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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
October 3, 2023
Direct Digital Holdings, Inc.
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-41261 |
|
87-2306185 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
1177 West Loop South, Suite 1310
Houston, Texas |
|
77027 |
(Address of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (832) 402-1051
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)) |
Securities registered pursuant to Section 12(b) of the Exchange Act:
Title of each class |
|
Trading
Symbol(s) |
|
Name of each exchange
on which registered |
Class A common stock, par value $0.001 per share |
|
DRCT |
|
The Nasdaq Stock Market LLC |
Warrants to purchase Class A common stock |
|
DRCTW |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (the “Exchange Act”) (§240.12b-2 of this chapter).
Emerging growth company x
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act.
Item 1.01 | Entry into a Material Definitive Agreement. |
On
October 3, 2023, Direct Digital Holdings, LLC (“DDH LLC”), as borrower, entered into the Fourth Amendment (the “Amendment”)
to the Term Loan and Security Agreement, dated December 3, 2021 (the “2021 Credit Facility”) with Direct Digital Holdings,
Inc., Colossus Media, LLC, Huddled Masses LLC and Orange142, LLC, as guarantors, and Lafayette Square Loan Servicing, LLC, as administrative
agent, and the various lenders thereto. Under the terms of the Amendment, among other changes, DDH LLC entered into a delayed draw term
loan under the 2021 Credit Facility in the principal amount of $3,587,274.03 (the “Delayed Draw Term Loan”) to make
payments due, among other things, in connection with the consummation of the 2023 warrant tender offer and fees and expenses incurred
in connection therewith. After giving effect to the Delayed Draw Term Loan made on the effective date of the Amendment, no additional
term loans or Delayed Draw Term Loan will be available under the 2021 Credit Facility. Additionally, the Amendment made certain technical
amendments to the negative covenants under the 2021 Credit Facility in order to permit the transactions consummated pursuant to the 2023
warrant tender.
The
foregoing description of the Amendment is not complete and is qualified in its entirety by the full text of the Amendment, a copy of which
is filed herewith as Exhibit 10.1 and incorporated herein by reference.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits
EXHIBIT INDEX
Exhibit No. |
|
Description |
10.1 |
|
Fourth Amendment to Term Loan and Security Agreement, dated October 3, 2023, by and between Direct Digital, LLC, as borrower, Colossus Media, LLC, Huddled Masses LLC, Orange142, LLC, and Direct Digital Holdings, Inc., as guarantors, and Lafayette Square Loan Servicing, LLC, as administrative agent, and the various lenders thereto. |
104 |
|
The Cover Page from this Current Report on Form 8-K, Formatted in Inline XBRL |
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
October 10, 2023
(Date) |
Direct Digital Holdings, Inc.
(Registrant) |
|
|
|
/s/ Diana Diaz |
|
Diana Diaz
Interim Chief Financial Officer |
Exhibit 10.1
Execution Version
FOURTH AMENDMENT
TO TERM LOAN AND SECURITY AGREEMENT
This Fourth Amendment to Term
Loan and Security Agreement (“Amendment”), dated effective as of October 3, 2023 (the “Effective Date”),
is entered into by and between Direct Digital Holdings, LLC, a Texas limited liability company (“Borrower”), Direct
Digital Holdings, Inc., a Delaware corporation (“DDH Holdings”), Colossus Media, LLC, a Delaware limited liability
company (“Colossus”), Huddled Masses LLC, a Delaware limited liability company (“HM”), Orange142,
LLC, a Delaware limited liability company (“Orange” and together with DDH Holdings, Colossus, and HM, “Guarantors”
and each individually a “Guarantor” and together with Borrower, collectively, the “Credit Parties”,
and each a “Credit Party”), Lafayette Square Loan Servicing, LLC, as agent for the Lenders (“Agent”),
and the Lenders party hereto.
RECITALS:
WHEREAS, the Borrower,
the Existing Guarantors, the Lenders and Agent entered into that certain Term Loan and Security Agreement dated as of December 3, 2021
(as amended, supplemented, or otherwise modified up to the date hereof, the “Existing Loan Agreement”; the Existing
Loan Agreement as may be further amended, supplemented or otherwise modified from time to time, including by this Amendment, the “Loan
Agreement”);
WHEREAS, the Borrower,
each Guarantor, Agent, and the Lenders desire to amend the Existing Loan Agreement as set forth herein; and
WHEREAS, Agent and
the Lenders are willing to amend the Existing Loan Agreement under the terms and conditions set forth herein;
NOW, THEREFORE, in
consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Credit Parties, Agent, and the Lenders hereby agree as follows:
1. Same
Terms. The capitalized terms used in this Amendment and not defined herein shall have the same meanings as provided therefor in the
Loan Agreement, unless the context hereof otherwise requires or provides.
2. Delayed
Draw Term Loan
(a) On
the Effective Date, each Lender party hereto shall, severally and not jointly, make the Fourth Amendment Delayed Draw Term Loan equal
to such Lender’s Delayed Draw Term Loan Commitment Percentage of $3,587,274.03. The proceeds of the Fourth Amendment Delayed Draw
Term Loan advanced pursuant hereto shall be to make payments owing in connection with (and fees and expenses incurred in connection with)
and pursuant to the Warrant Tender Offer.
(b) The
Fourth Amendment Delayed Draw Term Loan advanced on the Effective Date shall be evidenced by a Delayed Draw Term Loan Note.
3. Amendments
to Existing Loan Agreement.
The Borrower, each Guarantor,
Agent, and the Lenders hereby agree that, upon the satisfaction or waiver of the conditions precedent set forth in Section 7, the Credit
Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken
text and stricken text) and to add the double-underlined text (indicated textually
in the same manner as the following example: double-underlined text
and double-underlined text) as set forth in the Credit Agreement
attached as Annex A hereto.
4. Fees
and Expenses. The Credit Parties agree to pay or reimburse Agent for all fees owing to Agent and all fees and expenses (including,
without limitation, reasonable attorneys’ fees and legal expenses) incurred by Agent in connection with the preparation, negotiation
and execution of this Amendment. In consideration of the agreements set forth herein, the Credit Parties agree to pay to Agent the fees
set forth in the Fourth Amendment Fee Letter (as defined below).
5. Ratification.
Except as expressly provided herein, each Credit Party hereby (a) ratifies the Obligations and each of the Loan Agreement and the Other
Documents to which it is a party, and agrees and acknowledges that the Loan Agreement and each of the Other Documents to which it is a
party shall continue in full force and effect after giving effect to this Amendment; (b) ratifies and confirms that the security instruments
executed by each Credit Party, as amended hereby, are not released, diminished, impaired, reduced, or otherwise adversely affected by
the Loan Agreement and continue to secure the full payment and performance of the Obligations pursuant to their terms; (c) acknowledges
the continuing existence and priority of the Liens granted, conveyed, and assigned to Agent for its benefit and for the ratable benefit
of each Lender, under the security instruments; and (d) agrees that the Obligations include, without limitation, the Obligations (as amended
by this Amendment). Except as expressly provided herein, nothing in this Amendment extinguishes, novates or releases any right, claim,
Lien, security interest or entitlement of Agent or the Lenders created by or contained in any of such documents nor is any Credit Party
released from any covenant, warranty or obligation created by or contained therein.
6. Representations
and Warranties. Each Credit Party hereby represents and warrants to Agent that (a) this Amendment has been duly authorized, executed,
and delivered by each Credit Party; (b) no action of, or filing with, any Governmental Body is required to authorize, or is otherwise
required in connection with, the execution, delivery, and performance by each Credit Party of this Amendment; (c) the Loan Agreement and
the Other Documents, as amended by this Amendment, are valid and binding upon each Credit Party and are enforceable against each such
Credit Party, in accordance with their respective terms, except as limited by Debtor Relief Laws; (d) the execution, delivery, and performance
by each Credit Party of this Amendment does not require the consent of any other Person and do not and will not constitute a violation
of any laws, agreements, or understandings to which each such Credit Party is a party or by which each such Credit Party is bound; (e)
after giving effect to this Amendment, all representations and warranties in the Loan Agreement and the Other Documents are true and correct
in all material respects except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct in all material respect as of such earlier date or (ii) the facts on which any of them were based
have been changed by transactions contemplated or permitted by the Loan Agreement; and (f) after giving effect to this Amendment, no Default
or Event of Default exists.
7. Conditions
to Effectiveness. The transactions contemplated by this Amendment shall be deemed to be effective as of the Effective Date, when the
following have been satisfied in a manner satisfactory to Agent:
(a) Amendment;
Disbursement Agreement; Delayed Draw Term Loan Note. Agent receives a fully executed copy of (i) this Amendment; (ii) the disbursement
agreement with respect to application of the proceeds of the Fourth Amendment Delayed Draw Term Loan; and (iii) the Delayed Draw Term
Loan Note.
(b) Warrant
Tender Offer. Agent receives fully executed copies of all material documents, instruments and agreements executed in connection with
the Warrant Tender Offer;
(c) Fourth
Amendment Fee Letter. Agent receives a fully executed fee letter (the “Fourth Amendment Fee Letter”) by Borrower
in form and substance satisfactory to Agent;
(d) Fees
and Expenses. Agent receives all fees payable to Agent and Lenders on or prior to the Effective Date, including under Section
4 hereof and all fees due and owing pursuant to the Fourth Amendment Fee Letter;
(e) Representations
and Warranties. All representations and warranties set forth in this Amendment are true and correct in all material respects as set
forth in Section 6 above.
8. Counterparts.
For the convenience of the parties, this Amendment may be executed in multiple counterparts, each of which for all purposes shall be deemed
to be an original, and all such counterparts shall together constitute but one and the same agreement. Delivery of an executed counterpart
of a signature page of this Amendment by telecopy, e-mail, facsimile transmission, electronic mail in “portable document format”
(“.pdf”) form or other electronic means intended to preserve the original graphic and pictorial appearance of the item
being sent shall be effective as a delivery of a manually executed counterpart of this Amendment.
9. References
to the Loan Agreement. Upon the effectiveness of this Amendment, (a) each reference in the Loan Agreement to “this Agreement”,
“hereunder”, “hereof”, “herein”, or words of like import shall mean and be a
reference to the Existing Loan Agreement as amended hereby, and (b) each reference to the Loan Agreement in any other document, instrument
or agreement executed and/or delivered in connection with the Loan Agreement shall mean and be a reference to the Existing Loan Agreement
as amended hereby.
10. Effect.
This Amendment is one of the Other Documents. The modifications set forth herein are limited precisely as written and shall not be deemed
(a) to be a consent under or a waiver of or an amendment to any other term or condition in the Loan Agreement, or (b) to prejudice any
right or rights which Agent or any Lender now has or may have in the future under or in connection with the Loan Agreement, as amended
hereby, or any of the other documents referred to herein or therein.
11. ENTIRE
AGREEMENT. THIS AMENDMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH RESPECT TO THE SUBJECT HEREOF. FURTHERMORE,
IN THIS REGARD, THIS AMENDMENT, THE LOAN AGREEMENT AND THE OTHER DOCUMENTS REPRESENT, COLLECTIVELY, THE FINAL AGREEMENT AMONG THE PARTIES
THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG SUCH PARTIES.
12. Governing
Law. This Amendment, and all matters relating hereto or arising herefrom (whether arising under contract law, tort law or otherwise)
shall, in accordance with Section 5-1401 of the General Obligations Law of the State of New York, be governed by and construed in accordance
with the laws of the State of New York.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this
Amendment is deemed executed effective as of the Effective Date.
|
BORROWER: |
|
|
|
|
|
DIRECT DIGITAL HOLDINGS, LLC |
|
|
|
|
|
|
By: |
/s/ Keith Smith |
|
|
|
Name: Keith Smith |
|
|
|
Title: President |
|
|
|
|
|
|
GUARANTORS: |
|
|
|
|
|
COLOSSUS MEDIA, LLC |
|
|
|
|
|
|
By: |
/s/ Keith Smith |
|
|
|
Name: Keith Smith |
|
|
|
Title: President |
|
|
|
|
|
|
HUDDLED MASSES LLC |
|
|
|
|
|
|
By: |
/s/ Keith Smith |
|
|
|
Name: Keith Smith |
|
|
|
Title: President |
|
|
|
|
|
|
ORANGE142, LLC |
|
|
|
|
|
|
By: |
/s/ Keith Smith |
|
|
|
Name: Keith Smith |
|
|
|
Title: President |
|
|
|
|
|
|
Direct Digital Holdings, Inc. |
|
|
|
|
|
|
By: |
/s/ Keith Smith |
|
|
|
Name: Keith Smith |
|
|
|
Title: President |
|
Signature Page to
Fourth Amendment to Term Loan and Security Agreement
|
AGENT: |
|
|
|
|
|
|
Lafayette Square Loan Servicing, LLC |
|
|
|
|
|
By: |
/s/ Damien Dwin |
|
|
Name: |
Damien Dwin |
|
|
Title: |
Chief Executive Officer |
|
Signature Page to
Fourth Amendment to Term Loan and Security Agreement
|
LENDERS: |
|
|
|
|
|
LAFAYETTE SQUARE USA, INC., as a Lender |
|
|
|
|
|
By: |
/s/ Damien Dwin |
|
|
|
Name: Damien Dwin |
|
|
|
Title: Chief Executive Officer |
|
Signature Page to
Fourth Amendment to Term Loan and Security Agreement
Annex A
TERM LOAN AND SECURITY AGREEMENT
Lafayette
Square Loan Servicing, LLC
(AS AGENT)
THE LENDERS PARTY HERETO
(AS LENDERS)
WITH
DIRECT
DIGITAL HOLDINGS, LLC
(AS A BORROWER),
ANY PERSON JOINED HERETO AS A BORROWER FROM
TIME TO TIME
AND
CERTAIN SUBSIDIARIES OF BORROWERS PARTY HERETO
(AS GUARANTORS)
December 3, 2021
Table
of Contents
|
|
|
Page |
|
|
|
|
I. |
DEFINITIONS. |
1 |
|
|
|
|
1.1 |
Accounting Terms |
1 |
|
1.2 |
Defined Terms |
2 |
|
1.3 |
Uniform Commercial Code Terms |
42 |
|
1.4 |
Certain Matters of Construction |
43 |
|
|
|
|
II. |
ADVANCES, PAYMENTS. |
44 |
|
|
|
|
2.1 |
Term Loans |
44 |
|
2.2 |
Repayment of Advances |
46 |
|
2.3 |
[Reserved] |
46 |
|
2.4 |
Statement of Account |
46 |
|
2.5 |
Additional Payments |
47 |
|
2.6 |
Manner of Borrowing and Payment |
47 |
|
2.7 |
Mandatory Prepayments |
47 |
|
2.8 |
Use of Proceeds |
49 |
|
2.9 |
Defaulting Lender |
50 |
|
2.10 |
Joint and Several Liability, Waivers, etc |
51 |
|
|
|
|
III. |
INTEREST AND FEES. |
53 |
|
|
|
|
3.1 |
Interest |
53 |
|
3.2 |
[Reserved] |
53 |
|
3.3 |
[Reserved] |
54 |
|
3.4 |
Fee Letter |
54 |
|
3.5 |
Computation of Interest and Fees |
54 |
|
3.6 |
Maximum Charges |
54 |
|
3.7 |
Increased Costs |
54 |
|
3.8 |
Benchmark Replacement Setting |
55 |
|
3.9 |
Capital Adequacy |
59 |
|
3.10 |
Taxes |
60 |
|
3.11 |
Replacement of Lenders |
64 |
|
|
|
|
IV. |
COLLATERAL: GENERAL TERMS. |
64 |
|
|
|
|
4.1 |
Security Interest in the Collateral |
64 |
|
4.2 |
Creation and Perfection of Security Interest |
65 |
|
4.3 |
[Reserved] |
66 |
|
4.4 |
Preservation of Collateral |
66 |
|
4.5 |
Ownership of Collateral |
66 |
|
4.6 |
Defense of Agent’s and Lenders’ Interests |
67 |
|
4.7 |
Books and Records |
67 |
|
4.8 |
Financial Disclosure |
68 |
|
4.9 |
Compliance with Laws |
68 |
i
TABLE OF CONTENTS
(continued)
|
|
|
Page |
|
|
|
|
|
4.10 |
Inspection of Premises |
68 |
|
4.11 |
Insurance |
68 |
|
4.12 |
Failure to Pay Insurance |
69 |
|
4.13 |
Payment of Taxes |
69 |
|
4.14 |
Payment of Leasehold Obligations |
70 |
|
4.15 |
Receivables |
70 |
|
4.16 |
Pledge of Personal Property Assets |
72 |
|
4.17 |
Maintenance of Equipment |
73 |
|
4.18 |
Exculpation of Liability |
73 |
|
4.19 |
Environmental Matters |
73 |
|
4.20 |
Financing Statements |
74 |
|
4.21 |
Key Executive Policy |
75 |
|
|
|
|
V. |
REPRESENTATIONS AND WARRANTIES. |
75 |
|
|
|
|
5.1 |
Organization; Requisite Power and Authority; Qualification |
75 |
|
5.2 |
Equity Interests and Ownership. |
75 |
|
5.3 |
Due Authorization |
76 |
|
5.4 |
No Conflict |
76 |
|
5.5 |
Governmental Consents |
76 |
|
5.6 |
Binding Obligations |
76 |
|
5.7 |
No Material Adverse Effect; No Default |
76 |
|
5.8 |
Tax Returns |
76 |
|
5.9 |
Financial Statements |
77 |
|
5.10 |
Information Regarding the Credit Parties and their Subsidiaries |
78 |
|
5.11 |
Environmental Matters; O.S.H.A. |
78 |
|
5.12 |
Solvency; No Litigation, Violation, Indebtedness or Default |
79 |
|
5.13 |
Patents, Trademarks, Copyrights and Licenses |
80 |
|
5.14 |
Licenses, Permits and Other Approvals |
80 |
|
5.15 |
Default of Indebtedness |
80 |
|
5.16 |
No Default |
80 |
|
5.17 |
No Burdensome Restrictions |
80 |
|
5.18 |
No Labor Disputes |
80 |
|
5.19 |
Margin Regulations |
81 |
|
5.20 |
Investment Company Act |
81 |
|
5.21 |
Disclosure |
81 |
|
5.22 |
Delivery of Certain Documents |
81 |
|
5.23 |
Swaps |
82 |
|
5.24 |
[Reserved] |
82 |
|
5.25 |
[Reserved] |
82 |
|
5.26 |
Business and Property of Credit Parties |
82 |
|
5.27 |
Insurance |
82 |
|
5.28 |
[Reserved] |
82 |
|
5.29 |
Anti-Terrorism Laws; Anti-Corruption Laws. |
82 |
ii
TABLE OF CONTENTS
(continued)
|
5.30 |
Trading with the Enemy |
83 |
|
5.31 |
[Reserved] |
83 |
|
5.32 |
[Reserved]. |
83 |
|
5.33 |
Eligible Impact Service |
83 |
|
5.34 |
Data Privacy and Security |
84 |
|
5.35 |
Small Business Administration Documents |
84 |
|
5.36 |
Small Business Concern |
85 |
|
5.37 |
Canadian Subsidiary |
85 |
|
5.38 |
Survival of Representations and Warranties |
85 |
|
|
|
|
VI. |
AFFIRMATIVE COVENANTS. |
85 |
|
|
|
|
|
6.1 |
Lender Meetings |
85 |
|
6.2 |
Conduct of Business and Maintenance of Existence and Assets |
85 |
|
6.3 |
Violations |
85 |
|
6.4 |
Government Receivables |
85 |
|
6.5 |
Financial Covenants. |
86 |
|
6.6 |
Execution of Supplemental Instruments |
86 |
|
6.7 |
Payment of Indebtedness |
86 |
|
6.8 |
Real Property Collateral |
87 |
|
6.9 |
Federal Securities Laws |
88 |
|
6.10 |
Exercise of Rights |
88 |
|
6.11 |
[Reserved]. |
88 |
|
6.12 |
Additional Subsidiaries |
88 |
|
6.13 |
[Reserved] |
89 |
|
6.14 |
Sanctions and Anti-Corruption Matters |
89 |
|
6.15 |
Impact Subscription to or Impact Services. |
89 |
|
6.16 |
Post-Closing Deliveries. |
90 |
|
|
|
|
VII. |
NEGATIVE COVENANTS. |
91 |
|
|
|
|
|
7.1 |
Merger, Consolidation, Acquisition and Sale of Assets |
91 |
|
7.2 |
Creation of Liens |
92 |
|
7.3 |
No Further Negative Pledges |
94 |
|
7.4 |
Investments |
94 |
|
7.5 |
Sale and Lease-Backs |
95 |
|
7.6 |
[Reserved] |
95 |
|
7.7 |
Restricted Payments |
95 |
|
7.8 |
Indebtedness |
96 |
|
7.9 |
Nature of Business |
96 |
|
7.10 |
Transactions with Affiliates |
96 |
|
7.11 |
Burdensome Agreements |
97 |
|
7.12 |
[Reserved] |
97 |
|
7.13 |
Fiscal Year and Accounting Changes |
97 |
iii
TABLE OF CONTENTS
(continued)
|
7.14 |
[Reserved] |
97 |
|
7.15 |
Amendment of Governing Documents |
97 |
|
7.16 |
Compliance with ERISA |
98 |
|
7.17 |
Prepayment of Indebtedness |
98 |
|
7.18 |
Anti-Terrorism Laws. |
98 |
|
7.19 |
Membership/Partnership Interests |
99 |
|
7.20 |
Trading with the Enemy Act |
99 |
|
7.21 |
Management Agreement; Management Fees |
99 |
|
7.22 |
Other Agreements |
99 |
|
7.23 |
Canadian Subsidiary |
99 |
|
7.24 |
ABL Obligations |
100 |
|
|
|
|
VIII. |
CONDITIONS PRECEDENT. |
100 |
|
|
|
|
8.1 |
Conditions to Initial Advances |
100 |
|
8.2 |
Conditions to Delayed Draw Term Loans |
103 |
|
|
|
|
IX. |
INFORMATION AS TO CREDIT PARTIES. |
104 |
|
|
|
|
9.1 |
Information Regarding Credit Parties |
104 |
|
9.2 |
[Reserved] |
104 |
|
9.3 |
[Reserved] |
104 |
|
9.4 |
Litigation, etc |
104 |
|
9.5 |
Material Occurrences |
105 |
|
9.6 |
Management Discussion and Analysis |
105 |
|
9.7 |
Annual Financial Statements |
105 |
|
9.8 |
Quarterly Financial Statements |
106 |
|
9.9 |
Monthly Financial Statements |
106 |
|
9.10 |
Acquired Intellectual Property |
106 |
|
9.11 |
Additional Information |
106 |
|
9.12 |
Projections |
107 |
|
9.13 |
Small Business Administration |
107 |
|
9.14 |
Notice of Suits, Adverse Events |
107 |
|
9.15 |
ERISA Notices and Requests |
107 |
|
9.16 |
[Reserved]. |
108 |
|
9.17 |
Board Observation Rights |
108 |
|
|
|
|
X. |
EVENTS OF DEFAULT. |
108 |
|
|
|
|
10.1 |
Nonpayment |
108 |
|
10.2 |
Breach of Representation |
109 |
|
10.3 |
Noncompliance |
109 |
|
10.4 |
Reserved. |
109 |
|
10.5 |
Judgments and Attachments |
109 |
|
10.6 |
Criminal Proceeding |
109 |
iv
TABLE OF CONTENTS
(continued)
|
10.7 |
Bankruptcy |
110 |
|
10.8 |
Inability to Pay |
110 |
|
10.9 |
Government Settlement |
110 |
|
10.10 |
Material Adverse Change |
110 |
|
10.11 |
Cross Default to other Indebtedness |
110 |
|
10.12 |
Breach of Guarantee |
111 |
|
10.13 |
Change of Control |
111 |
|
10.14 |
Invalidity |
111 |
|
10.15 |
Seizures |
111 |
|
10.16 |
Operations |
111 |
|
10.17 |
Pension Benefit Plans |
111 |
|
10.18 |
Anti-Terrorism Laws |
112 |
|
10.19 |
Invalidity of Intercreditor Agreement or Subordination Provisions |
112 |
|
|
|
|
XI. |
LENDERS’ RIGHTS AND REMEDIES AFTER DEFAULT, ETC. |
112 |
|
|
|
|
11.1 |
Rights and Remedies |
112 |
|
11.2 |
Agent’s Discretion |
114 |
|
11.3 |
Setoff |
115 |
|
11.4 |
Rights and Remedies not Exclusive |
115 |
|
11.5 |
Allocation of Payments After Event of Default |
115 |
|
|
|
|
XII. |
WAIVERS AND JUDICIAL PROCEEDINGS. |
116 |
|
|
|
|
12.1 |
Waiver of Notice |
116 |
|
12.2 |
Delay |
116 |
|
12.3 |
Jury Waiver |
116 |
|
|
|
|
XIII. |
EFFECTIVE DATE AND TERMINATION. |
116 |
|
|
|
|
13.1 |
Term |
116 |
|
13.2 |
Termination |
117 |
|
13.3 |
Revival and Reinstatement of Obligations |
117 |
|
|
|
|
XIV. |
REGARDING AGENT. |
118 |
|
|
|
|
14.1 |
Appointment |
118 |
|
14.2 |
Nature of Duties |
118 |
|
14.3 |
Lack of Reliance on Agent and Resignation |
118 |
|
14.4 |
Certain Rights of Agent |
119 |
|
14.5 |
Reliance |
120 |
|
14.6 |
Notice of Default |
120 |
|
14.7 |
Indemnification |
120 |
|
14.8 |
Agent in its Individual Capacity |
120 |
|
14.9 |
Delivery of Documents |
120 |
|
14.10 |
Borrowers’ Undertaking to Agent |
121 |
v
TABLE OF CONTENTS
(continued)
|
14.11 |
No Reliance on Agent’s Customer Identification Program |
121 |
|
14.12 |
Other Agreements |
121 |
|
14.13 |
Erroneous Payment |
121 |
|
|
|
|
XV. |
MISCELLANEOUS. |
123 |
|
|
|
|
15.1 |
Governing Law |
123 |
|
15.2 |
Entire Understanding |
123 |
|
15.3 |
Successors and Assigns; Participations; New Lenders |
125 |
|
15.4 |
Application of Payments |
127 |
|
15.5 |
Indemnity |
128 |
|
15.6 |
Notice |
129 |
|
15.7 |
Survival |
130 |
|
15.8 |
Severability |
131 |
|
15.9 |
Expenses |
131 |
|
15.10 |
Injunctive Relief |
131 |
|
15.11 |
Damages |
131 |
|
15.12 |
Captions |
131 |
|
15.13 |
Counterparts, etc |
131 |
|
15.14 |
Construction |
132 |
|
15.15 |
Confidentiality; Sharing Information |
132 |
|
15.16 |
PUBLICITY |
133 |
|
15.17 |
Certifications From Banks and Participants; USA PATRIOT Act |
134 |
|
15.18 |
Borrowing Agency Provisions |
134 |
|
|
|
|
XVI. |
GUARANTY AND SURETYSHIP AGREEMENT. |
135 |
|
|
|
|
16.1 |
Guaranty and Suretyship Agreement |
135 |
|
16.2 |
Guaranty of Payment and Not Merely Collection |
135 |
|
16.3 |
Guarantor and Suretyship Waivers |
135 |
|
16.4 |
Repayments or Recovery from Agent or Lenders |
136 |
|
16.5 |
Enforceability of Obligations |
137 |
|
16.6 |
Guaranty Payable upon Event of Default; Remedies |
137 |
|
16.7 |
Waiver of Subrogation |
138 |
|
16.8 |
Continuing Guaranty and Suretyship Agreement |
138 |
|
16.9 |
General Limitation on Guarantee Obligations |
138 |
|
16.10 |
Right of Contribution |
138 |
|
16.11 |
Intercreditor Agreement |
138 |
vi
TERM LOAN AND SECURITY AGREEMENT
Term Loan and Security Agreement dated as of December 3, 2021 among
DIRECT DIGITAL HOLDINGS, LLC, a Texas limited liability company (“DDH”, together with any Person joined as a party
to this Agreement as a “Borrower” in accordance with Section 6.12 hereof, and all of their respective permitted
successors and assigns, the “Borrowers”), the Guarantors party hereto (together with the Borrowers, the “Credit
Parties” and each a “Credit Party”), the financial institutions which are now or which hereafter become a
party hereto (collectively, the “Lenders” and each individually, a “Lender”) and Lafayette
Square Loan Servicing, LLC (“Lafayette Square”), as agent for Lenders (Lafayette Square, in such capacity, “Agent”).
IN CONSIDERATION of the mutual covenants and undertakings herein contained,
the Credit Parties, Lenders and Agent hereby agree as follows:
1.1 Accounting
Terms.
(a) Except
as otherwise expressly provided herein, all accounting terms used in this Agreement, the Other Documents or any certificate, report or
other document made or delivered pursuant to this Agreement not otherwise defined herein shall have the meanings assigned to them in conformity
with GAAP. Financial statements and other information required to be delivered by Borrower to Agent and Lenders pursuant to Sections
9.7, 9.8 and 9.9 shall be prepared in accordance with GAAP as in effect at the time of such preparation. If at any time
any change in GAAP or in the consistent application thereof would affect the computation of any financial covenant or requirement set
forth in this Agreement or any Other Document, and Borrowing Agent shall object in writing to determining compliance based on such change
or Agent shall otherwise require, then Agent and Borrowing Agent shall negotiate in good faith to amend such financial covenant, requirement
or applicable defined terms to preserve the original intent thereof in light of such change to GAAP, provided that, until so amended
such computations shall continue to be made on a basis consistent with the most recent financial statements delivered pursuant to Sections
9.7, 9.8 and 9.9 as to which no such objection has been made and the Credit Parties shall provide additional financial
statements or supplements thereto, attachments to Compliance Certificates and/or calculations regarding financial covenants as Agent may
reasonably require in order to provide the appropriate financial information required hereunder with respect to the Credit Parties both
reflecting any applicable changes in GAAP and as necessary to demonstrate compliance with the financial covenants before giving effect
to the applicable changes in GAAP.
(b) Notwithstanding
the above, the parties hereto acknowledge and agree that all calculations of the financial covenants in Section 6.5 shall be made
on a Pro Forma Basis.
(c) Notwithstanding
the above, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein,
Indebtedness of DDH and its Subsidiaries (or DDH Holdings and its Subsidiaries if applicable) shall be deemed to be carried at 100% of
the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
(d) [Reserved].
(e) To
the extent a Fiscal Year or Fiscal Quarter of DDH (or DDH Holdings if applicable) ends on a date that is not a calendar year or calendar
quarter end, references herein to a Fiscal Year or Fiscal Quarter ending on March 31, June 30, September 30 or December 31 shall be deemed
to refer to the Fiscal Year or Fiscal Quarter most recently ending on or about such date.
1.2 Defined
Terms. For purposes of this Agreement the following terms shall have the following meanings:
“ABL Amendment” shall have the meaning set forth
in Section 6.16(e) hereof.
“ABL Credit Agreement” shall mean (a) that certain
Credit Agreement dated as of September 30, 2020 among DDH, certain Subsidiaries thereof, and ABL Lender, as such agreement has been amended
and may hereafter be amended, restated or otherwise modified in accordance with the Intercreditor Agreement, and (b) any Replacement ABL
Credit Agreement entered into subsequent to the Closing Date.
“ABL Lender” shall mean (a) East West Bank, a California
bank, and any successors and assigns to the extent permitted pursuant to the Intercreditor Agreement, or (b) any lender under a Replacement
ABL Credit Agreement.
“ABL Loan Documents” shall mean any and all notes,
agreements, documents, instruments now or at anytime evidencing, securing, guarantying or otherwise executed and delivered in connection
with the ABL Credit Agreement, as the same may be amended, restated, supplemented or modified in accordance with the Intercreditor Agreement,
including all “Loan Documents” as defined in the ABL Credit Agreement.
“ABL Obligations” shall mean the liabilities and
Indebtedness of the Credit Parties outstanding under the ABL Credit Agreement from time to time, including the “Obligations”
under and as defined in the ABL Credit Agreement in effect on the date hereof.
“Acquisition” shall mean, with respect to any Person,
the acquisition by such Person, in a single transaction or in a series of related transactions, of (a) all or any substantial portion
of the property of another Person, or any division, line of business or other business unit of another Person or (b) at least a majority
of the Voting Stock of another Person, in each case whether or not involving a merger or consolidation with such other Person and whether
for cash, property, services, assumption of Indebtedness, securities or otherwise.
“Acquisition Documents” shall mean, with respect
to any Acquisition, the purchase agreement and all material other agreements related to such Acquisition, in each case as amended in conformity
with the terms of this Agreement.
“Advances” shall mean and include each advance of
the Term Loans.
“Adverse Proceeding” shall mean any action, suit,
proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf
of any Credit Party or any of its Subsidiaries) at law or in equity, or before or by any Governmental Body, whether pending, threatened
in writing against any Credit Party or any of its Subsidiaries or any material property of any Credit Party or any of its Subsidiaries.
“Affiliate” of any Person shall mean any other Person
that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with such the
Person specified.
“Agent” shall have the meaning set forth in the
preamble to this Agreement and shall include its successors and permitted assigns.
“Agreement” shall mean this Term Loan and Security
Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“ALTA” shall mean American Land Title Association.
“Anti-Corruption Laws” shall mean the Foreign Corrupt
Practices Act, 15 U.S.C. §§ 78dd-1, et seq, the UK Bribery Act of 2010 and all other laws, rules, and regulations of
any jurisdiction applicable to any Credit Party or any of its Affiliates from time to time concerning or relating to bribery or corruption.
“Anti-Terrorism Laws” shall mean any Applicable
Laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery and any regulation,
order or directive promulgated, issued or enforced pursuant to such Applicable Laws, including Executive Order No. 13224, the USA PATRIOT
Act, the Applicable Laws comprising or implementing the Bank Secrecy Act, and the Applicable Laws administered by OFAC (as any of the
foregoing Applicable Laws may from time to time be amended, modified, supplemented, renewed, extended, or replaced).
“Applicable Impact Discount” shall mean (a) as of
the Closing Date and through and including the date immediately prior to the first Applicable Impact Discount Reset Date, a rate per annum
equal to 0.00 % and (b) on and after each Applicable Impact Discount Reset Date, (i) a rate per annum as set forth in the table below
based upon the Impact Subscription to each of the Eligible Impact Services by Borrowers:
No Eligible Impact Services |
0.00% |
One or more Eligible Impact Services |
0.05% |
plus (ii) solely to the extent Borrowers received a B Corp Certification
by Standards Analysts at the non-profit B Lab (or any successor certification or administrator identified by Agent in its sole discretion),
as listed in https://bcorporation.net/directory (or any successor directory identified by Agent in its sole discretion) or such other
comparable certification from a nationally recognized and reputable third party assessment and validation of social and environmental
performance identified to and approved by Agent in writing, a rate per annum equal to 0.05% so long as Borrowers maintain such certification.
The component of the Applicable Impact Discount set forth in clause
(b)(i) above shall (i) remain in effect for the period of the applicable Impact Subscription to any applicable Eligible Impact Service(s)
notwithstanding removal of such provider, program or service from Exhibit A (unless Agent has notified Borrowers in writing that
such provider, program or service is removed or to be removed from Exhibit A prior to the commencement of the period of any such
Impact Subscription) and (ii) be adjusted, to the extent applicable, (x) as of each Applicable Impact Discount Reset Date based upon and
to the extent that Borrowers have certified in the applicable Impact Certificate as to the Impact Subscription to any such applicable
Eligible Impact Service or (y) otherwise at such time agreed by Agent and Borrowers as a result of a mutual determination to (1) cease
or otherwise terminate any applicable Eligible Impact Service (thereby reducing the Applicable Impact Discount) or (2) Impact Subscribe
to an Eligible Impact Service which had not been the subject of an Impact Subscription immediately prior to such determination (thereby
increasing the Applicable Impact Discount to the extent applicable).
If Agent determines that Borrowers did not successfully make an Impact
Subscription to any such Eligible Impact Service during an earlier period in which the Applicable Impact Discount applied (or were otherwise
not certified as a B Corporation under clause (b)(ii) above during any such earlier period), without limiting any other rights or remedies
arising as a result of any certification in an Impact Certificate which may prove to have been false or misleading, Borrowers shall automatically
and retroactively be obligated to pay to Agent, for the benefit of the applicable Lenders, promptly on demand by Agent, an amount equal
to the excess of the amount of interest that should have been paid for such period without the Applicable Impact Discount over the amount
of interest actually paid for such period.
“Applicable Impact Discount Reset Date” shall mean
the first day of the month following the date on which financial statements, Compliance Certificate and Impact Certificate are required
to be delivered pursuant to Section 9.8 after the end of each related Fiscal Quarter.
“Applicable Laws” shall mean all applicable laws,
including all applicable provisions of constitutions, statutes, rules, ordinances, regulations and orders of all Governmental Bodies and
all orders, rulings, writs and decrees of all courts, tribunals and arbitrators.
“Applicable Margin” shall mean (a) as of the Second
Amendment Date and through and including the date on which the quarterly financial statements of the Credit Parties on a Consolidated
Basis required under Section 9.8 hereof for the fiscal quarter ending June 30, 2022 are delivered, the margin corresponding to Level V
below (the date of such delivery, the “Initial Adjustment Date”), and (b) effective on the first day of the month following
receipt by Agent of the quarterly financial statements of the Credit Parties on a Consolidated Basis and related Compliance Certificate
required under Section 9.8 hereof for the fiscal quarter ending subsequent to the Initial Adjustment Date (such first day of the applicable
month, an “Adjustment Date”), the Applicable Margin for the Term Loans shall be adjusted, if necessary, to the applicable
percent per annum set forth in the pricing table below corresponding to the Consolidated Total Net Leverage Ratio for the trailing four
quarter period ending on the last day of the most recently completed fiscal quarter prior to the applicable Adjustment Date:
Level |
Consolidated Total Net Leverage Ratio |
Applicable Margin |
I |
Less than or equal to 1.00 to 1.00 |
7.00% |
II |
Greater than 1.00 to 1.00 and less than or equal to 1.50 to 1.00 |
7.50% |
III |
Greater than 1.50 to 1.00 and less than or equal to 2.00 to 1.00 |
8.00% |
IV |
Greater than 2.00 to 1.00 and less than or equal
to 2.50 to 1.00
|
8.50% |
V |
Greater than 2.50 to 1.00 and less than or equal to 3.00 to 1.00 |
9.00% |
VI |
Greater than 3.00 to 1.00 and less than or equal to 3.50 to 1.00 |
9.50% |
VII |
Greater than 3.50 to 1.00 |
10.00% |
If the Credit Parties shall fail to deliver the financial statements,
certificates and/or other information required under Sections 9.7 or 9.8 hereof by the dates required pursuant to such sections, each
Applicable Margin shall be conclusively presumed to equal the highest Applicable Margin specified in the pricing table set forth above
until the date of delivery of such financial statements, certificates and/or other information, at which time the rate will be adjusted
based upon the Consolidated Total Net Leverage Ratio reflected in such statements. Notwithstanding anything to the contrary set forth
herein, immediately and automatically upon the occurrence and continuation of any Event of Default, each Applicable Margin shall increase
to and equal the highest Applicable Margin specified in the pricing table set forth above and shall continue at such highest Applicable
Margin until the date (if any) on which such Event of Default shall be waived in accordance with the provisions of this Agreement, at
which time the rate will be adjusted based upon the Consolidated Total Net Leverage Ratio reflected on the most recently delivered financial
statements and Compliance Certificate delivered by the Credit Parties to Agent pursuant to Section 9.7 or 9.8 hereof (as applicable).
Any increase in interest rates payable by the Credit Parties under this Agreement and the Other Documents pursuant to the provisions of
the foregoing sentence shall be in addition to and independent of any increase in such interest rates resulting from the occurrence of
any Event of Default (including, if applicable, any Event of Default arising from a breach of Sections 9.7 or 9.8 hereof) and/or the effectiveness
of the Default Rate provisions of Section 3.1 hereof.
If, as a result of any restatement of, or other adjustment to, the
financial statements of the Credit Parties or for any other reason, Agent determines in its Permitted Discretion that (a) the Consolidated
Total Net Leverage Ratio as previously calculated as of any applicable date for any applicable period was inaccurate, and (b) a proper
calculation of the Consolidated Total Net Leverage Ratio for any such period would have resulted in different pricing for such period,
then (i) if the proper calculation of the Consolidated Total Net Leverage Ratio would have resulted in a higher interest rate for such
period, automatically and immediately without the necessity of any demand or notice by Agent or any other affirmative act of any party,
the interest accrued on the applicable outstanding Advances for such period under the provisions of this Agreement and the Other Documents
shall be deemed to be retroactively increased by, and the Credit Parties shall be obligated to immediately pay to Agent for the ratable
benefit of Lenders an amount equal to the excess of the amount of interest that should have been paid for such period over the amount
of interest actually paid for such period; and (ii) if the proper calculation of the Consolidated Total Net Leverage Ratio would have
resulted in a lower interest rate for such period, then Agent shall, upon such determination, notify DDH of the amount of interest over-paid
and the Borrowers shall be entitled to a credit (which shall be applied to future accrued interest) from the Lenders who were Lenders
that held the Loans during the relevant period and continue to hold Loans on the date Agent made such determination in an amount equal
to any such excess interest paid to such Lender; provided, that, if as a result of any restatement or other event or other determination
by Agent a proper calculation of the Consolidated Total Net Leverage Ratio would have resulted in a higher interest rate for one or more
periods and a lower interest rate for one or more other periods (due to the shifting of income or expenses from one period to another
period or any other reason), then the amount payable by the Credit Parties pursuant to clause (i) above shall be based upon the excess,
if any, of the amount of interest that should have been paid for all applicable periods over the amounts of interest actually paid for
such periods.
“Asset Sale” shall mean a sale, lease, Sale and
Leaseback Transaction, assignment, conveyance, exclusive license (as licensor), Securitization Transaction, transfer or other disposition
to, or any exchange of property with, any non-Credit Party Person, in one transaction or a series of transactions, of all or any part
of any Credit Party or any of its Subsidiaries’ businesses, assets or properties of any kind, whether real, personal, or mixed and
whether tangible or intangible, whether now owned or hereafter acquired, created, leased or licensed, including the Equity Interests of
DDH or any Subsidiary of DDH, provided that “Asset Sales” shall not include any (a) dispositions of surplus, obsolete or worn
out property or property in the ordinary course of business; (b) dispositions of inventory sold, and Intellectual Property licensed, in
the ordinary course of business; (c) dispositions of accounts or payment intangibles (each as defined in the UCC) resulting from the compromise
or settlement thereof in the ordinary course of business for less than the full amount thereof; (d) dispositions of Cash Equivalents in
the ordinary course of business; (e) licenses, sublicenses, leases or subleases granted to any third parties in the ordinary course
of business that do not interfere in any material respect with the business of Borrower or any of its Subsidiaries; and
(f) any Redemption/Exchange Transactions; and (g) any transactions consummated pursuant to
the Warrant Tender Offer.
“Attributable Principal Amount” shall mean (a) in
the case of Capital Leases, the amount of Capital Lease obligations determined in accordance with GAAP, (b) in the case of Synthetic Leases,
an amount determined by capitalization of the remaining lease payments thereunder as if it were a Capital Lease determined in accordance
with GAAP, (c) in the case of Securitization Transactions, the outstanding principal amount of such financing, after taking into account
reserve amounts and making appropriate adjustments, determined by Agent in its reasonable judgment and (d) in the case of Sale and Leaseback
Transactions, the present value (discounted in accordance with GAAP at the debt rate implied in the applicable lease) of the obligations
of the lessee for rental payments during the term of such lease.
“Authority” shall have the meaning set forth in
Section 4.19(c).
“Authorized Officer” shall mean, as applied to any
Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president or one of its
vice presidents (or the equivalent thereof), chief financial officer or treasurer and, solely for purposes of making the certifications
required under Sections 8.1(c) and (d), any secretary or assistant secretary.
“Bankruptcy Code” shall mean Title 11
of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
“Borrower” and “Borrowers” shall
mean DDH and each other Person joined as a party to this Agreement as a “Borrower” in accordance with Sections 6.12
hereof, and all of their respective permitted successors and assigns.
“Borrowers’ Account” shall have the meaning
set forth in Section 2.4.
“Borrowing Agent” shall mean DDH.
“Business Day” shall mean any day other than Saturday
or Sunday, a legal holiday on which commercial banks are authorized or required by law to be closed for business in New York, New York
or legal holiday on which Agent is not open for business in its main office in New York.
“Capital Expenditures” shall mean, for any period
of determination, expenditures made or liabilities incurred during such period for the acquisition of any fixed assets or improvements,
replacements, substitutions or additions thereto which have a useful life of more than one year (including, for the purpose of clarity,
the total principal portion of Capitalized Lease Obligations paid in such period), which, in accordance with GAAP, would be classified
as capital expenditures, but excluding (a) any such expenditures made with proceeds of any Involuntary Disposition to the extent such
expenditures are used to purchase property that is the same as or similar to the property subject to such Involuntary Disposition or (b)
Permitted Acquisitions; provided that, for purposes hereof, Capital Expenditures shall be calculated net of the value of any property
traded-in or exchanged in connection with any such expenditure.
“Capital Lease” shall mean, with respect to any
Person, any lease of (or other agreement conveying the right to use) any property by such Person as a lessee that, in conformity with
GAAP (subject to Section 1.1), is or should be accounted for as a capital lease on the balance sheet of such Person.
“Capitalized Lease Obligation” shall mean any obligation
under a Capital Lease.
“Cash Equivalents” shall mean, as of any date of
determination, any of the following: (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest
and principal by the United States government, or (ii) issued by any agency of the United States the obligations of which are backed by
the full faith and credit of the United States, in each case maturing within one (1) year after such date; (b) marketable direct obligations
issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each
case maturing within one (1) year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P
or at least P-1 from Moody’s; (c) commercial paper maturing no more than one (1) year from the date of creation thereof and
having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (d) certificates
of deposit or bankers’ acceptances maturing within one (1) year after such date and issued or accepted by any commercial bank that
is organized under the laws of the United States or any state thereof or the District of Columbia that (i) is at least “adequately
capitalized” (as defined in the regulations of its primary federal banking regulator), and (ii) has Tier 1 capital (as defined in
such regulations) of not less than $100,000,000; and (e) shares of any money market mutual fund that (i) has substantially all of
its assets invested continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net
assets of not less than $500,000,000, and (iii) has the highest rating obtainable from either S&P or Moody’s.
“CERCLA” shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§9601 et seq.
