” means the regulations, promulgated by the United States Department of the Treasury pursuant to and in respect of provisions of the Code. All references herein to Sections of the Treasury Regulations or the Regulations shall include any corresponding provision or provisions of succeeding, similar or substitute proposed, temporary or final regulations.

“Unit” or “Units” is defined in Section 3.3, and shall include the Common Units and the Preferred Units.

“Valuation” is defined in Section 15.2(c).

1.2. Other Definitions. In addition to the terms defined in Section 1.1, certain other terms are defined elsewhere in this Agreement, and whenever such terms are used in this Agreement, they shall have their respective defined meanings, unless the context expressly or by necessary implication otherwise requires.

1.3. Schedule A. Notwithstanding anything herein to the contrary, all articles, sections, and definitions contained herein shall be subject to Schedule A attached hereto, and in the event of any conflict between Schedule A hereto and the body of or other exhibits, schedules or annexes hereto, the terms and provisions of Schedule A shall control.

ARTICLE II.

FORMATION AND CONTINUATION OF THE COMPANY

2.1. Formation and Continuation. A Certificate of Formation of the Company was filed in the office of the Secretary of State of the State of Delaware on May 17, 2017, as required by the Act, under the name “C-PAK Consumer Product Holdings SPV I LLC” The Members hereby continue the existence of the Company. Except as stated in this Agreement, the Act shall govern the rights and liabilities of the Members.

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2.2. Certificates. The Company shall execute from time to time all such certificates and other documents as may be appropriate to comply with the requirements for the transaction of business or ownership or leasing of property in all jurisdictions where the Company may from time to time desire to conduct business or own or lease property. The Board of Managers shall effect all such filing, recording, publishing, and perform such other acts as may be appropriate to comply with all requirements for the operation of the Company.

2.3. Company Name. The business of the Company shall be conducted under the name “C-PAK Consumer Product Holdings SPV I LLC” or under such other name or names as the Board of Managers may determine. The Board of Managers or the officers of the Company shall promptly execute and file with the proper offices in each county in each jurisdiction in which the Company conducts business one or more certificates as required by the fictitious name act, assumed name act, or similar statute in effect as to each such jurisdiction.

2.4. Principal Office. The principal office of the Company shall be located at 8117 Preston Road, Suite 300, Dallas, Texas 75225, or at such other place or places as the Board of Managers may from time to time determine.

2.5. Term. The Company shall continue in existence until the Company is dissolved pursuant to Article XVI.

2.6. Registered Agent and Office. The registered agent of the Company shall be The Corporation Trust Company, and the registered office of the Company shall be located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The registered office or the registered agent, or both, may be changed by the Board of Managers from time to time by filing the statement required by the Act. The Company shall maintain at its registered office such records as may be specified by the Act.

2.7. Characterization. For U.S. federal income tax purposes, the Company shall be characterized as a partnership. However, for state law purposes, the Company shall not be characterized as, nor treated as, a partnership, nor shall any Member be characterized as, nor treated as, a partner. For U.S. federal income tax purposes, the Preferred Interests shall be treated as equity. The Board of Managers shall operate the Company in a manner consistent with such characterizations, and neither the Board of Managers nor any Member shall take any act, or fail to take any act, which is not consistent with such characterizations.

2.8. Uncertificated Certificates; Opt-Out of Article 8. Notwithstanding any provision to the contrary in this Agreement, the Company shall not (i) certificate any Member’s ownership interest in the Company and any such certificate purporting to evidence such Member’s ownership interest in the Company shall be null and void ab initio; or (ii) opt into (or otherwise elect that any Member’s ownership interest in the Company become a security governed by) Article 8 of the Uniform Commercial Code in effect in the State of Delaware.

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ARTICLE III.

THE BUSINESS OF THE COMPANY; INTERESTS

3.1. Purposes. The purposes of the Company are (a) to engage in any business or activity that may be lawfully conducted by a limited liability company organized pursuant to the Act; and (b) to do any and all other acts and things that the Board of Managers deems necessary, appropriate or advisable from time to time in furtherance of the purposes of the Company as set forth in this Section 3.1.

3.2. Powers. Subject to the limitations contained in this Agreement and in the Act, the Company’s purposes may be accomplished by the Board of Managers taking any action permitted under this Agreement that, in the good faith judgment of the Board of Managers, is customary or reasonably related to accomplishing such purposes.

3.3. Interests. The Interests of the Company shall be divided into two (2) classes referred to herein as “Common Interests” and “Preferred Interests”. Interests shall be issued in unit increments (each a “Unit”, and, collectively, the “Units”). The total authorized number of Units of Common Interests (collectively, the “Common Units”) is ten thousand (10,000). The total authorized number of Units of Preferred Interests (collectively, the “Preferred Units”) is three thousand (3,000). The rights, preferences, privileges and restrictions on the Common Units and the Preferred Units are as set forth in this Agreement. The Company may issue fractional Units. The number and type of Units owned by each Member shall be set forth on Exhibit A attached hereto, as such Exhibit may be amended from time to time in accordance with this Agreement.

3.4. Preferred Units. The rights, preferences and privileges of the Preferred Units are set forth on Schedule A to this Agreement, the terms and provisions of which are hereby incorporated into this Agreement in their entirety. Except where this Agreement explicitly states otherwise by specific reference to one or more sections of Schedule A, the terms and provisions of Schedule A shall have priority over the other terms and provisions of this Agreement, shall be deemed to have modified all of other terms and provisions of this Agreement, and in the event of a conflict between a term or provision set forth on Schedule A and another term or provision of this Agreement, the term or provision on Schedule A shall govern. Without limitation of the foregoing, it is expressly acknowledged and agreed that the Preferred Units rank senior to the Common Units and all other Interests of the Company with respect to the payment of any distributions and in the liquidation, dissolution or winding up of the Company.

ARTICLE IV.

CONTRIBUTIONS OF CAPITAL

4.1. Initial Capital Contributions and Interests. The initial Capital Contributions of the Members will be the amount set forth opposite each Member’s name on Exhibit A, which is attached hereto and incorporated by reference herein. The initial Percentage Interest of each Member is set forth opposite each Member’s name on Exhibit A. Each Member has contributed or is deemed to have contributed the initial Capital Contribution set forth opposite such Member’s name on Exhibit A in return for such Member’s initial Units. Exhibit A may be changed from time to time in accordance with this Agreement.

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4.2. Limitation of Liability of Members. No Member will be required to make any additional contributions to the Company. Except as otherwise provided by applicable law, the debts, obligations, and liabilities of the Company, whether arising in contract, tort, or otherwise, shall be solely the debts, obligations, and liabilities of the Company and no Member shall be obligated personally for any such debt, obligation, or liability of the Company solely by reason of being a Member of the Company; provided, that a Member may, solely to the extent required by the Act, be required to return to the Company, for the benefit of creditors, amounts previously distributed to that Member as a return of capital. It is the intent of the Members that no distribution of cash to any Member will be deemed a return or withdrawal of capital (even if that distribution is treated, in whole or in part, for any purpose as a distribution out of a reserve for depreciation or other reserve which is attributable to depreciation or any other non-cash item accounted for as a loss or deduction from or offset to the Company’s income), and that no Member will be obligated to pay any such amount to or for the account of the Company or any creditor of the Company. However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, a Member is obligated to make any such payment, that obligation will be the obligation of that Member.

4.3. Loans. Any Member or any Affiliate of any Member, with the consent of the Board of Managers, may lend money to the Company or its Subsidiaries. If any Member or any Affiliate of any Member makes any loan or loans to the Company or its Subsidiaries, the amount of any such loan shall not be treated as a contribution to the capital of the Company, but shall be a debt due from the Company. None of the Members, or any of their Affiliates, shall be obligated to loan money to the Company. Notwithstanding anything herein to the contrary, nothing contained in this Agreement shall affect, limit or impair the rights and remedies of PLC or its Permitted Transferees in its capacity as a lender to the Company or any of its Subsidiaries pursuant to any agreement, instrument or document, including the Loan Agreement, under which the Company or any of its Subsidiaries has borrowed or may borrow money or has incurred indebtedness (in such capacity, a “Lender”). Without limiting the generality of the foregoing, any Lender, while exercising its right as a Lender, subject to the doctrine of good faith and fair dealing, will have no duty to consider (i) its status as a direct or indirect Member of the Company, (ii) the interests of the Company or (iii) any duty it may have to any other direct or indirect Members of the Company, except as may be required under the applicable loan documents or by commercial law applicable to creditors generally.

ARTICLE V.

CAPITAL ACCOUNTS

5.1. No Interest on Capital Contributions. No Member will be paid interest on any Capital Contribution.

5.2. Treatment of Capital Contributions and Restrictions on the Right to Withdraw or to be Redeemed from the Company. Except as specifically provided in this Agreement, the Company will not be required to redeem or repurchase any Units, and no Member will have the right or power to withdraw, or receive any return of such Member’s Capital Contribution, and except as specifically provided in Section 16.2, no Capital Contribution may be returned in the form of property other than cash.

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5.3. Capital Accounts. A Capital Account will be established for each Member on the books and records of the Company and will be maintained for each Member in accordance with this Agreement, the Code and the Treasury Regulations.

5.4. Capital Accounts Upon Transfer. In the event any Units are Transferred in accordance with the terms of this Agreement, the transferee will succeed to the Capital Account of the transferor to the extent it relates to the Transferred Units, except as provided in the Treasury Regulations.

5.5. Adjustment of Capital Accounts. In the event the Gross Asset Values of Company assets are adjusted pursuant to this Agreement, the Capital Accounts of all Members will be adjusted simultaneously to reflect the aggregate net adjustment as if the Company recognized gain or loss equal to the amount of such aggregate net adjustment. The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Section 1.704-1(b) of the Treasury Regulations, and will be interpreted and applied in a manner consistent with such Treasury Regulations.

ARTICLE VI.

ALLOCATIONS

6.1. General Profits and Loss Allocations. After giving effect to the allocations set forth in Section 6.2, Profits and Losses (and to the extent necessary to achieve the resulting Capital Account balances described below, any allocable items of gross income, gain, loss and expense includable in the computation of Profits and Losses) for each taxable period shall be allocated among the Members during such taxable period, in such a manner as shall cause the Capital Accounts of the Members (as adjusted to reflect all allocations set forth in Section 6.2 and all distributions through the end of such taxable period) to equal, as nearly as possible, (a) the amount such Member would receive if all assets of the Company on hand at the end of such taxable period were sold for cash equal to their Gross Asset Values, all liabilities of the Company were satisfied in cash in accordance with their terms (limited in the case of non-recourse liabilities to the Gross Asset Value of the property securing such liabilities), and all remaining or resulting cash (including any withheld amounts) were distributed to the Members under Section 7, minus (b) such Member’s share of Company Minimum Gain and Member Loan Minimum Gain, computed immediately prior to the hypothetical sale of assets.

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6.2. Special Allocations.

(a) Company Minimum Gain Chargeback. Notwithstanding any other provision of this Article VI, if there is a net decrease in Company Minimum Gain during any Company fiscal year or other period for which allocations are made, prior to any other allocation under this Agreement, each Member shall be specially allocated items of Company income and gain for that period (and, if necessary, subsequent periods) in proportion to, and to the extent of an amount equal to such Member’s share of the net decrease in Company Minimum Gain during such year, determined in accordance with Regulations Section 1.704-2(g)(2). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Section 1.704-2(g)(2). This Section 6.2(a) is intended to comply with the minimum gain chargeback requirement in Regulations Section 1.704-2(f) and shall be interpreted consistently therewith. To the extent permitted by such section of the Regulations and for purposes of this Section 6.2(a) only, each Member’s Adjusted Capital Account Deficit shall be determined prior to any other allocations pursuant to this Article VI with respect to such fiscal year and without regard to any net decrease in Member Loan Minimum Gain during such fiscal year.

(b) Member Loan Minimum Gain Chargeback. Notwithstanding any other provision of this Article VI except Section 6.2(a), if there is a net decrease in Member Loan Minimum Gain attributable to a Member Loan Nonrecourse Debt during any Company fiscal year, each Member who has a share of the Member Loan Minimum Gain attributable to such Member Loan Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Member’s share of the net decrease in Member Loan Minimum Gain attributable to such Member Loan Nonrecourse Debt that is allocable to the disposition of Company property subject to such Member Loan Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Section 1.7042(j)(2). This Section 6.2(b) is intended to comply with the minimum gain chargeback requirement in Regulations Section 1.704-2(i)(4) and shall be interpreted consistently therewith. Solely for purposes of this Section 6.2(b), each Member’s Adjusted Capital Account Deficit shall be determined prior to any other allocations pursuant to this Article VI with respect to such fiscal year, other than allocations pursuant to Section 6.2(a).

(c) Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations, or distributions described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) which results in an Adjusted Capital Account Deficit of a Member, items of Company income and gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible, provided, that an allocation pursuant to this Section 6.2(c) shall be made if and only to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article VI have been tentatively made as if this Section 6.2(c) were not in this Agreement.

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(d) Gross Income Allocation. In the event any Member has an Adjusted Capital Account Deficit at the end of any Company fiscal year, each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible; provided, that an allocation pursuant to this Section 6.2(d) shall be made if and only to the extent that such Member would have an Adjusted Capital Account Deficit in excess of such sum after all other allocations provided for in this Article VI have been tentatively made as if Section 6.2(c) and this Section 6.2(d) were not in this Agreement. If the amount of Losses for any taxable period that would otherwise be allocated to a Member under Section 6.1 would cause or increase an Adjusted Capital Account Deficit for such Member as of the last day of such taxable period, then a proportionate part of such Losses, equal to such excess shall be allocated to the other Members, and the remainder of such Losses, if any, shall be allocated to such Member.

(e) Member Loan Nonrecourse Deductions. Any Member Loan Nonrecourse Deductions for any fiscal year or other period shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Loan Nonrecourse Debt to which such Member Loan Nonrecourse Deductions are attributable in accordance with Regulations Section 1.704-2(i)(2).

(f) Section 754 Adjustment. To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Members in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such section of the Regulations.

6.3. Curative Allocations. Subject to the Code and the Regulations, any allocations of items of income, gain or loss pursuant to Sections 6.2(a)-(f) shall be taken into account in computing subsequent allocations pursuant to this Article VI, so that the net amount of any items so allocated and the income, losses and other items allocated to each Member pursuant to this Article VI shall, to the extent possible, be equal to the net amount that would have been allocated to each Member had no allocations ever been made pursuant to Sections 6.2(a)-(f).

6.4. Other Allocation Rules.

(a) Except as otherwise provided in this Agreement, all items of Company income, gain, loss, deduction, and any other allocations not otherwise provided for shall be divided among the Members in the same proportions as such Members share Profits or Losses pursuant to Section 6.1 for the fiscal year.

(b) The Members are aware of the income tax consequences of the allocations made by this Article VI and hereby agree to be bound by the provisions of this Article VI in reporting their share of Company income and loss for income tax purposes.

(c) Solely for purposes of determining a Member’s proportionate share of the “excess nonrecourse liabilities” of the Company within the meaning of Regulations Section 1.752-3(a)(3), the Members’ interests in Company profits are in the same proportions as they share Profits pursuant to Section 6.1 for the fiscal year.

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(d) To the extent permitted by Sections 1.704-2(h) and 1.704-2(i)(6) of the Regulations, the Board of Managers shall endeavor to treat distributions of Available Cash or Net Cash from Sales or Refinancings as having been made from the proceeds of a Nonrecourse Liability or a Member Loan Nonrecourse Debt, only to the extent that such distributions would cause or increase an Adjusted Capital Account Deficit for any Member.

(e) Notwithstanding anything to the contrary contained herein, items of income, gain, loss and deduction with respect to property, other than cash, contributed to the Company by a Member shall be allocated among the Members so as to take into account the variation between the basis of the property to the Company and its fair market value at the time of contribution as provided in Section 704(c) of the Code and Treasury Regulations Section 1.704-1(b)(2)(iv)(g).

6.5. Tax Allocations.

(a)

(i) In the event the Gross Asset Value of any Company property is adjusted in accordance with the definition thereof in Article I, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for U.S. federal income tax purposes and its Gross Asset Value in the same manner as under Code Section 704(c) and the Regulations thereunder.

(ii) Any elections or other decisions relating to such allocations shall be made by the Board of Managers in any manner that reasonably reflects the purpose and intention of this Agreement. Allocations pursuant to this Section 6.5(a) are solely for purposes of U.S. federal, state, and local taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Profits, Losses, or other items or distributions pursuant to any provision of this Agreement.

(iii) As long as consistent with the other provisions of this Article VI, to the extent that gain from the disposition of any Company property is, for U.S. federal income tax purposes, taxable as ordinary income by reason of recapture of depreciation or cost recovery deductions taken with respect to such property, such depreciation recapture shall be allocated among the Members in proportion to the depreciation or cost recovery deductions previously allocated among them with respect to such property; provided, however, that in the event the depreciation recapture is less than the aggregate amount of depreciation or cost recovery deductions giving rise to the depreciation recapture allocated among such Members with respect to such property, the depreciation recapture will be allocated among such Members based on the order in time the Members have been allocated such deductions with respect to such property.

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6.6. Assignment During Fiscal Year. If a Member’s Units are Transferred at any time other than the end of a fiscal year of the Company, the allocable share of the various items of Company Profit, Loss and credit will be allocated between the transferor and the transferee in the same ratio as the number of days in the fiscal year, respectively, before and after the Transfer is recognized by the Company, as such number of days bears to the number of days in the entire year or will be allocated as if the books of the Company closed on the day of the Transfer. Such method of allocation will be determined by the transferor and transferee of such Units.

ARTICLE VII.

DISTRIBUTIONS

7.1. Distributions of Available Cash. Except as otherwise provided in this Article VII and subject to Schedule A, Available Cash shall be distributed to the Common Members in such amounts and at such times as shall be determined by the Board of Managers in accordance with their respective Percentage Interests. Except as otherwise provided herein, there will be no obligation by the Company to return to the Members, or to any one of them, any part of their Capital Contributions to the Company, for so long as the Company continues in existence. Notwithstanding any other provision of this Article VII, following PLC’s exercise of its right to sell Common Units pursuant to Section 15.2, no distributions shall be declared or paid upon, or any sum set apart for the payment of distributions upon, any Interests, including distributions pursuant to Sections 7.2 and 7.3, until the Common Put Price is paid in full in cash on all Common Units subject to sale pursuant to Section 15.2.

7.2. Distribution for Taxes. Subject to Schedule A and the last sentence of Section 7.1, the Board of Managers shall make cash distributions to the Members each year in an aggregate amount not less than (i) the estimated taxable income of the Company allocated to such Member pursuant to Article VI, multiplied by (ii) the Applicable Tax Rate and, in the case of a Member that is a corporation for U.S. federal income tax purposes, less (iii) any deductions available to such Member that will reduce such Member’s U.S. federal income tax liability. Such distributions attributable to a specific year will be made by the Board of Managers to the Members on or before March 31 of the year following such year and shall be proportionate to their respective Percentage Interests.

7.3. Distributions of Net Cash from Sales or Refinancings. Subject to Schedule A and the last sentence of Section 7.1 and except as provided in Section 16.2, all Net Cash From Sales or Refinancings shall be distributed to the Common Members, as soon as practicable, in accordance with their respective Percentage Interests.

ARTICLE VIII.

BANK ACCOUNTS, BOOKS OF ACCOUNT,
TAX COMPLIANCE AND FISCAL YEAR

8.1. Bank Accounts; Investments. The Board of Managers or officers of the Company may establish one or more bank accounts into which all Company funds shall be deposited. Funds deposited in the Company’s bank accounts may be withdrawn only to pay Company debts or obligations or to be distributed to the Members under this Agreement; provided, further, that the Board of Managers or officers of the Company may, in the aggregate, pay or caused to be paid on behalf of the Company those ordinary administrative and operating expenses of the Company in an amount not to exceed $50,000 in any twelve month period if the payment thereof would not trigger a default or an Event of Default under the Loan Agreement. Company funds, however, may be invested in such securities and investments as the Board of Managers or officers of the Company may select, until withdrawn for Company purposes. The funds of the Company may not be commingled with the assets of any other Person.

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8.2. Books and Records. The officers of the Company, subject to the oversight of the Board of Managers, shall keep books of account and records relative to the Company’s business. The books shall be prepared in accordance with generally accepted accounting principles consistently applied. The cash method of accounting shall be used by the Company for income tax purposes. The Company’s books and records shall at all times be maintained at the principal business office of the Company or its accountants (and to the extent required by the Act, at the registered office of the Company) and such books and records (or copies thereof) shall be available for inspection at the principal office of the Company (or such other location as shall be determined by the Board of Managers) by the Members or their duly authorized representatives during reasonable business hours. The books and records shall be preserved for at least four (4) years after the term of the Company ends.

8.3. Determination of Profit and Loss; Financial Statements. All items of Company income, expense, gain, loss, deduction and credit shall be determined with respect to, and allocated in accordance with, this Agreement for each Member for each Company fiscal year. Within one hundred and twenty (120) days after the end of each Company fiscal year, the Board of Managers shall cause to be prepared and delivered to each Member of record as of the last day of such fiscal year, at the Company’s expense, unaudited financial statements of the Company for the preceding fiscal year, including, without limitation, a balance sheet, profit and loss statement, statement of cash flows and statement of the balances in the Members’ Capital Accounts, prepared in accordance with the terms of this Agreement and generally accepted accounting principles consistently applied. In addition, as soon as practicable, but in no event later than forty-five (45) days after the close of each fiscal quarter, except the last fiscal quarter of each fiscal year, the Board of Managers shall deliver to each Member of record on the closing date of that fiscal quarter a quarterly report for the fiscal quarter containing such financial and other information with respect to the Company as the Board of Managers deems appropriate including, without limitation, a balance sheet, profit and loss statement, and statement of cash flows, each prepared in accordance with generally accepted accounting principles consistently applied. In addition, the Company shall provide such other information regarding the Company and its Subsidiaries at the reasonable request of any Member.

8.4. Tax Returns and Information. The Members intend for the Company to be treated as a partnership, rather than as an association taxable as a corporation, for U.S. federal income tax purposes. The officers of the Company, subject to the oversight of the Board of Managers, shall prepare or cause to be prepared all U.S. federal, state and local income and other tax returns which the Company is required to file and shall furnish such returns to the Members, together with any other information which any Member may reasonably request relating to such returns, within ninety (90) days after the end of each Company fiscal year.

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8.5. Tax Audits. PrefCo (or such person designated by the Board of Managers pursuant to Section 9.1) shall be the tax matters partner of the Company under Section 6231(a)(7) of the Code (prior to amendment by the Bipartisan Budget Act) and, for tax years ending after December 31, 2017, the partnership representative of the Company under Section 6223(a) of the Code (as amended by the Bipartisan Budget Act) (in each such capacity, the “TMP”). The TMP shall have the authority to designate from time to time a “designated individual” (the “Designated Individual”) to act on behalf of the TMP, and such Designated Individual shall be subject to replacement by the TMP in accordance with Treasury Regulations Section 301.6223-1. For taxable years ending on or before December 31, 2017, the TMP and the Designated Individuals, as applicable, shall have all of the rights, duties, powers and obligations provided for in Sections 6221 through 6232 of the Code (as in effect before amendment by the Bipartisan Budget Act) with respect to the Company subject, in all cases, to the consent of the Board of Managers. For taxable years ending after December 31, 2017, all decisions regarding elections under Section 6221(b) or Section 6226 of the Code (as amended by the Bipartisan Budget Act) shall be made by the Board of Managers pursuant to Section 9.1. Neither the TMP, the Designated Individual, nor the Board of Managers shall make any tax elections without the prior written consent of PLC if any such election made by the TMP, the Designated Individual, or by the Board of Managers would adversely affect in any material respect PLC in a manner that is disproportionate to the other Members (such consent not to be unreasonably withheld). The TMP shall inform the Members of all matters which may come to its attention in its capacity as TMP by giving the Members notice thereof within thirty (30) days after becoming so informed. The TMP and the Designated Individual, as applicable, shall not take any action contemplated by Sections 6222 through 6232 of the Code (prior to amendment by the Bipartisan Budget Act) unless the TMP or the Designated Individual has first given the Members prior written notice of the contemplated action. This provision is not intended to authorize the TMP or the Designated Individual to take any action that is left to the determination of the individual Member under the Code.

8.6. Fiscal Year. The Company fiscal year shall be the calendar year.

8.7. Bipartisan Budget Act. The Members acknowledge that the Bipartisan Budget Act repeals the currently existing audit provisions for tax partnerships effective for taxable years beginning after December 31, 2017, and potentially makes tax partnerships liable for income taxes attributable to adjustments of partnership items of income, gain, loss, deduction or credit. The Board of Managers is hereby authorized to address the audit provisions of the Bipartisan Budget Act as the Board of Managers deems appropriate. This authority shall include the authority to amend this Agreement; for tax years beginning after December 31, 2017; to designate a person to act as TMP, and to make (or cause the TMP or the Designated Individual to make) any election under the Bipartisan Budget Act provisions including requiring Members and assignees or former Members and assignees to file amended tax returns to reflect any such adjustments as provided in Code Section 6225(c)(2), to elect under Code Section 6226 to cause Members and assignees to take such adjustments into account on their own tax returns or, if applicable, in accordance with Code Section 6221(b), to cause the Company to elect out of treatment under revised subchapter C of Chapter 63 of the Code; provided, that the Board of Managers shall not make any election under Code Section 6226 or Code Section 6221(b) without first notifying the Members and obtaining the approval of a Required Interest of the Members; provided, further, that the TMP or the Designated Individual shall not make any tax elections or settle or compromise any tax liability or tax audit without the prior written consent of PLC if any such election, settlement or compromise made by the TMP or the Designated Individual would adversely affect in any material respect PLC in a manner that is disproportionate to the other Members (such consent not to be unreasonably withheld).

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ARTICLE IX.

BOARD OF MANAGERS

9.1. Management by the Board of Managers. Subject to the consent of the Members where required by this Agreement or by the Act, the Company will be managed by the Board of Managers. Unless otherwise set forth herein, all decisions relating to the business and affairs of the Company shall be made by the Board of Managers or by the officers of the Company, subject to the oversight of the Board of Managers. Except as otherwise expressly provided in this Agreement, all decisions required or permitted to be made by the Board of Managers under this Agreement may be made and any necessary action taken upon the majority vote of the Board of Managers. In making such decisions, the Board of Managers will exercise ordinary, prudent business judgment. The Managers shall be subject, with respect to the Company and the Members, to the same fiduciary duties as the board of directors of a Delaware corporation owes to the corporation and its stockholders, except that the PLC Manager shall not have such duties except that at all times it shall act in accordance with standards of good faith and fair dealing and shall otherwise be entitled to act in the best interests of PLC.

9.2. No Control By Members. No Member (except a Member who may also be a Manager or officer, and then only in such capacity within the scope of his, her or its authority hereunder) will participate in or have any control over the Company business or will have any authority or right to act for or bind the Company. All Members hereby consent to the exercise by the Board of Managers of the powers conferred on the Board of Managers by this Agreement.

9.3. Number; Election. There shall be up to five (5) Managers of the Company, who need not be a Member or a resident of the State of Delaware. The number of Managers may be increased or decreased from time to time by amendment to this Agreement, subject to Section 9.4.

9.4. Nomination. PrefCo and PLC shall be entitled to nominate Managers as set forth below:

(a) PrefCo shall be entitled to nominate up to four (4) Managers (the “PrefCo Managers”) so long as PrefCo continues to hold any Interest.

(b) PLC shall be entitled to nominate one (1) Manager (the “PLC Manager”) so long as PLC continues to hold any Interest.

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9.5. Initial Board of Managers. The initial Board of Managers of the Company shall consist of the following Managers:

Name	Type of Nominee
Eric Blue	PrefCo Manager
Todd White	PrefCo Manager
Michael C. Cassetta	PLC Manager

Each of such individuals shall hold his office until his or her death, resignation or removal or until his or her successor shall thereafter have been duly elected and qualified. Each of the parties by signing this Agreement consents to the election of the nominees to the initial Board of Managers as listed above, effective immediately as of the date of this Agreement.

9.6. Removal of Managers. Except as otherwise provided in this Section 9.6 or in Section 9.7, each Member agrees not to take any action to remove, with or without cause, any Manager of the Company. Notwithstanding the foregoing:

(a) If any nominator or nominators would no longer be entitled to nominate a Manager pursuant to Section 9.4, such nominator or nominators shall immediately remove such Manager or cause such Manager to, and such Manager shall, resign.

(b)

(i) PrefCo shall at all times have the right to cause the other Members to remove and/or replace, with or without cause, any of the PrefCo Managers.

(ii) PLC shall at all times have the right to cause the other Members to remove and/or replace, with or without cause, any of the PLC Managers.

If a Manager shall fail to resign as contemplated by clause (a) above or if any of the Members determine to remove any Manager as contemplated in clause (b) above and any such Manager shall fail to resign, then the Members shall immediately cause a special meeting of Members of the Company to be called or shall act by written consent without a meeting, for the purpose of removing any such Manager, and each Member agrees to vote, in person or by proxy, his, her or its Units which are entitled to vote at such meeting, or to execute a written consent in respect of such Units, as the case may be, in favor of such removal and to take all other necessary and appropriate action to cause such removal.

9.7. Vacancies. If a vacancy is created on the Board of Managers by reason of the death, disability, removal (in accordance with Section 9.6) or resignation of any Manager, the party which, under Section 9.4 is entitled to nominate the Manager whose death, disability, removal or resignation resulted in such vacancy shall be entitled to designate in writing a new Manager in accordance with the nomination procedures set forth in Section 9.4, and such nominated Manager shall be deemed to fill such vacancy upon the Company’s receipt of such written designation.

9.8. Action by Members to Reconstitute Board of Managers. If at any time and for any reason, no Managers have been nominated, designated or are otherwise available to serve under this Article IX, then, at the request of any Member, the Company shall cause a special meeting of Members to be held or shall act by written consent of Members without a meeting for the purpose of taking whatever action may be necessary to assure that the Board of Managers is constituted as set forth in this Article IX as promptly as practicable.

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9.9. Certain Covenants. Each Member entitled to vote on such matters agrees to vote, in person or by proxy, all Units over which he, she or it may exercise voting power, at any annual meeting of Members of the Company called for the purpose of voting on the election of Managers or to execute written consents of Members without a meeting with respect to the election of Managers, or, if necessary, to cause its nominee or nominees on the Board of Managers, if any, to vote in favor of the election of each Manager nominated in accordance with Sections 9.4 and 9.7 and against any other nominees and in favor of the removal of any Manager who is required to be removed or resign pursuant to Section 9.6 or 9.7 and to take all other necessary and appropriate actions to cause such events to occur. The Company shall use its best efforts to cause individuals to be so nominated, elected or removed, as the case may be, in accordance with the applicable provisions of this Agreement. Each Member shall vote all Units over which he, she or it may exercise voting power and shall take all other actions necessary and appropriate (including, without limitation, removing any Manager) to ensure that the Certificate of Formation (as amended) does not at any time conflict with the provisions of this Agreement and shall not vote to approve (or consent to the approval of) any amendment to the Certificate of Formation (as amended) which would be inconsistent with this Agreement.

9.10. Meetings of the Board of Managers. Meetings of the Board of Managers may be called by any Manager; provided, that the Board of Managers shall meet no less frequently than quarterly. The notice of a meeting shall state the nature of the business to be transacted at such meeting. Notice of any meeting shall be given to all Managers not less than ten (10) and not more than thirty (30) days prior to the date of the meeting. Except as otherwise expressly provided in this Agreement or required by the express provisions of the Act, the majority vote of the Managers shall control all decisions for which the vote of the Board of Managers is required hereunder. The presence of any Manager at a meeting shall constitute a waiver of notice of the meeting with respect to such Manager, unless such Manager is present solely to challenge the validity of the meeting. The Managers may, at their election, participate in any regular or special meeting by means of conference telephone or similar communications equipment by means of which all Persons participating in the meeting can hear each other. A Manager’s participation in a meeting pursuant to the preceding sentence shall constitute presence in person at such meeting for all purposes of this Agreement.

9.11. Action Without a Meeting. Notwithstanding anything to the contrary in this Agreement, any action that may be taken at a meeting of the Board of Managers may be taken without a meeting if a consent in writing setting forth the action so taken is approved by the number of Managers required pursuant to this Agreement, which consent may be executed in multiple counterparts, and shall take effect when such consent is delivered to any Managers who did not so consent in writing. In the event any action is taken pursuant to this Section 9.11, it shall not be necessary to comply with any notice or timing requirements set forth in Section 9.10.

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9.12. Restrictions on Certain Board Actions. Notwithstanding anything contained in this Agreement to the contrary, the Board of Managers shall not take any action with respect to any of the following matters except upon the prior approval of the PLC Manager:

(a) amend this Agreement (except as provided in Section 17.8);

(b) liquidate or dissolve the Company;

(c) change or reorganize the Company into any other legal form; or

(d) do any act in contravention of this Agreement

9.13. Liability. The Managers shall perform their duties under this Agreement with ordinary prudence and in a manner reasonable under the circumstances. A Manager shall not be liable to the Company or the Members for any loss or liability caused by any act, or by the failure to do any act, unless such loss or liability arises from the Manager’s intentional misconduct, gross negligence or fraud. In no event shall any Manager be liable by reason of a mistake in judgment made in good faith, or action or lack of action in reasonable reliance on the advice of legal counsel.

9.14. Compensation. The Managers shall not be entitled to receive compensation from the Company for services rendered on behalf of or for the benefit of the Company. Each Manager shall, however, be reimbursed at any reasonable time and from time to time for all reasonable out-of-pocket costs and expenses that such Manager incurs in connection with performing services as a Manager of the Company.

9.15. Board Observer. PLC shall have the right to appoint a single observer to the Board of Managers (the “Observer”), which Person shall be entitled to attend (or at the option of the Observer, monitor by telephone) all meetings of the Board of Managers (other than any portions of any meetings which involve the exchange of privileged attorney-client information or work product) but shall not be entitled to vote on, or consent to or otherwise approve any activity or policy taken of adopted by the Board of Managers. The Observer shall receive all reports, meeting materials, notices, written consents, and other materials, provided to the Board of Managers including, but not limited to, consents in lieu of meetings (in each case other than any portions of such reports or materials that contain or attorney-client privileged information or work product) as and when provided to the Board of Managers. The Observer shall be subject to and required to sign a mutually acceptable confidentiality and non-disclosure agreement before attending the initial meeting of the Board of Managers or reviewing any information provided thereby or pertaining thereto. For the avoidance of doubt, in no event shall the Observer have any fiduciary duties or be considered or deemed to be a manager of the Company or be required to be present for purposes of a quorum. The Company shall reimburse PLC for the reasonable travel expenses incurred by the Observer in connection with attendance at or participation in meetings in person or by telephone to the same extent as Managers are reimbursed for such expenses. The initial Observer shall be Adam Gittes.

ARTICLE X.

OFFICERS

10.1. Officers. If the Board of Managers determines the Company should have officers, the officers of the Company shall be elected by a majority vote of the Managers. An officer of the Company may also be a Manager. The Board of Managers may choose a President, one or more Vice Presidents, a Chief Operating Officer, a Chief Financial Officer, a Secretary, one or more Assistant Secretaries and such other officers as the Board of Managers may determine. Any two or more offices may be held by the same individual.

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10.2. President. The President shall be the principal executive officer of the Company and, subject to the control of the Board of Managers, shall in general supervise and control all of the business and affairs of the Company. He or she shall, when present, preside at all meetings of the Members. He or she may sign any contracts or other instruments except those which shall be required by law, by this Agreement or by the Board of Managers to be otherwise signed or executed, and in general shall perform all duties as may be prescribed by the Board of Managers from time to time.

10.3. Vice Presidents. Each Vice President shall have such powers and duties as the Board of Managers or the President may prescribe or delegate to him or her.

10.4. Chief Operating Officer. The Chief Operating Officer shall, subject to the control of the Board of Managers and the President, supervise and control the day-to-day administrative affairs of the Company. He or she may sign any contracts or other instruments except those which shall be required by law, by this Agreement or by the Board of Managers or the President to be otherwise signed or executed, and in general shall perform all duties as may be prescribed by the Board of Managers and the President from time to time.

