Turning Point Brands, Inc. (Form: 8-K, Received: 02/21/2017 08:22:58)

Table of Contents

Section		Heading		Page

	Section 1.	Definitions; Interpretation		1

	Section 1.1.		Definitions	1
	Section 1.2.		Interpretation	36
	Section 1.3.		Accounting Terms; GAAP	37
	Section 1.4.		Rounding	37

Section 2.		The Credit Facilities		37

	Section 2.1.		Loan Commitments	37
	Section 2.2.		Intentionally Omitted	37
	Section 2.3.		Intentionally Omitted	37
	Section 2.4.		Applicable Interest Rate	38
	Section 2.5.		Manner of Borrowing Loans	39
	Section 2.6.		Intentionally Omitted	39
	Section 2.7.		Maturity of Loans	39
	Section 2.8.		Prepayments	39
	Section 2.9.		Place and Application of Payments	41
	Section 2.10.		Intentionally Omitted	43
	Section 2.11.		Intentionally Omitted	43
	Section 2.12.		Evidence of Indebtedness	43
	Section 2.13.		Fees	44
	Section 2.14.		Reserved	44
	Section 2.15.		Appointment of Borrowers’ Agent as Agent for Borrowers	44

Section 3.		Conditions Precedent		44

Section 4.		Intentionally Omitted		47

Section 5.		Representations and Warranties		47

	Section 5.1.		Organization; Power; Qualification	47
	Section 5.2.		Ownership	48
	Section 5.3.		Authorization; Enforceability	48
	Section 5.4.		Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc	48
	Section 5.5.		Compliance with Law; Governmental Approvals	49
	Section 5.6.		Tax Returns and Payments	49
	Section 5.7.		Intellectual Property Matters	50
	Section 5.8.		Environmental Matters	50
	Section 5.9.		Employee Benefit Matters	51
	Section 5.10.		Margin Stock	52
	Section 5.11.		Government Regulation	52

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	Section 5.12.		Material Contracts; Customers and Suppliers	52
	Section 5.13.		Employee Relations	53
	Section 5.14.		Burdensome Provisions	53
	Section 5.15.		Financial Statements	54
	Section 5.16.		No Material Adverse Change	54
	Section 5.17.		Solvency	54
	Section 5.18.		Title to Properties	54
	Section 5.19.		Litigation	54
	Section 5.20.		Compliance with Sanctions Programs	54
	Section 5.21.		Absence of Defaults	55
	Section 5.22.		Senior Indebtedness Status	55
	Section 5.23.		Disclosure	55
	Section 5.24.		Flood Hazard Insurance	56
	Section 5.25.		Use of Proceeds	56
	Section 5.26.		Insurance	56
	Section 5.27.		Collateral Documents	56
	Section 5.28.		Affiliate Transactions	57
	Section 5.29.		No Broker Fees	57

Section 6.		Affirmative Covenants		57

	Section 6.1.		Financial Statements and Budgets	57
	Section 6.2.		Certificates; Other Reports	58
	Section 6.3.		Notice of Litigation and Other Matters	61
	Section 6.4.		Preservation of Corporate Existence and Related Matters	62
	Section 6.5.		Maintenance of Property and Licenses	62
	Section 6.6.		Insurance	63
	Section 6.7.		Accounting Methods and Financial Records	63
	Section 6.8.		Payment of Taxes and Other Obligations	63
	Section 6.9.		Compliance with Laws and Approvals	64
	Section 6.10.		Environmental Laws	64
	Section 6.11.		Compliance with ERISA	64
	Section 6.12.		Compliance with Material Contracts	64
	Section 6.13.		Visits and Inspections	65
	Section 6.14.		Additional Collateral; Additional Subsidiaries; Real Property	65
	Section 6.15.		Use of Proceeds	67
	Section 6.16.		Intentionally Omitted	67
	Section 6.17.		Further Assurances	67
	Section 6.18.		Distribution and License Agreements	68
	Section 6.19.		Maintenance of Company Separateness	68
	Section 6.20.		Intentionally Omitted	68
	Section 6.21.		Intentionally Omitted	68
	Section 6.22.		Compliance with Sanctions Programs	68
	Section 6.23.		Post‑Closing Matters	69

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Section 7		Negative Covenants		69

	Section 7.1.		Indebtedness	69
	Section 7.2.		Liens	71
	Section 7.3.		Investments	71
	Section 7.4.		Fundamental Changes	74
	Section 7.5.		Asset Dispositions	75
	Section 7.6.		Restricted Payments	75
	Section 7.7.		Transactions with Affiliates	76
	Section 7.8.		Accounting Changes; Organizational Documents	78
	Section 7.9.		Payments and Modifications of Certain Indebtedness	78
	Section 7.10.		No Further Negative Pledges; Restrictive Agreements	79
	Section 7.11.		Nature of Business	80
	Section 7.12.		Amendments of Other Documents	80
	Section 7.13.		Sale Leasebacks	80
	Section 7.14.		Limitations on Turning Point	80
	Section 7.15.		Financial Covenants	81
	Section 7.16.		Seller Debt	81

Section 8.		Default and Remedies		82

	Section 8.1.		Events of Default	82
	Section 8.2.		Non‑Bankruptcy Defaults	85
	Section 8.3.		Bankruptcy Defaults	85
	Section 8.4.		Intentionally Omitted	85
	Section 8.5.		Rights and Remedies Cumulative; Non‑Waiver; Etc	85

Section 9.		Change in Circumstances and Contingencies		86

	Section 9.1.		Intentionally Omitted	86
	Section 9.2.		Intentionally Omitted	86
	Section 9.3.		Intentionally Omitted	86
	Section 9.4.		Increased Costs	86
	Section 9.5.		Discretion of Lender as to Manner of Funding	87
	Section 9.6.		Intentionally Omitted	87

Section 10.		The Administrative Agent		87

	Section 10.1.		Appointment and Authorization of Administrative Agent	87
	Section 10.2.		Administrative Agent and Its Affiliates	88
	Section 10.3.		Exculpatory Provisions	88
	Section 10.4.		Reliance by Administrative Agent	89
	Section 10.5.		Delegation of Duties	90
	Section 10.6.		Non‑Reliance on Administrative Agent and Other Lenders	90
	Section 10.7.		Resignation of Administrative Agent and Successor Administrative Agent	90
	Section 10.8.		Appointment of Administrative Sub-Agent	91

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	Section 10.9.		Intentionally Omitted	91
	Section 10.10.		No Other Duties; Designation of Additional Agents	91
	Section 10.11.		Authorization to Enter into, and Enforcement of, the Collateral Documents and Guaranty	92
	Section 10.12.		Administrative Agent May File Proofs of Claim	92
	Section 10.13.		Collateral and Guaranty Matters	93
	Section 10.14.		Credit Bidding	94

Section 11.		Miscellaneous		94

	Section 11.1.		Taxes	94
	Section 11.2.		Mitigation Obligations; Replacement of Lenders	98
	Section 11.3.		Notices	100
	Section 11.4.		Amendments, Waivers and Consents	103
	Section 11.5.		Expenses; Indemnity	105
	Section 11.6.		Right of Setoff	107
	Section 11.7.		Governing Law; Jurisdiction, Etc	108
	Section 11.8.		Waiver of Jury Trial	108
	Section 11.9.		Reversal of Payments	109
	Section 11.10.		Injunctive Relief	109
	Section 11.11.		Successors and Assigns; Participations	109
	Section 11.12.		Treatment of Certain Information; Confidentiality	114
	Section 11.13.		Sharing of Payments by Lenders	114
	Section 11.14.		Performance of Duties	115
	Section 11.15.		All Powers Coupled with Interest	115
	Section 11.16.		Survival	115
	Section 11.17.		Titles and Captions	116
	Section 11.18.		Severability of Provisions	116
	Section 11.19.		Counterparts; Integration; Effectiveness; Electronic Execution	116
	Section 11.20.		Term of Agreement	116
	Section 11.21.		USA Patriot Act	116
	Section 11.22.		Independent Effect of Covenants	116
	Section 11.23.		Inconsistencies with Other Documents; Intercreditor Agreement	117
	Section 11.24.		Lender’s Obligations Several	117
	Section 11.25.		Excess Interest	117
	Section 11.26.		Construction	118
	Section 11.27.		Subordination	118
	Section 11.28.		Acknowledgement and Consent to Bail‑In of EEA Financial Institutions	118
	Section 11.29.		Press Releases, etc.	119
	Section 11.30.		Joint and Several Obligations	120

Signature Pages				S‑1

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Exhibit A	—	Reserved
Exhibit B	—	Reserved
Exhibit C	—	Note
Exhibit D	—	Officer’s Compliance Certificate
Exhibit E	—	Assignment and Assumption
Exhibit F	—	Subordination Terms
Schedule 1	—	Commitments
Schedule 5.1	—	Jurisdictions of Organization
Schedule 5.2	—	Ownership
Schedule 5.6	—	Tax Returns and Payments
Schedule 5.9	—	Employee Benefit Matters
Schedule 5.12	—	Material Contracts; Customers and Suppliers
Schedule 5.13	—	Employee Relations
Schedule 5.18	—	Title to Properties
Schedule 5.26	—	Insurance
Schedule 6.14(d)	—	Real Property Collateral
Schedule 6.23	—	Post‑Closing Matters
Schedule 7.1	—	Indebtedness
Schedule 7.2	—	Liens
Schedule 7.3	—	Investments
Schedule 7.7	—	Transactions with Affiliates

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Second Lien Credit Agreement

This Second Lien Credit Agreement is entered into as of February 17, 2017, by and among Turning Point Brands, Inc., a Delaware corporation ( “Turning Point” ) and North Atlantic Trading Company, Inc. , a Delaware corporation ( “NATC” ; Turning Point and NATC are each individually referred to herein as a “Borrower” and are collectively referred to herein as the “Borrowers” ), the direct and indirect Subsidiaries of the Borrowers from time to time party to this Agreement, as Guarantors, the various institutions from time to time party to this Agreement, as Lenders, Prospect Capital Corporation, a Maryland corporation, as Administrative Agent, and Fifth Third Bank, an Ohio banking corporation, as Administrative Sub-Agent.

The Borrowers have requested, and the Lenders have agreed to extend, certain credit facilities on the terms and conditions of this Agreement. In consideration of the mutual agreements set forth in this Agreement, the parties to this Agreement agree as follows:

Section 1. Definitions; Interpretation.

Section 1.1. Definitions . The following terms when used herein shall have the following meanings:

“Acquired Entity” means 100% of the Ownership Interests of any Person that is not already a Subsidiary of a Borrower, which Person shall, as a result of the acquisition of such Ownership Interests, become a Domestic Subsidiary of a Borrower (or shall be merged with and into a Borrower or another Domestic Subsidiary of a Borrower; provided that (i) in the case of any such merger involving such Borrower, such Borrower shall be the surviving or continuing Person, and (ii) in the case of any such merger involving any other Loan Party, such Loan Party shall be the surviving or continuing Person).

“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the Ownership Interests of any Person (other than a Person that is a Subsidiary), or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary), provided that a Borrower or another Loan Party is the surviving entity.

“Administrative Agent” means Prospect Capital Corporation, a Maryland corporation, as contractual representative for itself and the other Lenders, and any successor in such capacity pursuant to Section 10.7.

“Administrative Agent Fee Letter” means the Fee Letter, dated as of February 17, 2017, between the Borrowers and the Administrative Agent.

“Administrative Questionnaire” means, with respect to each Lender, an Administrative Questionnaire in a form supplied by the Administrative Agent and duly completed by such Lender.

“Administrative Sub-Agent” means Fifth Third Bank , an Ohio banking corporation, as contractual representative pursuant to the Sub-Agency Agreement, and any successor in such capacity pursuant to Section 10.5 .

“Affiliate” means any Person directly or indirectly controlling (including all officers, directors, partners, and managers of such Person) or controlled by, or under direct or indirect common control with, another Person. A Person shall be deemed to control another Person for the purposes of this definition if such Person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of the other Person, whether through the ownership of voting securities, common directors, managers, trustees or officers, by contract or otherwise; provided that, in any event for purposes of this definition, any Person that owns, directly or indirectly, 10.00% or more of the securities having the ordinary voting power for the election of directors, managers or governing body of a corporation or 10.00% or more of the partnership or other ownership interest of any other Person (other than as a limited partner of such other Person) will be deemed to control such corporation or other Person. In no event shall the Administrative Agent, any Lender, or any of their respective Affiliates, be deemed to be an Affiliate of any Loan Party.

“Agent’s Liens” means the Liens granted by the Borrowers and the Guarantors to the Administrative Agent under the Loan Documents securing the Obligations.

“Agreement” means this Second Lien Credit Agreement.

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

“Arranger” means Fifth Third Bank, an Ohio banking corporation.

“Asset Disposition” means the sale, transfer, license, lease or other disposition of any Property (including any disposition of Ownership Interests) by any Loan Party (or the granting of any option or other right to do any of the foregoing), and any issuance of Ownership Interests by either Borrower to any Person or by any Subsidiary of either Borrower to any Person that is not a Borrower or any Wholly‑owned Subsidiary thereof. The term “Asset Disposition” shall not include (a) the sale of inventory or any other goods or property in the ordinary course of business, (b) any other transaction permitted pursuant to Section 7.5, (c) the write‑off, discount, sale or other disposition of receivables and similar obligations in the ordinary course of business and not undertaken as part of an accounts receivable financing transaction, (d) the disposition of any Hedge Agreement, (e) the disposition of Investments in cash or Cash Equivalents, (f) the transfer by any Loan Party of its assets to either Borrower or any other Loan Party, (g) the sale, transfer or other disposition of Property held in the TMSA Account, and (h) any sale, transfer or disposition of property for Net Cash Proceeds which, when taken collectively with the Net Cash Proceeds of any other such sale, transfer or disposition of property that were consummated (x) since the beginning of the calendar year in which such sale, transfer or disposition is consummated, do not exceed $1,150,000 and (y) on or after the Closing Date, do not exceed $2,875,000.

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“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.11(b)(iii)), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form approved by the Administrative Agent.

“Attributable Indebtedness” means, on any date of determination, (a) in respect of any Capitalized Lease Obligation of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP as in effect on the Closing Date, and (b) in respect of any Synthetic Lease, the capitalized amount or principal amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP as in effect on the Closing Date if such lease were accounted for as a Capitalized Lease Obligation.

“Authorized Representative” means those persons shown on the list of officers provided by the Borrowers pursuant to Section 3 or on any update of any such list provided by the Borrowers to the Administrative Agent, or any further or different officers of the Borrowers so named by any Authorized Representative of the Borrowers in a written notice to the Administrative Agent.

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

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

“Board of Directors” means, with respect to any Person, the Board of Directors (or equivalent governing body) of such Person or any committee of the Board of Directors (or equivalent governing body) of such Person duly authorized, with respect to any particular matter, to exercise the power of the Board of Directors (or equivalent governing body) of such Person.

“Bollore” is defined in Section 6.18.

“Bollore Distribution Agreements” means, collectively, (a) that certain Amended and Restated Distribution and License Agreement (United States), dated as of November 30, 1992, between Bollore and NATC, (b) that certain Amended and Restated Distribution and License Agreement (Canada), dated as of November 30, 1992, between Bollore and NATC, and (c) that certain License and Distribution Agreement, dated as of March 19, 2013, between Bollore S.A. and NAOC.

“Borrower” and “Borrowers” are each defined in the introductory paragraph of this Agreement.

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“Borrower Materials” is defined in Section 6.2.

“Borrower Rollover Loans” means those loans borrowed by the Borrowers pursuant to Section 2.1 hereof and owed to the Rollover Lenders that are the subject of the Cashless Exchange Letter.

“Borrowers’ Agent” means Turning Point.

“Borrowing” means the total of Loans advanced. Borrowings of Loans are made and maintained ratably from each of the Lenders according to their Percentages. A Borrowing is “advanced” on the day Lenders advance funds comprising such Borrowing to a Borrower as requested by a Borrower pursuant to Section 2.5(a).

“Business Day” means any day (other than a Saturday or Sunday) on which banks are not authorized to operate or are required to close in Cincinnati, Ohio or New York, New York.

“Capital Expenditures” means, with respect to any Person for any period, the aggregate amount of all expenditures (whether paid in cash or accrued as a liability) by such Person during that period for the acquisition or leasing (pursuant to a Capital Lease) of fixed or capital assets or additions to property, plant, or equipment (including replacements, capitalized repairs, and improvements) which should be capitalized on the balance sheet of such Person in accordance with GAAP (or, in the case of Capital Leases, in accordance with GAAP as in effect on the Closing Date), excluding (i) expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds paid on account of the loss or damage to the assets being replaced, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced, (ii) that portion of the gross purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment that represents the credit granted by the seller of such equipment for the equipment being traded in at such time, or (iii) the purchase of assets that would otherwise constitute Capital Expenditures to the extent financed with the proceeds of any Asset Disposition permitted hereunder.

“Capital Lease ” means any lease of Property which in accordance with GAAP as in effect on the Closing Date is required to be capitalized on the balance sheet of the lessee; provided that, no operating lease shall not constitute a Capital Lease by virtue of a change in GAAP occurring after the Closing Date.

“Capitalized Lease Obligation” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as Capital Leases, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP as in effect on the Closing Date.

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“Cash Equivalents” means, as to any Person: (a) investments in direct obligations of, or fully guaranteed by, the United States of America or of any agency or instrumentality thereof whose obligations constitute full faith and credit obligations of the United States of America, provided that any such obligations shall mature within one year of the date of acquisition thereof; (b) investments in commercial paper rated at least P‑1 by Moody’s or at least A‑1 by S&P (or, if at any time neither Moody’s or S&P shall be rating such obligations, an equivalent rating from another nationally recognized rating service) maturing within one year of the date of issuance thereof; (c) certificates of deposit or bankers’ acceptances maturing within one year from the date of acquisition thereof and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States of America 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; (d) investments in repurchase obligations with a term of not more than seven (7) days for underlying securities of the types described in clause (a) above entered into with any bank meeting the qualifications specified in clause (c) above, provided all such agreements require physical delivery of the securities securing such repurchase agreement, except those delivered through the Federal Reserve Book Entry System; (e) marketable short‑term money market or similar securities having a rating of at least P‑2 by Moody’s or A‑2 by S&P (or, if at any time neither Moody’s or S&P shall be rating such obligations, an equivalent rating from another nationally recognized rating service); and (f) investments in any money market mutual funds that invest solely, and which are restricted by their respective charters to invest solely, in investments of the type described in the immediately preceding clauses (a), (b), (c), and (d) above.

“Cashless Exchange Letter” means that certain cashless exchange letter agreement with respect to the NATC Rollover Loans and the Borrower Rollover Loans dated as of February 17, 2017, by and among the Borrowers, the Rollover Lenders, the Arranger and the Existing Second Lien Administrative Agent.

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

“Change of Control” means any of (a) the acquisition by any “person” or “group” (as such terms are used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) (other than the Permitted Holders) at any time of beneficial ownership of 50% or more of the outstanding Ownership Interests of Turning Point on a fully‑diluted basis, (b) Standard General shall fail to own more than 50% of the Ownership Interests of Turning Point; provided, that, if Standard General transfers its Ownership Interests of Turning Point to SDOI, a Change of Control shall not be deemed to occur unless (i) SDOI shall fail to own more than 50% of the Ownership Interests of Turning Point or (ii) Standard General shall fail to own more than 50% of the Ownership Interests of SDOI, (c) Turning Point shall fail to own 100% of the Ownership Interests of NATC Holding, (d) NATC Holding shall fail to own 100% of the Ownership Interests of NATC, (e) the failure of individuals who are members of the board of directors (or similar governing body) of Turning Point on the Closing Date (together with any new or replacement directors whose initial nomination for election was approved by a majority of the directors who were either directors on the Closing Date or previously so approved) to constitute a majority of the board of directors (or similar governing body) of Turning Point, or (f) any “Change of Control” (or words of like import), as defined in any agreement or indenture relating to any issue of material Indebtedness (including the First Lien Credit Agreement) of any Loan Party shall occur.

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“Closing Date” means the date of this Agreement or such later Business Day upon which each condition described in Section 3 shall be satisfied or waived in a manner acceptable to the Administrative Agent in its discretion.

“Code” means the Internal Revenue Code of 1986, or any successor statute thereto.

“Collateral” means all properties, rights, interests, and privileges from time to time subject to the Liens granted to the Administrative Agent, or any security trustee therefor, by the Collateral Documents.

“Collateral Access Agreement” means any landlord waiver, warehouse, processor or other bailee letter or other agreement, in form and substance satisfactory to the Administrative Agent, between the Administrative Agent and any third party (including any bailee, consignee, customs broker, or other similar Person) in possession of any Collateral or any landlord of a Borrower or any Subsidiary thereof for any real property where any Collateral is located, as such landlord waiver, bailee letter or other agreement may be amended, restated, or otherwise modified from time to time.

“Collateral Documents” means the Mortgages, the Second Lien Guaranty and Security Agreement, and all other security agreements, pledge agreements, control agreements, assignments, financing statements and other documents pursuant to which Liens are granted to the Administrative Agent by the Loan Parties or such Liens are perfected, and as shall from time to time secure or relate to the Secured Obligations or any part thereof.

“Commitments” means, as to any Lender, the obligation of such Lender to make its Loan on the Closing Date in the principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule 1 attached hereto and made a part hereof. The Commitments of the Lenders aggregate $55,000,000 on the Closing Date.

“ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

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

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“Consolidated” means, when used with reference to financial statements or financial statement items of any Person, such statements or items on a consolidated basis in accordance with applicable principles of consolidation under GAAP.

“Consolidated EBITDA” means, for any period, the sum of the following determined on a Consolidated basis, without duplication, for Turning Point and its Subsidiaries in accordance with GAAP: (a) Consolidated Net Income for such period plus (b) the sum of the following, without duplication, to the extent deducted in determining Consolidated Net Income for such period: (i) income taxes, (ii) Consolidated Interest Expense, (iii) amortization of intangible assets and depreciation of fixed assets, (iv) any extraordinary losses, (v) non-cash charges or non-cash losses or non-cash items (including, but not limited to, unrealized losses on the TMSA Account, but excluding any non-cash charge, loss or expense that is an accrual of a reserve for a cash expense or payment to be made, or anticipated to be made, in a future period and, for the avoidance of doubt, accruals reserved for bad debt and similar write downs) decreasing Consolidated Net Income (excluding any non-cash item to the extent it represents an accrual of or reserve for cash disbursements for any subsequent period, amortization of a prepaid cash expense that was paid in a prior period or a reserve for cash charges to be taken in the future), (vi) Transaction Costs, (vii) product launch costs in an amount not to exceed $1,500,000 in any period of four (4) consecutive fiscal quarters, and (viii) without duplication of any amounts added back in calculating Consolidated EBITDA pursuant to the definition of Pro Forma Basis, non-recurring one-time costs and expenses incurred in connection with operating improvements, restructurings and other similar initiatives, less (c) the sum of the following, without duplication, to the extent included in determining Consolidated Net Income for such period: (i) interest income (other than distributions of cash to Turning Point or its Subsidiaries from the TMSA Account during such period), (ii) any extraordinary gains, (iii) non-cash gains or non-cash items (including, but not limited to, unrealized gains on the TMSA Account) increasing Consolidated Net Income, and (iv) transfers of cash or other assets by Turning Point and its Subsidiaries into the TMSA Account during such period. Notwithstanding anything herein to the contrary, (1) the aggregate amount of losses, charges and costs set forth in the foregoing clauses (b)(iv) and (vi) shall not exceed five percent (5%) of Consolidated EBITDA (determined without giving effect to the foregoing clauses (b)(iv) and (vi)); provided that, the aggregate amount of losses, charges and costs set forth in the foregoing clause (b)(vi) may exceed five percent (5%) of Consolidated EBITDA (determined without giving effect to the foregoing clause (b)(vi)) with the consent of the Administrative Agent in its sole discretion; provided, however, that in no event (even with the consent of the Administrative Agent) shall the aggregate amount of losses, charges and costs set forth in the foregoing clause (b)(vi) exceed ten percent (10%) of Consolidated EBITDA (determined without giving effect to the foregoing clause (b)(vi)), (2) the aggregate amount of costs and expenses set forth in the foregoing clause (b)(viii), when combined with all amounts added back to Consolidated EBITDA pursuant to clause (b)(iii)(B) of the definition of Pro Forma Basis, shall not exceed five percent (5%) of Consolidated EBITDA (determined without giving effect to clause (b)(viii) above or clause (b)(iii)(B) of the definition of Pro Forma Basis), (3) all gains set forth in the foregoing clauses (c)(ii) and (iii) are subject to the consent of the Administrative Agent in its sole discretion, and (4) for purposes of this Agreement, Consolidated EBITDA may be adjusted on a Pro Forma Basis in accordance with the definition thereof, including pursuant to clause (b)(viii) of this definition; provided that, notwithstanding the foregoing, the aggregate amount added back under this clause (4) with respect to VaporBeast and that certain Property acquired by Turning Point in connection with the Wind River Purchase Agreement shall be (w) $7,862,000 on the Closing Date, (x) $5,241,000 for the fiscal quarter ended March 31, 2017, (y) $3,276,000 for the fiscal quarter ended June 30, 2017, and (z) $1,310,000 for the fiscal quarter ended September 30, 2017; provided, further, (A) if at any time VaporBeast shall cease to be a Subsidiary of Turning Point, the amount added pursuant to the foregoing proviso shall be reduced by the amount included in such addition that is attributable to VaporBeast as determined by the Administrative Agent in its reasonable discretion, and (B) in the event that any Property owned by VaporBeast or any Property acquired by Turning Point in connection with the Wind River Purchase Agreement is part of an Asset Disposition, the amount added pursuant to the foregoing proviso shall be reduced by the amount attributable to such Property, as determined by the Administrative Agent in its reasonable discretion, except to the extent the Net Proceeds of such Asset Disposition are invested or reinvested as set forth in Section 2.8(b)(i).

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“Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date, plus operating lease expenses (determined in accordance with GAAP as in effect on the Closing Date) paid by Turning Point and its Subsidiaries during the same four (4) consecutive fiscal quarters, less Capital Expenditures made by Turning Point and its Subsidiaries during the same four (4) consecutive fiscal quarters not financed with Indebtedness, less federal, state, and local income taxes paid in cash by Turning Point and its Subsidiaries during the same four (4) consecutive fiscal quarters, less Restricted Payments made by Turning Point and its Subsidiaries during the same four (4) consecutive fiscal quarters to (b) Consolidated Fixed Charges for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date.

“Consolidated Fixed Charges” means, for any period, the sum of the following determined on a Consolidated basis for such period, without duplication, for Turning Point and its Subsidiaries in accordance with GAAP: (a) Consolidated Interest Expense, (b) scheduled principal payments with respect to Indebtedness and (c) operating lease expenses (determined in accordance with GAAP as in effect on the Closing Date) paid by Turning Point and its Subsidiaries during such period. For purposes of calculating Consolidated Fixed Charges for any period prior to the quarter ending December 31, 2017, scheduled payments of principal shall be deemed for all periods included in such calculation to be equal to $5,850,000.

“Consolidated Funded Indebtedness” means, as of any date of determination with respect to Turning Point and its Subsidiaries on a Consolidated basis without duplication, the sum of (a) the outstanding principal amount of all obligations as determined in accordance with GAAP, whether current or long‑term, for borrowed money (including the Secured Obligations hereunder), Seller Debt, and all other obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all Indebtedness arising in connection with letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course of business and (ii) contingent earn‑outs, hold‑backs and other deferred payment of consideration in Permitted Acquisitions to the extent not fixed and payable; provided that, such obligations in respect of the deferred purchase price of property or services shall include earn-outs and other deferred payments that appear in the liabilities section of the Consolidated balance sheet of Turning Point), (e) Attributable Indebtedness, (f) without duplication, all Guarantees with respect to, and Liens granted to support, outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than Turning Point or any of its Subsidiaries, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which Turning Point or any of its Subsidiaries is a general partner or joint venturer, unless such Indebtedness is Non‑Recourse Debt.

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“Consolidated Interest Expense” means, for any period, determined on a Consolidated basis, without duplication, for Turning Point and its Subsidiaries in accordance with GAAP, interest expense (including interest expense attributable to Capitalized Lease Obligations and all net payment obligations pursuant to Hedge Agreements), premium payments, debt discounts, fees, charges and related expenses with respect to any and all Indebtedness of Turning Point and its Subsidiaries for such period; provided that, notwithstanding the foregoing, “Consolidated Interest Expense” (i) for the four fiscal quarters ended March 31, 2017 shall be deemed to be Consolidated Interest Expense for the two consecutive fiscal months ended March 31, 2017 multiplied by six (6), (ii) for the four fiscal quarters ended June 30, 2017 shall be deemed to be Consolidated Interest Expense for the five consecutive fiscal months ended June 30, 2017 multiplied by twelve-fifths ( ¹² / ₅ ) (iii) for the four fiscal quarters ended September 30, 2017 shall be deemed to be Consolidated Interest Expense for the eight consecutive fiscal months ended September 30, 2017 multiplied by three‑halves ( ³ / ₂ ) and (iv) for the four fiscal quarters ended December 31, 2017 shall be deemed to be Consolidated Interest Expense for the eleven consecutive fiscal months ended December 31, 2017 multiplied by twelve-elevenths ( ¹² / ₁₁ ); provided, further, that all interest, premium payments, debt discounts, fees, charges and related expenses paid in connection with the Refinancing, including any Transaction Costs in connection therewith, shall be excluded from the calculation of Consolidated Interest Expense.

“Consolidated Net Income” means, for any period, the net income (or loss) of Turning Point and its Subsidiaries for such period, determined on a Consolidated basis, without duplication, in accordance with GAAP; provided , that in calculating Consolidated Net Income of Turning Point and its Subsidiaries for any period, there shall be excluded (a) the net income (or loss) of any Person (other than a Subsidiary which shall be subject to clause (c) below), in which Turning Point or any of its Subsidiaries has a joint interest with a third party, except to the extent such net income is actually paid in cash to Turning Point or any of its Subsidiaries by dividend or other distribution during such period, (b) the net income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of Turning Point or any of its Subsidiaries or is merged into or consolidated with Turning Point or any of its Subsidiaries or that Person’s assets are acquired by Turning Point or any of its Subsidiaries except to the extent included pursuant to the foregoing clause (a), (c) the net income (if positive), of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary to Turning Point or any of its Subsidiaries of such net income (i) is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Subsidiary or (ii) would be subject to any taxes payable on such dividends or distributions, but in each case only to the extent of such prohibition or taxes, and (d) any gain or loss from Asset Dispositions during such period; provided , further, that in calculating Consolidated Net Income of Turning Point and its Subsidiaries for any period, net income attributable to the TMSA Account shall be limited to the amount of cash distributions actually received by Turning Point and its Subsidiaries from such account during such period.

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“Consolidated Senior Funded Debt” means, as of any date of determination, (a) Consolidated Funded Indebtedness minus (b) the sum of (i) the Obligations and (ii) Subordinated Debt.

“Consolidated Senior Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Senior Funded Debt on such date to (b) Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date.

“Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness on such date to (b) Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date.

“Contingent Obligation” means as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness ( “primary obligations” ) of any other Person (the “primary obligor” ) in any manner, whether directly or indirectly, including, any obligation of such Person, whether or not contingent, (a) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (d) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business or entered into in the ordinary course of business in connection with any contractual arrangement, including any Acquisition, Capital Expenditure, Investment or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

“Credit” means the credit facility for the Loans described in Section 2.1.

“Credit Event” means the advancing of any Loan.

“Debtor Relief Laws” means the United States 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 of America or other applicable jurisdictions from time to time in effect.

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“Default” means any of the events specified in Section 8.1 which, with the passage of time, the giving of notice or any other condition, would constitute an Event of Default.