“Change of Control” shall mean:
(a) with respect to DDH Holdings,
(x) at any time, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act),
other than Direct Digital Management, LLC or its Control Affiliates shall become, or obtain rights (whether by means of warrants, options
or otherwise) to become, the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of forty percent (40%) or more of the ordinary voting power for the election of directors, partners, managers and members,
as applicable, of DDH Holdings (determined on a fully diluted basis) other than (i) by the sale of the Borrower’s equity securities
in a public offering, a private placement or to venture capital or private equity investors so long as the Borrower identifies to Agent
the venture capital or private equity investors at least seven (7) Business Days prior to the closing of the transaction and provides
to Agent a description of the material terms of the transaction and (ii) by increases or decreases in the beneficial ownership of DDH
Holdings securities by Direct Digital Management, LLC or its Control Affiliates; or (y) during any period of 12 consecutive months, a
majority of the members of the board of directors of DDH Holdings cease to be composed of individuals (i) who were members of that board
or equivalent governing body on the first (1st) day of such period, (ii) whose election or nomination for election to that board or equivalent
governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination for
election at least a majority of that board or equivalent governing body or (iii) whose election or nomination for election to that board
or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body;
(b) with respect to the Borrower,
(x) at any time, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act)
other than DDH Holdings, Direct Digital Management, LLC or its Control Affiliates shall become, or obtain rights (whether by means of
warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act), directly or indirectly, of forty percent (40%) or more of the ordinary voting power for the election of directors, partners, managers
and members, as applicable, of the Borrower (determined on a fully diluted basis); or (y) except as permitted by Section 7.1, at any time,
DDH Holdings and Direct Digital Management, LLC or its Control Affiliates shall collectively cease to own and control, of record and beneficially,
directly or indirectly, one hundred percent (100%) of each class of outstanding stock, partnership, membership, or other ownership interest
or other equity securities of the Borrower free and clear of all Liens (except Permitted Encumbrances); or
(c) with
respect to each Subsidiary of the Borrower, (x) at any time, any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) other than DDH Holdings, the Borrower and/or Direct Digital Management, LLC or its Control
Affiliates shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of forty percent (40%) or more of the ordinary voting
power for the election of directors, partners, managers and members, as applicable, of such Subsidiary (determined on a fully diluted
basis); or (y) except as permitted by Section 7.1, at any time, DDH Holdings, the Borrower and/or Direct Digital Management, LLC
or its Control Affiliates shall together cease to own and control, of record and beneficially, directly or indirectly, one hundred percent
(100%) of each class of outstanding stock, partnership, membership, or other ownership interest or other equity securities of such Subsidiary
free and clear of all Liens (except Permitted Encumbrances).
“Closing Date” shall mean December 3, 2021.
“Closing Date Term Loan” shall mean the Advances
made pursuant to Section 2.1(a) hereof.
“Closing Date Term Loan Amount” shall mean $22,000,000.
“Closing Date Term Note” shall mean, collectively,
the promissory notes described in Section 2.1(a) hereof.
“Closing Date Transactions” shall mean, collectively,
(a) the consummation of the transactions contemplated by and this Agreement, (b) the Preferred A Redemption, (c) the repayment of Indebtedness
of the Borrowers with the proceeds of the Closing Date Term Loan, in each case, which have been, or are contemplated to be, consummated
on or prior to the Closing Date and (d) the payment of fees and expenses in connection therewith.
“Code” shall mean the Internal Revenue Code of 1986,
as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations
thereunder, as from time to time in effect.
“Collateral” shall mean and include, all right,
title and interest of each Credit Party in all of the following property and assets of such Credit Party, in each case, whether now existing
or hereafter arising or created and whether now owned or hereafter acquired and wherever located:
(a) all
Receivables;
(b) all
cash and currency;
(c) all
Certificates of Title;
(d) all
Chattel Paper;
(e) those
certain Commercial Tort Claims set forth on Schedule 1.2(c) hereto;
(f) all
Intellectual Property (other than any United States intent to use applications prior to the filing of a “Statement of Use”
or “Amendment to Allege Use”);
(g) all
Deposit Accounts;
(h) all
Documents;
(i) all
Equipment;
(j) all
Fixtures;
(k) all
General Intangibles (including, without limitation, the Key Executive Policy);
(l) all
Goods;
(m) all
Instruments;
(n) all
Inventory;
(o) all
Investment Property;
(p) all
Letter-of-Credit Rights;
(q) all
Payment Intangibles;
(r) all
Subsidiary Stock;
(s) all
Software;
(t) all
Supporting Obligations;
(u) all
books and records pertaining to any of the foregoing; and
(v) all
Accessions and Proceeds of any and all of the foregoing.
Notwithstanding the foregoing, Collateral shall not include, and no
Credit Party shall be deemed to have granted a security interest in the following (each of the following, “Excluded Property”):
(a) any intent-to-use trademarks at all times prior to the first use thereof, whether by the actual use thereof in commerce, the recording
of a statement of use with the United States Patent and Trademark Office or otherwise; (b) any interest of any Credit Party as a lessee
or sublessee under a real property lease under a real property lease or an Equipment lease if such Credit Party is prohibited by the terms
of such lease from granting a security interest in such lease or under which such an assignment or Lien would cause a default to occur
under such lease (but only to the extent that such prohibition is enforceable under all applicable laws including, without limitation,
the UCC); provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without any
action by any Credit Party or Agent; (c) rights held under a license that are not assignable by their terms without the consent of the
licensor thereof (but only to the extent such restriction on assignment is enforceable under applicable law); or (d) any interest of any
Credit Party as a lessee under an Equipment lease if such Credit PARTY is prohibited by the terms of such lease from granting a security
interest in such lease or under which such an assignment or Lien would cause a default to occur under such lease; provided, however, that
upon termination of such prohibition, such interest shall immediately become Collateral without any action by any Credit Party or Agent.
“Commitment Percentage” of any Lender shall mean,
as applicable, its Term Loan Commitment Percentage and/or its Delayed Draw Term Loan Commitment Percentage, as applicable.
“Common Units Redemption” shall mean the contemplated
redemption of all of the common units held in DDH by USDM Holdings, Inc. pursuant to the Redemption Agreement.
“Company Agreement” shall mean the amended and restated
limited liability company agreement of DDH entered into in connection with a Qualified IPO.
“Compliance Certificate” shall mean a compliance
certificate in substantially the form attached hereto as Exhibit C to be signed by an Authorized Officer of DDH.
“Consents” shall mean all filings and all licenses,
permits, consents, approvals, authorizations, qualifications and orders of Governmental Bodies and other third parties, domestic or foreign,
necessary to carry on the Credit Parties’ business or necessary (including to avoid a conflict or breach under any agreement, instrument,
other document, license, permit or other authorization) for the execution, delivery or performance of this Agreement, the Other Documents,
the Acquisition Documents and all related documents and agreements, including any Consents required under the ABL Loan Documents and all
applicable federal, state or other Applicable Law.
“Consolidated Basis” shall mean, (a) prior to a
Qualified IPO, with respect to DDH and its Subsidiaries, as the context may require, the consolidation in accordance with GAAP of the
accounts and other items of DDH and its Subsidiaries, and (b) subsequent to a Qualified IPO, with respect to DDH Holdings and its Subsidiaries
as the context may require, the consolidation in accordance with GAAP of the accounts and other items of DDH Holdings and its Subsidiaries.
“Consolidated Capital Expenditures” shall mean,
for any period, for DDH (or DDH Holdings if applicable) and its Subsidiaries on a Consolidated Basis, the sum of all Capital Expenditures
of such entity for such period.
“Consolidated Current Assets” shall mean, as of
any date of determination, the total assets of DDH (or DDH Holdings if applicable) and its Subsidiaries on a Consolidated Basis that may
properly be classified as current assets in accordance with GAAP, excluding cash and Cash Equivalents.
“Consolidated Current Liabilities” shall mean, as
of any date of determination, the total liabilities of DDH (or DDH Holdings if applicable) and its Subsidiaries on a Consolidated Basis
that may properly be classified as current liabilities in accordance with GAAP and shall be calculated by excluding the current portion
of the Obligations.
“Consolidated EBITDA” shall mean, for any period,
for DDH Holdings and its Subsidiaries on a Consolidated Basis, an amount equal to (a) Consolidated Net Income for such period plus,
(b) to the extent deducted in determining such Consolidated Net Income, the sum, without duplication, of (i) Consolidated Interest Charges
during such period, (ii) all federal, state, local and/or foreign income taxes payable by DDH Holdings and its Subsidiaries during such
period, (iii) depreciation expenses of DDH Holdings and its Subsidiaries during such period, (iv) amortization expenses of DDH Holdings
and its Subsidiaries during such period, (v) any non-cash loss or expense resulting from any impairment charge or asset write-off or write-down
related to intangible assets, long-lived assets and other assets that occurs during such period, (vi) one-time loss associated with debt
refinancing, (vii) without duplication, non-recurring actual, documented legal or consulting expenses or retention bonuses paid in an
amount up to $500,000 during any 12 month period, (viii) any cash payments (including all premiums) made with respect to the Key Executive
Policies required pursuant to Section 4.21, and (iv) reasonable and documented one-time, non-recurring severance and retention expenses
in an aggregate amount not to exceed $750,000 for employees and management of the Credit Parties, in each case to the extent paid on or
before June 30, 2024, and minus (c) any extraordinary, non-recurring and/or non-cash gains or income during such period as reported
in the monthly, quarterly, and annual financials of DDH Holdings and its Subsidiaries.
“Consolidated Excess Cash Flow” shall mean, for
any period for DDH and its Subsidiaries (or DDH Holdings and its Subsidiaries if applicable) on a Consolidated Basis, an amount equal
to the sum, without duplication, of (a) Consolidated EBITDA, minus (b) Unfinanced Capital Expenditures, minus (c) the cash
portion of Consolidated Interest Charges, minus (d) Consolidated Taxes paid in cash minus (e) Consolidated Scheduled
Funded Debt Payments, minus (f) the Consolidated Working Capital Adjustment, minus (g) the aggregate amount of all voluntary
prepayments of any Indebtedness permitted hereunder of DDH and its Subsidiaries (or DDH Holdings and its Subsidiaries if applicable) made
during such Fiscal Year (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction
in commitments thereunder), minus (h) all cash expenses added back in computing Consolidated EBITDA. For the avoidance of doubt,
payments with respect to Preferred Equity and obligations owing pursuant to the Redemption Agreement, in each case, made with proceeds
of the Delayed Draw Term Loan advanced on the Second Amendment Date shall not be deducted in calculating Consolidated Excess Cash Flow;
provided, that it is understood that the principal with respect to the Delayed Draw Term Loan shall constitute Funded Debt and the interest
with respect to the Delayed Draw Term Loan shall constitute Consolidated Interest Charges.
“Consolidated Fixed Charge Coverage Ratio” shall
mean for DDH and its Subsidiaries (or DDH Holdings and its Subsidiaries if applicable) on a Consolidated Basis, as of any date of determination,
the ratio of (a) Consolidated EBITDA for the period of the four (4) Fiscal Quarters most recently ended, minus Taxes paid in cash
or permitted Tax Distributions during such period, minus without duplication, Unfinanced Capital Expenditures made during such
period, minus Restricted Payments (other than the Preferred A Redemption) for such period paid in cash (without limiting any restrictions
in respect thereof under Section 7.7) to (b) the sum of (i) Consolidated Fixed Charges for such period.
“Consolidated Fixed Charges” shall mean, for any
period, for DDH (or DDH Holdings if applicable) and its Subsidiaries on a Consolidated Basis, an amount equal to the sum of (a) the cash
portion of Consolidated Interest Charges for such period plus (b) Consolidated Scheduled Funded Debt Payments for such period,
all as determined in accordance with GAAP.
“Consolidated Funded Debt” shall mean Funded Debt
of DDH (or DDH Holdings if applicable) and its Subsidiaries on a Consolidated Basis determined in accordance with GAAP excluding any obligations
under an operating lease.
“Consolidated Interest Charges” shall mean, for
any period, the interest expense of DDH (or DDH Holdings if applicable) and its Subsidiaries on a Consolidated Basis for the period in
question, determined on a consolidated basis and in accordance with GAAP.
“Consolidated Net Income” shall mean, for any period,
for DDH (or DDH Holdings if applicable) and its Subsidiaries on a Consolidated Basis, the net income (or loss) of DDH (or DDH Holdings
if applicable) and its Subsidiaries for that period, as determined in accordance with GAAP.
“Consolidated Scheduled Funded Debt Payments” shall
mean for any period for DDH (or DDH Holdings if applicable) and its Subsidiaries on a Consolidated Basis, the sum of all scheduled payments
of principal on Consolidated Funded Debt, as determined in accordance with GAAP. For purposes of this definition, “scheduled payments
of principal” (a) shall be deemed to include, without duplication, scheduled principal payments with respect to the Attributable
Principal Amount of Capital Leases (other than in respect of any Securitization Transactions, Sale and Leaseback Transactions and Synthetic
Leases) and (b) shall not include any voluntary prepayments or mandatory prepayments required pursuant to the ABL Credit Agreement except
to the extent such prepayments are accompanied by a permanent reduction of the commitments thereunder.
“Consolidated Senior Net Leverage Ratio” shall mean,
as of any date of determination, the ratio of (a) the result of (i) the Funded Debt of DDH (or DDH Holdings if applicable) and its Subsidiaries
on a Consolidated Basis, but excluding any Subordinated Debt and any obligations under an operating lease, minus (ii) the Unrestricted
Cash of DDH and the Credit Parties in excess of $1,000,000; provided that the amount of Unrestricted Cash included in the calculation
pursuant to this clause (ii) shall not exceed $15,000,000 to (b) Consolidated EBITDA for the period of the four (4) Fiscal Quarters most
recently ended.
“Consolidated Taxes” shall mean, for any period,
for DDH and its Subsidiaries (or DDH Holdings and its Subsidiaries if applicable) on a Consolidated Basis, the aggregate of all taxes,
as determined in accordance with GAAP.
“Consolidated Total Net Leverage Ratio” shall mean,
as of any date of determination, the ratio of (a) the result of (i) the Funded Debt of DDH (or DDH Holdings if applicable) and its Subsidiaries
on a Consolidated Basis, excluding any obligations under an operating lease, minus (ii) the Unrestricted Cash of DDH and the Credit Parties
in excess of $1,000,000; provided that the amount of Unrestricted Cash included in the calculation pursuant to this clause (ii) shall
not exceed $15,000,000 to (b) Consolidated EBITDA for the period of the four (4) Fiscal Quarters most recently ended.
“Consolidated Working Capital” shall mean, as of
any date of determination, the excess of Consolidated Current Assets less Consolidated Current Liabilities.
“Consolidated Working Capital Adjustment” shall
mean, for any period on a Consolidated Basis, the amount (which may be a negative number) by which Consolidated Working Capital as of
the end of such period exceeds (or is less than) Consolidated Working Capital as of the beginning of such period.
“Contractual Obligation” shall mean, as applied
to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking,
agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of
its properties is subject.
“Control” shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative
thereto.
“Control Affiliate” shall mean, with respect to
any Person, each other Person that owns or controls directly or indirectly the Person, any Person that controls or is controlled by or
is under common control with the Person, and each of that Person’s senior executive officers, directors, partners and, for any Person
that is a limited liability company, that Person’s managers and members.
“Control Agreement(s)” shall have the meaning set
forth in Section 6.16(c) hereof.
“Covered Entity” shall mean (a) each Credit Party,
each Subsidiary of each Credit Party, and all pledgors of Collateral and (b) each Person that, directly or indirectly, is in control of
a Person described in clause (a) above. For purposes of this definition, control of a Person shall mean the direct or indirect (x) ownership
of, or power to vote, twenty-five percent (25%) or more of the issued and outstanding equity interests having ordinary voting power
for the election of directors of such Person or other Persons performing similar functions for such Person, or (y) power to direct or
cause the direction of the management and policies of such Person whether by ownership of equity interests, contract or otherwise.
“Credit Parties” shall mean the Borrowers and the
Guarantors, and “Credit Party” shall mean any of them.
“Customer” shall mean and include the account debtor
with respect to any Receivable of a Person and/or the prospective purchaser of goods, services or both with respect to any contract or
contract right, and/or any party who enters into or proposes to enter into any contract or other arrangement with such Person, pursuant
to which such Person is to deliver any personal property or perform any services.
“DDH” shall have the meaning ascribed to such term
in the preamble to this Agreement.
“DDH Holdings” shall mean Direct Digital Holdings,
Inc., a Delaware corporation, which entity has been incorporated to enter into a Qualified IPO and shall, upon consummation of the Qualified
IPO, be the managing member of DDH at all times while the umbrella partnership corporation structure is in effect.
“Debt Transaction” shall mean, with respect to DDH
or any of its Subsidiaries, any sale, issuance, placement, assumption or guaranty of Funded Debt, whether or not evidenced by a promissory
note or other written evidence of Indebtedness, except for Funded Debt permitted to be incurred pursuant to Section 7.8.
“Debtor Relief Laws” shall mean the Bankruptcy Code,
and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in
effect.
“Default” shall mean an event, circumstance or condition
which, with the giving of notice or passage of time or both, would constitute an Event of Default.
“Default Rate” shall have the meaning set forth
in Section 3.1 hereof.
“Defaulting Lender” shall have the meaning set forth
in Section 2.9(a) hereof.
“Delayed Draw Term Loan” shall mean
the Advances made pursuant tohave the meaning set forth in Section 2.1(b)(i).
“Delayed
Draw Term Loan Amount” shall mean the amount requested by
Borrowing Agent to be funded as the Delayed Draw Term Loan, up to the Delayed Draw Term Loan Maximum Amount.
“Delayed Draw Term Loan Commitment Percentage” of
any Lender shall mean the percentage set forth on Schedule 1.2(b) as its “Delayed Draw Term Loan Commitment Percentage,”
as the same may be adjusted upon any assignment by a Lender pursuant to Section 15.3(c) or 15.3(d).
“Delayed Draw Term Loan Funding Date” shall mean,
with respect to an Advance of the Second Amendment Delayed
Draw Term Loan, the date no later than thirty six (36) months after the Closing Date on which each of
the following conditions have been satisfied: (a) Agent has received, no less than ten (10) days prior to the date such Advance is requested
to be funded, a written request duly executed by Borrowing Agent, specifying the amount of such Advance requested and the date on which
such Advance is requested to be funded and (b) the conditions set forth in Section 8.2 have
been satisfied.
Second
Amendment Date and with respect to the Fourth Amendment “Delayed Draw
Term Loan Maximum Amount” means $10,000,000 less
the original principal amount of each Delayed Draw Term Loan made subsequent
to the Closing, the Fourth Amendment Date.
“Delayed Draw Term Loan Note” shall mean, collectively,
the promissory notes described in Section 2.1(b).
“Depository Accounts” shall have the meaning set
forth in Section 4.15(h)(i) hereof.
“Disqualified Assignee” shall mean any Person with
respect to which (a) a voluntary or involuntary case (or comparable proceeding) has been commenced under any applicable state or federal
bankruptcy, insolvency, receivership, reorganization or other debtor relief laws, (b) a custodian, conservator, receiver or similar official
has been appointed for such Person or for any substantial part of such Person’s assets (or any motion or request therefor has been
filed with any Governmental Body), (c) such Person has made or agreed to make a general assignment for the benefit of creditors or is
otherwise adjudicated as, or determined by any Governmental Body having regulatory authority over such Person or its assets to be, insolvent,
bankrupt, or deficient in meeting any capital adequacy or liquidity standard of such Governmental Body, (d) such Person is a Defaulting
Lender, or otherwise is unable to fulfill its obligations as a lender, under any credit facility to which it is a party (or has publicly
announced that it believes that it will be any of the foregoing), or (e) which is a competitor of any Credit Party or its Subsidiaries.
“Dollar” and the sign “$” shall
mean lawful money of the United States of America.
“Domestic Subsidiary” shall mean each Subsidiary
of DDH that is not a Foreign Subsidiary.
“Eligible Assignee” shall mean (a)(i) a commercial
bank, commercial lender, financial institution, or Affiliate of such entity that represents and warrants that it is not a Disqualified
Assignee; provided that so long as no Event of Default has occurred and is continuing, such Person shall be approved by Borrowing Agent
(which approval of Borrowing Agent shall not be unreasonably withheld, conditioned or delayed), or (ii) any other Person approved by Borrowing
Agent (which approval of Borrowing Agent shall not be unreasonably withheld, conditioned or delayed) provided that, in each case,
Borrowing Agent will be deemed to have consented to any such assignment in this clause (a) unless it objects thereto by written notice
to Agent within ten (10) days after having received notice thereof, (b) any Lender or Affiliate (other than a natural Person) of
a Lender or a Related Fund (other than a natural Person) of a Lender and (c) during the continuation of an Event of Default under
Sections 10.1, 10.3 (solely as a result of a failure to comply with Section 6.5) or 10.7, any other Person (other than a natural person).
“Eligible Impact Services” shall mean Impact Services
and/or Impact Providers, as applicable, acceptable to Agent in its Permitted Discretion as part of its mission and identified on Exhibit
A attached hereto and incorporated herein, as such Exhibit may be amended or supplemented in writing from time to time by written
notice from Agent to Borrowers or otherwise as requested by Borrowers and approved by Agent in Agent’s sole discretion.
“Enterprise Value” shall mean (i) with respect to
any Acquisition of Property or any Acquisition of 100% of the Equity Interests of a Person, the aggregate cash and non-cash consideration
(including any assumption of Indebtedness, deferred purchase price and any equity consideration) paid for such Property or Equity Interests,
and (ii) with respect to any Acquisition of less than 100% of the Equity Interests of a Person, the total enterprise value of the Person
acquired, calculated based upon the aggregate cash and non-cash consideration (including any assumption of Indebtedness, deferred purchase
price and any equity consideration) paid for the percentage of Equity Interests that were acquired in such Acquisition, as reasonably
determined in good faith by Borrower and mutually agreed to by Agent.
“Environmental Claim” shall mean any known investigation,
written notice of violation, written claim, action, suit, proceeding, written demand, abatement order or other written order or directive
(conditional or otherwise), by any Person arising (a) pursuant to or in connection with any actual or alleged violation of any Environmental
Law; (b) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (c) in connection with any
actual or alleged damage, injury, threat or harm to human health, safety, natural resources or the environment.
“Environmental Complaint” shall have the meaning
set forth in Section 4.19(c) hereof.
“Environmental Laws” shall mean any and all current
or future federal or state (or any subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, Governmental
Authorizations, or any other written requirements of Governmental Bodies relating to (a) any Hazardous Materials Activity; (b) the
generation, use, storage, transportation or disposal of Hazardous Materials; or (c) protection of human health and the environment from
pollution, in each case, in any manner applicable to any Credit Party or any of its Subsidiaries or their respective Real Property.
“Environmental Liability” shall mean any liability,
contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of
DDH, any other Credit Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials,
(c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the environment
or (e) any contract, agreement or other consensual arrangement pursuant to which DDH or any Subsidiary of DDH assumed liability with
respect to any of the foregoing.
“Equipment” shall mean and include, with respect
to any Person, all of such Person’s goods (other than Inventory) whether now owned or hereafter acquired and wherever located including
all equipment, machinery, apparatus, motor vehicles, fittings, furniture, furnishings, fixtures, parts, accessories and all replacements
and substitutions therefor or accessions thereto.
“Equity Interests” of any Person shall mean any
and all shares, rights to purchase, options, warrants, general, limited or limited liability partnership interests, member interests,
participation or other equivalents of or interest in (regardless of how designated) equity of such Person, whether voting or nonvoting,
including common stock, preferred stock, convertible securities or any other “equity security” (as such term is defined in
Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act), including in each case all of the following
rights relating to such Equity Interests, whether arising under the Governing Documents of the Person issuing such Equity Interests (the
“Equity Issuer”) or under the Applicable Laws of such Equity Issuer’s jurisdiction of organization relating to
the formation, existence and governance of corporations, limited liability companies or partnerships or business trusts or other legal
entities, as the case may be: (i) all economic rights (including all rights to receive dividends and distributions) relating to such Equity
Interests; (ii) all voting rights and rights to consent to any particular actions by the applicable Equity Issuer; (iii) all
management rights with respect to such Equity Issuer; (iv) in the case of any Equity Interests consisting of a general partner interest
in a partnership, all powers and rights as a general partner with respect to the management, operations and control of the business and
affairs of the applicable Equity Issuer; (v) in the case of any Equity Interests consisting of the membership/limited liability company
interests of a managing member in a limited liability company, all powers and rights as a managing member with respect to the management,
operations and control of the business and affairs of the applicable Equity Issuer; (vi) all rights to designate or appoint or vote for
or remove any officers, directors, managers, general partners or managing members of such Equity Issuer and/or any members of any board
of members/managers/partners/directors that may at any time have any rights to manage and direct the business and affairs of the applicable
Equity Issuer under its Governing Documents as in effect from time to time or under Applicable Law; (vii) all rights to amend the Governing
Documents of such Equity Issuer, (viii) in the case of any Equity Interests in a partnership or limited liability company, the status
of the holder of such Equity Interests as a “partner”, general or limited, or “member” (as applicable) under the
applicable Governing Documents and/or Applicable Law; and (ix) all certificates evidencing such Equity Interests.
“Equity Transaction” shall mean, with respect to
DDH or any of its Subsidiaries, any issuance or sale by DDH or any such Subsidiary of shares of its Equity Interests, to include, without
limitation, any capital contribution by such Person’s existing members, partners or shareholders, as applicable, other than an issuance
(a) to DDH Holdings or Permitted Holders, (b) in connection with a conversion of debt securities to equity, (c) in connection with the
exercise by a present or former employee, officer or director under a stock incentive plan, stock option plan or other equity-based compensation
plan or arrangement, (d) which occurred on or prior to the Closing Date, (e) as consideration for an Acquisition permitted by Section
7.1(a), or (f) the proceeds of which are used to fund the purchase price consideration for a contemporaneous Acquisition permitted
by Section 7.1(a) or capital expenditure permitted hereunder.
“ERISA” shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time, any successor statute, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” shall mean, as applied to any
Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Code of
which that Person is a member; (b) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses
under common control within the meaning of Section 414(c) of the Code of which that Person is a member; and (c) any member of an affiliated
service group within the meaning of Section 414(m) or (o) of the Code for purposes of provisions relating to Section 412 of the Code of
which that Person, any corporation described in clause (a) above or any trade or business described in clause (b) above
is a member.
“ERISA Event” shall mean (a) a “reportable
event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding
those for which notice to the PBGC has been waived by regulation) that is reasonably likely to result in material liability to any Credit
Party; (b) the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Pension Plan (whether
or not waived in accordance with Section 412(c) of the Code), the failure to make by its due date any minimum required contribution
or any required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure to make by its due date
any required contribution to a Multiemployer Plan in either case if such failure is reasonably likely to result in liability to any Credit
Party in excess of $250,000 (net of third party indemnification); (c) the provision by the administrator of any Pension Plan pursuant
to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c)
of ERISA; (d) the withdrawal from any Pension Plan with two (2) or more contributing sponsors or the termination of any such Pension Plan,
in either case resulting in material liability pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings
to terminate any Pension Plan, or the occurrence of any event or condition reasonably likely to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the imposition of liability pursuant to Section 4062(e)
or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA, in each case, that is reasonably likely to result in material
liability to any Credit Party; (g) the withdrawal of any Credit Party, any of its Subsidiaries or any of their respective ERISA Affiliates
in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if such withdrawal
is reasonably likely to result in liability in excess of $250,000 (net of third party indemnification), or the receipt by any Credit Party,
any of its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in critical status
or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it is in “critical” or “endangered” status
within the meaning of Section 103(f)(2)(G) of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042
of ERISA, if such critical status, insolvency or termination is reasonably likely to result in liability to any Credit Party in excess
of $250,000 (net of third party indemnification); (h) the imposition of fines, penalties, taxes or related charges under Chapter 43
of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Pension Plan if
such fines, penalties, taxes or related charges are reasonably likely to result in material liability to any Credit Party; (i) the assertion
of a claim (other than routine claims for benefits and funding obligations in the ordinary course) against any Pension Plan other than
a Multiemployer Plan or the assets thereof, or against any Person in connection with any Pension Plan such Person sponsors or maintains
which is reasonably likely to result in material liability to any Credit Party; (j) receipt from the Internal Revenue Service of a final
written determination of the failure of any Pension Plan intended to be qualified under Section 401(a) of the Code to qualify under
Section 401(a) of the Code, or the failure of any trust forming part of any such plan to qualify for exemption from taxation under
Section 501(a) of the Code; or (k) the imposition of a lien pursuant to Section 430(k) of the Code or pursuant to Section 303(k)
or 4068 of ERISA in each case that is reasonably likely to result in material liability to any Credit Party.
“Erroneous Payment”
shall have the meaning given to such term in Section 14.13(a) hereof.
“Erroneous Payment Notice” shall have the meaning
given to such term in Section 14.13(b) hereof.
“Event of Default” shall have the meaning set forth
in Article X hereof.
“Exchange Act” shall mean the Securities Exchange
Act of 1934, as amended from time to time, and any successor statute.
“Excluded Deposit Accounts” means any deposit account
(including, for the avoidance of doubt, any cash, cash equivalents or other property contained therein): (i) solely to the extent, and
for so long as, such deposit account is pledged to secure obligations arising under Section 7.02(o) of the defined term “Permitted
Encumbrances”, and whether such pledge is by escrow or otherwise, in all cases with a balance no greater than such obligations under
Section 7.02(o) of the defined term “Permitted Encumbrances”; (ii) used exclusively for payroll, payroll taxes and
other employee wage and benefit payments with a balance no greater than such payroll, payroll taxes and other employee wage and benefit
payments obligations that are to be paid within any two-week period; (iii) constituting a “zero balance” deposit account;
or (iv) consisting of a disbursement account established with a payment processor to process vendor payments so long as the average monthly
balance in such account (and in all such accounts in the aggregate) does not exceed $250,000 at any one time.
“Excluded Perfection Action” shall mean any action
with respect to assets otherwise constituting Collateral with respect to which Agent and Borrowing Agent shall have determined in their
reasonable discretion and agree in writing that the costs or other consequences of such perfection action are excessive in relation to
the benefit to the Lenders of the security intended to be afforded thereby.
“Excluded Property” shall have the meaning set forth
in the definition of “Collateral” above.
“Excluded Taxes” shall mean any of the following
Taxes on or with respect to a Payee, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch
profits Taxes, in each case, imposed as a result of such recipient being organized under the laws of, or having its principal office or,
in the case of any Payee, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof),
(b) in the case of a Payee, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Payee with respect
to an applicable interest in an Advance or commitment pursuant to any Applicable Law in effect on the date on which (i) such Lender acquired
such interest in the Advance or commitment (other than an assignee pursuant to a request by Borrowing Agent under Section 3.11)
or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.10, 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 Lender’s failure to comply with Section
3.10(g)(i), or (d) any withholding Taxes imposed under FATCA.
“Executive Order No. 13224” shall mean the Executive
Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended,
amended or replaced.
“Extraordinary Receipts” shall mean any cash in
excess of $250,000 received by or paid to or for the account of DDH or any of its Subsidiaries not in the ordinary course of business
(net of taxes paid or payable in connection with such receipts, including any applicable permitted Tax Distributions, if applicable),
including, without limitation, under any indemnification provisions, all proceeds from releases of any escrowed amounts, any proceeds
from insurance policies, all payments received in respect of any indemnification obligation and any applicable purchase price adjustments
and in connection with income Tax refunds.
“Family” shall mean, with respect to any Person
(a) such Person’s spouse, (b) any immediate family member of such Persons, and (c) any other natural person who has been adopted
by such Person.
“FATCA” shall mean Sections 1471 through 1474 of
the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more
onerous to comply with), any current or future regulations thereunder or official interpretations thereof and any agreements entered into
pursuant to Section 1471(b)(1) of the Code.
“Fee Letter” shall mean, collectively, (a) the fee
letter dated the date hereof among the Borrowers and Agent, as the same may be amended, restated, supplemented or otherwise modified from
time to time, and (b) the fee letter dated as of the Second Amendment Date among the
Borrowers and Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time,
and (c) the fee letter dated as of the Fourth Amendment Date among the Borrowers and Agent, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
“Financial Officer Certification” shall mean, with
respect to the financial statements for which such certification is required, the certification of the chief financial officer of DDH
that such financial statements fairly present, in all material respects, the financial condition of DDH and its Subsidiaries as of the
dates indicated on a Consolidated Basis and the results of their operations and their cash flows for the periods indicated on a Consolidated
Basis, subject to changes resulting from audit and normal year-end adjustments.
“Fiscal Quarter” shall mean a fiscal quarter of
any Fiscal Year.
“Fiscal Year” shall mean the fiscal year of DDH
and its Subsidiaries, as such end date may be adjusted in accordance with Section 7.13.
“Flood Hazard Property” shall mean any Real Property
Collateral located in an area designated by the Federal Emergency Management Agency (and any successor Governmental Body performing a
similar function) as having special flood or mud slide hazards.
“Foreign Subsidiary” shall mean any Subsidiary of
DDH that is not organized or incorporated in the United States, any State thereof or the District of Columbia.
“Fourth
Amendment” shall mean that certain Fourth Amendment to Term Loan and Security Agreement dated as of the Fourth Amendment Date among
the Credit Parties, Agent and Lenders.
“Fourth
Amendment Date” shall mean October 3, 2023.
“Fourth
Amendment Delayed Draw Term Loan” shall have the meaning set forth in Section 2.1(b)(i).
“Fourth
Amendment Delayed Draw Term Loan Amount” shall mean $3,587,274.03.
“Funded Debt” shall mean, as to any Person at a
particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with
GAAP:
(a) all obligations for borrowed
money, whether current or long-term (including the Obligations hereunder, the ABL Obligations, any Subordinated Debt (other than the Preferred
Equity) and all Capitalized Lease Obligations), all obligations evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;
(b) all obligations in respect
of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and, in each
case, not past due for more than sixty (60) days after the date on which such trade account payable is due), including, without limitation,
any earn-out obligations recognized as a liability on the balance sheet of such Person and its Subsidiaries in accordance with GAAP;
(c) all non-contingent obligations
under letters of credit (including standby and commercial), bankers’ acceptances and similar instruments (including bank guaranties);
(d) the Attributable Principal
Amount of Capital Leases, Synthetic Leases, Securitization Transactions and Sale and Leaseback Transactions;
(e) [reserved];
(f) all Funded Debt of others
secured by (or for which the holder of such Funded Debt has an existing right, contingent or otherwise, to be secured by) any Lien on,
or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby
have been assumed;
(g) all Guarantees in respect
of Funded Debt of another Person; and
(h) Funded Debt of any partnership
or joint venture or other similar entity in which such Person is a general partner or joint venturer, and, as such, has personal liability
for such obligations, but only to the extent there is recourse to such Person for payment thereof.
For purposes hereof, the amount of Funded Debt shall (I) be determined
(x) based on the outstanding principal amount in the case of borrowed money indebtedness under clause (a) and purchase money indebtedness
and the deferred purchase obligations under clause (b), (y) without duplication for any letter of credit sublimit within a loan
facility commitment amount, based on the maximum amount available to be drawn in the case of letter of credit obligations and the other
obligations under clause (c), and (z) based on the amount of Funded Debt that is the subject of the Guarantees and for which there
is recourse to such Person in the case of Guarantees under clause (g) and (II) not be reduced by any origination fees related thereto.
“Funding Account” shall have the meaning set forth
in Section 4.15(h)(iii).
“Funds Flow Statement” shall mean the funds flow
statement delivered to Agent as of the Closing Date with respect to the Closing Date Transactions.
“GAAP” shall mean, subject to the limitations on
the application thereof set forth in Section 1.1, generally accepted accounting principles in the United States of America
in effect from time to time.
“General Intangibles” shall mean and include, with
respect to any Person, all of such Person’s general intangibles, whether now owned or hereafter acquired, including all payment
intangibles, all choses in action, causes of action, corporate or other business records, inventions, designs, patents, patent applications,
equipment formulations, manufacturing procedures, quality control procedures, trademarks, trademark applications, service marks, trade
secrets, goodwill, copyrights, design rights, software, computer information, source codes, codes, records and updates, registrations,
licenses, franchises, customer lists, tax refunds, tax refund claims, computer programs, all claims under guaranties, security interests
or other security held by or granted to such Person to secure payment of any of the Receivables (other than to the extent covered by Receivables),
all rights of indemnification and all other intangible property of every kind and nature (other than Receivables).
“Governing Documents” shall mean, for a corporation,
its articles of incorporation or certificate of incorporation and its bylaws, for a limited liability company, its articles of organization
or certificate of formation and its operating agreement, and for a partnership, its certificate of formation and its partnership agreement.
“Governmental Authorization” shall mean any permit,
license, authorization, plan, directive, consent order or consent decree of or from any Governmental Body.
“Governmental Body” shall mean any nation or government,
any state or other political subdivision thereof or any entity, authority, agency, division or department exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or pertaining to a government (including any supra-national bodies
such as the European Union or the European Central Bank) and any group or body charged with setting financial accounting or regulatory
capital rules or standards (including, without limitation, the Financial Accounting Standards Board, the Bank for International Settlements
or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).
“Guarantee” shall mean, as to any Person, (a) any
obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner (including as a result of joint
and several liability with such primary obligor), whether directly or indirectly, and including any obligation of such Person, direct
or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation,
(ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or
other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital
or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee
in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect
thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other
Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any
holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated
or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated
or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.
The term “Guarantee” as a verb has a corresponding meaning.
“Guaranteed Obligations” shall have the meaning
set forth in Section 16.1 hereof.
“Guarantor” shall mean (i) Orange142, LLC, (ii)
Huddled Masses LLC, (iii) Colossus Media, LLC, (iv) subject to Section 6.16 hereof, DDH Holdings, (v) each Person who subsequent
to the Closing Date becomes a party to this Agreement as a Guarantor, and (vi) each other Person who may hereafter guarantee payment or
performance of the whole or any part of the Obligations and “Guarantors” shall mean collectively all such Persons.
“Guarantor Security Agreement” shall mean, individually
and collectively, any Security Agreement, or joinder thereto, executed by any Guarantor in favor of Agent securing the Guarantee of such
Guarantor or otherwise securing the Obligations, in form and substance satisfactory to Agent.
“Hazardous Discharge” shall have the meaning set
forth in Section 4.19(c) hereof.
“Hazardous Materials” shall mean any hazardous substances
defined by CERCLA, including any hazardous waste as defined under 40 C.F.R. Parts 260-270, gasoline or petroleum (including crude oil
or any fraction thereof), asbestos or polychlorinated biphenyls.
“Hazardous Materials Activity” shall mean any past,
current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing,
construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective
action or response action with respect to any of the foregoing.
“Immaterial Subsidiary” shall mean any direct or
indirect Subsidiary of DDH Holdings which (a) is not actively engaged in any business activities, and (b) maintains assets of not more
$250,000 in the aggregate at any time. In no event shall the aggregate amount of Consolidated EBITDA of all Immaterial Subsidiaries for
any fiscal quarter and consolidated assets of all Immaterial Subsidiaries exceed 5.0% of Consolidated EBITDA for such fiscal quarter or
the consolidated total assets of DDH Holdings and its Subsidiaries, respectively.
“Impact Certificate” shall mean a certificate in
substantially the form attached hereto as Exhibit D to be signed by an Authorized Officer of Borrowers.
“Impact Provider” shall mean any third-party provider
or other third party vendor providing Impact Services.
“Impact Services” shall mean programs or services
intended to provide to companies and their employees, as applicable, long-term, sustainable impact in financial inclusion and empowerment,
housing, jobs, wellness, diversity and inclusion or such other core values acceptable to Agent in its sole discretion.
“Impact Subscription” shall mean the subscription
to, participation in or other purchase or acquisition of one or more (as applicable) Impact Services by Borrowers (or any of them, as
applicable) for any period identified and offered by an Impact Provider to Borrowers. “Impact Subscribe” and “Impact
Subscribed” shall have the corollary meaning thereto.
“Inchoate Obligations” shall mean contingent indemnification
or expense reimbursement Obligations other than those related to claims, causes of action, or liabilities that have been asserted or threatened
in writing or that otherwise can be reasonably identified by Agent or any Lender based on the then-known facts and circumstances.
“Indebtedness” shall mean, as to any Person, at
any time, any and all indebtedness, obligations or liabilities (whether matured or unmatured, liquidated or unliquidated, direct or indirect,
absolute or contingent, or joint or several) of such Person for or in respect of all of the following, whether or not included as indebtedness
or liabilities in accordance with GAAP (without duplication):
(a) all Funded Debt;
(b) net obligations under
any Swap Agreement;
(c) all Guarantees in respect
of Indebtedness of another Person; and
(d) all Indebtedness of the
types referred to in clauses (a) through (c) above of any partnership or joint venture (other than a joint venture that
is itself a corporation or limited liability company) in which any Borrower or a Subsidiary is a general partner or joint venturer, unless
such Indebtedness is non-recourse to such Borrower or Subsidiary and excluded as Indebtedness of such Borrower or Subsidiary for purposes
of GAAP.
For purposes hereof, the amount of Indebtedness shall be determined
based on Swap Termination Value in the case of net obligations under any Swap Agreement under clause (b).
“Indemnified Taxes” shall mean (a) Taxes other than
Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligations of any Credit Party under this Agreement
or any Other Document, and (b) to the extent not otherwise described in (a), Other Taxes.
“Intellectual Property” shall mean property constituting
under any Applicable Law a patent, patent application, copyright, trademark, service mark, trade name, mask work, trade secret or license
or other right to use any of the foregoing.
“Intercreditor Agreement” shall mean that certain
Intercreditor Agreement dated as of January 9, 2023 by and between Agent and ABL Lender, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
“Interest Period” shall mean, with respect to any
Term Loan, (a) initially, the period commencing on the date such Term Loan is made and ending on the last day of the fiscal quarter immediately
succeeding the date such Term Loan is made, and (b) thereafter, the period commencing on the date immediately after the end of the previous
Interest Period and ending on the earlier of (i) the last day of the fiscal quarter then ending and (ii) the day before the last day of
the Term, provided, that if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day.
“Intermediate Holdco” shall have the meaning set
forth in Section 6.12 hereof.
“Inventory” shall mean and include, with respect
to any Person, all of such Person’s now owned or hereafter acquired inventory, goods, merchandise and other personal property, wherever
located, to be furnished under any consignment arrangement, contract of service or held for sale or lease, all raw materials, work in
process, finished goods and materials and supplies of any kind, nature or description which are or might be used or consumed in such Person’s
business or used in selling or furnishing such goods, merchandise and other personal property, and all documents of title or other documents
representing them.
“Investment” shall mean, as to any Person, any direct
or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of
any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) an Acquisition. For purposes
of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases
or decreases in the value of such Investment.
“Investment Property” shall mean and include, with
respect to any Person, all of such Person’s now owned or hereafter acquired securities (whether certificated or uncertificated),
securities entitlements, securities accounts, commodities contracts and commodities accounts.
“Involuntary Disposition” shall mean the receipt
by DDH or any of its Subsidiaries of any cash insurance proceeds or condemnation awards payable by reason of theft, loss, physical destruction
or damage, taking or similar event with respect to any of its Property in excess of $100,000.
“Key Executive Policy” shall have the meaning set
forth in Section 4.21.
“Key Performance Indicators” shall mean the key
performance indicators set forth on Exhibit E attached hereto and such other key performance indicators as Borrowers and Agent
shall agree from time to time in replacement of (provided that such replacement shall provide a reasonably similar metric) or in
addition to any of the foregoing; provided, however, that any foregoing key performance indicators may be removed or modified
by Borrowers with the consent of Agent (such approval not to be unreasonably withheld, delayed or conditioned); provided, further,
that all foregoing key performance indicators shall be developed and disclosed to Agent within three months of the Closing Date.
“Lafayette Square” shall have the meaning set forth
in the preamble to this Agreement and shall extend to all of its successors and permitted assigns.
“Leasehold Interests” shall mean each Credit Party’s
right, title and interest in and to the leased Real Property.
“Lender” and “Lenders” shall
have the meaning ascribed to such term in the preamble to this Agreement and shall include each Person which becomes a permitted transferee,
successor or permitted assign of any Lender.
“LIBOR Rate” shall mean, for any Interest Period,
the greater of (i) the rate per annum determined by Agent by dividing (a) the Published Rate as of 11:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period by (b) a number equal to 1.00 minus the percentage prescribed by the Federal
Reserve for determining the maximum reserve requirements with respect to any eurocurrency funding by banks on the date of determination
and (ii) one percent (1.00%).
“Lien” shall mean (a) any mortgage, deed of trust,
pledge, hypothecation, collateral assignment, security interest, lien (whether statutory or otherwise), charge, claim or encumbrance,
or preference, priority or other security agreement or preferential arrangement held or asserted in respect of any asset of any kind or
nature whatsoever including any conditional sale or other title retention agreement, any lease having substantially the same economic
effect as any of the foregoing, and the filing of, or agreement to give, any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction and (b) in the case of Securities, any purchase option, call or similar right of a third party with
respect to such Securities.
“Lien Waiver Agreement” shall mean an agreement
which is executed in favor of Agent, in form and content satisfactory to Agent in its Permitted Discretion, by a Person who owns or occupies
premises at which any Collateral may be located from time to time and by which such Person shall waive or subordinate any Lien that such
Person may ever have with respect to any of the Collateral and shall authorize Agent from time to time to enter upon the premises to inspect
or remove the Collateral from such premises or to use such premises to store or dispose of such Collateral.
“Liquidity” shall mean, as of any date of determination,
the sum of (a) Unrestricted Cash plus (b) Revolving Credit Availability (as defined in the ABL Credit Agreement as in effect on the date
hereof).
“LLC Division” shall mean, in the event a Credit
Party is a limited liability company, (a) the division of any such Borrower or Guarantor into two or more newly formed limited liability
companies (whether or not such Borrower or Guarantor is a surviving entity following any such division) pursuant to Section 18-217 of
the Delaware Limited Liability Company Act or any similar provision under any similar act governing limited liability companies organized
under the laws of any other State or Commonwealth or of the District of Columbia, or (b) the adoption of a plan contemplating, or the
filing of any certificate with any applicable Governmental Body that results or may result in, any such division.
“Management Fee Subordination Agreement” shall mean
that certain Management Fee Subordination Agreement, dated as of the date hereof, by and among Mark Walker, Keith Smith, the Credit Parties,
and Agent, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, which agreement
shall terminate upon the occurrence of a Qualified IPO.
“Management Fees” shall mean management fees or
advisory fees required to be paid to the Keith Smith or Mark Walker pursuant to those certain Board Services and Consulting Agreements
each dated as of September 30, 2020, by and between DDH, on the one hand, and Keith Smith and Mark Walker on the other hand, together
with any other similar fees pursuant to any management agreement or management services agreement entered into now or hereafter by and
between Keith Smith or Mark Walker and a Credit Party.
“Margin Stock” shall have the meaning as defined
in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.
“Material Adverse Effect” shall mean any effect,
event, condition, action, omission, change or state of facts that, individually or in the aggregate, has resulted in, or could reasonably
be expected to result in, a material adverse effect with respect to (a) the business operations, properties, assets, or financial condition
of DDH and its Subsidiaries; (b) the ability of the Credit Parties to fully and timely perform the Obligations; (c) the legality, validity,
binding effect, or enforceability against an Credit Party of this Agreement or any Other Document to which it is a party; (d) the priority
of Liens in the whole of the Collateral in favor of Agent; or (e) the material rights, remedies and benefits available to, or conferred
upon Agent under this Agreement or any Other Document.
“Material Contract” shall mean any contract or other
arrangement (other than the Other Documents) to which any Credit Party or any Subsidiary of any Credit Party is a party as to which the
breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse
Effect.
“Modified Transfer Supplement” shall have the meaning
set forth in Section 15.3(d).
“Moody’s” shall mean Moody’s Investor
Services, Inc., together with its successors.
“Mortgage” shall mean, with respect to any Real
Property Collateral, any mortgage, deed of trust or deed to secure debt that purports to grant to Agent a Lien on such Real Property or
any interest (including with respect to any improvements and fixtures) of any Credit Party in such Real Property.
“Multiemployer Plan” shall mean a “multiemployer
plan” as defined in Sections 3(37) of ERISA which is sponsored, maintained or contributed to by, or required to be contributed
to by, any Credit Party or any of its ERISA Affiliates or with respect to which any Credit Party or any of its ERISA Affiliates previously
sponsored, maintained or contributed to or was required to contribute to, and still has liability.