10.5. Chief Financial Officer. The Chief Financial Officer shall, subject to the control of the Board of Managers and the President, have the custody of the Company’s funds, shall keep full and accurate accounts of receipts and disbursements, and shall deposit all monies in the name and to the credit of the Company in such depositories as may be designated by the Board of Managers or the President. The Chief Financial Officer shall also have the duties and responsibilities as the treasurer of the Company and shall disburse the funds thereof as may be ordered by the Board of Managers or the President. He or she shall render to the Board of Managers at its regular meetings, or at such other times as the Board of Managers so requires, an account of all his or her transactions as Chief Financial Officer, and of the financial condition of the Company. The Chief Financial Officer shall perform such other duties and have such other powers as the Board of Managers or the President may from time to time prescribe.

10.6. Secretary. The Secretary shall: (i) prepare and keep the minutes of the meetings of the Board of Managers and the Members in one or more books provided for that purpose; (ii) see that all notices are duly given in accordance with the provisions of this Agreement or as required by law; (iii) be custodian of the Company records; (iv) keep a register of the post office address of each Member; (v) have general charge of the membership books of the Company; (vi) authenticate records of the Company; and (vii) in general perform all duties incident to the office of the Secretary and such other duties as from time to time may be assigned to him or her by the President or by the Board of Managers. In the absence of the Secretary, or in the event of his or her inability or refusal to act, the Assistant Secretary, if any, shall perform all duties incident to the office of the Secretary and such other duties as from time to time may be assigned to him or her by the President or by the Board of Managers.

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10.7. Compensation. The officers of the Company shall be entitled to receive such compensation, if any, from the Company for services rendered on behalf of or for the benefit of the Company as shall be determined from time to time by the Board of Managers. In addition, each officer of the Company shall be reimbursed at any reasonable time and from time to time for all out-of-pocket costs and expenses that such officer incurs in connection with performing services as an officer of the Company.

10.8. Removal and Vacancies. Each officer of the Company shall hold office until his or her successor is chosen and qualified in his or her stead or until his or her death or until his or her resignation or removal from office. Any officer elected or appointed by the Board of Managers may be removed either for or without cause by the Board of Managers, but such removal shall be without prejudice to the contract rights, if any, of the individual so removed. If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Managers.

ARTICLE XI.

RIGHTS, STATUS AND COVENANTS OF MEMBERS

11.1. General. Except to the extent expressly otherwise provided in this Agreement, the Members shall not take part in the management or control of the Company business, or sign for or bind the Company, such powers being vested exclusively in the officers and the Board of Managers.

11.2. Voting Rights. The Members shall have the right to vote on all Company matters specified under the Act. Any matter submitted to a vote of the Members hereunder shall require the approval of the PLC Manager only as specifically provided herein. When voting, Members shall not vote per capita, but based upon the Percentage Interest held by each Member.

11.3. Limitation of Liability. Except as otherwise specified in Article IV of this Agreement or the Act, no Member shall have any personal liability whatsoever solely by reason of his, her or its status as a Member of the Company, whether to the Company, the Board of Managers or any creditor of the Company, for the debts of the Company or any of its losses beyond the amount of the Member’s obligation, if any, to contribute his, her or its Capital Contribution not previously contributed to the Company.

11.4. Bankruptcy; Death; Etc. None of the Bankruptcy, death, disability, declaration of incompetence or incapacity, or dissolution of a Member shall dissolve the Company, but the rights of a Member to share in the Profits and Losses of the Company and to receive distributions of Company funds shall, on the happening of such an event, devolve upon the Member’s estate, legal representative or successor in interest, as the case may be, subject to this Agreement, and the Company shall continue as a limited liability company under the Act. The Member’s estate, representative or successor in interest shall be entitled to receive distributions and allocations with respect to such Member’s Units and shall be liable for all of the obligations of the Member.

11.5. Other Activities of the Members. Each Member will be free to own or otherwise participate directly or indirectly in the ownership or operation of any activity of any Person. Neither the Company nor any Member shall have any rights, by virtue of this Agreement, in or to the other business ventures of any other Member (or any officers, directors, employees or Affiliates of any Member) or to the income or profits derived therefrom by any such Persons.

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ARTICLE XII.

MEETINGS AND MEANS OF VOTING

12.1. Meetings of the Members.

(a) Meetings of the Members may be called by the Board of Managers and shall be promptly called upon the written request of any Member. The notice of a meeting shall state the nature of the business to be transacted at such meeting, and actions taken at any such meeting shall be limited to those matters specified in the notice of the meeting. Notice of any meeting shall be given to all Members not less than ten (10) and not more than thirty (30) days prior to the date of the meeting. Members may vote in person or by proxy at such meeting.

(b) Except as otherwise expressly provided in this Agreement or required by the express provisions of the Act, the vote of a Majority Interest of the Members shall control all decisions for which the vote of the Members is required hereunder. Each Member’s voting power shall be the same as that Member’s Percentage Interest at the time of the vote. The presence of any Member at a meeting shall constitute a waiver of notice of the meeting with respect to such Member, unless such Member is present solely to challenge the validity of the meeting. The Members may, at their election, participate in any regular or special meeting by means of conference telephone or similar communications equipment by means of which all Persons participating in the meeting can hear each other. A Member’s participation in a meeting pursuant to the preceding sentence shall constitute presence in person at such meeting for all purposes of this Agreement.

12.2. Vote By Proxy. Each Member may authorize any Person to act on the Member’s behalf by proxy on all matters in which a Member is entitled to participate, whether by waiving notice of any meeting, or voting or participating at a meeting. Every proxy must be signed by the Member authorizing such proxy or such Member’s attorney-in-fact.

12.3. Conduct of Meeting. Each meeting of Members shall be conducted by a Person appointed by the Board of Managers. The meeting shall be conducted pursuant to such rules as may be adopted by the Person appointed by the Board of Managers conducting the meeting unless the Board of Managers adopts other such rules.

12.4. Action Without a Meeting. Notwithstanding anything to the contrary in this Agreement, any action that may be taken at a meeting of the Members may be taken without a meeting if a consent in writing setting forth the action so taken is approved by a Majority Interest or otherwise as set forth herein, as appropriate, which consent may be executed in multiple counterparts. In the event any action is taken pursuant to this Section 12.4, it shall not be necessary to comply with any notice or timing requirements set forth in Section 12.1. Prompt written notice of the taking of any action without a meeting shall be given to the Members who have not consented in writing to such action.

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12.5. Closing of Transfer Record; Record Date. For the purpose of determining the Members entitled to notice of or to vote at any meeting of Members, any reconvening thereof, or to act by consent, the Board of Managers may provide that the transfer record shall be closed for at least two (2) days immediately preceding such meeting (or such shorter time as may be reasonable in light of the period of the notice) or the first solicitation of consents in writing. If the transfer record is not closed and if no record date is fixed for determining the Members entitled to notice of or to vote at a meeting of Members or by consent, the date on which the notice of the meeting is mailed or the first written consent is received by the Board of Managers shall be the record date for such determination.

ARTICLE XIII.

INDEMNIFICATION AND INSURANCE

13.1. Indemnification. To the fullest extent permitted by law, the Company (but not the Members) will indemnify each Member, its Affiliates, the directors, managers, officers, employees and agents of each Member or its Affiliates, and each Manager, officer, employee and agent of the Company and the Liquidator (each an “Indemnified Party” and collectively the “Indemnified Parties”), and save and hold each Indemnified Party harmless, from and in respect of (i) all fees, costs and expenses incurred in connection with or resulting from any claim, action or demand against an Indemnified Party (including any claim, action or demand arising under common law or statute), including attorneys’ fees, that arise out of or in any way relate to the Company or its Subsidiaries, or their respective properties, business or affairs, or that arise by reason of any of them being a Manager, officer, employee or agent of a Member or the Company (provided, that, in such capacity, such Person was performing services on behalf of the Company) or a director, manager, officer or employee of any Affiliate of a Member (whether or not such Person continues to serve in such capacity at the time such claim, action or demand is brought or threatened; and provided, that, in such capacity, such Person was performing services on behalf of the Company), and (ii) all claims, actions and demands and any resulting losses or damages (including all claims, actions and demands arising under common law or statute), including amounts paid in settlement or compromise of any claim, action or demand; provided, however, that this indemnity will not extend to conduct by an Indemnified Party if it is determined by a court of competent jurisdiction that the Person acted so as to be liable for actual fraud, willful misfeasance, gross negligence or reckless disregard of the duties involved in the conduct of his, her or its office, which liability will survive the Person’s ceasing to serve in such capacity and any dissolution of the Company. The foregoing is intended to satisfy any requirements of applicable law that indemnification be authorized prior to indemnifying any Person. The foregoing right of indemnification will be in addition to any rights to which the Indemnified Parties may be entitled under the Act or otherwise and will inure to the benefit of the executors, administrators, personal representatives, successors or assigns of each Indemnified Party.

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13.2. Expenses. The Company shall pay the expenses incurred by an Indemnified Party in defending a civil or criminal action, suit or proceeding, other than an action brought by the Company, upon receipt of an undertaking by the Indemnified Party to repay payments made by the Company if the Indemnified Party is determined not to be entitled to indemnification as provided herein. The Board of Managers will have the power on behalf of the Company to indemnify, on terms generally consistent with this Article XIII, any other Person who serves at the request of a Member as a director, manager, officer, employee or agent of an Affiliate of the Company or a Member or Manager, against any liabilities that may be incurred by reason of the Person’s being a director, manager, officer, employee or agent of an Affiliate of the Company or a Member or Manager. Any right of indemnity granted under this Article XIII may be satisfied only out of the assets of the Company and no Member will be personally liable with respect to any claim for indemnification

13.3. Insurance. The Company will have the power to purchase and maintain insurance in reasonable amounts on behalf of the Company, as determined by the Board of Managers and the Indemnified Parties against any liability incurred by them in their capacities as such, whether or not the Company has the power to indemnify them against such liability. The Company may also purchase and maintain insurance for the protection of any Indemnified Party against similar liabilities, whether or not the Company has the power to indemnify such Person against such liabilities.

13.4. No Third-Party Beneficiaries. The indemnification provided in this Article XIII is for the benefit of the Indemnified Parties and their respective executors, administrators, personal representatives, successors and assigns, and shall not be deemed to create any right to indemnification for any other Persons.

13.5. Savings Clause. If all or any portion of this Article XIII shall be invalidated on any ground by a court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless a Person to be indemnified pursuant to this Article XIII as to costs, charges and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, to the full extent permitted by any applicable portion of this Article XIII that shall not have been invalidated and to the fullest extent permitted by applicable law.

ARTICLE XIV.

TRANSFER OF UNITS AND SUBSTITUTED/ADDITIONAL MEMBERS

14.1. Transfers by Members. Except for a Transfer to a Permitted Transferee of a Member, and except as otherwise set forth in this Article XIV and Article XV, no Member may Transfer all or any part of his, her or its Units without the prior written consent of the Board of Managers; provided, however, that PrefCo shall not be entitled to Transfer all or any part of its Units for so long as any preferred equity remains outstanding at PrefCo. The Board of Managers may withhold their consent to any Transfer, except for Transfers otherwise permitted under this Agreement, for which consent is required, with or without reasonable cause. If a Member receives the prior consent of the Board of Managers, he, she or it may Transfer his, her or its Units if the following conditions are satisfied:

(a) the Member and his, her or its transferee execute, acknowledge and deliver to the Board of Managers such instruments of transfer and assignment with respect to such transaction as are in form and substance satisfactory to the Board of Managers;

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(b) unless waived in writing by the Board of Managers, the Member delivers to the Board of Managers an opinion of counsel satisfactory to the Board of Managers, covering such securities and tax laws and other aspects of the proposed Transfer as the Board of Managers may reasonably request; and

(c) the Member has furnished to the transferee a written statement showing the name and taxpayer identification number of the Company in such form and together with such other information as may be required under Section 6050K of the Code and the Regulations thereunder.

Any Member who thereafter Transfers all or any portion of his, her or its Units as authorized in accordance with this Section 14.1 shall promptly notify the Board of Managers of such Transfer and shall furnish to the Board of Managers the name and address of the transferee and such other information as may be required under Section 6050K of the Code and the Regulations thereunder.

14.2. Substituted Member. Except for a Transfer to a Permitted Transferee of a Member, no Person taking or acquiring, by whatever means, the Units of any Member in the Company, shall be admitted as a Substituted Member without the prior approval of the Board of Managers at the time the proposed Substituted Member is being considered for approval. In addition, no Person (including any Permitted Transferee) shall be admitted as a Substituted Member unless such Person:

(a) Elects to become a Substituted Member by delivering notice of such election to the Company; and

(b) Executes, acknowledges and delivers to the Company such other instruments as the Board of Managers may reasonably request to effect the admission of such Person as a Substituted Member, including, without limitation, the written acceptance and adoption by such Person of the provisions of this Agreement.

14.3. Basis Adjustment. Upon the Transfer of all or part of any Units, at the request of the transferee of the Units, the Board of Managers may, with the written consent of PLC, cause the Company to elect, pursuant to Section 754 of the Code or the corresponding provisions of subsequent law, to adjust the basis of the Company properties as provided by Sections 734 and 743 of the Code.

14.4. Admission of Additional Members. The Board of Managers is authorized to issue additional Units and to admit additional Persons to the Company as Additional Members, which in all instances shall comply with applicable securities laws. The Board of Managers shall have discretion in determining the consideration (which must be fully paid in cash or property at the time of subscription), and the terms and conditions with respect to the Company for admitting Additional Members. The Board of Managers will not permit any Person to become an Additional Member unless such Person certifies in writing to the Board of Managers that the Person agrees to be bound by the terms of this Agreement. The Board of Managers shall do all things necessary to comply with the Act and is authorized to do all things it deems to be necessary or advisable in connection with the Company for admitting any Additional Member, including, but not limited to, complying with any statute, rule, regulation or guideline issued by any Governmental Authority.

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14.5. Transfer Procedures. The Board of Managers shall establish a Transfer procedure consistent with this Article XIV to ensure that all conditions precedent to the admission of a Substituted Member or Additional Member have been complied with.

14.6. Invalid Transfer. No Transfer of Units that is in violation of this Article XIV shall be valid or effective, and the Company shall not recognize any improper Transfer for the purposes of making allocations, payments of profits, return of Capital Contributions or other distributions with respect to such Units, or part thereof. The Company may enforce the provisions of this Article XIV either directly or indirectly or through its agents by entering an appropriate stop transfer order on its books or otherwise refusing to register or transfer or permit the registration or transfer on its books of any proposed Transfers not in accordance with this Article XIV.

14.7. Distributions and Allocations in Respect of a Transferred Units. If any Member Transfers any part of his, her or its Units during any accounting period in compliance with the provisions of this Article XIV, Company income, gain, deductions and losses attributable to such Units for the respective period shall be divided and allocated between the transferor and the transferee by taking into account their varying interests during the appropriate accounting period in accordance with Code Section 706(d), using the daily proration method. All Company distributions on or before the effective date of such Transfer shall be made to the transferor, and all such Company distributions thereafter shall be made to the transferee. Solely for purposes of making Company tax allocations and distributions, the Company shall recognize a Transfer on the day following the day of such Transfer. Neither the Company nor the Board of Managers shall incur any liability for making Company allocations and distributions in accordance with the provisions of this Section 14.7, whether or not the Board of Managers or the Company have knowledge of any Transfer of any Units or part thereof where the transferee is not admitted as a Substituted Member.

14.8. Additional Requirements of Admission to Company. No Transfer of any Units shall be effective or valid and no Person shall be admitted as a Member if such Transfer or admission would have the effect of causing the Company to be re-classified for U.S federal income tax purposes as an association (taxable as a corporation under the Code), or would not meet applicable exemptions from securities registration and securities disclosure requirements provided under U.S. federal and state securities laws.

14.9. Amendment to Exhibit A. The Board of Managers shall amend Exhibit A attached to this Agreement from time to time to reflect the admission of any successor Member, Substituted Members or Additional Members, or the increase, reduction or termination of any Member’s Interest.

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14.10. Pledge of Company Units to a Lender.

(a) Notwithstanding any provision, including Sections 14.1 and 14.2, to the contrary in this Agreement, the Units issued hereunder may be assigned, pledged, hypothecated, encumbered or transferred to a lender (or agent acting for a group of lenders) as collateral for PrefCo’s indebtedness under the Loan Agreement or for any other Member’s indebtedness, liabilities and obligations to such lender (or agent and group of lenders), and any such assigned, pledged, hypothecated, encumbered or transferred Units shall be subject to the rights under any collateral documentation governing or pertaining to such assignment, pledge, hypothecation, encumbrance or transfer of such lender, agent, lender or group of lenders. Upon the transfer of all of its Units in the Company to such lender, agent, lender or group of lenders, the Member shall cease to be a Member of the Company and shall have no further rights or obligations under this Agreement. For the avoidance of doubt, any such sale, assignment, pledge, hypothecation, encumbrance, transfer or disposition of Units in the Company shall be inclusive of economic, management and voting rights (including, without limitation, the rights to participate in the management of the business and the business affairs of the Company, to share profits and losses, to receive distributions, and to receive allocations of income, gain, loss, deduction, credit or similar item).

(b) Without limiting the foregoing, the right of such agent, lender or group of lenders to enforce their rights and remedies under such collateral documentation is hereby acknowledged and any such action taken in accordance therewith shall be valid and effective under this Agreement. Any assignment, sale or other disposition of the Units by such agent, lender or group of lenders pursuant to any such collateral documentation in connection with the exercise of any rights and powers of such agent, lender or group of lenders shall be valid and effective for all purposes to transfer all right, title and interest of the applicable Member hereunder to the assignee of such Member in accordance with such collateral documentation and applicable law (including, without limitation, the rights to participate in the management of the business and the business affairs of the Company, to share profits and losses, to receive distributions and to receive allocation of income, gain, loss, deduction, credit or similar item) and such assignee shall be a Member of the Company with all rights and powers of a Member. Further, no such agent, lender or group of lenders or any such assignee shall be liable for the obligations of any Member assignor to make capital contributions. So long as any assignment, pledge, hypothecation, encumbrance or transfer of any Member’s Units is in effect, this provision shall inure to the benefit of such assignee, pledgee, transferee, etc. and its successors, assigns and/or designated agents, as an intended third party beneficiary, and no amendment, modification or waiver of, or consent with respect to, this provision shall in any event be effective without the prior written consent of such assignee, pledgee, transferee, etc.

ARTICLE XV.

DRAG ALONG AND PUT RIGHTS

15.1. Drag-Along Rights.

(a) If, at any time the Company, with the prior approval of the Board of Managers, enters into an agreement with respect to a liquidity event and the proposed purchaser desires to purchase all of the Units then issued and outstanding in connection therewith, then the Company shall have the right to require each Member to participate in such Transfer and sell all of his, her or its Common Units to the proposed purchaser on the same terms and conditions as have been approved by the Board of Managers, including, without limitation, the price per Common Unit. At least ten (10) days prior to the date of any such proposed Transfer, the Company, shall provide all of the Members with a notice of the proposed Transfer, stating the intent of the Board of Managers to make such Transfer, the kind and amount of consideration to be paid for the Units and the name of the proposed purchaser (the “Buyout Notice”).

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(b) All Members shall take all such reasonable actions as may be necessary or appropriate to effect the transactions contemplated by this Section 15.1 and the purpose and intent hereof.

(c) Each Member hereby irrevocably and severally appoints and constitutes each Manager as such Member’s true and lawful attorney in fact, with full power and authority, on such Member’s behalf and in such Member’s name, to execute, acknowledge, swear to, and deliver such documents and filings, including, without limitation, consents, and assignments, that such attorney in fact, in its sole and absolute discretion deems necessary to accurately effectuate the exercise of any options and the Transfer of the Member’s Units, and to otherwise reflect a Transfer of such Member’s Units pursuant to Section 15.1(a). This power of attorney is a special power coupled with an interest and is irrevocable, and may be exercised by the attorney described herein at any time that is appropriate or necessary to consummate the transaction contemplated in the Buyout Notice. Such power of attorney shall survive the death or legal disability of a Member and any resulting Transfer of such Member’s Units.

(d) In connection with any Transfer pursuant to this Section 15.1: (i) PLC shall not be required to make any representations or warranties in connection therewith other than with respect to title and ownership to the Units being conveyed by PLC and its authority with respect thereto; (ii) PLC’s indemnification obligations shall be limited to the lesser of (x) the amount of consideration received by PLC in such Transfer and (y) PLC’s pro rata portion of such indemnification obligation; (iii) PLC shall only be responsible for any indemnification obligation on a several (and not joint and several) basis; (iv) unless PLC has violated its obligations or good faith and fair dealing, PLC’s indemnification obligations shall be limited to representations and warranties it makes regarding ownership of its equity in the Company; and (v) PLC shall not be required to enter into or be bound by any restrictive covenants (including non-competition and non-solicitation provisions) in connection with such Transfer pursuant to this Section 15.1.

15.2. Put Right.

(a) At any time during the Exercise Period, PLC may, at its election, sell to the Company all of PLC’s Common Units for a purchase price, per Common Unit, equal to the fair market value of such Common Units as determined in accordance with Section 15.2(c) (the “Common Put Price”). The Common Put Price shall be determined based on the value of the Common Units of the Company that would be extrapolated from the enterprise value of the Company as if sold in an orderly auction process intended to maximize value, multiplied by the Percentage Interest of the Common Units to be sold.

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(b) If PLC desires to exercise its right to sell Common Units pursuant to this Section 15.2, PLC shall provide notice (a “Common Put Notice”) requesting that the Company repurchase all of Common Units then held thereby.

(c) Promptly following receipt by the Company of a Common Put Notice, PLC and the Company shall negotiate in good faith to mutually agree on the Common Put Price. If PLC and the Company are unable to mutually agree on the Common Put Price within twenty (20) days of the delivery of the Common Put Notice, then promptly thereafter, but in no event later than thirty (30) days following such delivery of the Common Put Notice, the parties shall retain an Independent Appraiser to determine the Common Put Price by determining the enterprise value of the Company and calculating the amount that would be distributed to PLC if such enterprise value was applied to the outstanding capital structure of the Company (a “Valuation”), which determination by the Independent Appraiser shall be provided to PLC and the Company within thirty (30) days of the Independent Appraiser’s engagement and shall be final and binding on the parties. The cost of the Valuation will be borne fifty percent (50%) by PLC and fifty percent (50%) by the Company. The sale of the Common Units contemplated hereby shall be completed on the seventh (7) Business Days after completion of the Valuation, payable in cash by wire transfer of immediately available funds. PLC shall have the right to irrevocably rescind its decision to sell its Common Units to the Company pursuant to this Section 15.2 for a period of five (5) Business Days following completion of the Valuation.

(d) Notwithstanding the provisions of Section 15.2(c), the Company shall not be obligated to purchase any Common Units pursuant to this Section 15.2 to the extent there exists a Common Delay Condition. In such event, the Company shall notify PLC in writing as soon as practicable of such Common Delay Condition and shall permit PLC, within ten (10) days of receipt thereof, to rescind its decision to sell its Common Units to the Company pursuant to this Section 15.2. If PLC does not rescind its decision to sell its Common Units to the Company pursuant to this Section 15.2, the Company shall consummate the purchase of Common Units on the applicable date set forth in Section 15.2(c) with respect to as many Common Units as can be purchased without running afoul of the Common Delay Condition and thereafter pay the Common Put Price with respect to as many of the other Common Units to be purchased as can be purchased without running afoul of the Common Delay Condition at the earliest practicable date or dates, in which case, the Common Put Price shall accrue interest at the Common Distribution Rate.

(e) At the closing of any sale and purchase pursuant to this Section 15.2, PLC shall deliver to the Company a reasonable instrument of transfer against receipt of the Common Put Price.

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ARTICLE XVI.

LIQUIDATION AND DISSOLUTION OF THE COMPANY

16.1. Dissolution Events. The Company will be dissolved upon the happening of any of the following events:

(a) all or substantially all of the assets of the Company are sold; or

(b) a document is signed by a Required Interest of the Members which states their election to dissolve the Company.

16.2. Method of Liquidation.

(a) Generally. Upon the happening of any of the events specified in Section 16.1, the Board of Managers or any liquidating trustee elected by the Board of Managers including the PLC Manager, will commence to wind up the Company’s affairs as promptly as practicable, unless the Board of Managers or the liquidating trustee (either, the “Liquidator”) determines that an immediate liquidation of Company assets would cause undue loss to the Company, in which event the liquidation may be deferred for a time determined by the Liquidator to be appropriate. Assets of the Company may be liquidated or distributed in kind, as the Liquidator determines to be appropriate. The Members will continue to share Profits and Losses, Available Cash and Net Cash From Sales or Refinancings during the period of liquidation in the manner set forth in Article VI and Article VII.

(b) Distribution of Liquidation Proceeds. The proceeds from liquidation of the Company, including repayment of any debts of Members to the Company and any Company assets that are not sold in connection with the liquidation will be applied in the following order of priority:

(i) first, to payment of the debts and satisfaction of the other obligations of the Company, including without limitation debts and obligations to Members;

(ii) second, to the establishment of any reserves deemed appropriate by the Liquidator for any liabilities or obligations of the Company, which reserves will be held for the purpose of paying liabilities or obligations and, after the expiration of a period the Liquidator deems appropriate, will be distributed to the Members in proportion to their respective Percentage Interests; and

(iii) third, to the Members in accordance with Schedule A and Article VII.

Upon liquidation, prior to making any liquidating distributions hereunder, the Liquidator is hereby authorized and directed to make any and all special allocations of Profits, Losses and items of Company gain and deduction in a manner which results in the Members’ respective Capital Accounts having balances equal to (or as close thereto as possible) the aggregate liquidating distribution that each such Member shall receive hereunder.

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16.3. Member’s Deficit Capital Account. If any Member has a deficit balance in his, her or its Capital Account (after giving effect to all contributions, distributions, and allocations for all taxable years, including the year during which such liquidation occurs), such Member will have no obligation to make any contribution to the capital of the Company with respect to such deficit, and such deficit will not be considered a debt owed to the Company or any other Person for any purpose whatsoever.

16.4. Liquidator Appointed by Court. If within thirty (30) days following the date of dissolution, or other time period provided in Section 16.2, a Liquidator has not been appointed in the manner provided therein, any Member shall have the right to make application to the appropriate court in the jurisdiction in which the Company is located for appointment of such Liquidator, and the said court shall be fully authorized to appoint and designate such Liquidator who shall have all the powers, duties, rights and authorities of the Liquidator herein provided.

16.5. Date of Termination. The Company will terminate when all of the cash and property available for application under Section 16.2 above have been applied in accordance with Section 16.2.

ARTICLE XVII.

MISCELLANEOUS

17.1. Notices. All notices given pursuant to this Agreement shall be in writing and shall be deemed effective when personally delivered or upon being placed in the United States mail, registered or certified with return receipt requested, or when received, if delivered by hand, sent by overnight courier, guaranteed next day delivery or by email. For purposes of notice, the addresses of the Members shall be as stated under their names on the attached Exhibit A and the address of the Managers shall be the address of the Member authorized to appoint him or her; provided, however, that each Member shall have the right to change his, her or its address with notice hereunder to any other location by the giving notice to the Board of Managers in the manner set forth above.

17.2. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Members, and their respective heirs, legal representatives, successors and permitted assigns; provided, however, that nothing contained herein shall negate or diminish the restrictions set forth in Articles XIV or XV.

17.3. Governing Law. This Agreement shall be governed by the internal law of the State of Delaware without regard to any choice of law principles.

17.4. Jurisdiction. Any legal proceedings arising out of any of the transactions or obligations contemplated by this Agreement may be brought in the Court of Chancery of the State of Delaware or the United States District Court for the District of Delaware, and appellate courts therefrom. The parties hereto irrevocably and unconditionally: (a) submit to the jurisdiction of such courts and agree to take any and all future action necessary to submit to such jurisdiction; (b) waive any obligation which they may now or hereafter have to the venue of any suit, action or proceeding brought in such courts; and (c) waive any claim that any such suit, action or proceeding brought in such court has been brought in an inconvenient forum.

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17.5. Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, OTHER RELATED DOCUMENTS, THE INTERESTS OR THE SUBJECT MATTER HEREOF OR THEREOF. 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 OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL

17.6. Construction. Every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any Member. The failure by any party to specifically enforce any term or provision hereof or any rights of such party hereunder shall not be construed as the waiver by that party of its rights hereunder. The waiver by any party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or other provision hereof.

17.7. Entire Agreement. This Agreement contains the entire agreement among the Members relating to the subject matter hereof, and all prior agreements relative hereto which are not contained herein are terminated. Notwithstanding the foregoing, the Members have entered into and are subject to the terms and conditions of the IRA, the terms of which supplement this Agreement, and to the extent there is any conflict or inconsistency with this Agreement (other than Schedule A hereto), govern and shall be enforceable as if set forth herein and made a part of this Agreement.

17.8. Amendments. Except as otherwise expressly provided in this Section 17.8, amendments or modifications may be made to this Agreement only by setting forth such amendments or modifications in a document approved by the Board of Managers including, where provided, the PLC Manager, and any alleged amendment or modification herein which is not so documented and approved shall not be effective as to any Member. The Board of Managers may amend any provision of this Agreement and execute, swear to, acknowledge, deliver, file and record whatever documents may be required in connection therewith to reflect:

(a) a change in the location of the principal place of business of the Company not inconsistent with the provisions of Section 2.4, or a change in the registered office or the registered agent of the Company; or

(b) admission of a Member into the Company or any increase, decrease or termination of any Member’s Interest in accordance with this Agreement.

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However, no amendment or modification which disproportionately affects any particular Member relative to any other Member shall be effective against such Member unless approved in writing by such Member.

17.9. Severability. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any provision of this Agreement or the application thereof to any Person or circumstance shall, for any reason and to any extent, be invalid or unenforceable, but the extent of such invalidity or unenforceability does not destroy the basis of the bargain among the Members as expressed herein, then the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.

17.10. Gender and Number. Whenever required by the context, as used in this Agreement, the singular number shall include the plural and the neuter shall include the masculine or feminine gender, and vice versa.

17.11. Section Headings. The section headings appearing in this Agreement are for convenience of reference only and are not intended, to any extent or for any purpose, to limit or define the text of any section.

17.12. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original but all of which shall constitute but one document.

(Signature page follows)

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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the effective date first referenced above.

COMPANY:	C-PAK CONSUMER PRODUCT HOLDINGS SPV I LLC, a Delaware limited liability company
	By:	/s/ Eric Blue‎ ‎
	Name:	Eric C. Blue
	Title:	Manager
COMMON MEMBERS:	C-PAK PREFCO SVP I, INC., a Delaware corporation
	By:	/s/ Eric Blue‎
	Name:	Eric C. Blue
	Title:	President
	PINEY LAKE OPPORTUNITIES ECI MASTER FUND LP, a Cayman Islands exempted limited partnership
	By:	Piney Lake Capital Management LP as Advisor
	By:	/s/ Michael Lazar‎
	Name:	Michael B. Lazar
	Title:	President
PREFERRED MEMBER:	C-PAK PREFCO SVP I, INC.,
	a Delaware corporation
	By:	/s/ Eric Blue‎ ‎
	Name:	Eric C. Blue
	Title:	President

SCHEDULE A

PREFERRED UNITS

Section 1. Distributions.

(a) Subject to Section 1(b), Preferred Members shall be entitled to receive, when, as and if distributions are declared by the Board of Managers, out of funds legally available therefor, cumulative preferential distributions (“Preferred Distributions”) from the date of issuance of their respective Preferred Units, which distributions shall accrue on the Liquidation Preference at the rate per Unit equal to the Preferred Distribution Rate. Preferred Distributions shall accrue daily whether or not declared, whether or not the Company has earnings or profits and whether or not there are funds legally available for the payment of such Preferred Distributions and shall be computed on the basis of a 360-day year consisting of twelve 30-day months.

(b) Preferred Distributions on any Preferred Units shall be paid on each March 31, June 30, September 30 and December 31 of each year (each, a “Distribution Payment Date”), beginning June 30, 2019, to the extent declared by the Board of Managers and subject to the limitations set forth in this Section 1(b), for the period beginning on the date after the prior Distribution Payment Date and ending on such dividend Payment Date. To the extent that all or some portion of the Preferred Distributions are not declared and paid, in cash, on any Distribution Payment Date for the calendar quarter ending on such Distribution Payment Date, the amount of such Preferred Distributions that was not paid in cash shall be added to the Liquidation Preference and shall thereafter accrue and compound at the Preferred Distribution Rate. Notwithstanding anything to the contrary herein, the Company may not declare or pay Preferred Distributions in cash except that on each Distribution Payment Date up to fifty percent (50%) of any Preferred Distributions accrued during the quarter ending on such Distribution Payment Date may be declared and paid in cash.

(c) So long as any Preferred Units are outstanding, without the consent of the Required Preferred Holders: (i) except for distributions made in accordance with Section 7.2 or 7.3 of the Agreement and distributions permitted by both Section 9.06(f) of the Loan Agreement and the Management Agreement (as defined in the Loan Agreement), no distribution shall be declared or paid upon, or any sum set apart for the payment of distributions upon, any Interests other than distributions permitted by Section 1(b) above; (ii) no Interests other than Preferred Units shall be purchased, redeemed or otherwise acquired or retired for value by the Company or any of its Subsidiaries; (iii) no warrants, rights, calls or options to purchase any Interests other than Preferred Units shall be directly or indirectly purchased by the Company or any of its Subsidiaries; and (iv) no monies shall be paid into or set apart or made available for a sinking or other like fund for the purchase, redemption or other acquisition or retirement for value of any Interests other than Preferred Units by the Company or any of its Subsidiaries. Without limiting the rights of Preferred Members to receive the Redemption Price upon a Liquidation Event as set forth in Section 3 or pursuant to Sections 5, 6 or 8, Preferred Members shall not be entitled to any distributions, whether payable in cash, property, or equity interests, in respect of their Preferred Units in excess of the full cumulative distributions as described in this Schedule A.

Schedule A-1

(d) Following a Liquidation Event, a Mandatory Redemption Event or a Preferred Member’s exercise of its right to sell Preferred Units pursuant to Section 8, no distributions shall be declared or paid upon, or any sum set apart for the payment of distributions upon, any Interests, including distributions pursuant to Section 7.2 or 7.3 of the Agreement, until the Redemption Price is paid in full in cash on all Preferred Units pursuant to Section 3, 5, 6 or 8, as applicable.

Section 2. Voting Rights; Coordination with PrefCo Preferred Stock.

(a) Preferred Members will have no voting rights with respect to their Preferred Units except as required by the Act or as specifically set forth in this Schedule A. When voting, the Members shall not vote per capita but based upon the Percentage Interest held by each Member and unless required to vote by class, Preferred Members shall vote on an as-converted basis assuming a 1:1 conversion of Preferred Units into Common Units.

(b) Except with regard to the nomination of the Managers as set forth in Article IX of the Agreement, PrefCo hereby agrees to, and whether or not it takes such action shall be deemed to, exercise any and all rights with respect to the Preferred Units held by it in the same manner and at the same time as the holders of Preferred Stock of PrefCo take with respect to the corresponding rights of the Preferred Stock of PrefCo, including, without limitation, any waiver, consent or approval and any exercise of rights to cause the issuer thereof to repurchase the Preferred Stock of PrefCo or Preferred Units of the Company, as applicable. PrefCo shall take such actions with respect to its Preferred Units only if and to the extent the holders of Preferred Stock of PrefCo take such actions respect to the corresponding rights of the Preferred Stock of PrefCo. All amounts received by PrefCo on account of its Preferred Units shall be immediately paid to the holders of Preferred Stock of PrefCo in the same manner, such that, for example, distributions made pursuant to Section 7 of the Agreement shall be distributed by PrefCo as dividends on Preferred Stock and the Redemption Price paid to PrefCo shall be paid as the Redemption Price on Preferred Stock of PrefCo and, in furtherance thereof, (i) any exercise of redemption rights or declaration of distributions or dividends by PrefCo with respect to Preferred Stock shall be taken at the same time and to the same extent by the Company with respect to Preferred Units and (ii) any exercise of redemption rights or declaration of distributions or dividends by the Company with respect to Preferred Units shall be taken at the same time and to the same extent by PrefCo with respect to Preferred Stock of PrefCo.

Section 3. Liquidation Rights.

(a) Upon the occurrence of a Liquidation Event, each Preferred Member shall be entitled to receive and to be paid out of the assets of the Company legally available for distribution to the Members, before any distribution or payment may be made on any Common Units or other Interests of the Company, an amount per Preferred Unit equal to the Redemption Price as of such time payable at the time of such Liquidation Event. If, upon any such Liquidation Event, the assets of the Company legally available for distribution to the Members are insufficient to pay the Preferred Members the full amount of such Redemption Price for each outstanding Preferred Unit, the Preferred Members will share ratably in any such distribution of the assets of the Company in proportion to the full respective amounts (if any) to which they are entitled with respect to their Preferred Units. After payment the Preferred Members of the full amount of such Redemption Price to which they are entitled, Preferred Members as such will have no right or claim to any of the assets of the Company. No Member shall receive any cash or other consideration upon a Liquidation Event by reason of their ownership of Common Units or Interests of the Company other than Preferred Units unless the full amount of such Redemption Price to which Preferred Members are entitled in respect of all outstanding Preferred Units have been paid in full.