“Disqualified Ownership Interests” means any Ownership Interests that, by their terms (or by the terms of any security or other Ownership Interest into which they are convertible or for which they are exchangeable) or upon the happening of any event or condition, (a) mature or are mandatorily redeemable (other than solely for Qualified Ownership Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) are redeemable at the option of the holder thereof (other than solely for Qualified Ownership Interests) (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), in whole or in part, (c) provide for the scheduled payment of dividends in cash or (d) are or become convertible into or exchangeable for Indebtedness or any other Ownership Interests that would constitute Disqualified Ownership Interests, in each case, prior to the date that is ninety‑one (91) days after the latest maturity date in effect at the time of issuance of such Ownership Interests; provided that if such Ownership Interests are issued pursuant to a plan for the benefit of a Borrower or its Subsidiaries or by any such plan to such employees, such Ownership Interests shall not constitute Disqualified Ownership Interests solely because they may be required to be repurchased by a Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

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

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

“Durfort Production Agreement” means that certain Production & Private Label Agreement, dated as of October 27, 2008, between Durfort Holdings, S.A., a corporation organized under the laws of the nation of Panama, and NTC.

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

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

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

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“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.11(b)(iii), 11.11(b)(v) and 11.11(b)(vi) (subject to such consents, if any, as may be required under Section 11.11(b)(iii)).

“Employee Benefit Plan” means (a) any employee benefit plan within the meaning of Section 3(3) of ERISA that is maintained for employees of any Loan Party or any ERISA Affiliate or (b) any Pension Plan or Multiemployer Plan that has at any time within the preceding seven (7) years been maintained, funded or administered for the employees of any Loan Party or any current or former ERISA Affiliate.

“Environment” means indoor air, ambient air, surface water, groundwater, drinking water, land surface, subsurface strata or sediment, and natural resources such as wetlands, flora and fauna or as otherwise defined in any Environmental Law.

“Environmental Claim” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations (other than internal reports prepared by any Person in the ordinary course of business and not in response to any third party action or request of any kind) or proceedings relating in any way to any (a) actual or alleged noncompliance with or liability under any Environmental Law including any failure to obtain, maintain or comply with any permit issued, or any approval given, under any such Environmental Law, (b) the generation, use handling, transportation, storage or treatment of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Environmental Law” means any applicable Legal Requirement pertaining to (a) the protection, conservation, use or management of the Environment, human health and safety, natural resources and wildlife, (b) the protection or use of surface water or groundwater, (c) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, Release, threatened Release, investigation, abatement, removal, remediation or handling of, or exposure to, any Hazardous Material, or (d) any Release of Hazardous Materials to air, land, surface water or groundwater, and any amendment, rule, regulation, order or directive issued thereunder.

“ERISA” means the Employee Retirement Income Security Act of 1974, and the rules and regulations thereunder.

“ERISA Affiliate” means any Person who together with any Loan Party or any of its Subsidiaries is treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.

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

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“Event of Default” means any event or condition identified as such in Section 8.1; provided that any requirement for passage of time, giving of notice, or any other condition, has been satisfied.

“Event of Loss” means, with respect to any Property, any of the following: (a) any loss, destruction or damage of such Property or (b) any condemnation, seizure, or taking, by exercise of the power of eminent domain or otherwise, of such Property, or confiscation of such Property or the requisition of the use of such Property.

“Excess Cash Flow” means, with respect to any period, the amount (if any) by which (a) Consolidated EBITDA during such period exceeds (b) the sum (without duplication) of (i) the aggregate amount of cash payments (including voluntary prepayments of the Loans) actually made by Turning Point on a Consolidated basis during such period in respect of all principal on all Indebtedness (whether at maturity, as a result of mandatory sinking fund redemption, mandatory prepayment, acceleration or otherwise, but excluding payments made on the Revolving Credit (as defined in the First Lien Credit Agreement)), plus (ii) the aggregate amount of Capital Expenditures made by Turning Point on a Consolidated basis during such period and not financed with proceeds of Indebtedness (but excluding credit extended under the Revolving Credit (as defined in the First Lien Credit Agreement)), plus (iii) the aggregate amount of all federal, state and local taxes paid in cash by Turning Point on a Consolidated basis during such period, plus (iv) the aggregate amount of Consolidated Interest Expense paid in cash during such period, plus (v) the aggregate amount of cash paid by Turning Point on a Consolidated basis during such period as consideration in connection with Permitted Acquisitions and not financed with proceeds of Indebtedness (but excluding (x) credit extended under the Revolving Credit (as defined in the First Lien Credit Agreement) and (y) proceeds of any Incremental Term Loan (as defined in the First Lien Credit Agreement)), plus (vii) the aggregate amount of Restricted Payments paid in cash by Turning Point during such period and permitted by Section 7.6.

“ Excess Interest ” is defined in Section 11.25.

“Excluded Deposit Account” means and includes (a) any deposit account the balance of which consists exclusively of (and is identified when established as an account established solely for the purposes of) (i) withheld income Taxes and federal, state, local or foreign employment Taxes in such amounts as are required in the reasonable judgment of a Loan Party to be paid to the Internal Revenue Service or any other U.S., federal, state or local or foreign government agencies within the following month with respect to employees of such Loan Party, (ii) amounts required to be paid over to an employee benefit plan pursuant to DOL Reg. Sec. 2510.3‑102 on behalf of or for the benefit of employees of any Loan Party, (iii) amounts which are required to be pledged or otherwise provided as security pursuant to any requirement of any Governmental Authority or foreign pension requirement, (iv) amounts to be used to fund payroll obligations (including, but not limited to, amounts payable to any employment contracts between any Loan Party and their respective employees), (v) the JPMorgan Cash Collateral Account, and (vi) other deposit accounts maintained in the ordinary course of business containing cash amounts that do not exceed at any time $50,000 for any such account and $250,000 in the aggregate for all such accounts under this clause (vi), unless requested by the Administrative Agent, and (b) the TMSA Account.

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“ Excluded Equity Issuances ” means (a) the issuance by any Subsidiary of Ownership Interests to either Borrower or any Guarantor, as applicable, (b) the issuance of Ownership Interests of Turning Point (i) to directors, officers and employees of Turning Point and its Subsidiaries pursuant to employee stock option plans (or other employee incentive plans or other compensation arrangements) approved by Turning Point’s board of directors (or similar governing body), (ii) to finance the purchase consideration (or a portion thereof) in connection with Capital Expenditures, and (iii) for such other purposes reasonably acceptable to the Administrative Agent in its sole discretion; provided that the issued Ownership Interests permitted by this clause (b) (other than issuances permitted by the foregoing clause (b)(i) to the extent no cash is received by Turning Point as consideration for such issuance) shall not exceed $5,750,000 in the aggregate during the term of this Agreement, with the value of each such issuance determined as of the date of such issuance, and (c) the issuance of Ownership Interests of Turning Point in order to finance the purchase consideration (or a portion thereof) in connection with a Permitted Acquisition; provided that such Permitted Acquisition is consummated within six (6) months of such issuance.

“Excluded Leased Property” means the leased real property located at (a) 5201 Interchange Way, Louisville, Kentucky 40229 and (b) 1900 Wright Place, Suite 250, Carlsbad, California 92008.

“Excluded Property” means (a) any fee‑owned real property with a fair market value of less than $2,000,000, unless requested by the Administrative Agent; (b)(i) the Excluded Leased Property and (ii) any other leased real property with a fair market value of less than $1,000,000, unless requested by the Administrative Agent; (c) any goods securing purchase money indebtedness or Capitalized Lease Obligations if the granting of a Lien to any third party is prohibited by the agreement(s) setting forth the terms and conditions applicable to such Indebtedness, but only if such Indebtedness and the Liens securing the same are permitted by Sections 7.1(d) and 7.2(h) of the Credit Agreement; provided that if and when the prohibition which prevents the granting of a Lien in any such Property is removed, terminated or otherwise becomes unenforceable as a matter of law (including, without limitation, the termination of any such security interest resulting from the satisfaction of the Indebtedness secured thereby), and notwithstanding any previous release of Lien provided by the Administrative Agent requested in connection with respect to any such Indebtedness, the Excluded Property will no longer include such Property and the Administrative Agent will be deemed to have, and at all times to have had, a security interest in such property and the Collateral will be deemed to include, and at all times to have included, such Property without further action or notice by any Person; (d) any permit or license issued to any Loan Party as the permit holder or licensee thereof or any lease to which any Loan Party is lessee thereof, in each case only to the extent and for so long as the terms of such permit, license, or lease effectively (after giving effect to Sections 9‑406 through 9‑409, inclusive, of the Uniform Commercial Code in the applicable state (or any successor provision or provisions) or any other applicable Legal Requirements) prohibit the creation by such Loan Party of a security interest in such permit, license, or lease in favor of the Administrative Agent or would result in an effective invalidation, termination or breach of the terms of any such permit, license or lease (after giving effect to Sections 9‑406 through 9‑409, inclusive, of the Uniform Commercial Code in the applicable state (or any successor provision or provisions) or any other applicable Legal Requirements), in each case unless and until any required consents are obtained; provided that the Excluded Property will not include, and the Collateral shall include and the security interest granted in the Collateral shall attach to, (x) all proceeds, substitutions or replacements of any such excluded items referred to herein unless such proceeds, substitutions or replacements would constitute excluded items hereunder, (y) all rights to payment due or to become due under any such excluded items referred to herein, and (z) if and when the prohibition which prevents the granting of a security interest in any such Property is removed, terminated, or otherwise becomes unenforceable as a matter of law, the Administrative Agent will be deemed to have, and at all times to have had, a security interest in such property, and the Collateral will be deemed to include, and at all times to have included, such Property without further action or notice by any Person; (e) Ownership Interests of any Foreign Subsidiary which, if granted, would have material adverse tax consequences for a Borrower or result in a violation of applicable Legal Requirements, unless requested by the Administrative Agent after the occurrence and during the continuation of an Event of Default; provided that Excluded Property shall not include, and the Collateral shall include, (x) non‑voting Ownership Interests of a First Tier Foreign Subsidiary owned by any Loan Party and (y) voting Ownership Interests of a First Tier Foreign Subsidiary owned by any Loan Party representing not more than sixty-five percent (65%) of the total voting power of all outstanding Ownership Interests of such Foreign Subsidiary, with Ownership Interests of such Foreign Subsidiary constituting “stock entitled to vote” within the meaning of Treasury regulation section 1.956‑2(c)(2) being treated as voting equity interests of such Foreign Subsidiary for purposes of this clause (e); and (f) Excluded Deposit Accounts.

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“ Excluded Swap Obligation ” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes (and any Taxes similar to branch profit Taxes), in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment (or otherwise pursuant to any Loan Document) pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment or becomes a party to this Agreement (other than pursuant to an assignment request by the Borrowers under Section 11.2(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 11.1, 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 11.1(g), and (d) any U.S. federal withholding Taxes imposed under FATCA .

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“Existing ABL Credit Agreement” means that certain ABL Credit Agreement dated as of January 13, 2014, by and among NATC Holding, as holdings, NATC, as a borrower, certain subsidiaries of NATC, as additional borrowers, the lenders party thereto and Wells Fargo Bank, National Association, as ABL Administrative Agent.

“Existing First Lien Administrative Agent” means Wells Fargo Bank, National Association, as administrative agent under the Existing First Lien Term Loan Credit Agreement.

“Existing First Lien Term Loan Credit Agreement” means that certain First Lien Term Loan Credit Agreement dated as of January 13, 2014, by and among Turning Point (f/k/a North Atlantic Holding Company, Inc.), as parent, NATC Holding, as holdings, NATC, as borrower, the lenders party thereto and the Existing First Lien Administrative Agent.

“Existing Second Lien Administrative Agent” means Wells Fargo Bank, National Association, as administrative agent under the Existing Second Lien Term Loan Credit Agreement.

“Existing Second Lien Term Loan Credit Agreement” means that certain Second Lien Term Loan Credit Agreement dated as of January 13, 2014, by and among Turning Point (f/k/a North Atlantic Holding Company, Inc.), as parent, NATC Holding, as holdings, NATC, as borrower, the lenders party thereto and the Existing Second Lien Administrative Agent.

“Facility Termination Date” means the date on which the Commitments are terminated, and the principal of and interest on the Loans (including such obligations arising after the commencement of a proceeding under any Debtor Relief Law regardless of whether allowed or allowable in whole or in part as a claim in such proceeding), and all other Obligations payable by the Borrowers and the other Loan Parties under this Agreement and all other Loan Documents (other than any contingent or indemnification obligations not then due) are paid in full in cash in accordance with the terms hereof.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version of such sections that are substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof (including any Revenue Ruling, Revenue Procedure Notice or similar guidance issued by the U.S. Internal Revenue Service as a precondition to relief or exemption from taxes under such provisions), and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreement entered into in connection with the implementation of such Sections.

“Federal Funds Rate” means for any day, the rate per annum (based on a year of 365 or 366 days, as the case may be, and the actual number of days elapsed and rounded upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New York (or any successor) on such day as being the weighted average of the rates on overnight federal funds transactions arranged by federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank (or any successor) in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the “Federal Funds Effective Rate” as of the date of this Agreement, or, if such rate is not so published for any day that is a Business Day, the average (rounded upward, if necessary, to the next higher 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

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“First Lien Administrative Agent” means Fifth Third Bank, an Ohio banking corporation, as Administrative Agent under, and as defined in, the First Lien Credit Agreement, and its successors and assigns.

“First Lien Collateral Documents” means the Collateral Documents as defined in the First Lien Credit Agreement.

“First Lien Credit Agreement” means that certain First Lien Credit Agreement dated the date of this Agreement by and among the Borrowers, the guarantors party thereto, the lenders party thereto, and the First Lien Administrative Agent.

“First Lien Loan Documents” means the Loan Documents, including the First Lien Credit Agreement, as defined in the First Lien Credit Agreement.

“First Lien Loans” means the loans extended to the Borrowers under the First Lien Credit Agreement.

“First Tier Foreign Subsidiary” means any Foreign Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of the Code and the Ownership Interests of which are owned directly by any Loan Party.

“Fiscal Year” means the fiscal year of Turning Point ending on December 31.

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

“ Foreign Subsidiary ” means each Subsidiary that (a) is organized under the laws of a jurisdiction other than the United States of America or any state thereof or the District of Columbia, (b) conducts substantially all of its business outside of the United States of America, and (c) has substantially all of its assets outside of the United States of America.

“GAAP” means generally accepted accounting principles in effect from time to time in the United States of America, including the Financial Accounting Standards Board’s Accounting Standards Codification, applied on a consistent basis.

“Governmental Approvals” means all authorizations, consents, approvals, permits, licenses and exemptions of, and all registrations and filings with or issued by, any Governmental Authorities.

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

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

“Guarantors” means and includes each direct and indirect Domestic Subsidiary of each Borrower (other than NATC or an Immaterial Subsidiary), and each Borrower, in its capacity as a guarantor of the Secured Obligations of another Loan Party; provided, however, that upon the occurrence of any Immaterial Subsidiary ceasing to be an Immaterial Subsidiary, such Subsidiary shall be included in the definition of “Guarantors”; provided, further, that unless otherwise required by the Administrative Agent or the Required Lenders during the existence of any Event of Default, a Foreign Subsidiary shall not be required to be a Guarantor hereunder to the extent that and for so long as the guaranty by (or pledge of any assets or Ownership Interests (other than up to sixty-five percent (65%) of the voting Ownership Interests and one hundred percent (100%) of the non-voting Ownership Interests of a First Tier Foreign Subsidiary) of) such Foreign Subsidiary would have a material adverse tax consequence for a Borrower or result in a violation of applicable Legal Requirements.

“Guaranty Agreements” means and includes the Second Lien Guaranty and Security Agreement and any other guaranty agreement executed and delivered in order to guarantee the Secured Obligations or any part thereof in form and substance acceptable to the Administrative Agent.

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“Hazardous Materials” means any substances or materials (a) which are or become defined as hazardous wastes, hazardous substances, pollutants, contaminants, or toxic substances under any Environmental Law, (b) which are toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to public health or the environment and are or become regulated by any Governmental Authority, (c) the presence of which require investigation or remediation under any Environmental Law or common law, (d) the disposal of which requires a permit or license under any Environmental Law or other Governmental Approval, (e) which are deemed by a Governmental Authority to constitute a nuisance or a trespass which pose a health or safety hazard to Persons or neighboring properties, or (f) which contain, without limitation, radon, asbestos, polychlorinated biphenyls, petroleum hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.

“Hedge Agreement” means any (a) agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of any Loan Party or its Subsidiaries shall be a Hedge Agreement or (b) any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other similar master agreement.

“Hedge Termination Value” means, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge 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 Hedge Agreements, as determined based upon one or more mid‑market or other readily available quotations provided by any recognized dealer in such Hedge Agreements.

“Hostile Acquisition” means the acquisition of the Ownership Interests of a Person through a tender offer or similar solicitation of the owners of such Ownership Interests which has not been approved (prior to such acquisition) by resolutions of the Board of Directors of such Person or by similar action if such Person is not a corporation, and, if such acquisition has been so approved, as to which such approval has not been withdrawn.

“Immaterial Subsidiary” means each Subsidiary designated as such in writing by a Borrower to the Administrative Agent that is acceptable to the Administrative Agent in its sole discretion; provided that, (a) the aggregate book value of the assets, determined in accordance with GAAP, of all such Immaterial Subsidiaries may not exceed $1,000,000 at any time, and (b) the aggregate annual revenues of all such Immaterial Subsidiaries may not exceed $1,000,000; provided, further, that a Subsidiary will not be considered to be an Immaterial Subsidiary if it, directly or indirectly, guarantees or otherwise provides direct credit support for any Indebtedness of a Borrower. As of the Closing Date, the only Immaterial Subsidiary is Fred Stoker & Sons, Inc., a Tennessee corporation.

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“Indebtedness” means, with respect to any Person at any date and without duplication, the sum of the following:

(a) all liabilities, obligations and indebtedness for borrowed money including obligations evidenced by bonds, debentures, notes or other similar instruments of any such Person;

(b) all obligations to pay the deferred purchase price of property or services of any such Person (including all obligations under earn‑out or similar agreements that appear in the liabilities section of the balance sheet of such Person), except trade payables or accrued expenses arising in the ordinary course of business not more than one hundred eighty (180) days past due, or that are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided for on the books of such Person;

(d) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business);

(e) all Indebtedness of any other Person secured by a Lien on any asset owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements except trade payables arising in the ordinary course of business), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f) all obligations, contingent or otherwise, of any such Person relative to the face amount of letters of credit, whether or not drawn, including any reimbursement obligation, and banker’s acceptances, bank guaranties, surety bonds and similar instruments issued for the account of any such Person;

(g) all obligations of any such Person in respect of Disqualified Ownership Interests;

(h) all net obligations of such Person under any Hedge Agreements; and

(i) all Guarantees of any such Person with respect to any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is Non‑Recourse Debt. The amount of any net obligation under any Hedge Agreement on any date shall be deemed to be the Hedge Termination Value thereof as of such date. For the avoidance of doubt, Indebtedness shall not include indemnification or expense reimbursement obligations, or interest or fees paid or payable in respect of any obligations constituting Indebtedness; provided that any obligations or extensions of credit that finance the payment of such indemnification, reimbursement, interest and fee payment obligations shall constitute Indebtedness to the extent constituting obligations of the type set forth in clauses (a) through (i) above.

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

“Indemnitee” is defined in Section 11.5(b).

“Intercreditor Agreement” means that certain Second Lien Intercreditor Agreement dated as of the date hereof by and between the Administrative Agent and the First Lien Administrative Agent.

“Interest Payment Date” means the last Business Day of every calendar month and on the maturity date.

“Interest Rate” means a rate per annum equal to eleven percent (11.00%).

“Investment” is defined in Section 7.3.

“IRS” means the United States Internal Revenue Service.

“JJA Supply Agreement” means that certain Supply Agreement, dated as of April 1, 2013, between JJA Distributors, LLC, a Virginia limited liability company, and NTC.

“JPMorgan Cash Collateral Account” means that certain deposit account in the name of NAOC maintained with JPMorgan Chase Bank, N.A., the funds in which are used solely as cash collateral to secure the JPMorgan Letters of Credit.

“JPMorgan Letters of Credit” means those certain outstanding letters of credit issued by JPMorgan Chase Bank, N.A. for the account of NATC that are outstanding on the Closing Date and listed on Schedule 7.1.

“Legal Requirement” means any treaty, convention, statute, law, common law, regulation, ordinance, license, permit, governmental approval, injunction, judgment, order, consent decree, restriction or other requirement of any Governmental Authority (including all Tobacco Requirements and Environmental Laws) and all orders and decrees of all courts and arbitrators.

“Lenders” means and includes the banks, financial institutions and other lenders from time to time party to this Agreement, as a “Lender” hereunder, including each assignee Lender pursuant to Section 11.11.

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“Lien” means any lien, mortgage, leasehold mortgage, deed of trust, pledge, assignment as collateral security, security interest, charge, hypothecation or encumbrance in the nature of security in respect of any Property, including the interests of a vendor or lessor under any conditional sale, Capital Lease or other title retention arrangement, and any option, trust, UCC financing statement or other preferential arrangement having the practical effect of any of the foregoing.

“Loan” is defined in Section 2.1.

“Loan Documents” means this Agreement, the Intercreditor Agreement, the Notes (if any), the Administrative Agent Fee Letter, the Cashless Exchange Letter, the Collateral Documents, the Guaranty Agreements, the Sub-Agency Agreement, and each other agreement, instrument or document to be delivered hereunder or thereunder or otherwise in connection herewith or therewith.

“Loan Party” means each of the Borrowers and each of the Guarantors.

“Margin Stock” shall have the meaning given to such term in Regulation U of the Board of Governors of the Federal Reserve System.

“Material Adverse Effect” means (a) a material adverse change in, or material adverse effect upon, the business, condition (financial or otherwise) operations, performance, Properties, liabilities (actual or contingent) or prospects of either Borrower or of the Loan Parties taken as a whole, (b) a material impairment of the ability of any Loan Party to perform its material obligations under any Loan Document to which it is a party or (c) a material adverse effect upon (i) the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document or the rights and remedies of the Administrative Agent and the Lenders thereunder or (ii) the perfection or priority of any Lien granted under any Collateral Document, in each case, which affects a significant portion of the Collateral. As used herein, the term “significant portion” means Collateral with a value equal to or greater than two and one‑half percent (2.5%) of the total value of the Collateral or which is otherwise material to the operation of the business of Turning Point and its Subsidiaries.

“Material Contract” means (a) the Bollore Distribution Agreements, (b) the Swedish Match Agreement, (c) the JJA Supply Agreement, (d) the Durfort Production Agreement, (e) the First Lien Loan Documents, (f) any contract or agreement, written or oral, of any Loan Party involving monetary liability of or to any such Person in an amount in excess of $11,500,000 per annum or (g) any other contract or agreement, written or oral, of any Loan Party, the breach, non‑performance, cancellation or failure to renew of which could reasonably be expected to have a Material Adverse Effect.

“ Material Event of Default ” means any Event of Default described in subsections (a), (b), (f), (h), and (i) of Section 8.1 and any Event of Default resulting from a default in the performance of Sections 6.1, 6.18, 7.2, or 7.15.

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“Material Non‑Public Information” means information which is (a) not publicly available, (b) material with respect to the Borrowers and their Subsidiaries or their respective securities for purposes of United States federal and state securities laws and (c) not of a type that would be publicly disclosed in connection with any issuance by either Borrower or any of its Subsidiaries of debt or equity securities issued pursuant to a public offering, a Rule 144A offering or other private placement where assisted by a placement agent.

“Maximum Rate” is defined in Section 11.25.

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

“Mortgages” means, collectively, any and all mortgages or deeds of trust delivered to the Administrative Agent pursuant to Section 6.14(d).

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Loan Party or any ERISA Affiliate is making, or is accruing an obligation to make, or has accrued an obligation to make contributions within the preceding seven (7) years.

“NAOC” means North Atlantic Operating Company, Inc., a Delaware corporation.

“NATC” is defined in the introductory paragraph of this Agreement.

“NATC Holding” means NATC Holding Company, Inc., a Delaware corporation.

“NATC Rollover Loans” means those loans borrowed by NATC and owed to the Rollover Lenders that are the subject of the Cashless Exchange Letter.

“Net Cash Proceeds” means, as applicable, (a) with respect to any Asset Disposition by a Person, cash and cash equivalent proceeds received by or for such Person’s account, net of (i) reasonable direct costs relating to such Asset Disposition and (ii) sale, use or other transactional taxes paid or payable by such Person as a direct result of such Asset Disposition, (b) with respect to any Event of Loss of a Person, cash and cash equivalent proceeds received by or for such Person’s account (whether as a result of payments made under any applicable insurance policy therefor or in connection with condemnation proceedings or otherwise), net of reasonable direct costs incurred in connection with the collection of such proceeds, awards or other payments, and (c) with respect to any offering of Ownership Interests of a Person or the issuance of any Indebtedness by a Person, cash and cash equivalent proceeds received by or for such Person’s account, net of reasonable legal, underwriting, and other fees and expenses incurred as a direct result thereof.

“Non‑Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all affected Lenders or all Lenders, in each instance in accordance with the terms of Section 11.2, and (b) has been approved by the Required Lenders.

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“Non‑Recourse Debt” shall mean Indebtedness:

(1) as to which neither a Borrower nor any Subsidiary thereof (a) provides any guarantee or credit support of any kind (including any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly liable (as a guarantor, general partner or otherwise);

(2) no default with respect to which would permit (upon notice, lapse of time or both) any holder of any other Indebtedness of either Borrower or any of its Subsidiaries to declare a default under such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and

(3) as to which the express terms provide that there is no recourse against any of the property or assets of either Borrower or any of its Subsidiaries.

“Note” and “Notes” are each defined in Section 2.12(d).

“NTC” means National Tobacco Company, L.P., a Delaware limited partnership.

“Obligations” means all obligations of each Borrower to pay principal and interest on the Loans (including such obligations arising after the commencement of a proceeding under any Debtor Relief Law regardless of whether allowed or allowable in whole or in part as a claim in such proceeding), all costs, fees (including fees provided for in the Administrative Agent Fee Letter), premiums, and charges payable hereunder, and all other payment obligations of any Loan Party arising under or in relation to any Loan Document, in each case whether now existing or hereafter arising, due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired, and including all interest, costs, fees, premiums, charges and other payment obligations after commencement of a proceeding under any Debtor Relief Law regardless of whether allowed or allowable in whole or in part as a claim in such proceeding.

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

“Officer’s Compliance Certificate” means a certificate of the chief financial officer of Turning Point substantially in the form of Exhibit D.

“Operating Lease” means, as to any Person as determined in accordance with GAAP as in effect on the Closing Date, any lease of Property (whether real, personal or mixed) by such Person as lessee which is not a Capitalized Lease Obligation.

“Organization Documents” means, (a) for any corporation, the certificate or articles of incorporation, the bylaws, or code of regulations, or other similar document and any certificate of designations or instrument relating to the rights of shareholders of such corporation, (b) for any partnership, the partnership agreement or other similar agreement and, if applicable, certificate of limited partnership, (c) for any limited liability company, the operating agreement, limited liability company agreement, or other similar agreement, and articles or certificate of formation of such limited liability company, and (d) with respect to any joint venture, trust or other form of business entity, the joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

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

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 11.2(b) ) .

“Ownership Interest” means all shares, interests, participations, rights to purchase, rights to transfer, rights to control, options, warrants, general or limited partnership interests, limited liability company interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity, whether voting or nonvoting, including common stock, preferred stock or any other “equity security” (as such term is defined in Rule 3a11‑1 of the Rules and Regulations promulgated by the Securities and Exchange Commission (17 C.F.R. § 240.3a11‑1) under the Securities and Exchange Act of 1934).

“Participant” is defined in Section 11.11(d).

“Participant Register” is defined in Section 11.11(d).

“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107‑56.

“PBGC” means the Pension Benefit Guaranty Corporation or any Person succeeding to any or all of its functions under ERISA.

“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is maintained, funded or administered for the employees of any Loan Party or any ERISA Affiliate or (b) has at any time within the preceding seven (7) years been maintained, funded or administered for the employees of any Loan Party or any current or former ERISA Affiliates.

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“Percentage” means for each Lender, the percentage of the Commitments represented by such Lender’s Commitment or, if the Commitments have been terminated or have expired, the percentage held by such Lender of the aggregate principal amount of all Loans then outstanding.

“Perfection Certificate” means that certain Perfection Certificate dated as of the Closing Date from the Borrowers to the Administrative Agent.

“Permitted Acquisition” means any Acquisition with respect to which all of the following conditions shall have been satisfied:

(a) the Acquired Entity shall be in a line of business permitted pursuant to Section 7.11 of this Agreement and have its primary operations in the United States of America;

(b) the Acquisition shall not be a Hostile Acquisition;

(c) the Total Consideration for the Acquired Entity, when taken together with the Total Consideration for all Acquired Entities acquired during the immediately preceding twelve (12) month period shall not exceed $25,000,000 in the aggregate during such period without the prior written consent of the Administrative Agent; provided that, the Total Consideration for all Acquired Entities during the immediately preceding twelve (12) month period financed by credit extended under the First Lien Credit Agreement shall not exceed $20,000,000 in the aggregate during such period; provided, further, notwithstanding the foregoing, this clause (c) shall not include any Acquired Entity acquired prior to December 31, 2016;

(d) if the Acquired Entity shall have earnings (based on net income) before interest, taxes, depreciation, and amortization for the most recently available twelve fiscal months of such Acquired Entity that are equal to or less than $0.00, the cash and Cash Equivalents portion of Total Consideration for such Acquired Entity shall not exceed the acquired net operating losses capable of being utilized by a Borrower on a go-forward basis;

(e) the Borrowers shall have notified the Administrative Agent and Lenders not less than ten (10) days (or such shorter time period as may be agreed to by the Administrative Agent) prior to any such Acquisition;

(f) if a new Subsidiary is formed or acquired as a result of or in connection with the Acquisition, the Borrowers shall have complied with the requirements of Section 6.14 in connection therewith;

(g) the financial statements of the Acquired Entity shall have been audited by a nationally recognized independent accounting firm or have undergone a review by an accounting firm reasonably acceptable to the Administrative Agent; provided that, if (i) Acquired Entity’s earnings (based on net income) before interest, taxes, depreciation, and amortization for the most recently ended consecutive four (4) quarters of the Acquired Entity is greater than 25% of the combined Consolidated EBITDA during the same period of the Acquired Entity and the Loan Parties or (ii) the Total Consideration (inclusive of any earn-out obligations) for the Acquired Entity is greater than $20,000,000, the Borrowers shall have delivered to the Administrative Agent a quality of earnings report with respect to the Acquired Entity, which report shall be prepared by an independent accounting firm reasonably acceptable to the Administrative Agent;

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(h) (i) after giving effect to the Acquisition and any Credit Event in connection therewith, the Borrowers shall have Unused Revolving Credit Commitments (as defined in the First Lien Credit Agreement) of at least $10,000,000 and (ii) no Default or Event of Default shall exist or shall result from the Acquisition, including with respect to the covenants contained in Section 7.15 on a Pro Forma Basis, provided that (X) the Consolidated Total Leverage Ratio on a Pro Forma Basis (calculated exclusive of any cost savings and other operating improvements and acquisition synergies not approved by the Administrative Agent in its sole discretion) shall be no greater than 0.25 less than the most recently applicable maximum Consolidated Total Leverage Ratio permitted under Section 7.15(a) and (Y) the Consolidated Senior Leverage Ratio on a Pro Forma Basis (calculated exclusive of any cost savings and other operating improvements and acquisition synergies not approved by the Administrative Agent in its sole discretion) shall be no greater than 0.25 less than the most recently applicable maximum Consolidated Senior Leverage Ratio permitted under Section 7.15(b), and the Borrowers shall have delivered to the Administrative Agent an Officer’s Compliance Certificate with detailed calculations evidencing such Consolidated Total Leverage Ratio and such Consolidated Senior Leverage Ratio;

(i) if any Acquired Entity merges with and into either Borrower, such Borrower shall be the legal entity surviving the merger; and

(j) the Borrowers shall have delivered to the Administrative Agent either an updated Consolidated budget or updated Consolidated projections in form and detail satisfactory to the Administrative Agent (including a breakdown of the projected results of each business segment of the Borrowers after giving pro forma effect to the Acquisition) for each of the next twelve (12) fiscal months.