“Net Cash Proceeds” shall mean the aggregate proceeds
paid in cash or Cash Equivalents received by DDH or any of its Subsidiaries in connection with any Asset Sale, Debt Transaction, Involuntary
Disposition, Equity Transaction or Extraordinary Receipts, net of (a) direct costs incurred or estimated costs for which reserves are
maintained, in connection therewith (including reasonable legal, accounting and investment banking fees and expenses, sales commissions
and underwriting discounts); (b) estimated taxes paid or payable (including sales, use or other transactional taxes and any net marginal
increase in income taxes) directly, or indirectly, by DDH or any of its Subsidiaries, including any such estimated taxes paid or payable
by any holder of the Equity Interest issued by DDH (including, DDH Holdings), in each case as a result thereof; and (c) the amount required
to retire any Indebtedness secured by a Permitted Encumbrance (excluding any Permitted Encumbrance that is pari passu or junior to the
Agent’s Lien on or security interest in the Collateral) on the related property (in all cases paid to Persons other than Affiliates
of a Credit Party). For purposes hereof, “Net Cash Proceeds” includes any cash or Cash Equivalents received upon the disposition
of any non-cash consideration received by DDH or any of its Subsidiaries in any Asset Sale, Debt Transaction, Involuntary Disposition,
Equity Transaction or Extraordinary Receipts.
“Notes” shall mean Term Notes.
“Obligations” shall mean and include, in each case
to the extent arising under or in connection with this Agreement and/or the Other Documents: any and all loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Credit Parties (or any of them) to Lenders or Agent of any kind or nature, present or future
(including any interest or other amounts accruing thereon after maturity, or after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding relating to any Credit Party, whether or not a claim for post-filing or post-petition
interest or other amounts is allowed in such proceeding), whether or not evidenced by any note, guaranty or other instrument, whether
arising under any agreement, instrument or document (including this Agreement and the Other Documents) whether or not for the payment
of money, whether arising by reason of an extension of credit, opening of a letter of credit, loan, equipment lease or guarantee, under
any interest or currency swap, future, option or other similar agreement, or in any other manner, whether arising out of overdrafts or
deposit or other accounts or electronic funds transfers (whether through automated clearing houses or otherwise) or out of Agent’s
or any Lenders non-receipt of or inability to collect funds or otherwise not being made whole in connection with depository transfer check
or other similar arrangements, whether direct or indirect (including those acquired by assignment or participation), absolute or contingent,
joint or several, due or to become due, now existing or hereafter arising, contractual or tortious, liquidated or unliquidated, regardless
of how such indebtedness or liabilities arise or by what agreement or instrument they may be evidenced or whether evidenced by any agreement
or instrument, including, but not limited to, any and all of any Credit Parties’ Indebtedness and/or liabilities under this Agreement,
the Other Documents or under any other agreement between Agent or Lenders and any Credit Party and any amendments, extensions, renewals
or increases and all costs and expenses of Agent and any Lender incurred in the documentation, negotiation, modification, enforcement,
collection or otherwise in connection with any of the foregoing, including but not limited to reasonable, documented (to the extent readily
available) attorneys’ fees, allocated costs of internal counsel and out-of-pocket expenses and all obligations of the Credit Parties
(or any of them) to Agent or Lenders to perform acts or refrain from taking any action.
“OFAC” shall mean the U.S. Department of the Treasury’s
Office of Foreign Assets Control.
“Orange142 Canada” shall mean Orange142 Advertising
Canada, Inc., a corporation organized under the laws of British Columbia.
“Other Connection Taxes” shall mean, with respect
to any Payee, Taxes imposed as a result of a present or former connection between such Payee and the jurisdiction imposing such Tax (other
than connections arising from such Payee 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 this Agreement or any
Other Document, or sold or assigned an interest in any Obligation or Other Document).
“Other Documents” shall mean the Notes, the Fee
Letter, all related Guarantees, all Security Agreements, all Guarantor Security Agreements, all Pledge Agreements, the Intercreditor Agreement,
the Management Fee Subordination Agreement, any subordination agreement relating to Subordinated Debt, if applicable, any Swap Agreement
with any Lender or Affiliate thereof, any Lien Waiver Agreements, Mortgages (if any), environmental indemnities with respect to Real Property,
and any and all other agreements, instruments and documents, including guaranties, pledges, powers of attorney, consents, interest or
currency swap agreements or other similar agreements and all other writings heretofore, now or hereafter executed by any Credit Party
and/or delivered to Agent or any Lender in respect of the transactions contemplated by this Agreement; provided that “Other
Documents” shall not include any document evidencing any rights of any Lender as a holder of Equity Interests of DDH or DDH Holdings.
“Other Taxes” shall mean all present or future stamp,
court or documentary, intangible, recording, filing, other excise or property Taxes or similar Taxes, charges or similar levies 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, this Agreement or any Other Document, except any such Taxes that are Other
Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.11).
“Participant” shall have the meaning set forth in
Section 15.3(b) hereof.
“Payee” shall mean Agent, any Lender, assignee of
any Lender or Participant.
“Payment Conditions” shall mean that prior to and
after giving effect to the relevant dividend, distribution, acquisition, investment or applicable transaction as to which the satisfaction
of the Payment Conditions is being determined, each of the following conditions is satisfied: (i) no Default or Event of Default is continuing
or would occur after giving Pro Forma effect to such action, (ii) DDH and its Subsidiaries shall, on a Pro Forma Basis, have a Consolidated
Senior Net Leverage Ratio of not greater than 1.5 to 1.00, and (iii) DDH and its Subsidiaries shall, on a Pro Forma Basis, have Liquidity
of not less than $15,000,000.
“PBGC” shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any successor thereto.
“Pension Plan” shall mean any “employee pension
benefit plan” as defined in Section 3(2) of ERISA other than a Multiemployer Plan, which is subject to Section 412 of the Code
or Section 302 of ERISA and which is sponsored, maintained or contributed to by, or required to be contributed to by, any Credit
Party or any of its ERISA Affiliates or with respect to which any Credit Party or any of its ERISA Affiliates previously sponsored, maintained
or contributed to, or was required to contribute to, and still has liability.
“Permitted Acquisition” shall mean any Acquisition
by a Credit Party that satisfies the following conditions:
(a) the
Property acquired (or the Property of the Person acquired) in such Acquisition is a business or is used or useful in a business permitted
under Section 7.9 and constitutes all or substantially all of the assets (or all or substantially all of the assets constituting
a business unit, division, product line, or line of business of any Person);
(b) with
respect to the acquisition of Equity Interests, the target shall have a positive EBITDA, calculated in accordance with GAAP for the trailing
twelve month period immediately prior to such acquisition,
(c) in
the case of an Acquisition of Equity Interests, (i) the board of directors (or other comparable governing body) of such other Person shall
have approved the Acquisition, (ii) such Person shall be organized and existing under the laws of any state of the United States
or the District of Columbia and (iii) all of the Equity Interests of such Person are being acquired;
(d) the
total costs and liabilities (including without limitation, all assumed liabilities, all earn-out payments, deferred payments and the value
of any other stock or assets transferred, assigned or encumbered with respect to such acquisitions) each such acquisition consummated
during the Term do not exceed, as of the date of determination, 40% of the Credit Parties’ Consolidated EBITDA calculated on a Pro
Forma Basis;
(e) after
giving effect to such Acquisition (including the incurrence of any Indebtedness and Delayed Draw Term Loans incurred in connection therewith),
DDH and its Subsidiaries (or DDH Holdings and its Subsidiaries after a Qualified IPO) shall, on a Pro Forma Basis, have a Consolidated
Senior Net Leverage Ratio of not greater than 1.5 to 1.00;
(f) (i)
no Default or Event of Default shall exist and be continuing immediately before or immediately after giving effect thereto, (ii) the representations
and warranties made by each of the Credit Parties in this Agreement and each Other Document shall be true and correct in all material
respects as if made on the date of such Acquisition (after giving effect thereto) except to the extent such representations and warranties
expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (or,
in each case, in all respects with respect to any representation or warranty which, by its terms is expressly qualified by materiality,
Material Adverse Effect or dollar amount thresholds), and (iii) the Borrowers shall have given Agent written notice of such Acquisition
with reasonable detail thereof, and all business, financial/accounting and legal due diligence and documentation with respect thereto
(including any quality of earnings reports obtained by the Credit Parties with respect thereto), in each case, no later than thirty (30)
days prior to the consummation thereof (or such shorter notice as may be acceptable to Agent in its sole discretion); and
(g) the
Property acquired in such Acquisition shall constitute Collateral, and the Person acquired in such Acquisition shall be a Credit Party.
“Permitted Discretion” shall mean a determination
made in the exercise of reasonable (from the perspective of a secured creditor) business judgment.
“Permitted Dividends” shall mean (a) dividends and/or
distributions required to be paid to the holders of the Preferred Equity (as set forth in the Governing Documents of DDH in effect on
the date hereof) so long as (i) the Consolidated Fixed Charge Coverage Ratio, calculated on a Pro Forma Basis, would not be less than
1.5 to 1.00 after giving effect thereto, (ii) no Default or Event of Default is continuing or would occur after giving Pro Forma effect
to such dividend, and (iii) expressly permitted under the terms of the Preferred Equity Subordination Agreement and (b) after consummation
of a Qualified IPO, dividends and distributions to DDH Holdings and any shareholders of DDH Holdings so long as the Payment Conditions
are satisfied.
“Permitted Encumbrances” shall mean each of the
Liens permitted pursuant to Section 7.2.
“Permitted Holders” shall mean Keith Smith, Mark
Walker, Leah Woolford and/or their respective Related Persons.
“Permitted Lines of Business” shall mean any business
engaged in by any Credit Party or its Subsidiaries as of the Closing Date and businesses that are substantially similar, related or incidental
thereto, and, the offering of products and services that are complementary or ancillary thereto, as may be adjusted from time to time.
“Permitted Management Fee Payments” shall mean at
any time prior to the consummation of a Qualified IPO, the payment of regularly scheduled Management Fees in accordance with the Board
Services and Consulting Agreements each dated as of September 30, 2020 (as in effect on the date hereof) so long as at the time of and
after giving pro forma effect thereto (calculated with respect to the financial covenants set forth in Section 6.5 as of the last day
of the fiscal quarter for which Borrowers were required to deliver financial statements pursuant to Section 9.8 hereof as if such payment
was made on the last day of such fiscal quarter and without giving effect to the addback set forth in clause (v) of the definition Consolidated
EBITDA) no Default or Event of Default has occurred or would occur.
“Person” shall mean any individual, sole proprietorship,
partnership, corporation, business trust, joint stock company, trust, unincorporated organization, association, limited liability company,
limited liability partnership, institution, public benefit corporation, joint venture, entity or Governmental Body (whether federal, state,
county, city, municipal or otherwise, including any instrumentality, division, agency, body or department thereof).
“Personal Information” shall mean, in addition to
any definition for any similar term (e.g., “personal data,” “personally identifiable information,” or “PII”)
provided by applicable law or by a Credit Party or Subsidiary in any of its privacy policies, notices or contracts, all information that
identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly,
with a particular individual or household, including (a) name, physical address, telephone number, email address, financial information,
financial account number or government-issued identifier (including Social Security number and driver’s license number), medical,
health or insurance information, gender, date of birth, educational or employment information, religious or political views or affiliations,
marital or other status, and any other data used or intended to be used to identify, contact or precisely locate an individual (e.g.,
geolocation data), (b) any data regarding an individual’s activities online or on a mobile device or application, and (c) Internet
Protocol addresses and unique device identifiers. Personal Information may relate to any individual, including a current, prospective
or former customer, end user or employee of any Person and includes information in any form or media, whether paper, electronic, or otherwise.
“Pledge Agreements” shall mean that certain Pledge
Agreement, dated as of the Closing Date, by DDH pursuant to which DDH pledges all of the Equity Interests owned by DDH in its Subsidiaries
and any other pledge agreement executed and delivered by any other Person subsequent to the Closing Date to secure the Obligations.
“Preferred A Redemption”
shall mean the redemption of the preferred A units held in DDH pursuant to the Redemption Agreement.
“Preferred B Redemption”
shall mean the contemplated redemption of the preferred B units held in DDH pursuant to the Redemption
Agreement.
“Preferred Equity” shall mean the preferred B units
issued to USDM Holdings, Inc., a Texas corporation and other “Preferred Unit Holders” pursuant to the Amended and Restated
Limited Liability Company Agreement of DDH dated September 30, 2020.
“Preferred Equity Subordination Agreement” shall
mean that certain Preferred Equity Subordination Agreement of even date herewith, by and among DDH, the holder(s) of the Preferred Equity
and Agent, as amended, restated, supplemented or otherwise modified from time to time, which agreement shall terminate upon the occurrence
of a Qualified IPO and shall expressly permit the transactions contemplated by a Qualified IPO.
“Privacy and Security Laws” shall mean any and all
applicable laws, legal requirements, executive orders, regulations and self-regulatory guidelines (including of any applicable foreign
jurisdiction) relating to the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security (technical,
physical and administrative), disposal, destruction, disclosure or transfer (including cross-border) of any Personal Information, including
the Federal Trade Commission Act, the California Consumer Privacy Act (CCPA), the California Privacy Rights Act (CPRA), Virginia’s
Consumer Data Protection Act (CDPA), the Colorado Privacy Act (CPA), Massachusetts General Law Chapter 93H and its implementing regulations
201 CMR 17.00, New York’s Stop Hacks and Improve Electronic Data Security Act (SHIELD Act), the Payment Card Industry Data
Security Standard (PCI-DSS), the CAN-SPAM Act, the Telephone Consumer Protection Act (TCPA), the EU General Data Protection Regulation,
Regulation 2016/679/EU (GDPR), and any and all applicable federal, state or global laws relating to the privacy and security of Personal
Information, and any laws relating to the use of biometric identifiers.
“Privacy Laws” shall have the meaning ascribed to
such term in the definition of HIPAA.
“Pro Forma Balance Sheet” shall have the meaning
set forth in Section 5.9(c) hereof.
“Pro Forma Basis” shall mean, for purposes of calculating
any financial covenants set forth in Section 6.5 or set forth in any other provision hereof (including for purposes of calculating
compliance with clause (d) of the definition of Permitted Acquisition), that any Asset Sale, Involuntary Disposition, Acquisition, incurrence
of Indebtedness (including the incurrence of any Delayed Draw Term Loan) or Restricted Payment shall be deemed to have occurred as of
the first day of the most recent four (4) Fiscal Quarter period ended prior to the date of such transaction for which Borrowers were required
to deliver financial statements pursuant to Sections 9.7 or 9.8. In connection with the foregoing, (a) (i) with respect
to any Asset Sale or Involuntary Disposition, income statement and cash flow statement items (whether positive or negative) attributable
to the property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such transaction and
(ii) with respect to any Acquisition, income statement items attributable to the Person or property that is the subject of such transaction
shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise
included in such income statement items for DDH (or DDH Holdings, if applicable) and its Subsidiaries in accordance with GAAP or in accordance
with any defined terms set forth in Section 1.2 and (B) such items are supported by financial statements or other information reasonably
satisfactory to Agent, (b) any Indebtedness (including any Delayed Draw Term Loan) incurred or assumed by any Credit Party or any Subsidiary
of a Credit Party (including the Person or property acquired) in connection with such transaction (i) shall be deemed to have been incurred
as of the first day of the applicable period and (ii) if such Indebtedness has a floating or formula rate, shall have an implied rate
of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect
with respect to such Indebtedness as of the relevant date of determination, and (c) any Restricted Payment shall be deemed to have been
paid as of the first day of the applicable period.
“Pro Forma Financial Statements” shall have the
meaning set forth in Section 5.9(d) hereof.
“Projections” shall have the meaning set forth in
Section 5.9(d) hereof.
“Property” shall mean an interest of any kind in
any property or asset, whether real, personal or mixed, and whether tangible or intangible.
“Public Company Costs” shall mean actual documented
costs relating to compliance with the Sarbanes-Oxley Act of 2002, as amended, and other actual documented expenses arising out of or incidental
to DDH Holdings’ status as a reporting company, including actual documented costs, fees and expenses (including reasonable legal,
accounting and other professional fees) relating to compliance with provisions of the Securities Act and the Exchange Act, registration
and reporting obligations, the rules of securities exchange companies with listed equity securities, directors’ compensation, fees
and expense reimbursement, shareholder meetings and reports to shareholders, indemnification and reimbursement of directors, officers
and employees in respect of liabilities relating to their serving in any such capacity, directors’ and officers’ insurance
and other executive costs, legal and other professional fees, and listing fees.
“Published Rate” shall mean the rate of interest
published each Business Day in The Wall Street Journal “Money Rates” listing under the caption “London Interbank Offered
Rates” for a three month period (or, if no such rate is published therein for any reason, then the Published Rate shall be the Eurodollar
rate for a three month period as published in another publication determined by Agent).
“Purchasing CLO” shall have the meaning set forth
in Section 15.3(d) hereof.
“Purchasing Lender” shall have the meaning set forth
in Section 15.3(c) hereof.
“Qualified IPO” shall mean the issuance of Equity
Interests by DDH Holdings in an underwritten primary public offering which had an effective date of February 10, 2022 and closed on February
15, 2022 pursuant to a registration statement filed with the Securities and Exchange Commission in accordance with the Securities Act
and pursuant to which the Reorganization Transactions occurred.
“Quality of Earnings Report” shall mean that certain
Quality of Earnings Report prepared by DoerenMayhew dated November 15, 2021 (with quality of earnings diligence analysis through August
31, 2021).
“Real Property” shall mean all of each Credit Party’s
right, title and interest in and to owned and leased premises now owned or hereafter acquired by any Credit Party.
“Real Property Collateral” shall mean all Real Property
(including any Leasehold Interests) subject to the Liens of Agent.
“Receivables” shall mean and include, as to any
Person, all of such Person’s accounts, contract rights, instruments (including those evidencing indebtedness owed to such Person
by its Affiliates), documents, chattel paper (including electronic chattel paper), general intangibles relating to accounts, drafts and
acceptances, credit card receivables and all other forms of obligations owing to such Person arising out of or in connection with the
sale or lease of Inventory or the rendition of services, all supporting obligations, guarantees and other security therefor, whether secured
or unsecured, now existing or hereafter created, and whether or not specifically sold or assigned to Agent hereunder.
“Redemption Agreement” shall mean that certain redemption
agreement dated as of November 14, 2021, by and between DDH and USDM Holdings, Inc., as amended by that certain Amendment to Redemption
Agreement dated as of February 15, 2022, as further amended by that certain Second Amendment to Redemption Agreement dated as of July
28, 2022.
“Redemption/Exchange Transactions” shall mean at
any time following the consummation of a Qualified IPO, the transactions pursuant to which DDH redeems Class A Common Units for either
(A)(1) a stock exchange payment or (2) a cash exchange payment, in each case in accordance with the Company Agreement or (B) the direct
purchase by DDH Holdings of vested Class A Common Units and paired voting stock pursuant any call right, in accordance with the Company
Agreement.
“Register” shall have the meaning set forth in Section 15.3(e)
hereof.
“Related Fund” shall mean, with respect to any Person
that is an investment fund, any other investment fund that is managed or advised by the same investment advisor as such Person or by an
Affiliate of such investment advisor.
“Related Parties” shall mean, with respect to a
particular Person: (a) each other member of such Person’s Family; (b) any Person that is directly or indirectly Controlled by such
Person and/or any one or more members of such Person’s Family; (c) any Person with respect to which such Person and/or one or more
members of such Person’s Family constitute all of the executors or trustees thereof (or in a similar capacity); and (d) any estate
planning trust or limited partnership formed or organized for the benefit of such Person or such Person’s Family so long as during
his/her lifetime, such Person remains in Control of the voting rights with respect to any actions to be taken by such trust or limited
partnership.
“Release” shall mean any release, spill, emission,
leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous
Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles
containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.
“Reorganization Transactions” shall mean the transactions
contemplated pursuant to which DDH will effect an initial public offering, including, (i) the preferred equity units held in DDH will
be redeemed, including pursuant to the Preferred A Redemption and the Preferred B Redemption, (ii) the Common Units Redemption shall be
consummated with proceeds from a Qualified IPO, (iii) the Equity Interests held in DDH will be reclassified into two classes of units,
(iv) the holders of Class A common units will contribute all of their Class A common units to DDH Holdings in exchange for Class A common
stock, (v) immediately after which the holders of Class B voting units will contribute all of their Class B voting units to DDH Holdings
in exchange for Class B common stock, (vi) immediately following such exchanges, DDH Holdings will be designated as the managing member
of DDH, and (vii) DDH Holdings shall use the net proceeds received from an initial public offering to purchase Class A common units from
DDH.
“Replacement ABL Credit Agreement” shall mean any
loan or credit agreement entered into subsequent to the date hereof which (a) makes available to Borrower a revolving credit facility
in an amount equal to $7,500,000 (or such other amount reasonably acceptable to Agent and the Required Lenders), (b) has terms which are
not in any material respect less favorable to the Borrower than the terms in effect under the ABL Credit Agreement in effect on the Closing
Date, (c) is subject to an intercreditor agreement granting Agent the same priority collateral and substantially the same rights with
respect to the Collateral as those set forth in the Intercreditor Agreement, and (d) is otherwise satisfactory to Agent and the Required
Lenders in its reasonable discretion exercised in good faith.
“Required Lenders” shall mean Lenders holding more
than fifty percent (50%) of the sum of (a) the aggregate unused Term Loan Commitment Percentages and Delayed Draw Term Loan Commitment
Percentages, and (b) the aggregate outstanding principal amount of the Closing Date Term Loan and Delayed Draw Term Loans; provided,
however, that (x) so long as Agent is also a Lender hereunder, Required Lenders shall include Agent, and (y) any portion
of unused Term Loan Commitment Percentages and Delayed Draw Term Loan Commitment Percentages (or portion of outstanding Closing Date Term
Loans or Delayed Draw Term Loans) held, or deemed held by, a Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.
“Restricted Payment” shall mean any dividend or
other distribution (whether in cash, securities or other property) with respect to any Equity Interests of DDH Holdings, DDH or any Subsidiary
thereof, or any payment (whether in cash, securities or other property and including, any cash payments to any holders of DDH’s
Preferred Equity), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any such Equity Interests or on account of any return of capital to any such Person’s stockholders, partners or
members (or the equivalent Person thereof), or any setting apart of funds or property for any of the foregoing.
“S&P” shall mean Standard & Poor’s
Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc., together with its successors.
“Sale and Leaseback Transaction” shall mean, with
respect to DDH or any Subsidiary of DDH, any arrangement, directly or indirectly, with any Person (other than a Credit Party) whereby
DDH or such Subsidiary shall sell or transfer to a third party any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially
the same purpose or purposes as the property being sold or transferred.
“Sanctioned Country” shall mean (a) a country, region,
territory or a government of a country or territory, (b) an agency of the government of a country, region or territory, or (c) an organization
directly or indirectly owned or controlled by a country, region, territory or its government, that is subject to Sanctions.
“Sanctioned Person” shall mean (a) a Person named
on the list of “Specially Designated Nationals” or any other Sanctions related list of designated Persons maintained by OFAC,
the U.S. Department of State, the United Nations Security Council, the European Union or any European Union member state, (b) any Person
operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described
in the foregoing clauses (a) or (b).
“Sanctions” shall mean economic or financial sanctions
or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC
or the U.S. Department of State, (b) the United Nations Security Council, (c) the European Union, (d) any European Union member state,
(e) Her Majesty’s Treasury of the United Kingdom or (f) any other relevant sanctions authority.
“SBA Forms” shall mean, collectively, (i) Portfolio
Financing Report (SBA Form 1031), (ii) Size Status Declaration (SBA Form 480), (iii) Assurance of Compliance for Nondiscrimination (SBA
Form 652), and (iv) the SBIC Regulatory Side Letter.
“SBIC”
shall mean a small business investment company licensed under the SBIC Act.
“SBIC Act”
shall mean the Small Business Investment Act of 1958, as amended.
“SBIC Lender”
shall mean a Lender that is an SBIC and is subject to the SBIC Act and the regulations promulgated thereunder by the SBA relating to the
small business investment company program.
“SBIC Regulatory
Side Letter” shall mean a letter agreement, dated on or after the Closing Date, made by certain of the Credit Parties in favor
of the SBIC Lender.
“SEC” shall mean the Securities and Exchange Commission
or any successor thereto.
“Second
Amendment” shall mean that certain Second Amendment and Joinder to Term Loan and Security Agreement dated as of the Second Amendment
Date among the Credit Parties, Agent and Lenders.
“Second Amendment Date” shall mean July 28, 2022.
“Second
Amendment Delayed Draw Term Loan” shall have the meaning set forth in Section 2.1(b)(i).
“Securities” shall mean any stock, shares, partnership
interests, limited liability company interests, voting trust certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement (e.g., stock appreciation rights), options, warrants, bonds, debentures, notes, or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities”
or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or
any right to subscribe to, purchase or acquire, any of the foregoing.
“Securities Act” shall mean the Securities Act of
1933, as amended.
“Securitization Transaction” shall mean any financing
or factoring or similar transaction (or series of such transactions) entered by DDH or any of its Subsidiaries pursuant to which DDH or
such Subsidiary may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future
lease payments or residuals or similar rights to payment (the “Securitization Receivables”) to a special purpose subsidiary
or affiliate (a “Securitization Subsidiary”) or any other Person.
“Security Agreement” shall mean any security agreement
or pledge agreement executed and delivered in favor of Agent pursuant to this Agreement or any Other Document, including, without limitation,
the Pledge Agreements and any other security agreement or pledge agreement delivered in connection with the Other Documents, including
any intellectual property assignments or security agreements required to be delivered by this Agreement or any Other Document, in each
case, as amended, amended and restated, modified and supplemented from time to time.
“Security Incident” shall mean any unauthorized
access, acquisition, use, disclosure, modification, deletion or destruction of Personal Information or interference with the operation
of computer systems, including software, hardware, servers, networks and interfaces used by any Credit Party or Subsidiary, both for internal
purposes and for the customers of any Credit Party or Subsidiary.
“Senior Officer” shall mean, with respect to any
Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president, vice president,
chief financial officer or treasurer of such Person.
“Solvent” or “Solvency” shall
mean, with respect to any Person as of a particular date, that on such date (a) such Person is able to pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the ordinary course of business, (b) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature
in their ordinary course, (c) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a
transaction, for which such Person’s property would constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to engage, (d) the fair value of the property of such Person
is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person and (e) the present
fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured. In computing the amount of contingent liabilities at any time, it is intended
that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured liability.
“Subordinated Debt” shall mean any Indebtedness
of any Credit Party to any Person (including any shareholder, officer, director, employee, consultant, or Affiliate of any Borrower) which
Indebtedness shall be subordinated to any Term Loan on terms and conditions satisfactory to Agent in its Permitted Discretion, including
but not limited to the Preferred Equity.
“Subordination Agreement” shall mean, collectively,
those certain subordination agreements with respect to Subordinated Debt, including but not limited to the Preferred Equity Subordination
Agreement, which shall be executed and delivered in connection therewith and as a condition thereto, each of which must be acceptable
to Agent in its sole and absolute discretion.
“Subsidiary” shall mean, with respect to any Person,
any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than fifty
percent (50%) of the Voting Stock is at the time owned or controlled, directly or indirectly, by that Person, or the accounts of which
would be consolidated with those of such Person in its consolidated financial statements in accordance with GAAP, if such statements were
prepared as of such date, or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining
the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying
share” of the former Person shall be deemed to be outstanding. Unless otherwise provided, “Subsidiary” shall refer to
a Subsidiary of a Credit Party; provided, that so long as Orange142 Canada does not conduct any business operations, have any material
assets (other than holding a bank account with a de minimis account balance), incur any material liabilities or engage in any transactions
with the Credit Parties, such entity shall not constitute a Subsidiary.
“Subsidiary Stock” shall mean all of the issued
and outstanding Equity Interests of any Subsidiary owned by a Credit Party.
“Swap Agreement” shall mean (a) any and all rate
swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward
bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, cap transactions, floor transactions, collar transactions, spot contracts, or
any other similar transactions or any combination of any of the foregoing (including any options or warrants to enter into any of the
foregoing), whether or not any such transaction is governed by, or otherwise subject to, any master agreement or any netting agreement,
and (b) any and all transactions or arrangements of any kind, and the related confirmations, which are subject to the terms and conditions
of, or governed by, any form of master agreement (or similar documentation) published from time to time by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such agreement
or documentation, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities
under any Master Agreement.
“Swap Termination Value” shall mean, in respect
of any one or more Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such
Swap Agreements, (a) for any date on or after the date such Swap 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 Swap Agreements, as determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Agreements (which may include Agent, any Lender or any Affiliate of Agent or
any Lender).
“Synthetic Lease” shall mean a lease transaction
under which the parties intend that (a) the lease will be treated as an “operating lease” by the lessee pursuant to Statement
of Financial Accounting Standards No. 13, as amended and (b) the lessee will be entitled to various tax and other benefits ordinarily
available to owners (as opposed to lessees) of like property.
“Tax” or “Taxes” (and, with correlative
meaning, “Taxable” or “Taxing”) shall mean all present or future taxes, levies, imposts, duties,
deductions, withholdings (including backup withholdings), assessments, fees or other charges imposed by any Governmental Body, including
any interest, additions to tax or penalties applicable thereto.
“Tax Distribution” shall mean the Taxes assumed
to be payable by a direct or indirect shareholder or member of any Credit Party as a result of the allocation of income of such Credit
Party to such shareholder or member due to such Credit Party’s status for federal, state or local Tax purposes as a partnership,
subchapter S corporation or any other entity that is a pass-through entity or disregarded entity for federal, state and local Tax purposes
(as applicable) but only for so long as such Credit Party continues to be so treated as a pass-through entity or disregarded entity for
federal, state and local tax purposes, as evidenced and substantiated by the tax returns filed by such Credit Party (as applicable), with
such Taxes assumed to be payable by such shareholder or member of any Credit Party being calculated for all members or shareholders, as
applicable, at the highest combined marginal federal, state and local Tax rate applicable to any Credit Party that is allocated to such
member or shareholder of the Credit Party, taking into consideration (A) the character and nature of such income or gain (i.e., whether
such income is subject to Tax at capital gains rates, ordinary income rates or any special rates), (B) losses previously allocated to
each such member or shareholder, as applicable, by such Credit Party to the extent such losses have not previously been applied to reduce
the Tax Distribution hereunder, provided that capital losses and capital loss carry forwards shall be taken into account only to the extent
they are currently usable to offset income or gain allocated by such Credit Party to a member or shareholder, as applicable; and provided,
further, that to the extent that any losses allocated by such Credit Party result in a payback by a member to such Credit Party of previous
Tax Distributions pursuant to Section 7.7 hereof, then such losses shall not be taken into account for purposes of determining the Tax
Distribution hereunder, and (C) the deduction under Section 199A of the Internal Revenue Code in respect of the taxable income of the
Credit Parties, to the extent such deduction may be currently utilized by such shareholder or member.
“Tax Receivable Agreement” shall mean that certain
tax receivable agreement to be entered into by and among DDH Holdings, DDH, and Direct Digital Management, LLC.
“Term” shall have the meaning set forth in Section 13.1
hereof.
“Term Loan Commitment Percentage” of any Lender
shall mean the percentage set forth on Schedule 1.2(b) as its “Term Loan Commitment Percentage,” as the same may be
adjusted upon any assignment by a Lender pursuant to Section 15.3(c) or 15.3(d).
“Term Loan Rate” shall mean an interest rate per
annum equal to the LIBOR Rate plus the Applicable Margin less any Applicable Impact Discount.
“Term Loans” shall mean, collectively, the Closing
Date Term Loan and the Delayed Draw Term Loan.
“Term Notes” shall mean, collectively, the Closing
Date Term Note and the Delayed Draw Term Loan Notes.
“Title Policy” shall have the meaning set forth
in Section 6.8(b)(iii) hereof.
“Trading with the Enemy Act” shall mean the foreign
assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any enabling legislation
or executive order relating thereto.
“Transfer Supplement” shall mean a document in the
form of Exhibit B hereto, properly completed and otherwise in form and substance satisfactory to Agent by which the Purchasing
Lender purchases and assumes a portion of (i) the obligation of Lenders to make Advances under this Agreement or (ii) the right and option
of Lenders to make Delayed Draw Term Loans under this Agreement.
“Transferee” shall have the meaning set forth in
Section 15.3(d) hereof.
“Unfinanced Capital Expenditures” shall mean, for
any specified Persons, all Consolidated Capital Expenditures of such Persons other than those made utilizing financing provided by the
applicable seller or third party lenders (including (x) by any Lender to the extent that the Indebtedness arising with respect to such
financing does not constitute Advances or Obligations, and (y) expenditures made with advance under the ABL Credit Agreement).
“Uniform Commercial Code” or “UCC” shall
have the meaning set forth in Section 1.3 hereof.
“United States” and “U.S.” shall
mean the United States of America.
“Unrestricted Cash” shall mean that portion of the
Credit Parties’ cash that is (a) free and clear of all Liens, other than Liens in favor of Agent and ABL Lender pursuant to
the ABL Credit Agreement, (b) maintained by the Credit Parties in one or more deposit accounts that are located in the United States
and are subject to Control Agreements and (c) not listed as “restricted” on the Credit Parties’ balance sheet.
“USA PATRIOT Act” shall mean the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as the same has been,
or shall hereafter be, renewed, extended, amended or replaced.
“Voting Stock” shall mean, with respect to any Person,
Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person, even though the right so to vote has been suspended by
the happening of such a contingency.
“Warrant
Tender Offer” shall mean DDH Holdings offer to purchase for cash any and all of its outstanding warrants at a price of $1.20 per
warrant as set forth in the combined Tender Offer Statement and Rule 13e-3 Transaction Statement on Schedule TO, including the Second
Amended and Restated Offer to Purchase and Consent Solicitation dated September 21, 2023, originally filed with the Securities and Exchange
Commission on August 29, 2023, as amended on September 14, 2023, September 21, 2023 and September 29, 2023.
1.3 Uniform
Commercial Code Terms. All terms used herein and defined in the Uniform Commercial Code as adopted in the State of New York from time
to time (the “Uniform Commercial Code”) shall have the meaning given therein unless otherwise defined herein. Without limiting
the foregoing, the terms “accessions”, “accounts”, “certificates of title”, “chattel paper”,
“commercial tort claims”, “commodities accounts”, “commodities contracts”, “documents”,
“deposit accounts”, “electronic chattel paper”, “equipment”, “fixtures”, “general
intangibles”, “goods”, “instruments”, “inventory”, “investment property”, “letter-of-credit
rights”, “payment intangibles”, “proceeds”, “securities”, “securities accounts”,
“securities entitlements”, “supporting obligations” and “software”, as and when used in the description
of Collateral (and related underlying definitions) have the meanings given to such terms in Articles 8 or 9 of the Uniform Commercial
Code. To the extent the definition of any category or type of collateral is expanded by any amendment, modification or revision to the
Uniform Commercial Code, such expanded definition will apply automatically as of the date of such amendment, modification or revision.
1.4 Certain
Matters of Construction.
(a) The
terms “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement
as a whole and not to any particular section, paragraph or subdivision. All references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement. Any pronoun used shall be deemed
to cover all genders. Wherever appropriate in the context, terms used herein in the singular also include the plural and vice versa. All
references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations. Unless
otherwise provided, all references to any instruments or agreements to which Agent is a party, including references to any of the Other
Documents, shall include any and all modifications or amendments thereto and any and all extensions, renewals or restatements thereof.
All references herein to the time of day shall mean the time in New York, New York. Unless otherwise provided, all financial calculations
shall be determined on a first-in-first-out basis. Whenever the words “including” or “include” shall be used,
such words shall be understood to mean “including, without limitation” or “include, without limitation”. A Default
or Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default
occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default,
is remedied within any grace period expressly provided for in this Agreement; and an Event of Default shall “continue” or
be “continuing” until such Event of Default has been waived in writing by the Required Lenders. Any Lien referred to in this
Agreement or any of the Other Documents as having been created in favor of Agent, any agreement entered into by Agent pursuant to this
Agreement or any of the Other Documents, any payment made by or to or funds received by Agent pursuant to or as contemplated by this Agreement
or any of the Other Documents, or any act taken or omitted to be taken by Agent, shall, unless otherwise expressly provided, be created,
entered into, made or received, or taken or omitted, for the benefit or account of Agent and Lenders. Wherever the phrase “to the
best of each Credit Party’s knowledge” or words of similar import relating to the knowledge or the awareness of a Credit Party
are used in this Agreement or Other Documents, such phrase shall mean and refer to (i) the actual knowledge of a Senior Officer of
a Credit Party or (ii) the knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent
performance of his or her duties, including the making of such reasonably specific inquiries as may be necessary of the employees or agents
of a Credit Party and a good faith attempt to ascertain the existence or accuracy of the matter to which such phrase relates. All covenants
hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or otherwise within the limitations of, another covenant shall not avoid the occurrence
of a default if such action is taken or condition exists. In addition, all representations and warranties hereunder shall be given independent
effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation
or warranty concerning the same or similar subject matter is correct or is not breached will not affect the incorrectness of a breach
of a representation or warranty hereunder.
1.5 Early
Opt-In Election. Agent notified Borrower on June 1, 2023 that pursuant to Section 3.8 hereof, Agent and the Credit Parties have jointly
elected to trigger a fallback from USD LIBOR to Term SOFR. Pursuant thereto, effective May 31, 2023 (the “Replacement Date”),
Term SOFR replaced LIBOR for all purposes under this Agreement and the Other Documents in respect of such Benchmark setting without any
amendment to, or further action or consent of any other party to, the Loan Agreement or any Other Document. On the Replacement Date, the
Benchmark Replacement shall mean the sum of (x) Term SOFR and (y) 0.15% (15 basis points) for an Available Tenor of three-months’
duration. In connection with the implementation and administration of Term SOFR, Agent reserves the right to make Benchmark Replacement
Conforming Changes from time to time in accordance with this Agreement.
2.1 Term
Loans.
(a) Closing
Date Term Loan.
(i) Subject
to the terms and conditions of this Agreement, each Lender, severally and not jointly, will make a term loan to Borrowers in the amount
equal to such Lender’s Term Loan Commitment Percentage of the Closing Date Term Loan Amount (collectively, the “Closing
Date Term Loan”). Subject to acceleration upon the occurrence and during the continuance of an Event of Default under this Agreement
or termination of this Agreement, and subject to the application of any prepayments in accordance with the terms hereof, the Closing Date
Term Loan shall be, with respect to principal, due and payable in quarterly installments on the last Business Day of each fiscal quarter:
(x) commencing January 1, 2022 (with the first payment due March 31, 2022) through and including December 31, 2023, in an amount equal
to $137,500.00 each, and (y) at all times thereafter, in an amount equal to $275,000.00 each, with a final installment due at the end
of the Term in an amount equal to the entire unpaid principal balance thereof. The Closing Date Term Loan shall be evidenced by one or
more secured promissory notes (collectively, the “Closing Date Term Note”) in substantially the form attached hereto
as Exhibit F-1.
(ii) Borrowing
Agent may, from time to time, prepay the principal amount owing under the Closing Date Term Loan, so long as: (A) Borrowing Agent shall
have provided at least three (3) Business Days prior written notice not later than 1:00 p.m. (New York City time) to Agent of such prepayment,
specifying the amount of such prepayment (which notice, once given, shall be irrevocable); (B) each such prepayment is in a minimum amount
of $500,000, or an increment of $250,000 in excess thereof and (C) such prepayment shall be accompanied by the payment of any prepayment
fee set forth in the Fee Letter. Such prepayments shall be applied to the principal installments due on the Closing Date Term Loan on
a pro rata basis; provided that any such prepayments shall be applied on a pro rata basis to the Closing Date Term
Loan and the then outstanding portion of the Delayed Draw Term Loans.
(b) Delayed
Draw Term Loans.
(i) Pursuant
to the Second Amendment, Lenders made a term loan to Borrower on the Second Amendment Date in an aggregate amount equal to $4,260,000
(the “Second Amendment Delayed Draw Term Loan”) in accordance with each Lender’s Delayed Draw Term Loan Commitment Percentage,
the proceeds of which were applied in accordance with the Second Amendment. On the Fourth Amendment Date and pursuant to the Fourth Amendment,
each Lender will make a term loan to Borrower equal to such Lender’s Delayed Draw Term Loan Commitment Percentage of $3,587,274.03
(the “Fourth Amendment Delayed Draw Term Loan”, together with the Second Amendment Delayed Draw Term Loan, the “Delayed
Draw Term Loans”). Notwithstanding anything to the contrary contained herein, after giving effect to the Fourth Amendment Delayed
Draw Term Loan made on the Fourth Amendment Date, Borrower shall not be permitted to request, and no
Lender shall be obligated to make, any additional term loans or Delayed Draw Term Loan.
(ii) [Reserved].
(i) During
the period commencing on the Closing Date and ending on the third anniversary of the Closing Date (such period the “Delayed
Draw Term Loan Availability Period”), Borrowing Agent may, from time to time, request additional term loans
under this Agreement (each an “Delayed Draw Term Loan”), provided that the aggregate
maximum amount of all Delayed Draw Term Loans made under this Agreement shall not exceed the Delayed Draw Term Loan Maximum Amount.
(ii) Requests
for Delayed Draw Term Loans shall be made in writing, duly executed by Borrowing Agent to Agent (each such request an “Delayed
Draw Term Loan Request”), no less than ten (10) Business Days prior to the date such Delayed Draw Term Loan
is requested to be funded, specifying (x) the amount of such Delayed Draw Term Loan requested, (y) the date on which such Delayed Draw
Term Loan is requested to be funded and (z) the proposed use of proceeds of such Delayed Draw Term Loan, which must be a Permitted Acquisition,
including a reasonably detailed description of such Permitted Acquisitions and such documents and information regarding such Permitted
Acquisition as Lenders may request.
(iii) Subject
to the terms and conditions of this Agreement, including satisfaction of the conditions set forth in Section 8.2 hereof, each Lender
severally and not jointly, shall make a, on the Fourth Amendment
Date, the Fourth Amendment Delayed Draw Term Loan to Borrowers in the sum
equal to such Lender’s Delayed Draw Term Loan Commitment Percentage of the Fourth Amendment Delayed
Draw Term Loan Amount, each such Delayed Draw Term Loan to be in an aggregate amount not less than $250,000
(or, if less, the remaining available on the unfunded Delayed Draw Term Loan Maximum Amount) on the
applicable Delayed Draw Term Loan Funding Date. Without limiting the discretion of each Lender under this
Section 2.1(b)(iii), each Delayed Draw Term Loan shall be advanced
on the applicable Delayed Draw Term Loan Funding Date..
(iv) Subject
to acceleration upon the occurrence and during the continuance of an Event of Default under this Agreement or termination of this Agreement,
and subject to the application of any prepayments in accordance with the terms hereof, each Delayed Draw Term Loan shall be, with respect
to principal, payable in quarterly installments in an amount equal to (x) commencing January 1, 2022 through and including December 31,
2023, six hundred twenty-five thousandths of one percent (0.625%) of the amounts of the
applicable Delayed Draw Term Loan, and (y) at all times thereafter, one and one quarter of one percent (1.25%) of the amounts
of the applicable Delayed Draw Term Loan, commencing on the last day of the first full Fiscal Quarter ending after the applicable Delayed
Draw Term Loan Funding Date of such Delayed Draw Term Loan, with a final installment due at the end of the Term in an amount equal to
the entire unpaid principal balance thereof. Notwithstanding anything to the contrary set forth above, the
Second Amendment Delayed Draw Term Loan shall be, with respect to principal, paid in accordance with the Second Amendment and with respect
to the Fourth Amendment Delayed Draw Term Loan, the first installment of principal shall be due on December 31, 2023 Each Delayed
Draw Term Loan shall be evidenced by one or more secured promissory notes (collectively, the “Delayed Draw Term Loan Note”)
in substantially the form attached hereto as Exhibit F-2.
(v) Borrowing
Agent may, from time to time, prepay the principal amount owing under each Delayed Draw Term Loan, so long as: (A) Borrowing Agent shall
have provided at least three (3) Business Days prior written notice not later than 11:00 a.m. (New York City time) to Agent of such prepayment,
specifying the amount of such prepayment (which notice, once given, shall be irrevocable); (B) each such prepayment is in a minimum
amount of $500,000, or an increment of $250,000 in excess thereof and (C) such prepayment shall be accompanied by the payment of any prepayment
fee set forth in the Fee Letter. Such prepayments shall be applied to the principal installments due on such Delayed Draw Term Loan on
a pro rata basis; provided that any such prepayments shall be applied on a pro rata basis to the Closing Date Term Loan
and the then outstanding portion of the Delayed Draw Term Loans.
2.2 Repayment
of Advances.
(a) The
Term Loans shall be due and payable as provided in Section 2.1 and in the Term Notes, subject to mandatory prepayments as herein
provided. Notwithstanding the foregoing, all Advances shall be subject to earlier repayment upon (i) acceleration upon the occurrence
and during the continuance of an Event of Default under this Agreement or (ii) termination of this Agreement.
(b) Each
Borrower recognizes that the amounts evidenced by checks, notes, drafts or any other items of payment relating to and/or proceeds of Collateral
may not be collectible by Agent on the date received. In consideration of Agent’s agreement to conditionally credit Borrowers’
Account as of the next Business Day following Agent’s receipt of those items of payment, each Borrower agrees that, in computing
the charges under this Agreement, all items of payment shall be deemed applied by Agent on account of the Obligations (i) on the
Business Day following Agent’s receipt of such payments via wire transfer or electronic depository check or (ii) in the case
of payments received by Agent in any other form, the Business Day such payment constitutes good funds in Agent’s account. Agent
is not, however, required to credit Borrowers’ Account for the amount of any item of payment which is unsatisfactory to Agent in
its Permitted Discretion and Agent may charge Borrowers’ Account for the amount of any item of payment which is returned to Agent
unpaid.
(c) All
payments of principal, interest and other amounts payable hereunder, or under any of the Other Documents shall be made to Agent via wire
transfer or electronic depository check not later than 1:00 p.m. (New York City time) on the due date therefor in lawful money of the
United States of America in federal funds or other funds immediately available to Agent.
(d) Borrowers
shall, jointly and severally, pay principal, interest, and all other amounts payable hereunder, or under any related agreement, without
any deduction whatsoever, including, but not limited to, any deduction for any setoff or counterclaim.
(e) Any
amount prepaid or repaid in respect of Term Loans may not be reborrowed.
2.3 [Reserved].
2.4 Statement
of Account. Agent shall maintain, in accordance with its customary procedures, a loan account (“Borrowers’ Account”)
in the name of the Borrowers in which shall be recorded the date and amount of each Advance made by Lenders, the Lender(s) making such
Advance and the date and amount of each payment in respect thereof; provided, however, the failure by Agent to record the
date and amount of any Advance shall not adversely affect Agent or any Lender. The records of Agent with respect to the loan account shall
be prima facie evidence absent manifest error of the amounts of Advances and other charges thereto and of payments applicable thereto.
2.5 Additional
Payments. Any sums expended by Agent or any Lender due to any Borrower’s failure to perform or comply with its obligations under
this Agreement or any Other Document including the Borrowers’ obligations under Sections 4.2, 4.4, 4.12,
4.13 and 4.14 hereof, may be charged to Borrowers’ Account and added to the Obligations.
2.6 Manner
of Borrowing and Payment.
(a) Each
payment (including each prepayment) by Borrowers on account of the principal of and interest on the Term Loans shall be applied to the
Term Loans pro rata according to the Term Loan Commitment Percentages of Lenders. Except as expressly provided herein, all payments
(including prepayments) to be made by Borrowers on account of principal, interest and fees shall be made without set off or counterclaim
and shall be made to Agent on behalf of the Lenders, in each case, via wire transfer or electronic depository check on or prior to 1:00
p.m. (New York City time) in Dollars and in immediately available funds.