Schedule A-2

(b) Notwithstanding the provisions of this Section 3, the Company shall not be obligated to pay distributions pursuant to this Section 3 to the extent there exists a Preferred Delay Condition. In such event, the Company shall notify any the Preferred Members in writing as soon as practicable of such Preferred Delay Condition. The Company shall then pay the distributions on the applicable date set forth in this Section 3(b) with respect to as to as many of the Preferred Units entitled to such distributions without running afoul of the Preferred Delay Condition and thereafter pay the Redemption Price with respect to as many of the other Preferred Units entitled to such distribution without running afoul of the Preferred Delay Condition at the earliest practicable date or dates, in which case, the Redemption Price shall accrue interest at the Preferred Distribution Rate.

Section 4. Protective Provisions.

(a) For so long as any Preferred Units are outstanding, the prior vote or written consent of the PLC Manager shall be required for the following, including any such actions effected pursuant to or as a result of a merger, consolidation or business combination, and the Company shall not take, and shall cause its Subsidiaries not to take, any such action without such prior vote or written consent:

(i) the entry into by the Company or any Subsidiary of any contract that imposes restrictions or limitations on the amounts payable to Preferred Members in accordance with this Schedule A;

(ii) the issuance by the Company of any Capital Stock that is senior to or pari passu with the Preferred Units (including issuance of additional Preferred Units but excluding increases in Liquidation Preference pursuant to Section 1);

(iii) the issuance or sale of any Capital Stock of any Subsidiary, other than to the Company or a wholly owned Subsidiary, or the creation or ownership of any Subsidiary, other than a wholly owned Subsidiary; provided, however, that this Section 4(a)(iii) shall not apply in connection with the Company’s entry into a bona fide joint venture transaction with an unaffiliated third party so long as such unaffiliated third party agrees to subordinate its interest in such joint venture to the Preferred Units in a manner satisfactory to the holders of Preferred Units;

(iv) the incurrence of any Indebtedness other than as permitted under Section 9.01 the Loan Agreement;

(v) the commencement of an Insolvency Event;

Schedule A-3

(vi) the amendment, modification or waiver of this Agreement, the Company’s Certificate of Formation or any other organizational documents that (A) amends, modifies or waives in any respect the powers, preferences, or other rights of the Preferred Units or (B) has an adverse effect on Preferred Members in their capacity as such;

(vii) the declaration or payment of distributions upon, or any sum set apart for the payment of distributions upon, any classes or series of Capital Stock of the Company other than the Preferred Units as contemplated by this Agreement or the last sentence of Section 1(c) above;

(viii) the purchase, redemption, acquisition or retirement for value by the Company or any of its Subsidiaries, of any classes or series of Capital Stock of the Company other than the Preferred Units as contemplated by this Agreement or pursuant to a Plan to the extent not prohibited by Section 9.06(e) of the Loan Agreement and so long as no Redemption Breach has occurred and is not continuing;

(ix) the direct or indirect purchase of warrants, rights, calls or options of any classes or series of Capital Stock by the Company other than Preferred Units unless undertaken under a Plan to the extent not prohibited by Section 9.06(e) of the Loan Agreement and so long as no Redemption Breach has occurred and is not continuing;

(x) the payment into or set apart or made available for a sinking or other like fund monies for the purchase, redemption or other acquisition or retirement for value of any classes or series of Capital Stock of the Company other than Preferred Units by the Corporation or any of its Subsidiaries or pursuant to a Plan to the extent not prohibited by Section 9.06(e) of the Loan Agreement and so long as no Redemption Breach has occurred and is not continuing;

(xi) any transaction or series of transactions that would result in a Change of Control unless the Preferred Units are redeemed in full in cash upon the consummation of such Change of Control; or

(xii) the taking of any act or omission that would result in a failure of the Company or any of its Subsidiaries to comply with their obligations under Section 8 (other than Sections 8.01(d), 8.10, 8.11, 8.12, 8.13, 8.14, 8.16, 8.17, 8.20, 8.21, 8.22 and 8.23) or Section 9 (other than (A) Sections 9.02, 9.07, 9.11, 9.13, 9.15, 9.16 and 9.20, (B) in the case of Section 9.03, any transaction where the Preferred Units are redeemed in full in cash upon the consummation of such transaction, (C) in the case of Section 9.06, Restricted Payments payable solely in Common Units pursuant to Section 7.2 of the Agreement and (D) in the case of Section 9.14, becoming liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of the Preferred Units pursuant to this Schedule A) of the Loan Agreement, treating the Company in the same manner as the “Borrower” thereunder, and each Subsidiary of the Company as a “Subsidiary” thereunder, but giving effect to all baskets, thresholds, limitations, and qualifications set forth therein and for purposes hereof, treating the Company and each of its Subsidiaries as “Loan Parties”; provided, that the foregoing shall not be interpreted to alter the treatment of the Borrower or any other Loan Party under the Loan Agreement); it being understood that if any failure to comply with any of such provisions of Section 8 or Section 9 of the Loan Agreement is cured in accordance with the terms thereof, such provisions shall be deemed (with retroactive effect to the first date of any such failure to so comply) to have been complied with for purposes of this Schedule A.

Schedule A-4

(b) For the avoidance of doubt, each of the foregoing clauses (i) through (xii) is an independent covenant and any action or transaction involving the Company or its Subsidiaries, as applicable, requiring the vote or consent of the PLC Manager under any such clause shall require such consent, notwithstanding that such action or transaction may be permitted without such vote or consent by any other clause in Section 4.

Section 5. Sale Trigger Event.

(a) Notwithstanding anything to the contrary contained herein, upon the occurrence of, and during the continuation of, any Sale Trigger Event, PLC shall have the right to cause the Company to effect a Sale of the Company (any such sale, an “Exit Sale”). PLC may exercise such right by delivering written notice (a “Sale Notice”) thereof to the Company at any time, and from time to time, after the occurrence of and during the continuation of a Sale Trigger Event.

(i) If PLC elects to cause an Exit Sale pursuant to this Section 5, then the Company and each Member shall take all necessary and desirable actions as directed by PLC in connection with the consummation of any Exit Sale, including: (a) in the case of the Company, engaging a nationally recognized investment bank selected by PLC (the “Investment Bank”) to establish procedures to effect the Exit Sale with the objective of achieving the highest practicable value within a reasonable period of time on terms and conditions satisfactory to PLC in its reasonable discretion; (b) cooperating with the Investment Bank in accordance with such procedures, including by preparing customary marketing materials approved by PLC; (c) in the case of the Company, hiring independent nationally recognized legal counsel as may be selected by PLC to act on behalf of the Company and the Members as legal counsel in connection with such Exit Sale (the “Law Firm”); (d) cooperating with proposed bidders and their financing sources and each of their respective representatives and advisors (collectively “Bidders”), and also with PLC and the Law Firm, in the evaluation of an Exit Sale; (e) facilitating the due diligence process in respect of any such Exit Sale, including by (A) establishing, populating and maintaining an online “data room”, (B) causing the senior management team to participate in customary management presentations, site visits, bank meetings and presentations, road shows, ratings agency presentations, and all such other meetings and conference calls with Bidders requested by PLC to facilitate the evaluation, structuring, negotiation, documentation, financing and closing of such Exit Sale; (f) executing a sale contract and other customary documents approved by PLC consistent with this Agreement; (g) making required governmental filings and taking all other actions necessary to obtain necessary governmental approvals and third party consents; (h) providing any financial or other information or audit required by the Bidders, including with respect to “KYC” and other legal compliance matters; and (i) taking all necessary or desirable actions to effect such Exit Sale to the fullest extent permitted by law.

Schedule A-5

(ii) The Company shall bear, and promptly pay, all of the costs and expenses (other than taxes) of any actual or proposed Exit Sale or related process conducted in accordance with the foregoing to the extent such costs are incurred at the direction of PLC by the Company or any Member. The Company shall also provide the Preferred Members with the opportunity to participate in the Exit Sale process, including participation in all material meetings, conversations and correspondence with the Investment Bank, Law Firm, Bidders and/or any applicable governmental or regulatory agencies.

(b) Exercise. If PLC elects to exercise its rights under this Section 5, and such exercise of rights results in an offer for the Sale of the Company to one or more Bidders, PLC shall thereafter select and designate a single Bidder as the prospective buyer (the “Prospective Buyer”); provided, however, that in the event that (i) there are multiple Bidders and (ii) two or more Bidders submit offers which provide for the payment in full, in cash, of all amounts then due and owing by the Company to PLC and are otherwise equivalent in terms of committed financing and certainty of closure, then the PrefCo Managers shall designate the Prospective Buyer and thereafter, the Company shall furnish a written notice of the Prospective Buyer (the “Drag Along Notice”) to each other Member. The Drag Along Notice shall set forth the principal terms of the proposed Sale of the Company insofar as it relates to such Units or Member, including, as applicable (x) the Units or assets to be acquired by the Prospective Buyer, (y) the per Unit consideration to be received in the proposed Sale of the Company and (z) the name and address of the Prospective Buyer. If the Prospective Buyer consummates the proposed Sale of the Company to which reference is made in the Drag Along Notice by purchase of Units, each other Member (each a “Participating Seller”, and, together with the Preferred Members, collectively, the “Drag Along Sellers”) shall be bound and obligated to sell its Units in the proposed Sale of the Company on the same terms and conditions (other than price, which shall be as set forth in Section 5(c)) and, if applicable, to vote all such Units in favor of such transaction.

(c) Application of Proceeds. The proceeds of any Sale of the Corporation to which this Section 5 applies shall be first be allocated to the Preferred Members so that each Preferred Member receives an amount per Preferred Unit equal to the Redemption Price as of the time of the closing of such Sale of the Company, and then to the holders of the Common Units on a pro rata basis in proportion to the number of Common Units held by each Common Member.

Schedule A-6

(d) Irrevocable Proxy. In order to secure each Member’s obligation to vote his, her or its Units in accordance with the provisions of this Section 5, each Member hereby appoints the PLC Manager (the “Attorney-In-Fact”) as such Member’s true and lawful proxy, representative, agent and attorney-in-fact, with full power of substitution, to vote at any annual or special meeting of the Members, or to take any action by written consent in lieu of such meeting with respect to, or to otherwise take action in respect of, all of the Units owned or held of record by such Member for all such matters as expressly provided for in this Section 5. Each Attorney-In-Fact, after PLC has elected to exercise its rights under this Section 5, subject to the termination of the Sale of the Company under Section 5(f), may exercise the irrevocable proxy granted to them hereunder at any time any Member fails to comply with any of the provisions of this Section 5. Each of the proxies and powers granted by each Member pursuant to this Section 5(d) is coupled with an interest and is given to secure the performance of such Member’s obligations under this Agreement. Such proxies and powers shall be irrevocable, shall terminate upon the termination of this Agreement and shall survive the death, incompetency, disability, bankruptcy or dissolution of such Member and the subsequent holders of his, her or its Units. To effectuate the provisions of this Section 5(d), the Secretary of the Company and of each of its subsidiaries, or, if there shall be no Secretary, then such other officer or employee of the Company or such subsidiary as the Board of Managers may appoint to fulfill the duties of the Secretary, shall not record any vote or consent or other action contrary to the terms of this Agreement. The Members shall severally, but not jointly, on a pro rata basis, indemnify and hold harmless, each Attorney-In-Fact from any and all losses, liabilities and expenses (including the reasonable fees and expenses of counsel) arising out of or related to such Attorney-In-Fact’s service as the Attorney-In-Fact.

(f) Waiver of Appraisal Rights. Each Member hereby waives, and hereby agrees not to demand or exercise, all appraisal rights, dissenters rights or similar rights under any applicable law with respect to a transaction subject to this Section 5 as to which any such appraisal rights, dissenters rights or similar rights are, or may be, available.

(g) Closing. At the closing of any Exit Sale effected as a sale of Units, such Preferred Member shall deliver to the Company a reasonable instrument of transfer against receipt of the proceeds.

Section 6. Redemption and Repurchases.

(a) Optional Redemption. Subject to Section 2(b) above, the Company may elect to redeem any or all of the Preferred Units at any time, and from time to time, then held by the holders of Preferred Units, for cash, in an amount per Preferred Unit being redeemed equal to the Redemption Price as of such time.

(b) Mandatory Redemption upon Mandatory Redemption Event. Upon the occurrence of a Mandatory Redemption Event, to the extent not prohibited by applicable law or postponed in writing by the Required Preferred Holders, in their sole and absolute discretion, the Company shall redeem all then outstanding Preferred Units for cash in an amount per Preferred Unit equal to the Redemption Price as of such time. Any such redemption shall occur concurrently with the consummation of any Mandatory Redemption Event, or if postponed by the Required Preferred Holders, within five (5) Business Days following written notice from such Required Preferred Holders ending such postponement. If the Company does not have sufficient funds legally available to redeem all Preferred Units, the Company shall redeem the maximum number of Preferred Units that can be redeemed at such time out of funds legally available therefor and shall redeem the remaining Preferred Units as soon as practicable after the Company has funds legally available therefor.

Schedule A-7

(c) Notice of Redemption. The Company shall provide notice of any redemption pursuant to this Section 6, at least ten (10) days but not more than sixty (60) days prior to such redemption, to each Member. Each such notice shall state (i) the date fixed for such redemption, (ii) the Redemption Price, and (iii) that if fewer than all of the Preferred Units owned by such Preferred Member are to be redeemed, the number of Preferred Units that are to be redeemed.

(d) Delay Condition. Notwithstanding the provisions of this Section 6, the Company shall not be obligated to redeem any Preferred Units pursuant to this Section 6 to the extent there exists a Preferred Delay Condition. In such event, the Company shall notify the Preferred Members in writing as soon as practicable of such Preferred Delay Condition. The Company shall then consummate the redemption of Preferred Units on the applicable date set forth in this Section 6(d) with respect to as many Preferred Units as can be redeemed without running afoul of the Preferred Delay Condition and thereafter redeem as many of the Preferred Units as can be redeemed without running afoul of the Preferred Delay Condition at the earliest practicable date or dates, in which case, the Redemption Price shall accrue interest at the Preferred Distribution Rate.

(f) Pro Rata Redemption. In the event that at any time fewer than all of the outstanding Preferred Units are to be redeemed pursuant to this Section 6, the redemption shall be made pro rata among all Preferred Members in proportion to the number of Preferred Units then held by them.

Section 7. Written Consent. Any action as to which the approval of the PLC Manager is required pursuant to the terms of this Agreement may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the PLC Manager.

Section 8. Preferred Unit Put Right.

(a) Each Preferred Member may, at its election, elect to sell to the Company at any time following May 2, 2024, no less than all of the Preferred Units then held thereby, for a purchase price per Preferred Unit equal to the Redemption Price.

(b) If any Preferred Member desires to exercise its right to sell Preferred Units pursuant to this Section 8, such Preferred Member shall provide notice (a “Preferred Put Notice”), which notice may be delivered prior to May 2, 2024, requesting that the Company repurchase Preferred Units and setting forth the number of Preferred Units that are to be so repurchased. The Company shall consummate the purchase of Preferred Units pursuant to this Section 8, within forty five (45) days of receipt of the Preferred Put Notice, but in no event prior to May 2, 2024.

(c) Notwithstanding the provisions of this Section 8, the Company shall not be obligated to purchase any Preferred Units pursuant to this Section 8 to the extent there exists a Preferred Delay Condition. In such event, the Company shall notify the Preferred Members in writing as soon as practicable of such Preferred Delay Condition and shall permit such Preferred Members, within ten (10) days of receipt thereof, to rescind its decision to sell their Preferred Units to the Company pursuant to this Section 8. If such Preferred Members do not rescind their decision to sell their respective Preferred Units to the Company pursuant to this Section 8, the Company shall consummate the purchase of Preferred Units on the applicable date set forth in this Section 8(c) with respect to as many Preferred Units as can be purchased without running afoul of the Preferred Delay Condition and thereafter pay the Redemption Price with respect to as many of the other Preferred Units to be purchased as can be purchased without running afoul of the Preferred Delay Condition at the earliest practicable date or dates, in which case, the Redemption Price shall accrue interest at the Preferred Distribution Rate.

Schedule A-8

(d) At the closing of any sale and purchase pursuant to this Section 8, such Preferred Member shall deliver to the Company a reasonable instrument of transfer against receipt of the Preferred Put Price.

Section 9. Certain Definitions. For purposes of this Schedule A, the following terms shall have the following meanings:

“Attorney-In-Fact” is defined in Section 5(d).

“Bidders” is defined in Section 5(a)(i).

“Business Day” means any day except a Saturday, Sunday or legal holiday in the State of New York.

“Capital Park” means Capital Park Holdings Corp., a Delaware corporation.

“Capital Stock” means: (a) in the case of a corporation, corporate stock or shares, and (b) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests, and including any debt securities convertible into or warrants, options or rights to acquire Capital Stock, whether or not such debt securities, warrants, options or rights include any right of participation with Capital Stock and (c) any synthetic equity rights or rights to payment based on the value of or other reference to the Capital Stock of a corporation, partnership or limited liability company.

“Certificate of Formation” means that Certificate of Formation for C-Pak Consumer Products Holdings SVP I LLC, as the same may be amended and restated.

“Certificate of Incorporation” means the Amended and Restated Certificate of Incorporation of C-PAK PREFCO SVP I, Inc., a Delaware corporation, as in effect on the date hereof.

“Change of Control” shall have the meaning set forth in the Loan Agreement and shall also include any other event that is a Change of Control as defined in the Certificate of Incorporation.

“Distribution Payment Date” is defined in Section 1(a).

“Drag Along Notice” is defined in Section 5(b).

“Drag Along Sellers” is defined in Section 5(b).

Schedule A-9

“Exit Sale” is defined in Section 5(a).

“Indebtedness” shall have the meaning set forth in the Loan Agreement. For the avoidance of doubt, “Indebtedness” of the Company shall not include the Preferred Units or accrued and unpaid distributions or increases in the Liquidation Preference thereon.

“Insolvency Event” means the occurrence of any event that would constitute an “Event of Default” under Article X of the Loan Agreement.

“Investment Bank” is defined in Section 5(a)(i).

“Issue Price” means $1,000.

“Law Firm” is defined in Section 5(a)(i).

“LIBOR Rate” shall mean the LIBOR Rate in effect under the terms of the Loan Agreement.

“Liquidation Event” means when the Company liquidates, dissolves or winds up its affairs.

“Liquidation Preference” means, with respect to a Preferred Unit, as of any time of determination, the Issue Price plus the amount of accrued and unpaid Preferred Distributions.

“Loan Agreement” means the Loan Agreement, dated as of May 3, 2019, entered into by and among C-PAK Consumer Product Holdings LLC, a Delaware limited liability company, and C-PAK Consumer Product IP SPV LLC, a Delaware limited liability company, as borrowers, Pak Consumer Product Holdings SPV I LLC, a Delaware limited liability company, and its subsidiaries that are Guarantors (as defined therein) or become Guarantors thereunder, the Lenders (as defined therein) from time to time party thereto, and PLC as administrative agent for the Lenders and as collateral agent for the Secured Parties (as defined therein), as in effect on the date of this Agreement.

“Mandatory Redemption Event” means any of (i) a Change of Control, (ii) an Insolvency Event, (iii) a Liquidation Event, and (iv) acceleration under the Loan Agreement as modified, amended or replaced from time to time.

“Material Non-Compliance Event” means any of (i) the occurrence of a Redemption Breach or (ii) the Company’s breach of any provision of Section 4(a), which remains uncured for five (5) days after the earlier of (i) prior written notice to the Company of the aforementioned breach by the Company or (ii) actual knowledge of such breach by an officer of the Company.

“Plan” means that employee equity incentive plan established by the Company pursuant to which members of senior management of the Company or Managers of the Company (other than Persons employed by or affiliated with Capital Park) receive Common Units of the Company or equivalents thereto which (i) are junior with regards to rights and preferences to the Preferred Units and (ii) are subject to standard vesting and forfeiture provisions; provided, that the Common Units or equivalents thereto issued thereunder shall not exceed twelve percent (12%) of the then outstanding Common Units of the Company on a fully-diluted basis.

Schedule A-10

“Preferred Delay Condition” means the Company is prohibited from purchasing any Preferred Units by any law.

“Preferred Distribution Rate” means 13.00% per annum plus the LIBOR Rate; provided, that upon a Material Non-Compliance Event, the Preferred Dividend Rate shall increase by 2.00% per annum on such Material Non-Compliance Event and so long as such Material Non-Compliance Event continues without cure, on each anniversary thereof. Any such increase shall continue until such time as there is no longer any Material Non-Compliance Event, Sale Trigger Event or Preferred Delay Condition, as applicable, or the Redemption Price is paid in full in cash, subject to reinstatement upon the occurrence of a subsequent Material Non-Compliance Event.

“Preferred Distributions” is defined in Section 1(a).

“PrefCo” means the C-PAK PREFCO SVP I, Inc., a Delaware corporation.

“Preferred Put Notice” is defined in Section 8(b).

“Preferred Stock” means the preferred stock issued by PrefCo pursuant to the Certificate of Incorporation.

“Prospective Buyer” is defined in Section 5(b).

“Redemption Breach” means the failure of the Company to (i) timely redeem Preferred Units in accordance with Sections 5, 6 or 8, including the failure of the Company to timely (y) redeem all outstanding Preferred Units for the Redemption Price pursuant to Sections 5 or 6 or (z) pay the Redemption Price on all Preferred Units that the Preferred Members have elected to sell to the Company pursuant to Section 8, in each case, without regard to any Preferred Delay Condition, (ii) pay the Redemption Price upon a Liquidation Event in accordance with Section 3 without regard to any Preferred Delay Condition, or (iii) timely redeem Common Units in accordance with Section 15.2 of the Agreement, including failure of the Company to pay the Common Put Price on all Common Units that PLC has elected to sell to the Company pursuant to Section 15.2 of the Agreement without regard to any Common Delay Condition.

“Redemption Price” means an amount per Preferred Unit equal to (i) in the case of any determination of Redemption Price occurring on or before May 2, 2022, two (2) times the sum of the Liquidation Preference as of the date of such determination plus the Preferred Distributions that would accrue on such Liquidation Preference from the date of such determination through May 2, 2022 or (ii) in the case of any determination of Redemption Price occurring after May 2, 2022, two (2) times the Liquidation Preference as of the date of such determination.

“Required Preferred Holders” means Preferred Members holding more than fifty percent (50%) of the then issued and outstanding Preferred Units.

“Restricted Payment” shall have the meaning set forth in the Loan Agreement.

Schedule A-11

“Sale Notice” is defined in Section 5(a).

“Sale of the Company” means a transaction pursuant to which all of the Capital Stock or all or substantially all of the assets of the Company is purchased by an unaffiliated third party.

“Sale Trigger Event” means any Redemption Breach which continues for a period of six (6) consecutive months.

Section 9. Miscellaneous. For purposes of this Schedule A, the following provisions shall apply:

(a) Severability. If any right, preference or limitation of the Preferred Units set forth in this Schedule is invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other rights, preferences and limitations set forth in this Schedule which can be given effect without the invalid, unlawful or unenforceable right, preference or limitation shall, nevertheless, remain in full force and effect, and no right, preference or limitation herein set forth shall be deemed dependent upon any other such right, preference or limitation unless so expressed herein.

(b) Headings. The headings of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof.

(c) Interpretation. When a reference is made in this Schedule A to Sections, paragraphs, clauses or similar subdivisions, such reference shall be to a Section, paragraph, clause or subdivision to or of this Schedule A unless otherwise explicitly indicated. The words “include,” “includes,” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation.” Terms used in this Schedule A, but not otherwise defined in this Schedule A shall have the meanings ascribed to such terms in the Agreement.

Schedule A-12

EXHIBIT A

MEMBERS; UNITS; PERCENTAGE INTERESTS

COMMON MEMBERS:	Number of Units:	Percentage Interest:			Initial Capital Contribution:
C-PAK PREFCO SPV I, INC. 8117 Preston Road, Suite 300 Dallas, TX 75225 Attention: Eric Blue Email: eric.blue@capitalpark.net	9,000 Common Units		90	%	$	450,000
Piney Lake Opportunities ECI Master Fund LP Four Greenwich Office Park Greenwich, CT 06831 Fax: (203) 307-5988 Attention: Michael C. Cassetta	1,000 Common Units		10	%	$	907,954.40
	10,000 Common Units		100.00	%	$	1,357,954.40

PREFERRED MEMBER	Number of Units	Percentage Interest:			Initial Capital Contribution:
C-PAK PREFCO SPV I, INC. 8117 Preston Road, Suite 300 Dallas, Texas 75225 Fax (972)525-8720 Attention: Eric Blue Email: eric.blue@capitalpark.net	3,000 Preferred Units		100	%	$	3,000,000

EX-10.6

Exhibit 10.6

Execution Version

STOCKHOLDERS’ AGREEMENT

By and Among

C-PAK PREFCO SVP I, INC.,

CAPITAL PARK HOLDINGS CORP.,

and

PINEY LAKE OPPORTUNITIES NON-ECI MASTER FUND LP

dated as of

May 3, 2019

STOCKHOLDERS’ AGREEMENT

THIS STOCKHOLDERS’ AGREEMENT (this “Agreement”), is made as of May 3, 2019, by and among C-PAK PREFCO SVP I, INC., a Delaware corporation (the “Company”), Capital Park Holdings Corp., a Delaware corporation (“Capital Park”), and Piney Lake Opportunities NON-ECI Master Fund LP, a Cayman Islands exempted limited partnership (“PLC”).

RECITALS

WHEREAS, Capital Park holds all of the outstanding shares of Common Stock;

WHEREAS, PLC holds all of the outstanding shares of Preferred Stock; and

WHEREAS, the Company, PrefCo and PLC desire to enter into this Agreement.

NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:

1. Definitions. Capitalized terms used herein shall have the meaning set forth in the Amended and Restated Certificate of Incorporation of the Company (the “Certificate of Incorporation”). Any capitalized terms used herein, but not defined in the Certificate of Incorporation, have the meanings set forth in this Section 1:

“Affiliate” means with respect to any stockholder, (a) any Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a stockholder; (b) any entity of which a stockholder is an officer, director, general partner or trustee, or serves in a similar capacity; or (c) any child, grandchild (whether through marriage, adoption or otherwise), sibling (whether through adoption or otherwise), parent, or spouse of a stockholder. As used in this definition of “Affiliate,” the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person whether through ownership of voting securities, by contract or otherwise.

“Agreement” is defined in the preamble.

“Attorney-In-Fact” is defined in Section 2.4.

“Bidders” is defined in Section 2.1(a).

“Business” shall have the meaning set forth in the Loan Agreement.

“Capital Park” is defined in the preamble.

“Company” is defined in the preamble.

“Certificate of Incorporation” is defined in Section 1.

“Drag Along Notice” is defined in Section 2.2.

“Drag Along Sellers” is defined in Section 2.2.

“Investment Bank” is defined in Section 2.1(a).

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“Law Firm” is defined in Section 2.1(a).

“Participating Seller” is defined in Section 2.2.

“PLC” is defined in the preamble.

“PLC Manager” shall have the meaning set forth in the Amended and Restated Limited Liability Company Agreement for C-PAK Consumer Product Holdings SPV I LLC, dated May 3, 2019.

“PrefCo” is defined in the preamble.

“Prospective Buyer” is defined in Section 2.2.

“Transfer” means any sale, pledge, assignment, encumbrance or other transfer or disposition of any shares of capital stock of the Company to any other Person, whether directly, indirectly, voluntarily, involuntarily, by operation of law, pursuant to judicial process or otherwise.

2. Sale Trigger Event.

2.1 Notwithstanding anything to the contrary contained herein or in the Certificate of Incorporation, upon the occurrence of, and during the continuation of, any Sale Trigger Event, the Required Preferred Stockholders shall have the right to cause the Company to effect an Exit Sale. The Required Preferred Stockholders may exercise such right by delivering a Sale Notice to the Company at any time and from time to time after the occurrence of and during the continuation of a Sale Trigger Event:

(a) If the Required Preferred Stockholders elect to cause an Exit Sale pursuant to this Section 2, then the Company and each stockholder of the Company shall take all necessary and desirable actions as directed by the Required Preferred Stockholders in connection with the consummation of any Exit Sale, including: (a) in the case of the Company, engaging a nationally recognized investment bank selected by the Required Preferred Stockholders (the “Investment Bank”) to establish procedures to effect the Exit Sale with the objective of achieving the highest practicable value within a reasonable period of time on terms and conditions satisfactory to the Required Preferred Stockholders in their reasonable discretion; (b) cooperating with the Investment Bank in accordance with such procedures, including by preparing customary marketing materials approved by the Required Preferred Stockholders; (c) in the case of the Company, hiring independent nationally recognized legal counsel as may be selected by the Required Preferred Stockholders to act on behalf of the Company and the stockholders of the Company as legal counsel in connection with such Exit Sale (the “Law Firm”); (d) cooperating with proposed bidders and their financing sources and each of their respective representatives and advisors (collectively “Bidders”), and also with the Required Preferred Stockholders and the Law Firm, in the evaluation of an Exit Sale; (e) facilitating the due diligence process in respect of any such Exit Sale, including by (A) establishing, populating and maintaining an online “data room”, (B) causing the senior management team to participate in customary management presentations, site visits, bank meetings and presentations, road shows, ratings agency presentations, and all such other meetings and conference calls with Bidders requested by the Required Preferred Stockholders to facilitate the evaluation, structuring, negotiation, documentation, financing and closing of such Exit Sale; (f) executing a sale contract and other customary documents approved by the Required Preferred Stockholders consistent with this Agreement; (g) making required governmental filings and taking all other actions necessary to obtain necessary governmental approvals and third party consents; (h) providing any financial or other information or audit required by the Bidders, including with respect to “KYC” and other legal compliance matters; and (i) taking all necessary or desirable actions to effect such Exit Sale to the fullest extent permitted by law.

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(b) The Company shall bear, and promptly pay, all of the costs and expenses (other than taxes) of any actual or proposed Exit Sale or related process conducted in accordance with the foregoing to the extent such costs are incurred at the direction of the Required Preferred Stockholders by the Company or stockholder of the Company. The Company shall also provide the holders of Preferred Stock with the opportunity to participate in the Exit Sale process, including participation in all material meetings, conversations and correspondence with the Investment Bank, Law Firm, Bidders and/or any applicable governmental or regulatory agencies.

2.2 Exercise. If the Required Preferred Stockholders elect to exercise their rights under this Section 2, and such exercise of rights results in an offer for the Sale of the Company to one or more Bidders, the Required Preferred Stockholders shall thereafter select and designate a single Bidder as the prospective buyer (the “Prospective Buyer”); provided, however, that in the event that (i) in the event there are multiple Bidders and (ii) two or more Bidders submit offers which provide for the payment in full, in cash, of all amounts then due and owing by the Company to PLC and are otherwise equivalent in terms of committed financing and certainty of closure, then the Company shall designate the Prospective Buyer and thereafter, the Company shall furnish a written notice of the Prospective Buyer (the “Drag Along Notice”) to each other stockholder of the Company. The Drag Along Notice shall set forth the principal terms of the proposed Sale of the Company insofar as it relates to such shares of capital stock of the Company or stockholder of the Company, including, as applicable (x) the shares of capital stock of the Company or assets to be acquired by the Prospective Buyer, (y) the per share consideration to be received in the proposed Sale of the Company and (z) the name and address of the Prospective Buyer. If the Prospective Buyer consummates the proposed Sale of the Company to which reference is made in the Drag Along Notice by purchase of shares of capital stock of the Company, each other stockholder of the Company (each a “Participating Seller”, and, together with the holders of Preferred Stock, collectively, the “Drag Along Sellers”) shall be bound and obligated to sell its shares of capital stock of the Company in the proposed Sale of the Company on the same terms and conditions (other than price, which shall be as set forth in Section 2.3) and, if applicable, to vote all such shares in favor of such transaction.

2.3 Application of Proceeds. The proceeds of any Sale of the Corporation to which this Section 2 applies shall be first be allocated to the holders of Preferred Stock so that each holder of Preferred Stock receives an amount per share of Preferred Stock equal to the Redemption Price as of the time of the closing of such Sale of the Company, and then to the holders of Common Stock on a pro rata basis in proportion to the number of shares of Common Stock held by each holder of Common Stock

2.4 Irrevocable Proxy. In order to secure each stockholder’s obligation to vote his, her or its shares of capital stock of the Company in accordance with the provisions of this Section 2, each stockholder hereby appoints the PLC Manager (the “Attorney-In-Fact”) as such stockholder’s true and lawful proxy, representative, agent and attorney-in-fact, with full power of substitution, to vote at any annual or special meeting of the stockholders, or to take any action by written consent in lieu of such meeting with respect to, or to otherwise take action in respect of, all of the shares of capital stock of the Company owned or held of record by such stockholder for all such matters as expressly provided for in this Section 2. Each Attorney-In-Fact, after the Required Preferred Stockholders have elected to exercise their rights under Section 2.1, subject to the termination of the Exit Sale under Section 2.5, may exercise the irrevocable proxy granted to them hereunder at any time any stockholder fails to comply with any of the provisions of this Section 2. Each of the proxies and powers granted by each stockholder pursuant to this Section 2.4 is coupled with an interest and is given to secure the performance of such stockholder’s obligations under this Agreement. Such proxies and powers shall be irrevocable, shall terminate upon the termination of this Agreement and shall survive the death, incompetency, disability, bankruptcy or dissolution of such stockholder and the subsequent holders of his, her or its shares of capital stock of the Company. To effectuate the provisions of this Section 2.4, the Secretary of the Company and of each of its subsidiaries, or, if there shall be no Secretary, then such other officer or employee of the Company or such subsidiary as the Board of Directors may appoint to fulfill the duties of the Secretary, shall not record any vote or consent or other action contrary to the terms of this Agreement. The stockholders shall severally, but not jointly, on a pro rata basis, indemnify and hold harmless, each Attorney-In-Fact from any and all losses, liabilities and expenses (including the reasonable fees and expenses of counsel) arising out of or related to such Attorney-In-Fact’s service as the Attorney-In-Fact.

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2.5 Waiver of Appraisal Rights. Each stockholder hereby waives, and hereby agrees not to demand or exercise, all appraisal rights, dissenters rights or similar rights under any applicable law with respect to a transaction subject to this Section 2 as to which any such appraisal rights, dissenters rights or similar rights are, or may be, available.

2.6 Closing. At the closing of any Exit Sale effected as a sale of shares of capital stock of the Company, such stockholder shall deliver to the Company a reasonable instrument of transfer against receipt of the proceeds.

3. Transfers by Stockholders. Except as contemplated by Section 2, no stockholder of the Company may Transfer all or any part of his, her or its shares of Common Stock to any Person other than Capital Park or a controlled Affiliate of Capital Park.

4. Protective Provision. For so long as PLC owns any shares of Preferred Stock or any Interests in the SPV, without the prior vote or written consent of PLC, Capital Park shall not, and shall cause its Affiliates (other than the SPV and its respective subsidiaries) not to, whether by or as a result of a merger, consolidation or business combination or otherwise, engage in the Business.

5. Miscellaneous.

5.1 Successors and Assigns. The rights, terms and conditions of this Agreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the parties hereto. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein.

5.2 Governing Law. This Agreement shall be governed by the internal law of the State of Delaware without regard to any choice of law principles.

5.3 Counterparts. This Agreement may be executed in counterparts and by facsimile, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

5.4 Titles and Subtitles; Pronouns. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement. All pronouns and any variations thereof used herein shall be deemed to refer to the masculine, feminine, singular or plural, as identity of the person or persons may require.

5.5 Notices. Any notice or other document required or permitted to be given or delivered to any party shall be in writing and sent (a) by e-mail if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), (b) by registered or certified mail with return receipt requested (postage prepaid) or (c) by a recognized overnight delivery service (with charges prepaid). All communications shall be sent to the respective parties at their addresses as set forth on Schedule A hereto, or to such email address or physical address as subsequently modified by written notice given in accordance with this Section 5.5.