“Permitted Lien” means the Liens permitted pursuant to Section 7.2.

“Permitted Holder” means (a) Standard General and (b) SDOI.

“Permitted Prior Liens” means (x) with respect to pledged Ownership Interests, Liens permitted pursuant to Section 7.2(j)(x) and (y) with respect to other assets, Liens permitted pursuant to Section 7.2(b), (c), (d), (e), (f), (g), (h), (i)(y), (j), (k), (l), (m), and (n).

“Permitted Protest” means the right of either Borrower or any of its Subsidiaries to protest (administratively, judicially or otherwise) any Lien (other than any Lien that secures the Obligations), taxes (other than payroll taxes or taxes that are the subject of a United States federal tax lien) or rental payment; provided that (a) a reserve with respect to such obligation is established on a Borrower’s or its Subsidiaries’ books and records in such amount as is required under GAAP and (b) any such protest is instituted promptly and prosecuted diligently by a Borrower or its Subsidiary, as applicable, in good faith.

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“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal, restructuring, replacement or extension of any Indebtedness (such modified, refinanced, refunded, renewed, restructured, replaced or extended Indebtedness, the “Refinanced Indebtedness” ) of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Refinanced Indebtedness except by an amount (the “Additional Principal Amount” ) equal to unpaid accrued interest and premium thereon plus other amounts owing or unpaid related to such Refinanced Indebtedness, and fees and expenses incurred in connection with such modification, refinancing, refunding, renewal, restructuring, replacement or extension and by an amount equal to any existing commitments unutilized thereunder ( provided that in the case of a Permitted Refinancing of the Indebtedness under the First Lien Credit Agreement pursuant to Section 7.1(l)(ii), the principal amount thereof may not exceed the First Lien Cap Amount (as defined in the Intercreditor Agreement) at any time outstanding), (b) the final maturity date and weighted average life thereof shall not be prior to or shorter than that applicable to the Refinanced Indebtedness, (c) at the time of incurrence thereof and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (d) if such Refinanced Indebtedness is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment to the Obligations on terms no less favorable to the Lenders than those contained in the documentation governing the Refinanced Indebtedness or otherwise reasonably acceptable to the Administrative Agent, (e) if such Refinanced Indebtedness is unsecured, such modification, refinancing, refunding, renewal, replacement or extension shall be unsecured, (f) if such Refinanced Indebtedness is secured, (i) such modification, refinancing, refunding, renewal, replacement or extension shall be secured by substantially the same or less Collateral as secured such Refinanced Indebtedness on terms no less favorable to the Administrative Agent or the Secured Parties and (ii) the Liens to secure such modification, refinancing, refunding, renewal, replacement or extension shall not have a priority more senior than the Liens securing such Refinanced Indebtedness and, if subordinated to any other Liens on such Property, shall be subordinated to the Liens in favor of the Administrative Agent for the benefit of the Secured Parties on terms no less favorable to the Administrative Agent or the Secured Parties than those contained in the documentation governing the Refinanced Indebtedness and (g) (i) there shall be no obligor in respect of such modification, refinancing, refunding, renewal, replacement or extension that is not a Loan Party and (ii) if a Borrower is the primary obligor of the Refinanced Indebtedness, no Loan Party other than such Borrower shall be the primary obligor thereof.

“Person” means any natural person, partnership, corporation, limited liability company, association, trust, unincorporated organization or any other entity or organization, including a Governmental Authority.

“Platform” is defined in Section 6.2.

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“Pro Forma Basis” means, for purposes of calculating Consolidated EBITDA for any period during which one or more Specified Transactions occurs, that such Specified Transaction (and all other Specified Transactions that have been consummated during the applicable period) shall be deemed to have occurred as of the first day of the applicable period of measurement and:

(a) all income statement items (whether positive or negative) attributable to the Property or Person disposed of in a Specified Disposition shall be excluded and all income statement items (whether positive or negative) attributable to the Property or Person acquired in a Permitted Acquisition shall be included ( provided that such income statement items to be included are reflected in financial statements or other financial data based upon reasonable assumptions and calculations which are expected to have a continuous impact);

(b) non‑recurring costs, extraordinary expenses and other pro forma adjustments attributable to such Specified Transaction (including cost savings or other operating improvements and acquisition synergies) may be included to the extent that such costs, expenses or adjustments:

(i) are reasonably expected to be realized within twelve (12) months of such Specified Transaction as set forth in reasonable detail on a certificate of a Responsible Officer of Turning Point delivered to the Administrative Agent;

(ii) are, in each case, reasonably identifiable, factually supportable, and expected to have a continuing impact on the operations of Turning Point and its Subsidiaries; and

(iii) either, (A) are adjustments to historic income statement items based on historic costs not assumed or eliminated as a result of the Specified Transaction or (B) when combined with all amounts added back to Consolidated EBITDA pursuant to clause (b)(viii) of the definition thereof, represent less than five percent (5%) of Consolidated EBITDA (determined without giving effect to this clause (b)(iii)(B) or such clause (b)(viii));

provided that the foregoing costs, expenses and adjustments shall be without duplication of any costs, expenses or adjustments that are already included in the calculation of Consolidated EBITDA or clause (a) above.

“Property” means, as to any Person, all types of real, personal, tangible, intangible or mixed property owned by such Person whether or not included in the most recent balance sheet of such Person and its Subsidiaries under GAAP.

“Prospect” means Prospect Capital Corporation, a Maryland corporation.

“Public Lenders” is defined in Section 6.2.

“Qualified Ownership Interests” means any Ownership Interests that are not Disqualified Ownership Interests.

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“Recipient” means (a) the Administrative Agent and (b) any Lender.

“Refinancing” means (i) the payment in full and discharge of all Indebtedness and other obligations (other than contingent indemnification obligations not then due) outstanding under the Existing ABL Credit Agreement, the Existing First Lien Term Loan Credit Agreement, and the Existing Second Lien Term Loan Credit Agreement, the termination of the commitments thereunder and the release of all guarantees therefor and security therefor and (ii) the payment of fees and expenses incurred in connection therewith.

“Refinancing Transaction” means any modification, refinancing, refunding, renewal, restructuring, or replacement of any Loans with the proceeds of, or any conversion of Loans into, any Indebtedness.

“Register” is defined in Section 11.11(c).

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

“Release” means any placing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing or migrating in, into, onto or through the Environment or from or through any facility, property or equipment, including the exacerbation of existing environmental conditions and the abandonment or discarding of barrels, drums, containers, tanks or other receptacles containing or previously containing any Hazardous Material.

“Required Lenders” means, as of the date of determination thereof, Lenders whose outstanding Loans constitute more than 50% of the sum of the total outstanding Loans. For the purposes of this definition, (a) any Lender and its Affiliates shall constitute a single Lender, and (b) in no event shall Required Lenders include fewer than two (2) Lenders at any time there are two (2) or more Lenders.

“Resignation Effective Date” is defined in Section 10.7(a).

“Responsible Officer” means, as to any Person, the chief executive officer, president, chief financial officer or secretary of such Person or any other officer of such Person designated in writing by Turning Point and reasonably acceptable to the Administrative Agent.

“Restricted Quarterly Distribution” is defined in Section 7.6(c).

“ Restricted Payments ” is defined in Section 7.6.

“Rollover Lenders” means each of (a) Summit Partners Credit Fund, L.P., (b) Summit Partners Credit Fund A-1, L.P., (c) Summit Partners Credit Offshore Intermediate Fund, L.P., (d) Summit Investors I, LLC, (e) Summit Investors I (UK), LP, (f) Summit Partners Credit Fund II, L.P., (g) Summit Partners Credit Fund A-2, L.P., (h) Summit Partners Credit Fund B-2, L.P., (i) Summit Partners Credit Offshore Intermediate Fund II, LP, (j) Summit Investors Credit II, LLC, and (k) Summit Investors Credit II (UK), L.P.

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

“Sanctioned Country” means a country or territory that is the subject of a Sanctions Program.

“Sanctioned Person” means (a) a Person named on a Sanctions List, each Person owned or controlled by a Person named on a Sanctions List, and each other Person that is subject to a Sanctions Program, (b) an agency or government of a Sanctioned Country, (c) an organization owned or controlled directly or indirectly by a Sanctioned Country, or (d) a Person located, organized or resident in a Sanctioned Country, to the extent subject to a Sanctions Program.

“Sanctions Event” means the event specified in Section 6.22(c).

“Sanctions Lists” means, and includes, (a) the list of the Specially Designated Nationals and Blocked Persons maintained by OFAC, (b) the list of Sectoral Sanctions Identifications maintained by the U.S. Department of Treasury, (c) the list of Foreign Sanctions Evaders maintained by the U.S. Department of Treasury, and (d) any similar list maintained by the U.S. State Department, the U.S. Department of Commerce, the U.S. Department of Treasury, or any other U.S. Governmental Authority, or maintained by a Canadian Governmental Authority, the United Nations Security Council, or the European Union.

“Sanctions Programs” means (a) all economic, trade, and financial sanctions programs administered by OFAC (including all laws, regulations, and Executive Orders administered by OFAC), the U.S. State Department, and any other U.S. Governmental Authority, including the Bank Secrecy Act, anti-money laundering laws (including the Patriot Act), and any and all similar United States federal laws, regulations or Executive Orders, and any similar laws, regulations or orders adopted by any State within the United States, and (b) to the extent applicable, all similar economic, trade, and financial sanctions programs administered, enacted, or enforced by the European Union or the United Kingdom.

“SDOI” means Special Diversified Opportunities, Inc., a Delaware corporation.

“Second Lien Guaranty and Security Agreement” means that certain Second Lien Guaranty and Security Agreement dated as of the date hereof among the Loan Parties and the Administrative Agent.

“Secured Obligations” means the Obligations, whether now existing or hereafter arising, due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired (including all interest, costs, fees (including fees provided for in the Administrative Agent Fee Letter), premiums, and charges after the commencement of a proceeding under any Debtor Relief Law regardless of whether allowed or allowable in whole or in part as a claim in such proceeding), whether or not such interest, costs, fees, premiums, and charges would be an allowed or allowable in whole or in part as a claim in any such proceeding); provided, however, that, with respect to any Guarantor, Secured Obligations Guaranteed by such Guarantor shall exclude all Excluded Swap Obligations.

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“Secured Parties” means, collectively, the Administrative Agent, the Lenders, each co‑agent or sub‑agent appointed by the Administrative Agent from time to time pursuant to Section 10.5, any other holder from time to time of any Secured Obligations and, in each case, their respective successors and permitted assigns.

“Seller Debt” means, in connection with an Acquisition, indebtedness incurred for the deferred purchase price of property or services ( e.g., promissory notes, earnout obligations, and other contingent future payment obligations triggered by the occurrence of certain events) and owed to the seller(s) involved in such Acquisition.

“Specified Disposition” means any disposition of all or substantially all of the assets or Ownership Interests of any Subsidiary of a Borrower or any division, business unit, product line or line of business.

“Specified Transactions” means (a) any Specified Disposition and (b) any Permitted Acquisition.

“Solvent” or “Solvency” means, with respect to any Person on any date of determination, that on such date (a) the fair value of the property and assets of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the property and 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, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, 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.

“Standard General” means Standard General L.P., a Delaware limited partnership, and/or its Affiliates (other than Turning Point and its Subsidiaries), as applicable.

“Sub-Agency Agreement” means that certain Sub-Agency Agreement dated as of the date hereof between the Administrative Agent and the Administrative Sub-Agent.

“ Subordinated Debt ” means the collective reference to any Indebtedness incurred by either Borrower or any of its Subsidiaries that is subordinated in right and time of payment to the Secured Obligations on terms and conditions substantially as set forth in Exhibit F hereto.

“Subordinating Loan Party” is defined in Section 11.27.

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“Subsidiary” means, as to any particular parent corporation or organization, any other corporation or organization more than 50% of the outstanding Voting Interests of which is at the time directly or indirectly owned by such parent corporation or organization or by any one or more other entities which are themselves subsidiaries of such parent corporation or organization. Unless otherwise expressly noted herein, the term “Subsidiary” means a Subsidiary of a Borrower or of any of its direct or indirect Subsidiaries.

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

“Swedish Match Agreement” means that certain Contract Manufacturing, Packaging and Distribution Agreement, dated as of September 4, 2008, between Swedish Match North America, Inc., a Delaware corporation, and NTC.

“Synthetic Lease” means any synthetic lease, tax retention operating lease, off‑balance sheet loan or similar off‑balance sheet financing product where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease in accordance with GAAP as in effect on the Closing Date.

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

“Termination Date” means August 17, 2022 or such earlier date on which the Loans are declared due and payable in whole pursuant to Section 8.2 or 8.3.

“Termination Event” means the occurrence of any of the following which, individually or in the aggregate, has resulted or could reasonably be expected to result in liability of any Loan Party in an aggregate amount in excess of $5,750,000: (a) a “Reportable Event” described in Section 4043 of ERISA for which the thirty (30) day notice requirement has not been waived by the PBGC; (b) the withdrawal of any Loan Party or any ERISA Affiliate from a Pension Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities; (d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC; (e) any other event or condition which would constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303 of ERISA; (g) the determination that any Pension Plan or Multiemployer Plan is considered an at‑risk plan or plan in endangered or critical status within the meaning of Sections 430, 431 or 432 of the Code or Sections 303, 304 or 305 of ERISA; (h) the partial or complete withdrawal of any Loan Party or any ERISA Affiliate from a Multiemployer Plan if withdrawal liability could be asserted by such plan; (i) any event or condition which results in the reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA; (j) any event or condition which results in the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA, or (k) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate.

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“TMSA Account” means that escrow account of Turning Point the balance of which consists exclusively of (and is established as an account solely for the purposes of holding), amounts required to comply with the Tobacco Master Settlement Agreement.

“Tobacco Master Settlement Agreement” means the Master Settlement Agreement entered into on November 23, 1998, by and among the respective officials of each Settling State (as defined therein), Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Liggett Group Inc., and Commonwealth Brands, Inc.

“Tobacco Requirements” means and includes all Legal Requirements applicable to the importation, exportation, manufacture, sale or distribution of green or processed tobacco, any product made or derived from tobacco that is intended for human consumption and any component, part, or accessory of any such tobacco product, including cigarettes, cigarette tobacco, roll-your-own tobacco, smokeless tobacco, cigarette papers and tubes or electronic cigarettes, which Legal Requirements include the following: the Federal Food, Drug and Cosmetics Act, the Family Smoking Prevention and Tobacco Control Act, the Federal Cigarette Labeling and Advertising Act of 1966, the Comprehensive Smoking Education Act of 1984, the Comprehensive Smokeless Tobacco Health Education Act of 1986, the Alcohol, Drug Abuse and Mental Health Administration (ADAMHA) Reorganization Act of 1992, the Prevent All Cigarette Trafficking Act of 2009, and all rules and regulations issued pursuant to each and all of the foregoing, including Good Manufacturing Practice Regulations as promulgated from time to time by the Food and Drug Administration, and the Tobacco Master Settlement Agreement, and any and all Legal Requirements, rules and regulations promulgated by the Federal Trade Commission, TTB, the Federal Communications Commission, the U.S. Environmental Protection Agency, the U.S. Department of Agriculture, the U.S. Customs and Border Protection, and the U.S. Center for Disease Control and Prevention (the “CDC” ) and the CDC’s Office on Smoking and Health.

“Total Consideration” means the sum (but without duplication) of (a) cash and Cash Equivalents paid or payable in connection with any Acquisition, whether paid at or prior to or after the closing thereof, plus (b) Indebtedness payable to the seller in connection with such Acquisition (including all obligations under Seller Debt or similar earn-outs or agreements that appear in the liabilities section of the balance sheet of such Person), plus (c) the fair market value of any Ownership Interests, delivered to the seller in connection with any Acquisition, plus (d) purchase price payments which are required to be made over a period of time and are not contingent upon either Borrower or any other Loan Party meeting financial performance objectives (exclusive of salaries paid in the ordinary course of business) (discounted at the Base Rate), but only to the extent not included in clause (a), (b) or (c) above, plus (e) the principal amount of Indebtedness assumed in connection with such Acquisition.

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“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments and outstanding Loans of such Lender at such time.

“Transaction Costs” means all transaction fees, charges, premiums, expenses, tender and consent fees and premiums and other amounts related to the Transactions and any Permitted Acquisitions (including any financing fees, underwriting fees, merger and acquisition fees, call premiums, legal fees and expenses, due diligence fees or any other fees and expenses in connection therewith), in each case to the extent paid within three (3) months of the closing of the Loans or such Permitted Acquisition, as applicable.

“Transactions” means, collectively, (a) the Refinancing, (b) the initial Credit Event on the Closing Date and (c) the payment of the Transaction Costs incurred in connection with the foregoing.

“TTB” means the Alcohol and Tobacco Tax and Trade Bureau, United States Department of Treasury.

“Turning Point” is defined in the introductory paragraph of this Agreement.

“ UCC ” is defined in Section 1.2.

“United States” means the United States of America.

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

“U.S. Tax Compliance Certificate” is defined in Section 11.1(g)(ii).

“VaporBeast” means Smoke Free Technologies Inc., a California corporation (d/b/a VaporBeast).

“VaporBeast Seller Debt” means the indebtedness evidenced by those certain five unsecured promissory notes, each dated as of November 30, 2016, made by NTC in favor of (a) Timothy B. Campbell, in the original principal amount of $660,000, (b) Thomas J. Metzler, in the original principal amount of $200,000, (c) Timothy B. Cady, in the original principal amount of $540,000, (d) Mark M. Howard, in the original principal amount of $540,000, and (e) Sheilla V. Andrin, in the original principal amount of $60,000.

“Voting Interests” of any Person means Ownership Interests of any class or classes (however designated) having ordinary power for the election of directors or other similar governing body of such Person (including general partners of a partnership), other than Ownership Interests having such power only by reason of the happening of a contingency.

“Wholly‑owned Subsidiary” means, at any time, any Subsidiary of which all of the issued and outstanding Ownership Interests (other than directors’ qualifying Ownership Interests as required by law) are owned by any one or more of the Borrowers and the Borrowers’ other Wholly‑owned Subsidiaries at such time.

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“Wind River Purchase Agreement” means that Asset Purchase Agreement dated as of November 4, 2016, by and among Burley Stabilization Corporation, Wind River Tobacco Products, LLC and NTC.

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

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

Section 1.2. Interpretation . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections, Exhibits and Schedules shall be construed to refer to Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any Legal Requirement herein shall, unless otherwise specified, refer to such Legal Requirement as amended, restated, amended and restated, supplemented or otherwise modified from time to time, and any successor of such Legal Requirement, and (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. All references to time of day herein are references to New York, New York, time unless otherwise specifically provided. Where the character or amount of any asset or liability or item of income or expense is required to be determined or any consolidation or other accounting computation is required to be made for the purposes of this Agreement, it shall be done in accordance with GAAP except where such principles are inconsistent with the specific provisions of this Agreement. All terms that are used in this Agreement which are defined in the Uniform Commercial Code of the State of New York as in effect from time to time ( “UCC” ) shall have the same meanings herein as such terms are defined in the UCC, unless this Agreement shall otherwise specifically provide. References “from” or “through” any date mean, unless otherwise specified, “from and including” or “through and including”, respectively. Unless otherwise specified herein, the settlement of all payments and fundings hereunder between or among the parties hereto shall be made in lawful money of the United States of America and in immediately available funds. All amounts used for purposes of financial calculations required to be made herein shall be without duplication. References to any statute or act, without additional reference, shall be deemed to refer to federal statutes and acts of the United States of America.

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Section 1.3. Accounting Terms; GAAP . Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrowers notify the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

Section 1.4. Rounding . Any financial ratios required to be maintained pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number).

Section 2. The Credit Facilities.

Section 2.1. Loan Commitments. Each Lender severally and not jointly agrees, subject to the terms and conditions hereof, to make a loan (each individually a “Loan” and, collectively, the “Loans” ) in Dollars to the Borrowers in the amount of such Lender’s Commitment; provided that, each Rollover Lender’s Loan shall be comprised of such Rollover Lender’s Borrower Rollover Loans, which shall be deemed made to the Borrowers on a cashless basis on the Closing Date in exchange for the NATC Rollover Loans in accordance with the Cashless Exchange Letter. The Borrowers and NATC acknowledge and agree that on the Closing Date, the Borrower Rollover Loans are outstanding hereunder, without any claim, set-off, or other similar rights with respect thereto in favor of NATC or the Borrowers, and are owed to the respective Rollover Lender subject to the terms and conditions hereof. The Loans shall be advanced in a single Borrowing on the Closing Date, at which time the Commitments shall expire. No amount of any Loan may be reborrowed once it is repaid.

Section 2.2. Intentionally Omitted .

Section 2.3. Intentionally Omitted .

Section 2.4. Applicable Interest Rate . (a) Fixed Rate. Each Loan made or maintained by a Lender shall bear interest (computed on the basis of a year of 360 days and the actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced until, but excluding, the date of repayment thereof at a rate per annum equal to the Interest Rate payable in arrears by the Borrowers on each Interest Payment Date and at maturity (whether by acceleration or otherwise).

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(b) Default Rate. While any Event of Default exists or after acceleration, the Borrowers shall pay interest (after as well as before entry of judgment thereon to the extent permitted by law) on the principal amount of all Loans and other amounts owing by it at a rate per annum equal to thirteen percent (13.00%) per annum; provided, however, that in the absence of acceleration, any increase in interest rates pursuant to this Section shall be made at the election of the Administrative Agent, acting at the request or with the consent of the Required Lenders, with written notice to the Borrowers (which election may be retroactively effective to the date of such Event of Default). While any Event of Default exists or after acceleration, accrued interest shall be paid on demand of the Administrative Agent at the request or with the consent of the Required Lenders.

Section 2.5. Manner of Borrowing Loans . (a) Notice to the Administrative Agent. The Borrowers’ Agent shall give written notice to the Administrative Agent by no later than 10:00 a.m. (New York time) at least three (3) Business Days in advance of the date the Borrowers request the Lenders to advance a Borrowing; provided, however, if the funding does not occur on any proposed funding date, the Administrative Agent shall have received a written request for funding from an Authorized Officer of the Borrowers’ Agent by 10:00 a.m. (New York time) at least three (3) Business Days in advance of the new proposed funding date. The Borrowers’ Agent shall give all such notices requesting the advance of a Borrowing to the Administrative Agent by email (with a pdf copy of the applicable fully‑executed written notice) (which notice shall be irrevocable once given), in such form acceptable to the Administrative Agent. All notices concerning the advance of a Borrowing shall specify the date of the requested advance (which shall be a Business Day) and the amount of the requested Borrowing to be advanced. The Borrowers agree that the Administrative Agent may rely on any such email notice given by any person whom the Borrowers have identified to the Administrative Agent as an Authorized Representative without the necessity of independent investigation, and the Borrowers hereby indemnify the Administrative Agent from any liability or loss ensuing from such reliance.

(b) Notice to the Lenders . The Administrative Agent and the Arranger shall give prompt telephonic, telecopy, or email notice to each Lender of any notice from the Borrowers’ Agent received pursuant to Section 2.5(a) above.

(d) Disbursement of Loans . Not later than 2:00 p.m. (New York time) on the date of any requested advance of a new Borrowing, subject to Section 3, each Lender shall (i) make available its Loan comprising part of such Borrowing in funds immediately available at the principal office of the Administrative Agent in New York, New York (or at the principal office and location of any designated sub-agent identified in writing to the Lenders) and (ii) provide the Arranger the federal reference number for such funds. The Administrative Agent (or its designated sub-agent) shall make the proceeds of each new Borrowing available to the Borrowers at the Administrative Agent’s principal office in New York, New York (or at the principal office and location of any designated sub-agent), by depositing such proceeds into an account maintained at Fifth Third Bank.

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Section 2.6. Intentionally Omitted .

Section 2.7. Maturity of Loans. All principal and interest not sooner paid on the Loans, shall be due and payable on the Termination Date.

Section 2.8. Prepayments. (a) Voluntary . The Borrowers may prepay without premium or penalty (except as set forth in Section 2.8(d) below) and in whole or in part any Borrowing at any time upon three (3) Business Days prior notice by the Borrowers’ Agent to the Administrative Agent (or, in any case, such shorter time period then agreed to by the Administrative Agent), such prepayment to be made by the payment of the principal amount to be prepaid and, accrued interest thereon to the date fixed for prepayment.

(b) Mandatory . (i) Subject to clause (vii) below, if either Borrower or any Subsidiary shall at any time or from time to time make or agree to make an Asset Disposition or shall suffer an Event of Loss with respect to any Property which results in Net Cash Proceeds in excess of $1,000,000 individually or on a cumulative basis in any Fiscal Year, then (x) the Borrowers shall promptly notify the Administrative Agent of such proposed Asset Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by such Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by such Borrower or such Subsidiary of the Net Cash Proceeds of such Asset Disposition or such Event of Loss, the Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds in excess of $1,000,000; provided that in the case of each Asset Disposition and Event of Loss, if the Borrowers state in such notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within twelve (12) months of the applicable Asset Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like‑kind assets, then so long as no Default or Event of Default then exists, the Borrowers shall not be required to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrowers’ notice within such twelve (12) month period. Promptly after the end of such twelve (12) month period, the Borrowers shall notify the Administrative Agent whether such Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrowers’ notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of $1,000,000 not so invested or reinvested. The amount of each such prepayment shall be applied to the outstanding Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such Asset Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in the Collateral Account. So long as no Default or Event of Default exists, the Administrative Agent is authorized to disburse amounts representing such proceeds from the Collateral Account to or at the Borrowers’ direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.

(ii) Subject to clause (vii) below, if after the Closing Date either Borrower or any Subsidiary shall issue any new Ownership Interests (other than Excluded Equity Issuances) or incur or assume any Indebtedness other than that permitted by Section 7.1 (other than Indebtedness permitted by Section 7.1(m)), the Borrowers shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Promptly upon receipt by such Borrower or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption the Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied to the outstanding Loans. The Borrowers acknowledge that their performance hereunder shall not limit the rights and remedies of the Administrative Agent or the Lenders for any breach of Section 7.1 or any other terms of this Agreement.

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(iii) Subject to clause (vii) below, on or before April 30 ^th of each year, beginning April 30, 2018, the Borrowers shall prepay the then‑outstanding Loans by an amount equal to 50% of Excess Cash Flow of the Borrowers on a Consolidated basis for the most recently completed Fiscal Year; provided that, no Excess Cash Flow payment shall be required under this Section 2.8(b)(iii) with respect to such recently completed Fiscal Year to the extent that (A) the Consolidated Total Leverage Ratio is less than 2.50 to 1.00 as of the end of the two consecutive fiscal quarters of the Borrowers immediately preceding the date such Excess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii), and the Borrowers have delivered to the Administrative Agent the compliance certificates required by Section 6.2(a) hereof with detailed calculations evidencing the Consolidated Total Leverage Ratio on such dates and (B) no Default or Event of Default has occurred and is continuing on April 30 ^th of such year when the Excess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii). The amount of each such prepayment shall be applied to the outstanding Loans.

(iv) Intentionally Omitted.

(v) Notwithstanding the foregoing provisions of this Section 2.8(b), (A) any Lender may waive, by written notice to Borrowers and the Administrative Agent on or before the date on which such mandatory prepayment would otherwise be required to be made hereunder, the right to receive its amount of such mandatory prepayment of the applicable Loans being prepaid, (B) if any Lender or Lenders elect to waive the right to receive their amount of such mandatory prepayment pursuant to the foregoing clause (A), the total amount that otherwise would have been applied to mandatorily prepay such applicable Loans of such Lender or Lenders shall be applied to prepay the applicable Loans being repaid of the remaining non‑waiving Lender or Lenders holding such Loans on a pro rata basis, based on the respective principal amounts of their outstanding Loans being repaid, and (C) subject to the Intercreditor Agreement, to the extent there are any prepayment amounts remaining after the foregoing application, such amounts may be retained by the Borrowers.

(vi) Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 2.8(d).

(vii) Notwithstanding anything in this Section 2.8(b) to the contrary, until the Facility Termination Date (as defined in the First Lien Credit Agreement), no mandatory prepayment of outstanding Loans that would otherwise be required to be made under this Section 2.8(b) shall be required to be made, except with respect to any portion (if any) of the proceeds of any event giving rise to any mandatory prepayment under Section 2.8(b) of the First Lien Credit Agreement that have been refused by the lenders under the First Lien Credit Agreement in accordance with Section 2.8(b)(v) of the First Lien Credit Agreement as in effect on the date hereof.

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(c) Lender Notification; Payment Application . The Administrative Agent will promptly advise each Lender of any notice of prepayment it receives from the Borrowers.

(d) Call Premium. In the event that all or any portion of the Loans are voluntarily prepaid pursuant to Section 2.8(a), mandatorily prepaid pursuant to Section 2.8(b)(i) through (iii), or in connection with a Change of Control, any other Event of Default, whether before or after the commencement of a proceeding under any Debtor Relief Law and notwithstanding any acceleration (for any reason), or mandatorily assigned by a Non-Consenting Lender pursuant to Section 11.2(b) in connection with a matter requiring the consent of all or all affected Lenders, the Borrowers shall pay to the Administrative Agent on the date of such prepayment, refinancing or assignment for the ratable account of each applicable Lender, a fee in an amount equal to (i) a prepayment premium of 3.0% of the amount of the Loans being prepaid, refinanced or assigned, in the event such prepayment, refinancing or assignment occurs on or prior to December 31, 2017, (ii) a prepayment premium equal to 2.0% of the amount of the Loans being prepaid, refinanced or assigned, in the event such prepayment refinancing or assignment occurs after December 31, 2017, but on or prior to December 31, 2018, and (iii) a prepayment premium of 1.0% of the amount of the Loans being prepaid, refinanced or assigned, in the event such prepayment, refinancing or assignment occurs after December 31, 2018, but on or prior to December 31, 2019.

Section 2.9. Place and Application of Payments . (a) General Payments . All payments of principal of and interest on the Loans and of all other Obligations payable by the Borrowers under this Agreement and the other Loan Documents, shall be made by the Borrowers to the Administrative Agent (or any applicable sub-agent) by no later than 1:00 p.m. (New York time) on the due date thereof at the office of the Administrative Agent in New York, New York (or such other location as the Administrative Agent may designate to the Borrowers in writing, including the principal office and location of any designated sub-agent) for the benefit of the Lender or Lenders entitled thereto. Any payments received after such time shall be deemed to have been received by the Administrative Agent on the next Business Day. All such payments shall be made in Dollars, in immediately available funds at the place of payment, in each case without set‑off or counterclaim. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest on Loans and like funds relating to the payment of any other amount payable to any Lender to such Lender, in each case to be applied in accordance with the terms of this Agreement.

(b) Payments by Borrowers; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at a rate per annum equal to: (i) from the date the distribution was made to the date two (2) Business Days after payment by such Lender is due hereunder, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) from the date two (2) Business Days after the date such payment is due from such Lender to the date such payment is made by such Lender, the Interest Rate.

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(c) Application of Collateral Proceeds Before Material Event of Default . Prior to the occurrence of a Material Event of Default, subject to Section 2.8(b), all payments, distributions and collections received in respect of the Obligations and all proceeds of Collateral shall (subject to the Intercreditor Agreement and the other terms of this Agreement) be applied by the Administrative Agent against the outstanding Obligations as follows:

(i) first , to any outstanding fees, charges, and expenses then due to the Administrative Agent and the Lenders;

(ii) second , to outstanding interest charges then due in respect of the Obligations;

(iii) third , to the outstanding principal balance then scheduled as due in respect of the Loans; and

(vii) finally , to be made available to the Borrowers or whoever else may be lawfully entitled thereto.