(b) Except
as otherwise expressly provided in this Agreement with respect to any such specified payment required to be made by Borrowers hereunder
or with respect to any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Advances
to any assignee or participant as contemplated under Section 15.3 of this Agreement, if any Lender or Participant (a “benefited
Lender”) shall at any time receive any payment of all or part of its Advances, or interest thereon, or receive any Collateral
in respect thereof (whether voluntarily or involuntarily or, if consented to by Agent, by set-off) in a greater proportion than any such
payment to and Collateral received by any other Lender, if any, in respect of such other Lender’s Advances, or interest thereon,
and such greater proportionate payment or receipt of Collateral is not expressly permitted hereunder, such benefited Lender shall purchase
for cash from the other Lenders a participation in such portion of each such other Lender’s Advances, or shall provide such other
Lender with the benefits of any such Collateral, or the proceeds thereof, as shall be necessary to cause such benefited 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 benefited Lender, such purchase shall
be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Each Lender so purchasing
a portion of another Lender’s Advances may exercise all rights of payment (including, if consented to by Agent, rights of set-off)
with respect to such portion as fully as if such Lender were the direct holder of such portion.
2.7 Mandatory
Prepayments.
(a) Asset
Dispositions and Involuntary Dispositions. The Credit Parties shall prepay the Obligations in an amount equal to one hundred percent
(100%) of the Net Cash Proceeds received from any Asset Sale (other than Asset Sales permitted pursuant to Section 7.1(b)) or Involuntary
Disposition by DDH or any of its Subsidiaries on the Business Day following receipt of Net Cash Proceeds required to be prepaid pursuant
to the provisions hereof; provided that such prepayment shall not be required to be made to the extent Borrowing Agent delivers
to Agent a certificate stating that the applicable Credit Party intends to reinvest such Net Cash Proceeds in replacement assets (excluding
Consolidated Current Assets) that are useful in the business of DDH or any of its Subsidiaries within 180 days after the date of such
Asset Sale or Involuntary Disposition and such Net Cash Proceeds are so reinvested during such period, provided, further
that in the case of an Involuntary Disposition, if a definitive agreement to so reinvest has been executed within such 180-day period,
then such reinvestment shall have been consummated within 180 days after the date such definitive agreement was executed; it being understood
that any such Net Cash Proceeds not so reinvested during such periods, shall be used to prepay the Obligations immediately following the
expiration of such respective period. Until the date of payment, such Net Cash Proceeds required to be prepaid shall be held in trust
for Agent and, upon such prepayment, shall be applied to the Term Loans in the inverse order of maturities thereof (x) in respect of the
Closing Date Term Loan and the Delayed Draw Term Loans, and (y) to all remaining principal installments thereof until paid in full. The
foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof.
(b) [Reserved].
(c) Equity
Proceeds. The Credit Parties shall prepay the Obligations in an amount equal to one hundred percent (100%) of the Net Cash Proceeds
from any Equity Transactions (other than a Qualified IPO and Equity Transactions used solely to consummate Permitted Acquisitions and
completed substantially contemporaneously therewith) on the Business Day following receipt thereof unless waived by Agent in its sole
and absolute discretion. Until the date of payment, such Net Cash Proceeds required to be prepaid shall be held in trust for Agent. The
foregoing shall not be deemed to be implied consent to any such issuance otherwise prohibited by the terms and conditions hereof. Such
repayments shall be applied to the outstanding principal installments of the Term Loans in the inverse order of maturities thereof (x)
in respect of the Closing Date Term Loan and the Delayed Draw Term Loans, and (y) to all remaining principal installments thereof until
paid in full.
(d) Indebtedness
Proceeds. The Credit Parties shall prepay the Obligations in an amount equal to one hundred percent (100%) of the Net Cash Proceeds
from any Debt Transactions on the Business Day following receipt thereof. Until the date of payment, such proceeds shall be held in trust
for Agent. The foregoing shall not be deemed to be implied consent to any such incurrence otherwise prohibited by the terms and conditions
hereof. Such repayments shall be applied to the outstanding principal installments of the Term Loans in the inverse order of maturities
thereof (x) in respect of the Closing Date Term Loan and the Delayed Draw Term Loans, and (y) to all remaining principal installments
thereof until paid in full.
(e) Consolidated
Excess Cash Flow. The Credit Parties shall prepay the Obligations, within thirty (30) days of delivery of each annual Compliance Certificate
delivered under Section 9.7, commencing with the Compliance Certificate delivered for the Fiscal Year ending December 31, 2022,
in an amount equal to (i) so long as no Event of Default has occurred and is continuing, 50% of Consolidated Excess Cash Flow and (ii)
following the occurrence and during the continuance of an Event of Default, 100% of Consolidated Excess Cash Flow for the immediately
preceding Fiscal Year unless waived in writing by Agent. The prepayments specified in this Section 2.7(e) shall be applied
to the outstanding principal installments of the Term Loans in the inverse order of maturities thereof (x) in respect of the Closing Date
Term Loan and the Delayed Draw Term Loans, and (y) to all remaining principal installments thereof until paid in full. In the event that
the Compliance Certificate required by Section 9.7 is not delivered on or before the due date, then a calculation based upon estimated
amounts shall be made by Agent upon which calculation Borrowers shall make the prepayments required by this Section 2.7(e),
subject to adjustment when the applicable financial statements and Compliance Certificate are delivered to Agent as required hereby. Such
calculations made by Agent and/or acceptance of any related estimated prepayments shall not be deemed a waiver of any rights Agent or
Lenders may have, whether as a result of the failure by Borrowers to timely deliver such financial statements or otherwise.
(f) Extraordinary
Receipts. When any Credit Party or Subsidiary thereof receives the cash proceeds of any Extraordinary Receipt, unless such Credit
Party or Subsidiary reinvests such proceeds in the same manner that it would be entitled to under Section 2.7(a), the Credit Parties
shall repay the Term Loans in an amount equal to 100% of the Net Cash Proceeds of such Extraordinary Receipts, such prepayments to be
made promptly but in no event more than five (5) Business Days following receipt of such Net Cash Proceeds, and until the date of payment,
such proceeds shall be held in trust for Agent. Such repayments shall be applied to the outstanding principal installments of the Term
Loans in the inverse order of maturities thereof (x) in respect of the Closing Date Term Loan and the Delayed Draw Term Loans, and (y)
to all remaining principal installments thereof until paid in full.
(g) ABL
Loan Documents. The terms of this Section 2.7 are subject to the terms and conditions of the Intercreditor Agreement. To the
extent that any mandatory prepayment pursuant to the ABL Loan Documents is, contemporaneously with the event giving rise to such prepayment,
required and permitted to be paid to the ABL Obligations pursuant to the Intercreditor Agreement, then the amount of such payment required
pursuant to the ABL Loan Documents at such time shall reduce the amount of any mandatory prepayment owing pursuant to this Section
2.7 on a dollar for dollar basis or as otherwise required pursuant to the Intercreditor Agreement.
2.8 Use
of Proceeds.
(a) Borrowers
shall use the proceeds of (i) the Closing Date Term Loans to (A) fund the Preferred A Redemption, (B) refinance certain Indebtedness
of the Borrowers existing immediately prior to the Closing Date, (C) pay fees and expenses associated with the Closing Date Transactions
and (D) provide for their general corporate needs and working capital requirements, including, funding for creation and retention of direct
and indirect jobs and/or opening of new revenue-generating locations, and (ii) the Second Amendment Delayed
Draw Term Loans (if any) to (A) fund Permitted Acquisitions and (B) pay fees and expenses associated
with theas set forth in the Second Amendment and Fourth Amendment Delayed Draw
Term Loans and such Permitted Acquisitions.Loan to make
payments due in connection with the consummation of the Warrant Tender Offer in accordance with its terms (not to exceed approximately
$3,021,103.55) and fees and expenses incurred in connection therewith.
(b) Without
limiting the generality of Section 2.8(a) above, neither any Borrower, any other Credit Party, nor any other Person which
may in the future become a Credit Party, intends to use nor shall they use any portion of the proceeds of the Advances, directly or indirectly,
for any purpose in violation of the Trading with the Enemy Act or to purchase or carry, or to reduce or refinance any Indebtedness incurred
to purchase or carry, any margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve System) or for any
related purpose governed by Regulations T, U or X of the Board of Governors of the Federal Reserve System.
2.9 Defaulting
Lender.
(a) Notwithstanding
anything to the contrary contained herein, in the event any Lender (i) has refused (which refusal constitutes a breach by such Lender
of its obligations under this Agreement) to make available its portion of any Advance or (ii) notifies either Agent or Borrowing
Agent that it does not intend to make available its portion of any Advance and such actual refusal would constitute a breach by such Lender
of its obligations under this Agreement (each, a “Lender Default”), all rights and obligations hereunder of such Lender
(a “Defaulting Lender”) as to which a Lender Default is in effect and of the other parties hereto shall be modified
to the extent of the express provisions of this Section 2.9 while such Lender Default remains in effect.
(b) Advances
shall be incurred pro rata from Lenders (the “Non-Defaulting Lenders”) which are not Defaulting Lenders based
on their respective applicable Commitment Percentages, and no Commitment Percentage of any Lender or any pro rata share of any
Advances required to be advanced by any Lender shall be increased as a result of such Lender Default. Amounts received in respect of principal
of any type of Advances shall be applied to reduce the applicable Advances of each Lender (other than any Defaulting Lender) pro rata
based on the aggregate of the outstanding Advances of that type of all Lenders at the time of such application; provided, that,
Agent shall not be obligated to transfer to a Defaulting Lender any payments received by Agent for the Defaulting Lender’s benefit,
nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts
payable to a Defaulting Lender shall instead be paid to or retained by Agent and, if so paid or retained, shall be deemed to have been
paid by Borrowers for all purposes hereunder. Agent may hold and, in its discretion, re-lend to Borrowers the amount of such payments
received or retained by it for the account of such Defaulting Lender.
(c) A
Defaulting Lender shall not be entitled to give instructions to Agent or to approve, disapprove, consent to or vote on any matters relating
to this Agreement and the Other Documents. All amendments, waivers and other modifications of this Agreement and the Other Documents may
be made without regard to a Defaulting Lender and, solely for purposes of any determination of “Required Lenders” in accordance
with the definition thereof, a Defaulting Lender shall be deemed not to be a Lender and not to have either Advances outstanding or a Commitment
Percentage.
(d) Other
than as expressly set forth in this Section 2.9, the rights and obligations of a Defaulting Lender (including the obligation
to indemnify Agent) and the other parties hereto shall remain unchanged. Nothing in this Section 2.9 shall be deemed to release
any Defaulting Lender from its obligations under this Agreement and the Other Documents, shall alter such obligations, shall operate as
a waiver of any default by such Defaulting Lender hereunder, or shall prejudice any rights which any Borrower, Agent or any Lender may
have against any Defaulting Lender as a result of any default by such Defaulting Lender hereunder.
(e) In
the event a Defaulting Lender retroactively cures to the satisfaction of Agent the breach which caused a Lender to become a Defaulting
Lender, such Defaulting Lender shall no longer be a Defaulting Lender and shall be treated as a Lender under this Agreement.
2.10 Joint
and Several Liability, Waivers, etc. Each Borrower hereby agrees as follows.
(a) Each
Borrower is accepting joint and several liability hereunder and under the Other Documents in consideration of the financial accommodations
to be provided by Agent and the Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each Borrower and in
consideration of the undertakings of the other Borrowers to accept joint and several liability for the Obligations.
(b) Each
Borrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint
and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations
arising under this Section 2.10), it being the intention of each Borrower and the parties hereto that all the Obligations
shall be the joint and several obligations of each Borrower without preferences or distinction among them.
(c) If
and to the extent that any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform
any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect
to, or perform, such Obligation.
(d) The
Obligations of each Borrower under the provisions of this Section 2.10 constitute the absolute and unconditional, full recourse
Obligations of each Borrower enforceable against each Borrower to the full extent of its properties and assets, irrespective of the validity,
regularity or enforceability of this Agreement or any other circumstances whatsoever.
(e) Except
as otherwise expressly provided in this Agreement, to the fullest extent permitted by Applicable Law, each Borrower hereby waives notice
of acceptance of its joint and several liability, notice of any Advances issued under or pursuant to this Agreement, notice of the occurrence
of any Default, Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted
by Agent or Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally,
to the extent permitted by Applicable Law, all demands, notices and other formalities of every kind in connection with this Agreement
(except as otherwise provided in this Agreement). Each Borrower hereby assents to, and waives, to the fullest extent permitted by Applicable
Law, notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of
any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Agent or
Lenders at any time or times in respect of any default by any Borrower in the performance or satisfaction of any term, covenant, condition
or provision of this Agreement, any and all other indulgences whatsoever by Agent or Lenders in respect of any of the Obligations, and
the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or
the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower
assents to any other action or delay in acting or failure to act on the part of Agent or any Lender with respect to the failure by any
Borrower to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert
any right or to pursue any remedy or to comply fully with Applicable Laws or regulations thereunder, which might, but for the provisions
of this Section 2.10 afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any
of its Obligations under this Section 2.10, it being the intention of each Borrower that, so long as any of the Obligations
hereunder remain unsatisfied, the Obligations of each Borrower under this Section 2.10 shall not be discharged except by performance
and then only to the extent of such performance. The Obligations of each Borrower under this Section 2.10 shall not be diminished
or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect
to any Borrower or Agent or any Lender.
(f) Each
Borrower represents and warrants to Agent and Lenders that such Borrower is currently informed of the financial condition of the other
Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations.
Each Borrower further represents and warrants to Agent and Lenders that such Borrower has read and understands the terms and conditions
of this Agreement and the Other Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the other
Borrowers’ financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon
the risk of nonpayment or nonperformance of the Obligations.
(g) Each
Borrower waives, to the maximum extent permitted by law, all rights and defenses arising out of an election of remedies by Agent or any
Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation,
has destroyed Agent’s or such Lender’s rights of subrogation and reimbursement against any Borrower by the operation of Section 580(d)
of the California Code of Civil Procedure, any comparable statute, or otherwise.
(h) [Reserved].
(i) The
provisions of this Section 2.10 are made for the benefit of Agent, Lenders and their respective successors and assigns, and
may be enforced by it or them from time to time against any Borrower as often as occasion therefor may arise and without requirement on
the part of Agent, any Lender, any of their respective successors or assigns first to marshal any of its or their claims or to exercise
any of its or their rights against any Borrower or to exhaust any remedies available to it or them against any Borrower or to resort to
any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this
Section 2.10 shall remain in effect until all of the Obligations shall have been paid in full in accordance with the terms
of this Agreement. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise
be restored or returned by Agent or any Lender upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions
of this Section 2.10 will forthwith be reinstated in effect, as though such payment had not been made.
(j) Until
the Obligations (other than Inchoate Obligations) have been paid in full in cash in accordance with the terms hereof, all of the commitments
of the Lenders hereunder have been terminated and this Agreement has been terminated, each Borrower hereby agrees that it will not enforce
any of its rights of contribution or subrogation against any other Borrower with respect to any liability incurred by it hereunder or
under any of the Other Documents, any payments made by it to Agent or any Lender with respect to any of the Obligations or any collateral
security therefor until such time as all of the Obligations (other than Inchoate Obligations) have been paid in full in cash. Any claim
which any Borrower may have against any other Borrower with respect to any payments to Agent or any Lender hereunder or under any Other
Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations
arising hereunder or thereunder, to the prior payment in full in cash of the Obligations (other than Inchoate Obligations) and, in the
event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction
relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash
before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower
therefor.
(k) Each
Borrower hereby agrees that, after the occurrence and during the continuance of any Event of Default, the payment of any amounts due with
respect to the indebtedness or other obligations owing by any Borrower to any other Borrower is hereby subordinated to the prior payment
in full in cash of the Obligations (other than Inchoate Obligations) in accordance with the terms of this Agreement. Each Borrower hereby
agrees that after the occurrence and during the continuance of any Event of Default, such Borrower will not demand, sue for or otherwise
attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations (other than Inchoate Obligations)
shall have been paid in full in cash. If, notwithstanding the foregoing sentence, any Borrower shall collect, enforce or receive any amounts
in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for Agent, and such
Borrower shall deliver any such amounts to Agent for application to the Obligations in accordance with the terms of this Agreement.
3.1 Interest.
Interest on Advances shall be payable in arrears on the last Business Day of each month. Interest charges shall be computed on the actual
principal amount of Advances outstanding during the monthly period, at a rate per annum equal to the applicable Term Loan Rate. Whenever,
subsequent to the date of this Agreement, the LIBOR Rate is increased or decreased, the Term Loan Rate shall be similarly changed without
notice or demand of any kind by an amount equal to the amount of such change in the LIBOR Rate during the time such change or changes
remain in effect. Upon and after the occurrence of an Event of Default, and during the continuation thereof, at the option of Agent or
at the direction of Required Lenders, the Obligations shall bear interest at the Term Loan Rate plus two (2%) percent per annum
(the “Default Rate”).
3.2 [Reserved].
3.3 [Reserved].
3.4 Fee
Letter. Borrowers shall pay the amounts required to be paid in the Fee Letter in the manner and at the times required by the Fee Letter.
3.5 Computation
of Interest and Fees. Interest hereunder shall be computed on the basis of a 360 day year and for the actual number of days elapsed.
If any payment to be made hereunder becomes due and payable on a day other than a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and interest thereon shall be payable at the applicable Term Loan Rate during such extension, unless
such next succeeding Business Day would fall in the next calendar month, in which case the due date shall be on the immediately preceding
Business Day.
3.6 Maximum
Charges. In no event whatsoever shall interest and other charges charged hereunder exceed the highest rate permissible under law.
In the event interest and other charges as computed hereunder would otherwise exceed the highest rate permitted under law, such excess
amount shall be first applied to any unpaid principal balance owed by Borrowers, and if the then remaining excess amount is greater than
the previously unpaid principal balance, Lenders shall promptly refund such excess amount to Borrowing Agent and the provisions hereof
shall be deemed amended to provide for such permissible rate.
3.7 Increased
Costs. In the event that any Applicable Law or any change therein or in the interpretation or application thereof, or compliance by
any Lender (for purposes of this Section 3.7, the term “Lender” shall include Agent or any Lender and any
corporation or bank controlling Agent or any Lender) and the office or branch where Agent or any Lender (as so defined) makes or maintains
any Advances with any request or directive (whether or not having the force of law) from any central bank or other financial, monetary
or other authority, shall:
(a) subject
Agent or any Lender to any Tax of any kind whatsoever (other than (A) Indemnified Taxes and (B) Excluded Taxes) on the Advances, this
Agreement, any Other Document, any commitments or other obligations or participations therein, or its deposits, reserves, other liabilities
or capital attributable thereto;
(b) impose,
modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge, assessment or similar requirement against assets
held by, or deposits in or for the account of, advances or loans by, or other credit extended by, any office of Agent or any Lender, including
pursuant to Regulation D of the Board of Governors of the Federal Reserve System; or
(c) impose
on Agent or any Lender or the London interbank market any other condition, loss or expense (other than Taxes) affecting this Agreement
or any Other Document or any Advance made by any Lender or participation therein;
and the result of any of the
foregoing is to increase the cost to Agent or any Lender of making, renewing or maintaining its Advances hereunder by an amount that Agent
or such Lender deems to be material or to reduce the amount of any payment (whether of principal, interest or otherwise) in respect of
any of the Advances by an amount that Agent or such Lender deems to be material, then, in any case Borrowers shall within 30 days of the
events or conditions giving rise thereto pay Agent or such Lender, upon its demand, such additional amount as will compensate Agent or
such Lender for such additional cost or such reduction, as the case may be, provided that the foregoing shall not apply to increased
costs which are reflected in the LIBOR Rate, as the case may be. Agent or such Lender shall certify the amount of such additional cost
or reduced amount to Borrowing Agent (in writing and providing in reasonable detail the reasons for and calculations of such amounts),
and such certification shall be conclusive evidence absent manifest error.
Failure or delay on the part
of Agent or any Lender to demand compensation pursuant to the foregoing provisions of this Section 3.7 shall not constitute
a waiver of Agent’s or such Lender’s right to demand such compensation, provided that no Credit Party shall be required
to compensate Agent or any Lender pursuant to the foregoing provisions of this Section 3.7 for any increased costs incurred
or reductions suffered more than nine (9) months prior to the date that Agent or such Lender notifies Borrowing Agent of the circumstance
giving rise to such increased costs or reductions and of Agent’s or such Lender’s intention to claim compensation therefor
(except that, if the circumstance giving rise to such increased costs or reductions involves a change in law that is retroactive, then
the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
3.8 Benchmark
Replacement Setting.
(a) Replacing
USD LIBOR. On March 5, 2021 the Financial Conduct Authority (“FCA”), the regulatory supervisor of USD LIBOR’s
administrator (“IBA”), announced in a public statement the future cessation or loss of representativeness of overnight/Spot
Next, 1-month, 3-month, 6-month and 12- month USD LIBOR tenor settings. On the earlier of (i) the date that all Available Tenors of USD
LIBOR have either permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement
or publication of information to be no longer representative and (ii) the Early Opt-in Effective Date, if the then-current Benchmark is
USD LIBOR, the Benchmark Replacement will replace such Benchmark for all purposes hereunder and under this Agreement or any Other Document
in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent
of any other party to this Agreement or any Other Document. If the Benchmark Replacement is based on Daily Simple SOFR pursuant to clause
(ii) of the definition of “Benchmark Replacement”, all interest payments will be payable on a monthly basis.
(b) Replacing
Future Benchmarks. Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark
for all purposes hereunder and under this Agreement or any Other Document in respect of any Benchmark setting at or after 5:00 p.m. on
the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to,
or further action or consent of any other party to, this Agreement or any Other Document so long as Agent has not received, by such time,
written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Benchmark
Replacement Conforming Changes. In connection with the implementation and administration of a Benchmark Replacement, Agent will have
the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in
any Other Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further
action or consent of any other party to this Agreement.
(d) Notices;
Standards for Decisions and Determinations. Agent will promptly notify the Borrowers and the Lenders of (i) the implementation of
any Benchmark Replacement and (ii) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election
that may be made by Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.8, including any determination
with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision
to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion
and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 3.8.
(e) Unavailability
of Tenor of Benchmark. At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current
Benchmark is a term rate (including Term SOFR or USD LIBOR), then Agent may remove any tenor of such Benchmark that is unavailable or
non-representative for Benchmark (including Benchmark Replacement) settings and (ii) Agent may reinstate any such previously removed tenor
for Benchmark (including Benchmark Replacement) settings.
(f) Definitions
Applicable to this Section 3.8.
“Available Tenor”
means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark
is a term rate, any tenor for such Benchmark that is or may be used for determining the length of the three month period or (y) otherwise,
any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.
“Benchmark” means,
initially, USD LIBOR; provided that if a replacement of the Benchmark has occurred pursuant to this Section 3.8, then “Benchmark”
means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference
to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
“Benchmark Replacement”
means, for any Available Tenor, the alternative set forth below that that has been selected by the Agent and can be determined by the
Agent:
(i) the
sum of: (x) Term SOFR and (y) 0.114480.10% (11.44810
basis points) for an Available Tenor of one-month’sone
month’s duration, 0.261610.15%
(26.16115 basis points) for an Available Tenor
of three-months’ duration, and 0.428260.25%
(42.82625 basis points) for an Available Tenor
of six-months’ duration,
(ii) the
sum of: (x) Daily Simple SOFR and (y) the spread adjustment selected or recommended by the Relevant Governmental Body for the replacement
of the tenor of USD LIBOR with a SOFR-based rate having approximately the same length as the interest payment period specified in clause
(a) of this Section 3.8, or
(iii) the
sum of: (x) the alternate benchmark rate that has been selected by the Agent as the replacement for the then-current Benchmark for the
applicable corresponding tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the
mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for
determining a benchmark rate as a replacement for the then-current Benchmark for U.S. dollar-denominated syndicated credit facilities
at such time and (y) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by Agent
as the replacement for such Available Tenor of such Benchmark giving due consideration to any evolving or then-prevailing market convention,
including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities
at such time;
provided that, if the Benchmark
Replacement as determined pursuant to this definition of “Benchmark Replacement” would be less than the Floor, the Benchmark
Replacement will be deemed to be the Floor for the purposes of this Agreement and the Other Documents.
Any Benchmark Replacement shall be applied in a manner consistent
with market practice.
“Benchmark Replacement Conforming
Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including,
without limitation, changes to timing and frequency of determining rates and making payments of interest, timing of borrowing requests
or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions,
and other technical, administrative or operational matters) that Agent decides may be appropriate to reflect the adoption and implementation
of such Benchmark Replacement and to permit the administration thereof by Agent in a manner substantially consistent with market practice
(or, if Agent decides that adoption of any portion of such market practice is not administratively feasible or if Agent determines that
no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as Agent decides
is reasonably necessary in connection with the administration of this Agreement and the Other Documents).
“Benchmark Transition Event”
means, with respect to any then-current Benchmark other than USD LIBOR, the occurrence of a public statement or publication of information
by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark,
the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over
the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or
an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such
administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely,
provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide
any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying
market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.
“Daily Simple SOFR”
means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by Agent in a manner consistent
with market practice in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily
Simple SOFR” for syndicated business loans; provided, that if Agent decides that any such convention is not administratively
feasible for Agent, then Agent may establish another convention consistent with market practice in its reasonable discretion.
“Early Opt-in Effective Date”
means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is
provided to the Lenders, so long as Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the
date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders
comprising the Required Lenders.
“Early Opt-in Election”
means the occurrence of:
(a) a
notification by Agent to (or the request by the Borrowers to Agent to notify) each of the other parties hereto that at least five currently
outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed)
a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities
are identified in such notice and are publicly available for review), and
(b) the
joint election by Agent and the Borrowers to trigger a fallback from USD LIBOR and the provision by Agent of written notice of such election
to the Lenders.
“Floor” means the
benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment
or renewal of this Agreement or otherwise) with respect to USD LIBOR.
“Relevant Governmental Body”
means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed
or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
“SOFR” means a rate
per annum equal to the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a
successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at
http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the administrator of
the secured overnight financing rate from time to time).
“Term SOFR” means,
for the applicable corresponding tenor, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant
Governmental Body.
“USD LIBOR” means
the London interbank offered rate for U.S. dollars.
3.9 Capital
Adequacy.
(a) In
the event that Agent or any Lender shall have determined that any Applicable Law or guideline regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by any Governmental Body, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by Agent or any Lender (for purposes of this Section 3.9,
the term “Lender” shall include Agent or any Lender and any corporation or bank controlling Agent or any Lender) and
the office or branch where Agent or any Lender (as so defined) makes or maintains any Advances with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have
the effect of reducing the rate of return on Agent or any Lender’s capital as a consequence of its obligations hereunder to a level
below that which Agent or such Lender could have achieved but for such adoption, change or compliance (taking into consideration Agent’s
and each Lender’s policies with respect to capital adequacy) by an amount deemed by Agent or any Lender to be material, then, from
time to time, Borrowers shall pay upon demand to Agent or such Lender such additional amount or amounts as will compensate Agent or such
Lender for such reduction. In determining such amount or amounts, Agent or such Lender may use any reasonable averaging or attribution
methods. The protection of this Section 3.9 shall be available to Agent and each Lender regardless of any possible contention
of invalidity or inapplicability with respect to the Applicable Law or condition.
(b) A
certificate of Agent or such Lender setting forth such amount or amounts as shall be necessary to compensate Agent or such Lender with
respect to Section 3.9(a) hereof when delivered to Borrowing Agent shall be conclusive evidence absent manifest error.
(c) Failure
or delay on the part of Agent or any Lender to demand compensation pursuant to the foregoing provisions of this Section 3.9
shall not constitute a waiver of Agent’s or such Lender’s right to demand such compensation, provided that no Credit
Party shall be required to compensate Agent or any Lender pursuant to the foregoing provisions of this Section 3.9 for any
reductions suffered more than six months prior to the date that Agent or such Lender notifies Borrowing Agent of the circumstance giving
rise to such reductions and of such Lender’s intention to claim compensation therefor (except that, if the circumstance giving rise
to such increased costs or reductions involves a change in law that is retroactive, then the six-month period referred to above shall
be extended to include the period of retroactive effect thereof).
3.10 Taxes.
(a) [Reserved].
(b) Payment
Free of Taxes. Any and all payments by or on account of any Obligations of any Credit Party under this Agreement or any Other Document
shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined
in the good faith discretion of Borrowing Agent or a Payee) requires the deduction or withholding of any Tax from any such payment by
a Payee, then Borrowing Agent or such Payee, as applicable, shall be entitled to make such deduction or withholding and shall timely pay
the full amount deducted or withheld to the relevant Governmental Body in accordance with Applicable Law and, if such Tax is an Indemnified
Tax, then the sum payable by the applicable Credit 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 Payee, as the case
may be, receives an amount equal to the sum it would have received had no such deduction or withholding been made. For clarity, notwithstanding
the submission of documentation by a Payee under Section 3.10(g)(i) claiming a reduced rate of or exemption from U.S. withholding
Tax, Agent shall be entitled to withhold United States federal income Taxes at the full 30% withholding rate if in its reasonable judgment
it is required to do so under the due diligence requirements imposed upon Agent under § 1.1441-7(b) of the United States Income Tax
Regulations or other Applicable Law.
(c) Payment
of Other Taxes by the Credit Parties. The Credit Parties shall timely pay to the relevant Governmental Body in accordance with Applicable
Law, or at the option of Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification
by the Credit Parties. Each Credit Party shall jointly and severally indemnify Agent and each Payee, within ten (10) days after demand
therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts
payable under this Section) payable or paid by Agent or any Payee or required to be withheld or deducted from a payment to such Agent
or Payee, as the case may be, and any penalties, interest and out-of-pocket expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Body. A certificate as to the
amount of such payment or liability delivered to Borrowers by any Payee (with a copy to Agent), or by Agent on its own behalf or on behalf
of a Payee shall be conclusive absent demonstrable error.
(e) Indemnification
by the Payees. Each Payee shall severally indemnify Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes
attributable to such Payee (but only to the extent that any Credit Party has not already indemnified Agent for such Indemnified Taxes
and without limiting the obligation of the Credit Parties to do so), and (ii) any Excluded Taxes attributable to such Payee, in each case,
that are payable or paid by Agent in connection with this Agreement or any Other 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 Body. In
addition, and for clarity, Agent is hereby indemnified severally by the Lenders under § 1.1461-1(e) of the United States Income Tax
Regulations against any claims and demands of any Payee for the amount of any Tax it deducts and withholds in accordance with regulations
under § 1441 of the Code. A certificate as to the amount of such payment or liability delivered to any Payee by Agent shall
be conclusive absent manifest error. Each Payee hereby authorizes Agent to set off and apply any and all amounts at any time owing to
such Payee under any Other Document or otherwise payable by Agent to the Payee from any other source against any amount due to Agent under
this clause (e).
(f) Evidence
of Payments. As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Body pursuant to this Section
3.10, such Credit Party shall deliver to Agent the original or a certified copy of a receipt issued by such Governmental Body evidencing
such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Agent.
(g) Status
of Payees. (i) Any Payee that is entitled to an exemption from or reduction of withholding Tax with respect to payments hereunder
or under any Other Document shall deliver to Borrowers and Agent, at the time or times reasonably requested by Borrowing Agent or Agent,
such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding
or at a reduced rate of withholding. In addition, any Payee, if reasonably requested by Borrowing Agent or Agent, shall deliver such other
documentation prescribed by Applicable Law or reasonably requested by Borrowing Agent or Agent as will enable Borrowing Agent or Agent
to determine whether or not such Payee 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 3.10(g)(ii)(A), 3.10(g)(ii)(B) and 3.10(g)(ii)(D) below) shall not be required if in Payee’s
reasonable judgment such completion, execution or submission would subject such Payee to any material unreimbursed cost or expense or
would materially prejudice the legal or commercial position of such Payee, and Payee hereby acknowledges and agrees that in such circumstance
Borrowers and Agent shall withhold against all payments to be made by Borrowers or Agent to such Payee in accordance with Applicable Law.
(ii) Without
limiting the generality of the foregoing, in the event that any Borrower is a “United States Person” as defined in Section
7701(a)(30) of the Code (a “U.S. Person”),
(A) any
Payee that is a U.S. Person shall deliver to Borrowing Agent and Agent on or prior to the date on which such Payee becomes a Payee under
this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or Agent), two (2) duly completed and executed
copies of IRS Form W-9 certifying that such Payee is exempt from U.S. federal backup withholding Tax;
(B) any
Payee that is organized under the laws of a jurisdiction other than that in which the Credit Parties are resident for income Tax purposes
(a “Foreign Lender”) shall, to the extent it is legally entitled to do so, deliver to Borrowing Agent and 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 Payee under
this Agreement (and from time to time thereafter upon the reasonable request of any Borrower or Agent), whichever of the following is
applicable:
a. in
the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments
of interest under this Agreement or any Other Document, two (2) duly completed and 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 (y) with respect to any other applicable payments under this Agreement or any Other Document, two (2) duly completed
and 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 “business profits” or “other income” article of such tax treaty;
b. two
(2) duly completed and executed copies of IRS Form W-8ECI;
c. in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) two (2)
duly completed and executed copies of a certificate in form and substance satisfactory to Agent to the effect that such Foreign Lender
is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrowers
within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C)
of the Code (a “U.S. Tax Compliance Certificate”) and (y) two (2) duly completed and executed copies of IRS Form W-8BEN
or IRS Form W-8BEN-E, as applicable; or
d. to
the extent a Foreign Lender is not the beneficial owner, two (2) duly completed and executed copies of IRS Form W-8IMY, accompanied by
two (2) duly completed and executed copies of IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E (as applicable), two (2) duly completed and
executed copies of a U.S. Tax Compliance Certificate in form and substance satisfactory to Agent, two (2) duly completed and executed
copies of IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign
Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption,
such Foreign Lender may provide two (2) duly completed and executed copies of a U.S. Tax Compliance Certificate in form and substance
satisfactory to Agent on behalf of each such direct and indirect partner;
(C) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrowing Agent and 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 Payee under this Agreement (and from
time to time thereafter upon the reasonable request of Borrowing Agent or 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 Borrowing Agent or Agent to determine the withholding or deduction required
to be made;
(D) if
a payment to a Payee under this Agreement or any Other Document would be subject to U.S. Federal withholding Taxes imposed by FATCA if
such Payee 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 Payee shall deliver to Borrowing Agent and Agent at the time or times prescribed by law and
at such time or times reasonably requested by Borrowing Agent or 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 Borrowing Agent or Agent as may be
necessary for Credit Parties and Agent to comply with their obligations under FATCA and to determine that such Payee has complied with
such Payee’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of
this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement; and
(E) Any
Agent that is not a U.S. Person shall, at the time such Agent becomes a party to this Agreement, provide to the Borrowing Agent two duly-signed
properly completed copies of (1) IRS Form W-8ECI, or any successor thereto with respect to payments, if any, received by the Agent for
its own account, and (2) with respect to payments received on account of any Payee, executed copies of IRS Form W-8IMY (or any successor
form) certifying that the Agent is either (a) a “qualified intermediary” and that it assumes primary withholding responsibility
under Chapters 3 and 4 of the Code and primary Form 1099 reporting and backup withholding responsibility for payments it receives for
the account of others or (b) a “U.S. branch” and that payment it receives for others are not effectively connected with the
conduct of a trade or business in the United States and that is using the form as evidence of its agreement to be treated as a U.S. Person
with respect to payments associated with the IRS Form W-8IMY.
Each Payee 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 Borrowing Agent
and Agent in writing of its legal inability to do so.
(h) Treatment
of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any
Taxes as to which it has been indemnified pursuant to this Section 3.10 (including by the payment of additional amounts pursuant
to this Section 3.10), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity
payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes)
of such indemnified party and without interest (other than any interest paid by the relevant Governmental Body with respect to such refund).
Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant
to this clause (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Body) in the event that
such indemnified party is required to repay such refund to such Governmental Body. Notwithstanding anything to the contrary in this clause
(h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this clause (h)
the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have
been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and
the indemnification payments or additional amounts with respect to such Tax had never been paid. This clause shall not be construed to
require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential)
to the indemnifying party or any other Person.
(i) Survival.
Each party’s obligations under this Section 3.10 shall survive the resignation or replacement of Agent or any assignment
of rights by, or the replacement of, a Payee, the termination of the commitments and the repayment, satisfaction or discharge of all obligations
under this Agreement or any Other Document.
3.11 Replacement
of Lenders. If any Lender (an “Affected Lender”) (a) makes demand upon any Credit Party for (or if any Credit
Party is otherwise required to pay) amounts pursuant to Sections 3.7, 3.9 or 3.10 or (b) is a Defaulting
Lender, then such Lender shall use reasonable efforts to mitigate such losses, including in the case of clause (a), by designating a different
lending office or Affiliate of such Lender for the funding or booking the Loans hereunder and Borrowing Agent may, within ninety (90)
days of receipt of such demand (or the occurrence of such other event causing any Credit Party to be required to pay such compensation)
or Lender Default, as the case may be, by notice (a “Replacement Notice”) in writing to Agent and such Affected Lender
(i) request the Affected Lender to cooperate with Borrowing Agent in obtaining a replacement Lender who is an Eligible Assignee and
is satisfactory to Agent and Borrowing Agent in their sole discretion (the “Replacement Lender”); (ii) request
the non-Affected Lenders to acquire and assume all of the Affected Lender’s Advances and Commitment Percentage as provided herein,
but none of such Lenders shall be under an obligation to do so; or (iii) designate a Replacement Lender who is an Eligible Assignee
and is satisfactory to Agent and Borrowing Agent in their sole discretion. If any satisfactory Replacement Lender shall be obtained, and/or
if any one or more of the non-Affected Lenders shall agree to acquire and assume all of the Affected Lender’s Advances and Commitment
Percentage, then such Affected Lender shall assign, in accordance with Section 15.3, all of its Advances and Commitment Percentage
and other rights and obligations under this Agreement and the Other Documents to such Replacement Lender or non-Affected Lenders, as the
case may be, in exchange for payment of the principal amount so assigned and all interest and fees accrued on the amount so assigned,
plus all other Obligations then due and payable to the Affected Lender; provided, however, that (A) such assignment
shall be without recourse, representation or warranty and shall be on terms and conditions reasonably satisfactory to such Affected Lender
and such Replacement Lender and/or non-Affected Lenders, as the case may be, and (B) prior to any such assignment, the Borrowers
shall have paid to such Affected Lender all amounts properly demanded and unreimbursed under Sections 3.7 and 3.9.
Upon the effective date of such assignment, the Borrowers shall, if requested, issue replacement Notes to such Replacement Lender and/or
non-Affected Lenders, as the case may be, and such institution(s) shall become a “Lender” for all purposes under this
Agreement and the other Documents.
| IV. | COLLATERAL: GENERAL TERMS. |
4.1 Security
Interest in the Collateral. To secure the prompt payment and performance to Agent and each Lender (and each other holder of any Obligations)
of the Obligations, each Credit Party hereby collaterally assigns, pledges and grants to Agent for its benefit and for the ratable benefit
of each Lender a continuing security interest in and to and Lien on all of its Collateral, whether now owned or existing or hereafter
created, acquired or arising and wherever located. Each Credit Party shall mark its books and records as may be necessary or appropriate
to evidence and perfect Agent’s security interest and shall cause its financial statements to reflect such security interest. Each
Credit Party shall promptly provide Agent with written notice of all commercial tort claims, such notice to contain the case title together
with the applicable court and a brief description of the claim(s). Upon delivery of each such notice, such Credit Party shall be deemed
to hereby grant to Agent a security interest and lien in and to such commercial tort claims and all proceeds thereof.
4.2 Creation
and Perfection of Security Interest.
(a) This
Agreement and the Other Documents are effective to create in favor of Agent, for the ratable benefit of Lenders and the other holders
of the Obligations, a legal, valid and enforceable security interest in the Collateral identified therein, except to the extent the enforceability
thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law
(regardless of whether enforcement is sought in equity or at law), and this Agreement and the Other Documents shall create a fully perfected
Lien on, and security interest in, all right, title and interest of the obligors thereunder in such Collateral, in each case prior and
superior in right to any other Lien (other than Permitted Encumbrances) (i) with respect to any such Collateral that is a “security”
(as such term is defined in the Uniform Commercial Code) and is evidenced by a certificate, when such Collateral is delivered to Agent
with duly executed stock powers with respect thereto, (ii) with respect to any such Collateral that is a “security” (as such
term is defined in the Uniform Commercial Code) but is not evidenced by a certificate, when UCC financing statements in appropriate form
are filed in the appropriate filing offices in the jurisdiction of organization of the pledgor or when “control” (as such
term is defined in the Uniform Commercial Code) is established by Agent over such interests in accordance with the provision of Section
8-106 of the Uniform Commercial Code, or any successor provision, (iii) with respect to any such Collateral that is not a “security”
(as such term is defined in the Uniform Commercial Code), when UCC financing statements in appropriate form are filed in the appropriate
filing offices in the jurisdiction of organization of the pledgor (to the extent such security interest can be perfected by filing under
the Uniform Commercial Code) and (iv) with respect to any such Collateral that is Intellectual Property, when intellectual property security
agreements are recorded with the United States Patent and Trademark Office and the United States Copyright Office, together with the financing
statements set forth in clause (iii).
(b) Each
Credit Party shall take all action that may be necessary or that Agent may request in its Permitted Discretion, so as at all times to
maintain the validity, perfection, enforceability and priority of Agent’s security interest in and Lien on the Collateral or to
enable Agent to protect, exercise or enforce its rights hereunder and in the Collateral including, but not limited to, (i) promptly
discharging all Liens other than Permitted Encumbrances, (ii) using commercially reasonable efforts to obtain Lien Waiver Agreements
to the extent required under Section 4.5(c), (iii) delivering to Agent, endorsed or accompanied by such instruments of assignment
as Agent may specify, and stamping or marking, in such manner as Agent may specify, any and all chattel paper, instruments (other than
those deposited for collection), letters of credit and advices thereof and documents evidencing or forming a part of the Collateral, in
each case with a face value in excess of $250,000, individually and in the aggregate, (iv) reserved, and (v) executing and delivering
financing statements, Control Agreements, instruments of pledge, mortgages, notices and assignments, in each case in form and substance
satisfactory to Agent in its Permitted Discretion, relating to the creation, validity, perfection, maintenance or continuation of Agent’s
security interest and Lien under the Uniform Commercial Code or other Applicable Law. By its signature hereto, each Credit Party hereby
authorizes Agent to file against such Credit Party, one or more financing, continuation or amendment statements pursuant to the Uniform
Commercial Code in form and substance satisfactory to Agent (which statements may have a description of collateral which is broader than
that set forth herein, including without limitation a description of Collateral as “all assets” and/or “all personal
property” of any Credit Party). All charges, expenses and fees Agent may incur in doing any of the foregoing, and any local filing,
recording, documentary or similar taxes relating thereto, shall be charged to Borrowers’ Account as an Advance and added to the
Obligations, or, at Agent’s option, shall be paid to Agent for its benefit and for the ratable benefit of Lenders immediately upon
demand. Notwithstanding the foregoing, no Credit Party shall be required to undertake any Excluded Perfection Action.
4.3 [Reserved].
4.4 Preservation
of Collateral. Following the occurrence and during the continuance of an Event of Default, in addition to the rights and remedies
set forth in Section 11.1 hereof, Agent: (a) may at any time take such steps as Agent deems reasonably necessary to protect
Agent’s interest in and to preserve the Collateral and (b) shall have, and is hereby granted, a right of ingress and egress
to the places where the Collateral is located to take possession of all or any part of the Collateral and to remove all or any part of
the Collateral. Each Credit Party shall cooperate all of Agent’s reasonable efforts to preserve the Collateral and will take such
actions to preserve the Collateral as Agent may reasonably direct. All of Agent’s expenses of preserving the Collateral shall be
charged to Borrowers’ Account as an Advance and added to the Obligations.
4.5 Ownership
of Collateral.
(a) Each
of the Credit Parties and its Subsidiaries has (i) good, sufficient and legal title to (in the case of fee interests in Real Property),
(ii) valid leasehold interests in (in the case of leasehold interests in real or personal property), and (iii) good title to (in the case
of all other personal property), all of their respective properties and assets reflected in their financial statements and other information
referred to in Section 5.9 and in the most recent financial statements delivered pursuant to Sections 9.7, 9.8 and
9.9, in each case except for assets disposed of since the date of such financial statements as permitted under Section 7.1(b).
All such properties and assets are free and clear of Liens other than Permitted Encumbrances. With respect to the Collateral, at the time
the Collateral becomes subject to Agent’s security interest: (i) a Credit Party shall have rights in or be the sole owner of and
fully authorized and able to sell, transfer, pledge and/or grant a first priority (subject only to Permitted Encumbrances) security interest
in each and every item of its Collateral to Agent; (ii) each document and agreement executed by each Credit Party or delivered to Agent
or any Lender in connection with this Agreement shall be true and correct in all material respects; (iii) all signatures and endorsements
of each Credit Party that appear on such documents and agreements shall be genuine and such Credit Party shall have full capacity to execute
same; and (iv) each Credit Party’s Equipment with a value in excess of $100,000 shall be located as of the Closing Date (and as
updated pursuant to Sections 4.5 and 9.11(b)) as set forth on Schedule 4.5 and shall not be removed from such
location(s) without the prior written consent of Agent; except (A) with respect to the sale of Inventory in the ordinary course of business
and Equipment to the extent permitted in Section 7.1 hereof; and (B) for items in transit between Credit Parties’ locations,
items out for repair, items provided to employees in the ordinary course of business and samples for customers.
(b) [Reserved].
(c) Notwithstanding
anything contained herein to the contrary and without limiting anything contained herein, Borrower shall use commercially reasonable efforts
to deliver or cause to be delivered to Agent duly executed Lien Waiver Agreements in form and substance reasonably satisfactory to Agent
with respect to (w) 1177 West Loop South, Suite 1170, Houston, Texas 77027, (x) 716 Congress Avenue,
Suite 100, Austin, Texas 78701, (y) each other Real Property that has Collateral with a book or fair market value (whichever is greater)
in excess of $250,000 stored or located therein and (z) upon the reasonable request of Agent, any other leased locations where corporate
records are maintained.
4.6 Defense
of Agent’s and Lenders’ Interests. Until (a) payment and performance in full of all of the Obligations (other than
Inchoate Obligations) and (b) termination of all obligations of Agent and the Lenders to make any Advances hereunder and termination
of this Agreement, Agent’s interests in the Collateral shall continue in full force and effect. During such period no Credit Party
shall, without Agent’s prior written consent, pledge, sell (except Inventory in the ordinary course of business and other Collateral
to the extent not constituting an Asset Sale), assign, transfer, create or suffer to exist a Lien upon or encumber or allow or suffer
to be encumbered in any way except for Permitted Encumbrances and except as permitted by Section 7.1, any part of the Collateral. Each
Borrower shall use commercially reasonable efforts to defend Agent’s interests in any material portion of the Collateral against
any and all Persons whatsoever. At any time following demand by Agent for payment of all Obligations after the occurrence and during the
continuance of an Event of Default, Agent shall have the right to take possession of the indicia of the Collateral and the Collateral
in whatever physical form contained, including: labels, stationery, documents, instruments and advertising materials. If Agent exercises
this right to take possession of the Collateral, each Borrower shall, upon demand, assemble it in the manner requested by Agent, to the
extent commercially reasonable, and make it available to Agent at a place reasonably convenient to Agent. In addition, with respect to
all Collateral, at all times following the occurrence and during the continuance of an Event of Default, Agent and Lenders shall be entitled
to all of the rights and remedies set forth herein and further provided by the Uniform Commercial Code or other Applicable Law. Following
the occurrence and during the continuance of an Event of Default, Agent may, at its option, instruct all suppliers, carriers, forwarders,
warehousers or others receiving or holding cash, checks, documents or instruments in which Agent holds a security interest to deliver
same to Agent and/or subject to Agent’s order and if they shall come into such Credit Party’s possession, they, and each of
them, shall be held by such Credit Party in trust as Agent’s trustee, and such Credit Party will promptly deliver them to Agent
in their original form together with any necessary endorsement.