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5.6 Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the Company, Capital Park and PLC. Any amendment, termination, or waiver effected in accordance with this Section 5.6 shall be binding on all parties hereto, regardless of whether any such party has consented thereto. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.

5.7 Severability. In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.

5.8 Entire Agreement. This Agreement (including any Schedules hereto) and the agreements referenced herein constitute the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled.

5.9 Jurisdiction. Any legal proceedings arising out of any of the transactions or obligations contemplated by this Agreement may be brought in the Court of Chancery of the State of Delaware or the United States District Court for the District of Delaware, and appellate courts therefrom. The parties hereto irrevocably and unconditionally: (a) submit to the jurisdiction of such courts and agree to take any and all future action necessary to submit to such jurisdiction; (b) waive any obligation which they may now or hereafter have to the venue of any suit, action or proceeding brought in such courts; and (c) waive any claim that any such suit, action or proceeding brought in such court has been brought in an inconvenient forum.

5.10 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. 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 OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

5.11 Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting party, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

[Remainder of Page Intentionally Left Blank]

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IN WITNESS WHEREOF, the parties have executed this Stockholders’ Agreement as of the date first written above.

C-PAK PREFCO SVP I, INC.,
a Delaware corporation
By:	/s/ Eric Blue
Name:	Eric C. Blue
Title:	President
CAPITAL PARK HOLDINGS CORP.,
a Delaware corporation
By:	/s/ Eric Blue
Name:	Eric C. Blue
Title:	Chief Executive Officer
PINEY LAKE OPPORTUNITIES NON-ECI MASTER FUND LP,
a Cayman Islands exempted limited partnership
By:	Piney Lake Capital Management LP as Advisor
By:	/s/ Michael Lazar
Name:	Michael B. Lazar
Title:	President

SIGNATURE PAGE TO STOCKHOLDERS’ AGREEMENT

SCHEDULE A

SCHEDULE OF PARTIES

C-PAK PREFCO SVP I, INC.

8117 Preston Road, Suite 300

Dallas, TX 75225

Attention: Eric Blue

Email: eric.blue@capitalpark.net

With a mandatory copy, which shall not constitute notice, to:

Locke Lord LLP

2200 Ross Avenue, Suite 2800

Dallas, TX 75201

Attention: Arthur Anthony

Email: aanthony@lockelord.com

Capital Park Holdings Corp.

8117 Preston Road, Suite 300

Dallas, TX 75225

Attention: Eric Blue

Email: eric.blue@capitalpark.net

With a mandatory copy, which shall not constitute notice, to:

Locke Lord LLP

2200 Ross Avenue, Suite 2800

Dallas, TX 75201

Attention: Arthur Anthony

Email: aanthony@lockelord.com

Piney Lake Opportunities NON-ECI Master Fund LP

Four Greenwich Office Park

Greenwich, CT 06831

Attention: Michael C. Cassetta

Facsimile No.: (203) 307-5988

Email: notices@piney-lake.com

With a mandatory copy, which shall not constitute notice, to:

Proskauer Rose LLP

One International Place

Boston, MA 02110

Attn: Peter J. Antoszyk

Facsimile No.: (617) 526-9899

Email: pantoszyk@proskauer.com

EX-10.7

Exhibit 10.7

Execution Version

INVESTORS’ RIGHTS AGREEMENT

By and Among

C-PAK CONSUMER PRODUCT HOLDINGS SPV I LLC,

C-PAK PREFCO SVP I, INC.,

and

PINEY LAKE OPPORTUNITIES ECI MASTER FUND LP

dated as of

May 3, 2019

INVESTORS’ RIGHTS AGREEMENT

THIS INVESTORS’ RIGHTS AGREEMENT (this “Agreement”), is made as of May 3, 2019, by and among C-PAK Consumer Product Holdings SPV I, LLC, a Delaware limited liability company (the “Company”), C-PAK PREFCO SVP I, INC., a Delaware corporation (“PrefCo”), and Piney Lake Opportunities ECI Master Fund LP, a Cayman Islands exempted limited partnership (“PLC”).

RECITALS

WHEREAS, PrefCo and PLC collectively hold all of the outstanding Common Units;

WHEREAS, PrefCo holds all of the outstanding Preferred Units; and

WHEREAS, the Company, PrefCo and PLC desire to enter into this Agreement.

NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:

1. Definitions. Capitalized terms used herein shall have the meaning set forth in the Amended and Restated Limited Liability Company Agreement of the Company, by and between the Company and each of the Persons party thereto (the “LLC Agreement”). Any capitalized terms used herein, but not defined in the LLC Agreement, have the meanings set forth in this Section 1:

“Agreement” is defined in the preamble.

“Company” is defined in the preamble.

“Certificate” is the Amended and Restated Limited Liability Company Agreement of the Company.

“LLC Agreement” is defined in Section 1.

“Notice” is defined in Section 3.1.

“Offered Interests” is defined in Section 3.

“Offered Units” is defined in Section 3.2.

“PLC” is defined in the preamble.

“PrefCo” is defined in the preamble.

“Public Offering” means any sale of common equity securities of the Company or any Subsidiary of the Company (or, in each case, any successor thereto) pursuant to an effective registration statement under the Securities Act filed with the Securities and Exchange Commission or the equivalent thereof in a jurisdiction other than the United States.

“Purchaser” is defined in Section 4.1.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Selling Member” is defined in Section 4.1.

“Tag-Along Notice” is defined in Section 4.1.

“Tag-Along Units” is defined in Section 4.1.

2. Registration Rights. The Company covenants and agrees that in connection with an initial Public Offering, the Company and each of PrefCo and PLC will enter into a customary registration rights agreement with respect to such Member’s Common Units, and such registration rights agreement shall provide PrefCo and PLC (i) demand rights and (ii) piggyback registration rights, in each case, commensurate with such Member’s Percentage Interest.

3. Preemptive Rights. Subject to the terms and conditions specified in this Section 3, the Company hereby grants to each of PrefCo and PLC a right of first offer, proportionate to their respective Percentage Interest, with respect to future sales by the Company or Subsidiaries of Interests or other equity interests of the Company or any of its Subsidiaries (the “Offered Interests”); provided, however, that this Section 3 shall not apply to any issuances to an unaffiliated third party in connection with the Company’s entry into a bona fide joint venture transaction with such unaffiliated third party so long as such unaffiliated third party agrees to subordinate its interest in such joint venture to the Preferred Units in a manner satisfactory to the holders of Preferred Units. Each time the Company or any Subsidiary proposes to offer or sell any Offered Interests, the Company shall first make an offering of such Offered Interests to each of PrefCo and PLC in accordance with the following provisions:

3.1 No later than thirty (30) days prior to selling the Offered Interests, the Company shall deliver written notice (the “Notice”) to PrefCo and PLC stating (i) its bona fide intention to offer such Offered Interests, (ii) the number and description of such Offered Interests to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such Offered Interests.

3.2 By written notification received by the Company, within twenty (20) days after giving of the Notice, each of PrefCo and PLC may elect to purchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Offered Interests which equals its respective Percentage Interest, and PrefCo and PLC shall thereafter purchase such Offered Interests within five (5) calendar days following the expiration of such twenty (20) day period.

3.3 If either PrefCo or PLC fail to, or indicate in writing that it will not, exercise the option within the period provided in Section 3.2, the Company may, during the thirty (30) day period following the expiration of the period provided in Section 3.2, offer the Offered Interests not subscribed for PrefCo or PLC to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than those specified in the Notice. If the Company does not enter into such an agreement for the sale of the Offered Interests within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived, and such Offered Interests shall not be offered unless first reoffered to each of PrefCo and PLC in accordance herewith.

4. Tag-Along Rights.

4.1 If at any time PrefCo receives a bona fide written offer to sell any or all of its Common Units which it intends to accept (the Units and interests proposed for sale being the “Tag-Along Units”) to an unaffiliated Person (the “Purchaser”), PrefCo (the “Selling Member”) shall give the other Members a written notice (the “Tag-Along Notice”) of the Selling Member’s intent to sell the Tag-Along Units. The Tag-Along Notice shall disclose the identity of the Purchaser, the Tag-Along Units proposed to be sold, the terms and conditions, including price, of the proposed sale, and any other material terms and facts relating to the proposed sale. The Tag-Along Notice shall further state that such other Members may participate in such sale on the terms and conditions applicable to the sale of the Tag-Along Units in accordance with the provisions of this Section 4.

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4.2 If any other Member wishes to so participate in any sale under this Section 4, it shall notify the Selling Member in writing of such intention as soon as practicable after, and in any event within ten (10) days after, the date of the Tag-Along Notice and shall have the right to sell to the Purchaser, on the same terms and conditions as are involved in such sale of Tag-Along Units by the Selling Member, the number of such Member’s Common Units equal to the number of Common Units owned by such Member multiplied such Member’s Percentage Interest (such aggregate number of Common Units together with the Tag-Along Units, the “Offered Units”). The Selling Member and, if participating, any other Member, shall sell to the Purchaser all, or at the option of the Purchaser, any part of the Offered Units proposed to be sold as described in the Tag-Along Notice at not less than the price and upon other terms and conditions, if any, not more favorable to the Purchaser than those described in the Tag-Along Notice; provided, however, that any purchase of Offered Units by the Purchaser shall be made from the Selling Member and, if participating, any other Member on a pro rata basis based upon number of Tag Along Units and the number of Common Units requested to be included in such transaction by the Purchaser.

4.3 The obligations of the parties pursuant to this Section 4 are subject to the satisfaction of the following conditions:

(a) in connection with any Transfer pursuant to this Section 4, (i) PLC shall not be required to make any representations or warranties in connection therewith other than with respect to title and ownership to the Units being conveyed by PLC and its authority; (ii) PLC’s indemnification obligations shall be limited to the lesser of (x) the amount of consideration received by PLC in such Transfer and (y) PLC’s pro rata portion of such indemnification obligation; (iii) PLC shall only be responsible for any indemnification obligation on a several (and not joint and several) basis; (iv) PLC’s indemnification obligations shall be limited to representations and warranties it makes regarding ownership of its equity in the Company; and (v) PLC shall not be required to enter into or be bound by any restrictive covenants (including non-competition and non-solicitation provisions) in connection with such Transfer pursuant to this Section 4; and

(b) if within ninety (90) days after the delivery of the Tag-Along Notice, the sale giving rise to the Tag Along Notice has not been consummated, all the restrictions on Transfer contained in this Agreement at such time shall again be in effect.

5. Miscellaneous.

5.1 Binding Effect. The Board of Managers has approved the execution and delivery of this Agreement by the Company and in doing so has explicitly approved the Transfers of Units contemplated herein, including, without limitation, pursuant to Section 4, for all purposes, including Section 14 of the LLC Agreement, which approval is irrevocable and may be relied on by the parties to this Agreement and shall be binding on the Members notwithstanding any subsequent action with respect thereto purported to be taken by the Board of Managers, the Company or any Member.

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5.2 Successors and Assigns. The rights, terms and conditions of this Agreement inure to the benefit of and are binding upon the respective successors and permitted assignees (including any Permitted Transferees of Units) of the parties hereto. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein.

5.3 Governing Law. This Agreement shall be governed by the internal law of the State of Delaware without regard to any choice of law principles.

5.4 Counterparts. This Agreement may be executed in counterparts and by facsimile, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

5.5 Titles and Subtitles; Pronouns. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement. All pronouns and any variations thereof used herein shall be deemed to refer to the masculine, feminine, singular or plural, as identity of the person or persons may require.

5.6 Notices. Any notice or other document required or permitted to be given or delivered to any party shall be in writing and sent (i) by e-mail if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), (b) by registered or certified mail with return receipt requested (postage prepaid) or (c) by a recognized overnight delivery service (with charges prepaid). All communications shall be sent to the respective parties at their addresses as set forth on Schedule A hereto, or to such email address or physical address as subsequently modified by written notice given in accordance with this Section 5.6.

5.7 Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the Company, PrefCo and PLC. Any amendment, termination, or waiver effected in accordance with this Section 5.7 shall be binding on all parties hereto, regardless of whether any such party has consented thereto. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.

5.8 Severability. In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.

5.9 Entire Agreement. This Agreement (including any Schedules hereto) and the agreements referenced herein constitute the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled.

5.10 Jurisdiction. Any legal proceedings arising out of any of the transactions or obligations contemplated by this Agreement may be brought in the Court of Chancery of the State of Delaware or the United States District Court for the District of Delaware, and appellate courts therefrom. The parties hereto irrevocably and unconditionally: (a) submit to the jurisdiction of such courts and agree to take any and all future action necessary to submit to such jurisdiction; (b) waive any obligation which they may now or hereafter have to the venue of any suit, action or proceeding brought in such courts; and (c) waive any claim that any such suit, action or proceeding brought in such court has been brought in an inconvenient forum.

4

5.11 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. 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 OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

5.12 Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting party, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

[Remainder of Page Intentionally Left Blank]

5

IN WITNESS WHEREOF, the parties have executed this Investors’ Rights Agreement as of the date first written above.

C-PAK CONSUMER PRODUCT HOLDINGS SPV I LLC,
a Delaware limited liability company
By:	/s/ Eric Blue
Name:	Eric C. Blue
Title:	Manager
C-PAK PREFCO SVP I, INC.,
a Delaware corporation
By:	/s/ Eric Blue
Name:	Eric C. Blue
Title:	Manager
PINEY LAKE OPPORTUNITIES ECI MASTER FUND LP,
a Delaware limited partnership
By:	Piney Lake Capital Management LP as Advisor
By:	/s/ Michael Lazar
Name:	Michael B. Lazar
Title:	President

Signature Page to Investors’ Rights Agreement

SCHEDULE A

SCHEDULE OF PARTIES

C-PAK Consumer Product Holdings SPV I LLC
8117 Preston Road, Suite 300
Dallas, TX 75225
Attention: Eric Blue
Email: eric.blue@capitalpark.net

With a mandatory copy, which shall not constitute notice, to:

Locke Lord LLP

2200 Ross Avenue, Suite 2800‎

Dallas, TX 75201‎

Attention: Arthur Anthony

Email: aanthony@lockelord.com

C-PAK PREFCO SVP I, INC.

8117 Preston Road, Suite 300‎

Dallas, TX 75225‎

Attention: Eric Blue

Email: eric.blue@capitalpark.net

With a mandatory copy, which shall not constitute notice, to:

Locke Lord LLP

2200 Ross Avenue, Suite 2800‎

Dallas, TX 75201‎

Attention: Arthur Anthony

Email: aanthony@lockelord.com

Piney Lake Opportunities ECI Master Fund LP

Four Greenwich Office Park

Greenwich, CT 06831

Attention: Michael C. Cassetta

Facsimile No.: (203) 307-5988

Email: notices@piney-lake.com

With a mandatory copy, which shall not constitute notice, to:

Proskauer Rose LLP

One International Place

Boston, MA 02110

Attn: Peter J. Antoszyk

Facsimile No.: (617) 526-9899

Email: pantoszyk@proskauer.com

EX-10.8

Exhibit 10.8

MANAGEMENT SERVICES AGREEMENT

This MANAGEMENT SERVICES AGREEMENT (this “Agreement”) is entered into and declared effective as of May 3, 2019 (the “Effective Date”) by and between C-PAK Consumer Product Holdings LLC (the “Company”) and Capital Park Holdings Corp., a Delaware corporation (the “Parent Company”).

WHEREAS, the Company together with certain of its Affiliates have acquired substantially all of the assets associated with the Joy and Cream Suds Brands from The Proctor and Gamble Company (the “Transaction”);

WHEREAS, in connection with the Transaction and related transactions, the Parent Company (or its affiliates) provided advice and analysis including assistance with due diligence and other investigatory matters related to the business of the Company and the industries in which it operates, and advice with respect to equity and debt facilities, arrangement and negotiation of senior executive management employment agreements and related arrangements and other matters (collectively, “Advisory Services”);

WHEREAS, the Parent Company has expertise and specifically skills in private equity corporate finance, mergers and acquisitions, strategic corporate planning, operating management and other management skills and advisory services;

WHEREAS, the Company will require the Parent Company’s special skills and management advisory services in connection with its business operations and execution of its strategic plan; and

WHEREAS, the Parent Company is willing to provide such skills and services to the Company on the terms set forth below.

NOW THEREFORE, in consideration of the mutual agreements set forth below, the parties hereto agree as follows:

1. Services. The Parent Company shall furnish the following management services (the “Services”) to the Company:

a.	financial, managerial and operational advice in connection with the Company’s day-to-day operations, including advice with respect to the development and implementation of strategies for improving the operating, marketing and financial performance of the Company;
b.	advice in connection with the Company’s negotiation and consummation of agreements, contracts, documents and instruments necessary to provide the Company with senior secured debt financing from banks or other financial institutions or other entities on terms and conditions satisfactory to the Company;

c.	advice in connection with the financing, acquisition, disposition, merger, combination and/or change of control transactions involving the Company (in whatever manner any of the foregoing may be structured);
d.	sourcing, evaluating and monitoring of inorganic growth opportunities for the Company;
e.	review of industry trends and major developments that have the potential to impact the Company in a material way; and
f.	any additional services reasonably requested by the board of directors of the Company (the “Board”) that are reasonably related to the Company’s business objectives.

The Parent Company shall assign dedicated personnel to be principally responsible for providing the Services to the Company and such personnel, on behalf of the Parent Company, shall devote such time and effort to the performance of the Services as deemed reasonably necessary or appropriate; provided, however, that no minimum number of hours shall be deemed to be required to be devoted on a weekly, monthly, annual or other basis.

2. Compensation Matters.

a.

Transaction Fee. In consideration for the Parent Company having provided the Advisory Services in connection with the Transaction, the Company acknowledges and agrees that the Parent Company is owed the Transaction Fee (as defined below). For purposes of this Agreement, the Transaction Fee shall be defined as an amount equal to the sum of the enterprise value of the Transaction multiplied by 3%. As of the date of this Agreement, the Company shall accrue as a liability 100% of the amount of the Transaction Fee (the “Transaction Fee Accrued Liability”), which accrued liability shall sit on the Company’s balance sheet and be reflected in the Company’s general accounts in a separately designated account (the “Management Services Accrued Liability Account”).

b.

Management Fees. Subject to the limitations set forth herein, the Parent Company shall earn, on a quarterly basis in arrears commencing with the fiscal quarter (the “Initial Fiscal Quarter”) following the closing date of the Transaction, the Management Fee (as defined below) for rendering the Services. The applicable Management Fee shall be deemed to be earned by the Parent Company and shall, on the last day of each fiscal quarter, increase the account balance of the Management Services Accrued Liability Account. The “Management Fee” shall be an amount equal to four percent (4%) of the Company’s quarterly reported EBITDA (as defined below) for the fiscal quarter immediately preceding the fiscal quarter in which the Management Fee is to be deemed earned by the Parent Company; provided that (a) the calculations of reported EBITDA and the applicable Management Fee shall have been verified by the Company’s current chief executive officer or other highest ranking officer (the “CEO”) and the chief financial officer of the Company and (b) in connection with the booking into the Management Services Accrued Liability Account of any Management Fee deemed earned by the Parent Company for the Initial Fiscal Quarter shall include the calculation of such Management Fee commencing as of the date immediately following the closing date of the Transaction through the calculation date with respect to the Initial Fiscal Quarter. Any payment due the Parent Company in connection with the termination of this Agreement shall be prorated for the period beginning on the applicable fiscal quarter and ending on the date of termination of this Agreement.

c.

Reductions in the Management Services Accrued Liability Account Balance. The Parties hereto acknowledge and agree that any dividends or distributions made by the Company to the Parent Company (other than dividends and distributions paid in connection with the tax liability of Parent Company or any of its direct or indirect equityholders) shall result in a reduction in the balance of the Management Services Accrued Liability Account.

For purposes of this Agreement, reported “EBITDA” shall be defined as with respect to the Company for any calculation period related to this Agreement, net income for such period, plus the sum of the following items for the same period, all determined in accordance with GAAP: (i) interest expense, (ii) depreciation, depletion, obsolescence and amortization of property, (iii) tax expense, and (iv) non-cash stock option expense.

3.

Term. The initial term of this Agreement shall be ten (10) years from the Effective Date (the “Term”) provided that this Agreement may be terminated by the Company by an affirmative vote of a majority of the directors of the Board upon ninety (90) days prior written notice to the Parent Company (the “Company Termination Right”). In connection with the exercise of the Company Termination Right, the Company shall be obligated to cause to be paid to the Parent Company, in immediately available funds, a one-time payment (the “Termination Payment”) equal to the product of: (a) the last installment of the Management Fee paid to the Parent Company pursuant to this Agreement and (b) twenty-five (25). The Parent Company shall have no right to terminate this Agreement without the affirmative consent of a majority of the directors of the Board. Notwithstanding the foregoing or anything contained herein to the contrary, the Parties acknowledge and agree that (a) the Company shall have no obligation to make the Termination Payment and (b) this Agreement shall automatically terminate upon the effective date of a sale of substantially all or all of the assets or common equity interests of the Company to a party not otherwise affiliated with the Company.

4.

Assignment. This Agreement and any rights and obligations hereunder shall not be assignable or transferable by the Parent Company, other than to an affiliate of the Parent Company, without the prior written consent of the Company, or by the Company to any other person or entity at any time.

5. Indemnification.

a. The Company shall indemnify and hold harmless the Parent Company, its affiliates, respective directors, officers, controlling persons (within the meaning of Section 15 of the Securities Act of 1933 or Section 20(a) of the Securities Exchange Act of 1934), if any, agents and employees (the Parent Company, its affiliates, their agents, their employees and such other specified persons being collectively referred to as the “Parent Company Indemnified Persons” and individually as a “Parent Company Indemnified Person”) from and against any and all claims, liabilities, losses, damages and expenses incurred by any Parent Company Indemnified Person which are related to or arise out of (i) actions taken or omitted to be taken (including any untrue statements made or any statements omitted to be made) by the Company (and not at the direction of any Parent Company Indemnified Person) or (ii) actions taken or omitted to be taken by a Parent Company Indemnified Person with the Company’s consent or in conformity with the Company’s instructions or the Company’s actions or omissions (and not at the direction of any Parent Company Indemnified Person) (the “Indemnification Obligations”), and will reimburse each Parent Company Indemnified Person for all reasonable documented costs and expenses including reasonable fees of any Parent Company Indemnified Person’s counsel, as they are incurred, in connection with investigating, preparing for, defending, or appealing any action, formal or informal claim, investigation, inquiry or other proceeding, whether or not in connection with pending or threatened litigation, whether or not any Parent Company Indemnified Person is named as a party thereto and whether or not any liability results therefrom, in each case, so long as it relates to the Indemnified Obligations. The Company, however, will not be responsible for any claims, liabilities, losses, damages or expenses pursuant to the proceeding sentence that have resulted principally from the bad faith, negligence or willful misconduct of the Parent Company. The Company also agrees that neither the Parent Company nor any other Parent Company Indemnified Person shall have any liability to the Company for or in connection with the Parent Company’s engagement hereunder, except for any such liability for claims, liabilities, losses, damages or expenses incurred by the Company that have resulted principally from the Parent Company’s own bad faith, negligence or willful misconduct. The Company further agrees that they will not, without the prior written consent of the Parent Company, which shall not be unreasonably withheld, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Parent Company Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional release of the Parent Company and each other Parent Company Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceeding.

b.

The Parent Company shall indemnify and hold harmless the Company, its affiliates, respective directors, officers, controlling persons (within the meaning of Section 15 of the Securities Act of 1933 or Section 20(a) of the Securities Exchange Act of 1934), if any, agents and employees (the Company, its affiliates, agents, employees and such other specified persons being collectively referred to as “Company Indemnified Persons” and individually as a “Company Indemnified Person”) from and against any and all claims, liabilities, losses, damages and expenses incurred by any Company Indemnified Person (including fees and disbursements of the respective Company Indemnified Person’s counsel) that have resulted principally from the bad faith, negligence or willful misconduct of the Parent Company in providing the Services hereunder, and will reimburse each Company Indemnified Person for all costs and expenses, including fees of any Company Indemnified Person’s counsel, as they are incurred, in connection with investigating, preparing for, defending or appealing any action, formal or informal claim, investigation, inquiry or other proceeding, whether or not in connection with pending or threatened litigation, caused by or arising out of or that have resulted principally from the bad faith, negligence or willful misconduct of the Parent Company in providing the Services hereunder.

c.

The foregoing right to indemnity shall be in addition to any rights of the Parent Company, the Company, a Parent Company Indemnified Person and/or any Company Indemnified Person may have at common law or otherwise and shall remain in full force and effect following the completion of any termination of this Agreement. Each party hereto consents to personal jurisdiction and to service and venue in any court in which any claim is subject to this Agreement is brought against another party.

6.

Governing Law. This Agreement shall be construed and administered, and the validity hereof shall be determined in accordance with the laws of the State of Texas, without regard to its conflicts of laws rules.

7.

Arbitration. All claims, demands, disputes, controversies, differences or misunderstandings between the parties relating to this Agreement shall be settled by arbitration, in accordance with the rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator or arbitrators may be entered and enforced in any court having jurisdiction, and jurisdiction to be in no way limited by the paragraph entitled “Governing Law” above.

8. Subordination. Parent agrees that the payment, whether regularly scheduled or otherwise, of the Transaction Fee Accrued Liability, the Management Fee, the Termination Payment and all other obligations of the Company in respect of, arising under or relating to this Agreement, including, without limitation, any costs of collection (collectively, the “Subordinated Obligations”) is hereby expressly subordinated to the prior indefeasible payment in full in cash of the Senior Debt Obligations (as defined below), the Preferred Equity Obligations (as defined below) and the Holding Company Put Obligations (as defined below) pursuant to the terms of this Agreement and the termination of all commitments under the Loan Documents (the earliest date on which the foregoing are satisfied, the “Termination Date”). As used herein, “Senior Debt Obligations” shall mean all of the Obligations under and as defined in that certain Loan Agreement, dated as of May 3, 2019 (as amended, restated, amended and restated, supplemented, or otherwise modified, replaced or refinanced from time to time, the “Loan Agreement”), by and among the Company, C-PAK Consumer Product IP SPV LLC, a Delaware limited liability company, C-Pak Consumer Product Holdings SPV I LLC, a Delaware limited liability company (“Holdings”), the lenders from time to time party thereto, as Lenders (as defined therein), and Piney Lake Opportunities ECI Master Fund LP (“Piney Lake”), as administrative agent for the Lenders and as collateral agent for the Secured Parties (as defined therein). As used herein, “Preferred Equity Obligations” shall mean any obligation of C-Pak PrefCo SVP I, Inc. (“PrefCo”) to redeem the Preferred Stock (as defined in that certain Amended and Restated Certificate of Incorporation of PrefCo, dated as of May 3, 2019, as may be amended, restated, amended and restated, supplemented, or otherwise modified) and all accrued and unpaid dividends, liquidation preference, any fees and expenses, and any other amounts arising thereunder or in connection therewith, in each case, due and payable to Piney Lake or any of its affiliates or permitted assignees as holders of Preferred Stock. As used herein, “Holding Company Put Obligations” means any obligation of Holdings to repurchase Common Units (as defined in that certain Amended and Restated Limited Liability Company Agreement of Holdings, dated as of May 3, 2019 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the “Holdings LLCA”)) from Piney Lake or any of its permitted assignees or transferees pursuant to the exercise of the put right by Piney Lake or any of its permitted assignees or transferees pursuant to Section 15.2 of the Holdings LLCA (the “Holdings Common Put”) and any obligations arising in connection therewith or relating thereto. The Senior Debt Obligations, the Preferred Equity Obligations and the Holding Company Put Obligations are collectively referred to herein as the “Senior Obligations”.

a. In the event of any distribution of the assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company (whether or not in bankruptcy, insolvency or receivership proceedings and whether voluntarily or involuntarily), or upon any assignment for the benefit of creditors, or upon any other marshaling of the assets and liabilities of the Company for the benefit of any creditor or creditors or otherwise (a “Liquidation”):

i.	no payment or distribution of any character, whether in cash, securities or other property, shall be made in respect of the Subordinated Obligations until the Termination Date (whether or not all or any of the Senior Obligations shall be been accelerated;
ii.	any payment or distribution of any character, whether in cash, securities or other property, which, except for the terms of this Section 8(a), would be payable or deliverable in respect of the Subordinated Obligations shall be paid or delivered directly to the holders of Senior Obligations for application to the outstanding Senior Obligations, until the same are paid in full; and

iii. if, notwithstanding the foregoing terms of this Section 8(a), any payment or distribution of any character, whether in cash, securities or other property, shall be received in a Liquidation by the holders of the Subordinated Obligations before the Termination Date as provided above, such payment or distribution shall be held in trust for the benefit of, and shall be immediately paid or delivered to (in the same form and with all applicable endorsements), the holders of Senior Obligations for application (in the case of cash) to the outstanding Senior Obligations, until the same are paid in full or to be held as collateral for (in the case of non-cash property or securities) the payment or prepayment in full of the Senior Obligations; provided, however, that such amounts paid to the holders of Senior Obligations shall not be deemed to discharge the Subordinated Obligations.

b.

The Company hereby agrees that it may not make, and the Parent Company hereby agrees that it will not accept, any payment with respect to the Subordinated Obligations or any dividend or distribution that reduces the Subordinated Obligations until the Termination Date; provided that, the Company may make payments with respect to the Subordinated Obligations and dividends and distributions that reduce the Subordinated Obligations so long as (i) such payments, dividends or distributions are permitted to be made under the Loan Agreement, (ii) there are no outstanding and unpaid amounts with respect to the PrefCo Obligations, and (iii) there are no outstanding and unpaid amounts with respect to the Holdings Company Put Obligations. The Company shall not be required to make any payment with respect to the Subordinated Obligations or dividends or distributions to reduce the Subordinated Obligations at any time when such payment or prepayment is prohibited from being made due to the existence of any of the conditions in the immediately preceding sentence (provided that any amounts that not paid may be accrued). Prior to the indefeasible payment in full in cash of the Senior Obligations and the termination of all commitments under the Senior Obligation Documents, the Parent Company and any other holders of Subordinated Obligations shall not, in their capacities as creditors of the Company, (a) take any action to accept, ask for, sue for or demand any payment (including participating with, or supporting, any other person in taking such action), to (A) enforce or collect (including by set-off) the whole or any part of the Subordinated Obligations or (B) commence (or join with any other creditor to commence) judicial enforcement of any of the rights and remedies under this Agreement or applicable law (including any Liquidation proceeding) with respect to the Subordinated Obligations or any of Company’s property or assets, (b) take any action to exercise any rights or remedies (including taking any security or collateral) with respect to the Subordinated Obligations that may be available to the holders of Subordinated Obligations, either at law or at equity, by judicial proceeding or otherwise, (c) institute or participate in any proceedings or take any other action challenging the enforceability, validity, security, perfection or priority of any liens or security interests securing the Senior Obligations.

c.

The Subordinated Obligations are unsecured obligations of the Company and no collateral secures the obligations of the Company under this Agreement. As long as any Senior Obligations are outstanding, any liens and security interests securing or purporting to secure all or any Subordinated Obligations in contravention of the foregoing sentence shall be and hereby are subordinated for all purposes and in all respects to the liens and security interests of the holders of the Senior Debt Obligations, regardless of the date, time, manner or order of grant, attachment or perfection of any such liens and/or security interests and notwithstanding the provisions of the Uniform Commercial Code or any other applicable law or decision.

d.	For the purposes of this Section 8, the Termination Date shall not have occurred, unless and until the holders of Senior Obligations shall have received cash or, if so approved by holders of the Senior Obligations sufficient to bind all holders of Senior Obligations, securities, or both, equal to the full amount of such Senior Obligations at the time outstanding and, with respect to the Senior Debt Obligations, all commitments to extend further credit to the Company have terminated.
e.	The Parent Company agrees that no payment or distribution to any holder of Senior Obligations pursuant to this Agreement shall entitle Parent Company to exercise any rights of subrogation in respect thereof until the Termination Date; provided, however, that such rights and remedies shall remain waived and released at any time any Secured Parties (as defined in the Loan Agreement) (with or through their designees) or any other holder of Senior Obligations (or all of them) have acquired all or any portion of the Collateral (as defined in the Loan Agreement) by credit bid, strict foreclosure or through any other exercise of remedies available thereto.
f.	If any payment on account of the Subordinated Obligations not permitted by the terms of this Agreement is received by the holder thereof prior to the Termination Date, such payment shall be held in trust by such holder of the Subordinated Obligations for the benefit of the holders of the Senior Obligations, and shall immediately be paid over to the holders of the Senior Obligations, or their authorized representative, for application to the payment of the Senior Obligations until paid in full.
g.	The holders of the Senior Obligations may, at any time and from time to time with or without notice, without impairing or releasing the subordination provisions of this Section 8, do any one or more of the following: (a) change the manner, place, terms (including any amount required to be paid or any maturity date) or amount of, and/or change or extend the time of payment of or renew or alter, all or any of the Senior Obligations, or amend, restate, amend and restate, modify, supplement or terminate in any manner any instrument, document or agreement relating to the Senior Obligations; (b) release any person or entity liable in any manner for the payment or collection of the Senior Obligations; (c) exercise or refrain from exercising any rights in respect of the Senior Obligations against the Company or any other person or entity; (d) apply any monies or other property paid by any person or entity or otherwise realized in any manner to the Senior Obligations; or (e) accept or release any security for the Senior Debt Obligations.
h.	No modification or waiver of the terms of this Agreement shall be effective without the prior written consent of the holders of the Senior Obligations necessary to bind all of the holders of Senior Obligations. Prior to the Termination Date, no holders of Subordinated Obligations shall, without the prior written consent of such holders of the Senior Obligations necessary to bind all of the holders of Senior Obligations, agree to any amendment, modification or supplement to this Agreement which would be adverse to the interests of the Company or the interests of the holders of the Senior Obligations in their capacity as such or assign all or any part of the Subordinated Obligations.

i.

To the fullest extent permitted by applicable law, the holders of Subordinated Obligations hereby waive: (a) notice of acceptance of this Agreement by any (and all) holders of the Senior Obligations; (b) notice of the existence, or creation or non-payment, of all or any of the Senior Obligations; and (c) all diligence in collection or protection of, or realization upon, the Senior Obligations or any portion thereof or security therefor.

j.

The holders of Senior Obligations are intended third party beneficiaries of the provisions of Section 8 of this Agreement and, as such, shall be permitted to enforce such provisions.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

C-PAK CONSUMER PRODUCT HOLDINGS LLC, a Delaware limited liability company
By:	/s/ Lloyd Ward‎
Name:	Lloyd Ward
Title:	Chief Executive Officer

CAPITAL PARK HOLDINGS CORP., a Delaware corporation
By:	/s/ Eric Blue‎
Name:	Eric Blue
Title:	CEO and Chief Investment Officer

EX-10.9

Exhibit 10.9

Confidential

TRANSACTION AGREEMENT

Between

THE PROCTER & GAMBLE COMPANY,

C-PAK CONSUMER PRODUCT HOLDINGS LLC

and

CAPITAL PARK HOLDINGS CORP.