(d) Application of Collateral Proceeds after Material Event of Default . Anything contained herein to the contrary notwithstanding, (x) pursuant to the exercise of remedies under Sections 8.2 and 8.3 or (y) after the occurrence and during the continuation of a Material Event of Default and after written instruction by the Required Lenders, all payments, distributions and collections received in respect of the Obligations and all proceeds of the Collateral received, in each instance, by the Administrative Agent or any of the Lenders shall (subject to the Intercreditor Agreement) be remitted to the Administrative Agent and distributed as follows:

(i) first, to the payment of any outstanding costs and expenses incurred by the Administrative Agent, and any security trustee therefor, in monitoring, verifying, protecting, preserving or enforcing the Liens on the Collateral, in protecting, preserving or enforcing rights under the Loan Documents, which the Borrowers have agreed to pay the Administrative Agent under Section 11.5 (such funds to be retained by the Administrative Agent for its own account unless it has previously been reimbursed for such costs and expenses by the Lenders, in which event such amounts shall be remitted to the Lenders to reimburse them for payments theretofore made to the Administrative Agent);

(ii) second, to the payment of any outstanding interest and fees due under the Loan Documents to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof;

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(iii) third, to the payment of principal on the Loans, the aggregate amount paid to, or held as collateral security for, the Lenders to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof;

(iv) fourth, to the payment of all other Secured Obligations to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof; and

(v) finally, to the Borrowers or whoever else may be lawfully entitled thereto.

Without limiting the foregoing, in connection with any payment or collection received and remittance and distribution made pursuant to this Section 2.9(d), all types of obligations referenced include those obligations arising after the commencement of a proceeding under any Debtor Relief Law regardless of whether such obligations are allowed or allowable in whole or in part as a claim in such proceeding.

Section 2.10. Intentionally Omitted .

Section 2.11. Intentionally Omitted .

Section 2.12. Evidence of Indebtedness . (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(b) The Administrative Agent shall also maintain accounts in which it will record (i) the amount of each Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrowers and each Lender’s share thereof.

(c) The entries maintained in the accounts maintained pursuant to Sections 2.12(a) and (b) above shall be prima facie evidence of the existence and amounts of the Obligations therein recorded; provided, however, that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrowers to repay the Obligations in accordance with their terms.

(d) Any Lender may request that its Loan be evidenced by a promissory note or notes in the form of Exhibit C (referred to herein as a “Note” or the “Notes” ). In such event, the Borrowers shall prepare, execute and deliver to such Lender a Note payable to the order of such Lender in the amount of its Loan. Thereafter, the Loans evidenced by such Note or Notes and interest thereon shall at all times (including after any assignment pursuant to Section 11.11) be represented by one or more Notes payable to the order of the payee named therein or any assignee pursuant to Section 11.11, except to the extent that any such Lender or assignee subsequently returns any such Note for cancellation and requests that such Loans once again be evidenced as described in subsections (a) and (b) above.

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Section 2.13. Fees . The Borrowers shall pay to the Administrative Agent, for its own use and benefit, the fees agreed to between the Administrative Agent and the Borrowers in the Administrative Agent Fee Letter, or as otherwise agreed to in writing between the Borrowers and the Administrative Agent.

Section 2.14. Reserved .

Section 2.15. Appointment of Borrowers’ Agent as Agent for Borrowers . Each Borrower hereby irrevocably authorizes and appoints the Borrowers’ Agent as its agent hereunder to make requests on such Borrower’s behalf under Section 2 hereof for Borrowings, to request Loans (and any amendments or extensions thereof), and to take such actions as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Borrowers by the terms thereof, together with all such powers as are reasonably incidental thereto. Each Borrower irrevocably agrees that the Administrative Agent and the Lenders may conclusively rely on the authority of the Borrowers’ Agent in exercising the powers granted to the Borrowers by the terms of this Agreements, and the Administrative Agent and the Lenders shall be entitled to conclusively presume that any action by the Borrowers’ Agent under the Loan Documents is taken on behalf of the Borrowers whether or not the Borrowers’ Agent so indicates.

Section 3. Conditions Precedent.

The obligation of each Lender to advance any Loan shall be subject to satisfaction (or waiver) of the following conditions precedent before or concurrently with the Credit Event on the Closing Date:

(a) the Administrative Agent shall have received this Agreement duly executed by the Loan Parties and the Lenders;

(b) the Administrative Agent shall have received for each Lender requesting Notes, such Lender’s duly executed Notes of the Borrowers, dated the date hereof and otherwise in compliance with the provisions of Section 2.12(d);

(c) the Administrative Agent (or its bailee or agent pursuant to the Intercreditor Agreement) shall have received (i) the Second Lien Guaranty and Security Agreement duly executed by the Loan Parties, together with (A) original stock certificates or other similar instruments representing all of the issued and outstanding Ownership Interests in each Subsidiary (limited in the case of any First Tier Foreign Subsidiary to 66% of the Voting Interests and 100% of any other Ownership Interests as provided in the First Lien Guaranty and Security Agreement) as of the Closing Date, to the extent such interests are certificated, (B) stock powers or similar transfer powers executed in blank and undated for the Collateral consisting of the Ownership Interests in each Subsidiary, (C) UCC financing statements to be filed against the Loan Parties, as debtors, in favor of the Administrative Agent, as secured party, (D) patent, trademark, and copyright collateral agreements, to the extent requested by the Administrative Agent, (E) deposit account control agreements, to the extent requested by the Administrative Agent, and (F) Collateral Access Agreements, to the extent requested by the Administrative Agent; and (ii) a duly completed and executed Perfection Certificate;

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(d) the Administrative Agent shall have received evidence of insurance required to be maintained under the Loan Documents, naming the Administrative Agent (subject to the First Lien Administrative Agent’s interest) as additional insured and/or lenders loss payee, as applicable;

(e) the Administrative Agent shall have received the Intercreditor Agreement duly executed by the First Lien Administrative Agent;

(f) the Administrative Agent shall have received executed copies of the First Lien Credit Agreement and the First Lien Loan Documents, which agreements shall be in form and substance acceptable to the Administrative Agent, and the First Lien Loans shall fund concurrently with the initial Credit Event;

(g) the Administrative Agent shall have received copies of each Loan Party’s Organization Documents, certified in each instance by its Secretary, Assistant Secretary, Chief Financial Officer or other officer acceptable to the Administrative Agent and, with respect to Organization Documents filed with a Governmental Authority, by the applicable Governmental Authority;

(h) the Administrative Agent shall have received copies of resolutions of each Loan Party’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with specimen signatures of the persons authorized to execute such documents on such Loan Party’s behalf, all certified in each instance by its Secretary, Assistant Secretary, Chief Financial Officer or other officer acceptable to the Administrative Agent;

(i) the Administrative Agent shall have received copies of the certificates of good standing, or nearest equivalent in the relevant jurisdiction, for each Loan Party (dated no earlier than thirty (30) days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;

(j) the Administrative Agent shall have received a list of the Borrowers’ Authorized Representatives;

(k) the Administrative Agent shall have received for itself and for the Lenders the initial fees required by Section 2.13;

(l) the Administrative Agent shall have received certification from Turning Point’s Chief Financial Officer or other officer of Turning Point acceptable to the Administrative Agent of the Solvency of the Loan Parties on a Consolidated basis after giving effect to the initial Credit Event;

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(m) the capital and organizational structure of the Loan Parties shall be reasonably satisfactory to the Administrative Agent;

(n) the Administrative Agent shall have received such evaluations and certifications as it may reasonably require in order to satisfy itself as to the value of the Collateral, the financial condition of the Loan Parties, and the lack of material contingent liabilities of the Loan Parties, including: (i) an executed Officer’s Compliance Certificate, calculated based on Turning Point’s financial condition as of September 30, 2016, but giving effect to the initial Credit Event, evidencing a pro forma (A) Consolidated Total Leverage Ratio of less than 4.25 to 1.00 for the trailing twelve month period then ended and (B) Consolidated Senior Leverage Ratio of less than 3.25 to 1.00 for the trailing twelve month period then ended; (ii) a Consolidated closing date balance sheet for Turning Point calculated based on Turning Point’s financial condition as of September 30, 2016, but giving effect to the initial Credit Event; (iii) audited Consolidated financial statements and unaudited Consolidated historical quarterly financial statements for Turning Point for the prior three years; and (iv) a certificate from Turning Point’s Chief Financial Officer or other officer of Turning Point acceptable to the Administrative Agent certifying that since December 31, 2015, no Material Adverse Effect has occurred ;

(o) after giving effect to the Credit Event, the Borrowers shall have Unused Revolving Credit Commitments (as defined in the First Lien Credit Agreement) of at least $10,000,000;

(p) the Administrative Agent shall have received financing statement and, as appropriate, tax and judgment lien search results against the Loan Parties, and their Property evidencing the absence of Liens thereon, except for Permitted Liens;

(q) the Administrative Agent shall have received pay‑off and lien release letters from secured creditors (other than holders of Permitted Liens) of the Loan Parties setting forth, among other things, the total amount of indebtedness outstanding and owing to them (or outstanding letters of credit issued for the account of any of the Loan Parties) and containing an undertaking to cause to be delivered to the Administrative Agent UCC termination statements and any other lien release instruments necessary to release their Liens on the assets of any of the Loan Parties, which pay‑off and lien release letters shall be in form and substance acceptable to the Administrative Agent;

(r) the Administrative Agent shall have received the favorable written opinions of counsel to the Loan Parties, in form and substance satisfactory to the Administrative Agent;

(s) the Administrative Agent’s due diligence with respect to the Loan Parties and their Property shall be completed in a manner reasonably acceptable to the Administrative Agent;

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(t) each of the Lenders shall have received, sufficiently in advance of the Closing Date, all documentation and other information requested by any such Lender required by bank regulatory authorities under applicable “know your customer” and anti‑money laundering rules and regulations, including the Patriot Act; and the Arranger shall have received a fully executed IRS Form W‑9 (or its equivalent) for each of the Loan Parties;

(u) none of the Loan Parties shall have obtained or attempted to obtain, place, arrange or renew any debt financing, except as permitted by Section 7.1, prior to the Closing Date and during the Arranger’s and the Administrative Agent’s syndication of the credit facilities made available to the Borrowers hereunder;

(v) each of the representations and warranties set forth herein and in the other Loan Documents are true and correct (or, in the case of any representation or warranty not qualified as to materiality, true and correct in all material respects) as of the Closing Date, except to the extent the same expressly relate to an earlier date (and in such case is true and correct (or, in the case of any representation or warranty not qualified as to materiality, true and correct in all material respects) as of such earlier date);

(w) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Credit Event;

(x) the Administrative Agent shall have received the notice required by Section 2.5;

(y) the Administrative Agent shall have received the Sub-Agency Agreement duly executed by the Administrative Sub-Agent and the Borrower; and

(z) the Administrative Agent shall have received such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request.

Section 4. Intentionally Omitted.

Section 5. Representations and Warranties.

To induce the Administrative Agent and Lenders to enter into this Agreement and to induce the Lenders to provide the Credit described herein, the Borrowers hereby represent and warrant to the Administrative Agent and the Lenders both before and after giving effect to the transactions contemplated hereunder, which representations and warranties shall be deemed made on the Closing Date, that:

Section 5.1. Organization; Power; Qualification . Each Loan Party and each Subsidiary thereof (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, (b) has the power and authority to own its Properties and to carry on its business as now being and hereafter proposed to be conducted and (c) is duly qualified and authorized to do business in each jurisdiction in which the character of its Properties or the nature of its business requires such qualification and authorization except in jurisdictions where the failure to be so qualified or in good standing could not reasonably be expected to result in a Material Adverse Effect. The jurisdictions in which each Loan Party is organized and qualified to do business as of the Closing Date are described on Schedule 5.1.

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Section 5.2. Ownership . Each Subsidiary of each Loan Party (including Subsidiaries that are Loan Parties) as of the Closing Date is listed on Schedule 5.2. As of the Closing Date, the capitalization of each Loan Party and its Subsidiaries consists of the Ownership Interests (including number of shares authorized, issued and outstanding, of such classes and series, with or without par value) described on Schedule 5.2. All outstanding Ownership Interests of each Subsidiary have been duly authorized and validly issued and are fully paid and non‑assessable and not subject to any preemptive or similar rights, except as described in Schedule 5.2. The shareholders or other owners, as applicable, of each Loan Party and its Subsidiaries and the number of shares owned by each as of the Closing Date are described on Schedule 5.2, and are owned, beneficially and of record, by such shareholders or other owners free and clear of all Liens, other than the Liens granted in favor of the Administrative Agent pursuant to the Collateral Documents and Permitted Liens. As of the Closing Date, there are no outstanding stock purchase warrants, subscriptions, options, securities, instruments or other rights of any type or nature whatsoever, which are convertible into, exchangeable for or otherwise provide for or require the issuance of Ownership Interests of any Loan Party or any Subsidiary thereof, except as described on Schedule 5.2.

Section 5.3. Authorization; Enforceability . Each Loan Party and each Subsidiary thereof has the right, power and authority and has taken all necessary corporate and other action to authorize the execution, delivery and performance of this Agreement and each of the other Loan Documents to which it is a party in accordance with their respective terms. This Agreement and each of the other Loan Documents have been duly executed and delivered by the duly authorized officers of each Loan Party and each Subsidiary thereof that is a party thereto, and each such document constitutes the legal, valid and binding obligation of each Loan Party and each Subsidiary thereof that is a party thereto, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal Debtor Relief Laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether the application of such principles is considered in a proceeding in equity or at law).

Section 5.4. Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc. The execution, delivery and performance by each Loan Party and each Subsidiary thereof of the Loan Documents to which each such Person is a party, in accordance with their respective terms, the transactions and any of the other matters contemplated hereby or thereby do not and will not, by the passage of time, the giving of notice or otherwise, (a) require any Governmental Approval or violate any material Legal Requirement (including all Tobacco Requirements) relating to any Loan Party or any Subsidiary thereof, (b) conflict with, result in a breach of or constitute a default under any Organization Document of any Loan Party or any Subsidiary thereof, (c) conflict with, result in a breach of or constitute a default under any indenture or other debt instrument, or under any other material agreement or other material instrument to which such Person is a party or by which any of its properties may be bound or any Governmental Approval relating to such Person, (d) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by such Person other than Permitted Liens or (e) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement other than (i) consents, authorizations, filings or other acts or consents for which the failure to obtain or make could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) filings under the UCC, (iii) filings with the United States Copyright Office and/or the United States Patent and Trademark Office and (iv) Mortgage filings with the applicable county recording office or register of deeds.

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Section 5.5. Compliance with Law; Governmental Approvals . Each Loan Party and each Subsidiary thereof (a) has all Governmental Approvals required by any applicable Legal Requirements for it to conduct its business, each of which is in full force and effect, is final and not subject to review on appeal and is not the subject of any pending or, to its knowledge, threatened attack by direct or collateral proceeding, (b) is in compliance with each Governmental Approval applicable to it and in compliance with all other applicable Legal Requirements relating to it or any of its respective properties and (c) has timely filed all material reports, documents and other materials required to be filed by it under applicable Legal Requirements with any Governmental Authority and has retained all material records and documents required to be retained by it under all applicable Legal Requirements except in each such case where the failure to have, comply or file could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

Section 5.6. Tax Returns and Payments . Each Loan Party and each Subsidiary thereof has duly filed or caused to be filed all federal, state, local and other tax returns required by all applicable Legal Requirements to be filed, and has paid, or made adequate provision for the payment of, all federal, state, local and other taxes, assessments and governmental charges or levies upon it and its Property, income, profits and assets which are due and payable (other than any amount the validity of which is the subject of a Permitted Protest and other than as could not reasonably be expected to have a Material Adverse Effect). Such returns accurately reflect in all material respects all liability for taxes of any Loan Party or any Subsidiary thereof for the periods covered thereby. As of the Closing Date, except as set forth on Schedule 5.6, there is no ongoing audit or examination or, to its knowledge, other investigation by any Governmental Authority of the tax liability of any Loan Party or any Subsidiary thereof. No Governmental Authority has asserted any Lien or other claim against any Loan Party or any Subsidiary thereof with respect to unpaid taxes which has not been discharged or resolved (other than (a) any amount the validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided for on the books of the relevant Loan Party or Subsidiary and (b) Permitted Liens). The charges, accruals and reserves on the books of each Loan Party and each Subsidiary thereof in respect of federal, state, local and other taxes for all Fiscal Years and portions thereof since the organization of any Loan Party or any Subsidiary thereof are in the judgment of the Borrowers adequate, and the Borrowers do not anticipate any additional taxes or assessments for any of such years.

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Section 5.7. Intellectual Property Matters . Each Loan Party and each Subsidiary thereof owns or possesses rights to use all material franchises, licenses, copyrights, copyright applications, patents, patent rights or licenses, patent applications, trademarks, trademark rights, service marks, service mark rights, trade names, trade name rights, copyrights and other rights with respect to the foregoing which are currently being used in the conduct of its business. No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and no Loan Party nor any Subsidiary thereof is liable to any Person for infringement under applicable Legal Requirements with respect to any such rights as a result of its business operations, except as could not reasonably be expected to have a Material Adverse Effect.

Section 5.8. Environmental Matters . (a) There has been no Release of Hazardous Materials on, at, under or from (i) any property owned, leased or operated by any Loan Party or any Subsidiary thereof, (ii) to the knowledge of each Borrower, any property formerly owned, leased or operated by it or any of its Subsidiaries, or (iii) at any other location arising out of the conduct or current or prior operations of any Loan Party or any Subsidiary thereof, that could, in any such case, reasonably be expected to require investigation, remedial activity or corrective action or cleanup by any Loan Party or any Subsidiary thereof or reasonably be expected to result in any Loan Party or any Subsidiary thereof incurring liability under any Environmental Law that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, nor are there any facts, circumstances or conditions arising out of the current or former operations or owned, operated or leased facilities of any Loan Party or any Subsidiary thereof that could reasonably be expected to result in such liability;

(b) Each Loan Party and each Subsidiary thereof and their respective properties and operations are in compliance, and have been in compliance, in all material respects with all applicable Environmental Laws, including obtaining and maintaining all permits, licenses and approvals required under applicable Environmental Laws to carry on their respective businesses, and all such permits, licenses and approvals are in full force and effect. There is no contamination at, under or about such properties or such operations which could materially interfere with the continued operation of such properties or materially impair the fair saleable value thereof;

(c) No Loan Party nor any Subsidiary thereof has received any notice of violation, alleged violation, non‑compliance, liability or potential liability regarding environmental matters, Hazardous Materials, or compliance with Environmental Laws or permits required under Environmental Laws that, if adversely determined, could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, nor does any Loan Party or any Subsidiary thereof have knowledge or reason to believe that any such notice will be received or is being threatened;

(d) Hazardous Materials have not been transported or disposed of to or from the properties currently or formerly owned, leased or operated by any Loan Party or any Subsidiary thereof in material violation of, or in a manner or to a location which could give rise to material liability under, Environmental Laws, nor have any Hazardous Materials been generated, treated, stored or disposed of at, on or under any of such properties in violation of, or in a manner that could give rise to material liability under, any applicable Environmental Laws; and

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(e) No Environmental Claim is pending, or, to the knowledge of the Loan Parties and their Subsidiaries after due inquiry, threatened, for which any Loan Party or any Subsidiary thereof is or may reasonably be expected to be named as a party, nor are there any Environmental Claims, consent decrees or orders, administrative orders or other administrative or judicial requirements outstanding under any applicable Environmental Law with respect to any Loan Party or any Subsidiary thereof, with respect to any real property owned, leased or operated by any Loan Party or any Subsidiary thereof or operations of any Loan Party or any Subsidiary thereof that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

(f) The Loan Parties have made available to Administrative Agent accurate and complete copies of all material environmental reports, studies, assessments, investigations, audits, correspondence and other documents relating to environmental or occupational safety and health matters with respect to any real property, including leaseholds, owned or operated by the Loan Parties or any of their Subsidiaries that are in the Loan Parties’ possession or control.

Section 5.9. Employee Benefit Matters . (a) As of the Closing Date, no Loan Party nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.9;

(b) Each Loan Party and each ERISA Affiliate is in compliance with all applicable provisions of ERISA, the Code and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except for any required amendments for which the remedial amendment period as defined in Section 401(b) of the Code has not yet expired and except where a failure to so comply could not reasonably be expected to have a Material Adverse Effect. To the knowledge of each Borrower, each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code except for such plans that have not yet received determination letters but for which the remedial amendment period for submitting a determination letter has not yet expired. No liability has been incurred by any Loan Party or any ERISA Affiliate which remains unsatisfied for any taxes or penalties assessed with respect to any Employee Benefit Plan or any Multiemployer Plan except for a liability that could not reasonably be expected to have a Material Adverse Effect;

(c) As of the Closing Date, no Pension Plan has been terminated, nor has any Pension Plan become subject to funding based benefit restrictions under Section 436 of the Code, nor has any funding waiver from the IRS been received or requested with respect to any Pension Plan, nor has any Loan Party or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Sections 412 or 430 of the Code, Section 302 of ERISA or the terms of any Pension Plan on or prior to the due dates of such contributions under Sections 412 or 430 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan;

(d) Except where the failure of any of the following representations to be correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no Loan Party nor any ERISA Affiliate has: (i) engaged in a nonexempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code, (ii) incurred any liability to the PBGC which remains outstanding other than the payment of premiums and there are no premium payments which are due and unpaid, (iii) failed to make a required contribution or payment to a Multiemployer Plan, or (iv) failed to make a required installment or other required payment under Sections 412 or 430 of the Code;

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(e) No Termination Event has occurred or is reasonably expected to occur, except as could not reasonably be expected to have a Material Adverse Effect;

(f) Except where the failure of any of the following representations to be correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or investigation is existing or, to its knowledge, threatened concerning or involving (i) any employee welfare benefit plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by any Loan Party or any ERISA Affiliate, (ii) any Pension Plan or (iii) any Multiemployer Plan; and

(g) No Loan Party nor any Subsidiary thereof is a party to any contract, agreement or arrangement that could, solely as a result of the delivery of this Agreement or the consummation of transactions contemplated hereby, result in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code, except as could not reasonably be expected to have a Material Adverse Effect.

Section 5.10. Margin Stock . No Loan Party nor any Subsidiary thereof is engaged principally or as one of its activities in the business of extending credit for the purpose of “purchasing” or “carrying” any Margin Stock. No part of the proceeds of any of the Loans or other extension of credit hereunder will be used for purchasing or carrying Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock, or for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X of such Board of Governors of the Federal Reserve System. Following the application of the proceeds of each extension of credit hereunder, not more than twenty‑five percent (25%) of the value of the assets (either of Turning Point only or of Turning Point and its Subsidiaries on a Consolidated basis) subject to the provisions of Section 7.2 or Section 7.5 or subject to any restriction contained in any agreement or instrument between either Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness in excess of $15,000,000 will be Margin Stock.

Section 5.11. Government Regulation . No Loan Party nor any Subsidiary thereof is an “investment company” or a company “controlled” by an “investment company” (as each such term is defined or used in the Investment Company Act of 1940) and no Loan Party nor any Subsidiary thereof is, or after giving effect to any Credit Event will be, subject to regulation under the Interstate Commerce Act, or any other applicable Legal Requirements which limits its ability to incur or consummate the transactions contemplated hereby.

Section 5.12. Material Contracts; Customers and Suppliers . (a) Schedule 5.12 sets forth a complete and accurate list of all Material Contracts of each Loan Party and each Subsidiary thereof in effect as of the Closing Date. Other than as set forth in Schedule 5.12, as of the Closing Date, each such Material Contract is, and after giving effect to the consummation of the transactions contemplated by the Loan Documents will be, in full force and effect in accordance with the terms thereof. To the extent requested by the Administrative Agent, each Loan Party and each Subsidiary thereof has delivered to the Administrative Agent a true and complete copy of each Material Contract required to be listed on Schedule 5.12 or any other Schedule hereto. As of the Closing Date, no Loan Party nor any Subsidiary thereof nor, to its knowledge, any other party thereto is in breach of or in default under any Material Contract; and

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(b) There exists no actual or, to the knowledge of each Borrower, threatened termination, cancellation or limitation of, or modification to or change in the business relationship between (i) any Loan Party or Subsidiary, on the one hand, and any customer or any group thereof, on the other hand, whose agreements with any Loan Party or Subsidiary are individually or in the aggregate material to the business or operations of such Loan Party or Subsidiary, (ii) any Loan Party or Subsidiary, on the one hand, and any material supplier thereof other than Bollore, on the other hand or (iii) any Loan Party or Subsidiary, on the one hand, and Bollore, on the other hand; and, to the knowledge of each Borrower, there exists no present state of facts or circumstances that could give rise to or result in any such termination, cancellation, limitation, modification or change, except in the case of clauses (i), (ii) and (iii) above, for any threatened termination, cancellation or limitation of, or modification to or change in any of the above mentioned business relationships, that could not reasonably be expected to have a Material Adverse Effect.

Section 5.13. Employee Relations . As of the Closing Date, no Loan Party nor any Subsidiary thereof is party to any collective bargaining agreement, nor has any labor union been recognized as the representative of its employees except as set forth on Schedule 5.13. There is (a) no unfair labor practice complaint pending or, to the knowledge of each Borrower, threatened against either Borrower or any of its Subsidiaries before any Governmental Authority and no grievance or arbitration proceeding pending or threatened against either Borrower or any of its Subsidiaries which arises out of or under any collective bargaining agreement and that could reasonably be expected to result in a Material Adverse Effect, (b) no strike, labor dispute, slowdown, stoppage or similar action or grievance pending or threatened in writing against either Borrower or any of its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect, or (c) to the knowledge of each Borrower, no union representation question existing with respect to the employees of either Borrower or any of its Subsidiaries and no union organizing activity taking place with respect to any of the employees of either Borrower or any of its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect. None of the Borrowers or any of their Subsidiaries have incurred any material liability or obligation under the Worker Adjustment and Retraining Notification Act or similar state law which remains unpaid or unsatisfied. The hours worked and payments made to employees of the Borrowers and their Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable legal requirements, except to the extent such violations could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. All material payments due from the Borrowers or any of their Subsidiaries on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of such Borrower or such Subsidiary, except where the failure to do so could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

Section 5.14. Burdensome Provisions . The Loan Parties and their respective Subsidiaries do not presently anticipate that future expenditures needed to meet the provisions of any statutes, orders, rules or regulations of a Governmental Authority will be so burdensome as to have a Material Adverse Effect. No Subsidiary is party to any agreement or instrument or otherwise subject to any restriction or encumbrance that restricts or limits its ability to make dividend payments or other distributions in respect of its Ownership Interests to either Borrower or any other Subsidiary or to transfer any of its assets or properties to either Borrower or any other Subsidiary in each case other than as permitted by Section 7.10(b) or (c).

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Section 5.15. Financial Statements . The audited and unaudited financial statements most recently delivered are complete and correct in all material respects and fairly present in all material respects on a Consolidated basis the assets, liabilities and financial position of Turning Point as at such dates, and the results of the operations and changes of financial position for the periods then ended (other than customary year‑end adjustments for unaudited financial statements and the absence of footnotes from unaudited financial statements). All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP. As of the date of the most recently delivered annual financial statements, Turning Point on a Consolidated basis does not have contingent liabilities or judgments, orders or injunctions against it that are material to it other than as indicated on such financial statements.

Section 5.16. No Material Adverse Change . Since December 31, 2015, there has been no material adverse change in the business, operations financial condition, Property, or liabilities (actual or contingent) of Turning Point and its Subsidiaries, taken as a whole, and no event has occurred or condition arisen, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

Section 5.17. Solvency . Each Borrower is Solvent, and the Loan Parties and their Subsidiaries on a Consolidated basis, are Solvent.

Section 5.18. Title to Properties . As of the Closing Date, the real property listed on Schedule 5.18 constitutes all of the real property that is owned, leased, subleased or used by any Loan Party or any Subsidiary thereof. Each Loan Party and each Subsidiary thereof has such title to the real property owned or leased by it as is necessary to the conduct of its business and valid and legal title to all of its personal property and assets, except those which have been disposed of by the Loan Parties subsequent to such date which dispositions have been in the ordinary course of business or as otherwise expressly permitted hereunder.

Section 5.19. Litigation . There are no actions, suits or proceedings pending nor, to its knowledge, threatened against or in any other way relating adversely to or affecting any Loan Party or Subsidiary or any of its respective properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that could reasonably be expected to have a Material Adverse Effect.

Section 5.20. Compliance with Sanctions Programs. Each Loan Party and each Subsidiary thereof is in compliance with the requirements of all Sanctions Programs applicable to it. Each Loan Party has provided to the Administrative Agent, and the Lenders all information regarding such Loan Party and its directors, officers, Affiliates and Subsidiaries necessary for the Administrative Agent, and the Lenders to comply with all applicable Sanctions Programs. To the best of each Loan Party’s knowledge, neither any Loan Party nor any of its officers or directors, Affiliates or Subsidiaries is, as of the date hereof, a Sanctioned Person. No part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977 or the United Kingdom Bribery Act of 2010.

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Section 5.21. Absence of Defaults . No event has occurred or is continuing (a) which constitutes a Default or an Event of Default or (b) which constitutes, or which with the passage of time or giving of notice or both would constitute, a default or event of default by any Loan Party or any Subsidiary thereof under (i) any Material Contract or (ii) any judgment, decree or order to which any Loan Party or any Subsidiary thereof is a party or by which any Loan Party or any Subsidiary thereof or any of their respective Properties may be bound or which would require any Loan Party or any Subsidiary thereof to make any payment under such judgment, decree or order that, in any case under this clause (b), could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 5.22. Senior Indebtedness Status . The Obligations of each Loan Party and each Subsidiary thereof under this Agreement and each of the other Loan Documents (a) ranks, and shall continue to rank, at least senior in priority of payment to all Subordinated Debt and pari passu in right of payment with all senior Indebtedness of each such Person and (b) is designated as “Senior Indebtedness” (or any comparable designation) under all instruments and documents, now or in the future, evidencing Subordinated Debt of such Person.

Section 5.23. Disclosure . The Borrowers and/or their Subsidiaries have disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which any Loan Party or any Subsidiary thereof is subject, and all other matters known to them, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No financial statement, material report, material certificate or other material written information furnished by or on behalf of any Loan Party or any Subsidiary thereof to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished), taken together as a whole, contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect; provided that, with respect to projected financial information, pro forma financial information, estimated financial information and other projected or estimated information, such information was prepared in good faith based upon assumptions believed to be reasonable at the time (it being recognized by the Lenders that projections are not to be viewed as facts and that the actual results during the period or periods covered by such projections may vary from such projections and that such variations may be material).

Section 5.24. Flood Hazard Insurance . With respect to each parcel of real property required to be subject to a Mortgage, the Administrative Agent has received (a) such flood hazard certifications, notices and confirmations thereof, and effective flood hazard insurance policies, (b) all flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in full, and (c) except as the Borrowers have previously given written notice thereof to the Administrative Agent, there has been no redesignation of any real property into or out of a special flood hazard area.

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Section 5.25. Use of Proceeds . The Borrowers will use the proceeds of the Loans only for the purposes specified in Section 6.15.

Section 5.26. Insurance . The properties of the Loan Parties and their Subsidiaries are insured with financially sound and reputable insurance companies in such amounts, with such deductibles and covering such risks (including workers’ compensation, public liability, business interruption and property damage insurance) as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the applicable Loan Party or Subsidiary operates. Schedule 5.26 sets forth a description of all such insurance currently maintained (excluding title, group health and disability, and similar types of insurance) by or on behalf of the Loan Parties and their Subsidiaries as of the Closing Date. As of the Closing Date, each insurance policy listed on Schedule 5.26 is in full force and effect and all premiums in respect thereof that are due and payable have been paid.