4.7 Books
and Records. Each Credit Party shall keep proper books of record and account in which full, true and correct entries shall be
made of all dealings or transactions in relation to its business and activities to the extent necessary to prepare the financial statements
of DDH and its Subsidiaries, on a Consolidated Basis, in conformity with GAAP consistently applied in the opinion of such independent
public accountant as shall then be regularly engaged by DDH.
4.8 Financial
Disclosure. Subject to applicable federal and state securities laws, each Credit Party hereby irrevocably authorizes and directs all
accountants and auditors employed by such Credit Party at any time during the Term to deliver to Agent copies of any Credit Party’s
financial statements, trial balances or other accounting records of any sort in the accountant’s or auditor’s possession,
and to disclose to Agent any information such accountants may have concerning any Credit Party’s financial status and business operations;
provided however, Agent will attempt to obtain such information or materials directly from Credit Parties prior to obtaining such information
or materials from such accountants. Subject to applicable federal and state securities laws, each Credit Party hereby authorizes all Governmental
Bodies to furnish to Agent copies of reports or examinations relating to any Credit Party, whether made by such Credit Party or otherwise;
provided however, Agent will attempt to obtain such information or materials directly from Credit Parties prior to obtaining such information
or materials from such Governmental Bodies.
4.9 Compliance
with Laws. Each Credit Party shall comply, and shall cause each of its Subsidiaries to comply, with (a) all Anti-Terrorism Laws,
and (b) all other Applicable Laws which noncompliance with, with respect to this clause (b) only, could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect.
4.10 Inspection
of Premises. Each Credit Party will, and will cause each of its Subsidiaries to, permit Agent and each Lender and their respective
representatives and independent contractors to visit and inspect any of its properties, to conduct field audits and examinations, 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 Borrowers and at such reasonable times
during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to Borrowing Agent (and such Persons
shall use commercially reasonable efforts to conduct such visits and inspections in a manner as to minimize interference in the applicable
Credit Parties normal operations), provided, however, that so long as no Event of Default exists, without limiting the number of any such
visits and/or inspections, Borrowers shall not be obligated to pay for more than two (2) such inspections per year.
4.11 Insurance.
Subject to Section 6.16(f), the Credit Parties will maintain or cause to be maintained, with financially sound and licensed insurers,
property insurance, public liability insurance, cybersecurity insurance, and third party property damage insurance with respect to liabilities,
losses or damage in respect of the assets, properties and businesses of each Credit Party and its Subsidiaries as may customarily be carried
or maintained under similar circumstances by Persons of established reputation engaged in similar businesses, in each case, in such amounts,
with such deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for such Persons. Without
limiting the generality of the foregoing, each of Borrower and its Subsidiaries will maintain or cause to be maintained (a) flood
insurance with respect to each Flood Hazard Property that is a part of the Collateral, if any, and that is located in a community that
participates in the National Flood Insurance Program, in each case (to the extent required) in compliance with any applicable regulations
of the Board of Governors of the Federal Reserve System, and (b) replacement value casualty insurance on the Collateral under such
policies of insurance, with such insurance companies, in such amounts, with such deductibles, and covering such risks as are at all times
carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses. Each such policy
of insurance shall (i) with respect to liability insurance and cybersecurity insurance, name Agent, on behalf of the holders of the
Obligations, as an additional insured thereunder as its interests may appear, and (ii) in the case of each property insurance policy,
contain a loss payable clause or endorsement with respect to the Collateral, reasonably satisfactory in form and substance to Agent, that
names Agent, on behalf of the holders of the Obligations, as the lender’s loss payee thereunder and provides for at least thirty
(30) days’ (or ten (10) days’ in the case of non-payment of premium) prior written notice to Agent of any modification
or cancellation of such policy; and which, for the avoidance of doubt, in the case of being added as an additional insured with respect
to such liability insurance, shall not limit the ability of the applicable insurance carrier to satisfy any claims that may be payable
to a third party on behalf of any Credit Party. Credit Parties shall furnish Agent with copies of all policies and evidence of the maintenance
of such policies by the renewal thereof as soon as practicable prior to the expiration date thereof. If any insurance losses are paid
by check, draft or other instrument payable to any Credit Party and Agent jointly, Agent may endorse such Credit Party’s name thereon
and do such other things as Agent may deem advisable to reduce the same to cash. Following the occurrence and during the continuance of
an Event of Default with respect to all claims for insurance proceeds in excess of $250,000, Agent is hereby authorized to adjust and
compromise claims under insurance coverage referred to in clause (b) above. All loss recoveries received by Agent upon any
such insurance may be applied to the Obligations, in such order as Agent in its Permitted Discretion shall determine during the continuance
of an Event of Default and, at all other times as set forth in Section 2.7(a). Any surplus shall be paid by Agent to Borrowing
Agent or applied as may be otherwise required by law.
4.12 Failure
to Pay Insurance. If Credit Parties fail to obtain insurance as hereinabove provided, or to keep the same in force, Agent, if Agent
so elects, may obtain such insurance and pay the premium therefor on behalf of Credit Parties, and charge Borrowers’ Account therefor
as an Advance and such expenses so paid shall be part of the Obligations.
4.13 Payment
of Taxes. Each Credit Party will, and will cause each of its Subsidiaries to, pay (a) all federal, state and other material Taxes
imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises before any penalty or
fine accrues thereon and (b) all claims (including claims for labor, services, materials and supplies) for sums that have become
due and payable and that by law have or may become a Lien upon any of its properties or assets, prior to the time when any penalty or
fine shall be incurred with respect thereto; provided, no such Tax or claim need be paid if it is being contested in good faith
by appropriate proceedings promptly instituted and diligently conducted, so long as (i) adequate reserve or other appropriate provision,
as shall be required in conformity with GAAP shall have been made therefor, and (ii) in the case of a Tax or claim which has or may
become a Lien against any of the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral
to satisfy such Tax or claim. No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, file or consent to the
filing of any consolidated income tax return with any Person (other than DDH or any Subsidiary of DDH). Subject to the limitations of
Section 3.10, if any Tax by any Governmental Body is or may be imposed on or as a result of any transaction between any Credit
Party and Agent or any Lender which Agent or any Lender may be required to withhold or pay or if any Taxes, assessments, or other charges
remain unpaid after the date fixed for their payment, or if any claim shall be made which, in Agent’s or any Lender’s Permitted
Discretion, may possibly create a valid Lien on the Collateral, Agent may without notice to any Credit Party pay the Taxes, assessments
or other claims and each Borrower hereby indemnifies and holds Agent and each Lender harmless in respect thereof. Agent will not pay any
Taxes, assessments or claims to the extent being contested as set forth in the proviso in the first sentence in this Section 4.13.
The amount of any payment by Agent under this Section 4.13 shall be charged to Borrowers’ Account and added to the Obligations
and, until Borrowers shall furnish Agent with an indemnity therefor (or supply Agent with evidence satisfactory to Agent that due provision
for the payment thereof has been made), Agent may hold without interest any balance standing to Borrowers’ credit and Agent shall
retain its security interest in and Lien on any and all Collateral held by Agent.
4.14 Payment
of Leasehold Obligations. Credit Parties shall at all times pay, when and as due, to the extent failure to pay such amount could result
in the termination of such lease, its rental obligations under all leases under which it is a tenant, and shall otherwise comply, in all
material respects, with all other terms of such leases and keep them in full force and effect (except for termination of a lease at its
scheduled termination date or otherwise in accordance with the terms thereof), to the extent termination of such lease would reasonably
result in a Material Adverse Effect.
4.15 Receivables.
(a) Nature
of Receivables. Each of the Receivables shall be a bona fide and valid account representing a bona fide indebtedness incurred by the
Customer therein named, for a fixed sum as set forth in the invoice relating thereto (provided that immaterial or unintentional
invoice errors shall not be deemed to be a breach hereof) with respect to the sale or lease and delivery of goods upon stated terms of
a Credit Party, or work, labor or services theretofore rendered by a Credit Party as of the date each Receivable is created. Same shall
be due and owing in accordance with Credit Party’s standard terms of sale without known dispute, setoff or counterclaim except to
the extent that such disputes, setoffs, or counterclaims have been disclosed to Agent to the extent involving an amount in excess of $250,000
individually or in the aggregate.
(b) Solvency
of Customers. Each Customer (other than Customers having Receivables not in excess of $250,000 in the aggregate at any time outstanding),
to each Credit Party’s actual knowledge, as of the date each Receivable is created, is and will be solvent and able to pay all Receivables
on which the Customer is obligated in full when due or with respect to such Customers of Credit Parties who are not, to any Credit Party’s
actual knowledge, solvent, the applicable Borrower has set up on its books and in its financial records bad debt reserves adequate to
cover such Receivables.
(c) Location
of Credit Party. Credit Parties’ chief executive office is set forth on Schedule 4.5; provided, that,
Credit Parties may change the location of their chief executive office upon 10 days prior written notice to Agent. Until written notice
is given to Agent by Credit Parties of any other office at which any Credit Party keeps its records pertaining to Receivables, all such
records shall be kept at such executive office.
(d) Collection
of Receivables. Credit Parties shall deposit in a Depository Account or, upon request by Agent, deliver to Agent, in original form
and within three (3) Business Days of receipt thereof, all checks, drafts, notes, money orders, acceptances, cash and other evidences
of Indebtedness paid in respect of Receivables.
(e) Notification
of Assignment of Receivables. At any time during the continuance of an Event of Default, Agent shall have the right to send notice
of the assignment of, and Agent’s security interest in and Lien on, the Receivables to any and all Customers or any third party
holding or otherwise concerned with any of the Collateral. Agent shall use reasonable efforts to provide notice to Borrowing Agent of
the sending of any such notice of assignment, but failure to do so shall not result in any liability to Agent. Thereafter, Agent shall
have the sole right to collect the Receivables, take possession of the Collateral, or both. Agent’s actual collection expenses,
including, but not limited to, stationery and postage, telephone and telegraph, secretarial and clerical expenses and the salaries of
any collection personnel used for collection, may be charged to Borrowers’ Account and added to the Obligations.
(f) Power
of Agent to Act on Credit Parties’ Behalf. Agent shall have the right to receive, endorse, assign and/or deliver in the name
of Agent or any Credit Party any and all checks, drafts and other instruments for the payment of money relating to the Receivables, and
each Credit Party hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. Each Credit Party hereby
constitutes Agent or Agent’s designee as such Credit Party’s attorney with power: (i) to endorse such Credit Party’s
name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment or Collateral; (ii) to sign such Credit
Party’s name on any invoice or bill of lading relating to any of the Receivables, drafts against Customers, assignments and verifications
of Receivables; (iii) to send verifications of Receivables to any Customer; (iv) to sign such Credit Party’s name on all
financing statements or any other documents or instruments deemed necessary or appropriate by Agent to preserve, protect, or perfect Agent’s
interest in the Collateral and to file same; (v) to demand payment of the Receivables; (vi) to enforce payment of the Receivables
by legal proceedings or otherwise; (vii) to exercise all of such Credit Party’s rights and remedies with respect to the collection
of the Receivables and any other Collateral; (viii) to settle, adjust, compromise, extend or renew the Receivables; (ix) to
settle, adjust or compromise any legal proceedings brought to collect Receivables; (x) to prepare, file and sign such Credit Party’s
name on a proof of claim in bankruptcy or similar document against any Customer; (xi) to prepare, file and sign such Credit Party’s
name on any notice of Lien, assignment or satisfaction of Lien or similar document in connection with the Receivables; and (xii) to
do all other acts and things necessary to carry out this Agreement; provided, however, Agent shall only exercise the rights
described in clauses (i), (ii), (v), (vi), (vii), (viii), (ix) and (xi) upon the occurrence and
during the continuance of an Event of Default. All acts of said attorney or designee are hereby ratified and approved, and said attorney
or designee shall not be liable for any acts of omission or commission nor for any error of judgment or mistake of fact or of law, unless
done maliciously or with gross (not mere) negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment);
this power being coupled with an interest is irrevocable while any of the Obligations (other than Inchoate Obligations) remain unpaid.
Agent shall have the right at any time following the occurrence and during the continuance of an Event of Default, to change the address
for delivery of mail addressed to any Credit Party to such address as Agent may designate and to receive, open and dispose of all mail
addressed to any Credit Party.
(g) No
Liability. Neither Agent nor any Lender shall, under any circumstances or in any event whatsoever, have any liability for any error
or omission or delay of any kind occurring in the settlement, collection or payment of any of the Receivables or any instrument received
in payment thereof, or for any damage resulting therefrom. Following the occurrence and during the continuance of an Event of Default,
Agent may, without notice or consent from any Credit Party, sue upon or otherwise collect, extend the time of payment of, compromise or
settle for cash, credit or upon any terms any of the Receivables or any other securities, instruments or insurance applicable thereto
and/or release any obligor thereof. Following the occurrence and during the continuance of an Event of Default, Agent is authorized and
empowered to accept the return of the goods represented by any of the Receivables, all without discharging or in any way affecting any
Credit Party’s liability hereunder. Agent shall use reasonable efforts to notify the applicable Credit Party of any such acceptance
of returned goods, but shall have no liability for any failure to do so.
(h) Cash
Management; Payment Mechanics.
(i) The
Credit Parties shall direct each of their Customers to remit all payments on Receivables to, and Credit Parties shall deposit all cash,
checks, notes instruments and other funds or items of payment received by such Credit Party from time to time to, depository accounts
(“Depository Accounts”) established at ABL Lender or such other depository approved by Agent in its reasonable discretion
for the deposit of such amounts.
(ii) As
of the Closing Date, all deposit accounts and investment accounts of DDH and its Subsidiaries are set forth on Schedule 4.15(h).
Each Credit Party will notify Agent in writing at least five (5) Business Days prior to the establishment of any deposit accounts
or investment accounts not set forth on Schedule 4.15(h). Subject to Section 6.16 hereof, the Credit Parties shall deliver
to Agent Control Agreements with respect to all deposit accounts of the Credit Parties (including without limitation, the Depository Accounts,
but excluding any Excluded Deposit Accounts).
(iii) On
or before the Closing Date, Borrowing Agent shall have established a deposit account at a depository approved by Agent in its reasonable
discretion for the purpose of receiving proceeds of the Advances (the “Funding Account”).
(i) Adjustments.
No Borrower will, without Agent’s consent, compromise or adjust any Receivables (or extend the time for payment thereof) or accept
any returns of merchandise or grant any additional discounts, allowances or credits thereon except for compromises, adjustments, returns,
discounts, credits and allowances in the ordinary course of business of Borrowers.
4.16 Pledge
of Personal Property Assets.
(a) Each
Credit Party shall cause one hundred percent (100%) of the issued and outstanding Equity Interests of each Subsidiary of DDH to be subject
at all times to a first priority lien (subject to any Permitted Encumbrance) in favor of Agent pursuant to the terms and conditions of
this Agreement and the Other Documents, together with opinions of counsel and any filings and deliveries or other items reasonably requested
by Agent necessary in connection therewith (to the extent not delivered on the Closing Date) to perfect the security interests therein,
all in form and substance reasonably satisfactory to Agent.
(b) Each
Credit Party shall (i) cause all of its owned personal property (other than Excluded Property) to be subject at all times to first
priority (subject to any Permitted Encumbrances), perfected Liens in favor of Agent to secure the Obligations pursuant to the terms and
conditions of this Agreement and the Other Documents or, with respect to any such property acquired subsequent to the Closing Date, such
other additional security documents as Agent shall reasonably request, subject in any case to Permitted Encumbrances and (ii) deliver
such other documentation as Agent may reasonably request in connection with the foregoing, including, without limitation, appropriate
Control Agreements, UCC-1 financing statements, certified resolutions and other organizational and authorizing documents of such Person,
opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of
the documentation referred to above and the perfection of Agent’s Liens thereunder) and other items reasonably requested by Agent
necessary in connection therewith to perfect the security interests therein, all in form, content and scope reasonably satisfactory to
Agent.
4.17 Maintenance
of Equipment. Each Credit Party shall, and shall cause each of its Subsidiaries to, maintain or cause to be maintained in good
repair, working order and condition, ordinary wear and tear excepted, all material properties used or useful in the business of any Credit
Party and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof
substantially in accordance with such Credit Party’s past business practices.
4.18 Exculpation
of Liability. Nothing herein contained shall be construed to constitute Agent, any Lender or any of their respective officers, directors,
Affiliates, attorneys, employees or agents as any Borrower’s agent for any purpose whatsoever, nor shall Agent, any Lender or any
of their respective officers, directors, Affiliates, attorneys, employees or agents be responsible or liable for any shortage, discrepancy,
damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof, except
to the extent arising out of the gross negligence or willful misconduct of Agent or any Lender. Neither Agent nor any Lender, whether
by anything herein or in any assignment or otherwise, assume any of any Borrower’s obligations under any contract or agreement assigned
to Agent or such Lender, and neither Agent nor any Lender shall be responsible in any way for the performance by any Borrower of any of
the terms and conditions thereof.
4.19 Environmental
Matters.
(a) Each
Credit Party will deliver to Agent with reasonable promptness, such documents and information with respect to any material Environmental
Claim as from time to time may be reasonably requested by Agent.
(b) Each
Credit Party shall promptly take, and shall cause each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure
any violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that would reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, and (ii) respond to any Environmental Claim against such Credit Party or any of its
Subsidiaries and discharge any obligations it may have to any Person thereunder where failure to do so would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
(c) In
the event any Borrower obtains, gives or receives notice of any Release or threat of Release of a reportable quantity of any Hazardous
Materials at the Real Property (any such event being hereinafter referred to as a “Hazardous Discharge”) or receives
any request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions
at the Real Property or other written notice with regard to any Hazardous Discharge or any other Environmental Claim (any of the foregoing
is referred to herein as an “Environmental Complaint”) from any Person, including any state agency responsible in whole
or in part for environmental matters in the state in which the Real Property is located or the United States Environmental Protection
Agency (any such Person hereinafter the “Authority”), then Borrowers shall, within ten (10) Business Days, give
written notice of same to Agent detailing facts and circumstances of which any Borrower is aware giving rise to the Hazardous Discharge
or Environmental Complaint. Such information is to be provided to allow Agent to protect its security interest in and Lien on the Real
Property and the Collateral and is not intended to create nor shall it create any obligation upon Agent or any Lender with respect thereto.
(d) Borrowers
shall respond promptly to any Hazardous Discharge or Environmental Complaint, except where failure to do so could not reasonably be expected
to result in material liability to any Borrower, and take all commercially reasonable action in order to safeguard the health of any Person
and to avoid subjecting the Collateral or Real Property to any Lien (other than Permitted Encumbrances). If Borrowers shall fail to respond
promptly to any Hazardous Discharge or Environmental Complaint or Borrowers shall fail to comply with any of the requirements of any Environmental
Laws, Agent on behalf of Lenders may, but without the obligation to do so, for the sole purpose of protecting Agent’s interest in
the Collateral: (i) give such notices or (ii) enter onto the Real Property (or authorize third parties to enter onto the Real
Property) and take such actions as Agent (or such third parties as directed by Agent) deem reasonably necessary, to clean up, remove,
mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable, documented out-of-pocket costs
and expenses incurred by Agent and Lenders (or such third parties) in the exercise of any such rights, including any sums paid in connection
with any judicial or administrative investigation or proceedings, fines and penalties shall be paid upon demand by Borrowers, and until
paid shall be added to and become a part of the Obligations secured by the Liens created by the terms of this Agreement or any other agreement
between Agent, any Lender and any Borrower.
(e) [Reserved].
(f) For
purposes of Sections 4.19 and 5.7, all references to Real Property shall be deemed to include all of each Borrower’s
right, title and interest in and to its owned and leased premises.
4.20 Financing
Statements. To the knowledge of the Credit Parties, except for the financing statements filed by Agent and the financing statements
evidencing Permitted Encumbrances, no financing statement covering any of the Collateral or any proceeds thereof is on file in any public
office.
4.21 Key
Executive Policy. Promptly, but in any event within one hundred twenty (120) days after the Second Amendment Date, as further security
for the payment of the Obligations and the satisfaction by Borrower of all covenants and undertakings contained in this Agreement and
the Other Documents, the Borrower shall use commercially reasonable efforts to deliver, for the benefit of Agent and Lenders, a collateral
assignment of a key executive life insurance policy owned by Borrower insuring the life of Keith Smith and Mark Walker in the amount
of not less than $5,000,000 for each such Person (and an aggregate amount of not less than $10,000,000) issued by an insurer acceptable
to Agent in its sole discretion (such policy, the “Key Executive Policy”), and in connection therewith, within such
period, Borrower shall deliver to Agent all forms and agreements required by the insurer issuing the Key Executive Policy in order to
have such assignment of the Key Executive Policy in favor of Agent, for itself and for the benefit of Lenders, acknowledged and reflected
on the records of such insurer (all of which such forms shall have been executed by Borrower and any other party necessary thereto);
provided, that no Default or Event of Default shall occur if the Borrower is unable to obtain coverage in the amounts or on the terms
described herein or if premiums on any such policy exceed a commercially reasonable amount. Nothing contained in the foregoing or in
any such forms and agreements required by the insurer shall be construed in any way to contradict or limit (but only to expand and extend)
the grant of a security interest and Lien by Borrower in all now existing and hereafter arising General Intangibles and insurance policies
provided for in Section 4.1 above.
| V. | REPRESENTATIONS AND WARRANTIES. |
Each Credit Party represents
and warrants as follows:
5.1 Organization;
Requisite Power and Authority; Qualification. Each Credit Party and its Subsidiaries (a) is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization as identified in Schedule 5.1, (b) has all requisite
power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter
into this Agreement and the Other Documents to which it is a party and to carry out the transactions contemplated thereby, and (c) is
qualified to do business and in good standing in every jurisdiction where necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to have, a Material
Adverse Effect.
5.2 Equity
Interests and Ownership.
(a) Schedule
5.2(a) correctly sets forth the ownership interest of each Credit Party and each Credit Party’s Subsidiaries, in each case
as of the Closing Date. The Equity Interests of each Credit Party and its Subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable (except with respect to limited liability company interests). Except as set forth on Schedule 5.2(a) as
of the Closing Date, there is no existing option, warrant, call, right, commitment, buy-sell, voting trust, contribution agreement or
other shareholder agreement or other agreement with respect to any Credit Party or any Subsidiary, and there is no membership interest
or other Equity Interests of any Credit Party or any Subsidiary outstanding which upon conversion or exchange would require, the issuance
by any Credit Party, or any Subsidiary of any additional membership interests or other Equity Interests of any Credit Party or any Subsidiary
or other Securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase, a membership interest or
other Equity Interests of any Credit Party or any Subsidiary.
(b) The
only Subsidiaries of each Credit Party are listed on Schedule 5.2(b).
5.3 Due
Authorization. The execution, delivery and performance of this Agreement and the Other Documents have been duly authorized by all
necessary action on the part of each Credit Party that is a party hereto or thereto.
5.4 No
Conflict. The execution, delivery and performance by Credit Parties of this Agreement and the Other Documents to which they are parties
and the consummation of the transactions contemplated by this Agreement and the Other Documents do not and will not (a) violate in
any material respect any provision of any Applicable Laws relating to any Credit Party, any of the Governing Documents of any Credit Party,
or any order, judgment or decree of any court or other agency of government binding on any Credit Party; (b) conflict with, result
in a breach of or constitute (with due notice or lapse of time or both) a default under any material Contractual Obligations of any Credit
Party (including the ABL Loan Documents); (c) result in or require the creation or imposition of any Lien upon any of the properties
or assets of any Credit Party (other than any Liens created under this Agreement or any of the Other Documents in favor of Agent) whether
now owned or hereafter acquired; or (d) require any approval of stockholders, members or partners or any approval or consent of any
Person under any Governing Document or any other material Contractual Obligation of any Credit Party, in each case except for any such
approval or consent that has been duly obtained.
5.5 Governmental
Consents. The execution, delivery and performance by the Credit Parties of this Agreement and the Other Documents to which they are
parties and the consummation of the transactions contemplated by this Agreement and the Other Documents do not and will not require, as
a condition to the effectiveness thereof, any registration with, consent or approval of, or notice to, or other action to, with or by,
any Governmental Body except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to Agent for
filing and/or recordation, as of the Closing Date and other filings, recordings or consents which have been obtained or made, as applicable.
5.6 Binding
Obligations. Each of this Agreement and each Other Document has been duly executed and delivered by each Credit Party that is a party
thereto and is the legally valid and binding obligation of such Credit Party enforceable against such Credit Party in accordance with
its respective terms, except as may be limited by Debtor Relief Laws or by equitable principles relating to enforceability.
5.7 No
Material Adverse Effect; No Default.
(a) Since
December 31, 2020, no event, circumstance or change has occurred that has caused or evidences, either in any case or in the aggregate,
a Material Adverse Effect.
(b) No
Default or Event of Default has occurred and is continuing.
5.8 Tax
Returns. Each Credit Party and its Subsidiaries have filed all federal, state and other material Tax returns and reports required
to be filed or have obtained a valid extension of the deadline for any such returns or reports such that there are no delinquencies for
filing, and have paid all federal, state and other material Taxes, assessments, fees and other governmental charges levied or imposed
upon them or their respective properties, assets, income, businesses and franchises otherwise due and payable, except those being actively
contested in good faith and by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP. There
is no proposed Tax assessment against any Credit Party or any of its Subsidiaries that would, if made, have a Material Adverse Effect.
5.9 Financial
Statements.
(a) The
balance sheet of DDH and its Subsidiaries prepared on a Consolidated Basis for the most recent Fiscal Year ended and the related statements
of income, equity and cash flows prepared on a Consolidated Basis for such Fiscal Year, including the notes thereto (i) were prepared
in accordance with GAAP consistently applied throughout the period covered thereby (except as otherwise noticed in the Quality of Earnings
Report); (ii) fairly present the financial condition of DDH and its Subsidiaries in all material respects as of the date thereof
and their results of operations for the period covered thereby, in each case, on a Consolidated Basis, in accordance with GAAP consistently
applied throughout the period covered thereby (except as otherwise noticed in the Quality of Earnings Report); and (iii) show all
material indebtedness and other liabilities, direct or contingent, of DDH and its Subsidiaries as of the date thereof, including liabilities
for taxes, material commitments and Indebtedness, to the extent required to be included thereon in accordance with GAAP.
(b) The
audited balance sheet of DDH and its Subsidiaries prepared on a Consolidated Basis as of December 31, 2020, and the related statements
of income, equity and cash flows prepared on a Consolidated Basis for such Fiscal Quarter (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, (ii) fairly present the
financial condition of DDH and its Subsidiaries in all material respects as of the date thereof and their results of operations for the
period covered thereby, in each case, on a Consolidated Basis, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments, except as otherwise expressly noted therein and (iii) show all material
indebtedness and other liabilities, direct or contingent, of DDH and its Subsidiaries as of the date of such financial statements, including
liabilities for taxes, material commitments and Indebtedness to the extent required to be included thereon in accordance with GAAP.
(c) The
pro forma consolidated balance sheet of DDH and its Subsidiaries (the “Pro Forma Balance Sheet”) furnished to Agent
on the date hereof reflects the consummation of the Closing Date Transactions and fairly presents in all material respects the financial
condition of DDH and its Subsidiaries as of October 31, 2021, after giving pro forma effect to the Closing Date Transactions as if
the Closing Date Transactions occurred on such date.
(d) The
four quarter consolidated cash flow projections of DDH and its Subsidiaries delivered by DDH as of the Closing Date (the “Projections”)
were prepared by DDH based upon estimates and assumptions that DDH believes to be reasonable and fair on the Closing Date in light of
present circumstances and, as of the Closing Date, reflected DDH’s good faith estimates of the future financial performance of DDH
and its Subsidiaries on a consolidated basis and of the other information projected therein for the periods set forth therein. Notwithstanding
the foregoing, it is understood that such Projections were and remain subject to uncertainties and contingencies, many of which are beyond
the control of DDH or any of its Subsidiaries, and that no assurance can be given that such Projections will actually be realized. The
Projections together with the Pro Forma Balance Sheet, are referred to as the “Pro Forma Financial Statements”.
(e) The
forecasted balance sheet and statements of income and cash flows of DDH and its Subsidiaries delivered pursuant to Section 9.12
were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing
at the time of delivery of such forecasts, and represented, at the time of delivery, DDH’s best estimate of its future financial
condition and performance.
5.10 Information
Regarding the Credit Parties and their Subsidiaries. Set forth on Schedule 5.10, is the jurisdiction of organization,
the exact legal name (and for the prior five (5) years or since the date of its formation has been) and the true and correct U.S.
taxpayer identification number (or foreign equivalent, if any) of each Credit Party and each of its Subsidiaries as of the Closing Date.
5.11 Environmental
Matters; O.S.H.A..
(a) Each
Credit Party is in compliance with, and its facilities, business, assets, property, leaseholds, Real Property and Equipment are in compliance
with, the Federal Occupational Safety and Health Act in all material respects and Environmental Laws, and there are no material outstanding
citations, notices or orders of non-compliance issued to any Credit Party or relating to its business, assets, property, leaseholds or
Equipment under any such laws, rules or regulations.
(b) No
Credit Party nor any of its Subsidiaries nor any of their respective current Real Property (solely during and with respect to such Person’s
ownership thereof) or operations, and to their knowledge, no former Real Property (solely during and with respect to any Credit Party’s
or its Subsidiary’s ownership thereof), are subject to any outstanding order, consent decree or settlement agreement with any Person
relating to any Environmental Law, any Environmental Claim, or any Hazardous Materials Activity that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
(c) No
Credit Party nor any of its Subsidiaries has received any letter or request for information under Section 104 of CERCLA or any
comparable state law.
(d) There
are and, to each Credit Party’s and its Subsidiaries’ knowledge, have been, no Hazardous Materials Activities which could
reasonably be expected to form the basis of an Environmental Claim against such Credit Party or any of its Subsidiaries that, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(e) No
Credit Party nor any of its Subsidiaries has filed any notice under any Environmental Law indicating past or present treatment of Hazardous
Materials at any Real Property owned or leased by such Person (solely during and with respect to such Credit Party’s or its Subsidiary’s
ownership thereof), and no Credit Party’s nor any of its Subsidiaries’ operations involves the generation, transportation,
treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any equivalent state rule defining
hazardous waste, in each case, except in material compliance with Environmental Law. Compliance with all current requirements pursuant
to or under Environmental Laws could not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
5.12 Solvency;
No Litigation, Violation, Indebtedness or Default.
(a) After
giving effect to the Closing Date Transactions, DDH and its Subsidiaries taken as a whole on a Consolidated Basis are, and, upon the incurrence
of any Advance on any date on which this representation and warranty is made or deemed made, will be, Solvent.
(b) There
are no Adverse Proceedings that (i) as of the date hereof purport to affect or pertain to this Agreement or any Other Document, or
any of the transactions contemplated hereby or (ii) could reasonably be expected to have a Material Adverse Effect. No Credit Party
nor any of its Subsidiaries is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or
regulations of any Governmental Body that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(c) Each
Credit Party and its Subsidiaries is in compliance with (i) the USA PATRIOT Act and OFAC rules and regulations as provided in
Sections 5.29 and 5.30 and (ii) except such non-compliance with such other Applicable Laws that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect, all other Applicable Laws.
(d) (i) Except
as could not reasonably be expected to have a Material Adverse Effect, each of the Credit Parties and their Subsidiaries are in compliance
with all applicable provisions and requirements of ERISA and the Code and the regulations and published interpretations thereunder with
respect to each Pension Plan, and have performed all their obligations under each Pension Plan in all material respects, (ii) each
Pension Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter or
is the subject of a favorable opinion letter from the Internal Revenue Service indicating that such Pension Plan is so qualified and,
to the best knowledge of the Credit Parties, nothing has occurred subsequent to the issuance of such determination letter which would
cause such Pension Plan to lose its qualified status except where such event could not reasonably be expected to result in a Material
Adverse Effect, (iii) except as could not reasonably be expected to have a Material Adverse Effect, no liability to the PBGC (other
than required premium payments), the Internal Revenue Service, any Pension Plan (other than for routine claims and required funding obligations
in the ordinary course) or any trust established under Title IV of ERISA has been incurred by any Credit Party, any of its Subsidiaries
or any of their ERISA Affiliates, (iv) except as would not reasonably be expected to result in liability to any Credit Party or any
of its Subsidiaries in excess of $500,000, no ERISA Event has occurred, and (v) except to the extent required under Section 4980B
of the Code and Section 601 et seq. of ERISA or similar state laws and except as could not reasonably be expected to have a Material
Adverse Effect, no Pension Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or
former employee of any Credit Party or any of its Subsidiaries.
5.13 Patents,
Trademarks, Copyrights and Licenses. As of the Closing Date, all registered or material patents, patent applications, trademarks,
trademark applications, service marks, service mark applications, copyrights, copyright applications, design rights, tradenames and material
licenses therefor owned or utilized by any Credit Party are set forth on Schedule 5.13. Each Credit Party and its Subsidiaries
owns or is validly licensed to use all Intellectual Property that is necessary for the present conduct of its business, free and clear
of Liens (other than Permitted Encumbrances), without conflict with the rights of any other Person unless the failure to own or benefit
from such valid license could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the
knowledge of each Credit Party, no Credit Party nor any of its Subsidiaries is infringing, misappropriating, diluting, or otherwise violating
the Intellectual Property rights of any other Person unless such infringement, misappropriation, dilution or violation could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.14 Licenses,
Permits and Other Approvals. Each Credit Party (a) is in compliance with and (b) has procured and is now in possession of,
all material licenses or permits required by any applicable federal, state, provincial or local law, rule or regulation for the operation
of its business in each jurisdiction wherein it is now conducting or proposes to conduct business, except where the failure to so comply
or procure such licenses or permits could not reasonably be expected to have a Material Adverse Effect.
5.15 Default
of Indebtedness. No Credit Party or Subsidiary thereof is in default in the payment of the principal of or interest on any Indebtedness
of $250,000 or more in principal amount (in the aggregate for all Credit Parties and Subsidiaries) and no such Indebtedness has been accelerated.
5.16 No
Default. No Credit Party nor any of its Subsidiaries is in default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any of its Contractual Obligations (other than Contractual Obligations relating to Indebtedness)
where the consequences, direct or indirect, of such default or defaults, if any, could reasonably be expected to have a Material Adverse
Effect.
5.17 No
Burdensome Restrictions. As of the Closing Date, each Credit Party has heretofore delivered to Agent or provided Agent access to true
and complete copies of all Material Contracts to which it is a party or to which it or any of its properties is subject. No Credit Party
or Subsidiary thereof has agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any
of its property, whether now owned or hereafter acquired, to be subject to a Lien which is not a Permitted Encumbrance.
5.18 No
Labor Disputes. No Credit Party or any of its Subsidiaries is engaged in any unfair labor practice that could reasonably be expected
to have a Material Adverse Effect. There is (a) no unfair labor practice complaint pending against any Credit Party or any of its
Subsidiaries, or to the best knowledge of each Credit Party, threatened against any of them before the National Labor Relations Board
and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against any
Credit Party or any of its Subsidiaries or to the best knowledge of each Credit Party, threatened against any of them, (b) no strike
or work stoppage in existence or to the knowledge of each Credit Party, threatened that involves any Credit Party or any of its Subsidiaries,
and (c) to the best knowledge of each Credit Party, no union representation question existing with respect to the employees of any
Credit Party or any of its Subsidiaries and, to the best knowledge of each Credit Party, no union organization activity that is taking
place, except (with respect to any matter specified in clause (a), (b) or (c) above, either individually
or in the aggregate) such as could not reasonably be expected to have a Material Adverse Effect.
5.19 Margin
Regulations. Neither any Credit Party nor any of its Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of any Term Loan
made to such Credit Party will be used (i) to purchase or carry any such Margin Stock or to extend credit to others for the purpose
of purchasing or carrying any such Margin Stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T,
U or X of the Board of Governors of the Federal Reserve System as in effect from time to time or (ii) to finance or refinance any
(A) commercial paper issued by such Credit Party or (B) any other Indebtedness, except for Indebtedness that such Credit Party
incurred for general corporate or working capital purposes.
5.20 Investment
Company Act. No Credit Party or any of its Subsidiaries is subject to regulation under the Investment Company Act of 1940. No Credit
Party or any of its Subsidiaries is an “investment company” or a company “controlled” by a “registered investment
company” or a “principal underwriter” of a “registered investment company” as such terms are defined in
the Investment Company Act of 1940.
5.21 Disclosure.
No representation or warranty of any Credit Party contained in this Agreement or any Other Document or in any other documents, certificates
or written statements furnished to Agent or any Lender by or on Behalf of any Credit Party or any of its Subsidiaries for use in connection
with the transactions contemplated hereby (other than projections and pro forma financial information contained in such materials) contains
any untrue statement of a material fact or omits to state a material fact (known to any Credit Party, in the case of any document not
furnished by any of them) necessary in order to make the statements contained herein or therein not misleading in any material manner
in light of the circumstances in which the same were made. Any projections and pro forma financial information contained in such materials
are based upon good faith estimates and assumptions believed by the Credit Parties to be reasonable at the time made, it being recognized
by Agent and 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 and that such differences may be material. There are
no facts known to any Credit Party (other than matters of a general economic nature) that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect and that have not been disclosed herein or in such other documents, certificates and
statements furnished to Agent or any Lender.
5.22 Delivery
of Certain Documents. Agent has received true, correct and complete copies of (a) the material ABL Loan Documents, and (b) any
material documents governing or giving rise to any Subordinated Debt (including all exhibits, schedules and disclosure letters referred
to in any of the foregoing or delivered pursuant thereto), if any and, in each case, all amendments thereto, waivers relating thereto
and other side letters or agreements affecting the terms thereof. None of such documents and agreements has been amended or supplemented,
nor have any of the provisions thereof been waived, except, in each case to the extent material to the interests of the Lenders, pursuant
to a written agreement or instrument which has heretofore been delivered to Agent.
5.23 Swaps.
No Credit Party or Subsidiary thereof is a party to, nor will it be a party to, any swap agreement whereby such Credit Party has agreed
or will agree to swap interest rates or currencies unless same provides that damages upon termination following an event of default thereunder
are payable on an unlimited “two-way basis” without regard to fault on the part of either party.
5.24 Immaterial
Subsidiaries. Each Subsidiary of DDH Holdings that has not become a Borrower or Guarantor pursuant to Section 6.12 of
this Agreement is an Immaterial Subsidiary.
5.25 [Reserved].
5.26 Business
and Property of Credit Parties. (i) No Credit Party nor Subsidiary thereof engages in or proposes to engage in any business other
than as described on Schedule 5.26, and other activities reasonably related thereto and extensions thereof; (ii) none of DDH, Intermediate
Holdco or DDH Holdings (subsequent to a Qualified IPO) has engaged in, and does not engage in, any business activities, own any assets
or have any liabilities other than (a) acting as a holding company and transactions incidental thereto, including maintaining policies
of insurance with respect to directors and officers liability and other insurable risks customary for similarly situated companies, (b) receiving
and distributing Restricted Payments permitted pursuant to the terms hereof, (c) liabilities arising under this Agreement, any Other
Document and the ABL Loan Documents to which it is a party, (d) owning the Equity Interests of its Subsidiary, (e) activities,
ownership of immaterial assets and contractual rights, in each case, incidental to the foregoing and to the maintenance of its corporate
existence, (f) activities required to comply with federal and state securities laws, (g) any obligations under any Acquisition
Documents in respect of Permitted Acquisitions, (h) liabilities in respect of the Tax Receivable Agreement, and (i) liabilities
in respect of Public Company Costs.
5.27 Insurance.
The properties of the Credit Parties and their Subsidiaries are insured with financially sound and licensed insurance companies not Affiliates
of such Persons to the extent required under Section 4.11. The insurance coverage of the Credit Parties and their Subsidiaries
as in effect on the Closing Date is outlined as to carrier, policy number, expiration date, type, amount and deductibles on Schedule
5.27.
5.28 [Reserved].
5.29 Anti-Terrorism
Laws; Anti-Corruption Laws.
(a) Each
Credit Party, its Subsidiaries and their respective officers and employees and, to the knowledge of such Credit Party, its directors and
agents, are in compliance with applicable Sanctions and are not engaged in any activity that would reasonably be expected to result in
any Credit Party being designated as a Sanctioned Person. None of the Credit Parties, their Subsidiaries nor their respective Affiliates
is in violation of any of the country or list based economic and trade sanctions administered and enforced by OFAC that are described
or referenced at http://www.ustreas.gov/offices/enforcement/ofac/ or as otherwise published from time to time.
(b) None
of the Credit Parties or their Subsidiaries or, to the knowledge of each Credit Party or its Subsidiaries, any of their respective directors,
officers, employees or Affiliates (i) is a Sanctioned Person, (ii) has any of its assets located in a Sanctioned Country (unless
approved by Agent), or (iii) derives any of its operating income from investments in, or transactions with Sanctioned Persons (unless
approved by Agent). The proceeds of any Term Loan or other transaction contemplated by this Agreement or any Other Document have not been
used (x) in violation of any Sanctions, (y) to fund any operations in, finance any investments or activities in or make any
payments to, a Sanctioned Person or a Sanctioned Country or (z) in any other manner that would result in a violation of Sanctions
by any Person (including Agent, any Lender and any other Person participation in any Term Loan, whether as an underwriter, advisor, investor
or otherwise).
(c) Each
of the Credit Parties and each of its Subsidiaries and, to the knowledge of each Credit Party and its Subsidiaries, each of their respective
directors, officers, employees and Affiliates, is in compliance with Anti-Corruption Laws. None of the Credit Parties nor their respective
Subsidiaries has made a payment, offering, or promise to pay, or authorized the payment of, money or anything of value (i) in order
to assist in obtaining or retaining business for or with, or directing business to, any foreign official, foreign political party, party
official or candidate for foreign political office, (ii) to a foreign official, foreign political party or party official or any
candidate for foreign political office, and (iii) with the intent to induce the recipient to misuse his or her official position
to direct business wrongfully to such Credit Party or any of its Subsidiaries or to any other Person, in violation of any Anti-Corruption
Law. No part of the proceeds of any Advance or other transaction contemplated by this Agreement or any Other Document will violate
Anti-Corruption Laws.
(d) To
the extent applicable, each Credit Party and its Subsidiaries are in compliance with the USA PATRIOT Act.
5.30 Trading
with the Enemy. No Credit Party nor any of its Subsidiaries is an “enemy” or an “ally of the enemy” within
the meaning of Section 2 of the Trading with the Enemy Act of the United States of America (50 U.S.C. App. §§ 1 et seq.),
as amended. To its knowledge, no Credit Party nor any of its Subsidiaries is in violation of (a) the Trading with the Enemy Act,
as amended, (b) any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter
V, as amended) or any enabling legislation or executive order relating thereto or (c) the USA PATRIOT Act. No Credit Party or any
of its Subsidiaries (i) is a blocked person described in Section 1 of the Anti-Terrorism Order or (ii) to the best of its
knowledge, engages in any dealings or transactions, or is otherwise associated, with any such blocked person.
5.31 [Reserved].
5.32 [Reserved].
5.33 Eligible
Impact Service. Each Credit Party agrees that (i) it is not, and shall not be deemed to be, a representation or warranty of Agent
or any Lender as to the adequacy of any “Eligible Impact Service”, the provider thereof or any impact thereof and neither
Agent nor any Lender has made any such representation or warranty as to such program or service, (ii) it has, independently and without
reliance upon Agent or any Lender and based on such documents and information as it has deemed appropriate, made its own appraisal of,
and investigation into, each of the Eligible Impact Services and made its own decision as to the Impact Subscription to such Eligible
Impact Services (and continue to make each such decision) and (iii) Agent shall have no responsibility to ascertain, inquire into,
monitor or enforce any such program or service, any provider thereof or any impact thereof.
5.34 Data
Privacy and Security. Each Credit Party and its Subsidiaries has at all times complied in all material respects with (i) all
of its policies and notices regarding Personal Information, privacy and data security, including all privacy policies and similar disclosures
published on its websites or otherwise communicated to third parties (“Privacy Policies”), (ii) all Privacy and
Security Laws, and (iii) all contractual commitments that each Credit Party and its Subsidiaries has entered into with respect to
Personal Information. Except as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect,
each Credit Party and its Subsidiaries has not been a party to or the subject of any action, claim, complaint or investigation that alleges
that the Credit Party or Subsidiary has violated any Privacy and Security Laws, Privacy Policies or contractual commitments with respect
to any Personal Information collected or possessed by or on behalf of, or otherwise subject to the possession or control of, the Credit
Party or Subsidiary. To the Credit Party’s or Subsidiary’s knowledge, there are no facts or circumstances which could form
the basis for any such claim or violation that, individually or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. Each Credit Party and its Subsidiaries has at all times taken all steps required (by applicable Privacy and Security Laws
and Privacy Policies) and reasonably necessary to protect the security, availability, confidentiality and integrity of Personal Information
against loss and against a Security Incident, including by implementing and at all times maintaining reasonable safeguards that are at
least consistent with best practices in the industry in which the Credit Party and Subsidiary operates and contractually obligating all
third parties who process, store, access, use or otherwise handle any Personal Information for or on behalf of the Credit Party or Subsidiary
to comply with applicable Privacy and Security Laws and Privacy Policies and take all commercially reasonable steps to protect Personal
Information. Each Credit Party and its Subsidiaries has not experienced (nor have any third parties acting on a Credit Party’s or
Subsidiary’s behalf) any actual or suspected Security Incident that could reasonably be expected to result in a Material Adverse
Effect. Each Credit Party and its Subsidiaries has not (nor, to such Credit Party’s knowledge, have any third parties acting on
such Credit Party’s or Subsidiary’s behalf) notified, or been required to notify, any Person or Governmental Body of any Security
Incident that could reasonably be expected to result in a Material Adverse Effect, including any loss or unauthorized access, use or disclosure,
of Personal Information.
5.35 Small
Business Administration Documents. If applicable, each Credit Party hereby acknowledges that the SBIC Lender is an SBIC and is subject
to the SBIC Act and the regulations promulgated thereunder by the SBA relating to the small business investment company program. Although
such regulations are not incorporated into this Agreement, each Credit Party acknowledges that it has been provided with an opportunity
to review such regulations. The information set forth in the SBA Forms (if any) regarding each Credit Party shall be accurate and complete
in all material respects.
5.36 Small
Business Concern. The Credit Parties, together with their “affiliates” (as that term is defined in Title 13, Code of Federal
Regulations, § 121.103), do not presently engage in, and do not intend to engage in, any activities, nor does any Credit Party intend
to use, directly or indirectly, the proceeds of any Advance for any purpose violative of the SBIC Regulatory Side Letter (if any).
5.37 Canadian
Subsidiary. Orange142 Canada does not (i) conduct any business operations or own, hold or lease any assets other than holding
a bank account with a de minimis account balance or (ii) have any material liabilities.
5.38 Survival
of Representations and Warranties. All representations and warranties of the Credit Parties contained in this Agreement and the Other
Documents shall be true at the time of the Credit Parties’ execution of this Agreement and the Other Documents, and shall survive
the execution, delivery and acceptance thereof by the parties thereto and the closing of the transactions described therein or related
thereto.
| VI. | AFFIRMATIVE COVENANTS. |
Each Credit Party shall, and
shall cause each of its Subsidiaries to, until payment in full of the Obligations (other than Inchoate Obligations) and termination of
all obligations of Agent, the Lenders to make Advances hereunder and termination of this Agreement:
6.1 Lender
Meetings. Upon reasonable advance notice and at the request of Agent, participate in a meeting with Agent and Lenders one time each
Fiscal Year (or such additional meetings as Borrower may agree to in its sole discretion) to be held at Borrowers’ corporate offices
(or at such other location as may be agreed to by Borrowers and Agent) at such time as may be agreed to by Borrowers, Agent and Lenders;
provided, that prior to receiving any material, non-public information at any such meetings, Agent and Lenders shall execute a non-disclosure
agreement with respect to such material, non-public information that is in form and substance satisfactory to the Credit Parties in their
reasonable discretion, containing, among other things, standstill provisions preventing transactions in the Credit Parties’ stock.