Dated as of

May 3, 2019

TABLE OF CONTENTS

			Page
I.	PURCHASE AND SALE		1
	1.01	Sale of Assets	1
	1.02	Assumption of Liabilities	1
	1.03	Misallocated Transfers	1
	1.04	Acquired Assets; Excluded Assets	2
	1.05	Assumed Liabilities; Excluded Liabilities	5
	1.06	Transfers In Violation of Law or Required Consents	7
	1.07	Waiver of Bulk-Sales Laws	8
	1.08	Closing	8
	1.09	Purchase Price	8
	1.10	Closing Deliveries	8
	1.11	Conveyance of Acquired Assets and Assumption of Assumed Liabilities	9
II.	REPRESENTATIONS AND WARRANTIES OF SELLER		10
	2.01	Due Organization, Good Standing and Corporate Power	10
	2.02	Authorization of Agreement	10
	2.03	Consents and Approvals; No Violations	10
	2.04	Intellectual Property	11
	2.05	Litigation	12
	2.06	Compliance With Laws and Permits	12
	2.07	Contracts	13
	2.08	Financial Statements; Absence of Changes; Inventory	15
	2.09	Taxes	16
	2.10	Broker’s or Finder’s Fee	17
	2.11	Title to Properties; Security Interests	17
	2.12	Customers & Suppliers	17
	2.13	Product Warranty; Product Liability; Promotions	17
	2.14	No Other Representations or Warranties	18

-i-

TABLE OF CONTENTS

(continued)

			Page
III.	REPRESENTATIONS AND WARRANTIES OF ACQUIROR		18
	3.01	Due Organization, Good Standing and Corporate Power	18
	3.02	Authorization of Agreement	19
	3.03	Consents and Approvals; No Violations	19
	3.04	Broker’s or Finder’s Fee	19
	3.05	Financing	19
	3.06	Litigation	20
	3.07	Solvency	20
	3.08	Independent Investigation	20
	3.09	No Other Representations or Warranties; Acknowledgement by Acquiror	20
IV.	COVENANTS		21
	4.01	Conduct of Joy Business and the Cream Suds Business Pending the Closing	21
	4.02	Further Assurances; Efforts To Obtain Consents; Antitrust Clearance	22
	4.03	Public Announcements	23
	4.04	Notification of Certain Matters	23
	4.05	Access	24
	4.06	Agreement for Exchange of Information	24
	4.07	Privileged Matters	26
	4.08	Non-Solicitation; No Hiring	27
	4.09	Intellectual Property Assignment/Recordation	27
	4.10	Use of Seller Names and Marks	27
	4.11	Removal of Tangible Assets	29
	4.12	Access to Fragrance	29
	4.13	Insurance Matters	30
	4.14	Confidentiality	30
	4.15	Transition Period Assets	32
	4.16	Transition Coordination; Completion of Agreements	33
	4.17	Guaranty	33
	4.18	Right of Participation	34

-ii-

TABLE OF CONTENTS

(continued)

			Page
V.	CONDITIONS		34
	5.01	Joint Conditions	34
	5.02	Conditions to the Obligation of Acquiror	34
	5.03	Conditions to the Obligation of Seller	35
	5.04	Frustration of Conditions	35
VI.	TERMINATION AND ABANDONMENT		36
	6.01	Basis for Termination	36
	6.02	Notice of Termination; Return of Documents; Continuing Confidentiality Obligation	37
	6.03	Effect of Termination	37
VII.	INDEMNIFICATION		38
	7.01	Indemnification by Acquiror	38
	7.02	Indemnification by Seller	38
	7.03	Calculation and Other Provisions Relating to Indemnity Payments	38
	7.04	Procedures for Defense, Settlement and Indemnification of Claims	39
	7.05	Additional Matters	41
	(a)	Cooperation in Defense and Settlement	41
	7.06	Exclusive Remedy	42
	7.07	Limitations on Indemnification	43
	7.08	Tax Treatment of Indemnification	43
VIII.	TAX MATTERS		44
	8.01	Allocation of Cash Purchase Price	44
	8.02	Transfer Taxes	44
	8.03	Miscellaneous	44
IX.	MISCELLANEOUS		44
	9.01	Survival of Representations and Warranties	44
	9.02	Expenses	45
	9.03	Entire Agreement	45
	9.04	Governing Law; Jurisdiction; Waiver of Jury Trial	45
	9.05	Notices	46
	9.06	Amendments and Waivers	47
	9.07	No Third-Party Beneficiaries	47
	9.08	Assignability	47
	9.09	Construction	48
	9.10	Severability	48
	9.11	Counterparts, Etc	48
	9.12	Specific Performance	49
	9.13	Disclosure Letters	49
	9.14	Dispute Resolution	49
	9.15	Obligations of Affiliates	49
X.	DEFINITIONS		50

EXHIBITS
Exhibit A	Transition Services Agreement
Exhibit C	Shared Technology License Agreement
Exhibit D	Transitional Distribution Agreement
Exhibit E	Transitional Supply Agreement

-iii-

TRANSACTION AGREEMENT

This Transaction Agreement (this “Agreement”), dated as of May 3, 2019, is between The Procter & Gamble Company, an Ohio Corporation (“Seller”), C-PAK Consumer Product Holdings LLC, a Delaware limited liability company (“Acquiror”), and Capital Park Holdings Corp., a Delaware corporation, solely in its capacity as guarantor pursuant to Section 4.24 (“Guarantor”).

RECITALS

1. Seller is engaged, directly and indirectly through certain of its Subsidiaries, in the Joy Business and the Cream Suds Business.

2. Seller has determined that it would be appropriate to divest the Joy Business and the Cream Suds Business in the manner contemplated hereby.

3. Acquiror desires to purchase from Seller, and Seller desires to Convey or cause to be Conveyed to Acquiror, the Acquired Assets, and Acquiror desires to assume from Seller and its Subsidiaries, and Seller desires to assign or cause to be assigned to Acquiror, the Assumed Liabilities, in each case, on the terms and subject to the conditions hereinafter set forth.

Accordingly, the Parties agree as follows:

I. PURCHASE AND SALE

1.01 Sale of Assets. Except as provided in Section 1.06, effective as of the Closing, Seller will sell, assign, transfer, convey and deliver (“Convey”) (and will cause any applicable Affiliate of Seller to Convey) to Acquiror (or one or more Affiliates of Acquiror), and Acquiror (or one or more Affiliates of Acquiror) will purchase from Seller or the applicable Affiliate of Seller, all of Seller’s or its Affiliates’ respective right, title and interest in and to all of the Acquired Assets.

1.02 Assumption of Liabilities. Effective as of the Closing, Seller will assign (and will cause any applicable Affiliate of Seller to assign) to Acquiror (or one or more Affiliates of Acquiror), and Acquiror (or one or more Affiliates of Acquiror) will assume, perform and fulfill when due and, to the extent applicable, comply with (or will cause any of its Affiliates to assume, perform and fulfill when due and, to the extent applicable, comply with), all of the Assumed Liabilities, in accordance with their respective terms.

1.03 Misallocated Transfers. If, at any time from and after the Closing, any member of the Seller Group or the Acquiror Group (as applicable) discovers that it or any of its Affiliates is the owner of, receives or otherwise comes to possess any Asset (including the receipt of payments made pursuant to Contracts and proceeds from accounts receivable) or is liable for any Liability that is attributable to Person that is a member of the other Group, respectively, pursuant to this Agreement or any Ancillary Agreement (except in the case of any acquisition of Assets or assumption of Liabilities from the other Group for value subsequent to the Closing), then such Party will promptly Convey, or cause to be Conveyed, such Asset or assign, or cause to be assigned, such Liability to the Person so entitled thereto or responsible therefor (and the other Party will or will cause such entitled Person to accept such Asset or assume, perform and fulfill when due and, to the extent applicable, comply with, such Liability). Prior to any such Conveyance or assignment, such Asset will be held in accordance with Section 1.06.

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1.04 Acquired Assets; Excluded Assets.

(a) For purposes of this Agreement, “Acquired Assets” means all Assets owned or held by any member of the Seller Group (y) that are included in any of Section 1.04(a)(i) through Section 1.04(a)(xi), or (z) that are otherwise exclusively used or held for exclusive use in the Joy Business or in the Cream Suds Business, in the case of each of clauses (y) and (z), whether now existing or hereafter acquired prior to the Closing:

(i) bottle molds and other tangible personal property listed on Section 1.04(a)(i) of the Seller Disclosure Letter;

(ii) all interests, rights, claims and benefits under, pursuant to, and associated with the Contracts (A) listed on Section 1.04(a)(ii) of the Seller Disclosure Letter, or (B) exclusively used in or exclusively related to the Joy Business or the Cream Suds Business (collectively, the “Acquired Contracts”);

(iii) all Permits that are exclusively used or held for exclusive use in the Joy Business and the Cream Suds Business;

(iv) all Intellectual Property (A) exclusively used in or exclusively relating to the Joy Business or the Cream Suds Business; or (B) otherwise listed on Section 1.04(a)(iv) of the Seller Disclosure Letter solely in the Territory, and in the case of each of clauses (A) and (B), all goodwill related to any of the foregoing and all rights to sue or recover and retain damages and costs and attorneys’ fees for infringement, misappropriation or other violation of any of the foregoing, whether occurring prior to, on or after the Closing Date (all of the foregoing, the “Acquired IP Assets”);

(v) (A) all of the financial records exclusively relating to the Joy Business, the Cream Suds Business, the Acquired Assets or the Assumed Liabilities that do not form part of the general ledger of Seller or any of its Affiliates, (B) to the extent not publicly available, and within Seller’s possession all prosecution files, histories, certificates, notices and registrations pertaining to the Intellectual Property listed on Section 1.04(a)(iv) of the Seller Disclosure Letter, and (C) all other books, records, ledgers, files, documents, correspondence, lists, plats, drawings, photographs, product literature (including historical), branding, advertising and promotional materials, packaging artwork, customer lists, supplier lists, customer financial data and information, sales, product and marketing reports, market and market share data, operating, production and other manuals, manufacturing and quality control records and procedures, research and development files, data, data models, reports, surveys, invoices, purchase orders, receipts, engineering drawings, notebooks and logbooks, in all cases whether in paper, microfilm, microfiche, computer tape or disc, magnetic tape or any other form, and that in any such case are exclusively related to the Joy Business, the Cream Suds Business, the Acquired Assets or the Assumed Liabilities (collectively, the “Joy Books and Records” and the “Cream Suds Books and Records”); provided, however, that (1) none of clauses (A) - (C) will include Intellectual Property in any such records, writings or other materials (which is the subject of Section 1.04(a)(iv)), (2) Seller will be entitled to retain a copy of the Joy Books and Records and the Cream Suds Books and Records, which will be subject to the provisions of Section 4.07, (3) neither clause (A) nor (C) will be deemed to include any books, records or other items or portions thereof (w) with respect to which it is not reasonably practicable to identify and extract the portion thereof exclusively related to the Joy Business or the Cream Suds Business from the portions thereof that relate to the businesses of Seller other than the Joy Business or the Cream Suds Business, (x) that are subject to restrictions on transfer pursuant to applicable Laws regarding personally identifiable information or Seller’s privacy policies regarding personally identifiable information or with respect to which transfer would require any Governmental Approval under applicable Law or (y) that relate to any employees of Seller or its Affiliates, and (4) in no event will Joy Books and Records and Cream Suds Books and Records include any Tax records or Tax Returns;

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(vi) all rights to the Joy Business’ and the Cream Suds Business’ current and historical print, television, Internet, point of sale and other advertising;

(vii) the benefits of all prepaid expenses (other than allocated expenses), including any (A) prepaid leases and prepaid rentals, in each case to the extent exclusively related to the Joy Business or Cream Suds Business, and (B) any advertising (including television, print, Internet and point of sale) to the extent such advertising has been fully or partially created but not published, broadcasted or delivered prior to the Closing;

(viii) all goodwill of the Joy Business and the Cream Suds Business;

(ix) subject to Section 1.04(a)(iv) all rights to Actions, causes of action, lawsuits, judgments, claims and demands (A) relating to, resulting from or arising out of the conduct of or otherwise exclusively related to the Joy Business and the Cream Suds Business after the Closing Date, or (B) otherwise relating to any Acquired Asset or Assumed Liability;

(x) the other Assets identified on Section 1.04(a)(x) of the Seller Disclosure Letter; and

(xi) the right to enforce the Seller Group’s rights in (A) the confidentiality provisions of any confidentiality, non-disclosure or other similar Contracts that are not otherwise an Acquired Asset to the extent such provisions relate to confidential information of the Joy Business or the Cream Suds Business and (B) any Intellectual Property assignment provisions of any Intellectual Property assignment Contract that is not otherwise an Acquired Asset to the extent such provisions relate to the Business IP Assets.

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(b) Notwithstanding Section 1.04(a) or any other provision hereof, the Acquired Assets will not in any event include any of the following Assets (the “Excluded Assets”):

(i) the Assets listed or described on Section 1.04(b)(i) of the Seller Disclosure Letter;

(ii) the Excluded IP Assets;

(iii) all Assets in respect of any and all Compensation and Benefit Plans and all Assets in respect of all other compensation and benefit plans sponsored by Seller or its Affiliates;

(iv) all employment relationships and employment agreements of Seller or its Affiliates, including those relating to the Joy Business and the Cream Suds Business;

(v) all Real Property Interests of Seller and its Affiliates;

(vi) all accounts receivable of Seller and its Affiliates;

(vii) all cash and cash equivalents (including investments and securities) of Seller and its Affiliates;

(viii) any tangible property of Seller or its Affiliates other than the tangible property described in Section 1.04(a)(i) and Section 1.04(a)(x) or otherwise exclusively used or held for use in the Joy Business or the Cream Suds Business;

(ix) any furniture, office equipment or personal use Assets of employees, other than Assets transferred pursuant to Section 1.04(a)(i);

(x) except as set forth in Section 1.04(a)(xi), all rights to Actions, causes of action, lawsuits, judgments, claims, counterclaims or demands of Seller or its Affiliates against a party other than Acquiror or its Affiliates that (A) arose prior to the Closing or (B) are not exclusively related to the Joy Business or the Cream Suds Business;

(xi) all financial and Tax records relating to the Joy Business and the Cream Suds Business that form part of the general ledger of Seller or any of its Affiliates, any work papers of Seller’s auditors and any other Tax records (including accounting records) of Seller or any of its Affiliates;

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(xii) subject to Section 4.13, all rights to insurance policies or practices of Seller and its Affiliates (including any captive insurance policies, fronted insurance policies, surety bonds or corporate insurance policies or practices, or any form of self-insurance whatsoever), any refunds paid or payable in connection with the cancellation or discontinuance of any such policies or practices and any claims made under such policies;

(xiii) all records prepared by or on behalf of Seller or its Affiliates relating to the negotiation of the transactions contemplated by this Agreement and all records prepared by or on behalf of Seller or its Affiliates in connection with the potential divestiture of all or a part of the Joy Business and the Cream Suds Business or any other business or Asset of Seller or its Affiliates, including (A) proposals received from third parties and analyses relating to such transactions and (B) without limiting Section 4.07, communications with legal counsel representing Seller or its Affiliates and the right to assert the attorney-client privilege with respect thereto;

(xiv) all rights of Seller or its Affiliates under this Agreement or any Ancillary Agreement and the certificates, instruments and Transfer Documents delivered in connection therewith;

(xv) all software owned or used by or licensed to Seller and its Affiliates;

(xvi) any and all Assets of Seller or its Affiliates that are not exclusively used or held for exclusive use in the Joy Business or the Cream Suds Business, and are not otherwise identified in Sections 1.04(a)(i) through 1.04(a)(xi) as an Acquired Asset; and

(xvii) Cream Suds Inventory and Joy Inventory.

1.05 Assumed Liabilities; Excluded Liabilities.

(a) For the purposes of this Agreement, “Assumed Liabilities” will mean only the following Liabilities:

(i) all Liabilities of Seller and its Affiliates to the extent relating to, resulting from or arising out of the ownership or use of the Acquired Assets or the operation or the conduct of the Joy Business or the Cream Suds Business in the Territory, in each case, by Acquiror and its Affiliates after the Closing (it being acknowledged and agreed that, except as otherwise expressly set forth below, in no event will the Assumed Liabilities include any Liability relating to, resulting from or arising out of the ownership or use of the Acquired Assets or the operation or the conduct of the Joy Business or the Cream Suds Business prior to the Closing).

(ii) all Liabilities for (A) Taxes relating to, resulting from or arising out of the ownership or use of the Acquired Assets or the operation or the conduct of the Joy Business and the Cream Suds Business by Acquiror and its Affiliates with respect to a Post-Closing Tax Period and (B) Acquiror’s portion of any Transfer Taxes as determined pursuant to Section 8.02;

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(iii) all Liabilities under the Acquired Contracts with respect to performance, in each case, other than any Liability to the extent arising out of, relating to or otherwise in respect of any breach, default or violation of or under any Acquired Contract that occurred prior to the Closing; and

(iv) all Liabilities relating to, resulting from or arising out of trade and consumer promotions, in-store promotions and coupon campaigns with respect to the Joy Business and the Cream Suds Business committed to by Seller or any of its Affiliates prior to the Closing; and

(v) all Liabilities for product returns in respect of products of the Joy Business and the Cream Suds Business manufactured, sold or distributed prior to the Closing.

(b) Notwithstanding anything to the contrary in this Agreement, any schedule or exhibit hereto or any Ancillary Agreement, the Parties expressly acknowledge and agree that the Assumed Liabilities will not include, and that neither Acquiror nor any of its Affiliates shall assume or otherwise be liable for, any of the following Liabilities (such Liabilities, the “Excluded Liabilities”):

(i) all Liabilities to the extent relating to, resulting from or arising out of the ownership or use of the Acquired Assets or the operation or conduct of the Joy Business or the Cream Suds Business prior to the Closing, except in each case for the Liabilities expressly identified as Assumed Liabilities in Section 1.05;

(ii) all Liabilities relating to, resulting from or arising out of recalls of products, the fulfillment of warranty claims and similar repair and replacement commitments (and any credits, refunds, reimbursements and adjustments relating thereto) in respect of products manufactured, sold or distributed by Seller and its Affiliates;

(iii) all Liabilities for Taxes relating to, resulting from or arising out of (A) the Acquired Assets, the Joy Business or the Cream Suds Business with respect to a Pre-Closing Tax Period and (B) Seller’s portion of Transfer Taxes as determined pursuant to Section 8.02;

(iv) all Liabilities relating to, resulting from or arising out of accounts payable or Indebtedness of Seller or its Affiliates;

(v) all Liabilities of Seller or its Affiliates under this Agreement or any Ancillary Agreement and the certificates, instruments and Transfer Documents delivered in connection therewith;

(vi) all Liabilities relating to, resulting from or arising out of any Excluded Asset; and

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(vii) all other Liabilities that are not expressly Assumed Liabilities.

(c) Notwithstanding any other provision hereof, in the event that there are facts, circumstances, actions, inactions, ownership or use of the Acquired Assets, or operation or conduct of the Joy Business and the Cream Suds Business, that commence or exist prior to the Closing and continue following the Closing that give rise to Liabilities, such Liabilities will constitute Excluded Liabilities to the extent the Liabilities relate to the period prior to the Closing and will constitute Assumed Liabilities to the extent such additional Liabilities relate to the period from and after the Closing and will be apportioned between Seller and Acquiror on that basis. To the extent that there are any changes in the manner in which the Joy Business or the Cream Suds Business is operated or conducted after the Closing relative to the manner in which the Joy Business or the Cream Suds Business is operated or conducted prior to the Closing, if such changes result in any additional Liabilities, such additional Liabilities will be Assumed Liabilities.

(d) Notwithstanding the foregoing, nothing in Section 1.05(a)(i) or 1.05(c) shall be construed or interpreted as limiting or affecting in any manner Seller’s representations or warranties or indemnity obligations under this Agreement or any Ancillary Agreement.

1.06 Transfers In Violation of Law or Required Consents. If and to the extent that the valid, complete and perfected Conveyance to any Acquiror Group member of any Acquired Asset or to any Seller Group member of any Excluded Asset would be a violation of applicable Laws or require any Consent in connection with the transactions contemplated hereby that has not been obtained as of the Closing, then, notwithstanding any other provision hereof, such Conveyance will automatically be deferred and will not occur until all legal impediments are removed or such Consents have been obtained. Notwithstanding the foregoing, any such Asset will still be considered an Acquired Asset or Excluded Asset, as applicable, solely for the economic benefit, insofar as reasonably possible, of the Person entitled thereto until the consummation of the Conveyance thereof but only to the extent permitted under applicable Law. The Parties will use their respective Commercially Reasonable Efforts to (a) continue to seek to remove any legal impediments and to secure any Consents from third parties necessary to Convey such Asset and (b) develop and implement arrangements to place the Person entitled to receive such Asset, insofar as reasonably possible, in the same position as if such Asset had been Conveyed as contemplated hereby such that all the benefits and burdens relating to such Asset, including possession, use, risk of loss, potential for gain or other benefits, any Tax Liabilities in respect thereof and dominion, control and command over such Asset, are to inure from and after the Closing to such Person. If and when the applicable legal or contractual impediments are removed or the applicable Consents are obtained, the Conveyance of the applicable Asset will be effected in accordance with the terms of this Agreement or such applicable Ancillary Agreement. The obligations set forth in this Section 1.06 will terminate on the two-year anniversary of the Closing. Nothing in this Section 1.06 will be deemed to constitute or require a waiver by any of the Parties of any of the closing conditions set forth in Article V, including the receipt of the Governmental Approvals.

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1.07 Waiver of Bulk-Sales Laws. Except as otherwise prohibited by applicable Law, each of Seller and Acquiror hereby waives compliance by each member of their respective Group with the requirements and provisions of the “bulk-sale” or “bulk-transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the Conveyance of any or all of the Assets to any member of the Seller Group or Acquiror Group, as applicable.

1.08 Closing. On the terms and subject to the conditions set forth in this Agreement, the consummation of the purchase and Conveyance of the Acquired Assets and the assumption of the Assumed Liabilities (the “Closing”) will take place electronically via email or facsimile on the last Business Day of the calendar month in which the satisfaction or waiver of the last of the conditions set forth in Article V occurs (other than those conditions that by their nature or pursuant to the terms of this Agreement are to be satisfied at or immediately prior to the Closing, but subject to the satisfaction or, where permitted, the waiver of those conditions); provided, further that Seller and Acquiror may mutually agree in writing to another date for the Closing to occur. The date on which the Closing occurs is referred to as the “Closing Date.” For accounting purposes, the Closing will be deemed to have occurred as of 23:59:59 local time on the Closing Date if the Closing is on the last Business Day of the month.

1.09 Purchase Price.

(a) The aggregate purchase price to be paid to Seller in full consideration of the Acquired Assets will be (i) the payment in cash in the amount of USD $30,000,000.00 (thirty million dollars) (such amount, the “Cash Purchase Price”) and (ii) the assumption by Acquiror or one or more of its Affiliates of the Assumed Liabilities.

(b) At the Closing and on the terms and subject to the conditions set forth in this Agreement, in consideration of the Conveyance of the Acquired Assets, Acquiror or its designated Affiliates will assume the Assumed Liabilities and pay to Seller or its designated Affiliates in cash an amount equal to the Cash Purchase Price by wire transfer of immediately available funds to a bank account or accounts designated by Seller in writing not less than two Business Days prior to the anticipated Closing Date.

1.10 Closing Deliveries.

(a) Documents To Be Delivered by Seller. On the Closing Date, Seller will deliver, or will cause its appropriate Affiliates to deliver, to Acquiror all of the following instruments (each duly executed by Seller or those of its Affiliates that are parties thereto, as applicable):

(i) the Ancillary Agreements to which Seller or any of its Affiliates is a party;

(ii) the Transfer Documents as described in Section 1.11; and

(iii) the certificate contemplated by Section 5.02(c).

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(b) Documents To Be Delivered by Acquiror. On the Closing Date, Acquiror will deliver, or will cause its Affiliates to deliver, as appropriate, to Seller all of the following instruments (each duly executed by Acquiror or those of its Affiliates that are parties thereto, as applicable):

(i) the Ancillary Agreements to which Acquiror or any of its Affiliates is a party;

(ii) the Transfer Documents as described in Section 1.11; and

(iii) the certificate contemplated by Section 5.03(c).

1.11 Conveyance of Acquired Assets and Assumption of Assumed Liabilities. In furtherance of the Conveyance of Acquired Assets and assumption of Assumed Liabilities provided in Sections 1.01 and 1.02, on the Closing Date, (a) Seller will execute and deliver, and will cause its Affiliates to execute and deliver, such bills of sale, certificates of title, deeds, assignments of Contracts and other instruments of Conveyance (in each case to the extent applicable and in a form that is consistent with the terms and conditions of this Agreement, and otherwise customary or statutorily required in the jurisdiction in which the relevant Assets are located and reasonably acceptable to Acquiror) to evidence the Conveyance of all of Seller’s and its Affiliates’ rights, title and interests in and to the Acquired Assets to Acquiror and its Affiliates; it being understood that no such bill of sale, certificate of title, deed, assignment or other instrument of Conveyance will require Seller or any of its Affiliates to make any additional representations, warranties or covenants, expressed or implied, not contained in this Agreement except to the extent required to comply with applicable local Law, in which case the Parties will enter into such supplemental agreements or arrangements as are effective to preserve the allocation of economic benefits and burdens contemplated by this Agreement; and (b) Acquiror will execute and deliver, or will cause its applicable Affiliates to execute and deliver, such assumptions of Assumed Liabilities and other instruments of assumption (in each case to the extent applicable and, in a form that is consistent with the terms and conditions of this Agreement, and otherwise customary or statutorily required in the jurisdiction in which the relevant Liabilities are located) as and to the extent reasonably necessary to evidence the valid and effective assumption of the Assumed Liabilities by Acquiror or its Affiliates; it being understood that no such instruments of assumption will require Acquiror or any of its Affiliates to make any additional representations, warranties or covenants, expressed or implied, not contained in this Agreement except to the extent required to comply with applicable local Law, in which case the Parties will enter into such supplemental agreements or arrangements as are effective to preserve the allocation of economic benefits and burdens contemplated by this Agreement. All of the foregoing documents contemplated by this Section 1.11 will be referred to collectively herein as the “Transfer Documents.”

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II. REPRESENTATIONS AND WARRANTIES OF SELLER

Seller hereby represents and warrants to Acquiror as of the date hereof that, except as set forth in the applicable Section or subsection of the Seller Disclosure Letter (interpreted as contemplated by Section 9.13):

2.01 Due Organization, Good Standing and Corporate Power. Seller is a corporation duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation. Each of Seller and its Affiliates has the requisite corporate power and authority to own, lease and operate their properties that will be Conveyed to Acquiror, to carry on the Joy Business and the Cream Suds Business as now being conducted and to enter into and perform its obligations under this Agreement and the Ancillary Agreements to which it is, or will be at Closing, a party and to consummate the transactions contemplated hereby and thereby. Each of Seller and its Affiliates is duly qualified to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by the Joy Business and the Cream Suds Business that will be Conveyed to Acquiror or the nature of the Joy Business or the Cream Suds Business conducted by it makes such qualification or licensing necessary, except in such jurisdictions where the failure to be so qualified or licensed and in good standing has not had and would not reasonably be expected to have, individually or in the aggregate, a Joy Business MAE or a Cream Suds Business MAE.

2.02 Authorization of Agreement. The execution, delivery and performance of this Agreement and the Ancillary Agreements by each of Seller and, if applicable, its Affiliates, and the consummation by it and, as of the Closing, its Affiliates of the transactions contemplated hereby and thereby, have been duly authorized and approved by all necessary corporate action and no other corporate or shareholder action on the part of Seller or its Affiliates is necessary to authorize the execution, delivery and performance of this Agreement and the Ancillary Agreements to which it is, or will be at Closing, a party, or the consummation of the transactions contemplated hereby and thereby. This Agreement has been (and each Ancillary Agreement, when executed and delivered, will be) duly executed and delivered by Seller, and its Affiliates (to the extent it is a party thereto), and each is (or when executed and delivered will be) a valid and binding obligation of Seller and its applicable Affiliates and enforceable against Seller and such applicable Affiliate in accordance with its terms, except to the extent that its enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Law affecting the enforcement of creditors’ rights generally and by general equitable principles (such exception, the “Enforceability Exception”).

2.03 Consents and Approvals; No Violations. Assuming the Governmental Approvals set forth on Section 2.03 of the Seller Disclosure Letter have been obtained, the execution, delivery and performance of this Agreement and the Ancillary Agreements by Seller and, if applicable, its Affiliates, and the consummation by Seller and, if applicable, its Affiliates of the transactions contemplated hereby and thereby do not and will not: (i) violate or conflict with any provision of their respective certificates or articles of incorporation, bylaws or code of regulations (or the comparable governing documents); (ii) violate or conflict with any Law or Order of any Governmental Authority applicable to Seller or any of its Affiliates or by which any of their respective Assets or assets that will be Conveyed to Acquiror are bound; (iii) require any Consent, or (iv) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default under, give rise to any right of termination, cancellation or acceleration of, or result in an increase of any obligation or the loss of a benefit under, any Contract or Permit used or held for use in the Joy Business or Cream Suds Business to Seller or any of its Affiliates is a party or by which any of their respective Assets are bound or subject; or (v) result in the creation or any imposition of any Security Interest upon any Acquired Asset or any other Asset related to the Joy Business or the Cream Suds Business, excluding in the case of clauses (i), (ii) and (iv), such conflicts and violations, breaches, defaults, rights of terminations, cancellations, accelerations, increases or losses which would not reasonably be expected, individually or in the aggregate, to be material to the Joy Business or the Cream Suds Business.

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2.04 Intellectual Property.

(a) Seller or an Affiliate of Seller is the sole owner of (i) all of the Acquired IP Assets, and (ii) all other Business IP Assets, free and clear of any Security Interests other than Permitted Encumbrances.

(b) Section 1.04(a)(iv) of the Seller Disclosure Letter sets forth a list of the Business IP Assets that constitute Registered Intellectual Property, including for each such item listed, as applicable, its (i) territory, (ii) application serial number and date, (iii) issue number and date, (iv) record owner, (v) trademark, and (vi) any actions that must be taken within ninety (90) days of Closing to prosecute, maintain, perfect or renew any of the Registered Intellectual Property. All registration, maintenance and renewal fees, issue fees and annuities due to any Governmental Authority in respect of such Business IP Assets as of the date hereof have been paid. None of such Business IP Assets is licensed to any third party or is subject to any material restrictions on its disclosure, ownership, use, license or transfer, except pursuant to a Business Material Contract listed in Section 2.07(a)(v) of the Seller Disclosure Letter. To the Knowledge of Seller, the Business IP Assets are valid and enforceable.

(c) The Joy Business and the Cream Suds Business do not materially infringe, misappropriate or otherwise violate any enforceable Intellectual Property right of any Person. During the past two years, no third party has delivered to Seller any written claim or demand or, to the Knowledge of Seller, instituted any litigation against Seller or any of its Affiliates or threatened the same in writing, and neither Seller nor any of its Affiliates has received any written notice of such a claim, demand or litigation, that (i) challenges the rights of Seller and its Affiliates in respect of any of the Intellectual Property utilized in the Joy Business and the Cream Suds Business or (ii) asserts that the operation of the Joy Business or the Cream Suds Business is or was infringing, misappropriating or otherwise violating the Intellectual Property rights of any third party. To the Knowledge of Seller, none of the Intellectual Property utilized in the Joy Business and the Cream Suds Business is subject to any outstanding Order applicable to the Joy Business and the Cream Suds Business that materially limits the use of such Intellectual Property in the Joy Business and the Cream Suds Business as currently conducted by Seller and its Affiliates. To the Knowledge of Seller, no Person is engaging in any activity that materially infringes, misappropriates or otherwise violates any Business IP Asset.

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(d) Notwithstanding whether any other representations or warranties in this Article II could be read to apply to matters involving Intellectual Property, the representations and warranties set forth in this Section 2.04 and Section 2.07(a)(iv) (and Sections 2.07(b) and 2.07(c) as applicable thereto) constitute the sole and exclusive representations and warranties under this Article II with respect to Intellectual Property.

2.05 Litigation. There are no Actions in respect of which Seller has been served with a complaint or otherwise given written notice (or to the Knowledge of Seller, oral notice) or that are otherwise pending against Seller or any of its Affiliates, or, to the Knowledge of Seller, threatened against Seller or any of its Affiliates (or any of their respective Assets) that (a) challenges or questions the validity of this Agreement or any Ancillary Agreement or any action taken or to be taken by Seller or any of its Affiliates in connection herewith or therewith, (b) seeks to enjoin or obtain monetary damages in respect of, the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or (c) relates to the Joy Business or the Cream Suds Business, in the case of (c) which have been or would reasonably be expected to be, individually or in the aggregate, material to the Joy Business or the Cream Suds Business. Neither Seller nor any of its Affiliates (and none of their respective Assets) is subject to any Order applicable to the Joy Business or the Cream Suds Business, other than any Orders generally applicable to Persons owning, operating and conducting businesses similar to the Joy Business and the Cream Suds Business.

2.06 Compliance With Laws and Permits.

(a) Each of the Joy Business and the Cream Suds Business has been and is being conducted in compliance, in all material respects, with applicable Laws (including, without limitation, the Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-1, et seq.) and Permits used or held for use in the Joy Business or Cream Suds Business. The consummation of the transactions contemplated by this Agreement will not result in the transfer to Acquiror or any of its Affiliates of any employee or employment relationship (or any related Liability) related to the Joy Business or the Cream Suds Business by operation of Law or otherwise.

(b) There are no Permits exclusively used or held for exclusive use in the Joy Business or Cream Suds Business. None of the Permits required for the continued conduct of the Joy Business or the Cream Suds Business as such business is currently being conducted will lapse, terminate, expire or otherwise be impaired as a result of the consummation of the transactions contemplated hereby or by the Ancillary Agreements. Neither Seller nor any of its Affiliates has received any notice from Person (i) alleging any material breach or violation of any Law or Permit used or held for use in the Joy Business or Cream Suds Business, or (ii) that it intends to modify, cancel, terminate or not renew any Permit used or held for use in the Joy Business or Cream Suds Business.

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(c) Notwithstanding the foregoing, the representations and warranties set forth in this Section 2.06 do not apply to Intellectual Property or Taxes, which are addressed in their entirety and exclusively in Sections 2.04 and 2.08, respectively.

2.07 Contracts.

(a) Section 2.07 of the Seller Disclosure Letter contains a list of each Contract that falls in one or more of the following categories (collectively, whether or not scheduled, the “Material Contracts”):

(i) a Contract that is exclusively used in or exclusively related to the Joy Business or the Cream Suds Business;

(ii) a Contract containing covenants binding upon Seller or its Affiliates that restrict during any period of time, the right or ability of Seller or any of its Affiliates to (A) compete with any Person or engage in any business or geographic area, (B) transact business or deal in any other manner with any other Person, or (C) hire or solicit any Person as an employee, consultant or independent contractor, in each case, that would bind Acquiror or any of its Affiliates following the Closing by virtue of the transactions contemplated by this Agreement or by any Ancillary Agreement;

(iii) a Contract containing any “most favored nations,” exclusivity or similar right or undertaking in favor of any party other than Seller and its Affiliates with respect to any material goods or services purchased or sold by Seller or its Affiliates and that would bind Acquiror or any of its Affiliates following the Closing by virtue of the transactions contemplated by this Agreement or by any Ancillary Agreement;

(iv) a license or sublicense Contract under which Seller or any of its Affiliates is licensee or licensor, or sub-licensee or sub-licensor of any Intellectual Property used or held for use in the Joy Business or the Cream Suds Business, other than licenses to any shrink wrap, click wrap or other software that is generally commercially available and not customized;

(v) a Contract with a vendor or supplier of the Joy Business or the Cream Suds Business (including any contract manufacturing arrangement) that involves, or would reasonably be expected to involve the payment of more than $2,000,000 by or with respect to the Joy Business or the Cream Suds Business for the purchase of materials, supplies, goods, services, equipment or other assets in the fiscal year ended June 30, 2017, or any future 12-month period ended June 30;

(vi) a Contract with a customer of the Joy Business or the Cream Suds Business that involves, or would reasonably be expected to involve, the payment of more than $1,000,000 by such customer to the Joy Business or the Cream Suds Business in the fiscal year ended June 30, 2017 or any future 12- month period ended June 30 (other than purchase orders submitted in the Ordinary Course of the Joy Business or in the Ordinary Course of the Cream Suds Business), whether pursuant to a “joint business plan” or other similar incentive arrangement or otherwise;

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(vii) a Contract relating to (A) any Acquired Asset or Assumed Liability, or (B) any Indebtedness to a third party that individually is in excess of $5,000,000;

(viii) a Contract under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, Liabilities or obligations of the Joy Business or the Cream Suds Business, or (B) the Joy Business or the Cream Suds Business has directly or indirectly guaranteed or assumed Indebtedness, Liabilities or obligations of another Person, in each case in excess of $500,000 individually or $1,000,000 in the aggregate;

(ix) a settlement or compromise of any Action relating to the Joy Business or the Cream Suds Business that would affect, in any material respect, the Joy Business or the Cream Suds Business at or following the Closing;

(x) a Contract relating to the Joy Business or the Cream Suds Business and establishing or providing for any partnership, strategic alliance, joint venture, material collaboration, distributorship, distribution, dealer, representative or sales agency relationship;

(xi) a Contract that is material to Joy Business or the Cream Suds Business but that is not otherwise required to be disclosed pursuant to the foregoing clauses (i) through (x); and

(xii) any amendment, modification or supplement to any of the foregoing.

(b) Each Material Contract is valid, binding and in full force and effect and is enforceable by and against Seller or one of its Affiliates in accordance with its terms. Each of Seller and its Affiliates has performed all obligations required to be performed by it to date under the Joy Material Contracts to which it is a party and is not in breach of or default thereunder and, to the Knowledge of Seller, no other party to any Material Contract is in breach of or default thereunder in any material respect.