Section 5.27. Collateral Documents . (a) The Second Lien Guaranty and Security Agreement creates in favor of the Administrative Agent, for the benefit of the Secured Parties, legal, valid, continuing and enforceable security interests in the Collateral (as defined in the Second Lien Guaranty and Security Agreement).

(b) The financing statements delivered to the Administrative Agent on the Closing Date are in appropriate form and have been or will be filed in the offices specified in Schedule 9 of the Second Lien Guaranty and Security Agreement. Upon such filings, the Administrative Agent will have a perfected Lien on, and security interest in, to and under all right, title and interest of the Loan Parties in, all Collateral that may be perfected by filing, recording or registering a financing statement or analogous document (including the proceeds of such Collateral subject to the limitations relating to such proceeds in the UCC), prior and superior in right to any other Person, except for Permitted Prior Liens.

(c) When the Pledged Interests (as defined in the Second Lien Guaranty and Security Agreement) constituting Certificated Securities (as defined in the UCC) are delivered to the Administrative Agent (or its bailee or agent pursuant to the Intercreditor Agreement), the Administrative Agent will have a perfected Lien on, and security interest in, to and under all right, title and interest of the Loan Parties in, such Pledged Interests, prior and superior in right to any other Person, except for Permitted Prior Liens.

(d) When the Second Lien Guaranty and Security Agreement (or a short form intellectual property security agreement) is filed in the United States Patent and Trademark Office and the United States Copyright Office and when financing statements, releases and other filings in appropriate form are filed in the offices specified in Schedule 9 of the Second Lien Guaranty and Security Agreement, the Administrative Agent shall have a fully perfected Lien on, and security interest in, all right, title and interest of the applicable Loan Parties in the Intellectual Property (as defined in the Second Lien Guaranty and Security Agreement) in which a security interest may be perfected by filing, recording or registering a security agreement, financing statement or analogous document in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, in each case prior and superior in right to any other Person (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect a Lien on registered trademarks, trademark applications and copyrights acquired by the Loan Parties after the Closing Date), except for Permitted Prior Liens.

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(e) When control agreements in form and substance reasonably satisfactory to the Administrative Agent are executed and delivered to the Administrative Agent, the Administrative Agent shall have (i) “control” (within the meaning of Section 9‑104 of the UCC) over all Deposit Accounts (as defined in the Second Lien Guaranty and Security Agreement) and (ii) a fully perfected Lien on, and security interest in, all right, title and interest of the applicable Loan Parties in the Deposit Accounts (as defined in the Second Lien Guaranty and Security Agreement).

Section 5.28. Affiliate Transactions. No Loan Party nor any of its Subsidiaries is a party to any contracts or agreements with any of its Affiliates (other than with Wholly‑owned Subsidiaries) except as permitted by Section 7.7.

Section 5.29. No Broker Fees . No broker’s or finder’s fee or commission will be payable with respect hereto or any of the transactions contemplated thereby; and the Loan Parties hereby agree to indemnify the Administrative Agent, and the Lenders against, and agree that they will hold the Administrative Agent and the Lenders harmless from, any claim, demand, or liability for any such broker’s or finder’s fees alleged to have been incurred in connection herewith or therewith and any expenses (including reasonable attorneys’ fees) arising in connection with any such claim, demand, or liability.

Section 6. Affirmative Covenants.

So long as any Credit is available to or in use by the Borrowers hereunder and until the Facility Termination Date, each Loan Party will:

Section 6.1. Financial Statements and Budgets . Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary practice):

(a) Annual Financial Statements . As soon as practicable and in any event within one hundred twenty (120) days after the end of each Fiscal Year commencing with the Fiscal Year ended December 31, 2016, an audited, Consolidated balance sheet of Turning Point as of the close of such Fiscal Year and audited, Consolidated statements of income, retained earnings and cash flows, including the notes thereto, and a report containing management’s discussion and analysis of such financial statements, prepared in accordance with GAAP and, if applicable, containing disclosure of the effect on the financial position or results of operations of any change in the application of accounting principles and practices during the year. Such annual financial statements shall be audited by RSM US LLP or an independent certified public accounting firm of recognized national standing acceptable to the Administrative Agent, and accompanied by a report and unqualified opinion thereon by such certified public accountants prepared in accordance with generally accepted auditing standards that is not subject to any “going concern” or similar qualification or exception or any qualification as to the scope of such audit or with respect to accounting principles followed by Turning Point not in accordance with GAAP.

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(b) Quarterly Financial Statements . As soon as practicable and in any event within forty‑five (45) days after the end of the first three (3) fiscal quarters of each Fiscal Year (commencing with the fiscal quarter ended March 31, 2017, an unaudited Consolidated balance sheet of Turning Point as of the close of such fiscal quarter and unaudited Consolidated statements of income, retained earnings and cash flows and a report containing management’s discussion and analysis of such financial statements for the fiscal quarter then ended and that portion of the Fiscal Year then ended, including the notes thereto, prepared by Turning Point in accordance with GAAP and, if applicable, containing disclosure of the effect on the financial position or results of operations of any change in the application of accounting principles and practices during the period.

(c) True and Complete Financial Statements. As of the date of their delivery, the annual financial statements required to be delivered under Section 6.1(a) and the quarterly financial statements required to be delivered under Section 6.1(b) will be complete and correct in all material respects and will fairly present in all material respects on a Consolidated basis the assets, liabilities and financial position of Turning Point as at such dates, and the results of the operations and changes of financial position for the periods then ended (other than customary year-end adjustments for unaudited financial statements and the absence of footnotes from unaudited financial statements). All such financial statements, including the related schedules and notes thereto, will be prepared in accordance with GAAP. As of the date of delivery of the annual financial statements, Turning Point on a Consolidated basis does not have contingent liabilities or judgments, orders or injunctions against it that are material to it other than as indicated on such financial statements.

(d) Annual Budget or Projections . As soon as practicable and in any event within sixty (60) days after the end of each Fiscal Year, a Consolidated budget or Consolidated projections of Turning Point for the ensuing four (4) fiscal quarters following the end of such Fiscal Year, in form and detail satisfactory to the Administrative Agent, accompanied by a certificate from a Responsible Officer of Turning Point to the effect that such budget or projections contain good faith estimates (utilizing assumptions believed to be reasonable at the time of delivery of such budget or projections) of the financial condition and operations of Turning Point for such period.

Section 6.2. Certificates; Other Reports . Deliver to the Administrative Agent and the Arranger (which shall promptly make such information available to the Lenders in accordance with its customary practice):

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(a) at each time financial statements are delivered pursuant to Sections 6.1(a) or (b), a duly completed Officer’s Compliance Certificate signed by the chief financial officer of Turning Point;

(b) promptly upon receipt thereof, copies of all material reports, if any, submitted to any Loan Party, any Subsidiary thereof, or any of their respective boards of directors by their respective independent public accountants in connection with their auditing function, including any management report and any management responses thereto;

(c) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of Indebtedness of any Loan Party or any Subsidiary thereof in excess of $17,250,000 pursuant to the terms of any indenture, loan or credit or similar agreement;

(d) promptly after the assertion or occurrence thereof, notice of any Environmental Claim or other action or proceeding against or of any noncompliance by any Loan Party or any Subsidiary thereof with any Environmental Law that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any Property described in the Mortgages to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law;

(e) promptly upon the request thereof, such other information and documentation required by bank regulatory authorities under applicable “know your customer” and anti‑money laundering rules and regulations (including the Patriot Act), as from time to time reasonably requested by the Administrative Agent or any Lender;

(f) promptly after being furnished or received, copies of all notices, reports, certificates, documents and other information furnished to or received from the First Lien Administrative Agent or any lenders under the First Lien Credit Agreement or any other agent or representative of such lenders or holders (including any amendments, waivers, supplements, modifications, notices or other documents relating to any default or potential default thereunder, but in any event excluding routine notices, reports and certificates of an administrative nature);

(g) intentionally omitted;

(h) within five (5) Business Days after a Responsible Officer of any Loan Party or any Subsidiary thereof obtains actual knowledge thereof, copies of any notices with respect to product recalls that any Loan Party or any Subsidiary thereof receives from any Governmental Authority;

(i) promptly after any officer of either Borrower or any of its Subsidiaries obtains knowledge thereof, notice of any litigation commenced or claim instituted after the Closing Date against either Borrower or any of its Subsidiaries demanding damages in excess of, or if adversely determined reasonably likely to result in liability to either Borrower or any of its Subsidiaries in excess of, $5,750,000 and notice of any other litigation or claim against either Borrower or any of its Subsidiaries that is reasonably likely to result in liability to either Borrower or any of its Subsidiaries in excess of $5,750,000;

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(j) promptly after the occurrence thereof, notice of (i) any amendment or modification to any Material Contract (and, with respect to any such material amendment or modification, if requested by the Administrative Agent or the Required Lenders, a copy of the documentation governing such amendment or modification promptly after such request), (ii) the provision or receipt of any material notice under any Material Contract and (iii) any default under, or any breach or violation of, any Material Contract;

(k) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary thereof as the Administrative Agent or any Lender may reasonably request; and

(l) promptly after the occurrence thereof, notice of any default or event of default with respect to any Indebtedness of any Loan Party or any Subsidiary thereof with an aggregate principal amount in excess of $5,750,000.

Documents required to be delivered pursuant to Section 6.1(a) or (b) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which the Administrative Agent receives notice that (i) Turning Point has filed such document with the Securities and Exchange Commission and such document is available on the EDGAR website on the internet at www.sec.gov or any successor government website that is freely and readily available to the Administrative Agent and the Lenders without charge, (ii) Turning Point has posted such documents, or provided a link thereto on Turning Point’s website on the Internet at the website address listed in Section 11.3; or (iii) the documents are posted on Turning Point’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third‑party website or whether sponsored by the Administrative Agent). The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

The Borrowers hereby acknowledge that (a) the Administrative Agent and the Arranger will make available to the Lenders materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials” ) by the Arranger posting the Borrower Materials on Debt Domain, IntraLinks, SyndTrak Online or another similar electronic system (the “Platform” ) and (b) certain of the Lenders may be “public‑side” Lenders ( i.e. , Lenders that do not wish to receive Material Non‑Public Information with respect to Turning Point or its Affiliates or its or their securities) (each, a “Public Lender” ). The Borrowers hereby agree that they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, means that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger and the Lenders to treat such Borrower Materials as not containing any Material Non‑Public Information (although it may be sensitive and proprietary) with respect to Turning Point or its Affiliates or its or their securities for purposes of United States Federal and state securities laws ( provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing, the Borrowers shall be under no obligation to mark any Borrower Materials “PUBLIC”.

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Section 6.3. Notice of Litigation and Other Matters . Promptly (but in no event later than five (5) days after any Responsible Officer of any Loan Party obtains knowledge thereof) notify the Administrative Agent in writing of (which shall promptly make such information available to the Lenders in accordance with its customary practice):

(a) the occurrence of any Default or Event of Default;

(b) (i) the commencement of any proceeding or investigation by or before any Governmental Authority and any action or proceeding in any court or before any arbitrator against or involving any Loan Party or any Subsidiary thereof or any of their respective properties, assets or businesses in each case that if adversely determined could reasonably be expected to result in a Material Adverse Effect; and

(ii) the commencement of any material proceeding or investigation by or before the TTB against or involving any Loan Party or any Subsidiary thereof or any of their respective Properties, assets or businesses;

(c) any notice of any violation received by any Loan Party or any Subsidiary thereof from any Governmental Authority (including any notice of non‑compliance with Environmental Laws) that could reasonably be expected to result in a Material Adverse Effect;

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

(e) any attachment, judgment, lien, levy or order exceeding $2,000,000 that may be assessed against or threatened against any Loan Party or any Subsidiary thereof;

(f) any event which constitutes or which with the passage of time or giving of notice or both would constitute a default or event of default under any Material Contract to which either Borrower or any of its Subsidiaries is a party or by which either Borrower or any Subsidiary thereof or any of their respective Properties may be bound which could reasonably be expected to have a Material Adverse Effect; and

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(g) (i) any unfavorable determination letter from the IRS regarding the qualification of an Employee Benefit Plan under Section 401(a) of the Code (along with a copy thereof), (ii) all notices received by any Loan Party or any ERISA Affiliate of the PBGC’s intent to terminate any Pension Plan or to have a trustee appointed to administer any Pension Plan, (iii) all notices received by any Loan Party or any ERISA Affiliate from a Multiemployer Plan sponsor concerning the imposition or amount of withdrawal liability pursuant to Section 4202 of ERISA and (iv) the Borrowers obtaining knowledge or reason to know that any Loan Party or any ERISA Affiliate has filed or intends to file a notice of intent to terminate any Pension Plan under a distress termination within the meaning of Section 4041(c) of ERISA which, in the case of this clause (iv), could reasonably be expected to result in a Material Adverse Effect.

Each notice pursuant to Section 6.3 (other than Section 6.3(g)) shall be accompanied by a statement of a Responsible Officer of the Borrowers setting forth details of the occurrence referred to therein and stating what action the Borrowers have taken and propose to take with respect thereto. Each notice pursuant to Section 6.3(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

Section 6.4. Preservation of Corporate Existence and Related Matters . Except as permitted by Section 7.4, preserve and maintain its separate corporate existence and all rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation or other entity and authorized to do business in each jurisdiction in which the failure to so qualify could reasonably be expected to have a Material Adverse Effect.

Section 6.5. Maintenance of Property and Licenses . (a) Protect and preserve all Properties necessary in and material to its business, including copyrights, patents, trade names, service marks and trademarks; maintain in good working order and condition, ordinary wear and tear excepted, all buildings, equipment and other tangible real and personal property; and from time to time make or cause to be made all repairs, renewals and replacements thereof and additions to such Property necessary for the conduct of its business, so that the business carried on in connection therewith may be conducted in a commercially reasonable manner, in each case in this Section 6.5(a), except as such action or inaction could not reasonably be expected to result in a Material Adverse Effect.

(b) Maintain, in full force and effect in all material respects, each and every license, permit, certification, qualification, approval or franchise issued by any Governmental Authority (each a “License” ) required for each of them to conduct their respective businesses as presently conducted, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

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Section 6.6. Insurance . Maintain insurance with financially sound and reputable insurance companies against at least such risks and in at least such amounts as are customarily maintained by similar businesses that are similarly situated and located and as may be required by applicable Legal Requirements and as are required by any Collateral Documents (including hazard and business interruption insurance). All such insurance shall (a) provide that no cancellation or material modification thereof shall be effective until at least thirty (30) days after receipt by the Administrative Agent of written notice thereof, except as reasonably determined by the Administrative Agent in writing, (b) name the Administrative Agent as an additional insured party thereunder and (c) in the case of each casualty insurance policy, name the Administrative Agent as lender’s loss payee. On the Closing Date and from time to time thereafter, deliver to the Administrative Agent upon its request information in reasonable detail as to the insurance then in effect, stating the names of the insurance companies, the amounts and rates of the insurance, the dates of the expiration thereof and the properties and risks covered thereby. Without limiting the foregoing, the Borrowers shall and shall cause each appropriate Loan Party to (i) maintain, if available, fully paid flood hazard insurance on all real property that is located in a special flood hazard area and that is subject to a Mortgage, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994, (ii) furnish to the Administrative Agent evidence of renewal (and payment of renewal premiums therefor) of all such policies prior to the expiration or lapse thereof and (iii) furnish to the Administrative Agent prompt written notice of any redesignation of any such improved real property into or out of a special flood hazard area. If the Borrowers or their Subsidiaries fail to maintain such insurance, the Administrative Agent may arrange for such insurance, but at the Borrowers’ expense and without any responsibility on the Administrative Agent’s part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims. The Borrowers shall give the Administrative Agent prompt notice of any loss exceeding $1,150,000 covered by their or their Subsidiaries’ casualty or business interruption insurance. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent shall have the sole right (subject to the Intercreditor Agreement) to file claims under any property and general liability insurance policies in respect of the Collateral, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.

Section 6.7. Accounting Methods and Financial Records . Maintain a system of accounting, and keep proper books, records and accounts (which shall be true and complete in all material respects) as may be required or as may be necessary to permit the preparation of financial statements in accordance with GAAP and in compliance in all material respects with the regulations of any Governmental Authority having jurisdiction over it or any of its Properties.

Section 6.8. Payment of Taxes and Other Obligations . (a) Pay and perform all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its Property, except to the extent the validity of such taxes, assessments or governmental charges are the subject of a Permitted Protest, (b) pay and perform all other Indebtedness, obligations and liabilities in accordance with customary trade practices and (c) file all applicable tax returns with respect to it and its properties, except where the failure to pay or perform such items described in clauses (a), (b) or (c) of this Section 6.8 could not reasonably be expected to have a Material Adverse Effect.

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Section 6.9. Compliance with Laws and Approvals . Observe and remain in compliance with all applicable Legal Requirements (including Tobacco Requirements) and maintain in full force and effect all Governmental Approvals, in each case applicable to the conduct of its business except where the failure to do so could not reasonably be expected to have a Material Adverse Effect. No Loan Party shall (a) deliver or ship goods that are prohibited under applicable Tobacco Requirements, or (b) deliver or ship goods that are adulterated, misbranded, mislabeled, or deceptively packaged within the meaning of, or in violation of, any applicable Tobacco Requirements relating to such shipment or delivery, except (i) to the extent that such violation could not reasonably be expected to have a Material Adverse Effect, and (ii) (A) to the extent such misbranding, mislabeling, adulteration or deceptive packaging does not materially violate applicable Tobacco Requirements, or (B) to the extent the Loan Party has been notified of an assertion or misbranding or mislabeling, such Loan Party is either actively defending the branding or labeling and has provided appropriate reserves therefor in accordance with GAAP or is correcting the branding or labeling in compliance with applicable Tobacco Requirements.

Section 6.10. Environmental Laws . In addition to and without limiting the generality of Section 6.9, (a) comply with, and use commercially reasonable efforts to ensure such compliance by all tenants and subtenants with, all applicable Environmental Laws and obtain, comply with and maintain, and use commercially reasonable efforts to ensure that all tenants and subtenants, obtain and comply with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws and (b) conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws or by a Governmental Authority, and promptly comply with all lawful orders and directives of any Governmental Authority regarding Environmental Laws, except in each case as could not reasonably be expected to have a Material Adverse Effect.

Section 6.11. Compliance with ERISA . In addition to and without limiting the generality of Section 6.9, (a) except where the failure to so comply could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) comply with applicable provisions of ERISA, the Code and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans, (ii) not take any action or fail to take action the result of which could reasonably be expected to result in a liability to the PBGC or to a Multiemployer Plan, (iii) not participate in any prohibited transaction that could result in any civil penalty under ERISA or tax under the Code and (iv) operate each Employee Benefit Plan in such a manner that will not incur any tax liability under Section 4980B of the Code or any liability to any qualified beneficiary as defined in Section 4980B of the Code and (b) furnish to the Administrative Agent upon the Administrative Agent’s request such additional information about any Employee Benefit Plan as may be reasonably requested by the Administrative Agent.

Section 6.12. Compliance with Material Contracts . Comply in all respects with each Material Contract, except as could not reasonably be expected to have a Material Adverse Effect.

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Section 6.13. Visits and Inspections . Permit representatives of the Administrative Agent or, after the occurrence and during the continuance of an Event of Default, any Lender, from time to time upon prior reasonable notice and at such times during normal business hours, all at the expense of the Borrowers, to visit and inspect its properties; inspect, audit and make copies of its books, records and files, including management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects; provided that, excluding any such visits and inspections during the continuance of an Event of Default, the Administrative Agent shall not exercise such rights more often than one (1) time during any calendar year at the Borrowers’ expense; provided, further, that upon the occurrence and during the continuance of an Event of Default, the Administrative Agent or any Lender may do any of the foregoing at the expense of the Borrowers at any time during normal business hours. The Administrative Agent shall provide each Lender with prior notice of each visit and inspection, and representatives of any Lender may accompany the Administrative Agent in connection with such visit and inspection at such participating Lender’s expense. Upon the request of the Administrative Agent or the Required Lenders, participate in a meeting of the Administrative Agent and Lenders once during each Fiscal Year, which meeting will be held at Turning Point’s corporate offices (or by conference call or at such other location as may be agreed to by the Borrowers and the Administrative Agent) at such time as may be agreed by the Borrowers and the Administrative Agent.

Section 6.14. Additional Collateral; Additional Subsidiaries; Real Property .

(a) Additional Collateral . With respect to any Property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and, in any event, within thirty (30) days after such creation or acquisition; provided that the Administrative Agent may extend such time period by (x) an additional thirty (30) days in its sole discretion and (y) an unlimited number of days thereafter with the consent of the Required Lenders) (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem reasonably necessary or advisable to grant to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such Property under applicable Legal Requirements (including applicable foreign Legal Requirements unless the Required Lenders shall determine in their sole discretion that the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby) subject to no Liens other than Permitted Liens and no senior Liens other than Permitted Prior Liens, (ii) to the extent requested by the Administrative Agent, deliver customary and reasonable opinions of counsel to the Borrowers in form and substance, and from counsel, reasonably acceptable to the Administrative Agent, and (iii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Documents in accordance with all applicable Legal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. Subject to the limitations set forth herein and in the other Loan Documents, the Borrowers and the other Loan Parties shall otherwise take such actions and execute and/or deliver to the Administrative Agent such documents as the Administrative Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents against such after‑acquired Properties, all in form, content and scope reasonably satisfactory to the Administrative Agent.

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(b) Additional Subsidiary Guarantors . Promptly after any Subsidiary that was an Immaterial Subsidiary ceases to be an Immaterial Subsidiary, and promptly after the creation or acquisition of any Domestic Subsidiary or any Foreign Subsidiary that satisfies the definition of Guarantor (and, in any event, within thirty (30) days after such date of ceasing to be an Immaterial Subsidiary or such creation or acquisition, as applicable; provided that the Administrative Agent may extend such time period by (x) an additional thirty (30) days in its sole discretion and (y) an unlimited number of days thereafter with the consent of the Required Lenders) cause such Person to (i) become a Guarantor by delivering to the Administrative Agent a duly executed supplement to the Second Lien Guaranty and Security Agreement, a joinder to the Intercreditor Agreement and such other documents as the Administrative Agent shall deem reasonably appropriate for such purpose, (ii) grant a security interest in all Collateral (subject to the exceptions specified in the Second Lien Guaranty and Security Agreement) owned by such Subsidiary by delivering to the Administrative Agent a duly executed supplement to each applicable Collateral Document or such other documents as the Administrative Agent shall deem reasonably appropriate for such purpose and comply with the terms of each applicable Collateral Document, (iii) deliver to the Administrative Agent such opinions, documents and certificates referred to in Section 3 as may be reasonably requested by the Administrative Agent, (iv) deliver to the Administrative Agent (or its bailee or agent pursuant to the Intercreditor Agreement) such original certificated Ownership Interests or other certificates and stock or other transfer powers evidencing the Ownership Interests of such Person, (v) deliver to the Administrative Agent such updated Schedules to the Loan Documents as requested by the Administrative Agent with respect to such Person and (vi) deliver to the Administrative Agent such other documents as may be reasonably requested by the Administrative Agent, all in form, content and scope reasonably satisfactory to the Administrative Agent.

(c) Additional Foreign Subsidiaries . Notify the Administrative Agent promptly after any Person becomes a First Tier Foreign Subsidiary, and promptly thereafter (and, in any event, within forty‑five (45) days after such notification; provided that the Administrative Agent may extend such time period by (x) an additional fifteen (15) days in its sole discretion and (y) an unlimited number of days thereafter with the consent of the Required Lenders), cause (i) the applicable Loan Party to deliver to the Administrative Agent Collateral Documents pledging sixty‑five percent (65%) of the total outstanding voting Ownership Interests (and one hundred percent (100%) of the non‑voting Ownership Interests) of any such new First Tier Foreign Subsidiary, which Collateral Documents shall be governed by the law of the jurisdiction of organization of such First Tier Foreign Subsidiary, and a consent thereto executed by such new First Tier Foreign Subsidiary (including, if applicable, deliver to Administrative Agent (or its bailee or agent pursuant to the Intercreditor Agreement) original certificated Ownership Interests (or the equivalent thereof pursuant to the applicable Legal Requirements and practices of any relevant foreign jurisdiction) evidencing the Ownership Interests of such new First Tier Foreign Subsidiary, together with an appropriate undated stock or other transfer power for each certificate duly executed in blank by the registered owner thereof), (ii) such Person to deliver to the Administrative Agent such opinions, documents and certificates referred to in Section 3 as may be reasonably requested by the Administrative Agent, (iii) such Person to deliver to the Administrative Agent such updated Schedules to the Loan Documents as requested by the Administrative Agent with regard to such Person and (iv) such Person to deliver to the Administrative Agent such other documents as may be reasonably requested by the Administrative Agent, all in form, content and scope reasonably satisfactory to the Administrative Agent. For the avoidance of doubt, no guaranty by (or pledge of any of the assets or Ownership Interests (other than up to sixty‑five percent (65%) of the voting Ownership Interests and one hundred percent (100%) of the non‑voting Ownership Interests of a First Tier Foreign Subsidiary) of) any First Tier Foreign Subsidiary shall be required to the extent such guaranty or pledge would have a material adverse tax consequence for either Borrower or result in a violation of applicable Legal Requirements.

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(d) Real Property Collateral . (i) Promptly after the acquisition by any Loan Party of any fee owned real property with a fair market value in excess of $2,000,000 that is not subject to the existing Collateral Documents (and, in any event, within ten (10) days after such acquisition), notify the Administrative Agent and (ii) promptly thereafter (and in any event, within sixty (60) days of such acquisition, as such time period may be extended by the Administrative Agent with the consent of the Required Lenders), deliver such mortgages, deeds of trust, flood insurance certificates, title insurance policies, environmental reports, surveys and other documents reasonably requested by the Administrative Agent necessary to grant and perfect a first priority Lien (subject to Permitted Prior Liens) on such real property in favor of the Administrative Agent, for the benefit of the Secured Parties, all in form and substance reasonably acceptable to the Administrative Agent, including those certificates, documents and information listed on Schedule 6.14(d).

(e) Merger Subsidiaries . Notwithstanding the foregoing, to the extent any new Subsidiary is created solely for the purpose of consummating a merger transaction pursuant to a Permitted Acquisition, and such new Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously with the closing of such merger transaction, such new Subsidiary shall not be required to take the actions set forth in Section 6.14(b) or (c), as applicable, until the consummation of such Permitted Acquisition (at which time, the surviving entity of the respective merger or amalgamation transaction shall be required to so comply with Section 6.14(b) or (c), as applicable, within fifteen (15) days of the consummation of such Permitted Acquisition, as such time period may be extended by (x) an additional forty‑five (45) days with the consent of the Administrative Agent and (y) an unlimited number of days thereafter with the consent of the Required Lenders).

(f) Exclusions . The provisions of this Section 6.14 shall not apply to (i) Excluded Property and (ii) assets as to which the Required Lenders and the Borrowers shall reasonably determine that the costs and burdens of obtaining a security interest therein or perfection thereof outweigh the value of the security afforded thereby.

(g) First Lien Loan Documents . Notwithstanding anything herein to the contrary, the Borrowers and the other Loan Parties shall execute and deliver to the Administrative Agent, for the benefit of the Secured Parties, mortgages, charges, deeds of trust, deposit account control agreements, collateral access agreements and other security documents to the extent provided to the First Lien Administrative Agent or executed in respect of the First Lien Obligations (as defined in the Intercreditor Agreement).

Section 6.15. Use of Proceeds . The Borrowers shall use all proceeds of the Loans to refinance existing Indebtedness outstanding on the Closing Date, to fund certain fees and expenses associated with this Agreement and the transactions contemplated hereby, and for working capital purposes and other general corporate purposes.

Section 6.16. Intentionally Omitted .

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Section 6.17. Further Assurances . Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and other documents), which the Administrative Agent or the Required Lenders may reasonably request to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens created or intended to be created by the Collateral Documents or the validity or priority of any such Lien, all at the expense of the Loan Parties; and provide to the Administrative Agent, from time to time upon the reasonable request of the Administrative Agent, evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Collateral Documents.

Section 6.18. Distribution and License Agreements . Maintain in effect during the term of this Agreement (a) the Bollore Distribution Agreements with Bollore Technologies S.A. ( “Bollore” ) and Bollore S.A. (as applicable), (b) the JJA Supply Agreement, (c) the Swedish Match Agreement, and (d) the Durfort Production Agreement.

Section 6.19. Maintenance of Company Separateness . Each Borrower will, and will cause each of its respective Subsidiaries to, satisfy in all material respects customary company formalities, including, as applicable, (a) the holding of regular board of directors’ and shareholders’ meetings or action by directors or shareholders without a meeting, (b) the maintenance of separate company records and (c) the maintenance of separate bank accounts in its own name, except in each case as could not reasonably be expected to cause the separate company existence thereof to be ignored or the assets and liabilities thereof to be substantively consolidated as set forth in the following sentence. Neither the Borrowers nor any of their respective Subsidiaries shall take any action, or conduct its affairs in a manner, which is likely to result in the company existence of either Borrower or any of its respective Subsidiaries being ignored, or in the assets and liabilities of either Borrower or any of its respective Subsidiaries being substantively consolidated with one another or with those of any other such Person in a bankruptcy, reorganization or other insolvency proceeding.

Section 6.20. Intentionally Omitted .

Section 6.21. Intentionally Omitted.

Section 6.22. Compliance with Sanctions Programs. (a) Each Loan Party shall at all times comply with the requirements of all Sanctions Programs applicable to such Loan Party and shall cause each of its Subsidiaries to comply with the requirements of all Sanctions Programs applicable to such Subsidiary.

(b) Each Loan Party shall provide the Administrative Agent, and the Lenders any information regarding such Loan Party, its Affiliates, and its Subsidiaries necessary for the Administrative Agent, and the Lenders to comply with all applicable Sanctions Programs; subject however, in the case of Affiliates, to such Loan Party’s ability to provide information applicable to them.

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(c) If any Loan Party obtains actual knowledge or receives any written notice that such Loan Party, any of its officers or directors, any Affiliate, or any Subsidiary is named on any then current Sanctions List (such occurrence, a “Sanctions Event” ), such Loan Party shall promptly (i) give written notice to the Administrative Agent, and the Lenders of such Sanctions Event, and (ii) comply with all applicable Legal Requirements with respect to such Sanctions Event (regardless of whether the party included on the Sanctions List is located within the jurisdiction of the United States of America), including the Sanctions Programs, and each Loan Party hereby authorizes and consents to the Administrative Agent, and the Lenders taking any and all steps the Administrative Agent, or the Lenders deem necessary, in their sole but reasonable discretion, to avoid violation of all applicable Legal Requirements with respect to any such Sanctions Event, including the requirements of the Sanctions Programs (including the freezing and/or blocking of assets and reporting such action to OFAC and/or the U.S. Department of Treasury’s Office of Foreign Assets Control).

(d) No Loan Party will, directly or, to the knowledge of any Loan Party, indirectly, use any proceeds of the Loans to finance or otherwise fund (i) any activity or business with or related to any Sanctioned Person or any Sanctioned Country or (ii) in any other manner that will result in a violation of any Sanctions Program by any Person (including any Person participating in the Loans, whether as lender, underwriter, advisor, investor, or otherwise).

Section 6.23. Post‑Closing Matters . Execute and deliver the documents and complete the tasks set forth on Schedule 6.23, in each case within the time limits specified on such schedule.

Section 7. Negative Covenants.