6.2 Conduct
of Business and Maintenance of Existence and Assets. At all times preserve and keep in full force and effect its existence and good
standing, hold itself out to the public as a legal entity separate and distinct from all other Persons, and preserve and keep all assets,
rights, franchises, licenses and permits material to its business, except (i) to the extent permitted by Section 7.1,
(ii) to the extent not constituting an Asset Sale hereunder, or (iii) to the extent the failure to maintain such assets, rights,
franchises, licenses, or permits could not reasonably be expected to result in a Material Adverse Effect.
6.3 Violations.
Promptly notify Agent in writing after learning of any violation of any law, statute, regulation or ordinance of any Governmental
Body, or of any agency thereof, applicable to any Credit Party which could reasonably be expected to have a Material Adverse Effect.
6.4 Government
Receivables. Upon Agent’s reasonable request, take all steps necessary to protect Agent’s interest in the Collateral under
the Federal Assignment of Claims Act, the Uniform Commercial Code and all other applicable state or local statutes or ordinances and deliver
to Agent (or ABL Lender) appropriately endorsed, any instrument or chattel paper connected with any Receivable arising out of contracts
between any Credit Party and the United States, any state or any department, agency or instrumentality of any of them, except that no
Credit Party shall be required to take such actions with respect to Receivables not exceeding $250,000 in the aggregate for all Credit
Parties unless otherwise requested in writing by Agent during the continuance of an Event of Default.
6.5 Financial
Covenants.
(a) Consolidated
Total Net Leverage Ratio. Cause to be maintained, when measured as of each date set forth below, a Consolidated Total Net Leverage
Ratio of not more than the amount set forth opposite thereto:
Measurement Dates |
Maximum Consolidated Total Net
Leverage |
December 31, 2021 and the last day of each
Fiscal Quarter through and including December 31, 2023
|
3.50 to 1.00 |
March 31, 2024 and the last day of each Fiscal Quarter through and including March 31, 2025 |
3.25 to 1.00 |
June 30, 2025 and September 30, 2025 |
3.00 to 1.00
|
December 31, 2025 and March 31, 2026 |
2.75 to 1.00
|
June 30, 2026 and the last day of each fiscal quarter thereafter |
2.50 to 1.00 |
(b) Consolidated
Fixed Charge Coverage Ratio. Cause to be maintained a Consolidated Fixed Charge Coverage Ratio as of the end of each Fiscal Quarter,
beginning with the Fiscal Quarter ending December 31, 2021, of not less than 1.5 to 1.00.
6.6 Execution
of Supplemental Instruments. Execute and deliver to Agent from time to time, upon demand, such supplemental agreements, statements,
assignments and transfers, or instructions or documents relating to the Collateral, and such other instruments as Agent may reasonably
request in its Permitted Discretion, in order that the full intent of this Agreement may be carried into effect.
6.7 Payment
of Indebtedness. Pay, discharge or otherwise satisfy at or before maturity (subject, where applicable, to specified grace periods
and, in the case of the trade payables, to normal payment practices) all its obligations and liabilities of whatever nature, except when
the failure to do so could not reasonably be expected to have a Material Adverse Effect or when the amount or validity thereof is currently
being properly contested in good faith by appropriate proceedings promptly instituted and diligently conducted and in respect of which
reserves have been established as required in conformity with GAAP, subject at all times to any applicable subordination arrangement in
favor of Lenders.
6.8 Real
Property Collateral.
(a) In
the event that any Credit Party owns or acquires Real Property (other than any Real Property constituting Excluded Property), then such
Credit Party, no later than ninety (90) days (or such longer period as may be agreed in writing by Agent in its sole discretion) after
acquiring such Real Property shall take all such actions and execute and deliver, or cause to be executed and delivered, all such Mortgages,
documents, instruments, agreements, opinions and certificates similar to those described in clause (b) immediately below
that Agent shall reasonably request to create in favor of Agent a valid and, subject to any filing and/or recording referred to herein,
enforceable Lien on, and security interest in such Real Property. Agent may, in its reasonable judgment, grant extensions of time for
compliance or exceptions with respect to the provisions of this Section 6.8 by any Credit Party. In addition to the foregoing,
the applicable Credit Party shall, at the reasonable request of Agent, deliver, from time to time, to Agent such appraisals as are required
by law or regulation of Real Property with respect to which Agent has been granted a Lien.
(b) In
order to create in favor of Agent, a valid and, subject to any filing and/or recording referred to herein, enforceable Lien on, and security
interest in, any Real Property Collateral that is prior and superior in right to any other Lien (other than Permitted Encumbrances), Agent
shall have received from Borrowers with respect to such Real Property Collateral:
(i) a
fully executed and notarized Mortgage, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering
such Real Property Collateral;
(ii) an
opinion of counsel (which counsel shall be reasonably satisfactory to Agent) in each state in which such Real Property is located with
respect to the enforceability of the form of Mortgage to be recorded in such state and such other matters as Agent may reasonably request,
in each case in form and substance reasonably satisfactory to Agent;
(iii) (A) ALTA
mortgagee title insurance policies or unconditional commitments therefor issued by one or more title companies reasonably satisfactory
to Agent (each, a “Title Policy”) with respect to such Real Property, in amounts not less than the fair market
value of such Real Property, together with a title report issued by a title company with respect thereto and copies of all recorded documents
listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Agent and (B) evidence
reasonably satisfactory to Agent that Borrower has paid to the title company or to the appropriate Governmental Bodies all expenses and
premiums of the title company and all other sums required in connection with the issuance of each Title Policy and all applicable
recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgage for such
Real Property Collateral in the appropriate real estate records;
(iv) a
recently issued flood zone determination certificate;
(v) evidence
of flood insurance with respect to each Flood Hazard Property that is located in a community that participates in the National Flood Insurance
Program, in each case in compliance with any applicable regulations of the Board of Governors of the Federal Reserve System, in form and
substance reasonably satisfactory to Agent;
(vi) if
an exception to the Title Policy with respect to any Real Property subject to a Mortgage would arise without such ALTA surveys, ALTA surveys
of such Real Property; and
(vii) reports
and other reasonable information, in form, scope and substance reasonably satisfactory to Agent, regarding environmental matters relating
to such Real Property Collateral.
6.9 Federal
Securities Laws. All documents, financial statements, notices and other information required to be delivered pursuant to this Agreement
may be delivered to Agent electronically and, if so delivered to Agent, shall be deemed to have been delivered on the date (i) on
which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (EDGAR); provided
Borrower will, within three (3) Business Days, provide notice to Agent of such material being
available on EDGAR; or (ii) on which such documents are posted on a Credit Party’s behalf on an Internet or intranet website,
if any, to which the Lenders and the Agent have access and approve in writing (whether a commercial or third-party website or whether
made available by the Agent.
6.10 Exercise
of Rights. Enforce all of its rights under any Acquisition Documents including, but not limited to, all indemnification rights and
pursue its available remedies in respect thereof in the exercise of its reasonable business judgment with diligence and in good faith;
provided, however, that, unless an Event of Default has occurred and is continuing, if in any particular instance the probable
amount of any indemnity payment which would be payable on account of the pursuit of any rights or remedies under any Acquisition Documents
would be less than $250,000 and the applicable Credit Party in the exercise of its reasonable business judgment determines that in such
instance the pursuit of such rights and remedies is not in the best interests of such Credit Party, then the failure of such Credit Party
in such instance to pursue any such rights and remedies shall not be a violation of this Section 6.10.
6.11 [Reserved].
6.12 Additional
Subsidiaries. Prior to the acquisition or formation of any Subsidiary of DDH after the Closing Date, (i) DDH shall (a) form
a wholly owned Subsidiary holding company (such wholly owned Subsidiary, an “Intermediate Holdco”), (b) transfer,
sell and assign all Equity Interests owned by DDH in its existing Subsidiaries to Intermediate Holdco, (c) cause Intermediate Holdco
to execute and deliver (I) a joinder agreement to this Agreement fully executed by Intermediate Holdco, the Credit Parties and the
Agent pursuant to which Intermediate Holdco shall become a Guarantor hereunder and become jointly and severally liable for the Obligations
of the Guarantors hereunder and grant a lien and security interest in its property (to the extent such property would be included in the
definition of Collateral), together with amended and restated and schedules to this Agreement, (II) a fully executed Pledge Agreement
by Intermediate Holdco pursuant to which Intermediate Holdco shall pledge all of the Equity Interests owned by Intermediate Holdco, (III) such
other documents (including without limitation, Control Agreements) as Agent deems necessary to grant to Agent a security interest in any
property of Intermediate Holdco (to the extent such property would be included in the definition of Collateral), and (IV) any other
documents Agent may reasonably require in connection with the forgoing, including without limitation, legal opinions, certificates, and
any documentation and other information requested in connection with applicable “know your customer” and anti-money laundering
rules and regulations, including the USA Patriot Act, and (d) DDH shall deliver a fully executed Pledge Agreement pursuant to
which DDH shall pledge all of the Equity Interests of Intermediate Holdco, and (ii) upon satisfaction of the conditions set forth
in clause (i) above, within thirty (30) days after the acquisition or formation of any Subsidiary of DDH or Intermediate Holdco,
the Credit Parties shall:
(a) notify
Agent thereof in writing, together with the (i) jurisdiction of formation, (ii) number of shares of each class of Equity Interests
outstanding, (iii) number and percentage of outstanding shares of each class owned (directly or indirectly) by any Credit Party or
any Subsidiary and (iv) number and effect, if exercised, of all outstanding options, warrants, rights of conversion or purchase and
all other similar rights with respect thereto;
(b) cause
such Person (other than an Immaterial Subsidiary) to at the election of Agent, either (x) become a Borrower hereunder and under the
Other Documents by executing and delivering to Agent such assumption agreements, joinder documentation (including in the form of Exhibit G
hereto) or such other documents as Agent shall deem appropriate for such purpose, or (y) execute and deliver a Guarantee, Guarantor
Security Agreement and joinders to such Other Documents as Agent may request; and
(c) deliver
to Agent (i) documents of the types referred to in Sections 8.1(b), (c), (d), (e), (f) and (u), and favorable opinions of counsel
to such Person (other than an Immaterial Subsidiary) (which shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in the immediately foregoing clause (b)), all in form, content and scope satisfactory
to Agent and (ii) all documents (including Pledge Agreements with respect to the Equity Interests of such Subsidiary), including
original certificates evidencing the Equity Interests of such Subsidiary and transfer powers with respect thereto executed in blank, required
by Agent in its Permitted Discretion to perfect its Lien on the Equity Interests of such Subsidiary (other than an Immaterial Subsidiary).
6.13 [Reserved].
6.14 Sanctions
and Anti-Corruption Matters. Each Credit Party will, and will cause each of its Subsidiaries to, conduct its businesses in compliance
with Sanctions and the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar anti-corruption
legislation in other jurisdictions and maintain policies and procedures designed to promote and achieve compliance with such laws.
6.15 Impact
Subscription to or Impact Services.
(a) Use
commercially reasonable and good faith efforts, subject to applicable Federal and state securities laws, to (i) in connection with
any Impact Subscription to or Impact Services otherwise obtained by, and made generally available to the employees of, each such Credit
Party and Subsidiary, educate such employees of each Credit Party and each Subsidiary of a Credit Party as to the offerings in each such
Impact Services and the impact and benefits thereof, and (ii) maintain corporate citizenship and utilize best standards of social
responsibility, including, without limitation, with respect to human capital management (it being agreed and acknowledged that the job
quality standards promulgated by the Good Jobs Institute (https://goodjobsinstitute.org) and the good faith utilization of the “Good
Jobs Scoreboard” promulgated thereby shall be deemed to be maintaining corporate citizenship and utilizing best standards of social
responsibility). Without limiting the foregoing, (x) Agent agrees to provide resources, consultation and managerial assistance to
(including, without limitation, guidance and counsel concerning the management, operations or business objectives and policies of) the
Credit Parties and their Subsidiaries with respect to such efforts to the extent reasonably requested by each such Credit Party and Subsidiary
and (y) the Credit Parties shall identify and certify as to any and all efforts to educate employees under clause (i) of
this Section 6.15(a), including, without limitation, as to any workshops, intranet postings, literature distribution, employee
e-mails or otherwise, in each Impact Certificate delivered pursuant to Section 9.8.
(b) Deliver
to any Impact Provider all reasonable documentation such Impact Provider may require in order to provide Agent with information from or
regarding the Credit Parties.
6.16 Post-Closing
Deliveries.
(a) Promptly,
but in any event, not later than the Second Amendment Date, deliver or cause to be delivered to Agent (i) a joinder agreement to
this Agreement fully executed by DDH Holdings, the Credit Parties and the Agent pursuant to which DDH Holdings shall become a Guarantor
hereunder and become jointly and severally liable for the Obligations of the Guarantors hereunder and grant a lien and security interest
in its property (to the extent such property would be included in the definition of Collateral), together with amended and restated and
schedules to this Agreement, (ii) a fully executed Pledge Agreement by DDH Holdings and any Permitted Holders (other than Leah Woolford
or any Person owned by Leah Woolford) owning Equity Interests of DDH, pursuant to which DDH Holdings and such Permitted Holders shall
pledge all of the Equity Interests owned by such Person in DDH, (iii) such other documents (including without limitation, Control
Agreements) as Agent deems necessary to grant to Agent a security interest in any property of DDH Holdings (to the extent such property
would be included in the definition of Collateral), and (iv) any other documents Agent may reasonably require in connection with
the forgoing, including without limitation, legal opinions, certificates, and any documentation and other information requested in connection
with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act.
(b) Deliver
to Agent the Key Executive Policy as required under and in accordance with Section 4.21.
(c) Promptly,
but in any event, on or before February 28, 2022 (or such later date consented to by Agent, such consent not to be unreasonably withheld,
conditioned or delayed), deliver or cause to be delivered to Agent fully executed deposit account control agreements (“Control
Agreements”) in form and substance reasonably satisfactory to Agent, among Agent, ABL Lender, the financial institutions or
other Person at which all applicable deposit accounts are maintained and the Credit Party maintaining such account(s), with respect to
all deposit accounts of Credit Parties (other than those utilized solely for making payroll or employee benefit related payments), including,
without limitation, the Depository Accounts and the Funding Accounts, which agreements shall be effective for Agent to obtain “control”
(as defined in the Uniform Commercial Code) of all such accounts and all monies on deposit in, or credited to, such deposit accounts and
all certificates and instruments, if any, representing or evidencing such deposit accounts.
(d) Deliver
to Agent the Landlord Waiver Agreements as required under and in accordance with Section 4.5(c).
(e) Within
fourteen days after the Closing Date (or such later date agreed to by Agent and the Required Lenders in their reasonable discretion),
Borrowers shall deliver to Agent an amendment to the existing ABL Credit Agreement (an “ABL Amendment”) in effect on
the date hereof, in form and substance satisfactory to Agent and the Required Lenders, pursuant to which ABL Lender agrees to increase
the commitments under the existing ABL Credit Agreement to $5,000,000 and agrees to such other amendments which are satisfactory to Agent
and the Required Lenders in their reasonable discretion; provided however that if such ABL Amendment is not executed and delivered on
or prior to the due date set forth above, it shall not be an Event of Default hereunder if Borrowers terminate the existing ABL Credit
Agreement and repay all obligations owing thereunder no later than the fourteenth day after the Closing Date (or such later date agreed
to by Agent and the Required Lenders in their reasonable discretion).
(f) Within
ten (10) days of the Closing Date, Borrowers shall deliver evidence that their insurance policies are in compliance with Section 4.11
hereof (or otherwise acceptable to Agent and Required Lenders in their sole discretion) and deliver certificates of insurance evidencing
such compliance and the endorsements required to be delivered pursuant to Section 4.11 hereof.
The Credit Parties shall not,
and shall not permit their respective Subsidiaries, until satisfaction in full of the Obligations (other than Inchoate Obligations), termination
of all obligations of Agent and the Lenders to make any Advances hereunder and termination of this Agreement, to:
7.1 Merger,
Consolidation, Acquisition and Sale of Assets. Enter into any Acquisition or transaction of merger or consolidation, or liquidate,
wind-up or dissolve itself (or suffer any liquidation or dissolution), or consummate an LLC Division, or make any Asset Sale (including
by way of an LLC Division), or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory and materials
and the acquisition of equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of,
or Equity Interests or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit
of any Person, except: (a) any Subsidiary of DDH may be merged with or into DDH or any Subsidiary of DDH, or be liquidated, wound
up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed
of, in one transaction or a series of transactions, to DDH or any other Subsidiary of DDH; provided, in the case of such a merger,
if a Borrower is party to the merger, a Borrower shall be the continuing or surviving Person; (b) Asset Sales, the proceeds of which
when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, do not exceed $100,000; provided the
consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith
by the board of directors of the applicable Credit Party (or similar governing body)); (c) Investments made in accordance with Section 7.4;
(d) sales or dispositions of Equity Interests in connection with a Qualified IPO to consummate the Reorganization Transactions or
to effect a Qualified IPO; and (e) dispositions or redemptions of Equity Interests in connection with the Redemption/Exchange Transactions.
7.2 Creation
of Liens. Directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of
any kind (including any document or instrument in respect of goods or accounts receivable) of any Credit Party or any of its Subsidiaries,
whether now owned or hereafter acquired, created or licensed or any income, profits or royalties therefrom, or file or permit the filing
of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset,
income, profits or royalties under the Uniform Commercial Code of any State or under any similar recording or notice statute or under
any Applicable Laws related to intellectual property, except:
(a) Liens
in favor of Agent granted pursuant to this Agreement or any Other Document;
(b) Liens
in favor of ABL Lender pursuant to the ABL Loan Documents to the extent subject to the Intercreditor Agreement;
(c) Liens
for Taxes not yet due and payable or for Taxes if obligations with respect to such Taxes are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted;
(d) statutory
Liens of landlords, banks, carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other
than any such Lien imposed pursuant to Section 430(k) of the Code or Section 303(k) or 4068 of ERISA that would constitute
an Event of Default under Section 10.17), in each case incurred in the ordinary course of business (i) for amounts not
yet overdue, or (ii) for amounts that are overdue and that are being contested in good faith by appropriate proceedings, so long
as such reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made for any such contested amounts;
(e) Liens
incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts,
trade contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed
money or other Indebtedness), so long as no foreclosure, sale or similar proceedings have been commenced with respect to any portion of
the Collateral on account thereof;
(f) easements,
rights-of-way, restrictions, encroachments, and other minor defects or irregularities in title, in each case which do not and will not
interfere in any material respect with the ordinary conduct of the business of any Credit Party or any of its Subsidiaries, including,
without limitation, all encumbrances shown on any policy of title insurance in favor of Agent with respect to any Real Property Collateral;
(g) any
interest or title of a lessor or sublessor under any lease of real estate permitted hereunder;
(h) Liens
solely on any cash earnest money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent,
or purchase agreement permitted hereunder;
(i) purported
Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of personal property entered
into in the ordinary course of business;
(j) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation
of goods;
(k) any
zoning or similar law or right reserved to or vested in any governmental office or agency to control or regulate the use of any real property;
(l) licenses
of patents, trademarks and other intellectual property rights granted by any Credit Party or any of its Subsidiaries in the ordinary course
of business and not interfering in any respect with the ordinary conduct of the business of such Credit Party or such Subsidiary;
(m) Liens
existing as of the Closing Date and described in Schedule 7.2;
(n) Liens
securing purchase money Indebtedness and Capitalized Lease Obligations to the extent permitted pursuant to Section 7.8(g);
provided, any such Lien shall encumber only the asset acquired with the proceeds of such purchase money Indebtedness or the assets
subject to the applicable Capital Lease, respectively;
(o) Liens
consisting of judgment or judicial attachment liens relating to judgments which do not constitute an Event of Default hereunder;
(p) licenses
(including licenses of Intellectual Property), sublicenses, leases or subleases granted to third parties in the ordinary course of business;
(q) Liens
in favor of collecting banks under Section 4-210 of the Uniform Commercial Code;
(r) Liens
(including the right of set-off) in favor of a bank or other depository institution arising as a matter of law encumbering deposits;
(s) Liens
arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods in the ordinary course of
business; and
(t) Liens
not otherwise permitted hereunder securing Indebtedness or other obligations not in excess of $250,000 in the aggregate at any one time
outstanding.
7.3 No
Further Negative Pledges. Enter into any Contractual Obligation (other than this Agreement and the Other Documents and the ABL Loan
Documents) that limits the ability of any Credit Party or any such Subsidiary to create, incur, assume or suffer to exist Liens on property
of such Person; provided, however, that this Section 7.3 shall not prohibit (i) any negative pledge incurred
or provided in favor of any holder of Indebtedness permitted under Section 7.8(g), solely to the extent any such negative
pledge relates to the property financed by or subject to Permitted Encumbrances securing such Indebtedness, (ii) any Permitted Encumbrance
or any document or instrument governing any Permitted Encumbrance; provided that any such restriction contained therein relates
only to the asset or assets subject to such Permitted Encumbrance, (iii) customary restrictions and conditions contained in any agreement
relating to the disposition of any property or assets permitted under Section 7.1 pending the consummation of such disposition,
and (iv) customary provisions restricting assignments, subletting or other transfers contained in leases, licenses, joint venture
agreements and similar agreements entered into in the ordinary course of business.
7.4 Investments.
Directly or indirectly, make or own any Investment in any Person, including any joint venture, or create or form any Subsidiary, except:
(a) Investments in cash and Cash Equivalents and deposit accounts or securities accounts in connection therewith; (b) (i) equity
Investments owned as of the Closing Date in any Subsidiary and (ii) (A) Investments made after the Closing Date by the Credit
Parties in any Credit Party and (B) Investments by a Credit Party in Subsidiaries that are not a Credit Party for the ordinary and
necessary operating expenses of such Subsidiaries in an amount not to exceed $200,000 in the aggregate in any fiscal year and (C) Investments
by Subsidiaries that are not a Credit Party in any other Subsidiary for the ordinary and necessary current operating expenses of such
Credit Party in an amount not to exceed $200,000 in the aggregate in any fiscal year or in any Credit Party; (c) intercompany loans
to the extent permitted under Section 7.8(d) and guarantees to the extent permitted under Section 7.8(e);
(d) Investments existing on the Closing Date and described on Schedule 7.4; (e) Investments constituting Swap Agreements
permitted by Section 7.8(h); (f) Permitted Acquisitions; (g) Investments constituting accounts receivable, trade
debt and deposits for the purchase of goods, in each case, made in the ordinary course of business; (h) repurchases of stock from
current or former employees, directors, or consultants of the Credit Parties under the terms of applicable repurchase agreements: (i) prior
to the consummation of a Qualified IPO, at the original issuance price of such securities in an aggregate amount not to exceed $250,000
in any fiscal year; provided that no Event of Default has occurred, is continuing or could exist after giving effect to the repurchases
and (ii) following a Qualified IPO, subject to satisfaction of the Payment Conditions; (i) Investments consisting of travel
advances in the ordinary course of business; (j) Investments consisting of loans not involving the net transfer on a substantially
contemporaneous basis of cash proceeds to employees, officers or directors relating to the purchase of capital stock or other Equity Interests
of the Credit Parties pursuant to employee stock purchase plans or other similar agreements approved by such Credit Party’s Board
of Directors (or, if not a corporation, its equivalent authorizing body); (k) Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes
with, customers or suppliers arising in the ordinary course of Borrowers’ business; (l) Investments consisting of notes receivable
of, or prepaid royalties and other credit extensions to, customers and suppliers who are not Affiliates, in the ordinary course of business;
provided that this subparagraph (l) shall not apply to Investments of any Borrower in any Subsidiary; (m) formation of,
and Investments in, newly-formed Subsidiaries of DDH or any Subsidiary of DDH so long as DDH and such Subsidiary comply with Section 6.12
hereof; (n) Investments made to consummate the Reorganization Transactions in connection with a Qualified IPO; (o) Investments
required to finance the buyout of the SSP licensing agreement by a Credit Party in an amount not to exceed $750,000 in the aggregate;
provided that no Event of Default has occurred and is continuing or would occur after giving effect to such Investments; and (p) other
Investments not listed above and not otherwise prohibited by this Agreement (i) prior to the consummation of a Qualified IPO, in
an aggregate amount not to exceed $250,000 in the aggregate in any fiscal year and (ii) following a Qualified IPO, in an aggregate
amount not to exceed $500,000 in the aggregate in any fiscal year; provided that to the extent such Investments exceed $200,000
in the aggregate in any fiscal year such Investments shall be subject to satisfaction of the Payment Conditions.
7.5 Sale
and Lease-Backs. Directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease
of any property (whether real, personal or mixed), whether now owned or hereafter acquired, which the Credit Party or any Subsidiary (a) has
sold or transferred or is to sell or to transfer to any other Person (other than a Credit Party), or (b) intends to use for substantially
the same purpose as any other property which has been or is to be sold or transferred by a Credit Party to any Person (other than a Credit
Party) in connection with such lease.
7.6 [Reserved].
7.7 Restricted
Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so, except: (a) each Subsidiary of a Borrower may make Restricted Payments to a Borrower, (b) the Preferred A Redemption on
the Closing Date, (c) Permitted Dividends, (d) redemptions of Equity Interests pursuant to employee, director or consultant
repurchase plans or other similar agreements in an aggregate amount not to exceed $250,000 in any fiscal year; provided, however, in each
case (other than any such repurchase or redemption in the ordinary course of business in connection with an employee incentive plan) the
repurchase or redemption price does not exceed the original consideration paid for such stock or Equity Interest, (e) the conversion
of any of its convertible securities into other securities of such Credit Party pursuant to the terms of such convertible securities,
(f) the payment of cash in lieu of fractional shares upon the conversion of any such convertible securities, not to exceed $500,000
in the aggregate during the Term, (g) Permitted Management Fee Payments or (h) any Credit Party and any Subsidiary may make
Tax Distributions to its members or shareholders when the applicable Tax giving rise to such Tax Distribution is due, including in respect
of estimated Tax payments, so long as: (i) no Event of Default or Default shall be continuing at the time of and after giving pro
forma effect to such Tax Distribution; and (ii) the purpose and calculation of such Tax Distribution shall be set forth in writing
and submitted to Agent at least ten (10) days prior to such Tax Distribution, which shall be conclusive absent manifest error, and
such Tax Distribution shall in fact be used for such purpose, unless an alternative use is approved by the Agent, (i) subsequent
to a Qualified IPO and to the extent made with cash proceeds of a Qualified IPO, cash payments to any holders of DDH’s Preferred
Equity, (j) cash payments to the holders of DDH’s Preferred Equity and cash payments with respect to obligations owing under
the Redemption Agreement subsequent to a Qualified IPO to the extent made with proceeds of the Second Amendment
Delayed Draw Term Loan made on the Second Amendment Date, (k) the transactions
contemplated pursuant to a Qualified IPO, (l) with respect to the payment of Public Company Costs; and
(m) in order to effect the Redemption/Exchange Transactions; and (n) in order to
effect the Warrant Tender Offer.
7.8 Indebtedness.
Directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to
any Indebtedness other than (a) the Obligations; (b) the ABL Obligations in an amount not to exceed the maximum permitted amount
set forth in the Intercreditor Agreement; (c) the Subordinated Debt; provided that such Indebtedness shall at all times be
subject to a Subordination Agreement and have an earliest maturity date or call or redemption date, as applicable, no earlier than at
least six (6) months after the last day of the Term; (d) Indebtedness of the Credit Parties to any other Credit Party; (e) Guarantees
with respect to Indebtedness permitted under this Section 7.8; (f) Indebtedness existing on the Closing Date and described
in Schedule 7.8; (g) (x) Capitalized Lease Obligations and (y) purchase money Indebtedness; provided, in
the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to the applicable Capital Lease,
and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence
of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause
(g) shall not exceed at any time $250,000; (h) Indebtedness in respect of any Swap Agreement that is entered into in the
ordinary course of business to hedge or mitigate risks to which any Credit Party or any of its Subsidiaries is exposed in the conduct
of its business or the management of its liabilities (it being acknowledged by the Credit Parties that a Swap Agreement entered into for
speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate
risks); (i) Indebtedness in connection with the financing of insurance premiums in the ordinary course of business; (j) Indebtedness
representing deferred compensation to officers, directors, employees of DDH and its Subsidiaries; (k) to the extent constituting
Indebtedness, accrued Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted; and (l) other unsecured Indebtedness of the Credit Parties not otherwise permitted hereunder in an aggregate
amount not to exceed at any time $250,000.
7.9 Nature
of Business. From and after the Closing Date, engage in any business other than the Permitted Lines of Business. Notwithstanding anything
herein to the contrary, none of DDH, Intermediate Holdco or, subsequent to a Qualified IPO, DDH Holdings shall (i) incur any
liabilities (other than liabilities arising (a) under this Agreement and the Other Documents and the ABL Loan Documents to which
it is a party, (b) tax liabilities arising in the ordinary course of business, (c) obligations under any Acquisition documents
in respect of a Permitted Acquisition, under any Acquisition Document with respect to a Permitted Acquisition to which it is a party,
(d) liabilities in connection with the Tax Receivables Agreement, (e) liabilities for Public Company Costs, and (f) liabilities
in connection with the Redemption/Exchange Transactions), (ii) own or acquire any assets (other than the Equity Interests of its
Subsidiaries, immaterial assets and contractual rights) or (iii) engage itself in any operations or business, except for those expressly
set forth in Section 5.26.
7.10 Transactions
with Affiliates. Directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange
of any property or the rendering of any service) with any officer, director or Affiliate of DDH or any of its Subsidiaries on terms that
are less favorable to DDH or such Subsidiary, as the case may be, than those that might be obtained at the time from a Person who is not
an officer, director or Affiliate of DDH or any of its Subsidiaries; provided, the foregoing restriction shall not apply to (a) any
transaction between or among the Credit Parties; (b) normal and reasonable compensation and reimbursement of expenses of officers
and directors in the ordinary course of business; (c) transactions otherwise permitted under this Agreement; (d) Permitted Management
Fee Payments; (de) transactions pursuant to the
Tax Receivable Agreement; (ef) transactions pursuant
to the Redemption/Exchange Transactions; and (fg)
the transactions described in Schedule 7.10; and (h) transaction pursuant to the Warrant Tender Offer.
7.11 Burdensome
Agreements. Enter into, or permit to exist, any Contractual Obligation that encumbers or restricts the ability of any such Person
to (i) pay dividends or make any other distributions to a Borrower or other Credit Party on its Equity Interests or with respect
to any other interest or participation in, or measured by, its profits, (ii) pay any Indebtedness or other obligation owed to a Borrower
or any other Credit Party, (iii) make loans or advances to a Borrower or any other Credit Party, (iv) sell, lease or transfer
any of its property to any Borrower or any other Credit Party, (v) pledge its property pursuant to this Agreement or any Other Document
or any renewals, refinancings, exchanges, refundings or extension thereof, or (vi) act as a Credit Party pursuant to this Agreement
and the Other Documents or any renewals, refinancings, exchanges, refundings or extension thereof, except, in each case, for (w) the
ABL Loan Documents, this Agreement and the Other Documents, (x) any document or instrument governing Indebtedness incurred pursuant
to Section 7.8(g); provided that any such restriction contained therein relates only to the asset or assets constructed
or acquired in connection therewith, (y) any Permitted Encumbrance or any document or instrument governing any Permitted Encumbrance,
provided that any such restriction contained therein relates only to the asset or assets subject to such Permitted Encumbrance
or (z) customary restrictions and conditions contained in any agreement relating to the sale of any property permitted under Section 7.1(b) pending
the consummation of such sale.
7.12 [Reserved].
7.13 Fiscal
Year and Accounting Changes. (a) Change its Fiscal Year-end employed by the Credit Parties as of the Closing Date other than
in the case of any Subsidiary, to cause such Subsidiary’s Fiscal Year to end in the same date as the Fiscal Year of DDH or (b) make
any significant change in accounting treatment and reporting practices except as required or permitted by GAAP.
7.14 [Reserved].
7.15 Amendment
of Governing Documents. Amend or permit any amendments to its Governing Documents (x) to amend or change its legal name without
providing not less than twenty (20) days prior written notice to Agent, or (y) if such amendment could reasonably be expected to
be materially adverse to Agent or Lenders, it being understood and agreed that (i) the Reorganization Transactions contemplated by
a Qualified IPO shall not be deemed to be materially adverse to the Agent or Lenders, and (ii) any amendment to a Credit Party’s
Governing Documents that would affect the a pledge of the Equity Interests of such Credit Party (or the rights granted to Agent and Lenders
in connection with such pledge) shall be deemed materially adverse.
7.16 Compliance
with ERISA. (i) (x) Maintain or (y) become obligated to contribute to, any Pension Plan, other than those Pension Plans
disclosed on Schedule 5.8(d) as of the Closing Date or any other Pension Plan for which Agent has provided its prior written
consent, (ii) engage in any non-exempt “prohibited transaction”, as that term is defined in Section 406 of ERISA
and Section 4975 of the Code, with respect to any “plan” as defined in Section 3(3) of ERISA or Section 4975
of the Code which could reasonably be expected to have a Material Adverse Effect, (iii) fail to satisfy, or permit any ERISA Affiliate
to fail to satisfy, the minimum funding standards of the pension funding rules with respect to any Pension Plan, which could reasonably
be expected to result in a Material Adverse Effect, (iv) terminate, or permit any ERISA Affiliate to terminate, any Pension Plan
where such event could result in any material liability of any Credit Party or the imposition of a lien on the property of any Credit
Party pursuant to Section 4068 of ERISA, (v) assume, or permit any ERISA Affiliate to assume, any obligation to contribute to
any Multiemployer Plan for which Agent has not provided its prior written consent, (vi) incur, or permit any ERISA Affiliate to incur,
any withdrawal liability to any Multiemployer Plan in excess of $500,000 or (vii) fail to comply with the requirements of ERISA or
the Code or other Applicable Laws in respect of any “plan” as defined in Section 3(3) of ERISA or Section 4975
of the Code which could reasonably be expected to have a Material Adverse Effect.
7.17 Prepayment
of Indebtedness. Make any payment, redemption, defeasance or acquisition for value of, or refund, refinance or exchange of, any Subordinated
Debt in a manner prohibited by the applicable Subordination Agreement; provided that for the avoidance of doubt, any payment of Subordinated
Debt that would also constitute a Restricted Payment is also subject to Section 7.7 hereof.
Anti-Terrorism
Laws.(a) Use the proceeds of any Advance except as permitted
by Section 2.8. No Credit Party shall use, and each Credit Party shall ensure that its Subsidiaries and its or their respective
directors, officers, employees and agents shall not use, the proceeds of any Advance (i) to refinance any commercial paper, (ii) in
any manner that causes or may reasonably be expected to cause any Advance or the application of such proceeds to violate any applicable
Sanctions, Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System as in effect
from time to time or any other regulation thereof or to violate the Exchange Act, (iii) in furtherance of an offer, payment, promise
to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption
Laws, or (iv) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned
Person, or in any Sanctioned Country; and
(b) No
Covered Entity, either in its own right or through any third party, will (i) have any of its assets in a Sanctioned Country or in
the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (ii) do business in or with, or
derive any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism
Law; (iii) engage in any dealings or transactions prohibited by any Anti-Terrorism Law or (iv) use the Advances to fund any
operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation
of any Anti-Terrorism Law.
The Credit Parties shall deliver to Agent and/or
Lenders, as applicable, any certification or other evidence requested from time to time by Agent and/or any Lender, as applicable in their
sole discretion, confirming the Credit Parties’ compliance with this Section 7.18.
7.19 Membership/Partnership
Interests. Unless consented to by Agent (and all actions, filings and deliveries necessary and desirable in the Permitted Discretion
of Agent to perfect Agent’s first priority security interest (subject to any Permitted Encumbrances) have been completed to Agent’s
reasonable satisfaction) and except with respect to Subsidiaries existing on the Closing Date with respect to which Agent has received
all original certificates evidencing the Equity Interests of such Subsidiaries, elect to treat or permit any of its Domestic Subsidiaries
to (a) treat its limited liability company Equity Interests or partnership interests, as the case may be, as securities as contemplated
by the definition of “security” in Section 8-102(15) and by Section 8-103 of Article 8 of Uniform Commercial
Code or (b) certificate its limited liability company Equity Interests or partnership interests, as the case may be. To the extent
that any of the operating agreements, limited partnership agreements or other agreements governing any Equity Interests of any Credit
Party’s Subsidiaries, or any law applicable thereto, contains any restrictions on the transfer of such Equity Interests, each Credit
Party who owns such Equity Interests and each Credit Party who has issued such Equity Interests hereby (x) consents to the transfer
of such Equity Interests by Agent to any Person in connection with any exercise of Agent’s remedies pursuant to the terms of this
Agreement or any Other Document and (y) consents to any such transferee being admitted as a member or limited partner of such limited
liability company or limited partnership (as applicable) with all of the rights of the Credit Party originally owning such Equity Interests.
7.20 Trading
with the Enemy Act. Engage in any business or activity in violation of the Trading with the Enemy Act.
7.21 Management
Agreement; Management Fees. At any time prior to a Qualified IPO, except in connection with the consummation of a Qualified IPO, (i) enter
into any other management agreement, consulting agreement, or similar arrangement (other than the Management Agreement) without the prior
written consent of Agent; or (ii) pay any Management Fees other than Permitted Management Fee Payments.
7.22 Other
Agreements. Enter into any amendment, waiver or modification of (a) any documents governing or giving rise to any Subordinated
Debt (except to the extent permitted in the subordination agreement with respect thereto) or, in each case, any related agreements, in
each case that could reasonably be expected to be material and adverse to the interests of Agent or Lenders in respect of this Agreement,
the Other Documents or the transactions contemplated hereby or thereby, (b) the ABL Loan Documents to the extent prohibited by the
Intercreditor Agreement, or (c) any Material Contract or Acquisition Documents in a manner which could reasonably be expected to
have any material adverse effect on the interests of Agent or Lenders in respect of this Agreement, the Other Documents or the transactions
contemplated hereby and thereby, unless required by law.
7.23 Canadian
Subsidiary. Permit Orange142 Canada to (1) conduct any business operations or own, hold or lease any assets other than holding
a bank account with a de minimis account balance or (ii) have any material liabilities.
7.24 ABL
Obligations. Until an ABL Amendment or an ABL Replacement is in effect, request any loans or advances under the ABL Credit Agreement
or permit the outstanding principal balance under the ABL Credit Agreement to exceed $0 (other than ordinary course fees due thereunder
which may be charged as loans under such facility to the extent any such fees are paid within one (1) Business Day).
| VIII. | CONDITIONS PRECEDENT. |
8.1 Conditions
to Initial Advances. The agreement of Lenders to make the initial Advances requested to be made on the Closing Date is subject to
the satisfaction, or waiver by Agent and the Lenders, immediately prior to or concurrently with the making of such Advances, of the following
conditions precedent:
(a) Notes.
Agent shall have received the Notes duly executed and delivered by an authorized officer of Borrower, other than the Delayed Draw Term
Note;
(b) Filings,
Registrations and Recordings. Each document (including any Uniform Commercial Code financing statement, including fixture filings)
required by this Agreement, any related agreement or under law or reasonably requested by Agent to be filed, registered or recorded in
order to create, in favor of Agent, a perfected security interest in or lien upon the Collateral shall have been properly filed, registered
or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested by Agent, and Agent
shall have received evidence satisfactory to it (i) of each such filing, registration or recordation and satisfactory evidence of
the payment of any necessary fee, tax or expense relating thereto and (ii) that no Liens exist with respect to the Collateral other
than Permitted Encumbrances;
(c) Company
Proceedings of Credit Parties. Agent shall have received a certificate from the Secretary or Assistant Secretary of each Credit Party,
in form and substance satisfactory to Agent: (i) attesting to the resolutions of such Credit Party’s Board of Directors or
similar governing body authorizing its execution, delivery, and performance of this Agreement and the Other Documents to which it is a
party, (ii) authorizing specific officers of such Credit Party to execute the same and (iii) attesting to the incumbency and
signatures of such specific officers of such Credit Party;
(d) Certificates.
Agent shall have received, with respect to each Credit Party, a copy of the Certificate of Incorporation or Certificate of Formation,
as applicable, of such Credit Party, and all amendments thereto, certified by the Secretary of State or other appropriate official of
its jurisdiction of incorporation or formation together with copies of the bylaws or operating agreement of such Credit Party and all
agreements of such Credit Party’s Equity Interest holders certified as accurate and complete by the Secretary or Assistant Secretary
of such Credit Party;
(e) Good
Standing Certificates. Agent shall have received good standing certificates for each Credit Party, dated a recent date, issued by
the Secretary of State or other appropriate official of such Credit Party’s jurisdiction of incorporation and each jurisdiction
where the conduct of such Credit Party’s business activities or the ownership of its properties necessitates qualification;
(f) Legal
Opinion. Agent shall have received the executed legal opinions of (i) counsel to the Borrowers in form and substance reasonably
satisfactory to Agent, which shall cover such matters incident to the transactions contemplated by this Agreement, and certain material
Other Documents and related agreements as Agent may reasonably require;
(g) No
Litigation. (i) No litigation, investigation or proceeding before or by any arbitrator or Governmental Body shall be continuing
or threatened against any Credit Party or against the officers or directors of any Credit Party (A) in connection with this Agreement,
the Other Documents or any of the transactions contemplated thereby and which, in the reasonable opinion of Agent, is deemed material
or (B) which could, as determined by Agent in its Permitted Discretion, reasonably be expected to have a Material Adverse Effect;
and (ii) no injunction, writ, restraining order or other order of any nature which could, as determined by Agent in its Permitted
Discretion, reasonably be expected to have a Material Adverse Effect, or inconsistent with the due consummation of the Closing Date Transactions
shall have been issued by any Governmental Body;
(h) Financial
Condition Certificates. Agent shall have received an executed Financial Condition Certificate in the form of Exhibit H
and related financial statements of DDH and its Subsidiaries evidencing that the Consolidated Total Net Leverage Ratio of DDH and its
Subsidiaries, calculated on a Pro Forma Basis after giving effect to the Closing Date Transactions is not greater than 2.70 to 1.00;
(i) Fees
and Expenses. Agent shall have received all fees payable to Agent and Lenders on or prior to the Closing Date hereunder, including
under the Fee Letter and pursuant to Article III, and all costs and expenses required to be paid on the Closing Date pursuant
to Section 15.9;
(j) Minimum
Cash. Borrower shall, calculated on a pro forma basis after giving effect to the making of the Closing Date Term Loan and the transactions
contemplated herein, have unrestricted cash on the balance sheet of not less than $4,000,000;
(k) Structure.
The ownership, capital, corporate, tax, organizational and legal structure of DDH and its Subsidiaries (after giving effect to the Closing
Date Transactions) shall be satisfactory to Agent in its reasonable discretion;
(l) Insurance.
Agent shall have received in form and substance satisfactory to Agent, certified copies of the Credit Parties’ casualty insurance
policies, together with lender loss payable endorsements naming Agent as lender loss payee, and certified copies of the Credit Parties’
liability insurance and cybersecurity insurance policies, together with endorsements naming Agent as a co-insured;
(m) Payment
Instructions. Agent shall have received written instructions from Borrowing Agent directing the application of proceeds of the initial
Advances made pursuant to this Agreement, including the Funds Flow Statement;
(n) Certain
Deposit Accounts. Subject to Section 6.17(b), Agent shall have received, in form and substance satisfactory to Agent,
duly executed agreements establishing the Funding Account and the Depository Accounts, together with Control Agreements acceptable to
Agent;
(o) Consents.
Agent shall have received evidence of receipt of any necessary governmental Consents for the Closing Date Transactions and any other Consents
where the failure to obtain such consents could reasonably be expected to have a Material Adverse Effect, as reasonably required by Agent;
(p) Other
Documents. Agent shall have received (i) the executed Fee Letter, (ii) the executed Pledge Agreement, (iii) the Intercreditor
Agreement, (iv) the Preferred Equity Subordination Agreement, and (v) the other executed Other Documents;
(q) Closing
Certificate. Agent shall have received a closing certificate signed by the a Senior Officer of each Credit Party dated as of the Closing
Date (which certifications may be included in the Financial Condition Certificate), stating that (i) all representations and warranties
set forth in this Agreement and each of the Other Documents are true and correct in all material respects (without duplication of any
materiality qualifier contained therein) on and as of the Closing Date as if made on the Closing Date (except to the extent that such
representation or warranty expressly relates to an earlier date (in which event such representations and warranties are true and correct
in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date)), (ii) each
Credit Party is in compliance in all material respects with all of the terms and provisions set forth in this Agreement and the Other
Documents required to be complied with or performed by such Credit Party on or before the Closing Date, (iii) on such date no Event
of Default or Default has occurred and is continuing, and (iv) the other conditions set forth in Section 8.1 have been
met as of the Closing Date;
(r) Compliance
with Laws. Agent shall be reasonably satisfied that the Credit Parties are in compliance in all material respects with all pertinent
federal, state, local or territorial regulations, including those with respect to the Federal Occupational Safety and Health Act, the
Environmental Protection Act, ERISA and the Trading with the Enemy Act;
(s) [Reserved].
(t) [Reserved].
(u) Confirmation
of Lien Releases. Agent shall have received a fully executed letter agreement from Silverpeak Credit Partners, LP reasonably satisfactory
to it confirming that all Liens upon any of the assets of the Credit Parties or any of their Subsidiaries in favor of Silverpeak Credit
Partners, LP have been released prior to or as of the Closing Date;
(v) Closing
Date Transactions. (i) Substantially concurrently with the funding of the Closing Date Term Loans, Borrower shall have completed
the Closing Date Transactions in accordance with the terms of this Agreement and the Other Documents and (ii) Agent shall have received
evidence that all necessary consents, permits and approvals (governmental or otherwise) required for the execution, delivery and performance
by each Credit Party of the Other Documents have been duly obtained and are in full force and effect;
(w) ABL
Obligations. The outstanding principal balance of the ABL Obligations, calculated on a pro forma basis after giving effect to the
making of the Closing Date Term Loan and application of the proceeds thereof, shall be $0.
(x) Background
Checks. Agent and each Lender shall have received, in form and substance acceptable to Agent, all documentation and other information
requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including
the USA Patriot Act;
(y) Quality
of Earnings. Agent shall have received and approved the Quality of Earnings Report, in form and substance reasonably acceptable to
Agent, evidencing trailing twelve month adjusted EBITDA (as defined therein) of DDH and its Subsidiaries of not less than $6,920,000 for
the trailing twelve month period ended October 31, 2021; and
(z) Other.
All corporate and other proceedings, and all documents, instruments and other legal matters in connection with the Closing Date Transactions
shall be in form and substance satisfactory to Agent (and its counsel) in Agent’s Permitted Discretion.