(c) Seller has made available to Acquiror a true and correct copy of each Material Contract (or, if such Material Contract is not in written form, a true and correct summary of the material terms thereof).

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2.08 Financial Statements; Absence of Changes; Inventory.

(a) The financial information listed on Section 2.08(a) of the Seller Disclosure Letter has been prepared in good faith from the books and records of Seller and its Affiliates involved in the Joy Business and Cream Suds Business and is accurate (except for non-material errors or omissions) and, with respect to the items presented therein, fairly presents, in all material respects, the financial position and results of operations of the Joy Business and Cream Suds Business for the dates and periods specified therein (subject to normal and recurring adjustments), all in accordance with the normal accounting and allocation practices of Seller and were calculated in a manner consistent, where applicable, with the practices utilized by Seller in connection with its preparation of financial statements prepared in accordance with GAAP, consistently applied, as at the dates and for the periods presented (except for the absence of footnote disclosures and normal and recurring adjustments).

(b) Except as set forth in Section 2.08(b) of the Seller Disclosure Letter, since July 1st, 2017, there has not occurred any circumstance, change, fact, development, event, occurrence or condition which has had or would reasonably be expected to have, individually or in the aggregate, a Joy Business MAE.

(c) Except as set forth in Section 2.08(c) of the Seller Disclosure Letter, since July 1st, 2017, the Joy Business has been conducted in the Ordinary Course of the Joy Business.

(d) Except as set forth in Section 2.08(d) of the Seller Disclosure Letter, since July 1st, 2017, there has not occurred any circumstance, change, fact, development, event, occurrence or condition which has had or would reasonably be expected to have, individually or in the aggregate, a Cream Suds Business MAE.

(e) Except as set forth in Section 2.08(e) of the Seller Disclosure Letter, since July 1st, 2017, the Cream Suds Business has been conducted in the Ordinary Course of the Cream Suds Business.

(f) Without limiting the generality of the foregoing, except as set forth in Section 2.08(f) of the Seller Disclosure Letter, since January 1^st, 2018, there has not been any:

(i) sale, pledge, disposal of, transfer, lease, license, guarantee, cancellation, termination or other encumbrance, loss or disposition of any Assets that are (or would have otherwise been) Acquired Assets or material to the Joy Business or the Cream Suds Business, other than any sale of Joy Inventory and Cream Suds Inventory (including any finished goods or work-in-process) or disposition of obsolete equipment or obsolete inventory, in each case, in the Ordinary Course of the Joy Business and the Ordinary Course of the Cream Suds Business;

(ii) acquire (including by merger, consolidation or acquisition of stock or assets) any interest in any Person or any division thereof or any assets that are Acquired Assets or Assets otherwise material to the Joy Business or Cream Suds Business, other than in the Ordinary Course of the Joy Business and the Cream Suds Business;

(iii) amend, modify, terminate (partially or completely) any Material Contract or Permit material to the Joy Business or Creams Suds Business or give or grant any Consent material to the Joy Business or Creams Suds Business, other than in the Ordinary Course;

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(iv) incur, assume or guarantee any Indebtedness for borrowed money or make or forgive any loans or advances, or make any capital contributions to or investments in, any other Person, except as Acquiror, any Affiliate of Acquiror or any Asset related to the Joy Business or the Cream Suds Business would not be bound or subject following the Closing or as would not otherwise materially affect Acquiror’s conduct of the Joy Business in the Ordinary Course or the Cream Suds Business in the Ordinary Course following the Closing;

(v) license, grant any rights to or transfer any of the Acquired IP Assets or other Business IP Assets that are material to the Joy Business or the Cream Suds Business, other than grants of non-exclusive licenses or rights in the Ordinary Course of the Joy Business and the Cream Suds Business;

(vi) abandon, cancel, let lapse, fail to renew, fail to continue to prosecute, protect or defend or otherwise dispose of any Acquired IP Assets that are Registered Intellectual Property or other Business IP Assets that are Registered Intellectual Property and are material to the Joy Business or the Cream Suds Business;

(vii) enter into any settlement, or offer or propose to enter into any settlement, or otherwise compromise or waive any Action or material claims or rights of the Joy Business or the Cream Suds Business, in each case that would adversely affect the Joy Business or the Cream Suds Business or limit the ability of Acquiror to conduct the Joy Business or the Cream Suds Business in the Ordinary Course following the Closing;

(viii) make any change in any material method of accounting or accounting practice or policy (including with respect to collection of accounts receivable, the payment of trade accounts payable, establishment of reserves, or the prepayment or accrual of other expenses) with respect to the Joy Business or the Cream Suds Business, except with respect to Taxes or as required by applicable Law or GAAP; or

(ix) agree, in writing or otherwise, to take any of the foregoing actions.

2.09 Taxes.

(a) Except as would not reasonably be expected to affect, in any material respect, individually or in the aggregate, (i) there are no liens for Taxes on any of the Acquired Assets other than Permitted Encumbrances, (ii) all Tax Returns required to be filed by or with respect to the Acquired Assets or the Joy Business and the Cream Suds Business have been duly and timely filed, and all such Tax Returns are true and correct in all material respects, (iii) all Taxes required to be paid by or with respect to the Acquired Assets or the Joy Business and the Cream Suds Business have been timely paid in full, (iv) Seller and its Affiliates have complied with all applicable Laws regarding the collection, withholding and remittance to the appropriate Taxing Authority of amounts required to be collected or withheld by any of them with respect to the Acquired Assets and the Joy Business or the Cream Suds Business, and (v) there is no action, suit, proceeding, investigation, audit or claim with respect to Taxes pending or asserted in writing with respect to any of the Acquired Assets, the Joy Business or the Cream Suds Business.

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(b) Notwithstanding any other representation or warranty contained in this Article II, the representations and warranties contained in this Section 2.08 constitute the sole and exclusive representations and warranties of Seller relating to Taxes.

2.10 Broker’s or Finder’s Fee. Neither Seller nor any of its Affiliates has any liability or obligation to pay any fees or commissions to any broker, finder or other agent with respect to the transactions contemplated by this Agreement for which Acquiror or any of its Affiliates will be or could become liable or obligated.

2.11 Title to Properties; Security Interests. Seller and its Affiliates have good and valid title to, or, if applicable, valid leasehold interests in or valid license or right to use, all Acquired Assets, free and clear of any Security Interests, except for Permitted Encumbrances. All of the tangible personal property included in the Acquired Assets is in good operating condition and repair (ordinary wear and tear excepted), and are adequate for the uses to which they are being put.

2.12 Customers & Suppliers. Section 2.12 of the Seller Disclosure Letter sets forth, for the fiscal year ended June 30, 2018 and the period from June 30, 2018 to February 28, 2019, (i) a list of the top ten (10) customers of each of the Joy Business and Cream Suds Business by dollar volume of sales of goods and services (collectively, the “Customers”). To Seller’s Knowledge, neither Seller nor any of its Affiliates have received from any Customer any written notice that any Customer has or intends to (x) cease to use the products, goods or services of the Joy Business or the Cream Suds Business, or (y) terminate or materially reduce or change its relationship with the Company or the Business.

2.13 Product Warranty; Product Liability; Promotions.

(a) Seller does not make, nor has it given, warranties covering products of the Joy Business and the Cream Suds Business that have not expired for which any member of the Acquiror Group may be liable after the Closing. Seller does not accept, nor has it accepted, product returns covering products of the Joy Business and the Cream Suds Business for which any member of the Acquiror Group may be liable after the Closing. Since July 1, 2017, neither Seller nor Seller’s Affiliates (i) have changed, in any material respect, the scope of their contractual obligations for policies with respect to the return or replacement of products of the Joy Business or the Cream Suds Business; or (ii) have received or been involved in any product warranty claim with respect to the products of the Joy Business or the Cream Suds Business involving material Liabilities, claims or costs.

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(b) Since January 1, 2016, there have not been: (i) any material Liabilities, claims or obligations arising from any injury to Persons, damage to property or other loss as a result of any product (including the any defect or any packaging, label, warning or advertising related thereto) of the Joy Business or the Cream Suds Business; (ii) any material voluntary or involuntary recalls, suspensions, market-withdrawals, post- sale warnings or other similar corrective actions taken with respect to any product of the Joy Business or the Cream Suds Business; (iii) any pending or threatened Actions or Orders prohibiting or limiting the manufacture, marketing, distribution, sale or use of any product of the Joy Business or the Cream Suds Business or otherwise indicating that any product of the Joy Business or the Cream Suds Business is unsafe or unsuitable for its intended use.

(c) All active Promotions of the Joy Business and the Cream Suds Business were entered into in the Ordinary Course Business, and the material pricing terms of such Promotions are adequately reflected in the financial information provided to Acquirior prior to the date of this Agreement. Since July 1, 2017, neither Seller nor Seller’s Affiliates have amended, modified or supplemented, in any material respect, terms and conditions of or the scope of, or Liabilities with respect to, any Promotions related to the Joy Business or the Cream Suds Business.

2.14 No Other Representations or Warranties. Except for the representations and warranties of Seller expressly set forth in this Article II, neither Seller nor any other Person makes any other express or implied representation or warranty on behalf of Seller or any of its Affiliates with respect to the Acquired Assets, the Joy Business, the Cream Suds Business, the transactions contemplated by this Agreement or the accuracy or completeness of the information concerning the Joy Business or the Cream Suds Business provided by Seller or any of its Affiliates.

III. REPRESENTATIONS AND WARRANTIES OF ACQUIROR

Acquiror hereby represents and warrants to Seller as of the date hereof that, except as set forth in the applicable Section or subsection of the Acquiror Disclosure Letter (as contemplated by Section 9.13):

3.01 Due Organization, Good Standing and Corporate Power.

(a) Acquiror is a limited liability company duly organized, validly existing and in good standing under the Laws of Delaware and has the requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except, in each case, as would not reasonably be expected to have, individually or in the aggregate, an Acquiror MAE.

(b) Acquiror is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, except in such jurisdictions where the failure to be so qualified or licensed and in good standing has not had or would not reasonably be expected to have, individually or in the aggregate, an Acquiror MAE.

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3.02 Authorization of Agreement. The execution, delivery and performance of this Agreement and the Ancillary Agreements by Acquiror, and the consummation by Acquiror of the transactions contemplated hereby and thereby, have been duly authorized and approved by its Managers and owners action on the part of Acquiror or any member of the Acquiror Group is necessary to authorize the execution, delivery and performance of this Agreement and the Ancillary Agreements or the consummation of the transactions contemplated hereby or thereby. This Agreement has been (and each Ancillary Agreement, when executed and delivered, will be) duly executed and delivered by Acquiror, and each is (or when executed will be) a valid and binding obligation of Acquiror enforceable against Acquiror in accordance with its terms, subject to the Enforceability Exceptions.

3.03 Consents and Approvals; No Violations. The execution, delivery and performance of this Agreement and the Ancillary Agreements by Acquiror and its Affiliates party thereto and the consummation by Acquiror and its Affiliates party thereto of the transactions contemplated hereby and thereby do not and will not (i) violate or conflict with any provision of the articles of organization or operating agreement (or the comparable governing documents) of Acquiror or any member of the Acquiror Group, (ii) violate or conflict with any Law or Order applicable to Acquiror or any member of the Acquiror Group or by which any of its or their Assets are bound, (iii) require any Consent, or (iv) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default under, give rise to any right of termination, cancellation or acceleration of, or result in an increase of any obligation or the loss of a benefit under, any Contract or Permit to which any member of the Acquiror Group is a party or by which any of their respective Assets are bound, excluding in the case of clauses (i) through (iv) above, conflicts, violations, breaches, defaults, rights of payment and reimbursement, terminations, cancellations, accelerations or required approvals which would not reasonably be expected to have, individually or in the aggregate, an Acquiror MAE.

3.04 Broker’s or Finder’s Fee. Neither Acquiror nor any of its Affiliates has any liability or obligation to pay any fees or commissions to any broker, finder or other agent with respect to the transactions contemplated by this Agreement or the Ancillary Agreements for which Seller or any of its Affiliates could become liable or obligated.

3.05 Financing. At the Closing, Acquiror will have, available cash sufficient to consummate the transactions contemplated by this Agreement, including the funds necessary to pay the aggregate Purchase Price pursuant to Section 1.09 and all other amounts required to be paid in connection with the consummation of the transactions contemplated by this Agreement and to allow Acquiror to perform all of its obligations under this Agreement and pay all fees and expenses to be paid by Acquiror related to the transactions contemplated by this Agreement.

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3.06 Litigation. There are no Actions pending against Acquiror or any of its Affiliates or, to the Knowledge of Acquiror, threatened against Acquiror or any of its Affiliates (or any of their respective properties, rights or franchises) that (a) challenges or questions the validity of this Agreement or any Ancillary Agreement or any action taken or to be taken by Acquiror or any of its Affiliates in connection herewith or therewith, (b) seeks to enjoin or obtain monetary damages in respect of, the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or (c) have had or would reasonably be expected to have, individually or in the aggregate, an Acquiror MAE. Neither Acquiror nor any of its Affiliates is subject to any Order that has had or would reasonably be expected to have, individually or in the aggregate, an Acquiror MAE.

3.07 Solvency. Immediately after giving effect to the transactions contemplated hereby, Acquiror will be solvent and will (a) be able to pay its debts as they become due, (b) own property that has a fair saleable value greater than the amounts required to pay its debts (including a reasonable estimate of the amount of all contingent liabilities), and(c) have adequate capital to carry on its business. No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated hereby with the intent to hinder, delay or defraud either present or future creditors of Acquiror. In connection with the transactions contemplated hereby, Acquiror has not incurred, nor plans to incur, debts beyond its ability to pay as they become absolute and matured.

3.08 Independent Investigation. Acquiror has conducted its own independent investigation, review and analysis of the Joy Business, the Cream Suds Business and the Acquired Assets, and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records and other documents and data of Seller for such purpose. Acquiror acknowledges and agrees that in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, Acquiror has relied solely upon its own investigation and the express representations and warranties of Seller set forth in Article II.

3.09 No Other Representations or Warranties; Acknowledgement by Acquiror.

(a) Except for the representations and warranties of Acquiror expressly set forth in this Article III, neither Acquiror nor any other Person makes any other express or implied representation or warranty on behalf of Acquiror or any of its Affiliates with respect to Acquiror or the transactions contemplated by this Agreement.

(b) Acquiror acknowledges that, except as provided herein, neither Seller nor any of its Affiliates nor any other Person acting on their behalf will have or be subject to any Liability or indemnification obligation to Acquiror or any other Person acting on its behalf resulting from the distribution in written or oral communication to Acquiror, or use by Acquiror of, any information, documents, projections, forecasts or other material made available to Acquiror, confidential information memoranda or management interviews and presentations in expectation of the transactions contemplated by this Agreement and the Ancillary Agreements.

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IV. COVENANTS

4.01 Conduct of Joy Business and the Cream Suds Business Pending the Closing.

(a) Except as expressly provided by this Agreement as set forth on Section 4.01 of the Seller Disclosure Letter, as required by applicable Law or as expressly consented to in writing by Acquiror (such consent not to be unreasonably withheld, conditioned or delayed), from the date of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with Sections 6.01 and 6.02 (the “Pre-Closing Period”), each of Seller and its Affiliates will use its respective Commercially Reasonable Efforts to, (i) conduct the Joy Business and the Cream Suds Business in the Ordinary Course, (ii) preserve the Acquired Assets, (iii) preserve the material business relationships of the Joy Business and the Cream Suds Business with their respective customers, suppliers, manufacturers, distributors and other Persons with whom the Joy Business and the Cream Suds Business deal in the Ordinary Course, and (iv) maintain the goodwill and reputation of the Joy Business and the Cream Suds Business, including through advertising, marketing and promoting the products of the Joy Business and the Cream Suds Business in the Ordinary Course. Seller may, without breach of this Agreement, take such actions as it determines in good faith are commercially reasonable to respond to events resulting, in whole or in part, from the announcement or pendency of this Agreement and to preserve the Joy Business, the Cream Suds Business and existing material employee, customer and supplier relationships (including replacing any employees of the Joy Business or the Cream Suds Business who cease to be employed by Seller and its Affiliates).

(b) Without limiting the generality of Section 4.01, and except as otherwise expressly provided in this Agreement, as set forth on Section 4.01 of the Seller Disclosure Letter, as required by applicable Law or as expressly consented to in writing by Acquiror (such consent not to be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, Seller will not, nor will it permit any of its Affiliates to, take any action or do any thing which if taken or done immediately prior to the execution of this Agreement would be required to be disclosed in Section 2.08(f) of the Seller Disclosure Letter.

(c) Seller and Acquiror acknowledge and agree that nothing contained in this Agreement is intended to give Acquiror, directly or indirectly, the right to control or direct the operations of the Joy Business or the Cream Suds Business prior to the Closing.

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4.02 Further Assurances; Efforts To Obtain Consents; Antitrust Clearance.

(a) Generally. In addition to the actions specifically provided for elsewhere in this Agreement or in any Ancillary Agreement, each of the Parties will cooperate with each other and use (and will cause their respective Affiliates to use) their reasonable best efforts, prior to, at and after the Closing Date, to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things reasonably necessary to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements as promptly as practicable, including, if applicable, forming legal entities, opening bank accounts and reaffirming any Permits (that are used or held for use in the Joy Business and the Cream Suds Business), consents, approvals or waivers previously granted; provided, however, that (i) with respect to the matters that are the subject of Section 1.06, such matters will be governed by that Section instead of this Section 4.02(a) following the Closing, and (ii) except as otherwise provided in Sections 4.02(b) and (c), neither Seller nor Acquiror will be required to make any non- de minimis payments, incur any non-de minimis Liability or offer or grant any non-de minimis accommodation (financial or otherwise) to any third party in connection with obtaining any Consent or Governmental Approval.

(b) Requisite Antitrust Filings. Seller and Acquiror will comply fully with all applicable notification, reporting and other requirements of applicable Antitrust Laws in connection with the transactions contemplated by this Agreement. Seller and Acquiror, as soon as practicable after the date of this Agreement (and in any event within five Business Days), will file the required notifications with the appropriate Governmental Authorities pursuant to and in compliance with all applicable Antitrust Laws in accordance with Section 4.02(b) of the Seller Disclosure Letter. Seller and Acquiror will as soon as practicable file any additional information reasonably requested by any Governmental Authority in connection with any Antitrust Law.

(c) Efforts To Obtain Antitrust Approvals.

(i) Seller and Acquiror will each use reasonable best efforts to obtain, or terminate, as the case may be, as soon as practicable, the Governmental Approvals required by any Antitrust Law (the “Antitrust Approvals”) that may be or become necessary for the performance of its obligations under this Agreement, the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby and will cooperate fully with each other in promptly seeking to obtain such Antitrust Approvals or terminate any waiting period thereunder, all such actions to be effective prior to the Closing. Acquiror and Seller will cooperate in connection with the antitrust defense of the transactions contemplated hereby in any investigation or litigation by, or negotiations with, any Governmental Authority or other Person relating to the transactions contemplated hereby or regulatory filings under applicable Antitrust Laws. Without limiting the foregoing and subject to applicable legal limitations and the instructions of any Governmental Authority, each of Seller and Acquiror agrees with respect to obtaining any Antitrust Approval to (A) cooperate and consult with each other, (B) furnish to the other such necessary information and assistance as the other may reasonably request in connection with its preparation of any notifications or filings, (C) keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by such Party from, or given by such Party to, any third party or any Governmental Authority with respect to such transactions, (D) permit the other Party to review and consider in good faith the other Party’s reasonable comments in any communication to be given by it to any Governmental Authority with respect to obtaining the necessary Antitrust Approvals, and (E) not participate in any meeting or substantive discussion, either in Person or by telephone, with any Governmental Authority in connection with the transactions contemplated hereby unless, to the extent not prohibited by such Governmental Authority, it gives the other Party the opportunity to attend and observe.

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(ii) In furtherance and not in limitation of the covenants contained in Section 4.02(c)(i) or any other provision of this Agreement, Acquiror will use its reasonable best efforts to eliminate impediments under any Antitrust Law that may be asserted by any Governmental Authority with respect to the transactions contemplated hereby so as to permit such transactions to be consummated as promptly as practicable and to prevent a prohibition decision or the entry of any Order (or if such Order is so entered, to eliminate such Order or otherwise cause it to be satisfied or cease to be a restraint on such transactions) sought by any Governmental Authority or private Person under any Antitrust Law that would result in the failure of any condition to the obligations of the Parties to consummate the transactions contemplated hereby to be satisfied; provided, however, that nothing in this Agreement shall or shall be construed to require Acquiror or any of its Affiliates to consider, offer or agree to (whether effected by consent decree, hold separate order or otherwise), (A) sell, divest, hold, discontinue, limit or dispose of any of their respective assets or businesses or the Acquired Assets, (B) conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which could reasonably be expected materially and adversely impact the economic or business benefits to the Acquiror and its Affiliates of the transactions contemplated hereby; (C) any material modification or waiver of the terms and conditions of this Agreement; (D) to incur or otherwise take any action that is reasonably likely to result in the incurrence by Acquiror or its Affiliates of any material Liability, (E) take any step that (x) is not conditioned upon the occurrence of the Closing or (y) would reasonably be expected to have, individually or in the aggregate, a Joy Business MAE or a Cream Suds Business MAE.

4.03 Public Announcements. Any press releases, public announcements or similar publicity with respect to this Agreement or the transactions contemplated hereby must be approved by Seller and Acquiror in advance, provided that such approval may not be unreasonably withheld, conditioned or delayed.

4.04 Notification of Certain Matters. During the Pre-Closing Period, each of Seller and Acquiror shall keep each other reasonably apprised of the status of matters relating to the consummation of the transactions contemplated hereby, including giving prompt written notice to the other Party of (a) any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with the transactions contemplated hereby, or (b) any Action commenced or threatened in writing against, relating to or involving or otherwise affecting the Joy Business or the Cream Suds Business or it or any of its Affiliates that relate to the consummation of the transactions contemplated hereby.

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4.05 Access. During the Pre-Closing Period, to the extent permitted by Law, Seller will allow all designated Representatives of Acquiror, access to the Acquired Assets to the extent reasonably practicable upon reasonable advance notice to Seller, during normal business hours, under the supervision of Seller’s personnel and in such a manner as not to interfere with the conduct of the Joy Business or the Cream Suds Business or any other businesses of Seller; provided, however, that (i) no investigation pursuant to this Section 4.05 will affect any representation or warranty given by Seller hereunder or any closing condition, indemnity obligation or other provision and (ii) notwithstanding the provision of information or investigation by Seller, Seller will not be deemed to make any representation or warranty except as expressly set forth in this Agreement. Notwithstanding the foregoing, (A) Seller will not be required to provide any information which it determines in good faith it may not provide to Acquiror by reason of applicable Law (including any information in confidential personnel files), or which Seller determines in good faith constitutes information protected by attorney-client or other similar privilege, and (B) Seller will not be required to provide access to any performance review materials or any information from personnel files that relates to an employee’s participation in bonus plans and similar incentive compensation arrangements (other than individual bonus opportunities based on target bonus as a percentage of base salary). Each of Seller and Acquiror agrees that it will not, and will cause its respective Representatives not to, use any information obtained pursuant to this Section 4.05 for any purpose unrelated to this Agreement and the Ancillary Agreements. All information provided by a Party to the other Party hereunder will be kept confidential to the same extent as would be applicable if the Confidentiality Agreement were in effect.

4.06 Agreement for Exchange of Information.

(a) Generally. Except as otherwise provided in the Transition Services Agreement or as prohibited by applicable Law, each Party, on behalf of its respective Group, will provide, or cause to be provided, to the other Party’s Group, at any time after the Closing Date and until the sixth anniversary of the Closing Date, as soon as reasonably practicable after written request therefor, any Shared Information in its possession or under its control. Each of Seller and Acquiror agree to make their respective personnel available during regular business hours to discuss the Information exchanged pursuant to this Section 4.06.

(i) Each Party will provide to the other such Information as the other may from time to time reasonably request in order to prepare its financial statements and satisfy its public reporting obligations.

(ii) Prior to the Closing, each Party will take measures that it determines in good faith to be appropriate to ensure that any competitively sensitive Shared Information from one Party is not disclosed to the other Party’s personnel involved in a competing business.

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(b) Ownership of Information. Any Information owned by a Party that is provided to the other Party pursuant to this Section 4.06 remains the property of the Party that owned and provided such Information. Each Party will, and will cause the members of their respective Groups to, remove and destroy any hard drives or other electronic data storage devices from any computer or server that is reasonably likely to contain Information that is protected by this Section 4.06 and that is transferred or sold to a third party or otherwise disposed of in accordance with Section 4.06(c), unless required by Law or bona fide document retention policies to retain such materials.

(c) Record Retention. Each Party agrees to use its Commercially Reasonable Efforts to retain all Information that relates to the operations of the Joy Business and the Cream Suds Business in its respective possession or control at the Closing in accordance with their respective then existing document retention policies, as such policies may be amended from time to time.

(d) Other Agreements Providing for Exchange of Information. The rights and obligations granted under this Section 4.06 are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of Information set forth in this Agreement and any Ancillary Agreement.

(e) Compensation for Providing Information. The Party requesting Information will reimburse the other Party for the reasonable out-of-pocket costs, if any, of creating, gathering and copying such Information, to the extent that such costs are incurred for the benefit of the requesting Party.

(f) Production of Witnesses; Records; Cooperation.

(i) After the Closing Date, except in the case of any Action by one Party or its Affiliates against another Party or its Affiliates, each Party will use its Commercially Reasonable Efforts to make available to each other Party, upon written request, the former, current and future directors, officers, employees, other personnel and agents of the members of its respective Group as witnesses and any books, records or other documents within its control or which it otherwise has the ability to make available, to the extent that any such Person (giving consideration to business demands of such directors, officers, employees, other personnel and agents) or books, records or other documents are reasonably requested in connection with any Action in which the requesting Party may from time to time be involved.

(ii) If an Indemnifying Party chooses to defend or to seek to compromise or settle any Third-Party Claim, the other Party will use Commercially Reasonable Efforts to make available to such Indemnifying Party, upon written request, the former, current and future directors, officers, employees, other personnel and agents of the members of its respective Group as witnesses and any books, records or other documents within its control or which it otherwise has the ability to make available, to the extent that any such Person (giving consideration to business demands of such directors, officers, employees, other personnel and agents) or books, records or other documents are reasonably requested in connection with such defense, settlement or compromise, or the prosecution, evaluation or pursuit thereof, as the case may be.

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(iii) The obligation of the Parties to provide witnesses pursuant to this Section 4.06 is intended to be interpreted in a manner so as to facilitate cooperation and will include the obligation to provide as witnesses managers and other officers without regard to whether the witness or the employer of the witness could assert a possible business conflict.

(g) Restrictions. Except as expressly provided in this Agreement or any Ancillary Agreement, no Party or member of such Party’s Group grants or confers rights of license in any Information owned by any member of such Party’s Group to any member of the other Party’s Group hereunder.

4.07 Privileged Matters.

(a) As to all communications among counsel for Seller or the Seller Group, Seller and any other member of the Seller Group that relate in any way to the transactions contemplated by this Agreement (collectively, the “Privileged Communications”), the attorney-client privilege and the expectation of client confidence belongs to Seller and may be controlled by Seller and will not pass to or be claimed by Acquiror or any of its Affiliates. The Privileged Communications are the property of Seller, and from and after the Closing none of Acquiror. Notwithstanding the foregoing, in the event that a dispute arises between Acquiror or any of its Affiliates and a third party (other than a Party or any of their respective Affiliates) after the Closing, Acquiror may assert the attorney-client privilege to prevent disclosure of confidential communications by counsel for Seller or the Seller Group to such third party; provided, however, that neither Acquiror nor any of its Affiliates may waive such privilege without the prior written consent of Seller.

(b) Upon receipt by Acquiror or any of its Affiliates of any subpoena, discovery or other request from any third party that in their reasonable judgment requires the production or disclosure of Privileged Communications or if Acquiror or any of its Affiliates obtains knowledge that any current or former employee of Acquiror receives any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Communications, Acquiror will promptly notify Seller of the existence of the request and will provide Seller a reasonable opportunity to assert any rights it may have under this Section 4.07 or otherwise to prevent the production or disclosure of Privileged Communications. Acquiror will not, and will cause its Affiliates not to, produce or disclose to any third party any of the Privileged Communications under this Section 4.07 unless (i) Seller has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an Order finding that the Privileged Communications are not entitled to protection from disclosure under any applicable privilege, doctrine or rule.

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(c) The covenants and agreements of each Party set forth in Section 4.06 and this Section 4.07 are made in reliance upon the other Party’s obligation to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileged Communications. The access to Information, witnesses and individuals being granted pursuant to Section 4.06 and the disclosure to Seller and Acquiror of Privileged Communications relating to the Joy Business and the Cream Suds Business pursuant to this Agreement in connection with the transactions contemplated hereby will not be asserted by Seller or Acquiror to constitute, or otherwise deemed, a waiver of any privilege that has been or may be asserted under this Section 4.07 or otherwise. Nothing in this Agreement will operate to reduce, minimize or condition the rights granted to Seller and Acquiror in, or the obligations imposed upon Seller and Acquiror by, this Section 4.07.

4.08 Non-Solicitation; No Hiring. Acquiror agrees that for a period of 24 months from the Closing Date, Acquiror will not, and will cause each other member of the Acquiror Group not to, without obtaining the prior written consent of Seller, directly or indirectly, solicit for employment or employ (or refer to another Person for the purpose of such Person soliciting for employment or employing) any employee of Seller or any member of the Seller Group; provided, however, that (i) no member of the Acquiror Group will be deemed to have solicited any such Person who is an employee of the Seller Group and responds to any general media advertisement or job posting placed by or on behalf of Acquiror or any member of the Acquiror Group or such Person is contacted by an employment search firm engaged by Acquiror or a member of the Acquiror Group that is not specifically directed to solicit Persons employed by Seller or the Seller Group, and (ii) any member of the Acquiror Group may solicit and hire any such Person if such Person’s employment has terminated for any reason whatsoever or such Person has been given notice of such termination, in either case, prior to any unpermitted direct or indirect solicitation by any member of the Acquiror Group.

4.09 Intellectual Property Assignment/Recordation. Each Party will be responsible for, and will pay all expenses (whether incurred before or after the Closing) involved in notarization, authentication, legalization or consularization of the signatures of any of the Representatives of its Group on any of the Transfer Documents relating to the transfer of Intellectual Property. Except with respect to any applicable Transfer Taxes or VAT (the payment of which shall be exclusively governed by Sections 8.02 and 8.03, respectively), Acquiror will be responsible for, and will pay, all expenses (whether incurred before or after the Closing) relating to, the recording of any such Transfer Documents relating to the transfer of Intellectual Property from any member of the Seller Group to any member of the Acquiror Group with any Governmental Authorities as may be necessary or appropriate.

4.10 Use of Seller Names and Marks.

(a) “Seller Names and Marks” means the names and marks “Procter & Gamble”, “P&G Professional”, and “P&G” (in any style or design), and any Trademark derived from, confusingly similar to, or including any of the foregoing. Subject to the terms and conditions of this Section 4.10, Seller, on behalf of itself and its Affiliates as necessary, hereby grants to Acquiror a limited, non-transferable, non-sublicensable (except in connection with any manufacture of Products by a contractor on Acquiror or it Affiliates), non-exclusive, royalty-free license, for the twelve-month period following the Closing Date (the “Transition Period”), to use the Seller Names and Marks in connection with the Joy Business and the Cream Suds Business in the manner set forth in Section 4.10(d). Acquiror will use Commercially Reasonable Efforts to transition from use of the Seller Names and Marks as soon as reasonably practicable and in any event prior to expiration of the Transition Period. Except as expressly provided in this Section 4.10, Seller reserves for itself and its Affiliates all rights in the Seller Names and Marks, and no other rights therein are granted to any member of the Acquiror Group or any of their respective Affiliates, whether by implication, estoppel or otherwise. All use of the Seller Names and Marks by the Acquiror Group will inure to the benefit of Seller and its Affiliates.

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(b) As soon as practicable following the Closing Date, and in any event prior to the expiration of the Transition Period, Acquiror will, and will cause the other members of the Acquiror Group to, (i) remove all Seller Names and Marks from any Internet or other electronic communications vehicles, including Internet domain names and from the content of any Internet websites within the Acquired Assets, and remove all links to any Internet domains of Seller or any of its Affiliates from any of the foregoing, (ii) remove or irreversibly cover or modify all Seller Names and Marks from or destroy any packaging bearing any of the Seller Names and Marks, except that the Joy Business and the Cream Suds Business may continue to sell finished products purchased by Acquiror under the Transitional Supply Agreement until the expiration of the applicable shelf lives of such products, but in any case for no longer than six months from the end of the Transition Period; provided, however, that Acquiror and its Affiliates use their Commercially Reasonable Efforts to sell such existing inventories prior to the sale of subsequently manufactured or packaged products, (iii) remove or irreversibly cover or modify all Seller Names and Marks from or destroy any product literature, store displays and similar materials bearing any of the Seller Names and Marks, and (iv) remove or irreversibly cover or modify any and all of Seller’s UPC and EAN codes from packaging, products or other Assets Conveyed to Acquiror.

(c) For all other uses of the Seller Names and Marks not specifically identified in Section 4.10(b) (e.g., signage, business cards and stationery), for up to 90 days after the Closing Date, in each applicable jurisdiction, the Joy Business and the Cream Suds Business may continue to use the Seller Names and Marks on the same materials and in substantially the same manner as used by the Joy Business and the Cream Suds Business during the 90-day period preceding the Closing. In each applicable jurisdiction, as soon as practicable following the Closing Date, and, in any event within 90 days after the Closing Date, Acquiror will, and will cause the other members of the Acquiror Group to, remove or irreversibly cover or modify all Seller Names and Marks from or destroy any such other materials bearing any of the Seller Names and Marks.

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(d) In no event will the Joy Business or the Cream Suds Business use, and Acquiror will, and will cause the other members of the Acquiror Group to not use, any of the Seller Names and Marks after the Closing in any manner or for any purpose other than in the same or substantially same manner that such Seller Names and Marks were being used by the Joy Business or the Cream Suds Business during the 90-day period preceding the Closing. Without limiting the generality or effect of the foregoing, all products sold by the Joy Business and the Cream Suds Business using any of the Seller Names or Mark will be of high quality, consistent in nature and quality with such products as sold by the Joy Business and the Cream Suds Business in the 90-day period preceding Closing. Seller reserves the right to reasonably inspect the Joy Business’s and Cream Suds Business’s quality control of the products sold bearing and uses of a Seller Name or Mark and other compliance with the terms of the license granted under this Section 4.10, in each of the foregoing cases, upon reasonable prior written notice to Acquiror and during normal business hours.

(e) The license granted under this Section 4.10 may be terminated by written notice if Acquiror or the Joy Business or the Cream Suds Business is in material breach of any provision hereof that remains uncured for more than thirty days after written notice thereof from Seller. Upon such termination of the license granted hereunder for any reason, Acquiror and its Affiliates will not use any of the Seller Names and Marks.

4.11 Removal of Tangible Assets. Except as identified by Seller and its Affiliates pursuant to Section 4.15, as may be otherwise provided in the Ancillary Agreements or as otherwise agreed to by the Parties in writing, all tangible Acquired Assets that are located at any facilities of any member of the Seller Group will be moved by Seller and its Affiliate as promptly as reasonably practicable after the Closing Date from such facilities to such facility of the Acquiror Group as Acquiror may designate, at Acquiror’s expense and in a manner so as not to cause substantial damage to such Acquired Assets; provided, that Acquiror will be responsible for the installation of such property within its facilities.

4.12 Access to Fragrance. Attachment 2 of Section 1.04(a)(iv) of the Seller Disclosure Letter sets forth the product formula, excluding the fragrance. After Closing, Seller will (1) provide contacts for not less than three external fragrance suppliers (each an “External Fragrance Supplier”), (2) provide reasonable assistance to Acquiror and its Affiliates to facilitate communications with an External Fragrance Supplier of Acquiror’s choice, and (c) provide the Acquiror and the External Fragrance Supplier of its choosing with not less 100 grams of perfume oil used in each of the Joy Business and the Cream Suds Business, in each case, for the sole purpose of replicating such fragrances and developing clone fragrances for Acquiror’s use within the product formula of the Joy Business and the Cream Suds Business.