So long as any Credit is available to or in use by the Borrowers hereunder and until the Facility Termination Date, the Borrowers will not, and not permit any of their respective Subsidiaries to:

Section 7.1. Indebtedness . Create, incur, assume or suffer to exist any Indebtedness except:

(a) the Obligations;

(b) Indebtedness and obligations owing under Hedge Agreements entered into in order to manage existing or anticipated interest rate, foreign exchange rate or commodity price risks and not for speculative purposes; provided, that the Borrowers shall not enter into any Hedge Agreement with respect to the Interest Rate under this Agreement;

(c) Indebtedness existing on the Closing Date and listed on Schedule 7.1 and any Permitted Refinancing thereof, including obligations in respect of the JPMorgan Letters of Credit in an aggregate amount not to exceed $2,600,000;

(d) Indebtedness of the Borrowers and their Subsidiaries incurred in connection with Capitalized Lease Obligations and purchase money Indebtedness in an aggregate amount not to exceed $5,750,000 at any time outstanding;

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(e) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 7.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither Borrower nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness, and (iii) the aggregate outstanding principal amount of such Indebtedness (excluding Non-Recourse Indebtedness) does not exceed $11,500,000 at any time outstanding;

(f) Guarantee obligations of any Loan Party with respect to Indebtedness permitted pursuant to subsections (a) through (d), (i), (m) and (n) of this Section 7.1;

(g) subject to Section 11.27, unsecured intercompany Indebtedness owed by any Loan Party to another Loan Party;

(h) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;

(i) unsecured Subordinated Debt of the Borrowers in an aggregate amount not to exceed $25,000,000 at any time outstanding; provided that, in the case of each incurrence of such unsecured Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the incurrence of such unsecured Indebtedness, (ii) the Administrative Agent shall have received satisfactory written evidence that (A) the Consolidated Total Leverage Ratio would not be greater than the most recently applicable Consolidated Total Leverage Ratio required under Section 7.15 and (B) the Consolidated Senior Leverage Ratio would not be greater than the most recently applicable Consolidated Senior Leverage Ratio required under Section 7.15, in each case, on a Pro Forma Basis after giving effect to the issuance of any such unsecured Indebtedness, and (iii) such unsecured Indebtedness will not have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any Loans outstanding at the time such unsecured Indebtedness is incurred or a maturity date earlier than the date that is six (6) months after the latest maturity date then in effect at the time such unsecured Indebtedness is incurred;

(j) Indebtedness of either Borrower and its Subsidiaries under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, or arising from Guarantees to suppliers, lessors, licensees, contractors, franchises or customers of obligations (other than Indebtedness), in each case, incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing;

(k) (i) the VaporBeast Seller Debt and (ii) other unsecured Seller Debt, so long as at all times such other Indebtedness constitutes subordinated debt pursuant to Section 7.16(b);

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(l) (i) Indebtedness of any Loan Party under the First Lien Credit Agreement in an aggregate principal amount not to exceed (A) the First Lien Cap Amount (as defined in the Intercreditor Agreement), minus (B) the aggregate principal amount of repayments and prepayments of loans under the First Lien Credit Agreement and (ii) and any Permitted Refinancing thereof; provided that, in the case of any Permitted Refinancing thereof, the agent or lenders party to such refinanced, refunded or extended Indebtedness agree in writing to be bound by the terms of the Intercreditor Agreement;

(m) Indebtedness constituting a Permitted Refinancing of all or any portion of the Loans; provided that (i) (x) any such Indebtedness in the form of loans or other credit facilities shall be unsecured, and (y) if such Indebtedness is secured, it shall constitute debt securities and shall be secured on a pari passu basis with the Obligations by way of joinder to and amendment and restatement of the Collateral Documents ( provided that, such joinder and amendment and restatement will not modify any terms of such Collateral Documents other than to add (A) such Indebtedness as obligations secured thereby, (B) the holders of such obligations as secured parties with rights as such thereunder, (C) the establishment of the Administrative Agent as the collateral agent for both the Secured Parties and the holders of such obligations, and (D) incidental terms related to the foregoing additions), (ii) such Indebtedness will not have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any Loans outstanding at the time such Indebtedness is incurred or a maturity date earlier than the latest maturity date then in effect at the time such Indebtedness is incurred, (iii) if such Indebtedness is secured, the agent or lenders party to such Indebtedness shall execute and deliver to the Administrative Agent an intercreditor agreement and become party to the other Intercreditor Agreement to the extent then in effect and (iv) the other terms and conditions of such Indebtedness (excluding pricing and optional prepayment or redemption terms) are substantially similar to, or less favorable to the investors providing such Indebtedness, than those applicable to the Loans (except for covenants or other provisions applicable only to periods after the date that is ninety‑one (91) days after the latest maturity date in effect at the time such Indebtedness is incurred) as certified by the chief financial officer or treasurer of Turning Point; and

(n) unsecured Indebtedness of either Borrower or any Subsidiary thereof not otherwise permitted pursuant to this Section 7.1 in an aggregate principal amount not to exceed $2,300,000 at any time outstanding.

Section 7.2. Liens . Create, incur, assume or suffer to exist any Lien on or with respect to any of its Property, whether now owned or hereafter acquired, except:

(a) Liens created pursuant to the Loan Documents;

(b) Liens in existence on the Closing Date and described on Schedule 7.2, and the replacement, renewal or extension thereof (including Liens incurred, assumed or suffered to exist in connection with any refinancing, refunding, renewal or extension of Indebtedness pursuant to Section 7.1(c) (solely to the extent that such Liens were in existence on the Closing Date and described on Schedule 7.2)); provided that the scope of any such Lien shall not be increased, or otherwise expanded, to cover any additional property or type of asset, as applicable, beyond that in existence on the Closing Date, except for products and proceeds of the foregoing;

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(c) Liens for taxes, assessments and other governmental charges or levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or Environmental Laws) (i) not yet due or as to which the period of grace (not to exceed thirty (30) days), if any, related thereto has not expired or (ii) which do not have priority over Agent’s Liens and in respect of which the underlying taxes, assessments, or charges or levies are the subject of Permitted Protests;

(d) the claims of materialmen, mechanics, carriers, warehousemen, processors or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business, which (i) are not overdue for a period of more than thirty (30) days, or if more than thirty (30) days overdue, no action has been taken to enforce such Liens and such Liens are being contested in good faith by appropriate proceedings if adequate reserves are maintained to the extent required by GAAP and (ii) do not, individually or in the aggregate, materially impair the use thereof in the operation of the business of either Borrower or any of its Subsidiaries;

(e) deposits or pledges made in the ordinary course of business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business, in each case, so long as no foreclosure sale or similar proceeding has been commenced with respect to any portion of the Collateral on account thereof;

(f) encumbrances in the nature of (i) zoning restrictions, easements and rights or restrictions of record on the use of real property and (ii) minor defects or irregularities in title, in each case, which do not materially detract from the value of such property or impair the use thereof in the ordinary conduct of business;

(g) Liens arising from the filing of precautionary UCC financing statements relating solely to personal property leased pursuant to operating leases entered into in the ordinary course of business of the Borrowers and their Subsidiaries;

(h) Liens securing Indebtedness permitted under Section 7.1(d); provided that (i) such Liens shall be created substantially simultaneously with the acquisition, repair, improvement or lease, as applicable, of the related Property, (ii) such Liens do not at any time encumber any property other than the Property financed by such Indebtedness and (iii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed one hundred percent (100%) of the original price for the purchase, repair improvement or lease amount (as applicable) of such Property at the time of purchase, repair, improvement or lease (as applicable);

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(i) Liens (x) securing judgments for the payment of money not constituting an Event of Default under Section 8.1(l) or (y) securing appeal or other surety bonds relating to such judgments;

(j) Liens on Property (x) of any Subsidiary which are in existence at the time that such Subsidiary is acquired pursuant to a Permitted Acquisition and (y) of either Borrower or any of its Subsidiaries existing at the time such Property is purchased or otherwise acquired by such Borrower or such Subsidiary pursuant to a transaction permitted pursuant to this Agreement; provided that, with respect to each of the foregoing clauses (x) and (y), (A) such Liens are not incurred in connection with, or in anticipation of, such Permitted Acquisition, purchase or other acquisition, (B) such Liens are applicable only to the assets acquired (or the assets of the Subsidiary acquired), (C) such Liens do not attach to any other Property of the Borrowers or any of their Subsidiaries and (D) the Indebtedness secured by such Liens is permitted under Section 7.1(e) of this Agreement;

(k) Liens on assets of Foreign Subsidiaries; provided that (i) such Liens do not extend to, or encumber, assets that constitute Collateral, and (ii) such Liens extending to the assets of any Foreign Subsidiary secure only Indebtedness incurred by such Foreign Subsidiary pursuant to Section 7.1(c) or (e);

(l) (i) Liens of a collecting bank arising in the ordinary course of business under Section 4‑210 of the UCC in effect in the relevant jurisdiction (or Section 4‑208 of the UCC in effect in the State of New York) and (ii) Liens of any depositary bank in connection with statutory, common law and contractual rights of set‑off and recoupment with respect to any deposit account of either Borrower or any Subsidiary thereof;

(m) (i) contractual or statutory Liens of landlords to the extent relating to the property and assets relating to any lease agreements with such landlord, and (ii) contractual Liens of suppliers (including sellers of goods) or customers granted in the ordinary course of business to the extent limited to the property or assets relating to such contract;

(n) any interest or title of a licensor, sublicensor, lessor or sublessor with respect to any assets under any license or lease agreement entered into in the ordinary course of business which do not (i) interfere in any material respect with the business of the Borrowers or their Subsidiaries or materially detract from the value of the relevant assets of the Borrowers or their Subsidiaries or (ii) secure any Indebtedness;

(o) Liens on the JPMorgan Cash Collateral Account securing Indebtedness of the JPMorgan Letters of Credit permitted under Section 7.1(c); provided that (i) such Liens shall only be permitted for the period of time during which the JPMorgan Letters of Credit remain outstanding and are required to be cash collateralized and (ii) the amount of cash in such account shall not exceed 100% of the face amount of such letters of credit and any reimbursement obligations related thereto;

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(p) Liens securing Indebtedness under the First Lien Credit Agreement or any refinancing, refunding or extension thereof incurred pursuant to Section 7.1(l); provided that such Liens are subject to the terms of the Intercreditor Agreement;

(q) Liens securing Indebtedness incurred pursuant to Section 7.1(m) to the extent such Indebtedness is in the form of debt securities; provided that such Liens are subject to the terms of the Intercreditor Agreement, to the extent then in effect; and

(r) Liens not otherwise permitted hereunder on assets other than the Collateral securing Indebtedness or other obligations in the aggregate principal amount not to exceed $2,875,000 at any time outstanding.

Section 7.3. Investments . Purchase, own, invest in or otherwise acquire (in one transaction or a series of transactions), directly or indirectly, any Ownership Interests, interests in any partnership or joint venture (including the creation or capitalization of any Subsidiary), evidence of Indebtedness or other obligation or security, all or substantially all of the business or assets of any other Person or any other investment or interest whatsoever in any other Person, or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to, or any investment in cash or by delivery of Property in, any other Person (all the foregoing, “Investments” ) except:

(a) (i) Investments existing on the Closing Date in Subsidiaries existing on the Closing Date;

(ii) Investments existing on the Closing Date (other than Investments in Subsidiaries existing on the Closing Date) and described on Schedule 7.3; and

(iii) Investments made after the Closing Date by any Loan Party in any other Loan Party;

(b) Investments in cash and Cash Equivalents;

(c) deposits made in the ordinary course of business to secure the performance of leases or other obligations as permitted by Section 7.2;

(d) Hedge Agreements permitted pursuant to Section 7.1;

(e) Investments made after the Closing Date by either Borrower or any Subsidiary thereof in the form of Permitted Acquisitions to the extent that any Person or Property directly or indirectly acquired in such acquisition becomes a part of either Borrower or a Guarantor or is required to become and becomes (whether or not such Person is a Wholly‑owned Subsidiary) a Guarantor in the manner contemplated by Section 6.14;

(f) deposits in the TMSA Account;

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(g) Investments made after the Closing Date in the form of Restricted Payments permitted pursuant to Section 7.6;

(h) Guarantee obligations permitted pursuant to Section 7.1; and

(i) intercompany Indebtedness permitted under Section 7.1(g).

For purposes of determining the amount of any Investment outstanding for purposes of this Section 7.3, such amount shall be deemed to be the amount of such Investment when made, purchased or acquired (without adjustment for subsequent increases or decreases in the value of such Investment) less any amount realized in respect of such Investment upon the sale, collection or return of capital in respect thereof (not to exceed the original amount invested).

Section 7.4. Fundamental Changes . Merge, consolidate (it being acknowledged that the term “consolidate” does not include any consolidation occurring solely pursuant to GAAP of the financial results of Turning Point with the financial results of Standard General or SDOI) or enter into any similar combination with, or enter into any Asset Disposition of all or substantially all of its assets (whether in a single transaction or a series of transactions) with, any other Person or liquidate, wind‑up or dissolve itself (or suffer any liquidation or dissolution) except:

(a) (i) any Wholly‑owned Subsidiary of either Borrower may be merged, amalgamated or consolidated with or into a Borrower ( provided that a Borrower shall be the continuing or surviving entity) or (ii) any Wholly‑owned Subsidiary of either Borrower may be merged, amalgamated or consolidated with or into any Guarantor ( provided that the Guarantor shall be the continuing or surviving entity or simultaneously with such transaction, the continuing or surviving entity shall become a Guarantor and such Borrower shall comply with Section 6.14 in connection therewith);

(b) any Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to either Borrower or any Guarantor;

(c) any Wholly‑owned Subsidiary of either Borrower may merge with or into the Person such Wholly‑owned Subsidiary was formed to acquire in connection with any acquisition permitted hereunder (including any Permitted Acquisition permitted pursuant to Section 7.3(e)); provided that, in the case of any merger involving a Wholly‑owned Subsidiary that is a Domestic Subsidiary, (i) a Guarantor shall be the continuing or surviving entity or (ii) simultaneously with such transaction, the continuing or surviving entity shall become a Guarantor and such Borrower shall comply with Section 6.14 in connection therewith; and

(d) any Acquired Entity may be merged, amalgamated or consolidated with or into either Borrower or any of its Subsidiaries in connection with a Permitted Acquisition in a manner consistent with the definition of “Acquired Entity”.

Section 7.5. Asset Dispositions . Make any Asset Disposition except:

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(a) the sale of obsolete, worn‑out or surplus assets no longer used or usable in the business of either Borrower or any of its Subsidiaries;

(b) non‑exclusive licenses and sublicenses of intellectual property rights in the ordinary course of business not interfering, individually or in the aggregate, in any material respect with the conduct of the business of the Borrowers and their Subsidiaries;

(c) leases, subleases, licenses or sublicenses of real or personal property granted by either Borrower or any of its Subsidiaries to others in the ordinary course of business not detracting from the value of such real or personal property or interfering in any material respect with the business of the Borrowers or any of their Subsidiaries;

(d) Asset Dispositions in connection with Events of Loss; provided that the requirements of Section 2.8(b) are complied with in connection therewith;

(e) Assets Dispositions in connection with transactions permitted by Section 7.4; and

(f) Asset Dispositions not otherwise permitted pursuant to this Section 7.5; provided that (i) at the time of such Asset Disposition, no Default or Event of Default shall exist or would result from such Asset Disposition, (ii) such Asset Disposition is made for fair market value and the consideration received shall be no less than seventy‑five percent (75%) in cash; provided that the amount of: (x) any liabilities (as shown on the applicable Borrower’s or the applicable Subsidiary’s most recent balance sheet) of either Borrower or any Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Secured Obligations or Indebtedness of such Borrower or such Subsidiary that is unsecured or secured by a Lien junior in priority to the Liens securing the Secured Obligations) that are assumed by the transferee of any such assets and with respect to which such Borrower or such Subsidiary is unconditionally released from further liability and (y) any securities received by such Borrower or the applicable Subsidiary from such transferee that are converted within sixty (60) days by such Borrower or such Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received in that conversion) will be deemed to be cash for purposes of this clause (ii), and (iii) the aggregate fair market value of all property disposed of after the Closing Date in reliance on this clause (f) shall not exceed $5,750,000.

Section 7.6. Restricted Payments . Declare or pay any dividend on, or make any payment or other distribution on account of, or purchase, redeem, retire or otherwise acquire (directly or indirectly), or set apart assets for a sinking or other analogous fund for the purchase, redemption, retirement or other acquisition of, any class of Ownership Interests of either Borrower or any Subsidiary thereof, or make any distribution of cash, property or assets to the holders of shares of any Ownership Interests of either Borrower or any Subsidiary thereof (all of the foregoing, “Restricted Payments” ), provided that:

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(a) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, either Borrower or any of its Subsidiaries may pay dividends in shares of its own Qualified Ownership Interests;

(b) any Subsidiary of either Borrower may pay cash dividends to either Borrower or any Guarantor (and, if applicable, to other holders of its outstanding Qualified Ownership Interests on a pro rata basis);

(c) Turning Point shall be permitted to make a single dividend or distribution to its shareholders or to make a redemption or purchase of shares (any such dividend, distribution, redemption or purchase, a “Restricted Quarterly Distribution” ) in each fiscal quarter of Turning Point, so long as (i) both immediately before and after giving effect thereto, no Default or Event of Default has occurred and is continuing on the date of such Restricted Quarterly Distribution, and (ii) the Borrowers shall have Unused Revolving Credit Commitments (as defined in the First Lien Credit Agreement) of at least $10,000,000 after giving effect to such Restricted Quarterly Distribution; provided that the aggregate amount of Restricted Quarterly Distributions during any Fiscal Year shall not exceed the sum of the aggregate amount of mandatory and voluntary principal payments made on the Priority Term Loans (as defined in the First Lien Credit Agreement as of the date hereof) during such Fiscal Year pursuant to Sections 2.7 and 2.8 and that were made prior to the date of the proposed Restricted Quarterly Distribution; provided, further, that, Turning Point shall be permitted to make a Restricted Quarterly Distribution during any Fiscal Year after May 15 of such Fiscal Year, without any limit as to the amount of such dividend or distribution, if (A) prior to such Restricted Quarterly Distribution, the Borrowers have made the Excess Cash Flow payment required to be made, if any, pursuant to Section 2.8(b)(iii) with respect to the immediately preceding Fiscal Year, (B) the Consolidated Total Leverage Ratio is less than 2.50 to 1.00 as of the end of the two consecutive fiscal quarters of the Borrowers immediately preceding the date of such Restricted Quarterly Distribution, and the Borrowers have delivered to the Administrative Agent the compliance certificates required by Section 6.2(a) hereof with detailed calculations evidencing such Consolidated Total Leverage Ratio on such dates, and (C) the Borrowers have delivered a compliance certificate in the form of Exhibit D attached hereto evidencing that, after giving effect to such Restricted Quarterly Distribution (including any Borrowing advanced on such date to make such Restricted Quarterly Distribution), Turning Point’s pro forma Consolidated Total Leverage Ratio is less than 2.50 to 1.00; and

(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrowers may make Restricted Payments so that Turning Point may redeem, retire or otherwise acquire shares of its Ownership Interests or options or other equity or phantom equity in respect of its Ownership Interests from present or former officers, employees, directors or consultants (or their family members or trusts or other entities for the benefit of any of the foregoing) or make severance payments to such Persons in connection with the death, disability or termination of employment or consultancy of any such officer, employee, director or consultant in an amount not to exceed $5,750,000 in the aggregate since the Closing Date.

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Section 7.7. Transactions with Affiliates . Directly or indirectly enter into any transaction, including any purchase, sale, lease or exchange of Property, the rendering of any service or the payment of any management, advisory or similar fees, with (a) any officer, director, holder of any Ownership Interests in, or other Affiliate of, either Borrower or any of its Subsidiaries or (b) any Affiliate of any such officer, director or holder, other than:

(i) transactions permitted by Section 7.6;

(ii) transactions existing on the Closing Date and described on Schedule 7.7;

(iii) transactions among Loan Parties;

(iv) other transactions on terms as favorable as would be obtained by it in a comparable arm’s‑length transaction with an independent, unrelated third party as determined, (x) with respect to any transaction or series of related transactions involving consideration of less than $2,875,000, in the reasonable, good faith judgment of the Borrowers, (y) with respect to any transaction or series of related transactions involving consideration of at least $2,875,000 but less than $5,750,000, in good faith by the Board of Directors (or equivalent governing body) of Turning Point and (z) with respect to any transaction or series of related transactions involving consideration of $5,750,000 or more, in a written opinion from an independent investment banking firm of nationally recognized standing;

(v) employment and severance arrangements (including equity incentive plans and employee benefit plans and arrangements) with their respective officers and employees in the ordinary course of business; and

(vi) payment of customary fees and reasonable out of pocket costs to, and indemnities for the benefit of, directors, officers and employees of the Borrowers and their Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of the Borrowers and their Subsidiaries.

Section 7.8. Accounting Changes; Organizational Documents . (a) Without the consent of the Administrative Agent, which shall not be unreasonably withheld, change its Fiscal Year end or make any material change in its accounting treatment and reporting practices except as required by GAAP.

(b) Amend, modify or change its Organization Documents in any manner materially adverse to the rights or interests of the Lenders.

Section 7.9. Payments and Modifications of Certain Indebtedness . (a) Amend, modify, waive or supplement (or permit the modification, amendment, waiver or supplement of) any of the terms or provisions of any First Lien Loan Document or the documentation governing any Permitted Refinancing thereof or any Subordinated Debt, other than as permitted by the terms of the Intercreditor Agreement and any other intercreditor or subordination provisions applicable to such Subordinated Debt.

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(b) Cancel, forgive, make any payment or prepayment on, or redeem or acquire for value (including (x) by way of depositing with any trustee with respect thereto money or securities before due for the purpose of paying when due and (y) at the maturity thereof) any Subordinated Debt, unsecured Indebtedness or Indebtedness secured by Liens that are junior to those securing the Secured Obligations, except:

(i) refinancings, refundings, renewals, extensions or exchanges of any such Indebtedness to the extent that such refinancings, refundings, renewals, extensions or exchanges are permitted under Section 7.1(c), (e), (g), (i), (l), (m) or (n), in each instance, to the extent applicable to such Indebtedness, subject to the terms of the Intercreditor Agreement and any other intercreditor or subordination provisions applicable thereto, including Section 11.27; and

(ii) the payment of regularly scheduled principal and interest, and expenses, indemnities and other amounts to the extent due and owing in respect of Indebtedness incurred under Section 7.1(c), (e), (g), (i), (l), (m) or (n), in each instance, to the extent applicable to such Indebtedness, subject to the terms of the Intercreditor Agreement and any other intercreditor or subordination provisions applicable thereto, including Section 11.27.

Section 7.10. No Further Negative Pledges; Restrictive Agreements . (a) Enter into, assume or be subject to any agreement prohibiting or otherwise restricting the creation or assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired, to secure the Secured Obligations, except (i) pursuant to this Agreement and the other Loan Documents, (ii) pursuant to the Intercreditor Agreement, and (iii) pursuant to any document or instrument governing Indebtedness incurred pursuant to Section 7.1(d) ( provided that any such restriction contained therein relates only to the asset or assets financed thereby) or (e) ( provided that any such restriction contained therein relates only to the assets acquired in any such acquisition referred to therein).

(b) Create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Loan Party or any Subsidiary thereof to (i) pay dividends or make any other distributions to any Loan Party or any Subsidiary thereof on its Ownership 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 any Loan Party or (iii) make loans or advances to any Loan Party, except in each case for such encumbrances or restrictions existing under or by reason of (A) this Agreement and the other Loan Documents, (B) applicable Legal Requirements or (C) Indebtedness incurred under Section 7.1(c) or (e).

(c) Create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Loan Party or any Subsidiary thereof to (i) sell, lease or transfer any of its properties or assets to any Loan Party or (ii) act as a Loan Party pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extensions thereof, except in each case for such encumbrances or restrictions existing under or by reason of (A) this Agreement and the other Loan Documents, (B) applicable Legal Requirements, (C) any document or instrument governing Indebtedness incurred pursuant to Section 7.1(c), (d) ( provided that any such restriction contained therein relates only to the asset or assets acquired in connection therewith) or (e) ( provided that any such restriction contained therein relates only to the assets acquired in any such acquisition referred to therein), (D) obligations that are binding on a Subsidiary at the time such Subsidiary first becomes a Subsidiary of a Borrower, so long as such obligations are not entered into in contemplation of such Person becoming a Subsidiary, (E) customary restrictions contained in an agreement related to the sale of Property (to the extent such sale is permitted pursuant to Section 7.5) that limit the transfer of such Property pending the consummation of such sale, (F) customary restrictions in leases, subleases, licenses and sublicenses otherwise permitted by this Agreement so long as such restrictions relate only to the assets subject thereto and (G) customary provisions restricting assignment of any agreement entered into in the ordinary course of business.

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Section 7.11. Nature of Business . Engage in any business other than the business conducted by the Borrowers and their Subsidiaries as of the Closing Date and business activities reasonably related or ancillary thereto or that are reasonable extensions thereof.

Section 7.12. Amendments of Other Documents . Amend, modify, waive or supplement (or permit the modification, amendment, waiver or supplement of) any of the terms or provisions of (i) the Bollore Distribution Agreements, the JJA Supply Agreement, the Swedish Match Agreement, or the Durfort Production Agreement, in each case, in any respect which would reasonably be expected to have a Material Adverse Effect or would materially and adversely affect the rights or interests of the Administrative Agent and the Lenders hereunder, without the prior written consent of the Required Lenders or (ii) any other Material Contract in any respect which would reasonably be expected to have a Material Adverse Effect or would materially and adversely affect the rights or interests of the Administrative Agent and the Lenders hereunder, without the prior written consent of the Administrative Agent.

Section 7.13. Sale Leasebacks . Enter into any arrangement, directly or indirectly, with any Person whereby it shall sell or transfer 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 which it intends to use for substantially the same purpose or purposes as the Property being sold or transferred unless (a) the sale or transfer of such Property is permitted by Section 7.5 and (b) any Indebtedness or Liens arising in connection therewith are permitted by Sections 7.1 and 7.2, as the case may be.

Section 7.14. Limitations on Turning Point . (a) Own or otherwise hold any Property other than (i) the Ownership Interests of NATC Holding and Turning Point Brands, LLC, (ii) Investments permitted hereunder, (iii) minute books and other corporate books and records of NATC Holding and Turning Point Brands, LLC and (iv) other miscellaneous non‑material assets;

(b) Have any liabilities other than (i) the liabilities under the Loan Documents and the First Lien Loan Documents and, in each case, the documents in respect of any Permitted Refinancing thereof, (ii) tax liabilities arising in the ordinary course of business, (iii) Indebtedness permitted under Section 7.1 and customary liabilities related thereto, (iv) corporate, administrative and operating expenses in the ordinary course of business (including any liabilities arising in the ordinary course of business in respect of any Multiemployer Plan in respect of which Turning Point may be an ERISA Affiliate) and (v) liabilities in respect of Investments expressly permitted pursuant to Section 7.3, Asset Dispositions expressly permitted pursuant to Section 7.5, Restricted Payments expressly permitted pursuant to Section 7.6, and transactions expressly permitted pursuant to clauses (ii), (iii), (v) and (vi) of Section 7.7; or

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(c) Engage in any activities or business other than (i) issuing shares of its own Qualified Ownership Interests and (ii) holding the assets and incurring the liabilities described in this Section 7.14 and activities incidental and related thereto.

Section 7.15. Financial Covenants.

(a) Consolidated Total Leverage Ratio . As of the last day of any fiscal quarter ending during the periods specified below, permit the Consolidated Total Leverage Ratio to be greater than the corresponding ratio set forth below:

Period	Maximum Ratio

Closing Date through December 30, 2017	5.25 to 1.00
December 31, 2017 through December 30, 2018	5.00 to 1.00
December 31, 2018 through December 30, 2019	4.75 to 1.00
December 31, 2019 and thereafter	4.50 to 1.00

(b) Consolidated Senior Leverage Ratio. As of the last day of any fiscal quarter ending during the periods specified below, permit the Consolidated Senior Leverage Ratio to be greater than the corresponding ratio set forth below:

Period	Maximum Ratio

Closing Date through December 30, 2017	4.25 to 1.00
December 31, 2017 through December 30, 2018	4.00 to 1.00
December 31, 2018 through December 30, 2019	3.75 to 1.00
December 31, 2019 and thereafter	3.50 to 1.00

(c) Consolidated Fixed Charge Coverage Ratio . As of the last day of any fiscal quarter, permit the Consolidated Fixed Charge Coverage Ratio to be less than 1.10 to 1.00.

Section 7.16. Seller Debt . Make any payment on account of any Seller Debt; provided that, the Borrowers may be permitted to make a payment on account of Seller Debt so long as (a) after giving effect to such payment (i) the Borrowers shall have Unused Revolving Credit Commitments (as defined in the First Lien Credit Agreement) of at least $10,000,000 and (ii) no Default or Event of Default shall exist or shall result from such payment, including with respect to the covenants contained in Section 7.15 on a pro forma basis, and the Borrowers shall have delivered to the Administrative Agent an Officer’s Compliance Certificate with detailed calculations evidencing such compliance with Section 7.15 (the foregoing clause (a) being hereinafter referred to as the “Seller Debt Payment Provisions” ) and (b) the holder of such Seller Debt has entered into a subordination agreement with the Administrative Agent, in form and substance acceptable to the Administrative Agent, and such subordination agreement shall include a provision that prohibits the holder of such Seller Debt from receiving any payment on account of Seller Debt unless the Seller Debt Payment Provisions have been satisfied; provided, however, that the holder of the VaporBeast Seller Debt shall not be required to enter into a subordination agreement with the Administrative Agent.

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Section 8. Default and Remedies.

Section 8.1. Events of Default . Each of the following shall constitute an Event of Default:

(a) Default in Payment of Principal of Loans . The Borrowers shall default in any payment of principal of any Loan when and as due (whether at maturity, by reason of acceleration or otherwise).

(b) Other Payment Default . The Borrowers or any other Loan Party shall default in the payment when and as due (whether at maturity, by reason of acceleration or otherwise) of interest on any Loan or the payment of any other Obligation, and such default shall continue for a period of three (3) Business Days.

(c) Misrepresentation . Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party or any Subsidiary thereof in this Agreement, in any other Loan Document, or in any document delivered in connection herewith or therewith that is subject to materiality or Material Adverse Effect qualifications shall be incorrect or misleading in any respect when made or deemed made, or any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party or any Subsidiary thereof in this Agreement, any other Loan Document, or in any document delivered in connection herewith or therewith that is not subject to materiality or Material Adverse Effect qualifications shall be incorrect or misleading in any material respect when made or deemed made.

(d) Default in Performance of Certain Covenants . Any Loan Party shall default in the performance or observance of any covenant or agreement contained in Sections 6.1, 6.2(a), 6.3(a), 6.4 (only with respect to corporate existence), 6.15 or 6.18, or Section 7.

(e) Default in Performance of Other Covenants and Conditions . Any Loan Party shall default in the performance or observance of any term, covenant, condition or agreement contained in this Agreement (other than as specifically provided for in this Section 8.1) or any other Loan Document and such default shall continue for a period of thirty (30) days ( provided that, notwithstanding anything to the contrary in the foregoing, with respect to Section 6.13, the applicable period shall be five (5) Business Days and not thirty (30) days) after the earlier of (i) the Administrative Agent’s delivery of written notice thereof to the Borrowers and (ii) a Responsible Officer of any Loan Party having obtained knowledge thereof.