8.2 Conditions
to Delayed Draw Term Loans. The making of anythe Fourth
Amendment Delayed Draw Term Loan is subject to the satisfaction, or waiver by Agent, immediately prior to or concurrently with
the making of such Fourth Amendment Delayed Draw Term Loan, of the following conditions precedent:
(a) No
Event of Default or Default shall have occurred and be continuing on such date, or would exist after giving effect to the Advances requested
to be made, on such date;
(b) After
giving effect to the making of any Delayed Draw Term Loan, DDH and its Subsidiaries (or DDH Holdings
and its Subsidiaries after a Qualified IPO) shall, on a Pro Forma Basis, have a Consolidated
Total Net Leverage Ratio of not greater than 2.70 to 1.00;
(c) Each
of the representations and warranties made by the Credit Parties in or pursuant to this Agreement, the Other Documents and any related
agreements to which it is a party, and each of the representations and warranties contained in any certificate, document or financial
or other statement furnished at any time under or in connection with this Agreement, the Other Documents or any related agreement shall
be true and correct in all material respects (or in all respects with respect to any representation or warranty which, by its terms is
limited as to materiality) on and as of such date as if made on and as of such date, except to the extent such representation or warranty
was expressly made as of an earlier date, in which case, such representation and warranty was true and correct in all material respects
(or in all respects with respect to any representation or warranty which, by its terms is limited as to materiality) on and as of such
earlier date;
(d) Agent
shall have received a Delayed Draw Term Loan Note duly executed and delivered by an authorized officer of each Borrower;
(e) Since
the Closing Date, no Material Adverse Effect shall have occurred;
(f) Agent
and Lenders funding such Fourth Amendment Delayed Draw Term Loan shall have received all fees
payable to Agent and Lenders on or prior to the applicable Delayed Draw Term Loan Funding Date hereunder, including under the Fee Letter,
and all costs and expenses required to be paid pursuant to Section 15.9; and
(g) Agent
shall have received a closing certificate signed by the a Senior Officer of each Credit Party dated as of the applicable Delayed Draw
Term Loan Funding Date, stating that (i) all representations and warranties set forth in this Agreement and the Other Documents are
true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of such date,
except to the extent such representation or warranty was expressly made as of an earlier date, in which case, such representation and
warranty was true and correct in all material respects on and as of such earlier date, (ii) each Credit Party is on such date in
compliance in all material respects (without duplication of any materiality qualifier contained therein) with all the terms and provisions
set forth in this Agreement and the Other Documents, (iii) after giving effect to such Fourth Amendment
Delayed Draw Term Loan (and any acquisition, investment or other transaction
consummated in connection therewith) on a Pro Forma Basis (but without “netting” the cash proceeds of such Delayed Draw Term
Loans funded on such date), the Credit Parties shall be in compliance with the financial covenants set forth in Section 6.5,
and (iv) on such date no Default or Event of Default has occurred or is continuing; and .
(h) Borrowers
shall have entered into an ABL Amendment or a Replacement ABL Credit Agreement prior to requesting such Delayed
Draw Term Loan.
| IX. | INFORMATION AS TO CREDIT PARTIES. |
The Credit Parties shall,
until satisfaction in full of the Obligations (other than Inchoate Obligations), the termination of all obligations of Agent and the Lenders
to make any Advances hereunder and termination of this Agreement:
9.1 Information
Regarding Credit Parties. Promptly upon learning thereof, report to Agent (a) all matters materially and adversely affecting
the value, enforceability or collectability of the Collateral, taken as a whole, and (b) any investigation, hearing, proceeding or
other inquest by any Governmental Body into any Credit Party or any Affiliate of any Credit Party with respect to Anti-Terrorism Laws;
provided, that, to the extent such investigation, hearing, proceeding or other inquest constitutes, as determined by Borrower, material
non-public information, no Credit Party shall be required to report any such information to Agent until such time as Agent delivers to
the Credit Parties a non-disclosure agreement that is in form and substance satisfactory to the Credit Parties in their reasonable discretion;
provided further that the Credit Parties shall provide Agent prompt notice that such investigation, hearing, proceeding or inquest exists.
9.2 [Reserved].
9.3 [Reserved].
9.4 Litigation, etc.
Notify Agent promptly in writing of any claim, litigation, suit or administrative proceeding affecting a Credit Party, whether or not
the claim is covered by insurance, and of any litigation, suit or administrative proceeding, which in any such case affects a material
portion of Collateral, which involves claims for money damages in excess of $250,000 or which could reasonably be expected to have a Material
Adverse Effect.
9.5 Material
Occurrences. Deliver, or cause to be delivered, to Agent, promptly upon any Authorized Officer of any Credit Party obtaining knowledge
(a) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to any Credit Party
with respect there, (b) that any Person has given notice to any Credit Party or any of its Subsidiaries or taken any other action
with respect to any event or condition set forth in Section 10.11, (c) of the occurrence of any material violation of,
or material non-compliance with, any material requirement of Applicable Laws by any Credit Party, or any of its Subsidiaries, including
a description of such violation or non-compliance, or (d) of the occurrence of any Material Adverse Effect (or any other development
in the business or affairs of any Credit Party which could reasonably be expected to have a Material Adverse Effect), a certificate of
its Authorized Officers specifying the nature and period of existence of such condition, event or change, or specifying the notice given
and action taken by any such Person and the nature of such claimed Event of Default, Default, event or condition or change (including,
without limitation, with particularity any and all provisions of this Agreement and any Other Document that have been breached, as applicable),
and what action the Credit Parties have taken, are taking and propose to take with respect thereto.
9.6 Management
Discussion and Analysis. Deliver, or cause to be delivered, to Agent within forty-five (45) days following the end of each Fiscal
Quarter of DDH, written discussion and analysis of the prior Fiscal Quarter prepared by the management of DDH in connection with financial
statements delivered pursuant to Section 9.8.
9.7 Annual
Financial Statements. Deliver, or cause to be delivered, to Agent within ninety (90) days after the end of each Fiscal Year of DDH,
the balance sheets of DDH and its Subsidiaries (or DDH Holdings and its Subsidiaries after a Qualified IPO), prepared on a Consolidated
Basis, as of the end of such Fiscal Year and the related statements of income, equity and cash flows of DDH and its Subsidiaries (or DDH
Holdings and its Subsidiaries after a Qualified IPO), prepared on a Consolidated Basis, for such Fiscal Year, setting forth in each case
after the first anniversary of the Closing Date in comparative form the corresponding figures for the previous Fiscal Year, in reasonable
detail and consistent in all material respects with the manner of presentation as of the Closing Date, together with a Financial Officer
Certification with respect thereto; and with respect to such financial statements beginning with Borrower’s Fiscal Year ending on
or about December 31, 2021, be audited by an independent certified public accountants of recognized national or regional standing
selected by DDH and reasonably acceptable to Agent (the “Accountants”), which report shall be unqualified as to going
concern and scope of audit (other as to qualifications pertaining to periods not audited by said auditor); and, in each case, shall state
that such financial statements fairly present, in all material respects, the financial position, on a Consolidated Basis, of DDH and its
Subsidiaries (or DDH Holdings and its Subsidiaries after a Qualified IPO) as of the dates indicated and the results of their operations
and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the examination by such accountants in connection with such financial statements has
been made in accordance with generally accepted auditing standards.
9.8 Quarterly
Financial Statements. Deliver, or cause to be delivered, to Agent within forty-five (45) days after the end of each Fiscal Quarter
of each Fiscal Year, the balance sheets of DDH and its Subsidiaries (or DDH Holdings and its Subsidiaries after a Qualified IPO), prepared
on a Consolidated Basis, as of the end of such Fiscal Quarter and the related statements of income, equity and cash flows of DDH and its
Subsidiaries (or DDH Holdings and its Subsidiaries after a Qualified IPO), prepared on a Consolidated Basis, for such Fiscal Quarter and
for the prior three Fiscal Quarters during the trailing twelve-month calendar period, setting forth in each case after the first anniversary
of the Closing Date in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year, all in reasonable
detail and consistent in all material respects with the manner of presentation as of the Closing Date and complete and correct in all
material respects, subject to normal and recurring year-end adjustments that individually and in the aggregate are not material to the
Credit Parties’ business operations, together with a Financial Officer Certification with respect thereto. The reports delivered
pursuant to this Section 9.8 shall be accompanied by a Compliance Certificate, an Impact Certificate, and a report setting
forth the Key Performance Indicators for such period; provided, that to the extent that any Key Performance Indicators constitute material
non-public information, the Credit Parties shall be under no obligation to deliver such information to Agent or any Lender until Agent
and Lenders deliver to the Credit Parties a non-disclosure agreement that is in form and substance satisfactory to the Credit Parties
in their reasonable discretion, containing, among other things, standstill provisions preventing transactions in the Credit Parties’
stock.
9.9 Monthly
Financial Statements. Deliver, or cause to be delivered, to Agent within thirty (30) days after the end of each calendar month of
each Fiscal Year, the balance sheets of DDH and its Subsidiaries (or DDH Holdings and its Subsidiaries after a Qualified IPO), prepared
on a Consolidated Basis, as of the end of such calendar month and the related statements of income, equity and cash flows of DDH and its
Subsidiaries (or DDH Holdings and its Subsidiaries after a Qualified IPO), prepared on a Consolidated Basis, for such calendar month and
for the period from the beginning of the then current Fiscal Year to the end of such calendar month, setting forth in each case (in the
case of any such reporting after the first anniversary of the Closing Date) in comparative form the corresponding figures for the corresponding
periods of the previous Fiscal Year, all in reasonable detail and consistent in all material respects with the manner of presentation
as of the Closing Date and complete and correct in all material respects, subject to normal and recurring year-end adjustments that individually
and in the aggregate are not material to the Credit Parties’ business operations and the absence of footnotes, together with a Financial
Officer Certification with respect thereto. Notwithstanding the foregoing, to the extent any of the foregoing constitutes material non-public
information, no Credit Party shall be required to deliver any such financial statements until such time as Agent delivers to the Credit
Parties a non-disclosure agreement that is in form and substance satisfactory to the Credit Parties in their reasonable discretion containing,
among other things, standstill provisions preventing transactions in the Credit Parties’ stock.
9.10 Acquired
Intellectual Property. At any time upon request by Agent, furnish to Agent a report listing all registered copyrights, patents and
trademarks (or applications therefor) acquired by any Credit Party during the period specified by Agent.
9.11 Additional
Information. Deliver, or cause to be delivered, to Agent (a) such additional information as Agent shall reasonably request in
order to enable Agent to determine whether the terms, covenants, provisions and conditions of this Agreement and the Notes have been complied
with by the Credit Parties including, without the necessity of any request by Agent, prior written notice of any change (i) in any
Credit Party’s legal name, (ii) in any Credit Party’s type of legal entity, (iii) in any Credit Party’s Federal
Taxpayer Identification Number or (iv) in any Credit Party’s jurisdiction of incorporation, formation or organization, as applicable,
(b) at least thirty (30) days prior thereto, notice of any Credit Party’s opening of any new office or place of business or
any Credit Party’s closing of any existing office or place of business (which notice, if any, shall be deemed to amend Schedule
4.5), (c) promptly (but in no event later than five days after entry into the same) copies of all amendments, waivers and supplements
to any of the Governing Document or ABL Loan Documents, and (d) such information regarding the operation, business affairs and financial
conditions of DDH and its Subsidiaries which Agent may reasonably request.
9.12 Projections.
Deliver, or cause to be delivered, to Agent within thirty (30) days after the beginning of each Fiscal Year of DDH, forecasts prepared
by management of DDH, on a Consolidated Basis (or for DDH Holdings on a Consolidated Basis subsequent to a Qualified IPO), in form reasonably
satisfactory to Agent, of balance sheets and statements of income or operations and cash flows of DDH and its Subsidiaries (or DDH Holdings
and its Subsidiaries after a Qualified IPO) on a quarterly basis for the immediately following Fiscal Year (including the Fiscal Year(s) in
which the end of the Term occurs).; provided, that to the extent the foregoing constitutes material non-public information,
no Credit Party shall be required to deliver any such financial statements until such time as Agent delivers to the Credit Parties a non-disclosure
agreement that is in form and substance satisfactory to the Credit Parties in their reasonable discretion containing, among other things,
standstill provisions preventing transactions in the Credit Parties’ stock.
9.13 Small
Business Administration. So long as any Lender is an SBIC Lender, the Credit Parties shall, and shall cause their Subsidiaries to,
within ten (10) days of receipt of request from any SBIC Lender, deliver to such SBIC Lender any information requested by the SBA.
9.14 Notice
of Suits, Adverse Events. Furnish Agent with prompt written notice of (i) any lapse or other termination of any Consent issued
to any Credit Party by any Governmental Body or any other Person that is material to the operation of the Credit Parties’ business,
(ii) any refusal by any Governmental Body or any other Person to renew or extend any such Consent; and (iii) copies of any periodic
or special reports filed by any Credit Party with any Governmental Body or Person, if such reports indicate any material change in the
business, operations, affairs or condition of any Credit Party, or if copies thereof are requested by Lender, and (iv) copies of
any material notices and other communications from any Governmental Body or Person which specifically relate to any Credit Party to the
extent any such notices or communications relate to a Material Adverse Effect; provided, that, at any time prior to a Qualified IPO while
the Credit Parties are contemplating a Qualified IPO, the foregoing shall not apply to notices and communications with any Governmental
Body relating solely to procedural or filing requirements for such Qualified IPO .
9.15 ERISA
Notices and Requests. Deliver, or cause to be delivered, to Agent, (i) promptly upon becoming aware of the occurrence of or forthcoming
occurrence of any ERISA Event, a written notice specifying the nature thereof, what action any Credit Party, any of its Subsidiaries or
any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken
or threatened by the Internal Revenue Service, the Department of Labor, the PBGC, or any other party with respect thereto; (ii) (1) promptly
upon reasonable request of Agent, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by any Credit Party, any of its Subsidiaries or any of their respective ERISA Affiliates with respect to each Pension Plan; and
(2) promptly after their receipt, copies of all notices received by any Credit Party, any of its Subsidiaries or any of their respective
ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and (iii) such additional information relating to the
ERISA Event as Agent may reasonably request. Each notice pursuant to this Section 9.15 shall be accompanied by a statement
of an Authorized Officer of DDH setting forth details of the occurrence referred to therein and stating what action DDH and/or the other
applicable Credit Party has taken and proposes to take with respect thereto.
9.16 [Reserved].
9.17 Board
Observation Rights. DH shall notify Agent in writing of the date and time for each meeting of the board of managers or directors,
as applicable, which such meetings shall be no less often than quarterly, of each Borrower in accordance with the Governing Documents
of such Borrower, and shall deliver to Agent all reports and other materials that are provided to the board of directors; provided that
to the extent such reports or materials constitute, as determined by Borrower, material non-public information, no Credit Party shall
be required to deliver any such reports or materials until such time as Agent delivers to the Credit Parties a non-disclosure agreement
that is in form and substance satisfactory to the Credit Parties in their reasonable discretion containing, among other things, standstill
provisions preventing transactions in the Credit Parties’ stock. Subject to the execution by Agent of a board observer agreement
in form and substance reasonably acceptable to the Borrowers, Agent shall have the right to have up to two (2) designated representatives,
at the Borrowers’ expense (including, reimbursement of his or her reasonable out-of-pocket expenses incurred in connection with
such designation), and subject to reasonable and customary confidentiality obligations, attend such meetings of the board of directors
as an observer. Notwithstanding the foregoing, any such observer may be excluded from any such meeting, and such observer and Agent shall
not be required to be delivered or receive any such information and materials (or the relevant portions thereof), if DDH or the applicable
Borrower reasonably determines that such exclusion or reservation of delivery is necessary, based on advice of counsel, to avoid an actual
conflict of interest, including with respect to any indebtedness of DDH or any of its Subsidiaries held by the applicable Agent or any
other Lender, or to protect attorney-client privilege.
The occurrence of any one
or more of the following events shall constitute an “Event of Default”:
10.1 Nonpayment.
Failure by any Credit Party to pay (i) any principal Obligations when due; or (ii) within three (3) Business Days of when
due, any interest on the Obligations or any fee or any other amount due hereunder or in any Other Document, in each case, whether at maturity,
by reason of acceleration pursuant to the terms of this Agreement, by notice of intention to prepay, or by required prepayment;
10.2 Breach
of Representation. Any representation, warranty, certification or other statement made or deemed made by any Credit Party in this
Agreement, any Other Document or in any statement or certificate at any time given by any Credit Party or any of its Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false in any material respect (or in any respect with respect
to any representation or warranty which, by its terms is limited as to materiality) as of the date made or deemed made;
10.3 Noncompliance.
Except as otherwise provided for in Section 10.1, failure or neglect of any Credit Party, or any other applicable Person,
to perform, keep or observe any term, provision, condition, covenant contained in:
(a) Sections 2.8,
4.9, 4.10, 4.11, 4.19(c), 6.2, 6.5, 6.12(b), 6.14, 6.15, 6.16 (other
than 6.16(b)), Article VII, 9.5, 9.6, 9.7, 9.8, 9.9, 9.12 and 9.17,
hereof;
(b) Sections 6.3,
6.6, 9.1, 9.11, 9.14, and 9.15 hereof which is not cured within ten (10) from the occurrence of
such failure or neglect; or
(c) this
Agreement or any of the Other Documents, other than any such term referred to in any other clause of this Section 10.3 and
except as provided in Section 4.21, and such default shall not have been remedied or waived within thirty (30) days after
the earlier of (i) an Authorized Officer of any Credit Party becoming aware of such default, or (ii) receipt by the Credit Parties
of written notice from Agent or any Lender of such default;
10.4 Reserved.
10.5 Judgments
and Attachments. (i) Any one or more non-appealable money judgments, writs or warrants of attachment or similar process involving
an aggregate amount at any time in excess of $250,000 (to the extent not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against any Credit Party or any of its Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days or enforcement proceedings
shall have been commenced by a creditor upon such judgment, writ, warrant or process; or (ii) any non-appealable non-monetary judgment
or order shall be rendered against any Credit Party or any of its Subsidiaries that could reasonably be expected to have a Material Adverse
Effect, and shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days or enforcement proceedings shall
have been commenced by a creditor upon such judgment, writ, warrant or process;
10.6 Criminal
Proceeding. The institution in any court of a criminal proceeding against any Credit Party or officer or director of any Credit Party
which would have a Material Adverse Effect, or the indictment of any Credit Party for any misdemeanors resulting from fraudulent conduct
or any felony, and in any such case the proceeding is not stayed or dismissed, or the indictment is not withdrawn, within thirty (30)
days of such institution or indictment;
10.7 Bankruptcy.
(a) (i) A court of competent jurisdiction shall enter a decree or order for relief in respect of any Credit Party or any Subsidiary
of a Credit Party in an involuntary case under the Bankruptcy Code or Debtor Relief Laws now or hereafter in effect, which decree or order
is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) (w) an involuntary
case shall be commenced against any Credit Party or any Subsidiary of a Credit Party under the Bankruptcy Code or other Debtor Relief
Laws now or hereafter in effect; or (x) a decree or order of a court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over any Credit Party or any Subsidiary
of a Credit Party, or over all or a substantial part of its property, shall have been entered; or (y) there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of any Credit Party or any Subsidiary of a Credit Party for
all or a substantial part of its property; or (z) a warrant of attachment, execution or similar process shall have been issued against
any substantial part of the property of any Credit Party or any Subsidiary of a Credit Party, and any such event described in this clause
(ii) shall continue for ninety (90) days without having been dismissed, bonded or discharged; or (b) (i) any Credit
Party or any Subsidiary of a Credit Party shall have an order for relief entered with respect to it or shall commence a voluntary case
under the Bankruptcy Code or other Debtor Relief Laws now or hereafter in effect, or shall consent to the entry of an order for relief
in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment
of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; (ii) or any Credit
Party or any Subsidiary of a Credit Party shall make any assignment for the benefit of creditors; or (iii) or the board of directors
(or similar governing body) of any Credit Party or any Subsidiary of a Credit Party or any committee thereof shall adopt any resolution
or otherwise authorize any action to approve any of the actions referred to in this Section 10.7 or in Section 10.8;
10.8 Inability
to Pay. (i) Any Credit Party or any Subsidiary of a Credit Party shall be unable, or shall fail generally, or shall admit in
writing its inability, to pay its debts as such debts become due; or (ii) any order, judgment or decree shall be entered against
any Credit Party or any Subsidiary of a Credit Party decreeing the dissolution or split up of such Credit Party or such Subsidiary and
such order shall remain undischarged or unstayed for a period in excess of thirty (30) days;
10.9 Government
Settlement. Any Credit Party enters into a settlement agreement with any Governmental Body that (a) results in aggregate liability
as to any single or related services of transactions, incidents or conditions of $250,000 or more, or (ii) would reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect;
10.10 Material
Adverse Change. The occurrence of any event or development which could reasonably be expected to have a Material Adverse Effect;
10.11 Cross
Default to other Indebtedness. (i) Failure of any Credit Party or any of its Subsidiaries to pay when due any principal of or
interest on or any other amount payable in respect of one or more items of Indebtedness (other than Indebtedness referred to in Section 7.8(a))
in an aggregate principal amount of $250,000 or more (including, without limitation, an Event of Default under the ABL Loan Documents),
in each case beyond the grace or cure period, if any, provided therefor; or (ii) breach or default by any Credit Party with respect
to any other term of (1) one or more items of Indebtedness in the aggregate principal amounts referred to in clause (i) above,
or (2) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness, in each case beyond
the grace or cure period, if any, provided therefor, if the effect of such breach or default is to cause, or to permit the holder or holders
of that Indebtedness (or a trustee on behalf of such holder or holders), to cause, that Indebtedness to become or be declared due and
payable (or subject to a compulsory repurchase or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation,
as the case may be (regardless of whether the holder of such Indebtedness shall actually accelerate, terminate or otherwise exercise any
rights and remedies with respect to such Indebtedness);
10.12 Breach
of Guarantee. Termination or breach of any Guarantee or Guarantor Security Agreement or similar agreement executed and delivered to
Agent in connection with the Obligations of Borrowers, or if any Guarantor attempts, in writing or by legal action, to terminate, challenges
the validity of, or its liability under, any such Guarantee or Guarantor Security Agreement or similar agreement;
10.13 Change
of Control. Any Change of Control shall occur;
10.14 Invalidity.
At any time after the execution and delivery thereof, (i) this Agreement or any Other Document ceases to be in full force and effect
(other than by reason of a release of Collateral in accordance with the terms hereof or thereof or the satisfaction in full of the Obligations
(other than Inchoate Obligations) in accordance with the terms hereof) or shall be declared null and void, or Agent shall not have or
shall cease to have a valid and perfected Lien in any Collateral with the priority required by this Agreement and the Other Documents,
or (ii) any Credit Party shall contest the validity or enforceability of this Agreement or any Other Document in writing or deny
in writing that it has any further liability, including with respect to future advances by Agent or any Lender under this Agreement or
under any Other Document to which it is a party;
10.15 Seizures.
Any material portion of the Collateral shall be seized, subject to garnishment or taken by a Governmental Body, or any Credit Party, or
the title and rights of any Credit Party, shall have become the subject matter of claim, litigation, suit, garnishment or other proceeding
which might, as determined by Agent in its Permitted Discretion, upon final determination, result in impairment or loss of the security
provided by this Agreement or the Other Documents;
10.16 Operations.
Other than those business interruptions which are customary in Credit Party’s industry, the operations of any Credit Party’s
manufacturing facility are interrupted at any time for more than fifteen (15) consecutive days, unless such Credit Party shall (i) be
entitled to receive for such period of interruption, proceeds of business interruption or similar insurance in an amount sufficient to
assure that its per diem cash needs during such period is at least equal to its average per diem cash needs for the consecutive three
month period immediately preceding the initial date of interruption and (ii) receive such proceeds in the amount described in clause
(i) not later than thirty (30) days following the initial date of any such interruption; provided, however, that
notwithstanding the provisions of clauses (i) and (ii) of this Section, an Event of Default shall be deemed to
have occurred if such Credit Party shall be receiving such proceeds for a period of thirty (30) consecutive days;
10.17 Pension
Benefit Plans. There shall occur one or more ERISA Events which individually or in the aggregate results in liability of any Credit
Party, any of its Subsidiaries or any of their respective ERISA Affiliates in excess of $250,000 during the term hereof and which is not
paid by the applicable due date;
10.18 Anti-Terrorism
Laws. If (a) any representation or warranty contained in (i) Section 5.29 hereof or (ii) any corresponding
section of any Guarantee is or becomes false or misleading at any time, (b) any Borrower shall fail to comply with its obligations
under Section 7.18 hereof, or (c) any Guarantor shall fail to comply with its obligations under any section of any Guarantee
containing provisions comparable to those set forth in Sections 5.29 and 7.18 hereof;
10.19 Invalidity
of Intercreditor Agreement or Subordination Provisions. The Intercreditor Agreement or any subordination agreement with respect to
any Subordinated Debt shall cease to be in full force and effect, or any Person party to the Intercreditor Agreement or any such subordination
agreement, other than Agent or any Lender party to this Agreement, shall breach the provisions thereof or shall contest in any manner
the validity, binding nature or enforceability of any such provision or a proceeding shall be commenced by any such Person or any Governmental
Body having jurisdiction over such Person, seeking to establish the invalidity or unenforceability thereof.
| XI. | LENDERS’ RIGHTS AND REMEDIES AFTER DEFAULT, ETC. |
11.1 Rights
and Remedies.
(a) Upon
the occurrence of (i) an Event of Default pursuant to Section 10.7 or 10.8, all Obligations shall be immediately
due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and (ii) any of the
other Events of Default and at any time during the continuance thereafter, at the option of Agent or at the direction of Required Lenders
all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and
to terminate the obligation of Lenders to make Advances. Upon the occurrence of any Event of Default, Agent shall have the right to exercise
any and all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity
generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available
judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter
any of any Credit Party’s premises or other premises without legal process and without incurring liability to any Credit Party therefor,
and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same
to such place as Agent may deem advisable and Agent may require the Credit Parties to make the Collateral available to Agent at a convenient
place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public
or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or
future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market, Agent shall give Borrowing Agent reasonable notification of such sale or
sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales
is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent,
any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of
whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released
by each Credit Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual
nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Credit Party’s (y) trademarks,
trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights
which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing
of such Inventory and (z) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized
from the sale of any Collateral shall be applied to the Obligations in the order set forth in Section 11.5 hereof. Noncash
proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, the Credit Parties shall
remain liable to Agent and Lenders therefor.
(b) To
the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Credit Party acknowledges
and agrees that it is not commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent
to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products
for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not
required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected
or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove
Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated
on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions
of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to
contact other Persons, whether or not in the same business as the Credit Parties (or any of them), for expressions of interest in acquiring
all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral,
whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide
for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers
and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties,
such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of
loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral,
or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and
other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Credit Party acknowledges that the
purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would
not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent
shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation
upon the foregoing, nothing contained in this Section 11.1(b) shall be construed to grant any rights to any Credit Party
or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the absence of
this Section 11.1(b).
(c) Without
limiting any other provisions hereof:
(i) At
any bona fide public sale, and to the extent permitted by Applicable Law, at any private sale, Agent shall be free to purchase all or
any part of the Investment Property. Any such sale may be on cash or credit. Agent shall be authorized at any such sale (if it deems it
advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing
the Investment Property for their own account in compliance with Regulation D of the Securities Act or any other applicable exemption
available under the Securities Act. Agent will not be obligated to make any sale if it determines not to do so, regardless of the fact
that notice of the sale may have been given. Agent may adjourn any sale and sell at the time and place to which the sale is adjourned.
If the Investment Property is customarily sold on a recognized market or threatens to decline speedily in value, Agent may sell such Investment
Property at any time without giving prior notice to any Credit Party or other Person.
(ii) Each
Credit Party recognizes that Agent may be unable to effect or cause to be effected a public sale of the Investment Property by reason
of certain prohibitions of the Securities Act, so that Agent may be compelled to resort to one or more private sales to a restricted group
of purchasers who will be obligated to agree, among other things, to acquire the Investment Property for their own account, for investment
and without a view to the distribution or resale thereof. Each Credit Party understands that private sales so made may be at prices and
on other terms less favorable to the seller than if the Investment Property were sold at public sales, and agrees that Agent has no obligation
to delay or agree to delay the sale of any of the Investment Property for the period of time necessary to permit the issuer of the securities
which are part of the Investment Property (even if the issuer would agree), to register such securities for sale under the Securities
Act. Each Credit Party agrees that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially
reasonable manner.
(iii) The
net cash proceeds arising from the disposition of the Investment Property after deducting expenses incurred by Agent will be applied to
the Obligations pursuant to Section 11.5 hereof. If any excess remains after the discharge of all of the Obligations, the
same will be paid to the applicable Credit Party or to any other Person that may be legally entitled thereto.
(iv) At
any time after the occurrence and during the continuance of an Event of Default (A) Agent may transfer any or all of the Investment
Property into its name or that of its nominee and, after providing the Borrowers with one (1) Business Days prior written notice,
may exercise all voting rights with respect to the Investment Property, but no such transfer shall constitute a taking of such Investment
Property in satisfaction of any or all of the Obligations, and (B) Agent shall be entitled to receive, for application to the Obligations,
all cash or stock dividends and distributions, interest and premiums declared or paid on the Investment Property.
11.2 Agent’s
Discretion. Agent shall have the right in its sole discretion to determine which rights, Liens, security interests or remedies Agent
may at any time pursue, relinquish, subordinate, or modify, which procedures, timing and methodologies to employ, and what any other action
to take with respect to any or all of the Collateral and in what order, thereto and such determination will not in any way modify or affect
any of Agent’s or Lenders’ rights hereunder as against the Credit Parties or each other.
11.3 Setoff.
Subject to Section 14.12, in addition to any other rights which Agent or any Lender may have under Applicable Law, upon the
occurrence of an Event of Default hereunder, Agent and such Lender shall have a right, immediately and without notice of any kind, to
apply any Credit Party’s property held by Agent and such Lender or any of their Affiliates to reduce the Obligations and to exercise
any and all rights of setoff which may be available to Agent and such Lender with respect to any deposits held by Agent or such Lender.
11.4 Rights
and Remedies not Exclusive. The enumeration of the foregoing rights and remedies is not intended to be exhaustive and the exercise
of any rights or remedy shall not preclude the exercise of any other right or remedies provided for herein or otherwise provided by law,
all of which shall be cumulative and not alternative.
11.5 Allocation
of Payments After Event of Default. Notwithstanding any other provisions of this Agreement to the contrary, after the occurrence and
during the continuance of an Event of Default, all amounts collected or received by Agent on account of the Obligations or any other amounts
outstanding under any of the Other Documents or in respect of the Collateral may, at Agent’s discretion, and shall, at the direction
of the Required Lenders, be paid over or delivered as follows:
FIRST, to the payment of all
reasonable costs and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) of Agent in connection
with enforcing its rights and the rights of the Lenders under this Agreement and the Other Documents and any protective advances made
by Agent with respect to the Collateral under or pursuant to the terms of this Agreement;
SECOND, to payment of any
fees owed to Agent;
THIRD, to the payment of all
reasonable out-of-pocket costs and expenses (including reasonable documented (to the extent readily available) attorneys’ fees and
allocated costs of internal counsel) of each of the Lenders to the extent owing to such Lender pursuant to the terms of this Agreement;
FOURTH, to the payment of
all of the Obligations consisting of accrued fees and interest;
FIFTH, to the payment of the
outstanding principal amounts of Term Loans, on a pro rata basis;
SIXTH, to all other Obligations
and other obligations which shall have become due and payable under the Other Documents or otherwise and not repaid pursuant to clauses
“FIRST” through “FIFTH” above; and
SEVENTH, to the payment of
the surplus, if any, to whoever may be lawfully entitled to receive such surplus.
In carrying out the foregoing,
(i) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding
category; and (ii) each of the Lenders shall receive (so long as it is not a Defaulting Lender) an amount equal to its pro rata
share (based on the proportion that the then outstanding Advances held by such Lender bears to the aggregate then outstanding Advances)
of amounts available to be applied pursuant to clauses “FOURTH”, “FIFTH,” “SIXTH”, and “SEVENTH”
above.
| XII. | WAIVERS AND JUDICIAL PROCEEDINGS. |
12.1 Waiver
of Notice. Each Credit Party hereby waives notice of non-payment of any of the Receivables, demand, presentment, protest and notice
thereof with respect to any and all instruments, notice of acceptance hereof, notice of loans or advances made, credit extended, Collateral
received or delivered, or any other action taken in reliance hereon, and all other demands and notices of any description, except such
as are expressly provided for herein.
12.2 Delay.
No delay or omission on Agent’s or any Lender’s part in exercising any right, remedy or option shall operate as a waiver of
such or any other right, remedy or option or of any Default or Event of Default.
12.3 Jury
Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, COUNTERCLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THIS AGREEMENT, ANY OTHER DOCUMENT
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (b) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT, ANY OTHER DOCUMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND EACH PARTY HEREBY CONSENTS THAT
ANY SUCH CLAIM, COUNTERCLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENTS
OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
| XIII. | EFFECTIVE DATE AND TERMINATION. |
13.1 Term.
This Agreement, which shall inure to the benefit of and shall be binding upon the respective successors and permitted assigns of the Credit
Parties, Agent and each Lender, shall become effective on the date hereof and shall continue in full force and effect until December 3,
2026 (the “Term”), unless sooner terminated as herein provided. Borrowers may terminate this Agreement at any time
upon fifteen (15) Business Days’ prior written notice upon payment in full of the Obligations (other than Inchoate Obligations).
13.2 Termination.
The termination of this Agreement shall not affect any Credit Party’s, Agent’s or any Lender’s rights, or any of the
Obligations having their inception prior to the effective date of such termination or any Inchoate Obligations, and the provisions hereof
shall continue to be fully operative until (a) all transactions entered into, rights or interests created or Obligations (other than
Inchoate Obligations) have been fully paid in immediately available funds and (b) each of the Credit Parties have released Agent
and Lenders from and against any and all claims of any nature whatsoever that any Credit Party may have against Agent and Lenders (or
any of them). The security interests, Liens and rights granted to Agent and Lenders hereunder and the financing statements filed in connection
herewith shall continue in full force and effect, notwithstanding the termination of this Agreement or the fact that Borrowers’
Account may from time to time be temporarily in a zero or credit position, until all of the Obligations (other than Inchoate Obligations)
have been paid and performed in full in immediately available funds after the termination of all obligations of Agent and Lenders to make
any Advances hereunder or Borrowers have furnished Agent and Lenders with an indemnification satisfactory to Agent and Lenders with respect
thereto. Accordingly, each Credit Party waives any rights which it may have under the Uniform Commercial Code to demand the filing of
termination statements with respect to the Collateral unless and until all of the Obligations (other than Inchoate Obligations) have been
paid and performed in full in immediately available funds after the termination of all obligations of Agent and Lenders to make any Advances
hereunder, and Agent shall not be required to send such termination statements to any Credit Party, or to file them with any filing office,
until such time. When all of the Obligations (other than Inchoate Obligations) have been paid and performed in full in immediately available
funds after the termination of all obligations of Agent and Lenders to make any Advances hereunder, Agent will, at Borrowers’ sole
expense, execute and deliver any termination statements, lien releases, mortgage releases, re-assignments of trademarks, discharges of
security interests, and other similar discharge or release documents (and, if applicable, in recordable form) as are reasonably necessary
to release, as of record, Agent’s Liens and all notices of security interests and liens previously filed by Agent with respect to
the Obligations. Notwithstanding anything to the contrary set forth herein, all representations, warranties, waivers and indemnities of
the Credit Parties contained herein or in any Other Document shall survive the payment in full of the Obligations and termination of this
Agreement and/or such Other Documents.
13.3 Revival
and Reinstatement of Obligations. If the incurrence or payment of the Obligations by any Credit Party or the transfer to Agent or
any Lender of any property should for any reason subsequently be declared to be void or voidable under any state or federal law relating
to creditors’ rights, including provisions of the Bankruptcy Code or any other Debtor Relief Laws relating to fraudulent conveyances,
preferences, or other voidable or recoverable payments of money or transfers of property (each, a “Voidable Transfer”),
and if Agent or any Lender is required to repay or restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the
reasonable advice of its counsel, then, as to any such Voidable Transfer, or the amount thereof that Agent or such Lender is required
or elects to repay or restore, and as to all reasonable costs, expenses, and attorneys’ fees of Agent and such Lender related thereto,
the liability of each Credit Party automatically shall be revived, reinstated, and restored and shall exist as though such Voidable Transfer
had never been made and any Liens held by Agent previously released or terminated with respect to any Collateral shall be reinstated as
of the date on which Agent or Lenders (as applicable) repays or restores such Voidable Transfer.
14.1 Appointment.
Each Lender hereby designates Lafayette Square to act as Agent for such Lender under this Agreement and the Other Documents. Each Lender
hereby irrevocably authorizes Agent to take such action on its behalf under the provisions of this Agreement and the Other Documents and
to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of Agent by the
terms hereof and thereof and such other powers as are reasonably incidental thereto and Agent shall hold all Collateral, payments of principal
and interest, fees (except the fees set forth in the Fee Letter), charges and collections received pursuant to this Agreement, for the
ratable benefit of Lenders. Agent may perform any of its duties hereunder by or through its agents or employees. Notwithstanding anything
to the contrary contained in this Agreement, Agent shall act or refrain from acting or exercise any discretion (and shall be fully protected
in so acting or refraining from acting) only with the consent of the Required Lenders; provided, however, that Agent shall
not be required to take any action which exposes Agent to liability or which is contrary to this Agreement or the Other Documents or Applicable
Law unless Agent is furnished with an indemnification reasonably satisfactory to Agent with respect thereto.
14.2 Nature
of Duties. Agent shall have no duties or responsibilities except those expressly set forth in this Agreement and the Other Documents.
Neither Agent nor any of its officers, directors, employees or agents shall be (i) liable for any action taken or omitted by them
as such hereunder or in connection herewith, unless caused by their gross (not mere) negligence or willful misconduct (as determined by
a court of competent jurisdiction in a final non-appealable judgment), or (ii) responsible in any manner for any recitals, statements,
representations or warranties made by any Credit Party or any of their respective officers contained in this Agreement, or in any of the
Other Documents or in any certificate, report, statement or other document referred to or provided for in, or received by Agent under
or in connection with, this Agreement or any of the Other Documents or for the value, validity, effectiveness, genuineness, due execution,
enforceability or sufficiency of this Agreement, or any of the Other Documents or for any failure of any Credit Party to perform its obligations
hereunder or under any Other Document. Agent 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 Agreement or any of the Other Documents, or to inspect the
properties, books or records of any of the Credit Parties. The duties of Agent as respects the Advances to Borrowers shall be mechanical
and administrative in nature; Agent shall not have by reason of this Agreement a fiduciary relationship in respect of any Lender; and
nothing in this Agreement, expressed or implied, is intended to or shall be so construed as to impose upon Agent any obligations in respect
of this Agreement or the transactions described herein except as expressly set forth herein.
14.3 Lack
of Reliance on Agent and Resignation. Independently and without reliance upon Agent or any other Lender, each Lender has made and
shall continue to make (a) its own independent investigation of the financial condition and affairs of each Credit Party in connection
with the making and the continuance of the Advances hereunder and the taking or not taking of any action in connection herewith, and (b) its
own appraisal of the creditworthiness of each Credit Party. Agent shall have no duty or responsibility, either initially or on a continuing
basis, to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before making
of the Advances or at any time or times thereafter except as shall be provided by the Credit Parties pursuant to the terms hereof. Agent
shall not be responsible to any Lender for any recitals, statements, information, representations or warranties herein or in any agreement,
document, certificate or a statement delivered in connection with or for the execution, effectiveness, genuineness, validity, enforceability,
collectability or sufficiency of this Agreement or any Other Document, or of the financial condition of any Credit Party, or be required
to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement, the
Note, the Other Documents or the financial condition of any Credit Party, or the existence of any Event of Default or any Default.
Required Lenders may remove
Agent on sixty (60) days’ written notice to each of Agent, Lenders and Borrowing Agent and Agent may resign on sixty (60) days’
written notice to each of Lenders and Borrowing Agent, and upon such removal or resignation, the Required Lenders will promptly designate
a successor Agent reasonably satisfactory to Borrowing Agent (provided that no such approval by Borrowing Agent shall be required
(i) in any case where the successor Agent is one of the Lenders or (ii) after the occurrence and during the continuance of any
Event of Default). Any such successor Agent shall succeed to the rights, powers and duties of Agent, and shall in particular succeed to
all of Agent’s right, title and interest in and to all of the Liens in the Collateral securing the Obligations created hereunder
or any Other Document, and the term “Agent” shall mean such successor agent effective upon its appointment, and the
former Agent’s rights, powers and duties as Agent shall be terminated, without any other or further act or deed on the part of such
former Agent. However, notwithstanding the foregoing, if at the time of the effectiveness of the new Agent’s appointment,
any further actions need to be taken in order to provide for the legally binding and valid transfer of any Liens in the Collateral from
former Agent to new Agent and/or for the perfection of any Liens in the Collateral as held by new Agent or it is otherwise not then possible
for new Agent to become the holder of a fully valid, enforceable and perfected Lien as to any of the Collateral, former Agent shall continue
to hold such Liens solely as agent for perfection of such Liens on Behalf of new Agent until such time as new Agent can obtain a fully
valid, enforceable and perfected Lien on all Collateral, provided that Agent shall not be required to or have any liability or
responsibility to take any further actions after such date as such agent for perfection to continue the perfection of any such Liens (other
than to forego from taking any affirmative action to release any such Liens). After Agent’s resignation as Agent, the provisions
of this Article XIV, and any indemnification rights under this Agreement, including without limitation, rights arising under
Section 15.5 hereof, shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under
this Agreement (and in the event resigning Agent continues to hold any Liens pursuant to the provisions of the immediately preceding sentence,
the provisions of this Article XIV and any indemnification rights under this Agreement, including without limitation, rights
arising under Section 15.5 hereof, shall inure to its benefit as to any actions taken or omitted to be taken by it in connection
with such Liens).
14.4 Certain
Rights of Agent. If Agent shall request instructions from Lenders with respect to any act or action (including failure to act) in
connection with this Agreement or any Other Document, Agent shall be entitled to refrain from such act or taking such action unless and
until Agent shall have received instructions from the Required Lenders; and Agent shall not incur liability to any Person by reason of
so refraining. Without limiting the foregoing, Lenders shall not have any right of action whatsoever against Agent as a result of its
acting or refraining from acting hereunder in accordance with the instructions of the Required Lenders.
14.5 Reliance.
Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate,
e-mail, telecopier or facsimile message, order or other document or telephone message believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person, and, with respect to all legal matters pertaining to this Agreement and the Other
Documents and its duties hereunder, upon advice of counsel selected by it. Agent may employ agents and attorneys-in-fact and shall not
be liable for the default or misconduct of any such agents or attorneys-in-fact selected by Agent with reasonable care.
14.6 Notice
of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder or
under the Other Documents, unless Agent has received notice from a Lender or Borrowing Agent referring to this Agreement or the Other
Documents, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event
that Agent receives such a notice, Agent shall give notice thereof to Lenders. Agent shall take such action with respect to such Default
or Event of Default as shall be reasonably directed by the Required Lenders; provided, that, unless and until Agent shall
have received such directions, Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best interests of Lenders.
14.7 Indemnification.
To the extent Agent is not reimbursed and indemnified by Borrowers, each Lender will reimburse and indemnify Agent in proportion to its
respective portion of the Advances (or, if no Advances are outstanding, according to its applicable Commitment Percentage), from and against
any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against Agent in performing its duties hereunder, or in any way
relating to or arising out of this Agreement or any Other Document; provided that, Lenders shall not be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from
Agent’s gross (not mere) negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable
judgment).
14.8 Agent
in its Individual Capacity. With respect to the obligation of Agent to lend under this Agreement, the Advances made by it shall have
the same rights and powers hereunder as any other Lender and as if it were not performing the duties as Agent specified herein; and the
term “Lender” or any similar term shall, unless the context clearly otherwise indicates, include Agent in its individual capacity
as a Lender. Agent may engage in business with any Credit Party as if it were not performing the duties specified herein, and may accept
fees and other consideration from any Credit Party for services in connection with this Agreement or otherwise without having to account
for the same to Lenders.
14.9 Delivery
of Documents. To the extent Agent receives financial statements or notifications required under Sections 9.7, 9.8,
9.9 and 9.12 pursuant to the terms of this Agreement which the applicable Credit Party is not obligated to deliver to each
Lender, Agent will promptly furnish such documents and information to Lenders.
14.10 Borrowers’
Undertaking to Agent. Without prejudice to its obligations to Lenders under the other provisions of this Agreement, Borrowers hereby
undertake with Agent to pay to Agent from time to time on demand all amounts from time to time due and payable by it for the account of
Agent or Lenders or any of them pursuant to this Agreement to the extent not already paid. Any payment made pursuant to any such demand
shall pro tanto satisfy the relevant Borrower’s obligations to make payments for the account of Lenders or the relevant one
or more of them pursuant to this Agreement.
14.11 No
Reliance on Agent’s Customer Identification Program. Each Lender acknowledges and agrees that neither such Lender, nor any of
its Affiliates, participants or assignees, may rely on Agent to carry out such Lender’s, Affiliate’s, participant’s
or assignee’s customer identification program, or other obligations required or imposed under or pursuant to the USA PATRIOT Act
or the regulations thereunder, including the regulations contained in 31 CFR 103.121 (as hereafter amended, modified, supplemented or
replaced, the “CIP Regulations”), or any other Anti-Terrorism Law, including any programs involving any of the following
items relating to or in connection with any Credit Party, their Affiliates or agents, this Agreement, the Other Documents or the transactions
hereunder or contemplated hereby: (1) any identity verification procedures, (2) any record-keeping, (3) comparisons with
government lists, (4) customer notices or (5) other procedures required under the CIP Regulations or such other laws.
14.12 Other
Agreements. Each of the Lenders agrees that it shall not, without the prior written consent of Agent, and that it shall, to the extent
it is lawfully entitled to do so, upon the request of Agent, set off against the Obligations, any amounts owing by such Lender to any
Credit Party or any deposit accounts of any Credit Party now or hereafter maintained with such Lender. Anything in this Agreement to the
contrary notwithstanding, each of the Lenders further agrees that it shall not, unless specifically requested to do so by Agent, take
any action to protect or enforce its rights arising out of this Agreement or the Other Documents, it being the intent of Lenders that
any such action to protect or enforce rights under this Agreement and the Other Documents shall be taken in concert and at the direction
or with the consent of Agent or Required Lenders.
14.13 Erroneous
Payment.
(a) Each
Lender hereby agrees that (i) if Agent (x) notifies a Lender or any Person who has received funds on behalf of a Lender (any
such Lender or other recipient, a “Payment Recipient”) that Agent has determined in its sole discretion (whether or
not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from Agent) received
by such Payment Recipient from Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously
or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other such Payment Recipient on its behalf)
(any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees or otherwise, individually
and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or
a portion thereof), such Payment Recipient shall promptly, but in no event later than one (1) Business Day thereafter (or such later
date as Agent may, in its sole discretion, specify in writing), return to Agent the amount of any such Erroneous Payment (or portion thereof)
as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent
waived in writing by Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received
by such Lender to the date such amount is repaid to Agent in same day funds at the greater of the overnight bank funding rate and a rate
determined by Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (ii) such
Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives any claim, counterclaim, defense or right of set-off
or recoupment with respect to any demand, claim or counterclaim by Agent for the return of any Erroneous Payments received, including
without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of Agent to any
Lender under this subsection (a) shall be conclusive, absent manifest error.
(b) Without
limiting subsection (a) above, each Lender or other Payment Recipient hereby further agrees that if it receives an Erroneous
Payment from Agent (or any of its Affiliates) (i) that is in an amount different than (other than a de minimis difference), or on
a different date from, that specified in this Agreement or in a notice of payment sent by Agent (or any of its Affiliates) with respect
to such Erroneous Payment (an “Erroneous Payment Notice”), or (ii) that was not preceded or accompanied by an
Erroneous Payment Notice, it shall be on notice that, in each such case, an error has been made with respect to such Erroneous Payment.
Each Lender or other Payment Recipient further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or
portion thereof) may have been sent in error, such Lender or other such Payment Recipient shall promptly notify Agent of such occurrence
and, upon demand from Agent, it shall promptly, but in no event later than one (1) Business Day thereafter, return to Agent the amount
of any such Erroneous Payment (or portion thereof) that was received by such Lender or other such Payment Recipient to the date such amount
is repaid to Agent in same day funds at the greater of the overnight bank funding rate and a rate determined by Agent in accordance with
banking industry rules on interbank compensation from time to time in effect.