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4.13 Insurance Matters. From and after the Closing, Acquiror will not, and will cause its Affiliates not to, assert any claim against any insurance policies or practices of Seller and its Affiliates under any captive insurance policies, fronted insurance policies, surety bonds or corporate insurance policies or practices, or any form of self-insurance whatsoever; provided, however, that (a) Seller and Acquiror agree that all claims with respect to insured events occurring prior to the Closing will be administered in accordance with the terms of Seller’s or its Affiliates’ third party policies, if any, and coverage applicable to such claims, (b) Acquiror will receive the benefit of such third party policies with respect to such claims to the extent losses occurring prior to the Closing related to Acquired Assets are covered notwithstanding the consummation of the transactions contemplated by this Agreement, and (c) Seller will receive the benefit of such policies with respect to such claims to the extent losses occurring prior to the Closing related to Liabilities other than Assumed Liabilities are covered notwithstanding the consummation of the transactions contemplated by this Agreement and provided that in the case of clauses (b) and (c) such recovery will be net of any deductibles or self-insured retention amounts, costs of any retroactive insurance premiums or other amounts paid or expenses incurred in connection with any insured claims made after the Closing under any such policies that relate to the period prior to Closing or any amounts paid by Seller pursuant to Article VII in respect of the applicable Liabilities (it being understood that Seller will have the right to determine whether or not to make any claim against Seller’s insurance policies).

4.14 Confidentiality.

(a) The Parties acknowledge that in connection with the transactions contemplated hereby, the Parties have disclosed to each other Information which the Parties consider proprietary and confidential (“Confidential Information”). For the avoidance of doubt, any information disclosed by or on behalf of the Parties under the Confidentiality Agreement that is subject to the confidentiality obligations contained therein will be, and will be deemed to be, Confidential Information for purposes of this Agreement and will be subject to all of the terms and conditions of this Agreement, including the restrictions on the disclosure of such Confidential Information contained herein. The Parties agree that, after the Closing, Information that constitutes an Acquired Asset will be Confidential Information of Acquiror and Acquiror will not be subject to this Section 4.14 (except for Section 4.14(c)) with respect to such information, and Seller will be deemed to be the Receiving Party of such Confidential Information for purposes of Section 4.14(b).

(b) Each Party receiving Confidential Information (the “Receiving Party”) recognizes and acknowledges:

(i) that Confidential Information of the other Party may be commercially valuable proprietary products of such Party, the design and development of which may have involved the expenditure of substantial amounts of money and the use of skilled development experts over a long period of time and which afford such Party a commercial advantage over its competitors;

(ii) that the loss of this competitive advantage due to unauthorized disclosure or use of Confidential Information of such Party may cause great injury and harm to such Party; and

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(iii) that the restrictions imposed upon the Parties under this Section 4.14 are necessary to protect the secrecy of Confidential Information and to prevent the occurrence of such injury and harm. The Parties agree that:

(A) disclosure of Confidential Information will be received and held in confidence by the Receiving Party and that such Receiving Party will not, without the prior written consent of the Party from whom such Confidential Information was obtained (the “Disclosing Party”), disclose, divulge or permit any Person to obtain any Confidential Information disclosed by the Disclosing Party (whether or not such Confidential Information is in written or tangible form), other than to Affiliates of the Receiving Party and their employees and agents, in each case, who have a need to know such Confidential Information and who are bound in writing by duties of confidentiality and non-use obligations with respect to such Confidential Information no less protective of the Disclosing Party than those set forth herein;

(B) the Receiving Party will take such steps as may be reasonably necessary to prevent the disclosure of Confidential Information to others; and

(C) the Receiving Party will use the Information only in connection with the transactions contemplated hereby to perform its and its Group’s obligations, or to exercise its rights, under this Agreement and the Ancillary Agreements.

(c) The commitments set forth above will not extend to any portion of Confidential Information:

(i) which is already known to the Receiving Party other than any member of Seller Group with respect to Confidential Information related to the Joy Business or the Cream Suds Business, or is information generally available to the public;

(ii) which, hereafter, through no act on the part of the Receiving Party or its Representatives becomes generally available to the public;

(iii) which corresponds in substance to a disclosure furnished to the Receiving Party by any third party having a bona fide right to do so and not having any confidential obligation, direct or indirect, to the Disclosing Party with respect to the same; or

(iv) which is required to be disclosed by Law; provided that the Receiving Party provides reasonable prior written notice of such required disclosure to the Disclosing Party following the Receiving Party’s knowledge of such requirement in order to provide the Disclosing Party with an opportunity to prevent or limit such disclosure by seeking a protective order or other appropriate remedy at the sole expense of the Disclosing Party.

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4.15 Transition Period Assets.

(a) Acquiror acknowledges and agrees that in the course of preparing for the implementation of the services contemplated by the Transition Services Agreement and/or the Transitional Supply Agreement, Seller may identify certain Assets included within the Acquired Assets (the “Transition Period Assets”) that are necessary or desirable for Seller to retain possession of in order to provide the services contemplated by the Transition Services Agreement and/or the Transitional Supply Agreement. Not less than three Business Days prior to the anticipated Closing Date, Seller shall prepare and deliver to Acquiror a list of such Transition Period Assets or list such Transition Period Assets in Section 4.15 of the Seller Disclosure Letter; provided, Seller’s failure to identify any Transition Period Assets shall not relieve Seller or its Affiliates from performing or complying any obligation under the Transition Services Agreement or the Transitional Supply Agreement. Acquiror may elect to (a) allow Seller to retain possession of such Transition Period Assets during the term of the Transition Services Agreement or the Transitional Supply Agreement solely for purposes of enabling Seller to satisfy its obligations under the Transition Services Agreement or the Transitional Supply Agreement, in which case as soon as practicable following the expiration of the applicable services contemplated by the Transition Services Agreement or the Transitional Supply Agreement, Seller will Convey possession of such Transition Period Assets to Acquiror for no additional consideration or (b) include any Transition Period Assets in the Acquired Assets at Closing (in which case Seller will not be required to provide any service under the Transition Services Agreement or the Transitional Supply Agreement where it is not reasonably practicable to provide such service without such Transition Period Assets and any amounts payable by Acquiror to Seller under such Transition Services Agreement or the Transitional Supply Agreement will be proportionately adjusted).

(b) Notwithstanding the foregoing, all right, title and interest in and to the Transition Period Assets shall be conveyed by Seller (or Seller’s Affiliates) to Acquiror (or Acquiror’s Affiliates) at Closing, and shall at all times thereafter remain vested in the Acquiror, subject only to Seller’s limited right as a bailee to retain physical possession of and use such Transition Period Assets in the performance of Seller’s obligations under the Transition Services Agreement or the Transitional Supply Agreement. Seller shall not (i) use the Transition Period Assets for any other purpose, (ii) commingle Transition Period Assets with any Assets of Seller or any other Person, (iii) move any Transition Period Assets from Seller’s premises without the prior written approval by Acquiror, (iv) allow any Security Interest to be imposed on or attach to any Transition Period Asset by or as a result of any act or omission on the part of Seller or its Affiliates. Acquiror shall have the right in its sole discretion (at any time, for any reason or no reason, without notice, and without payment additional amount or other consideration) retake possession of any Transition Period Assets, and Seller or Seller’s Affiliates will deliver to Acquiror (or its Affiliates), or dispose of, the Transition Period Assets if, as and when directed by Acquiror. Seller’s (or its Affiliates’) holding of the Transition Period Assets after demand has been made by Acquiror for the delivery or destruction thereof will substantially impair the value of such Transition Period Assets, and, accordingly, Acquiror will be entitled to an Order of possession without any need or proving damages or a bond pursuant to Section 9.12.

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(c) ACQUIROR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, CONDITION, MERCHANTABILITY, DESIGN OR OPERATION OF ANY TRANSITION PERIOD ASSET OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.

4.16 Transition Coordination; Completion of Agreements. Subject to applicable Law, from and after the date hereof until the Closing, Seller and Acquiror will cooperate in good faith on transition planning, including forming transition teams that are each sufficiently staffed. As part of the transition planning, the transition teams will meet, either in person or by teleconference, to finalize the operational details of each of the Ancillary Agreements and all schedules thereto, in each case in accordance with applicable Law. For the avoidance of doubt, Seller and Acquiror agree that the material terms of the Ancillary Agreements in the forms attached hereto will not be changed without their mutual agreement.

4.17 Guaranty

(a) On the terms and subject to the conditions set forth in this Section 4.17, Guarantor, in order to induce Seller to execute and deliver this Agreement, hereby absolutely, unconditionally and irrevocably guarantees the due, punctual and full payment and performance of Acquiror’s (including its permitted designees’ and assigns) payment obligations under Section 1.09 of this Agreement if, as and when due, and on the terms and subject to any and all conditions or limitations on Acquiror’s obligations hereunder (the “Guaranty”). Notwithstanding the foregoing, the aggregate liability of Guarantor under this Guaranty shall be limited to an amount Cash Purchase Price. The Guaranty and all obligations of the Guarantor under this Agreement shall terminate and be of no further force or effect upon the satisfaction of Section 1.09(b) upon the Closing.

(b) The Guaranty is a guarantee of payment and performance, and not of collection, and Acquiror acknowledges and agrees that this Guaranty is full and unconditional, and no release or extinguishment of Acquiror’s or its designees’ or assigns’ Liabilities (other than in accordance with the terms of this Agreement), whether by decree in any bankruptcy proceeding or otherwise, will affect the continuing validity and enforceability of this Guaranty. Guarantor hereby waives (i) any right to require Seller, as a condition of payment or performance by the Guarantor of the Guaranty, to proceed against Acquiror or pursue any other remedy whatsoever in the event that the Acquiror fails to perform its obligations under Section 1.09 of this Agreement, and (ii) to the fullest extent permitted by applicable Law, any defenses or benefits that may be derived from or afforded by Law which limit the liability of or exonerate guarantors or sureties.

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(c) Guarantor hereby represents and warrants to Seller as of the date hereof and as of the Closing Date that (i) Guarantor is a limited liability company validly existing and in good standing under the Laws of the State of Delaware, and has all requisite corporate power and authority necessary to execute and deliver this Agreement solely for purposes of providing the Guaranty, and to perform the Guaranty if, as and when due; (ii) the execution and delivery by Guarantor of this Agreement solely for purposes of providing the Guaranty and performance by Guarantor of the Guaranty if, as and when due have been approved by the requisite corporate action on the part of Guarantor; and (iii) no other action on the part of Guarantor or Acquiror is necessary to authorize the execution and delivery of this Agreement and performance by Guarantor of the Guaranty.

4.18 Right of Participation. For a period of five (5) years after the Closing Date, if Seller at any time determines to conduct a sale process pursuant to which it would (a) sell or otherwise assign or transfer ownership or control of all or substantially all of its assets and rights with respect to Joy-branded dish detergent in any other jurisdiction (an “Opportunity”), Seller will invite Acquiror to participate in such sale process; provided, however, that in no event will this Section 4.18 be deemed to obligate Seller to grant any rights of exclusivity to Acquiror or notify Acquiror of such opportunity prior to the commencement of such sale process.

V. CONDITIONS

5.01 Joint Conditions. The respective obligation of Seller and Acquiror to consummate the Closing is subject to the satisfaction or waiver of the following conditions:

(a) no Law shall have been adopted, and no preliminary or permanent injunction or other Order shall have been issued by a Governmental Authority of competent jurisdiction, in each case, that makes unlawful or otherwise prohibits the consummation of the transactions contemplated hereby; and

(b) all applicable Consents required for the consummation of the transactions contemplated by this Agreement identified on Section 5.01(b) of the Seller Disclosure Letter shall have been obtained.

5.02 Conditions to the Obligation of Acquiror. The obligation of Acquiror to consummate the Closing is subject to the satisfaction of each of the following conditions (each of which is for the exclusive benefit of Acquiror and may be waived by Acquiror in its sole discretion):

(a) all covenants of Seller under this Agreement to be performed or complied with on or before the Closing shall have been duly performed or complied with by Seller and its Affiliates in all material respects;

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(b) (i) the representations and warranties of Seller in this Agreement other than the Seller Specified Representations and the representations and warranties in Sections 2.08(b) and Section 2.08(d), which for purposes of this clause (i) will be read as though none of them contained any materiality, “Joy Business MAE” qualifications (but not disregarding the dollar limitations of representations to Joy Material Contracts) or Cream Suds Business MAE qualifications (but not disregarding the dollar limitations of representations to Joy Material Contracts), shall be true and correct in all respects as of the Closing with the same effect as if made at and as of the Closing (except that any representation and warranty in any Section that is made as of a date other than the date of this Agreement shall be true and correct in all respects as of the specified date), except where the failure of the representations and warranties to be true and correct in all respects would not in the aggregate have a Joy Business MAE or a Cream Suds Business MAE; and (ii) Seller Specified Representations shall be true and correct in all material respects as of the Closing with the same effect as if made at and as of the Closing (except that any representation and warranty in any Section that is made as of a date other than the date of this Agreement shall be true and correct in all material respects as of the specified date); and (iii) the representations and warranties of Seller in Sections 2.08(b) and Section 2.08(d) shall be true and correct in all respects as of the Closing with the same effect as if made at and as of the Closing; and

(c) Acquiror shall have received a certificate of Seller addressed to Acquiror and dated the Closing Date, signed on behalf of Seller by an officer of Seller (on Seller’s behalf and without personal liability), confirming the matters set forth in Section 5.02(a) and Section 5.02(b).

5.03 Conditions to the Obligation of Seller. The obligation of Seller to consummate the Closing is subject to the satisfaction of each of the following conditions (each of which is for the exclusive benefit of Seller and may be waived by Seller unless otherwise provided in this Agreement):

(a) all covenants of Acquiror under this Agreement and the Ancillary Agreements to be performed or complied with on or before the Closing Date shall have been duly performed or complied with by Acquiror and its Affiliates in all material respects;

(b) the representations and warranties of Acquiror in this Agreement (which for purposes of this paragraph will be read as though none of them contained any materiality or Acquiror MAE qualifications) shall be true and correct in all respects as of the Closing with the same effect as if made at and as of the Closing (except that any representation and warranty in any Section that is made as of a date other than the date of this Agreement shall be true and correct in all respects as of the specified date), except where the failure of the representations and warranties to be true and correct in all respects would not have in the aggregate an Acquiror MAE; and

(c) Seller shall have received a certificate of Acquiror addressed to Seller and dated the Closing Date, signed on behalf of Acquiror by an officer of Acquiror (on Acquiror’s behalf and without personal liability), confirming the matters set forth in Section 5.03(a) and Section 5.03(b).

5.04 Frustration of Conditions. Neither Seller nor Acquiror may rely on the failure of any condition set forth in Section 5.01, Section 5.02 or Section 5.03, as the case may be, to be satisfied to excuse it from its obligation to effect the transactions contemplated by this Agreement if such failure was caused by such Party’s breach of its obligations under this Agreement.

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VI. TERMINATION AND ABANDONMENT

6.01 Basis for Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing Date:

(a) by mutual written consent of Seller and Acquiror;

(b) by either Seller or Acquiror:

(i) if the Closing does not occur on or prior to three months after the date of execution of this Agreement (the “End Date”), unless the failure of the Closing to occur by such date is due to the failure of the Party seeking to terminate this Agreement to perform or observe in all material respects the covenants of such Party set forth herein; or

(ii) if (A) there is any Law that makes consummation of the transactions hereunder illegal or otherwise prohibited (other than those having only an immaterial effect and that do not impose criminal liability or penalties) or (B) any Governmental Authority having competent jurisdiction has issued an Order or taken any other action (which the terminating Party must have complied with its obligations hereunder to resist, resolve or lift) permanently restraining, enjoining or otherwise prohibiting any material component of the transactions contemplated hereunder, and such Order or other action becomes final and non-appealable;

(c) by Seller:

(i) if Acquiror breaches any of its representations and warranties or covenants contained in this Agreement, which breach (A) if uncured, would give rise to the failure of a condition set forth in Section 5.01 or Section 5.03 and (B) cannot be or has not been cured within 60 days after the giving of written notice to Acquiror of such breach (or, if earlier, the End Date); or

(ii) if any of the conditions set forth in Section 5.01 or Section 5.03 becomes incapable of fulfillment, and has not been waived by Seller to the extent waivable;

(d) by Acquiror:

(i) if Seller breaches any of its representations and warranties or covenants contained in this Agreement, which breach (A) if uncured, would give rise to the failure of a condition set forth in Section 5.01 or Section 5.02 and (B) cannot be or has not been cured within 60 days after the giving of written notice to Seller of such breach (or, if earlier, the End Date); or

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(ii) if any of the conditions set forth in Section 5.01 or 5.02 becomes incapable of fulfillment, and has not been waived by Acquiror to the extent waivable;

provided, however, that the Party seeking termination pursuant to clause (c)(i), (c)(ii), (d)(i) or (d)(ii) is not in material breach of any of its representations, warranties or covenants contained in this Agreement.

6.02 Notice of Termination; Return of Documents; Continuing Confidentiality Obligation. In the event of a termination of this Agreement by Seller or Acquiror pursuant to this Article VI, written notice thereof will be given to the other Party and the transactions contemplated by this Agreement and the Ancillary Agreements will terminate, without further action by any Party. If the transactions contemplated by this Agreement and the Ancillary Agreements are terminated as provided herein, (a) Acquiror will return to Seller or destroy all documents and copies and other material received from Seller and its Affiliates and its and their Representatives relating to the transactions contemplated hereby and by the Ancillary Agreements, whether so obtained before or after the execution hereof, (b) Seller will return to Acquiror or destroy all documents and copies and other material received from Acquiror and its Affiliates and its and their Representatives relating to the transactions contemplated hereby and by the Ancillary Agreements, whether so obtained before or after the execution hereof, and (c) notwithstanding anything herein to the contrary, the Confidentiality Agreement will be deemed to be reinstated and will be deemed to apply as if it had not originally been terminated pursuant to Section 9.02.

6.03 Effect of Termination. If this Agreement is duly terminated and the transactions contemplated hereby are abandoned as described in this Article VI, this Agreement will become void and of no further force and effect, except: (a) for the provisions of Section 4.03 relating to publicity, Section 6.02, this Section 6.03, Sections 9.02 through 9.13, Section 9.15, and Article 9.01 containing general provisions and definitions, respectively, and (b) that nothing in this Article VI will be deemed to release any Party from any Liability for any Deliberate Breach by such Party of the terms and provisions of this Agreement or to impair the right of any Party to compel specific performance by another Party of its obligations under this Agreement that specifically survive such termination as set forth in clause (a).

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VII. INDEMNIFICATION

7.01 Indemnification by Acquiror. Without limiting or otherwise affecting the indemnity provisions of any Ancillary Agreement, but subject to the limitations set forth in this Article VII, from and after the Closing Date, Acquiror will indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless the Seller Indemnitees from and against any and all Losses suffered or incurred by the Seller Indemnitees that result from or arise out of, whether prior to or following the Closing, any of the following items (without duplication):

(a) any Assumed Liability, including the failure of Acquiror, any other member of the Acquiror Group or any other Person to pay, perform, fulfill, discharge and, to the extent applicable, comply with, in due course and in full, any such Assumed Liability;

(b) any breach or non-performance by Acquiror or any other member of the Acquiror Group of any covenant to be performed by such Persons pursuant to this Agreement or any Ancillary Agreement; and

(c) any inaccuracy in or breach of any of the representations and warranties of Acquiror contained in Article III of this Agreement.

7.02 Indemnification by Seller. Without limiting or otherwise affecting the indemnity provisions of any Ancillary Agreement but subject to the limitations set forth in this Article VII, from and after the Closing, Seller will indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless the Acquiror Indemnitees from and against any and all Losses that result from, relate to or arise out of, whether prior to or following the Closing, any of the following items (without duplication):

(a) any Excluded Liability, including the failure of Seller or any other member of the Seller Group or any other Person to pay, perform, fulfill, discharge and, to the extent applicable, comply with, in due course and in full, such Excluded Liabilities;

(b) any breach or non-performance by Seller or any other member of the Seller Group of any covenant to be performed by such Persons pursuant to this Agreement or any Ancillary Agreement; and

(c) any inaccuracy in or breach of any of the representations and warranties of Seller contained in Article II of this Agreement.

7.03 Calculation and Other Provisions Relating to Indemnity Payments. The amount of any Loss for which indemnification is provided under this Article VII will be net of any amounts actually recovered by the Indemnitee or its Affiliates under third party, non-captive insurance policies with respect to such Loss (less the cost to collect the proceeds of such insurance). If any Loss resulting in indemnification under Section 7.01(c) or 7.02(c) relates to a claim by an Indemnitee or its Affiliates that is covered by one or more third party, non-captive insurance policies held by the Indemnitee or its Affiliates, the Indemnitee will use and will cause its Affiliates to use Commercially Reasonable Efforts to pursue claims against the applicable insurers for coverage of such Loss under such policies. Any indemnity payment hereunder will initially be made without regard to this Section 7.03(a), and if the Indemnitee or its Affiliates actually receive a full or partial recovery under such insurance policies following payment of indemnification by the Indemnifying Party in respect of such Loss, then the Indemnitee will refund amounts received from the Indemnifying Party up to the amount of indemnification actually received from the Indemnifying Party with respect to such Loss (less the cost to collect the proceeds of such insurance).

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7.04 Procedures for Defense, Settlement and Indemnification of Claims.

(a) Direct Claims. All claims for indemnification made hereunder by (i) any Seller Indemnitee, on the one hand, against Acquiror on the other hand, pursuant to Section 7.01, or (ii) by any Acquiror Indemnitee, on the one hand, against Seller or any member of the Seller Group, on the other hand, pursuant to Section 7.02 (collectively, “Direct Claims”), will be subject to the limitations and dispute resolution procedures set forth in Section 9.13. If an Indemnitee receives notice or otherwise learns of any matter that may be the subject of a Direct Claim, such Indemnitee will give the Indemnifying Party prompt written notice thereof but in any event within 30 days after receiving such notice or otherwise learning of such matter. Any such notice will describe the Direct Claim in reasonable detail, state the basis for indemnification and the amount of Losses associated therewith, to the extent known, along with copies of any relevant documents evidencing such Direct Claim. Notwithstanding the foregoing, the delay or failure of any Indemnitee or other Person to give notice as provided in this Section 7.04 will not relieve the Indemnifying Party of its obligations under this Article VII, except to the extent that such Indemnifying Party is prejudiced by such delay or failure to give notice in accordance with this Section 7.04.

(b) Third-Party Claims.

(i) Notice of Claims. If an Indemnitee receives notice or otherwise learns of the assertion by a Person (including any Governmental Authority) who is not a member of the Seller Group or the Acquiror Group of any claim or of the commencement by any such Person of any Action with respect to which an Indemnifying Party may be obligated to provide indemnification (collectively, a “Third-Party Claim”), such Indemnitee will give such Indemnifying Party prompt written notice (a “Claims Notice”) thereof but in any event within 30 days after becoming aware of such Third-Party Claim. Any such Claims Notice will describe the Third-Party Claim in reasonable detail, state the basis for indemnification and the amount of Losses associated therewith, to the extent known, along with copies of any relevant documents evidencing such Third-Party Claim. Notwithstanding the foregoing, the delay or failure of any Indemnitee or other Person to give notice as provided in this Section 7.04(b)(i) will not relieve the Indemnifying Party of its obligations under this Article VII, except to the extent that such Indemnifying Party is prejudiced by such delay or failure to give notice in accordance with this Section 7.04(b)(i).

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(ii) Opportunity to Defend. The Indemnifying Party has the right, exercisable by written notice to the Indemnitee within 30 days after receipt of a Claims Notice from the Indemnitee of the commencement or assertion of any Third-Party Claim in respect of which indemnity may be sought under this Article VII, to assume and conduct the defense of such Third-Party Claim in accordance with the limits set forth in this Agreement with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that (A) the Third-Party Claim (1) does not relate to or arise in connection with any criminal proceeding, Action, indictment, allegation or investigation, (2) does not involve any equitable, corrective or other non-monetary relief, and (3) does not involve Losses that are reasonably expected to exceed the maximum amount for which the Indemnifying Party could be liable under this Agreement, and (B) the Indemnifying Party expressly agrees with the Indemnitee in writing to be fully responsible for all of the Losses that arise from the Third-Party Claim, subject to the limitations thereon set forth in this Article VII (the conditions set forth in clauses (A) and (B) are, collectively, the “Litigation Conditions”). For purposes of clause (B) of the preceding sentence, if a Third-Party Claim consists of multiple claims by a plaintiff or group of plaintiffs, and it is reasonably practicable for an Indemnifying Party to control the defense of a subset of such claims, the Indemnifying Party may elect to agree to be fully responsible subject to the limitations thereon set forth in this Article VII, for only all of the Losses that arise from such subset of claims, and may elect to control the defense of only such subset of claims; provided, that the other Litigation Conditions set forth in clauses (A) and (B) of the preceding sentence are satisfied. If the Indemnifying Party does not assume the defense of a Third-Party Claim in accordance with this Section 7.04(b), the Indemnitee may continue to defend the Third-Party Claim. If the Indemnifying Party has assumed the defense of a Third-Party Claim as provided in this Section 7.04(b), the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense of the Third-Party Claim; provided, however, that if (x) any of the Litigation Conditions ceases to be met, (y) the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third-Party Claim, or (z) in the reasonable judgment of the Indemnitee based on the advice of counsel, there exists an actual or potential conflict of interest between the Indemnifying Party and the Indemnitee with respect to such Third-Party Claim, the Indemnitee may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses thereafter incurred in connection with such defense. The Indemnifying Party or the Indemnitee, as the case may be, has the right to participate in (but, subject to the prior sentence, not control), at its own expense, the defense of any Third-Party Claim that the other is defending as provided in this Agreement.

(iii) The Indemnifying Party, if it has assumed the defense of any Third-Party Claim as provided in this Agreement, may not, without the prior written consent of the Indemnitee, consent to a settlement of, or the entry of any judgment arising from, any such Third-Party Claim unless such settlement or judgment (A) includes as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a complete release from all liability in respect of such Third- Party Claim, (B) does not include any finding or admission of any violation by the Indemnitee or its Affiliates of any Law or any rights of any Person, and (C) does not impose injunctive or other non-monetary equitable relief against the Indemnitee or its Affiliates, or their respective businesses. The Indemnitee has the right to settle any Third-Party Claim, the defense of which has not been assumed by the Indemnifying Party, with the prior written consent of the Indemnifying Party, not to be unreasonably withheld, conditioned or delayed.

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(c) Without limiting any provision of this Section 7.04, each of the Parties will reasonably cooperate, and will cause each of its respective Affiliates to reasonably cooperate, with each other in the defense of any claim that the Joy Business or the Cream Suds Business infringe or otherwise violate Intellectual Property of any third Person, and no Party will knowingly acknowledge, or permit any member of its respective Group to acknowledge, the validity or infringing use of any Intellectual Property of a third Person in a manner as to which such Party has actual knowledge that so doing will be materially inconsistent with the defense of such infringement, validity or similar claim or challenge except as required by Law. For the avoidance of doubt, nothing herein will preclude truthful testimony by Seller or any of its representatives or employees, and such truthful testimony will not be deemed a breach hereof.

(d) In the event Acquiror promptly notifies Seller in writing that Seller or one of its Affiliates has challenged the validity, ownership, use or enforcement of any Intellectual Property of the Joy Business or the Cream Suds Business, Seller will withdraw or cause such challenge to be withdrawn within five Business Days following receipt of such written notice from Acquiror.

7.05 Additional Matters.

(a) Cooperation in Defense and Settlement. With respect to any Third- Party Claim for which Acquiror, on the one hand, and Seller, on the other hand, may have Liability under this Agreement or any of the Ancillary Agreements, the Parties agree to cooperate fully and maintain a joint defense (in a manner that will preserve the attorney-client privilege, joint defense or other privilege with respect thereto) so as to minimize such Liabilities and defense costs associated therewith. The Party that is not responsible for managing the defense of such Third-Party Claims will, upon reasonable request, be consulted with respect to significant matters relating thereto and may retain counsel to monitor or assist in the defense of such claims at its own cost.

(b) Certain Actions. Notwithstanding anything to the contrary set forth in this Article VII, Seller may elect to have exclusive authority and control over the investigation, prosecution, defense and appeal of any and all Actions pending at the Closing which relate to or arise out of the Joy Business or the Cream Suds Business, the Acquired Assets or the Assumed Liabilities and as to which a member of the Seller Group is also a plaintiff or named as a target or defendant thereunder (but excluding any such Actions which solely relate to or solely arise in connection with the Joy Business, the Cream Suds Business, the Acquired Assets or the Assumed Liabilities); provided, however, that, (i) Seller will defend or prosecute, as applicable, such Actions in good faith, (ii) Seller will reasonably consult with Acquiror on a regular basis with respect to strategy and developments with respect to any such Action, (iii) Acquiror will have the right to participate in (but not control) the defense or prosecution, as applicable, of such Action, and (iv) Seller must obtain the written consent of Acquiror, such consent not to be unreasonably withheld, conditioned or delayed, to settle or compromise or consent to the entry of judgment with respect to such Action if Seller is a defendant and such settlement, consent or judgment would require Acquiror to abandon its rights, change its business practices or incur any Liabilities with respect thereto or if Seller is a plaintiff and the resolution involves a judgment that is less than was being sought in respect of the Joy Business or the Cream Suds Business.

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(c) Reasonable Minimization of Losses. To the extent any remedial, corrective or other ameliorative action is required to be taken by an Indemnitee in respect of a matter that is the subject of an indemnification claim hereunder, the Indemnitee will only be entitled for indemnification in respect of those actions that would be necessary to perform the minimum remediation, correction or amelioration necessary to remedy the breach or Liability, as the case may be, at the lowest reasonable cost.

(d) Substitution. In the event of an Action that involves solely matters that are indemnifiable and in which the Indemnifying Party is not a named defendant, if either the Indemnitee or the Indemnifying Party so requests, the Parties will endeavor to substitute the Indemnifying Party for the named defendant. If such substitution or addition cannot be achieved for any reason or is not requested, the rights and obligations of the Parties regarding indemnification and the management of the defense of claims as set forth in this Article VII will not be affected.

(e) Subrogation. In the event of payment by or on behalf of any Indemnifying Party to or on behalf of any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party will be subrogated to and will stand in the place of such Indemnitee, in whole or in part based upon whether the Indemnifying Party has paid all or only part of the Indemnitee’s Liability, as to any events or circumstances in respect of which such Indemnitee may have any right, defense or claim relating to such Third- Party Claim against any claimant or plaintiff asserting such Third-Party Claim or against any other Person. Such Indemnitee will cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defense or claim.

7.06 Exclusive Remedy. From and after the Closing, the sole and exclusive remedy of a Party with respect to any and all Actions relating to this Agreement or the transactions contemplated by this Agreement (other than Actions (a) arising under or based upon any Deliberate Breach of a Party, (b) seeking specific performance or other equitable relief to require a Party to perform its obligations under this Agreement to the extent permitted hereunder or (c) arising under or based upon any Ancillary Agreement) will be pursuant to the indemnification provisions set forth in this Article VII. In furtherance of the foregoing, each Party hereby waives, from and after the Closing, any and all rights, claims and causes of action (other than pursuant to the indemnification provisions set forth in this Article VII and Article VIII and other than Actions, claims of, or causes of action (x) arising under or based upon any Deliberate Breach of a Party, (y) seeking specific performance or other equitable relief to require a Party to perform its obligations under this Agreement or (z) arising under or based upon any Ancillary Agreement) that such Party or its Affiliates may have against the other Party or any of its Affiliates, or their respective directors, officers and employees, arising under or based upon any applicable Laws and arising out of the transactions contemplated by this Agreement.

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7.07 Limitations on Indemnification.

(a) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs:

(i) Seller will not have any liability for Losses under Section 7.02(c) (other than with respect to a breach of Sections 2.01 (Organization), 2.02 (Authorization), 2.03(v) (Security Interests), 2.04(a), 2.04(b), 2.04(c), 2.10 (Brokers), and 2.11 (Title) (collectively, the “Seller Specified Representations”) or a Deliberate Breach) unless the aggregate Losses suffered by the Acquiror Indemnitees thereunder exceeds one percent (1%) of the Cash Purchase Price (the “Deductible”), and then only to the extent of such excess;

(ii) Seller’s aggregate liability for Losses under Section 7.02(c) (other than with respect to a breach of any of the Seller Specified Representations or any Deliberate Breach) will not exceed eight percent (8%) of the Cash Purchase Price (the “Cap”);

(iii) Acquiror will not have any liability for Losses under Section 7.01(c) (other than with respect to a breach of Sections 3.01 (Organization), 3.02 (Authorization), 3.04 (Brokers) and 3.05 (Financing) (collectively, the “Acquiror Specified Representations”) or a Deliberate Breach) unless and until the aggregate Losses suffered by the Seller Indemnitees thereunder exceeds the Deductible, and then only to the extent of such excess;

(iv) Acquiror’s aggregate liability for Losses under Section 7.01(c) (other than with respect to a breach of any of the Acquiror Specified Representations or any Deliberate Breach) will not exceed the Cap.

(b) For purposes of Sections 7.01(c) and 7.02(c), any qualification in any such representation or warranty as to materiality, Joy Business MAE, Cream Suds Business MAE or Acquiror MAE will be taken into account for purposes of determining whether such representation or warranty has been breached, but in the event that such representation or warranty has been determined to have been breached, such qualification as to materiality, Joy Business MAE, Cream Suds Business MAE or Acquiror MAE will thereafter be disregarded for purposes of determining the amount of Losses arising from such breach and the applicable Indemnitee may recover the entire amount of such Losses subject to the limitations set forth in this Article VII.

7.08 Tax Treatment of Indemnification. For all Tax purposes, Acquiror and Seller agree to treat any indemnity payment under this Agreement as an adjustment to the purchase price unless, and then solely to the extent that, a Final Determination provides otherwise.

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VIII. TAX MATTERS

8.01 Allocation of Cash Purchase Price. A description of the allocation of the Cash Purchase Price, as agreed to by Seller and Acquiror, is set forth in Section 8.01 of the Seller Disclosure Letter (the “Asset Allocation”). Seller and Acquiror will not, and will cause their respective Affiliates not to, take a position in any forum that is inconsistent with the allocation shown on Schedule 8.01, including taking an inconsistent position on any Tax return, before any Governmental Authority charged with the collection of any Tax or in any Action relating to any Tax. Seller and Acquiror will file IRS Form 8594 and all federal, state, local and foreign Tax returns in accordance with Schedule 8.01. Seller and Acquiror will provide each other promptly (and no later than 90 days following the Closing Date) with any additional information necessary to complete IRS Form 8594.

8.02 Transfer Taxes. Each of Seller and Acquiror will pay, and be responsible for, 50% of all Transfer Taxes. Any Tax Return required to be filed with respect to any such Transfer Taxes will be filed by the Person primarily responsible for such filing under applicable Law; provided, that such Party will deliver a draft of any such Tax Return to the other Party at least 15 days prior to the due date for the filing of any such Tax Return (taking into account any applicable extensions) and any additional information relating thereto that the other Party may reasonably request, and will reflect on the applicable Tax Return any reasonable comments submitted by such other Party at least five days prior to the applicable due date. The Parties will reasonably cooperate in obtaining any available exemptions or refunds with respect to Transfer Taxes. In any event, each Party will indemnify and hold harmless the other Party from any cost arising from a failure by the initial Party to pay Transfer Taxes in a timely manner.

8.03 Miscellaneous. Each Party will provide the other with such information, records and other assistance, and make such of its officers, directors, employees and agents available, as may reasonably be requested by the other Party in connection with any Tax matter under this Article VIII, including the preparation of any Tax Return and the conduct of any Tax claim; provided that Acquiror will not be permitted to inspect or otherwise review any Consolidated Tax Return.

IX. MISCELLANEOUS

9.01 Survival of Representations and Warranties. The representations, warranties of Seller and Acquiror contained in this Agreement (other than the Seller Specified Representations and the Acquiror Specified Representations) will survive the Closing until the date that is 12 months after the Closing Date. The Seller Specified Representations and the Acquiror Specified Representations will survive the Closing until the later of the date that is the third anniversary of the Closing and the expiration of the applicable statute of limitations related thereto. The covenants and agreements of each Party that contemplate actions to be wholly-performed or complied with during the Pre- Closing Period shall survive the Closing until the date that is 12 months after the Closing Date. The covenants and agreements of each Party in this Agreement that contemplate actions to be performed or complied with after the Closing shall survive the Closing and shall continue in effect for 60 days after the respective term (or if no such term exists, then the expiration of the statute of limitations applicable thereto). Except in the case of a Deliberate Breach, No Party will have any liability or obligation of any nature with respect to any representation, warranty after the termination applicable periods set forth in this Section 9.01, unless a notice of claim thereof giving rise to a right of indemnity has been sent or given to the Party against whom such indemnity may be sought prior to such termination, in which case the noticed claims relating to such breach will survive such termination until they are finally resolved. The representations, warranties, covenants and agreements of an Indemnifying Party, and an Indemnitee’s right to indemnification with respect to any inaccuracy in or breach thereof, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnitee or by reason of the fact that the Indemnitee or its Representatives knew or should have known of such inaccuracy or breach.