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(f) Indebtedness Cross‑Default . Any Loan Party or any Subsidiary thereof shall (i) default in the payment of any Indebtedness (other than the Loans and the First Lien Loans) the aggregate principal amount (including undrawn committed or available amounts), or with respect to any Hedge Agreement, the Hedge Termination Value, of which is in excess of $5,750,000 beyond the period of grace if any, provided in the instrument or agreement under which such Indebtedness was created, (ii) default in the observance or performance of any other agreement or condition relating to any Indebtedness (other than the Loans and the First Lien Loans) the aggregate principal amount (including undrawn committed or available amounts), or with respect to any Hedge Agreement, the Hedge Termination Value, of which is in excess of $5,750,000 or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice and/or lapse of time, if required, any such Indebtedness to become due prior to its stated maturity (any applicable grace period having expired), or (iii) default in the observance or performance of any agreement or condition relating to any First Lien Loans or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, and as a result thereof the holder or holders of such First Lien Loans (or a trustee or agent on behalf of such holder or holders) cause, with the giving of notice and/or lapse of time, if required, any such First Lien Loans to become due prior to their stated maturity (any applicable grace period having expired); provided that, notwithstanding the foregoing, it shall not be an Event of Default under this clause (f) if such default arises solely from non-payment on unsecured Seller Debt that constitutes subordinated debt pursuant to Section 7.16 and such non-payment is equal to or less than the amount of a contractual obligation (or obligations) that Borrowers claim in good faith is due and owing by the holder of such Seller Debt to the Borrowers and their Subsidiaries.

(g) Change of Control . Any Change of Control shall occur.

(h) Voluntary Bankruptcy Proceeding . Any Loan Party or any Subsidiary shall (i) commence a voluntary case under any Debtor Relief Laws, (ii) file a petition seeking to take advantage of any Debtor Relief Laws, (iii) consent to or fail to contest in a timely and appropriate manner any petition filed against it in an involuntary case under any Debtor Relief Laws, (iv) apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property, domestic or foreign, (v) admit in writing its inability to pay its debts as they become due, (vi) make a general assignment for the benefit of creditors, or (vii) take any corporate action authorizing any of the foregoing.

(i) Involuntary Bankruptcy Proceeding . A case or other proceeding shall be commenced against any Loan Party or any Subsidiary in any court of competent jurisdiction seeking (i) relief under any Debtor Relief Laws, or (ii) the appointment of a trustee, receiver, custodian, liquidator or the like for any Loan Party or any Subsidiary or for all or any substantial part of their respective assets, domestic or foreign, and such case or proceeding shall continue without dismissal or stay for a period of sixty (60) consecutive days, or an order granting the relief requested in such case or proceeding (including an order for relief under such federal bankruptcy laws) shall be entered.

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(j) Failure of Agreements .

(i) Guaranty . The obligation of any Guarantor under the guaranty contained in the Second Lien Guaranty and Security Agreement is limited or terminated by operation of law or by such Guarantor (other than in accordance with the terms of this Agreement);

(ii) Collateral Documents . The Second Lien Guaranty and Security Agreement or any other Loan Document that purports to create a Lien shall, for any reason, fail or cease to create a valid and perfected and, other than Permitted Prior Liens, first priority Lien in and upon any significant portion of the Collateral, except as a result of a disposition of the applicable Collateral in a transaction permitted under this Agreement; or

(iii) Loan Documents . Any Loan Document shall at any time for any reason be declared to be invalid or unenforceable, or a proceeding shall be commenced by a Loan Party or any of its Subsidiaries, or by any Governmental Authority having jurisdiction over a Loan Party or any of its Subsidiaries, seeking to establish the invalidity or unenforceability thereof, or a Loan Party or any of its Subsidiaries shall deny that such Loan Party or such Subsidiary has any liability or obligation purported to be created under any Loan Document.

(k) ERISA Events . The occurrence of any of the following events, in each case except as could not reasonably be expected to have a Material Adverse Effect: (i) any Loan Party or any ERISA Affiliate fails to make full payment when due of all amounts which, under the provisions of any Pension Plan or Sections 412 or 430 of the Code, any Loan Party or any ERISA Affiliate is required to pay as contributions thereto, (ii) a Termination Event or (iii) any Loan Party or any ERISA Affiliate as employers under one or more Multiemployer Plans makes a complete or partial withdrawal from any such Multiemployer Plan.

(l) Judgment . A judgment or order for the payment of money which causes the aggregate amount of all such judgments or orders (net of any amounts paid or fully covered by independent third party insurance as to which the relevant insurance company does not dispute coverage) to exceed $5,750,000 shall be entered against any Loan Party or any Subsidiary thereof by any court and either (i) there is a period of sixty (60) consecutive days at any time after the entry of any such judgment, order, or award during which (A) the same is not discharged, satisfied, vacated, or bonded pending appeal, or the holder of such judgment or order has agreed in writing that that it will not require any such bonding and the Administrative Agent is entitled to rely on such agreement, or (B) a stay of enforcement thereof is not in effect, or (ii) enforcement proceedings are commenced upon such judgment, order, or award.

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Section 8.2. Non‑Bankruptcy Defaults. When any Event of Default exists other than those described in subsection (h) or (i) of Section 8.1, the Administrative Agent shall, by written notice to the Borrowers, subject to the terms of the Intercreditor Agreement: (a) if so directed by the Required Lenders, terminate all obligations of the Lenders hereunder on the date stated in such notice (which may be the date thereof); and (b) if so directed by the Required Lenders, declare the principal of and the accrued interest on all outstanding Loans to be forthwith due and payable and thereupon all outstanding Loans, including both principal and interest thereon, shall be and become immediately due and payable together with all other amounts payable under the Loan Documents without further demand, presentment, protest or notice of any kind. The Administrative Agent, after giving notice to the Borrowers pursuant to Section 8.1(e) or this Section 8.2, shall also promptly send a copy of such notice to the other Lenders, but the failure to do so shall not impair or annul the effect of such notice.

Section 8.3. Bankruptcy Defaults . When any Event of Default described in subsections (h) or (i) of Section 8.1 exists, then all outstanding Obligations shall immediately and automatically become due and payable together with all other amounts payable under the Loan Documents without presentment, demand, protest or notice of any kind (each of which is hereby waived by the Borrowers), and all obligations of the Lenders to extend further credit pursuant to any of the terms hereof shall immediately and automatically terminate.

Section 8.4. Intentionally Omitted .

Section 8.5. Rights and Remedies Cumulative; Non‑Waiver; Etc. (a) The enumeration of the rights and remedies of the Administrative Agent and the Lenders set forth in this Agreement is not intended to be exhaustive and the exercise by the Administrative Agent and the Lenders of any right or remedy shall not preclude the exercise of any other rights or remedies, all of which shall be cumulative, and shall be in addition to any other right or remedy given hereunder or under the other Loan Documents or that may now or hereafter exist at law or in equity or by suit or otherwise. No delay or failure to take action on the part of the Administrative Agent or any Lender in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege or shall be construed to be a waiver of any Event of Default. No course of dealing between the Borrowers, the Administrative Agent and the Lenders or their respective agents or employees shall be effective to change, modify or discharge any provision of this Agreement or any of the other Loan Documents or to constitute a waiver of any Event of Default.

(b) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.2 and Section 8.3 for the benefit of all the Lenders; provided that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section 10.4 (subject to the terms of Section 11.13), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.2 and Section 8.3 and (ii) in addition to the matters set forth in clauses (b) and (c) of the preceding proviso and subject to Section 11.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

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Section 9. Change in Circumstances and Contingencies.

Section 9.1. Intentionally Omitted .

Section 9.2. Intentionally Omitted .

Section 9.3. Intentionally Omitted .

Section 9.4. Increased Costs . (a) Increased Costs Generally . If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender;

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

(iii) impose on any Lender any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or other Recipient, the Borrowers will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

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

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(c) Certificates for Reimbursement . A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company along with detailed calculations supporting said amount or amounts, as the case may be, as specified in Section 9.4(a) or (b) above and delivered to the Borrowers, shall be conclusive absent manifest error. The Borrowers shall pay such Lender, as the case may be, the amount shown as due on any such certificate within thirty (30) days after receipt thereof.

(d) Delay in Requests . Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrowers shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine‑month period referred to above shall be extended to include the period of retroactive effect thereof).

Section 9.5. Discretion of Lender as to Manner of Funding . Notwithstanding any other provision of this Agreement, each Lender shall be entitled to fund and maintain its funding of all or any part of its Loans in any manner it sees fit.

Section 9.6. Intentionally Omitted.

Section 10. The Administrative Agent.

Section 10.1. Appointment and Authorization of Administrative Agent . Each Lender hereby appoints Prospect Capital Corporation, a Maryland corporation, to act on its behalf as the Administrative Agent under the Loan Documents and authorizes the Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Section 10 are solely for the benefit of the Administrative Agent and the Lenders, and neither Borrower nor any other Loan Party shall have rights as a third‑party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” in this Agreement or in any other Loan Document (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Legal Requirements. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

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Section 10.2. Administrative Agent and Its Affiliates . The Administrative Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise or refrain from exercising such rights and powers as though it were not the Administrative Agent, and the Administrative Agent and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of banking, trust, financial advisory, or other business with any Loan Party or any Affiliate of any Loan Party as if it were not the Administrative Agent under the Loan Documents and without any duty to account therefor to the Lenders. The terms “Lender” and “Lenders” , unless otherwise expressly indicated or unless the context otherwise clearly requires, includes the Administrative Agent in its individual capacity as a Lender.

Section 10.3. Exculpatory Provisions . (a) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder and thereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent and its Related Parties:

(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;

(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or any Legal Requirement, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law, and the Administrative Agent shall in all cases be fully justified in failing or refusing to act hereunder or under any other Loan Document unless it first receives any further assurances of its indemnification from the Lenders that it may require, including prepayment of any related expenses and any other protection it requires against any and all costs, expense, and liability which may be incurred by it by reason of taking or continuing to take any such action; and

(iii) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.

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(b) Any instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 11.4), shall be binding upon all the Lenders. Neither the Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by the Administrative Agent (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 11.4), or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. In all cases in which the Loan Documents do not require the Administrative Agent to take specific action, the Administrative Agent shall be fully justified in using its discretion in failing to take or in taking any action thereunder. The Administrative Agent shall be entitled to assume that no Default or Event of Default exists, and shall be deemed not to have knowledge of any Default or Event of Default, unless and until notice describing such Default is given to the Administrative Agent in writing by the Borrowers or a Lender. If the Administrative Agent receives from any Loan Party a written notice of an Event of Default pursuant to Section 6.3, the Administrative Agent shall promptly give each of the Lenders written notice thereof.

(c) Neither the Administrative Agent nor any of its Related Parties shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, or any Credit Event, (ii) the contents of any certificate, report or other document delivered under this Agreement or any other Loan Documents or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness, genuineness, value, worth, or collectability of this Agreement, any other Loan Document or any other agreement, instrument, document or writing furnished in connection with any Loan Document or any Collateral, or the creation, perfection, or priority of any Lien purported to be created by this Agreement or any Collateral Documents, (v) the value or sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Section 3 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent; and the Administrative Agent makes no representation of any kind or character with respect to any such matter mentioned in this sentence.

Section 10.4. Reliance by Administrative Agent . The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may treat the payee of any Note or any Loan as the holder thereof until written notice of transfer shall have been filed with the Administrative Agent signed by such payee in form satisfactory to the Administrative Agent.

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Section 10.5. Delegation of Duties . The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub‑agents appointed by the Administrative Agent. The Administrative Agent and any such sub‑agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Section 10 shall apply to any such sub‑agent and to the Related Parties of the Administrative Agent and any such sub‑agent, and shall apply to their respective activities in connection with the syndication of the Facilities as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence, gross negligence, or misconduct of any sub‑agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub‑agents. All parties hereto acknowledge and agree that the Administrative Agent acted reasonably in selecting and appointing Fifth Third Bank as the Administrative Sub-Agent.

Section 10.6. Non‑Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

Section 10.7. Resignation of Administrative Agent and Successor Administrative Agent . (a) The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrowers. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrowers, to appoint a successor, which may be any Lender hereunder or any commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $200,000,000 and, so long as no Event of Default shall have occurred and be continuing, such appointment shall be within the Borrowers’ consent (which shall not be unreasonably withheld). If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date” ), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

(b) Intentionally omitted.

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(c) With effect from the Resignation Effective Date (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) except for any indemnity payments owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the retiring Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Section 10 and Section 11.5 shall continue in effect for the benefit of such retiring Administrative Agent, its sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.

Section 10.8. Appointment of Administrative Sub-Agent . Each party hereto (i) acknowledges the Administrative Agent, pursuant to Section 10.5, has appointed the Administrative Sub-Agent as the Administrative Agent’s sub-agent for purposes of performing the duties, responsibilities and functions of the Administrative Agent under Sections 2.5, 2.8, 2.9, 2.12, 6.1, 6.2, 6.3, 6.13 (at the request of the Administrative Agent), 11.1, 11.3(e) and 11.11 and, and (ii) agrees that such appointment is subject to the terms and conditions of the Sub-Agency Agreement and further agrees that all references to the “Administrative Agent” in such Sections (and in the defined terms “Administrative Questionnaire”, “Federal Funds Rate”, “Recipient”, and “Withholding Agent” as used in such Sections) mean the Administrative Sub-Agent until notified otherwise in writing by the Administrative Agent.

Section 10.9. Intentionally Omitted .

Section 10.10. No Other Duties; Designation of Additional Agents . Anything herein to the contrary notwithstanding, no Bookrunner or Arranger listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder. The Administrative Agent shall have the continuing right, for purposes hereof, at any time and from time to time to designate one or more of the Lenders (and/or its or their Affiliates) as “syndication agents,” “documentation agents,” “arrangers” or other designations for purposes hereto, but such designation shall have no substantive effect, and such Lenders and their Affiliates shall have no additional powers, duties or responsibilities as a result thereof; provided that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise given to the Administrative Agent pursuant to this Section 10 and (ii) subject to Section 11.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

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Section 10.11. Authorization to Enter into, and Enforcement of, the Collateral Documents and Guaranty . The Lenders irrevocably authorize the Administrative Agent to execute and deliver the Collateral Documents and each Guaranty Agreement on their behalf and on behalf of each of their Affiliates and to take such action and exercise such powers under the Collateral Documents and each Guaranty Agreement as the Administrative Agent considers appropriate; provided that the Administrative Agent shall not amend the Collateral Documents or any Guaranty Agreement unless such amendment is agreed to in writing by the Required Lenders. Each Lender acknowledges and agrees that it will be bound by the terms and conditions of the Collateral Documents and each Guaranty Agreement upon the execution and delivery thereof by the Administrative Agent. Except as otherwise specifically provided for herein, no Lender (or its Affiliates) other than the Administrative Agent shall have the right to institute any suit, action or proceeding in equity or at law for the foreclosure or other realization upon any Collateral or for the execution of any trust or power in respect of the Collateral or any Guaranty Agreement or for the appointment of a receiver or for the enforcement of any other remedy under the Collateral Documents or any Guaranty Agreement (and no Lender shall contest, protest or object to any of the foregoing by the Administrative Agent); it being understood and intended that no one or more of the Lenders (or their Affiliates) shall have any right in any manner whatsoever to affect, disturb or prejudice the Lien of the Administrative Agent (or any security trustee therefor) under the Collateral Documents by its or their action or to enforce any right thereunder, and that all proceedings at law or in equity shall be instituted, had, and maintained by the Administrative Agent (or its security trustee) in the manner provided for in the relevant Collateral Documents for the benefit of the Lenders and their Affiliates. Without limiting the foregoing, the Administrative Agent shall conduct in a commercially reasonable manner (consistent with the requirements of Section 9-610 of the Uniform Commercial Code) any sale or other disposition of Collateral that does not occur during a proceeding under any Debtor Relief Law.

Section 10.12. Administrative Agent May File Proofs of Claim . In case of the pendency of any proceeding under any Debtor Relief Law, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrowers) shall be entitled and empowered (but not obligated), by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, and the Administrative Agent under Sections 2.13 and 11.5(a)) allowed in such judicial proceeding; and

(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.13 and 11.5(a). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. Each Lender shall retain its rights to vote its claim in such proceeding, and to object to, support, accept or reject any plan or reorganization or similar dispositive plan of restructuring.

Section 10.13. Collateral and Guaranty Matters . (a) The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion,

(i) to release any Lien on any Property granted to or held by the Administrative Agent under any Loan Document (A) upon the Facility Termination Date, (B) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or disposition permitted under the Loan Documents, or (C) subject to Section 11.4, if approved, authorized or ratified in writing by the Required Lenders;

(ii) to subordinate any Lien on any Property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.2(h) in accordance with the Intercreditor Agreement;

(iii) to release any Guarantor from its obligations under any Loan Documents (A) if such Person ceases to be a Loan Party as a result of a transaction permitted under the Loan Documents or (B) except after the occurrence and during the continuance of a Default or Event of Default, if such Person is a Foreign Subsidiary and the guaranty by (or pledge of any of the assets or Ownership Interests (other than up to sixty‑five percent (65%) of the voting Ownership Interests and one hundred percent (100%) of the non‑voting Ownership Interests of a First Tier Foreign Subsidiary) of) such Foreign Subsidiary results in a material adverse tax consequence for the Borrowers or results in a violation of applicable Legal Requirements; and

(iv) to reduce or limit the amount of the Indebtedness secured by any particular item of Collateral to an amount not less than the estimated value thereof to the extent necessary to reduce mortgage registry, filing and similar tax.

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Upon request by the Administrative Agent at any time, each Lender will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of Property, or to release any Guarantor from its obligations under its Guaranty Agreement pursuant to this Section 10.13. In each case as specified in this Section 10.13, the Administrative Agent will, at the Borrowers’ expense and upon delivery by the Borrowers’ Agent to the Administrative Agent of an officer’s certificate from a Responsible Officer certifying that such release complies with this Section 10.13, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Second Lien Guaranty and Security Agreement, in each case, in accordance with the terms of the Loan Documents and this Section 10.13. In the case of any such sale, transfer or disposal of any property constituting Collateral in a transaction constituting an Asset Disposition permitted pursuant to Section 7.5, the Liens created by any of the Collateral Documents on such property shall be automatically released without need for further action by any person.

(b) The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.

Section 10.14. Credit Bidding . (a) Subject to the Intercreditor Agreement, the Administrative Agent, on behalf of itself and the Lenders, shall have the right to credit bid and purchase for the benefit of the Administrative Agent and the Lenders all or any portion of Collateral at any sale thereof conducted by the Administrative Agent under the provisions of the UCC, including pursuant to Sections 9‑610 or 9‑620 of the UCC, at any sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363 thereof, or a sale under a plan of reorganization, or at any other sale or foreclosure conducted by the Administrative Agent (whether by judicial action or otherwise) in accordance with applicable Legal Requirements.

(b) Each Lender hereby agrees that, except as otherwise provided in any Loan Documents or with the written consent of the Administrative Agent and the Required Lenders, it will not take any enforcement action, accelerate obligations under any Loan Documents, or exercise any right that it might otherwise have under applicable Legal Requirements to credit bid at foreclosure sales, UCC sales or other similar dispositions of Collateral

Section 11. Miscellaneous.

Section 11.1. Taxes . (a) FATCA . For purposes of this Section 11.1, the term “applicable law” includes FATCA.

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

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

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

(e) Indemnification by the Lenders . Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Loan Parties have not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.11(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 11.1(e).

(f) Evidence of Payments . As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 11.1, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

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(g) Status of Lenders . (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 11.1(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii) Without limiting the generality of the foregoing,

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

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

(i) 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 any Loan Document, executed originals of IRS Form W‑8BEN or W‑8BEN‑E, as applicable, in each case in form and substance acceptable to the Administrative Agent, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W‑8BEN or W‑8BEN‑E, as applicable, in each case in form and substance acceptable to the Administrative Agent, 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;

(ii) executed originals of IRS Form W‑8ECI in each case in form and substance acceptable to the Administrative Agent;

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(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate in form and substance acceptable to the Administrative Agent representing 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) executed originals of IRS Form W‑8BEN or W-8BEN-E, as applicable, in each case in form and substance acceptable to the Administrative Agent; or

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

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

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

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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative 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 11.1 (including by the payment of additional amounts pursuant to this Section 11.1), 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 Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 11.1(h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 11.1(h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 11.1(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 had not been deducted, withheld, or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This Section 11.1(h) 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) Required Elections . In the event that either Borrower is classified as a partnership for federal income tax purposes, or any taxable years for which Sections 6621 through 6641 of the Code apply to either Borrower, the partnership representative shall, to the extent eligible, make the election under Section 6621(b) of the Code with respect to such Borrower and take any other action such as disclosures and notifications necessary to effectuate such election. If the election described in the preceding sentence is not available, to the extent applicable, the partnership representative shall make the election under Section 6626(a) of the Code with respect to such Borrower and take any other action such as filings, disclosures and notifications necessary to effectuate such election.

(j) Survival . Each party’s obligations under this Section 11.1 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

Section 11.2. Mitigation Obligations; Replacement of Lenders (a) Designation of a Different Lending Office . If any Lender requests compensation under Section 9.4, or requires the Borrowers to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 11.1, then such Lender shall (at the request of the Borrowers) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 9.4 or Section 11.1, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

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(b) Replacement of Lenders . If any Lender requests compensation under Section 9.4, or if the Borrowers are required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 11.1 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 11.2(a), or if any Lender is a Non‑Consenting Lender, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.11(b)), all of its interests, rights (other than its existing rights to payments pursuant to Section 9.4 or Section 11.1) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

(i) the Borrowers shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 11.11(b)(iv);

(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts);

(iii) in the case of any such assignment resulting from a claim for compensation under Section 9.4 or payments required to be made pursuant to Section 11.1 such assignment will result in a reduction in such compensation or payments thereafter;

(iv) such assignment does not conflict with applicable Legal Requirements; and

(v) in the case of any assignment resulting from a Lender becoming a Non‑Consenting Lender, the applicable Eligible Assignee shall have consented to the applicable amendment, waiver or consent.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.

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Section 11.3. Notices .

(a) Notices Generally . Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 11.3(b) and Section 11.3(c) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows:

If to the Borrowers:

Turning Point Brands, Inc.

5201 Interchange Way

Louisville, Kentucky 40229

Attention: General Counsel, c/o James Dobbins

Telephone No.: (502) 774‑9267

Facsimile No.: (502) 774‑9275

E‑mail: jdobbins@tpbi.com

With copies to:

Frost Brown Todd LLC

400 West Market Street

Suite 3200

Louisville, Kentucky 40202

Attention: John Egan

Telephone No.: (502) 568‑0224

Facsimile No.: (502) 581-1087

E‑mail: jegan@fbtlaw.com

If to the Administrative Agent:

Prospect Capital Corporation

10 East 40th Street, 42nd Floor

New York, New York 10016

Attention: General Counsel and David Moszer

Facsimile: (212) 443-9652

E-mail: fax@prospectstreet.com

pl@prospectstreet.com

pacct@prospectstreet.com

dmoszer@prospectstreet.com

grier@prospectstreet.com

jbarry@prospectstreet.com

With copies (which shall not constitute notice) to:

Proskauer Rose LLP

One International Place

Boston, Massachusetts 02110

Attention: Stephen A. Boyko

Facsimile: (617) 526-9899

E-mail sboyko@proskauer.com

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If to the Administrative Sub-Agent:

Fifth Third Bank

Fifth Third Center

38 Fountain Square Plaza

Cincinnati, Ohio 45263

Attention: Loan Syndications/Judy Huls

Telephone: (513) 534-4224

Facsimile: (513) 534-0875

Email: judy.huls@53.com

If to any Lender, to it at its address (or facsimile number) set forth in its Administrative Questionnaire.

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in Section 11.3(b) below, shall be effective as provided in Section 11.3(b).

(b) Electronic Communications . Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e‑mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant to Section 2.5 if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such respective Section by electronic communication. The Administrative Agent or the Borrowers may, in their discretion, agree to accept notices and other communications to them hereunder by electronic communications pursuant to procedures approved by them in writing; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e‑mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e‑mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e‑mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, in the case of each of clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or other communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.

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(c) Communications with Prospect as Administrative Agent. Notwithstanding anything to the contrary herein, all notices and other communications given to Prospect in its capacity as Administrative Agent shall be deemed to have been given (i) in the case of notices and other communications delivered by hand or overnight courier service, upon actual receipt thereof, (ii) in the case of notices and other communications delivered by certified or registered mail, upon actual receipt thereof, and (iii) in the case of notices and other communications delivered by telefacsimile, upon receipt by the sender of an acknowledgment or transmission report generated by the machine from which the telefacsimile was sent indicating that the telefacsimile was sent in its entirety to the recipient’s telefacsimile number; provided, however, that, in each case, if a notice or other communication would be deemed to have been given in accordance with the foregoing at any time other than during the recipient’s normal business hours on a Business Day for such recipient, such notice or other communication shall be deemed given on the next succeeding Business Day for such recipient; and provided, further, that no notice to Prospect in its capacity as Administrative Agent shall be effective until delivered by at least two, not one, of the methods described in clauses (i) through (iii) above.

(d) Change of Address, Etc. Any party hereto may change its address, email address or facsimile number for notices and other communications hereunder by notice to the Borrowers and the Administrative Agent, delivered in accordance with Section 11.3(a) and Section 11.3(c).

(e) Platform. (i) Each Loan Party agrees that the Administrative Agent may, but shall not be obligated to, make the Borrower Materials available to the Lenders by posting the Borrower Materials on the Platform.

(ii) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the accuracy or completeness of the Borrower Materials or the adequacy of the Platform, and expressly disclaim liability for errors or omissions in the Borrower Materials. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non‑infringement of third‑party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Borrower Materials or the Platform. In no event shall the Administrative Agent, the Arranger or any of their respective Related Parties (collectively, the “Agent Parties” ) have any liability to any Loan Party or any Subsidiary, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses of any kind (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of communications through the Internet (including the Platform).

(f) Non-Public Side Designation . Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Non-Public Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Legal Requirements, including United States Federal and state securities applicable Legal Requirements, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain Material Non‑Public Information with respect to Turning Point or its securities for purposes of United States Federal or state securities applicable Legal Requirements.

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Section 11.4. Amendments, Waivers and Consents . Except as set forth below or as specifically provided in any Loan Document, any term, covenant, agreement or condition of this Agreement or any of the other Loan Documents may be amended or waived by the Lenders, and any consent given by the Lenders, if, but only if, such amendment, waiver or consent is in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and delivered to the Administrative Agent and, in the case of an amendment, signed by the Borrowers; provided that no amendment, waiver or consent shall:

(a) increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.2 or Section 8.3) or the amount of Loans required to be made by any Lender, in any case, without the written consent of such Lender;

(b) waive, extend or postpone any date fixed by this Agreement or any other Loan Document for any payment (it being understood that a waiver of a mandatory prepayment under Section 2.8(b) shall only require the consent of the Required Lenders) of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby;

(c) reduce the principal of, or the rate of interest specified herein on, any Loan, or (subject to clauses (ii) and (iii) of the proviso set forth below in this paragraph) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby; provided that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrowers to pay interest at the rate set forth in Section 2.4(b) during the continuance of an Event of Default;

(d) change Section 11.13 or Section 2.9 in a manner that would alter the pro rata sharing of payments or order of application required thereby without the written consent of each Lender directly and adversely affected thereby;

(e) change Section 2.8(b)(vi) in a manner that would alter the order of application of amounts prepaid pursuant thereto without the written consent of each Lender directly and adversely affected thereby;

(f) except as otherwise permitted by this Section 11.4, change any provision of this Section 11.4 or reduce the percentages specified in the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender directly affected thereby;

(g) consent to the assignment or transfer by any Loan Party of such Loan Party’s rights and obligations under any Loan Document to which it is a party (except as permitted pursuant to Section 7.4), in each case, without the written consent of each Lender;

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(h) release (i) all of the Guarantors or (ii) Guarantors comprising substantially all of the credit support for the Obligations, in any case, from the Second Lien Guaranty and Security Agreement (other than as authorized in Section 10.11), without the written consent of each Lender;

(i) release all or substantially all of the Collateral or release any Collateral Document (other than as authorized in Section 10.11 or as otherwise specifically permitted or contemplated in this Agreement or the applicable Collateral Document) without the written consent of each Lender;

(j) Intentionally Omitted;

(k) Intentionally Omitted;

(l) amend, waive, or otherwise modify Section 7.9(b) in a manner that would permit either Borrower or its Subsidiaries to make any payment or prepayment on, or redeem or acquire for value (including (x) by way of depositing with any trustee with respect thereto money or securities before due for the purpose of paying when due and (y) at the maturity thereof) any Subordinated Debt, unsecured Indebtedness or Indebtedness secured by Liens that are junior to those securing the Secured Obligations, except those payments, refinancings, refundings, renewals, extensions and exchanges otherwise expressly permitted under Section 7.9(b), without the written consent of each Lender;

(m) amend or otherwise modify the definition of Material Event of Default without the written consent of each Lender;

(n) (i) amend, waive, or otherwise modify Section 11.11(b)(v) without the written consent of each Lender or (ii) amend or modify any other provision of this Agreement, including Section 11.11, in a manner that imposes additional restrictions on a Lender’s ability to assign its Loans or any of its rights and obligations under this Agreement without the written consent of each Lender directly and adversely affected thereby; or

(o) subordinate any Lender’s Loans or the Liens securing any Lender’s Loans to any other Indebtedness or Liens without the written consent of each Lender;

provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Arranger in addition to the Lenders required above, affect the rights or duties of the Arranger under this Agreement or any other Loan Document; (iii) the Administrative Agent Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto; and (iv) the Administrative Agent and the Borrowers shall be permitted to amend any provision of the Loan Documents (and such amendment shall become effective without any further action or consent of any other party to any Loan Document) if the Administrative Agent and the Borrowers shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any such provision.

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Notwithstanding anything in this Section 11.4 to the contrary, for so long as Prospect is a party hereto or to any other Loan Document, as Administrative Agent, and solely to the extent the signature of the Administrative Agent is required for the effectiveness of such modification, amendment, supplement or waiver, as applicable, neither this Agreement nor any other Loan Document may be modified, amended or supplemented, nor shall any term or provision of this Agreement or any other Loan Document be waived, except by a formal written instrument (and not by an email or series of emails) signed in blue ink by John F. Barry III, as Chief Executive Officer of Prospect, or M. Grier Eliasek, as Chief Operating Officer of Prospect, or the successor of either of them, or by Joseph A. Ferraro, as an Authorized Signatory of Prospect, in each case on behalf of Prospect, acting as Administrative Agent, and upon satisfaction of the conditions set forth in this Section 11.4; provided that, the delivery of such formal written instrument shall not be unreasonably delayed or withheld.

Section 11.5. Expenses; Indemnity .

(a) Costs and Expenses . The Borrowers shall, and shall cause the other Loan Parties to, jointly and severally, pay (i) all reasonable out-of-pocket expenses incurred by the Arranger, the Administrative Agent and their respective Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent) in connection with the syndication of the Credits, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent or any Lender) in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section 11.5, or (B) in connection with the Loans made hereunder, including all such out‑of‑pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans; provided that, in the case of clause (ii), in no event shall the Borrowers be responsible for the fees and expenses of more than one counsel for the Administrative Agent or more than one counsel for the Lenders, collectively, in each case, with respect to any occurrence, event or matter involving a loss, claim, damage or liability for which an indemnity is otherwise required hereunder and (iii) all reasonable costs, fees and expenses of one financial advisor retained by the Lenders, collectively, at any time after (x) an Event of Default under Section 8.1(a) or 8.1(b) has occurred and is continuing or (y) any other Default or Event of Default has occurred and has been continuing for a period of at least thirty (30) days.