(c) Each
Credit Party hereby agrees that (i) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender or other
such Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, Agent shall be subrogated to all
the rights of such Lender with respect to such amount and (ii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise
satisfy any Obligations owed any Credit Party hereunder or under any of the Other Documents.
(d) Each
party’s obligations under this Section 14.13 shall survive the resignation or replacement of Agent or any transfer of
rights or obligations by, or the replacement of, a Lender, the termination of this Agreement, the termination of the commitments of the
Lenders hereunder and the indefeasible payment in full in cash of the Obligations.
15.1 Governing
Law. This Agreement and each Other Document (unless and except to the extent expressly provided otherwise in any such Other Document),
and all matters relating hereto or thereto or arising herefrom or therefrom (whether arising under contract law, tort law or otherwise)
shall, in accordance with Section 5-1401 of the General Obligations Law of the State of New York, be governed by and construed in
accordance with the laws of the State of New York. Any judicial proceeding brought by or against any Credit Party with respect to any
of the Obligations, this Agreement, the Other Documents or any related agreement may be brought in any court of competent jurisdiction
in the State of New York, United States of America, and, by execution and delivery of this Agreement, each Credit Party accepts for itself
and in connection with its properties, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts, and irrevocably
agrees to be bound by any judgment rendered thereby in connection with this Agreement. Each Credit Party hereby waives personal service
of any and all process upon it and consents that all such service of process may be made by registered mail (return receipt requested)
directed to such Credit Party at its address set forth in Section 15.6 and service so made shall be deemed completed five
(5) days after the same shall have been so deposited in the mails of the United States of America, or, at Agent’s option,
by service upon Borrowing Agent which each Borrower irrevocably appoints as such Borrower’s agent for the purposes of accepting
service within the State of New York. Nothing herein shall affect the right to serve process in any manner permitted by law or shall
limit the right of Agent or any Lender to bring proceedings against any Credit Party in the courts of any other jurisdiction. Each Credit
Party waives any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack
of jurisdiction or venue or based upon forum non conveniens. Each Credit Party waives the right to remove any judicial proceeding brought
against such Credit Party in any state court to any federal court. Any judicial proceeding by any Credit Party against Agent or any Lender
involving, directly or indirectly, any matter or claim in any way arising out of, related to or connected with this Agreement or any
related agreement, shall be brought only in a federal or state court located in the Borough of Manhattan, County of New York, State of
New York.
15.2 Entire
Understanding.
(a) This
Agreement and the Other Documents contain the entire understanding between the Credit Parties, Agent and each Lender and supersedes all
prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees
not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each Borrower’s, Agent’s
and the applicable Lender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified,
amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by
an agreement in writing, signed by the party to be charged. Each Credit Party acknowledges that it has been advised by counsel in connection
with the execution of this Agreement and Other Documents and is not relying upon oral representations or statements inconsistent with
the terms and provisions of this Agreement.
(b) The
Required Lenders, Agent with the consent in writing of the Required Lenders, and the Credit Parties signatory hereto may, subject to the
provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the
Other Documents executed by such Credit Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or
waiving in any manner the rights of Lenders, Agent or such Credit Parties thereunder or the conditions, provisions or terms thereof or
waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however,
that no such supplemental agreement shall without the consent of all Lenders:
(i) increase
the Commitment Percentages or the maximum dollar commitment of any Lender or the amount of any Delayed
Draw Term Loan Amount;
(ii) whether
or not any Advances are outstanding, extend the Term or the time for payment of principal or interest of any Advance (excluding the due
date of any mandatory prepayment of an Advance), or any fee payable to any Lender, or reduce the principal amount of or the rate of interest
borne by any Advances or reduce any fee payable to any Lender, without the consent of each Lender directly affected thereby (except that
Required Lenders may elect to waive or rescind any imposition of the Default Rate under Section 3.1 hereof (unless imposed
by Agent));
(iii) alter
the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) release
any Collateral during any calendar year (other than in accordance with the provisions of this Agreement) having an aggregate value in
excess of $1,000,000;
(v) alter,
amend or modify the provisions of Section 11.5 hereof;
(vi) change
the rights and duties of Agent; or
(vii) release
any Guarantor.
(c) Any
such supplemental agreement shall apply equally to each Lender and shall be binding upon the Credit Parties, Lenders and Agent and all
future holders of the Obligations. In the case of any waiver, the Credit Parties, Agent and Lenders shall be restored to their former
positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event
of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of
Default which was waived), or impair any right consequent thereon.
(d) In
the event that Agent or Borrowers request the consent of a Lender (other than Lafayette Square or any of its Affiliates) pursuant to this
Section 15.2 and such consent is denied, then Agent or Borrowers may, at their respective option and upon five (5) Business
Days prior written notice to Agent (if given by Borrowers) and such Lender (a “Non-Consenting Lender”), require such
Non-Consenting Lender to assign its interest in the Advances to Lafayette Square, or if Lafayette Square shall decline to purchase such
interest, to another Lender or to any other Person eligible to become a Purchasing Lender in accordance with the terms of Section 15.3(c),
for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Non-Consenting
Lender, which interest and fees shall be paid when collected from Borrowers. In the event any Non-Consenting Lender is required to assign
its interests hereunder, such Non-Consenting Lender will assign its interest, pursuant to a Transfer Supplement, on the date specified
in the notice given to such Non-Consenting Lender, which shall be no later than fifteen (15) Business Days after the date of such notice.
(e) Agent
is hereby authorized by each Borrower and the Lenders, from time to time in Agent’s sole discretion, (i) after the occurrence
and during the continuation of a Default or an Event of Default, or (ii) at any time that any of the other applicable conditions
precedent set forth in Section 8.2 hereof have not been satisfied, to make advances to Borrowers on behalf of the Lenders
which Agent, in its reasonable business judgment, deems necessary or desirable (x) to preserve or protect the Collateral, or any
portion thereof, (y) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or
(z) to pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement.
15.3 Successors
and Assigns; Participations; New Lenders.
(a) This
Agreement shall be binding upon and inure to the benefit of the Credit Parties signatory hereto, Agent, each Lender, all future holders
of the Obligations and their respective successors and permitted assigns, except that no Credit Party may assign or transfer any of its
rights or obligations under this Agreement without the prior written consent of Agent and each Lender.
(b) Each
Credit Party acknowledges that in the regular course of commercial banking business one or more Lenders may at any time and from time
to time sell participating interests in the Advances to other financial institutions (each such transferee or purchaser of a participating
interest, a “Participant”). Upon the occurrence and during the continuance of an Event of Default, each Participant
may, with the prior consent of Agent, exercise all rights of payment (including rights of set-off) with respect to the portion of such
Advances held by it or other Obligations payable hereunder as fully as if such Participant were the direct holder thereof and the Obligations
shall be reduced by the amount of any such setoff, provided that Borrowers shall not be required to pay to any Participant more
than the amount which it would have been required to pay to Lender which granted an interest in its Advances or other Obligations payable
hereunder to such Participant had such Lender retained such interest in the Advances hereunder or other Obligations payable hereunder
and in no event shall Borrowers be required to pay any such amount arising from the same circumstances and with respect to the same Advances
or other Obligations payable hereunder to both such Lender and such Participant. Each Borrower hereby grants to any Participant a continuing
security interest in any deposits, moneys or other property actually or constructively held by such Participant as security for the Participant’s
interest in the Advances. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrowers, maintain
a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s
interest in the Advances and Obligations (the “Participant Register”); provided that no Lender shall have any
obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating
to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under this Agreement or any Other
Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit
or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in
the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in
the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(c) Any
Lender, with the consent of Agent which shall not be unreasonably withheld or delayed, may sell, assign or transfer all or any part of
its rights and obligations under or relating to the Term Loans under this Agreement and the Other Documents to one or more Eligible Assignees
and one or more Eligible Assignees may commit to make Advances hereunder (each a “Purchasing Lender”), in minimum amounts
of not less than $1,000,000 in the case of any transfer to any Purchasing Lender which is not a Lender or an Affiliate of Lender prior
to such transfer, pursuant to a Transfer Supplement, executed by a Purchasing Lender, the transferor Lender, and Agent and delivered to
Agent for recording. Upon such execution, delivery, acceptance and recording, from and after the transfer effective date determined pursuant
to such Transfer Supplement, (i) Purchasing Lender thereunder shall be a party hereto and, to the extent provided in such Transfer
Supplement, have the rights and obligations of a Lender thereunder with the Commitment Percentages as set forth therein, and (ii) the
transferor Lender thereunder shall, to the extent provided in such Transfer Supplement, be released from its obligations under this Agreement,
the Transfer Supplement creating a novation for that purpose. Such Transfer Supplement shall be deemed to amend this Agreement to the
extent, and only to the extent, necessary to reflect the addition of such Purchasing Lender and the resulting adjustment of the Commitment
Percentages arising from the purchase by such Purchasing Lender of all or a portion of the rights and obligations of such transferor Lender
under this Agreement and the Other Documents. Each Borrower hereby consents to the addition of such Purchasing Lender and the resulting
adjustment of the Commitment Percentages arising from the purchase by such Purchasing Lender of all or a portion of the rights and obligations
of such transferor Lender under this Agreement and the Other Documents. Borrowers shall execute and deliver such further documents and
do such further acts and things in order to effectuate the foregoing. Notwithstanding the foregoing or anything to the contrary set forth
herein, no assignment or transfer shall be made to a Defaulting Lender unless an Event of Default shall have occurred and be continuing.
(d) Any
Lender, with the consent of Agent which shall not be unreasonably withheld or delayed, may directly or indirectly sell, assign or transfer
all or any portion of its rights and obligations under or relating to the Term Loans under this Agreement and the Other Documents to an
entity, whether a corporation, partnership, trust, limited liability company or other entity that (i) is engaged in making, purchasing,
holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and (ii) is
administered, serviced or managed by the assigning Lender or an Affiliate of such Lender (a “Purchasing CLO” and together
with each Participant and Purchasing Lender, each a “Transferee” and collectively the “Transferees”),
pursuant to a Transfer Supplement modified as appropriate to reflect the interest being assigned (“Modified Transfer Supplement”),
executed by any intermediate purchaser, the Purchasing CLO, the transferor Lender, and Agent as appropriate and delivered to Agent for
recording. Upon such execution and delivery, from and after the transfer effective date determined pursuant to such Modified Transfer
Supplement, (i) Purchasing CLO thereunder shall be a party hereto and, to the extent provided in such Modified Transfer Supplement,
have the rights and obligations of a Lender thereunder and (ii) the transferor Lender thereunder shall, to the extent provided in
such Modified Transfer Supplement, be released from its obligations under this Agreement, the Modified Transfer Supplement creating a
novation for that purpose. Such Modified Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing CLO. Each Borrower hereby consents to the addition of such Purchasing CLO. Borrowers
shall execute and deliver such further documents and do such further acts and things in order to effectuate the foregoing. Notwithstanding
the foregoing or anything to the contrary set forth herein, no assignment or transfer shall be made to a Defaulting Lender unless an Event
of Default shall have occurred and be continuing.
(e) Each
Borrower hereby acknowledges and makes the Obligations registered Obligations for United States withholding tax purposes. Agent shall
maintain at its address a copy of each Transfer Supplement and Modified Transfer Supplement delivered to it and a register (the “Register”)
for the recordation of the names and addresses of each Lender and the outstanding principal, accrued and unpaid interest and other fees
due hereunder and Agent shall record the assignment of the Advances in the Register. Any assignment of the Advances, whether or not evidenced
by a note, shall be effective as to Borrowers only upon appropriate entries with respect thereto being made in the Register. The entries
in the Register shall be prima facie evidence, in the absence of manifest error, and Borrowers, Agent and Lenders may treat each Person
whose name is recorded in the Register as the owner of the Advances recorded therein for the purposes of this Agreement notwithstanding
notice to the contrary. The Lenders, by their acceptance of this Agreement or any Transfer Supplement, agree to be bound by the provisions
of this paragraph and to indemnify and hold harmless Agent against any loss or liability arising from the assignment by a holder of the
Advances in violation of this subsection (e). The Register shall be available for inspection by Borrowers or any Lender at any
reasonable time and from time to time upon reasonable prior notice. Agent shall receive a fee in the amount of $3,500 payable by the applicable
Purchasing Lender and/or Purchasing CLO upon the effective date of each transfer or assignment (other than to an intermediate purchaser)
to such Purchasing Lender and/or Purchasing CLO.
(f) Each
Credit Party authorizes each Lender to disclose to any Transferee and any prospective Transferee any and all financial information in
such Lender’s possession concerning any Credit Party which has been delivered to such Lender by or on behalf of any Credit Party
pursuant to this Agreement or in connection with such Lender’s credit evaluation of any Credit Party.
(g) Any
Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge
or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
15.4 Application
of Payments. Agent shall have the continuing and exclusive right, in its Permitted Discretion, to apply or reverse and re-apply any
payment and any and all proceeds of Collateral to any portion of the Obligations. To the extent that any Credit Party makes a payment
or Agent or any Lender receives any payment or proceeds of the Collateral for any Credit Party’s benefit, which are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor in possession, receiver,
custodian or any other party under any bankruptcy law, common law or equitable cause, then, to such extent, the Obligations or part thereof
intended to be satisfied shall be revived and continue as if such payment or proceeds had not been received by Agent or such Lender.
15.5 Indemnity.
Each Credit Party shall defend, protect, indemnify, pay and save harmless Agent, each Lender and each of their respective officers, directors,
Affiliates, attorneys, employees and agents (each an “Indemnified Party”) for and from and against any and all claims,
demands, liabilities, obligations, losses, damages, penalties, fines, actions, judgments, suits, costs, charges, expenses and disbursements
of any kind or nature whatsoever (including reasonable fees and disbursements of counsel (including allocated costs of internal counsel))
(collectively, “Claims”) which may be imposed on, incurred by, or asserted against any Indemnified Party arising out
of or in any way relating to or as a consequence, direct or indirect, of: (a) this Agreement, the Other Documents, the Advances and
other Obligations, the Eligible Impact Services, and/or the transactions contemplated hereby including the Closing Date Transactions,
(b) any action or failure to act or action taken only after delay or the satisfaction of any conditions by any Indemnified Party
in connection with and/or relating to the negotiation, execution, delivery or administration of the Agreement and the Other Documents,
the credit facilities established hereunder and thereunder and/or the transactions contemplated hereby including the Closing Date Transactions,
(c) any Credit Party’s failure to observe, perform or discharge any of its covenants, obligations, agreements or duties under
or breach of any of the representations or warranties made in this Agreement and the Other Documents, (d) the enforcement of any
of the rights and remedies of Agent or any Lender under the Agreement and the Other Documents, (e) any threatened or actual imposition
of fines or penalties, or disgorgement of benefits, for violation of any Anti-Terrorism Law by any Credit Party, any Affiliate or Subsidiary
of any of the Credit Parties, and (f) any claim, litigation, proceeding or investigation instituted or conducted by any Governmental
Body or instrumentality, any Borrower, any Affiliate or Subsidiary of any Borrowers, or any Guarantor, or any other Person with respect
to any aspect of, or any transaction contemplated by, or referred to in, or any matter related to, this Agreement or the Other Documents,
whether or not Agent or any Lender is a party thereto. Without limiting the generality of any of the foregoing, each Credit Party shall
defend, protect, indemnify, pay and save harmless each Indemnified Party from any Claims which may be imposed on, incurred by, or asserted
against any Indemnified Party under any Environmental Laws with respect to or in connection with any Real Property owned or leased by
any Credit Party, any Environmental Liability, the presence of any Hazardous Materials affecting any Real Property owned or leased by
any Credit Party (whether or not the same originates or emerges from such Real Property or any contiguous real estate), including any
Claims consisting of or relating to the imposition or assertion of any Lien on any Real Property owned or leased by any Credit Party under
any Environmental Laws and any loss of value of such Real Property as a result of the foregoing except to the extent such loss, liability,
damage and expense is attributable to any Hazardous Materials Activity resulting from actions on the part of Agent or any Lender. The
Credit Parties’ obligations under this Section 15.5 shall arise upon the discovery of the presence of any Hazardous
Materials at any Real Property owned or leased by any Credit Party, whether or not any federal, state, or local environmental agency has
taken or threatened any action in connection with the presence of any Hazardous Materials, in each such case except to the extent that
any of the foregoing arises out of the gross negligence or willful misconduct of the Indemnified Party (as determined by a court of competent
jurisdiction in a final and non-appealable judgment). Without limiting the generality of the foregoing, this indemnity shall extend to
any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements of any kind or
nature whatsoever (including fees and disbursements of counsel) asserted against or incurred by any of the Indemnified Parties by any
Person under any Environmental Laws or similar laws by reason of any Credit Party’s or any other Person’s failure to comply
with laws applicable to solid or hazardous waste materials, including Hazardous Materials. This Section 15.5 shall not apply
with respect to Taxes other than Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
15.6 Notice.
Any notice or request hereunder may be given to any Credit Party or to Agent or any Lender at their respective addresses set forth below
or at such other address as may hereafter be specified in a notice designated as a notice of change of address under this Section. Any
notice, request, demand, direction or other communication (for purposes of this Section 15.6 only, a “Notice”)
to be given to or made upon any party hereto under any provision of this Agreement shall be given or made by telephone or in writing (which
includes by means of electronic transmission (i.e., e-mail) or facsimile transmission or by setting forth such Notice on a website
(an “Internet Posting”) if Notice of such Internet Posting (including the information necessary to access such site)
has previously been delivered to the applicable parties hereto by another means set forth in this Section 15.6) in accordance
with this Section 15.6. Any such Notice must be delivered to the applicable parties hereto at the addresses and numbers set
forth under their respective names on Section 15.6 hereof or in accordance with any subsequent unrevoked Notice from any such
party that is given in accordance with this Section 15.6. Any Notice shall be effective:
(a) In
the case of hand-delivery, when delivered;
(b) If
given by mail, five days after such Notice is deposited with the United States Postal Service, with first-class postage prepaid, return
receipt requested;
(c) In
the case of a telephonic Notice, when a party is contacted by telephone, if delivery of such telephonic Notice is confirmed no later than
the next Business Day by hand delivery, a facsimile or electronic transmission, an Internet Posting or an overnight courier delivery of
a confirmatory Notice (received at or before noon on such next Business Day);
(d) In
the case of a facsimile transmission, when sent to the applicable party’s facsimile machine’s telephone number, if the party
sending such Notice receives confirmation of the delivery thereof from its own facsimile machine;
(e) In
the case of electronic transmission, when actually received;
(f) In
the case of an Internet Posting, upon delivery of a Notice of such posting (including the information necessary to access such site) by
another means set forth in this Section 15.6; and
(g) If
given by any other means (including by overnight courier), when actually received.
Any Lender giving a Notice
to any Credit Party shall concurrently send a copy thereof to Agent, and Agent shall promptly notify the other Lenders of its receipt
of such Notice.
(A) If
to Agent at:
|
Lafayette Square Loan Servicing, LLC |
|
PO Box 25250 |
|
PMB 13941 |
|
Miami, Florida 33102-5250 |
|
Attention: |
Susan Golden |
|
Email: |
legal@lafayettesquare.com; |
|
lsloanops@lafayettesquare.com |
|
|
|
with a copy to (which shall not constitute notice) to: |
|
|
|
Blank Rome LLP |
|
One Logan Square |
|
Philadelphia, Pennsylvania 19103 |
|
Attention: |
Shlomo B. Troodler, Esq. |
|
Telephone: |
(215) 569-5338 |
|
Facsimile: |
(215) 832-5338 |
|
E-mail: |
troodler@blankrome.com |
(B) If
to a Lender other than Agent, as specified on the signature pages hereof;
(C) If
to any Credit Party:
|
Direct Digital Holdings, LLC |
|
1233 West Loop South, Suite 1170 |
|
Huston, TX 77042 |
|
Attention: Mark Walker |
|
E-mail: mwalker@directdigitalholdings.com |
|
|
|
with a copy (which shall not constitute notice) to: |
|
|
|
McGuireWoods LLP |
|
2000 McKinney Avenue |
|
Suite 1400 |
|
Dallas, TX 75201 |
|
Attention: Phyllis Y. Young |
|
Telephone: (214) 932-6420 |
|
E-mail: pyoung@mcguirewoods.com |
15.7 Survival.
The obligations of the Credit Parties under Sections 3.7, 3.9, 3.10, 4.19(e), 15.5 and 15.9
and the obligations of Lenders under Section 14.7, shall survive termination of this Agreement and the Other Documents and
payment in full of the Obligations.
15.8 Severability.
If any part of this Agreement is contrary to, prohibited by, or deemed invalid under Applicable Laws, such provision shall be inapplicable
and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby and shall
be given effect so far as possible.
15.9 Expenses.
The Credit Parties shall pay all reasonable costs and expenses including reasonable attorneys’ fees (including the allocated costs
of in house counsel) and disbursements incurred by Agent on its Behalf or on Behalf of Lenders: (a) in all efforts made to enforce
payment of any Obligation or effect collection of any Collateral, (b) in connection with the entering into, preparation, negotiation,
execution, delivery, modification, amendment, administration (including costs and expense with respect to electronic distribution services
for distribution of documents and information to the Lenders) and enforcement of this Agreement, the Other Documents or any consents or
waivers hereunder or thereunder and all related agreements, documents and instruments (whether or not the transactions contemplated hereby
or thereby shall be consummated), (c) in instituting, maintaining, preserving, enforcing and foreclosing on Agent’s security
interest in or Lien on any of the Collateral, or maintaining, preserving or enforcing any of Agent’s or any Lender’s rights
hereunder, under the Other Documents and under all related agreements, documents and instruments, whether through judicial proceedings
or otherwise, (d) in defending or prosecuting any actions or proceedings arising out of or relating to Agent’s or any Lender’s
transactions with the Credit Parties or Seller or (e) in connection with any advice given to Agent or any Lender with respect to
its rights and obligations under this Agreement, the Other Documents and all related agreements, documents and instruments; provided,
however, notwithstanding the foregoing, the Borrowers shall not be required to reimburse the costs of (x) more than one (1) field
examinations in any consecutive period of 365 days unless an Event of Default shall have occurred and be continuing and (y) more
than one (1) appraisal of machinery and equipment and of Inventory in any consecutive period of 365 days unless an Event of Default
shall have occurred and be continuing.
15.10 Injunctive
Relief. Each Credit Party recognizes that, in the event such Credit Party fails to perform, observe or discharge any of its obligations
or liabilities under this Agreement, or threatens to fail to perform, observe or discharge such obligations or liabilities, any remedy
at law may prove to be inadequate relief to Lenders; therefore, Agent, if Agent so requests, shall be entitled to temporary and permanent
injunctive relief in any such case without the necessity of proving that actual damages are not an adequate remedy.
15.11 Damages.
Neither Agent nor any Lender, nor any agent or attorney for any of them, shall be liable to any Credit Party (or any Affiliate of any
such Person) for indirect, punitive, exemplary or consequential damages arising from any breach of contract, tort or other wrong relating
to the establishment, administration or collection of the Obligations or as a result of any transaction contemplated under this Agreement
or any Other Document.
15.12 Captions.
The captions at various places in this Agreement are intended for convenience only and do not constitute and shall not be interpreted
as part of this Agreement.
15.13 Counterparts, etc.
This Agreement may be executed in any number of and by different parties hereto on separate counterparts, all of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute one and the same agreement. Any signature delivered by a party
by facsimile or other similar method of electronic transmission (including email transmission of a PDF image) shall be deemed to be an
original signature hereto.
15.14 Construction.
The parties acknowledge that each party and its counsel have reviewed this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement
or any amendments, schedules or exhibits thereto.
15.15 Confidentiality;
Sharing Information. Agent, each Lender and each Transferee shall hold all non-public information obtained by Agent, such Lender or
such Transferee (and designated as non-public information by Borrower in writing) pursuant to the requirements of this Agreement in accordance
with Agent’s, such Lender’s and such Transferee’s customary procedures for handling confidential information of this
nature; provided, however, Agent, each Lender and each Transferee may disclose such confidential information (a)(i) to
its examiners, Affiliates, outside auditors, counsel and other professional advisors, (ii) to Agent, any Lender or to any prospective
Transferees, (iii) to any investor or prospective investor in Agent, any Lender, or any of their respective affiliates, in each case,
subject to a non disclosure agreement containing provisions substantially the same as those of this Section 15.15 and among
other things, standstill provision preventing transactions in the Credit Parties’ stock and in compliance with applicable Federal
and state securities laws, (b) as required by any Governmental Body or representative thereof or pursuant to legal process or in
public filings to the extent customary, (c) subject to an agreement (i) in connection with the exercise of any secured creditor
remedy under this Agreement or under any of the Other Documents, and (ii) subject to a non disclosure agreement containing provisions
substantially the same as those of this Section 15.15 and in compliance with applicable Federal and state securities laws,
in connection with a bona fide initial public offering of Equity Interests of Agent, any Lender or any Transferee, to the extent disclosure
is required or advisable (in the determination of Agent, such Lender or such Transferee, as applicable, and their respective counsel)
under the Securities Act of 1933, as amended; provided, further, that (I) unless specifically prohibited by Applicable
Law, Agent, each Lender and each Transferee shall use its reasonable best efforts prior to disclosure thereof, to notify Borrowing Agent
of the applicable request for disclosure of such non-public information (A) by a Governmental Body or representative thereof (other
than any such request in connection with an examination of the financial condition of a Lender or a Transferee by such Governmental Body)
or (B) pursuant to legal process; provided, that notwithstanding anything to the contrary above in this sub-clause (I), the foregoing
notice obligation shall not apply with respect to disclosures of non-public information that are requested or required pursuant to routine
regulatory examinations or inquiries that do not reference any Credit Party, this Agreement or any Other Document, to which Agent, Lender
or a Transferee is subject in the ordinary course of business, and (II) in no event shall Agent, any Lender or any Transferee be
obligated to return any materials furnished by any Credit Party other than those documents and instruments in possession of Agent or any
Lender in order to perfect its Lien on the Collateral once the Obligations have been paid in full (other than Inchoate Obligations) and
the termination of all obligations of Agent and the Lenders to make any Advances hereunder. Each Credit Party acknowledges
that from time to time financial advisory, investment banking and other services may be offered or provided to such Credit Party or one
or more of its Affiliates (in connection with this Agreement or otherwise) by any Lender or by one or more Subsidiaries or Affiliates
of such Lender and each Credit Party hereby authorizes each Lender to share any information delivered to such Lender by any Credit Party
and/or their respective Subsidiaries pursuant to this Agreement or any Other Document, or in connection with the decision of such Lender
to enter into this Agreement, to any such Subsidiary or Affiliate of such Lender, it being understood that any such Subsidiary or Affiliate
of any Lender receiving such information shall be bound by the provisions of this Section 15.15 as if it were a Lender hereunder.
Such authorization shall survive the repayment of the other Obligations and the termination of this Agreement.
AGENT AND EACH LENDER ACKNOWLEDGE THAT INFORMATION
received from any Credit Party relating to such Credit Party or any Subsidiary
or their businesses or the Collateral FURNISHED TO SUCH PERSON PURSUANT TO THIS AGREEMENT MAY INCLUDE INFORMATION IDENTIFIED
BY THE CREDIT PARTIES AS MATERIAL NON-PUBLIC INFORMATION CONCERNING SUCH CREDIT PARTY, ITS SUBSIDIARIES AND ITS OTHER AFFILIATES
AND THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF SUCH MATERIAL NON-PUBLIC
INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS
AND AMENDMENTS, FURNISHED BY ANY CREDIT PARTY OR THE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL
INFORMATION, WHICH MAY CONTAIN INFORMATION IDENTIFIED BY THE CREDIT PARTIES AS MATERIAL NON-PUBLIC INFORMATION CONCERNING THE CREDIT
PARTIES, THEIR SUBSIDIARIES AND THEIR OTHER AFFILIATES AND THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH OF AGENT AND EACH LENDER REPRESENTS
TO THE CREDIT PARTIES THAT SUCH PERSON HAS IDENTIFIED A CREDIT CONTACT (WHICH SUCH PERSON MAY CHANGE FROM TIME TO TIME UPON NOTICE
FROM SUCH PERSON TO THE CREDIT PARTIES) WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN SUCH MATERIAL NON-PUBLIC INFORMATION AND
SHARE SUCH INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
15.16 PUBLICITY.
EACH CREDIT PARTY AND EACH LENDER HEREBY AUTHORIZES AGENT, AT ITS OWN EXPENSE, AND WITH THE PRIOR
WRITTEN CONSENT OF DDH (SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD), TO MAKE APPROPRIATE ANNOUNCEMENTS OF THE FINANCIAL ARRANGEMENT
ENTERED INTO AMONG THE CREDIT PARTIES, AGENT AND LENDERS and related services, and hereby grants permission for agent to use the logo
of any Credit Party and lender, INCLUDING in marketing materials and other ANNOUNCEMENTS WHICH ARE COMMONLY KNOWN AS TOMBSTONES, IN
SUCH PUBLICATIONS, media, or forum AND TO SUCH SELECTED PARTIES AS AGENT SHALL IN ITS SOLE AND ABSOLUTE DISCRETION DEEM APPROPRIATE;
provided, that no announcements pursuant to this section 15.16 shall be made prior to the
consummation of a qualified Ipo or while any Credit Party is contemplating a qualified IPO and all such announcements pursuant to this
section 15.16 shall be in conformance with applicable FEDERAL AND STATE securities laws.
15.17 Certifications
From Banks and Participants; USA PATRIOT Act.
(a) Each
Lender or assignee or participant of a Lender that is not incorporated under the Applicable Laws of the United States of America or a
state thereof (and is not excepted from the certification requirement contained in Section 313 of the USA PATRIOT Act and the applicable
regulations because it is both (i) an affiliate of a depository institution or foreign bank that maintains a physical presence in
the United States or foreign country, and (ii) subject to supervision by a banking authority regulating such affiliated depository
institution or foreign bank) shall deliver to Agent the certification, or, if applicable, recertification, certifying that such Lender
is not a “shell” and certifying to other matters as required by Section 313 of the USA PATRIOT Act and the applicable
regulations: (1) within 10 days after the Closing Date, and (2) as such other times as are required under the USA PATRIOT Act.
(b) The
USA PATRIOT Act requires all financial institutions to obtain, verify and record certain information that identifies individuals or business
entities which open an “account” with such financial institution. Consequently, any Lender may from time to time request,
and each Credit Party shall provide to such Lender, such Credit Party’s name, address, tax identification number and/or such other
identifying information as shall be necessary for such Lender to comply with the USA PATRIOT Act and any other Anti-Terrorism Law.
15.18 Borrowing
Agency Provisions.
(a) Each
Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes,
and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on Behalf of
such Borrower, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing
Agent.
(b) The
handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely
as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to any Borrower as a result
thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and
holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury
asserted against Agent or any Lender by any Borrower arising from or incurred by reason of the handling of the financing arrangements
of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action
taken by Agent or any Lender with respect to this Section 15.18 except due to willful misconduct or gross (not mere) negligence
by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All
Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise,
and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance
granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give Borrowing Agent or any Borrower notice of borrowing
or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or
any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice
issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral
for any Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
| XVI. | Guaranty and Suretyship Agreement. |
16.1 Guaranty
and Suretyship Agreement. Each Guarantor hereby guarantees, and becomes surety for the prompt payment and performance when due (whether
at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of all of the Obligations owing by the
Credit Parties to Agent and Lenders (the “Guaranteed Obligations”). The obligations and liabilities of the Guarantors
under this Article XVI are joint and several, and each Guarantor hereby acknowledges and accepts such joint and several liability
and further acknowledges and agrees that the joint and several liabilities of Guarantors under the provisions of this Article XVI
shall be primary and direct liabilities and not secondary liabilities.
16.2 Guaranty
of Payment and Not Merely Collection. The provisions of this Article XVI constitute a guaranty of payment and not of collection
and neither Agent nor any Lender shall be required, as a condition of any Guarantor’s liability hereunder, to make any demand upon
or to pursue any of their rights against any Credit Parties and/or any of the Collateral, or to pursue any rights which may be available
to Agent and Lenders with respect to any other person who may be liable for the payment of the Guaranteed Obligations and/or any other
collateral or security available to Agent and Lenders therefor.
16.3 Guarantor
and Suretyship Waivers.
(a) The
provisions of this Article XVI constitute an absolute, unconditional, irrevocable and continuing guaranty and will remain
in full force and effect until all of the Guaranteed Obligations have been paid in full. The provisions of this Article XVI
will remain in full force and effect even if there are no Guaranteed Obligations outstanding at a particular time or from time to time.
The provisions of this Article XVI will not be affected (i) by any surrender, exchange, acceptance, compromise or release
by Agent and Lenders of any other party, or any other guaranty or any Collateral or other collateral or security held by it for any of
the Guaranteed Obligations, (ii) by any failure of Agent and Lenders to take any steps to perfect or maintain their Liens or security
interest in or to preserve their rights in or to any Collateral or any other security or other collateral for the Guaranteed Obligations
or any guaranty, or (iii) by any irregularity, unenforceability or invalidity of the Guaranteed Obligations or any part thereof or
any security therefor or other guaranty thereof, and the provisions of this Article XVI will not be affected by any other
facts, events, occurrences or circumstances (except payment in full of the Guaranteed Obligations) that might otherwise give rise to any
“guarantor” or “suretyship” defenses to which any Guarantor might otherwise be entitled, all of which such “guarantor”
or “suretyship” defenses are hereby waived by each Guarantor. The obligations of each Guarantor hereunder shall not be affected,
modified or impaired by any counterclaim, set-off, deduction or defense of any kind, including any such counterclaim, set-off, deduction
or defense based upon any claim such Guarantor may have against any Borrower, Agent or any Lender, or based upon any claim any Borrower
or any other guarantor or surety may have against Agent and Lenders, except payment in full of the Guaranteed Obligations.
(b) Notice
of acceptance of the agreement to guaranty provided for under the provisions of this Article XVI, notice of extensions of
credit to Borrowers from time to time, notice of default, diligence, presentment, notice of dishonor, protest, demand for payment, and
any defense based upon Agent’s or any Lender’s failure to comply with the notice requirements of §§ 9-611,
9-612 and 9-613 of the Uniform Commercial Code are hereby waived to the fullest extent permitted by law. Each Guarantor hereby waives
all defenses based on suretyship or impairment of collateral to the fullest extent permitted by law.
(c) Agent
may at any time and from time to time, in accordance with the terms of this Agreement, without impairing or releasing, discharging or
modifying any Guarantor’s liabilities hereunder and (for purposes of this Article XVI only) without notice to or the
consent of any Guarantor: (i) change the manner, place, time or terms of payment or performance of or interest rates or other fees
on, or other terms relating to (including the maturity thereof), any of the Guaranteed Obligations; (ii) renew, extend, substitute,
modify, amend or alter or refinance, or grant consents or waivers relating to any of the terms and provisions of this Agreement or any
of the Other Documents or of the Guaranteed Obligations, or of any other guaranties, or any security for the Obligations or guaranties,
(iii) increase (without limit of any kind) or decrease the Guaranteed Obligations (including all loans and extensions of credit thereunder)
or modify the terms on which loans and extensions of credit may be made to Borrower (including without limitation by making available
to Borrowers under this Agreement and/or any Other Document and as part of the Guaranteed Obligations any new loans, advances or other
extensions of credit of any kind, including any such new loans, advances or extension of credit of a new or different type or nature as
compared to the loans, advances and extensions of credit available to Borrowers under this Agreement as of the date hereof); (iv) apply
any and all payments by whomever paid or however realized including any proceeds of the Collateral or any other collateral or security,
to any Guaranteed Obligations in such order, manner and amount as Agent may determine in its sole discretion, but in accordance with the
terms of this Agreement; (v) settle, compromise or deal with any other Person, including any Borrower or any other guarantor, with
respect to the Guaranteed Obligations in such manner as Agent deems appropriate in its sole discretion; (vi) substitute, exchange,
subordinate, sell, compromise or release any security or guaranty for the Guaranteed Obligations; or (vii) take such actions and
exercise such remedies hereunder as provided herein.
16.4 Repayments
or Recovery from Agent or Lenders. If any demand or claim is made at any time upon Agent or any Lender for the repayment or
recovery of any amount received by it in payment or on account of the Guaranteed Obligations (including any such demand or claim made
in respect of or arising out of any laws relating to fraudulent transfers, fraudulent conveyances or preferences) and if Agent or any
Lender repays all or any part of such amount by reason of any judgment, decree or order of any court or administrative body in respect
of such demand or claim, or by reason of any settlement or compromise of any such demand or claim, the joint and several liability of
Guarantors with respect to such portion of the Guaranteed Obligations previously satisfied by the payment of the amount so repaid or recovered
shall be reinstated and revived and Guarantors will be and remain jointly and severally liable hereunder for the amount so repaid or recovered
to the same extent as if such amount had never been received originally by Agent and/or such Lender, as the case may be. The provisions
of this Section 16.4 shall survive any release and/or termination of this Agreement (and/or of any Guarantor’s liability
under this Article XVI) and will be and remain effective notwithstanding any contrary action which may have been taken by
Guarantor in reliance upon such payment, and any such contrary action so taken will be without prejudice to Agent’s or any Lender’s
rights hereunder and any such release and/or termination will be deemed to have been conditioned upon such payment having become final
and irrevocable.
16.5 Enforceability
of Obligations. No modification, limitation or discharge of the Guaranteed Obligations arising out of or by virtue of any bankruptcy,
reorganization or similar proceeding for relief of debtors under federal or state law with respect to any Borrower or any other guarantor
or surety for the Guaranteed Obligations (each, an “Other Obligor”) will affect, modify, limit or discharge, other
than any Other Obligor, any Guarantors’ liability in any manner whatsoever and the provisions of this Article XVI
will remain and continue in full force and effect and will be enforceable against each Guarantor to the same extent and with the same
force and effect as if any such proceeding had not been instituted.
16.6 Guaranty
Payable upon Event of Default; Remedies.
(a) Upon
the occurrence of any Event of Default under this Agreement, (i) all Guaranteed Obligations may, at the option of Agent, and without
demand, notice or legal process of any kind, be declared, and immediately shall become, due and payable, (ii) Agent in its discretion
may exercise with respect to any Collateral of any Guarantor or any other collateral or security for the Guaranteed Obligations any one
or more of the rights and remedies provided a secured party under the Uniform Commercial Code or any other applicable law or at equity
(all of which such rights and remedies are hereby deemed incorporated herein and confirmed and ratified by Guarantors as if expressly
set forth and granted and agreed to by Guarantors herein); and/or (iii) Agent in its discretion may exercise from time to time any
other rights and remedies available to it or any other Lender at law, in equity or otherwise, provided, however, that upon
the occurrence of an Event of Default described in Section 10.7 or Section 10.8 hereof, all of the Guaranteed
Obligations shall immediately and automatically become due and payable, without notice of any kind.
(b) The
Guarantors jointly and severally agree that, as between the Guarantors and the Agent and Lenders, the obligations of the Credit Parties
under this Agreement and the Other Documents may be declared to be forthwith due and payable as provided in Section 11.1 (and
shall be deemed to have become automatically due and payable in the circumstances provided in Section 11.1) for purposes of
this Article XVI (specifically including Section 16.1 hereof), notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming automatically due and payable) as against the Credit Parties and that,
in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether
or not due and payable by the Credit Parties) shall forthwith become due and payable by the Guarantors for purposes of this Article XVI
(specifically including Section 16.1 hereof).
16.7 Waiver
of Subrogation. Until the Guaranteed Obligations are paid in full, each Guarantor waives in favor of Agent and Lenders any and all
rights which such Guarantor may have to (a) assert any claim against any Borrower or any other Guarantor based on subrogation, restitution,
reimbursement or contribution rights with respect to payments made under the provisions of this Article XVI, and (b) any
realization on any property of any Borrower or any other Guarantor, including participation in any marshalling of any Borrower’s
or any other Guarantor’s assets.
16.8 Continuing
Guaranty and Suretyship Agreement. The provisions of this Article XVI shall constitute a continuing guaranty and suretyship
obligation of each Guarantor with respect to all Guaranteed Obligations from time to time outstanding, arising or incurred, and shall
continue in effect, and Agent and Lenders may continue to act in reliance hereon, until all of the Guaranteed Obligations have been paid
in full, and until such time, no Guarantor shall have any right to terminate or revoke the provisions of this Article XVI
nor any of the guarantee and surety agreements and other covenants and undertakings provided for herein.
16.9 General
Limitation on Guarantee Obligations. If, in the course of any legal action or proceeding under any applicable law, including any insolvency,
bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction with respect to any
Guarantor(s), the obligations of any Guarantor under the provisions of this Article XVI would otherwise be held or determined
to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its
liability under the provisions of this Article XVI, then, notwithstanding any other provision to the contrary, the amount
of such liabilities of such Guarantor under the provisions of this Article XVI shall, without any further action by such Guarantor,
Agent or any Lender or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right
of contribution established in Section 16.10 hereof) that is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
16.10 Right
of Contribution. Each Guarantor hereby agrees that to the extent that any Guarantor shall have paid more than its proportionate share
of any payment made hereunder, 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 Section 16.7 hereof. The provisions of this Section 16.10 shall in no respect limit
the obligations and liabilities of any Guarantor to the Agent or any Lender, and each Guarantor shall remain liable to Agent and each
Lender for the full amount guaranteed by such Guarantor hereunder.
16.11 Intercreditor
Agreement. Notwithstanding anything to the contrary contained in this Agreement, the Liens, security interests and rights granted
pursuant to this Agreement shall be subject to the terms, provisions and conditions of (and the exercise of any right or remedy by the
administrative agent hereunder or thereunder shall be subject to the terms and conditions of), the Intercreditor Agreement. In the event
of any conflict between this Agreement and the Intercreditor Agreement, the Intercreditor Agreement shall control, and no right, power,
or remedy granted to the Agent hereunder shall be exercised by the Agent, nor shall any direction be given by the Agent in contravention
of, the Intercreditor Agreement. With respect to any requirements herein for any Credit Party to deliver originals of certificated Securities, Instruments
or similar documents constituting pledged Collateral, such requirements shall be deemed satisfied to the extent the requirements to deliver
the same to the ABL Lender in accordance with the Intercreditor Agreement and the ABL Loan Documents are in effect and are satisfied by
such Credit Party. To the extent that any covenants, representations or warranties set forth in this Agreement are untrue or incorrect
solely as a result of the delivery to, or grant of possession or control to, the ABL Lender in accordance with this Section 16.11,
such representation or warranty shall not be deemed to be untrue or incorrect for purposes of this Agreement.
[signature pages follow]
Each of the parties has signed
this Agreement as of the day and year first above written.
BORROWERS: |
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direct digital holdings,
llc |
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By: |
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Name: |
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Title: |
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GUARANTORS |
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orange142 llc |
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By: |
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Name: |
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Title: |
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huddled masses llc |
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By: |
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Name: |
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Title: |
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colossus media, llc |
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By: |
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Name: |
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Title: |
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UNIVERSAL STANDARDS FOR
DIGITAL MARKETING, llc |
|
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By: |
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|
Name: |
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Title: |
[Signature Page to Term Loan and Security
Agreement]
AGENT: |
Lafayette Square Loan Servicing,
LLC |
|
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By: |
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|
Name: |
|
|
Title: |
[Signature Page to Term Loan and Security
Agreement]
LENDERS: |
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|
Addresses for Notices: |
|
MIDCAP FUNDING XI TRUST, as a Lender |
|
|
|
MidCap Funding XI Trust |
|
By: |
Apollo Capital Management, L.P., |
MidCap Financial Trust |
|
|
its investment manager |
c/o MidCap Financial Services, LLC, as Servicer |
|
|
|
7255 Woodmont Ave., Suite 300 |
|
By: |
Apollo Capital Management GP, LLC, its general partner |
Bethesda, MD 20814 |
|
|
|
Attention: Account Manager for DDH |
|
By: |
|
Telephone: (301) 941-1450 |
|
|
Name: |
Maurice Amsellem |
Email: nohus@midcapfinancial.com |
|
|
Title: |
Authorized Signatory |
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MIDCAP FINANCIAL TRUST, as a Lender |
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By: |
Apollo Capital Management, L.P., |
|
|
|
its investment manager |
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|
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By: |
Apollo Capital Management GP, LLC, its general partner |
|
|
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By: |
|
|
|
|
Name: |
Maurice Amsellem |
|
|
|
Title: |
Authorized Signatory |
[Signature
Page to Term Loan and Security Agreement]
List of Exhibits and Schedules
Exhibits |
|
Exhibit A |
Eligible Impact Services |
Exhibit B |
Form of Transfer Supplement |
Exhibit C |
Form of Compliance Certificate |
Exhibit D |
Impact Certificate |
Exhibit E |
Key Performance Indicators |
Exhibit F-1 |
Form of Closing Date Term Note |
Exhibit F-2 |
Form of Delayed Draw Term Loan Note |
Exhibit G |
Form of Joinder |
Exhibit H |
Form of Financial Condition Certificate |
|
|
Schedules |
|
Schedule 1.2(b) |
Term Loan Commitment Percentages |
Schedule 1.2(c) |
Commercial Tort Claims |
Schedule 4.5 |
Chief Executive Office; Equipment and Inventory Locations |
Schedule 4.15(h) |
Deposit and Investment Accounts |
Schedule 5.1 |
Jurisdictions of Organization and Good Standing |
Schedule 5.2(a) |
Equity Interests and Ownership |
Schedule 5.2(b) |
Subsidiaries |
Schedule 5.8(d) |
Pension Benefit Plan |
Schedule 5.10 |
Information Regarding the Credit Parties and their Subsidiaries |
Schedule 5.13 |
Intellectual Property |
Schedule 5.26 |
Liabilities, Assets and Activities |
Schedule 5.27 |
Insurance |
Schedule 7.2 |
Existing Liens |
Schedule 7.4 |
Existing Investments |
Schedule 7.8 |
Existing Indebtedness |
Schedule 7.10 |
Transactions with Affiliates |
Schedule 1.2(b)
Term Loan Commitment Percentage and Delayed
Draw Term Loan Commitment Percentage
Lender |
Term Loan
Commitment
Percentage |
Delayed Draw
Term Loan
Commitment
Percentage |
MIDCAP FUNDING XI TRUST |
100% |
0% |
MidCap Financial TrustLAFAYETTE SQUARE USA, INC. |
0100% |
100% |
toTAL |
100% |
100% |
v3.23.3
Cover
|
Oct. 03, 2023 |
Document Information [Line Items] |
|
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Oct. 03, 2023
|
Entity File Number |
001-41261
|
Entity Registrant Name |
Direct Digital Holdings, Inc.
|
Entity Central Index Key |
0001880613
|
Entity Tax Identification Number |
87-2306185
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
1177 West Loop South
|
Entity Address, Address Line Two |
Suite 1310
|
Entity Address, City or Town |
Houston
|
Entity Address, State or Province |
TX
|
Entity Address, Postal Zip Code |
77027
|
City Area Code |
832
|
Local Phone Number |
402-1051
|
Written Communications |
false
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false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
false
|
Entity Emerging Growth Company |
true
|
Elected Not To Use the Extended Transition Period |
false
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Class A common stock, par value $0.001 per share |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
Class A common stock, par value $0.001 per share
|
Trading Symbol |
DRCT
|
Security Exchange Name |
NASDAQ
|
Warrants to purchase Class A common stock |
|
Document Information [Line Items] |
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Title of 12(b) Security |
Warrants to purchase Class A common stock
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Trading Symbol |
DRCTW
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Security Exchange Name |
NASDAQ
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Direct Digital (NASDAQ:DRCT)
過去 株価チャート
から 4 2024 まで 5 2024
Direct Digital (NASDAQ:DRCT)
過去 株価チャート
から 5 2023 まで 5 2024