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9.02 Expenses. Except as otherwise provided in this Agreement, including in Sections 4.06(e), 8.02, 8.03 and 9.02(b) or any of the Ancillary Agreements, all fees and expenses incurred in connection with the transactions contemplated hereby and thereby will be paid by the Party incurring such fees or expenses. Acquiror will be responsible for and pay any requisite filing fee in respect of any notification submitted pursuant any Antitrust Laws.

9.03 Entire Agreement. This Agreement and the Ancillary Agreements, including any related annexes, schedules and exhibits, as well as any other agreements and documents referred to herein and therein, will together constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and will supersede all prior negotiations, agreements and understandings of the Parties of any nature, whether oral or written, with respect to such subject matter, including the Confidentiality Agreement, which is hereby terminated and of no further force or effect, subject to Section 6.02. If there is a conflict between any provision of this Agreement and a provision of any Ancillary Agreement, the provision of this Agreement will control unless specifically provided otherwise in this Agreement.

9.04 Governing Law; Jurisdiction; Waiver of Jury Trial.

(a) This Agreement and all matters regarding the validity, interpretation and enforcement of this Agreement will be construed and governed by the Laws of the State of Delaware, without regard to the conflict of Laws provisions (whether of the State of Delaware or any other state or jurisdiction) that would cause the Laws of another state or jurisdiction to apply.

(b) By execution and delivery of this Agreement, each Party irrevocably (i) submits and consents to the personal jurisdiction of the Chancery Court of the State of Delaware or, if the Chancery Court declines jurisdiction, any state and federal courts of the State of Delaware for itself and in respect of its property in the event that any Action or dispute arises out of this Agreement or any of the transactions contemplated hereby, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (iii) agrees that it will not bring any Action relating to this Agreement or any of the transactions contemplated hereby in any other court. Subject to compliance with the provisions of Section 9.14, if applicable, each of the Parties irrevocably and unconditionally waives (and agrees not to plead or claim) any objection to the laying of venue of any dispute arising out of this Agreement or any of the transactions contemplated hereby in the state and federal courts of the State of Delaware, or that any such dispute brought in any such court has been brought in an inconvenient or improper forum. The Parties further agree that the mailing by certified or registered mail, return receipt requested, of any process required by any such court will constitute valid and lawful service of process against them, without necessity for service by any other means provided by statute or rule of court.

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(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.04(C).

9.05 Notices. All notices, requests, Consents and other communications hereunder will be in writing and will be deemed to have been duly given (a) when sent, if sent by facsimile or electronic mail (with confirmation of transmission) if sent prior to 6:30 p.m. Cincinnati, Ohio time, and on the next Business Day if sent after 6:30 p.m. Cincinnati, Ohio time, (b) when delivered, if delivered personally to the intended recipient (with confirmation of delivery) and (c) one Business Day following sending by overnight delivery via a nationally recognized overnight courier service and, in each case, addressed to a Party at the following address for such Party:

(i) If to Seller:

The Procter & Gamble Company

One Procter & Gamble Plaza

Cincinnati, OH 45202

Attention: Associate General Counsel – Global Transactions

Facsimile: (513) 386-1927

(ii) If to Acquiror or Guarantor:

c/o Capital Park Holdings Corp.

2100 Cedar Springs Road Suite 650

Dallas, Texas 75201

Email: eric.blue@capitalpark.net

Attn: Chief Financial Officer

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or to such other address(es) as may be furnished in writing by any such Party to the other Party in accordance with the provisions of this Section 9.05. Any notice to Seller will be deemed notice to all members of the Seller Group, and any notice to Acquiror will be deemed notice to all members of the Acquiror Group.

9.06 Amendments and Waivers.

(a) This Agreement may be amended and any provision of this Agreement may be waived; provided, however, that any such amendment or waiver will become and remain binding upon a Party only if such amendment or waiver is set forth in a writing executed by such Party. No course of dealing between or among any Persons having any interest in this Agreement will be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any Party under or by reason of this Agreement.

(b) No delay or failure in exercising any right, power or remedy hereunder will affect or operate as a waiver thereof; nor will any single or partial exercise thereof or any abandonment or discontinuance of steps to enforce such a right, power or remedy preclude any further exercise thereof or of any other right, power or remedy. Except and solely to the extent set forth in Section 7.06, the rights and remedies hereunder are cumulative and not exclusive of any rights or remedies that any Party would otherwise have.

9.07 No Third-Party Beneficiaries. Except for the Seller Indemnitees and Acquiror Indemnitees under Section VII, this Agreement is solely for the benefit of the Parties and does not confer on third parties any remedy, claim, reimbursement, claim of action or other right in addition to those existing without reference to this Agreement.

9.08 Assignability. No Party may assign its rights or delegate its duties under this Agreement without the written consent of the other Party; provided, that without the prior written consent of the other Party (a) a Party may assign its rights or delegate i ts duties under this Agreement to a member of its Group, (b) Acquiror or any of its Affiliates may collaterally assign any of their respective rights under this Agreement to any financing source, and (c) Acquiror may assign any of its rights under this Agreement or delegate any of its duties under this Agreement (in whole or in part) to any Person in connection with any merger, sale of equity or assets, reorganization, recapitalization, spin-off or similar business combination; provided, that in the case of clauses (a) and (c), (i) such Person agrees in writing to be bound by the terms and conditions contained in this Agreement and (ii) such assignment or delegation will not relieve any Party of its indemnification obligations or other obligations under this Agreement. Any attempted assignment or delegation in contravention of the foregoing will be void.

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9.09 Construction. The descriptive headings herein are inserted for convenience of reference only and are not intended to be a substantive part of or to affect the meaning or interpretation of this Agreement. Whenever required by the context, any pronoun used in this Agreement or the Seller Disclosure Letter or Acquiror Disclosure Letter will include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns, pronouns, and verbs will include the plural and vice versa. Reference to any agreement, document, or instrument means such agreement, document, or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and if applicable, hereof. Unless the context otherwise requires, any references to an “Exhibit,” “Section” or “Article” will be to an Exhibit, Section or Article to or of this Agreement, and will be deemed to include any provisions or matters set forth in any corresponding schedule or section of the Acquiror Disclosure Letter or Seller Disclosure Letter. The use of the words “include” or “including” in this Agreement or the Seller Disclosure Letter or the Acquiror Disclosure Letter will be deemed to be followed by the words “without limitation.” The use of the word “covenant” will mean “covenant and agreement.” The use of the words “or,” “either” or “any” will not be exclusive. “Days” means calendar days unless specified as Business Days. References to statutes will include all regulations promulgated thereunder, and references to statutes or regulations will be construed to include all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation as of the date hereof. The Parties have participated jointly in the negotiation and drafting of this Agreement and the Ancillary Agreements. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Except as otherwise expressly provided elsewhere in this Agreement or any Ancillary Agreement, any provision herein which contemplates the agreement, approval or consent of, or exercise of any right of, a Party, such Party may give or withhold such agreement, approval or consent, or exercise such right, in its sole and absolute discretion, the Parties hereby expressly disclaiming any implied duty of good faith and fair dealing or similar concept.

9.10 Severability. The Parties agree that (a) the provisions of this Agreement will be severable in the event that for any reason whatsoever any of the provisions hereof are invalid, void or otherwise unenforceable, (b) any such invalid, void or otherwise unenforceable provisions will be replaced by other provisions which are as similar as possible in terms to such invalid, void or otherwise unenforceable provisions but are valid and enforceable, and (c) the remaining provisions will remain valid and enforceable to the fullest extent permitted by applicable Law.

9.11 Counterparts, Etc. This Agreement may be executed in multiple counterparts (any one of which need not contain the signatures of more than one Party), each of which will be deemed to be an original but all of which taken together will constitute one and the same agreement. This Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or other electronic transmission, will be treated in all manner and respects as an original agreement and will be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person. At the request of any Party, the other Party will re- execute original forms thereof and deliver them to the requesting Party.

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9.12 Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement was not performed in accordance with its specific terms or was otherwise breached. It is accordingly agreed, that the Parties will be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the performance of the terms and provisions of this Agreement without proof of actual damages, this being in addition to any other remedy to which any Party is entitled at Law or in equity. Each Party further agrees that no other Party or any other Person will be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 9.12, and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

9.13 Disclosure Letters. There may be included in the Seller Disclosure Letter or the Acquiror Disclosure Letter items and information that are not “material,” and such inclusion will not be deemed to be an acknowledgment or agreement that any such item or information (or any non-disclosed item or information of comparable or greater significance) is “material,” or to affect the interpretation of such term for purposes of this Agreement. Matters reflected in the Seller Disclosure Letter and the Acquiror Disclosure Letter are not necessarily limited to matters required by this Agreement to be disclosed therein. The Seller Disclosure Letter and the Acquiror Disclosure Letter set forth items of disclosure with specific reference to the particular Section or subsection of this Agreement to which the information in the Seller Disclosure Letter or the Acquiror Disclosure Letter, as applicable, relates; provided, however, that any information set forth in one Section of such disclosure letter will be deemed to apply to each other Section or subsection thereof to which its relevance is reasonably apparent on its face.

9.14 Dispute Resolution. Except as otherwise specifically provided in this Agreement or in any Ancillary Agreement and subject to Section 9.12, the procedures set forth in this Section 9.14 will govern dispute resolution of any Direct Claim under Section 7.04 (a “Dispute”). Acquiror, on the one hand, and Seller, on the other hand, will first refer any such Dispute for resolution to either the Manager of Acquiror or the Director of Global Business Development of Seller (or their designees) by delivering to the other Party a written notice of the referral (a “Dispute Escalation Notice”). Following receipt of a Dispute Escalation Notice, each of the Parties will cause their respective officer or designee to negotiate in good faith to resolve the Dispute. If such officers or designees are unable to resolve the Dispute within 30 calendar days after the date of the Dispute Escalation Notice, either Party will have the right to commence litigation in accordance with Section 9.04. The Parties agree that all discussions, negotiations and other Information exchanged between the Parties during the foregoing escalation proceedings will be without prejudice to the legal position of a Party in any subsequent Action and kept confidential and protected against disclosure.

9.15 Obligations of Affiliates. Each of Seller and Acquiror will cause all of the members of its Group to comply with their respective obligations or representations or warranties under this Agreement and the Ancillary Agreements (whether or not any such members of its Group are parties to this Agreement or Ancillary Agreements). Seller hereby guarantees to Acquiror the performance of the other members of the Seller Group of their respective obligations under this Agreement and the other Ancillary Agreements, and Acquiror hereby guarantees to Seller the performance of the other members of the Acquiror Group of their respective obligations under this Agreement and Ancillary Agreements.

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X. DEFINITIONS

For purposes of this Agreement, the following terms, when utilized in a capitalized form, will have the following meanings:

“Acquired Assets” has the meaning set forth in Section 1.04.

“Acquired Contracts” has the meaning set forth in Section 1.04(a)(ii).

“Acquired IP Asset” has the meaning set forth in Section 1.04(a)(iv).

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

“Acquiror Disclosure Letter” means the disclosure letter delivered by Acquiror to Seller immediately prior to the execution of this Agreement.

“Acquiror Group” means Acquiror and each of its Affiliates.

“Acquiror Indemnitees” means Acquiror, each member of the Acquiror Group and each of their respective successors and assigns, and all Persons who are or have been stockholders, directors, partners, managers, managing members, members, officers, agents, representatives or employees of any member of the Acquiror Group (in each case, in their respective capacities as such).

“Acquiror MAE” means any circumstance, change, fact, occurrence, development, condition or event that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the ability of Acquiror to consummate the transactions contemplated hereby by no later than the End Date.

“Acquiror Specified Representations” has the meaning set forth in Section 7.07.

“Action” means any demand, charge, claim, action, cause of action, suit, counter suit, arbitration, mediation, hearing, trial, indictment, inquiry, proceeding, audit, review, complaint, litigation or investigation, sanction, summons, demand, subpoena, examination, citation, audit, review or proceeding of any nature, whether at law, in equity or otherwise, and whether administrative, civil, criminal, regulatory or otherwise.

“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such other Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by Contract or otherwise.

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

“Ancillary Agreements” means the Transition Services Agreement, the Shared Technology License Agreement, the Transitional Distribution Agreement and the Transitional Supply Agreement.

“Antitrust Approvals” has the meaning set forth in Section 4.02(c).

“Antitrust Laws” means all Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade.

“Asset Allocation” has the meaning set forth in Section 8.01.

“Assets” means assets, properties and rights (including Permits that are used or held for use in the Joy Business and the Cream Suds Business and Contracts), and all goodwill, interests, claims, benefits and other attributes of ownership arising therefrom or associated therewith, in any case, wherever located (including in the possession of vendors or other third parties or elsewhere), whether real, personal or mixed, tangible, intangible or contingent, whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of any Person.

“Assumed Liabilities” has the meaning set forth in Section 1.05(a).

“Business IP Assets” means the Acquired Assets and Intellectual Property licensed under the Shared Technology License Agreement.

“Business Day” means any day that is not a Saturday, a Sunday or other day that is a statutory holiday under the federal Laws of the United States.

“Cap” has the meaning set forth in Section 7.07.

“Cash Purchase Price” has the meaning set forth in Section 1.09.

“Claims Notice” has the meaning set forth in Section 7.04(b)(i). “Closing” has the meaning set forth in Section 1.08.

“Closing Date” has the meaning set forth in Section 1.08.

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

“Commercially Reasonable Efforts” means, with respect to the efforts to be expended by a Party with respect to any objective under this Agreement, reasonable, diligent good faith efforts to accomplish such objective as such Party would normally use to accomplish a similar objective as expeditiously as reasonably possible under similar circumstances exercising reasonable business judgment, it being understood and agreed that such efforts will include the exertion of efforts and utilization of resources that would be used by such Party in support of one of its own wholly owned businesses.

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“Commercially Reasonable Efforts” will not require a Party (a) to make payments to unaffiliated third parties (except as set forth in this Agreement), to incur non-de minimis Liabilities to unaffiliated third parties or to grant any non-de minimis concessions or accommodations unless the other Party agrees to reimburse and make whole such Party to its reasonable satisfaction for such Liabilities, concessions or accommodations requested to be made by the other Party (such reimbursement and make whole to be made promptly after the determination thereof following the Closing or, with respect to items incurred after the Closing, promptly thereafter), (b) to violate any Law, or (c) to initiate any Action.

“Compensation and Benefit Plans” means all written (a) salary, bonus, vacation, deferred compensation, pension, retirement, profit-sharing, thrift, savings, overtime, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, equity-based, incentive, retention, severance or change-in-control plans or other similar plans, policies, arrangements or agreements, (b) employment agreements, and (c) medical, dental, disability, health and life insurance plans, in the case of each of clauses (a) through (c), maintained or contributed to by Seller or any of its Affiliates as of the date of this Agreement for the benefit of any of their employees or any of their beneficiaries, excluding any plans, policies, arrangements or agreements not sponsored by Seller or any of its Affiliates to which contributions by an employer are mandated by a Governmental Authority or by Law.

“Confidential Information” has the meaning set forth in Section 4.14(a).

“Confidentiality Agreement” means the Non-Disclosure Agreement signed, dated as of September 19, 2018, between Seller and Guarantor.

“Consent” means (a) any consent, license, registration, permit, permission, order, clearance, termination, waiver, approval to be obtained from or to be issued or granted by, (b) the expiration of any waiting period, (c) any notice or report to be given to, or (d) any filing to be made with, in each case, any Person.

“Consolidated Tax Returns” means any Tax Returns with respect to any federal, state, provincial, local or foreign income Taxes that are paid on an affiliated, consolidated, combined, unitary or similar basis and that include Seller or any of its Affiliates.

“Contracts” means any contract, agreement, lease, sublease, license, sales order, purchase order, loan, credit agreement, bond, debenture, note, mortgage, indenture, guarantee, undertaking, instrument, arrangement, understanding or other commitment, whether written or oral, that is binding on any Person or any part of its property under applicable Law.

“Convey” has the meaning set forth in Section 1.01. Variants of this term such as “Conveyance” will have correlative meanings.

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“Copyrights” has the meaning set forth in the definition of “Intellectual Property.”

“Cream Suds Books and Records” has the meaning set forth in Section 1.04(a)(v)

“Cream Suds Business” means the Seller Group’s cream dishwashing detergent business that operates under the “Cream Suds” Trademark and brand name in the Territory.

“Cream Suds Business MAE” means any circumstance, change, fact, occurrence, development, condition or event that, individually or in the aggregate, has or would reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Cream Suds Business, taken as a whole; provided, however, that any such effect resulting or arising from or relating to any of the following matters will not be considered when determining whether there has been, or would reasonably be expected to be, a Cream Suds Business MAE: (a) general conditions in the industry in which the Cream Suds Business competes, (b) any conditions in the United States general economy or the general economy in other geographic areas in which the Cream Suds Business operates or proposes to operate, (c) political conditions, including acts of war (whether or not declared), armed hostilities, acts of terrorism or developments or changes therein, (d) any conditions resulting from natural disasters, (e) compliance by Seller with its covenants or obligations in this Agreement, (f) the failure of the financial or operating performance of the Cream Suds Business to meet internal forecasts or budgets for any period prior to, on or after the date of this Agreement (but the underlying reason for the failure to meet such forecasts or budgets may be considered provided that they do not fall under another clause of this proviso), (g) any action taken or omitted to be taken at the request or with the consent of Acquiror, (h) effects or conditions resulting from the announcement, pendency or consummation of this Agreement or the transactions contemplated thereby, including any actions taken by customers or suppliers of the Cream Suds Business to terminate, discontinue or not renew their Contracts with the Cream Suds Business or otherwise withhold any Consent necessary in respect of such Contracts, (i) any deterioration in the business, financial condition or results of operations of the Cream Suds Business that occurs subsequent to the date of this Agreement and prior to the Closing Date, except that such deterioration will be considered to the extent it arises out of any (1) breach by Seller of its covenants under this Agreement, (2) extraordinary event of a nature described in clauses (c) or (d) (but only to the extent that such extraordinary event disproportionately affects the Cream Suds Business as compared to similarly situated businesses operating in the dishwashing detergent business in the geographic areas in which the Cream Suds Business operates), or (3) a product recall required under applicable Law (but only to the extent such product recall disproportionately affects the Cream Suds Business as compared to similarly situated businesses operating in the dishwashing detergent business in geographic areas in which the Cream Suds Business operates), or (j) changes in applicable Laws or GAAP; provided, further, that with respect to clauses (a), (b), (c), (d) or (j), such matters will be considered to the extent that they disproportionately affect the Cream Suds Business as compared to similarly situated businesses generally operating in the same industry and in the geographic areas in which the Cream Suds Business operates.

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“Cream Suds Inventory” means all product inventories, raw and packaging materials, works-in-process and finished goods and products of the Cream Suds Business as of the Closing.

“Deductible” has the meaning set forth in Section 7.07.

“Deliberate Breach” means (a) a breach of a representation or warranty that the Party making the representation or warranty had Knowledge was false at the time such representation or warranty was made, or (b) a breach of a covenant by a Party where such Party had Knowledge at the time that the action so taken or omitted to be taken by such Party constituted a breach of such covenant, or (c) any fraud or criminal or willful misconduct on the part of a Party.

“Direct Claims” has the meaning set forth in Section 7.04.

“Disclosing Party” has the meaning set forth in Section 4.14(b)(iii)(A).

“Dispute” has the meaning set forth in Section 9.144.

“Dispute Escalation Notice” has the meaning set forth in Section 9.14.

“End Date” has the meaning set forth in Section 6.01(b)(i).

“Enforceability Exception” has the meaning set forth in Section 2.02.

“Excluded Assets” has the meaning set forth in Section 1.04(b).

“Excluded IP Assets” means (a) all UPC, EAN codes, IP addresses and any other codes or numbers that contain Seller identifiers, (b) any Intellectual Property utilized for the provision of any of the services under the Transition Services Agreement and/or the Transitional Supply Agreement (other than any Intellectual Property that is an Acquired IP Asset), (c) the Trademarks “Procter & Gamble”, “P&G Professional”, and “P&G,” similar Trademarks and any other Trademark that includes the name of Seller or any of its Affiliates or businesses, and (d) all Intellectual Property that is not used exclusively in the Joy Business or the Cream Suds Business (other than the Intellectual Property listed on Section 1.04(a)(iv) of the Seller Disclosure Letter), and (e) all Intellectual Property rights in any location outside the Territory.

“Excluded Liabilities” has the meaning set forth in Section 1.05(b).

“External Fragrance Supplier” has the meaning set forth in Section 4.12.

“Final Determination” means (a) with respect to U.S. federal income Taxes, a “determination” as defined in Section 1313(a) of the Code and (b) with respect to Taxes other than U.S. federal income Taxes, any final determination of Liability in respect of a Tax that, under applicable Law, is not subject to further appeal, review or modification through proceedings or otherwise, including the expiration of a statute of limitations or a period for the filing of claims for refunds, amended Tax Returns or appeals from adverse determinations.

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“GAAP” means United States generally accepted accounting principles, as consistently applied by Seller.

“Governmental Approval” means any Consent of any Governmental Authority, including the Antitrust Approvals.

“Governmental Authority” means any federal, state, local, provincial, foreign or international court, tribunal, judicial or arbitral body, government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority or any national securities exchange.

“Group” means the Seller Group or the Acquiror Group, as the context requires.

“Indebtedness” means and includes as to any Person (a) indebtedness for borrowed money or indebtedness issued or incurred in substitution or exchange for indebtedness for borrowed money, (b) amounts owing as deferred purchase price for property or services, (c) indebtedness evidenced by any note, bond, debenture, mortgage or other debt instrument or debt security, (d) obligations or commitments to repay deposits or other amounts advanced by and owing to third parties, (e) net payment obligations under any interest rate, currency or other hedging agreement, (f) obligations of such Person as lessee under leases that have been, or should be, in accordance with GAAP, recorded as capital leases, or (g) guarantees or other contingent liabilities (including so called take-or-pay or keep-well agreements) with respect to any indebtedness, obligation, claim or liability of any other Person of a type described in clauses (a) through (f) above.

“Indemnifying Party” means any Party which may be obligated to provide indemnification to an Indemnitee pursuant to Article VII, Article VIII or any other section of this Agreement.

“Indemnitee” means any Person which may be entitled to indemnification from an Indemnifying Party pursuant to Article VII, Article VIII or any other section of this Agreement.

“Information” means information in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, records, books, Contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memos and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data, but in any case excluding back-up tapes.

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“Intellectual Property” means, in any and all jurisdictions throughout the world, all (a) patents, patent applications, inventors’ certificates, utility models, statutory invention registrations, and other indicia of ownership of an invention, discovery or improvement issued by an Governmental Authority, including reissues, provisionals, divisionals, continuations, continuations-in-part, extensions, reexaminations, renewals, extensions and other pre-grant and post-grant forms of the foregoing (collectively, “Patents”), (b) trademarks, service marks, certification marks, trade dress, slogans, logos, symbols, trade names, brand names and other identifiers of source or goodwill recognized by any Governmental Authority, including registrations and applications for registration thereof and renewals and extensions thereof and including the goodwill symbolized thereby or associated therewith (collectively, “Trademarks”), and Internet domain names and associated uniform resource locators and social media accounts, (c) copyrights, published and unpublished works of authorship, registrations, applications, renewals and extensions therefor, mask works, and any and all similar rights recognized in a work of authorship by a Governmental Authority, renewals and extensions thereof and any moral rights associated therewith (collectively, “Copyrights”), (d) any trade secret rights in any inventions, invention disclosures, discoveries, and improvements, trade secrets and all other confidential or proprietary Information (including know-how, data, formulas, processes and procedures, research records, records of inventions, test information, and market surveys), and all rights to limit the use or disclosure thereof (collectively, “Trade Secrets”), (e) rights of privacy and publicity, and (f) any and all other intellectual or industrial property rights recognized by any Governmental Authority under the Laws of any country throughout the world.

“Joy Books and Records” has the meaning set forth in Section 1.04(a)(v).

“Joy Business” means the Seller Group’s dishwashing detergent business that operates under the “Joy” Trademark and brand name in the Territory.

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“Joy Business MAE” means any circumstance, change, fact, occurrence, development, condition or event that, individually or in the aggregate, has or would reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Joy Business, taken as a whole; provided, however, that any such effect resulting or arising from or relating to any of the following matters will not be considered when determining whether there has been, or would reasonably be expected to be, a Joy Business MAE: (a) general conditions in the industry in which the Joy Business competes, (b) any conditions in the United States general economy or the general economy in other geographic areas in which the Joy Business operates or proposes to operate, (c) political conditions, including acts of war (whether or not declared), armed hostilities, acts of terrorism or developments or changes therein, (d) any conditions resulting from natural disasters, (e) compliance by Seller with its covenants or obligations in this Agreement, (f) the failure of the financial or operating performance of the Joy Business to meet internal forecasts or budgets for any period prior to, on or after the date of this Agreement (but the underlying reason for the failure to meet such forecasts or budgets may be considered provided that they do not fall under another clause of this proviso), (g) any action taken or omitted to be taken at the request or with the consent of Acquiror, (h) effects or conditions resulting from the announcement, pendency or consummation of this Agreement or the transactions contemplated thereby, including any actions taken by customers or suppliers of the Joy Business to terminate, discontinue or not renew their Contracts with the Joy Business or otherwise withhold any Consent necessary in respect of such Contracts, (i) any deterioration in the business, financial condition or results of operations of the Joy Business that occurs subsequent to the date of this Agreement and prior to the Closing Date, except that such deterioration will be considered to the extent it arises out of any (1) breach by Seller of its covenants under this Agreement, (2) extraordinary event of a nature described in clauses (c) or (d) (but only to the extent that such extraordinary event disproportionately affects the Joy Business as compared to similarly situated businesses operating in the dishwashing detergent business in the geographic areas in which the Joy Business operates), or (3) a product recall required under applicable Law (but only to the extent such product recall disproportionately affects the Joy Business as compared to similarly situated businesses operating in the dishwashing detergent business in geographic areas in which the Joy Business operates), or (j) changes in applicable Laws or GAAP; provided, further, that with respect to clauses (a), (b), (c), (d) or (j), such matters will be considered to the extent that they disproportionately affect the Joy Business as compared to similarly situated businesses generally operating in the same industry and in the geographic areas in which the Joy Business operates.

“Joy Inventory” means all product inventories, raw and packaging materials, works-in-process and finished goods and products of the Joy Business as of the Closing.

“Knowledge” means, in the case of Acquiror, the knowledge of each of the Persons listed on Section 10.01(a) of the Acquiror Disclosure Letter as of the date of the representation after reasonable inquiry by each such Person, and, in the case of Seller, the knowledge of each of the persons listed on Section 10.01(a) of the Seller Disclosure Letter as of the date of the representation after reasonable inquiry by each such Person.

“Law” means any statute, law, ordinance, regulation, rule, constitution, treaty, common law, decree, judgment, code or other requirement of any Governmental Authority, or Order.

“Liabilities” means all debts, liabilities, guarantees, assurances and commitments, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured, liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or however arising (including whether arising out of any Contract or tort based on negligence, strict liability or relating to Taxes payable by a Person in connection with compensatory payments to employees or independent contractors) and whether or not the same would be required by generally accepted principles and accounting policies to be reflected in financial statements or disclosed in the notes thereto.

“Litigation Conditions” has the meaning set forth in Section 7.04(b)(ii).

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“Losses” means liabilities, damages, penalties, judgments, assessments, losses, costs and expenses in any case, whether arising under strict liability or otherwise (including reasonable attorneys’ fees and expenses); provided, however, that “Losses” will not include any (a) punitive or exemplary damage, (b) special or similar damages, indirect damages, consequential damages in each case, that are not reasonably foreseeable, or (c) damages based on diminution in value or damages computed on a multiple of earnings, cash flow or another financial measure, except (y) in the case of each of clauses clauses (a) (b) and (c), to the extent awarded by a court of competent jurisdiction in connection with a Third-Party Claim, and (z) in the case of clause (c), to the extent to the extent related to any breach of or inaccuracy in any Seller Specified Representation, any gross negligence, fraud, willful breach, or criminal or intentional misconduct on the part of Seller, or as a result of any breach of a covenant of Seller hereunder.

“Material Contracts” has the meaning set forth in Section 2.07.

“Order” means any orders, judgments, injunctions, awards, decrees, writs or other legally enforceable requirement handed down, adopted or imposed by, including any consent decree, settlement agreement or similar written agreement with, any Governmental Authority.

“Ordinary Course” means, with respect to an action taken by any Person, an action that is materially (a) consistent in nature, scope and magnitude with the past practices of such Person and is taken in the ordinary course of the normal operations of such Person or (b) similar in nature, scope and magnitude to actions customarily taken, without any separate or special authorization, in the ordinary course of the normal operations of other Persons that are in the same size and line of business as such Person.

“Parties” means Seller and Acquiror.

“Patent” has the meaning set forth in the definition of “Intellectual Property.”

“Permit” means any (a) consent, license, registration, permit, permission, order, clearance, termination, waiver, approval obtained from or issued or granted by, (b) expired waiting period of, (c) notice or report given to, or (d) filing made with, in each case, any Person.

“Permitted Encumbrances” means (a) Security Interests for current Taxes, assessments or similar governmental charges or levies not yet due and payable or which are being contested in good faith, (b) mechanic’s, workmen’s, materialmen’s, carrier’s, repairer’s, warehousemen’s and similar other Security Interests arising or incurred in the Ordinary Course, and (c) the Security Interests that will be released at or prior to Closing without the Consent Person.

“Person” means any individual, partnership (general or limited), corporation, limited liability company, association, joint stock company, trust, joint venture, unincorporated organization, other entity or organization, or Governmental Authority.

“Post-Closing Tax Period” means any Tax period (or portion thereof) beginning after the Closing Date.

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“Pre-Closing Period” has the meaning set forth in Section 4.01.

“Pre-Closing Tax Period” means any Tax period (or portion of a Tax period) that ends on or prior to the Closing Date.

“Privileged Communications” has the meaning set forth in Section 4.07.

“Real Property Interests” means all interests in real property of whatever nature, including easements, whether as owner or holder of a Security Interest, lessor, sublessor, lessee, sublessee or otherwise.

“Receiving Party” has the meaning set forth in Section 4.14(b).

“Registered Intellectual Property” means any active Patent, Trademark registration or application for registration, Copyright registration or application for registration, or Internet domain name registration.

“Representatives” means with respect to any Person, such Person’s and any of its Affiliates’ officers, employees, agents, advisors, directors, attorneys, accountants, agents and other representatives.

“Security Interest” means, whether arising under any Contract or otherwise, any mortgage, security interest, pledge, lien, charge, claim, option, indenture, right to acquire, right of first refusal, deed of trust, licenses to third parties, leases to third parties, security agreements, voting or other restriction, right-of-way, covenant, condition, easement, encroachment, title defect, restriction on transfer or other encumbrance and other restrictions, conditions or limitations on the ownership, possession or use of any real, personal, tangible or intangible property.

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

“Seller Disclosure Letter” means the disclosure letter delivered by Seller to Acquiror immediately prior to the execution of this Agreement.

“Seller Group” means Seller and each of its Affiliates.

“Seller Indemnitees” means Seller, each member of the Seller Group, and all Persons who are or have been stockholders, directors, partners, managers, managing members, members, officers, agents, representatives or employees of any member of the Seller Group (in each case, in their respective capacities as such).

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“Seller Names and Marks” has the meaning set forth in Section 4.10.

“Seller Specified Representations” has the meaning set forth in Section 7.07.

“Shared Information” means (a) all Information provided by any member of the Acquiror Group to a member of the Seller Group prior to the Closing, (b) any Information in the possession or under the control of such respective Group that relates to the operation of the Joy Business and the Cream Suds Business prior to the Closing and that the requesting Party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting Party (including under applicable securities and Tax Laws) by a Governmental Authority having jurisdiction over the requesting Party, (ii) for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation or other similar requirements, in each case other than claims or allegations that one Party to this Agreement has against the other, (iii) subject to the foregoing clause (ii) above, to comply with its obligations under this Agreement or any Ancillary Agreement, or (iv) to the extent such Information and cooperation is necessary to comply with such reporting, filing and disclosure obligations, for the preparation of financial statements or completing an audit, and as reasonably necessary to conduct the ongoing businesses of Seller, the Joy Business and the Cream Suds Business, as the case may be, and (c) any Information that is reasonably necessary for the conduct of the Joy Business or the Cream Suds Business (except for any information relating to performance ratings or assessments of employees of Seller (including performance history, reports prepared in connection with bonus plan participation and related data)).

“Shared Technology License Agreement” means the Shared Technology License Agreement in substantially the form attached hereto as Exhibit C.

“Tax” means any United States federal income, state, local or foreign tax, charge, duty, fee, levy, impost or other assessment of any nature whatsoever, including Transfer Taxes and income, gross receipts, excise, property, estimated, sales or use, value added, goods and services, withholding, employment, unemployment net worth, customs duties, capital gains, stamp and franchise taxes, imposed by any Taxing Authority, including any interest, penalties, additions to tax and additional amounts with respect thereto.

“Tax Return” means any return, report, declaration, statement or other document (including any amendment or schedule thereto) filed or required to be filed with any Taxing Authority in respect of any Tax.

“Taxing Authority” means any Governmental Authority exercising any authority to impose, regulate or administer the imposition of Taxes.

“Territory” means Antiqua & Barbuda, Anguilla, Aruba, Bahamas, Barbados, Belize, Bermuda, Brazil, British Virgin Islands, Canada, Caribbean Netherlands, Cayman Islands, Costa Rica, Cuba, Curaçao, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Saint Maarten, St. Kitts & Nevis, St. Lucia, St. Vincent & Grenadines, Trinidad & Tobago, Turks & Caicos Islands, the United States of America and the U.S. Virgin Islands.

“Third-Party Claim” has the meaning set forth in Section 7.04(b)(i).

“Trade Secrets” has the meaning set forth in the definition of “Intellectual Property.”

“Trademarks” has the meaning set forth in the definition of “Intellectual Property.”

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“Transfer Documents” has the meaning set forth in Section 1.11.

“Transfer Tax” means any federal, state, county, local, foreign and other sales, use, transfer, VAT, goods and services, conveyance, documentary transfer, stamp, recording, registration or other similar Tax (including any notarial fee) imposed in connection with, or otherwise relating to, the sale, transfer or assignment of the Acquired Assets from Seller or any of its Affiliates to Acquiror or any of its Affiliates pursuant to this Agreement.

“Transition Period” has the meaning set forth in Section 4.10.

“Transition Period Assets” has the meaning set forth in Section 4.15.

“Transition Services Agreement” means a Transition Services Agreement in substantially the form attached hereto as Exhibit A. From and after the Closing, the Transition Services Agreement will refer to such agreement executed and delivered pursuant to this Agreement, as amended and/or modified in accordance with its terms.

“Transitional Distribution Agreement” means a Transitional Distribution Agreement in substantially the form attached hereto as Exhibit D. From and after the Closing, the Transitional Distribution Agreement will refer to such agreement executed and delivered pursuant to this Agreement, as amended and/or modified in accordance with its terms.

“Transitional Supply Agreement” means the Transitional Supply Agreement in substantially the form attached hereto as Exhibit E. From and after the Closing, the Transitional Supply Agreement will refer to such agreement executed and delivered pursuant to this Agreement, as amended and/or modified in accordance with its terms.

“VAT” means any value added Tax, goods and services Tax or similar Tax, including such Tax as may be levied in accordance with (but subject to derogation from) EEC Directive 77/388/EEC (and other EEC directives relating to VAT) and/or local legislation imposing value added Tax in the relevant jurisdiction.

[Signature Page Follows]

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.

THE PROCTER & GAMBLE COMPANY
By:	/s/ Michael David Guarasci
Name:	Michael David Guarasci
Title:	Authorized Signatory
C-PAK CONSUMER PRODUCT
HOLDINGS LLC
By:	/s/ Eric Blue
Name:	Eric Blue
Title:	Authorized Signatory
CAPITAL PARK HOLDINGS CORP.,
Solely in its capacity as Guarantor
By:	/s/ Eric Blue
Name:	Eric Blue
Title:	CEO