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(b) Indemnification by the Borrowers . The Borrowers shall indemnify the Administrative Agent (and any sub‑agent thereof), the Arranger and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee” ) against, and hold each Indemnitee harmless from, and shall pay or reimburse any such Indemnitee for, any and all losses, claims (including any Environmental Claims and, for the avoidance of doubt, including costs related to orders or requirements of Governmental Authorities, investigation and response costs and consultant’s fees), penalties, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of counsel for the Indemnitees) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby (including the Transactions), (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by any Loan Party or any Subsidiary thereof, or any Environmental Claim related in any way to any Loan Party or any Subsidiary, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Loan Party or any Subsidiary thereof, and regardless of whether any Indemnitee is a party thereto, or (v) any claim (including any Environmental Claims), investigation, litigation or other proceeding (whether or not the Administrative Agent or any Lender is a party thereto) and the prosecution and defense thereof, arising out of or in any way connected with the Loans, this Agreement, any other Loan Document, or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby, including reasonable attorneys and consultant’s fees; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties or (y) result from a claim brought by either Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction; provided, further, that in no event shall such Borrower be responsible for the fees and expenses of more than (x) one counsel for the Administrative Agent and one counsel for the Arranger, or more than one counsel for the Lenders collectively, and in the case of any actual or perceived conflict of interest, additional counsel to the affected Person or group of Persons, and (y) if necessary, one local counsel in each relevant jurisdiction and special counsel and, in the case of any actual or perceived conflict of interest, additional local counsel and special counsel to the affected Person or group of Persons, in each case, with respect to any occurrence, event or matter involving a loss, claim, damage or liability for which an indemnity is otherwise required hereunder. This Section 11.5(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non‑Tax claim.

(c) Reimbursement by Lenders . To the extent that the Borrowers for any reason fail to indefeasibly pay any amount required under Section 11.5(a) or (b) to be paid by it to the Administrative Agent (or any sub‑agent thereof), or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub‑agent), or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time, or if the Total Credit Exposure has been reduced to zero, then based on such Lender’s share of the Total Credit Exposure immediately prior to such reduction) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided, that, the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub‑agent) or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub‑agent) in connection with such capacity. The obligations of the Lenders under this Section 11.5(c) are several and not joint. The Administrative Agent shall be entitled to offset amounts received for the account of a Lender under this Agreement against unpaid amounts due from such Lender to the Administrative Agent hereunder (whether as fundings of participations, indemnities or otherwise), but shall not be entitled to offset against amounts owed to the Administrative Agent by any Lender arising outside of this Agreement and the other Loan Documents).

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(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Legal Requirements, each Borrower and each other Loan Party shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee referred to in Section 11.5(b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

(e) Payments . All amounts due under this Section 11.5 shall be payable promptly after demand therefor.

(f) Survival . Each party’s obligations under this Section 11.5 shall survive the termination of the Loan Documents and the payment of the Obligations hereunder.

Section 11.6. Right of Setoff . If an Event of Default shall have occurred and be continuing, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Legal Requirements, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate, to or for the credit or the account of either Borrower or any other Loan Party against any and all of the obligations of such Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or their respective Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Borrower or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or obligated on such Indebtedness. The rights of each Lender and their respective Affiliates under this Section 11.6 are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to notify the Borrowers and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.

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Section 11.7. Governing Law; Jurisdiction, Etc.

(a) Governing Law . This Agreement and the other Loan Documents and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of New York for contracts made and to be performed wholly within the State of New York, without regard to principles of conflicts of laws requiring application of the law of any other jurisdiction.

(b) Submission to Jurisdiction . Each Borrower and each other Loan Party irrevocably and unconditionally agrees that it will not commence, and will not permit any Subsidiary to commence, any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Administrative Agent, any Lender, or any Related Party of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto in any forum other than the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by applicable Legal Requirements, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Notwithstanding anything to the contrary, nothing in this Agreement or in any other Loan Document shall affect any right that the Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against either Borrower or any other Loan Party or its properties in the courts of any jurisdiction.

(c) Waiver of Venue . Each Borrower and each other Loan Party irrevocably and unconditionally waives, to the fullest extent permitted by applicable Legal Requirements, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in Section 11.7(b). Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable Legal Requirements, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d) Service of Process . Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 11.3. Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable Legal Requirements.

Section 11.8. Waiver of Jury Trial . Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable Legal Requirements, any right it may have to a trial by jury in any legal proceeding directly or indirectly arising out of or relating to this Agreement or any other Loan Document or the transactions contemplated hereby or thereby (whether based on contract, tort or any other theory). Each party hereto (a) certifies that no representative, agent or attorney of any other person has represented, expressly or otherwise, that such other person would not, in the event of litigation, seek to enforce the foregoing waiver and (b) acknowledges that it and the other parties hereto have been induced to enter into this Agreement and the other Loan Documents by, among other things, the mutual waivers and certifications in this Section 11.8.

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Section 11.9. Reversal of Payments . To the extent any Loan Party makes a payment or payments to the Administrative Agent for the benefit of the Lenders or the Administrative Agent receives any payment or proceeds of the Collateral which payments or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any Debtor Relief Law, other applicable Legal Requirements or equitable cause, then, to the extent of such payment or proceeds repaid, the Obligations or part thereof intended to be satisfied shall be revived and continued in full force and effect as if such payment or proceeds had not been received by the Administrative Agent.

Section 11.10. Injunctive Relief . Each Borrower recognizes that, in the event it fails to perform, observe or discharge any of its obligations or liabilities under this Agreement, any remedy of law may prove to be inadequate relief to the Lenders. Therefore, each Borrower agrees that the Lenders, at the Lenders’ option, shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages.

Section 11.11. Successors and Assigns; Participations .

(a) Successors and Assigns Generally . The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except that neither the Borrowers nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder or thereunder without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 11.11(b), (ii) by way of participation in accordance with the provisions of Section 11.11(d) or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.11(e) (and any other attempted assignment or transfer by any party hereto or thereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 11.11(d) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Assignments by Lenders . Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that, in each case, with respect to any Credit, any such assignment shall be subject to the following conditions:

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(i) Minimum Amounts . (A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it (in each case with respect to any Credit) or contemporaneous assignments to related Approved Funds (determined after giving effect to such assignments) that equal at least the amount specified in Section 11.11(b)(i)(B) in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(B) in any case not described in Section 11.11(b)(i)(A), the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $1,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrowers otherwise consent (each such consent not to be unreasonably withheld or delayed); provided that the Borrowers shall be deemed to have given their consent five (5) Business Days after the date written notice thereof has been delivered to it by the assigning Lender (through the Administrative Agent) unless such consent is expressly refused by either Borrower prior to such fifth (5th) Business Day;

(ii) Proportionate Amounts . Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Credits on a non‑pro rata basis;

(iii) Required Consents . No consent shall be required for any assignment except to the extent required by Section 11.11(b)(i)(B) and, in addition:

(A) the consent of the Borrowers (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment, (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund or (z) the assignment is made in connection with the primary syndication of the Credit and during the period commencing on the Closing Date and ending on the date that is ninety (90) days following the Closing Date; provided that the Borrowers shall be deemed to have consented to any such assignment unless they shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof; and

(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (i) any unfunded Commitments with respect to the Loans if such assignment is to a Person that is not a Lender with a Commitment in respect of such Credit, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or (ii) any Loans to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund.

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(iv) Assignment and Assumption . The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 for each assignment; provided that (A) only one such fee will be payable in connection with simultaneous assignments to two or more related Approved Funds by a Lender and (B) the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.

(v) No Assignment to Certain Persons . No such assignment shall be made to Turning Point or any of its Subsidiaries or Affiliates.

(vi) No Assignment to Natural Persons . No such assignment shall be made to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person).

(vii) Intentionally Omitted.

(viii) Required Tax Forms. If the assignee is a Person who is not a Lender, the assignee shall deliver to the Administrative Agent the required tax forms set forth in Section 11.1(g) for such assignee, in form and substance acceptable to the Administrative Agent, prior to the effective date specified in the respective Assignment and Assumption.

Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 11.11(c), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 9.4, 11.1 and 11.5 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided that, the effective date specified in each Assignment and Assumption shall be no earlier than the date that the Administrative Agent receives a duly executed copy of such Assignment and Assumption and the other documents required hereby. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.11(d) (other than a purported assignment to a natural Person, either Borrower or either Borrower’s Subsidiaries or Affiliates, which shall be null and void).

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(c) Register . The Administrative Agent, acting solely for this purpose as a non‑fiduciary agent of the Borrowers, shall maintain a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of (and stated interest on) the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register” ). The entries in the Register shall be conclusive, absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by either Borrower and any Lender (but only to the extent of entries in the Register that are applicable to such Lender), at any reasonable time and from time to time upon reasonable prior notice.

(d) Participations . Any Lender may at any time, without the consent of, or notice to, the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated or the primary benefit of, a, natural Person, or either Borrower or either Borrower’s Subsidiaries or Affiliates) (each, a “Participant” ) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.5(c) with respect to any payments made by such Lender to its Participant(s).

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 11.4(a), (b), (c) or (d) that directly and adversely affects such Participant. The Borrowers agree that each Participant shall be entitled to the benefits of Sections 9.4 and 11.1 (subject to the requirements and limitations therein, including the requirements under Section 11.1(g) (it being understood that the documentation required under Section 11.1(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.11(b); provided that such Participant (A) agrees to be subject to the provisions of Section 11.2 as if it were an assignee under Section 11.11(b); and (B) shall not be entitled to receive any greater payment under Sections 9.4 or 11.1 with respect to any participation than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 11.2(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.6 as though it were a Lender; provided that such Participant agrees to be subject to Section 11.13 as though it were a Lender.

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Each Lender that sells a participation shall, acting solely for this purpose as a non‑fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest on) each Participant’s interest in the Loans or other obligations under the Loan Documents (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 or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103‑1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(e) Certain Pledges . Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve; 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.

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Section 11.12. Treatment of Certain Information; Confidentiality . Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates, joint venture partners or to funds that are managed by Affiliates of such Lender and to such Lender’s and such Persons’ Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by, or required to be disclosed to, any regulatory or similar authority purporting to have jurisdiction over such Person or its Related Parties (including any self‑regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable Legal Requirements or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with and at any time after the exercise of any remedies under this Agreement or under any other Loan Document, or any action or proceeding relating to this Agreement or any other Loan Document, or the enforcement of rights hereunder or thereunder, (f) subject to the following Persons to whom disclosure is made being informed of the confidential nature of such Information and instructed to keep such Information confidential, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrowers and its obligations, this Agreement or payments hereunder, (iii) to an investor or prospective investor in an Approved Fund that also agrees that Information shall be used solely for the purpose of evaluating an investment in such Approved Fund, (iv) to a trustee, collateral manager, servicer, backup servicer, noteholder or secured party in an Approved Fund in connection with the administration, servicing and reporting on the assets serving as collateral for an Approved Fund, or (v) to a nationally recognized rating agency that requires access to information regarding the Borrowers and their Subsidiaries, the Loans and the Loan Documents in connection with ratings issued with respect to an Approved Fund, (g) on a confidential basis to (i) any rating agency in connection with rating the Borrowers or their Subsidiaries or the Credits or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Credits, (h) with the consent of the Borrowers, (i) to Gold Sheets and other similar bank trade publications, such information to consist of deal terms and other information customarily found in such publications, (j) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section 11.12 or (ii) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates from a third party that is not, to such Person’s knowledge, subject to confidentiality obligations to the Borrowers, (k) to governmental regulatory authorities in connection with any regulatory examination of the Administrative Agent or any Lender or in accordance with the Administrative Agent’s or any Lender’s regulatory compliance policy if the Administrative Agent or such Lender deems necessary for the mitigation of claims by those authorities against the Administrative Agent or such Lender or any of its subsidiaries or affiliates, (l) to the extent that such information is independently developed by such Person, or (m) for purposes of establishing a “due diligence” defense. For purposes of this Section 11.12, “Information” means all information received from any Loan Party or any Subsidiary thereof relating to any Loan Party or any Subsidiary thereof or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a non‑confidential basis prior to disclosure by any Loan Party or any Subsidiary thereof; provided that, in the case of information received from a Loan Party or any Subsidiary thereof after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 11.12 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. Notwithstanding anything to the contrary in this Agreement, the Administrative Agent may disclose information concerning the terms and conditions of this Agreement and the other Loan Documents to loan syndication and pricing reporting services or in its marketing or promotional materials, with such information to consist of deal terms and other information customarily found in such publications or marketing or promotional materials and may otherwise use the name, logos, and other insignia of the Borrowers or the Loan Parties and the Commitments provided hereunder in any “tombstone” or other advertisements, on its website or in other marketing materials of the Administrative Agent.

Section 11.13. Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such Obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:

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(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii) the provisions of this Section 11.13 shall not be construed to apply to (x) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement, or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans, other than to any Loan Party (as to which the provisions of this Section 11.13 shall apply).

Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Legal Requirements, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation.

Section 11.14. Performance of Duties . Each of the Loan Party’s obligations under this Agreement and each of the other Loan Documents shall be performed by such Loan Party at its sole cost and expense.

Section 11.15. All Powers Coupled with Interest . All powers of attorney and other authorizations granted to the Lenders, the Administrative Agent and any Persons designated by the Administrative Agent or any Lender pursuant to any provisions of this Agreement or any of the other Loan Documents shall be deemed coupled with an interest and shall be irrevocable so long as any Credit is available and until the Facility Termination Date. All such powers of attorney shall be for security.

Section 11.16. Survival . (a) All representations and warranties set forth in Section 5 and all representations and warranties contained in any certificate or any of the Loan Documents (including any such representation or warranty made in or in connection with any amendment thereto) shall constitute representations and warranties made under this Agreement. All representations and warranties made under this Agreement shall be made or deemed to be made at and as of the Closing Date (except those that are expressly made as of a specific date), shall survive the Closing Date and shall not be waived by the execution and delivery of this Agreement, any investigation made by or on behalf of the Lenders or any borrowing hereunder.

(b) Notwithstanding any termination of this Agreement, the indemnities to which the Administrative Agent and the Lenders are entitled under the provisions of Section 9 and this Section 11 and any other provision of this Agreement and the other Loan Documents shall continue in full force and effect and shall protect the Administrative Agent and the Lenders against events arising after such termination as well as before.

Section 11.17. Titles and Captions . Titles and captions of Sections and subsections in, and the table of contents of, this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement.

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Section 11.18. Severability of Provisions . Any provision of this Agreement or any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remainder of such provision or the remaining provisions hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction.

Section 11.19. Counterparts; Integration; Effectiveness; Electronic Execution .

(a) Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent and/or the Arranger, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 3, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement.

(b) Electronic Execution of Assignments . The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper‑based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Legal Requirements, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

Section 11.20. Term of Agreement . This Agreement shall remain in effect from the Closing Date through and including the Facility Termination Date. No termination of this Agreement shall affect the rights and obligations of the parties hereto arising prior to such termination or in respect of any provision of this Agreement which survives such termination.

Section 11.21. USA Patriot Act . The Administrative Agent and each Lender hereby notifies the Borrowers that pursuant to the requirements of the Patriot Act, each of them is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow the Administrative Agent and such Lender to identify each Loan Party in accordance with the Patriot Act.

Section 11.22. Independent Effect of Covenants . The Borrowers expressly acknowledge and agree that each covenant contained in Sections 6 or 7 hereof shall be given independent effect. Accordingly, the Borrowers shall not engage in any transaction or other act otherwise permitted under any covenant contained in Sections 6 or 7 if, before or after giving effect to such transaction or act, the Borrowers shall or would be in breach of any other covenant contained in Sections 6 or 7.

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Section 11.23. Inconsistencies with Other Documents; Intercreditor Agreement . (a) Subject to Section 11.23(b), in the event there is a conflict or inconsistency between this Agreement and any other Loan Document, the terms of this Agreement shall control; provided that any provision of the Collateral Documents which imposes additional burdens on either Borrower or any of its Subsidiaries or further restricts the rights of either Borrower or any of its Subsidiaries or gives the Administrative Agent or Lenders additional rights shall not be deemed to be in conflict or inconsistent with this Agreement and shall be given full force and effect.

(b) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document: (i) the Liens granted to the Administrative Agent in favor of the Secured Parties pursuant to the Loan Documents and the exercise of any right related to any Collateral shall be subject, in each case, to the terms of the Intercreditor Agreement, (ii) in the event of any conflict between the express terms and provisions of this Agreement or any other Loan Document, on the one hand, and of the Intercreditor Agreement, on the other hand, the terms and provisions of the Intercreditor Agreement shall control, (iii) each Lender (A) authorizes the Administrative Agent to execute the Intercreditor Agreement on behalf of such Lender, (B) agrees to be bound by the terms of the Intercreditor Agreement and agrees that any action taken by the Administrative Agent under the Intercreditor Agreement shall be binding upon such Lender and (C) consents to the subordination of the Liens provided for in the Intercreditor Agreement (to the extent set forth therein) and the other provisions of the Intercreditor Agreement and (iv) the Administrative Agent shall not amend the Intercreditor Agreement unless such amendment is agreed to in writing by the Required Lenders, in accordance with the terms of the Intercreditor Agreement.

Section 11.24. Lender’s Obligations Several . The obligations of the Lenders hereunder are several and not joint. Nothing contained in this Agreement and no action taken by the Lenders pursuant hereto shall be deemed to constitute the Lenders a partnership, association, joint venture or other entity.

Section 11.25. Excess Interest . Notwithstanding any provision to the contrary contained herein or in any other Loan Document, no such provision shall require the payment or permit the collection of any amount of interest in excess of the maximum amount of interest permitted by applicable Legal Requirements to be charged for the use or detention, or the forbearance in the collection, of all or any portion of the Loans or other obligations outstanding under this Agreement or any other Loan Document ( “Excess Interest” ). If any Excess Interest is provided for, or is adjudicated to be provided for, herein or in any other Loan Document, then in such event (a) the provisions of this Section shall govern and control, (b) no Loan Party nor any endorser shall be obligated to pay any Excess Interest, (c) any Excess Interest that the Administrative Agent or any Lender may have received hereunder shall, at the option of the Administrative Agent, be (i) applied as a credit against the then outstanding principal amount of Obligations hereunder and accrued and unpaid interest thereon (not to exceed the maximum amount permitted by applicable Legal Requirements), (ii) refunded to the Borrowers, or (iii) any combination of the foregoing, (d) the interest rate payable hereunder or under any other Loan Document shall be automatically subject to reduction to the maximum lawful contract rate allowed under applicable usury laws (the “Maximum Rate” ), and this Agreement and the other Loan Documents shall be deemed to have been, and shall be, reformed and modified to reflect such reduction in the relevant interest rate, and (e) no Loan Party nor any endorser shall have any action against the Administrative Agent or any Lender for any Damages whatsoever arising out of the payment or collection of any Excess Interest. Notwithstanding the foregoing, if for any period of time interest on any of the Borrowers’ Obligations is calculated at the Maximum Rate rather than the applicable rate under this Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of interest payable on the Borrowers’ Obligations shall remain at the Maximum Rate until the Lenders have received the amount of interest which such Lenders would have received during such period on the Borrowers’ Obligations had the rate of interest not been limited to the Maximum Rate during such period.

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Section 11.26. Construction . The parties acknowledge and agree that the Loan Documents shall not be construed more favorably in favor of any party hereto based upon which party drafted the same, it being acknowledged that all parties hereto contributed substantially to the negotiation of the Loan Documents. The provisions of this Agreement relating to Subsidiaries and to Guarantors, respectively, shall apply only during such times as either Borrower has one or more Subsidiaries and as there are one or more Guarantors, respectively. Nothing contained herein shall be deemed or construed to permit any act or omission which is prohibited by the terms of any Collateral Document, the covenants and agreements contained herein being in addition to and not in substitution for the covenants and agreements contained in the Collateral Documents.

Section 11.27. Subordination . Each Loan Party (a “Subordinating Loan Party” ) hereby subordinates the payment of all obligations and indebtedness of any other Loan Party owing to it, whether now existing or hereafter arising, including, but not limited to, any obligation of any such other Loan Party to the Subordinating Loan Party as subrogee of the Secured Parties or resulting from such Subordinating Loan Party’s performance under this Agreement, to the indefeasible payment in full in cash of all Secured Obligations. If the Secured Parties so request, any such obligation or indebtedness of any such other Loan Party to the Subordinating Loan Party shall be enforced and performance received by the Subordinating Loan Party as trustee for the Secured Parties and the proceeds thereof shall be paid over to the Secured Parties on account of the Secured Obligations, but without reducing or affecting in any manner the liability of the Subordinating Loan Party under this Agreement. Without limitation of the foregoing, so long as no Default has occurred and is continuing, the Loan Parties may make and receive payments with respect to intercompany Indebtedness; provided , that in the event that any Loan Party receives any payment of any intercompany Indebtedness at a time when such payment is prohibited by this Section, such payment shall be held by such Loan Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the Administrative Agent.

Section 11.28. Acknowledgement and Consent to Bail‑In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

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

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

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

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

(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

Section 11.29. Press Releases, etc. Each Loan Party consents to the publication by Administrative Agent or any Lender of any press releases, tombstones, advertising or other promotional materials relating to the financing transactions contemplated by this Agreement using such Loan Party’s name, product photographs, logo or trademark. Notwithstanding the foregoing, the Administrative Agent or such Lender shall provide a draft of any such press release, advertising or other promotional material to the Borrowers prior to the publication thereof.

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Section 11.30. Joint and Several Obligations. E ach Borrower hereby unconditionally and irrevocably agrees it is jointly and severally liable to the Administrative Agent and the Lenders for the Obligations arising under this Agreement and the Loan Documents, including those amounts due under Sections 9.4 and 11.5. In furtherance thereof, each Borrower agrees that wherever in this Agreement it is provided that a Borrower is liable for a payment, such obligation is the joint and several obligation of each Borrower. Each Borrower acknowledges and agrees that its joint and several liability under this Agreement and the Loan Documents is absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever by the Administrative Agent or the Lenders. Each Borrower’s liability for the Obligations arising under this Agreement and the Loan Documents shall not in any manner be impaired or affected by who receives or uses the proceeds of the Loans or other extensions of credit or for what purpose the proceeds are used, and each Borrower waives notice of borrowing requests issued by, and loans made to, other Borrowers. Each Borrower hereby agrees not to exercise or enforce any right of exoneration, contribution, reimbursement, recourse or subrogation available to such Borrower against any party liable for payment under this Agreement and the Loan Documents unless and until the Facility Termination Date. Each Borrower’s joint and several liability hereunder with respect to the Obligations shall, to the fullest extent permitted by applicable law, be the unconditional liability of such Borrower irrespective of (i) the validity, enforceability, avoidance or subordination of any of the Obligations or of any other document evidencing all or any part of the Obligations, (ii) the absence of any attempt to collect any of the Obligations from any other Loan Party or any Collateral or other security therefor, or the absence of any other action to enforce the same, (iii) the amendment, modification, waiver, consent, extension, forbearance or granting of any indulgence by Administrative Agent or any Lender with respect to any provision of any instrument executed by any other Loan Party evidencing or securing the payment of any of the Obligations, or any other agreement now or hereafter executed by any other Loan Party and delivered to Administrative Agent or any Lender, (iv) the failure by Administrative Agent to take any steps to perfect or maintain the perfected status of its security interest in or Lien upon, or to preserve its rights to, any of the Collateral or other security for the payment or performance of any of the Obligations or Administrative Agent’s release of any Collateral or of its Liens upon any Collateral, (v) the release or compromise, in whole or in part, of the liability of any other Loan Party for the payment of any of the Obligations, (vi) any increase in the amount of the Obligations beyond any limits imposed herein or in the amount of any interest, fees or other charges payable in connection therewith, in each case, if consented to by any other Borrower, or any decrease in the same, or (vii) any other circumstance that might constitute a legal or equitable discharge or defense of any Loan Party. After the occurrence and during the continuance of any Event of Default, Administrative Agent may proceed directly and at once, without notice to either Borrower, against any or all of Loan Parties to collect and recover all or any part of the Obligations, without first proceeding against any other Loan Party or against any Collateral or other security for the payment or performance of any of the Obligations, and each Borrower waives any provision that might otherwise require Administrative Agent under applicable law to pursue or exhaust its remedies against any Collateral or other Loan Party before pursuing such Borrower or its Property. Each Borrower consents and agrees that Administrative Agent shall be under no obligation to marshal any assets in favor of any Loan Party or against or in payment of any or all of the Obligations.

[Signature Pages to Follow]

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This Agreement is entered into between us for the uses and purposes hereinabove set forth as of the date first above written.

	“Borrowers”

	Turning Point Brands, Inc.

	By	/s/ Mark A. Stegeman
		Name: Mark A. Stegeman
		Title: Senior Vice President and Chief Financial Officer

	North Atlantic Trading Company, Inc.

	By	/s/ Mark A. Stegeman
		Name: Mark A. Stegeman
		Title: Senior Vice President and Chief Financial Officer

	“Guarantors”

	Intrepid Brands, LLC
	NATC Holding Company, Inc.
	National Tobacco Company, L.P.
	National Tobacco Finance Corporation
	North Atlantic Operating Company, Inc.
	North Atlantic Cigarette Company, Inc.
	RBJ Sales, Inc.
	Smoke Free Technologies Inc.
	Stoker, Inc.
	Turning Point Brands, LLC

	By	/s/ Mark A. Stegeman
		Name: Mark A. Stegeman
		Title: Senior Vice President and Chief Financial Officer

[Signature Page to Second Lien Credit Agreement]

“Agents”

Prospect Capital Corporation, a Maryland corporation, as Administrative Agent

By	/s/ M. Grier Eliasek
	Name	M. Grier Eliasek
	Title	President and Chief Operating Officer

[Signature Page to Second Lien Credit Agreement]

Fifth Third Bank, an Ohio banking corporation, as Administrative Sub-Agent

By	/s/ Michael Guenthner
	Name	Michael Guenthner
	Title	Senior Vice President

[Signature Page to Second Lien Credit Agreement]

“Lenders”

Prospect Capital Corporation, a Maryland corporation, as a Lender

By	/s/ M. Grier Eliasek
	Name	M. Grier Eliasek
	Title	President and Chief Operating Officer

[Signature Page to Second Lien Credit Agreement]

Fifth Third Bank, as a Lender

By	/s/ Michael Guenthner
	Name	Michael Guenthner
	Title	Senior Vice President

[Signature Page to Second Lien Credit Agreement]

STONEHENGE OPPORTUNITY FUND IV, LP,
a Delaware limited partnership, as a Lender
By: Stonehenge Equity Partners IV, LLC
	Its: General Partner
	By: Stonehenge Partners Corp.
	Its: Manager
	By:	/s/ Robert M. Eversole
		Robert M. Eversole, Principal

[Signature Page to Second Lien Credit Agreement]

	Summit Partners Credit Fund, L.P.

	By: Summit Partners Credit GP, L.P.
	Its: General Partner


	By:	/s/ James Freeland
	Name:	James Freeland
	Title:	Authorized Signatory



	Summit Partners Credit Fund A-1, L.P.

	By: Summit Partners Credit A-1 GP, L.P.
	Its: General Partner


	By:	/s/ James Freeland
	Name:	James Freeland
	Title:	Authorized Signatory



	Summit Investors I, LLC

	By: Summit Investors Management, LLC
	Its: Manager

	By:	/s/ James Freeland
	Name:	James Freeland
	Title:	Authorized Signatory



	Summit Investors I (UK), L.P.

	By: Summit Investors Management, LLC
	Its: General Partner


	By:	/s/ James Freeland
	Name:	James Freeland
	Title:	Authorized Signatory

[Signature Page to Second Lien Credit Agreement]

	Summit Partners Credit Offshore Intermediate Fund, L.P.

	By: Summit Partners Credit GP, L.P.
	Its: General Partner


	By:	/s/ James Freeland
	Name:	James Freeland
	Title:	Authorized Signatory



	Summit Partners Credit Fund II, L.P.

	By: Summit Partners Credit II, L.P.
	Its: General Partner


	By:	/s/ James Freeland
	Name:	James Freeland
	Title:	Authorized Signatory



	Summit Partners Credit Fund B-2, L.P.

	By: Summit Partners Credit B-2, L.P.
	Its: General Partner


	By:	/s/ James Freeland
	Name:	James Freeland
	Title:	Authorized Signatory



	Summit Partners Credit Fund A-2, L.P.

	By: Summit Partners Credit A-2, L.P.
	Its: General Partner


	By:	/s/ James Freeland
	Name:	James Freeland
	Title:	Authorized Signatory

[Signature Page to Second Lien Credit Agreement]

	Summit Partners Credit Offshore Intermediate Fund II, L.P.

	By: Summit Partners Credit II, L.P.
	Its: General Partner


	By:	/s/ James Freeland
	Name:	James Freeland
	Title:	Authorized Signatory


	Summit Investors Credit II, LLC

	By: Summit Investors Management, LLC
	Its: Manager

	By:	/s/ James Freeland
	Name:	James Freeland
	Title:	Authorized Signatory



	Summit Investors Credit II (UK), L.P.

	By: Summit Investors Management, LLC
	Its: General Partner

	By:	/s/ James Freeland
	Name:	James Freeland
	Title:	Authorized Signatory

[Signature Page to Second Lien Credit Agreement]

Exhibit 10.4

Execution Version

Second Lien Guaranty and Security Agreement

This Second Lien Guaranty and Security Agreement (this “Agreement” ), dated as of February 17, 2017, among the Persons listed on the signature pages hereof as “Grantors” and those additional entities that hereafter become parties hereto by executing the form of Joinder attached hereto as Annex 1 (each, a “Grantor” and collectively, the “Grantors” ), and Prospect Capital Corporation , a Maryland corporation, in its capacity as agent for the Lenders and the other Secured Parties (in such capacity, together with its successors and assigns in such capacity, “Administrative Agent” ).

Witnesseth:

Whereas , pursuant to that certain Second Lien Credit Agreement of even date herewith (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the “Credit Agreement” ) by and among Turning Point Brands, Inc., a Delaware corporation ( “Turning Point” ), and North Atlantic Trading Company, Inc., a Delaware corporation ( “NATC” ; Turning Point and NATC are each individually referred to herein as a “Borrower” and are collectively referred to herein as the “Borrowers” ), the Grantors party thereto, the various institutions from time to time party thereto as Lenders (each of such Lenders, together with its successors and assigns, is referred to hereinafter as a “Lender” ), Administrative Agent, and Fifth Third Bank, as Administrative Sub-Agent, the Lenders have agreed to make certain financial accommodations available to the Borrowers from time to time pursuant to the terms and conditions thereof;

Whereas , Administrative Agent has agreed to act as agent for the benefit of the Lenders and the other Secured Parties in connection with the transactions contemplated by the Credit Agreement and this Agreement;

Whereas , in order to induce the Lenders to enter into the Credit Agreement and the other Loan Documents, and to induce the Lenders to make financial accommodations to the Borrowers as provided for in the Credit Agreement and the other Loan Documents, (a) each Grantor has agreed to guaranty the Secured Obligations, and (b) each Grantor has agreed to grant to Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and to the Collateral in order to secure the prompt and complete payment, observance and performance of, among other things, the Secured Obligations; and

Whereas , each Grantor (other than Turning Point) is a Domestic Subsidiary of Turning Point and will benefit by virtue of the financial accommodations extended to the Borrowers by the Secured Parties.

Now, therefore , for and in consideration of the recitals made above and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

Section 1. Definitions; Construction.

(a) All initially capitalized terms used herein (including in the preamble and recitals hereof) without definition shall have the meanings ascribed thereto in the Credit Agreement (including Section 1.1 thereto) or, if not defined in the Credit Agreement, the meanings ascribed thereto in the Intercreditor Agreement. Any capitalized terms used in this Agreement that are defined in the UCC shall be construed and defined as set forth in the UCC unless otherwise defined herein, in the Credit Agreement or in the Intercreditor Agreement; provided that, to the extent that the UCC is used to define any term used herein and if such term is defined differently in different Articles of the UCC, the definition of such term contained in Article 9 of the UCC shall govern. In addition to those terms defined elsewhere in this Agreement, as used in this Agreement, the following terms shall have the following meanings:

“Account” means an account (as that term is defined in Article 9 of the UCC).

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

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

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

“Books” means books and records (including each Grantor’s Records indicating, summarizing, or evidencing such Grantor’s assets (including the Collateral) or liabilities, each Grantor’s Records relating to such Grantor’s business operations or financial condition, and each Grantor’s goods or General Intangibles related to such information).

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

“Cash Equivalents” has the meaning specified therefor in the Credit Agreement.

“Chattel Paper” means chattel paper (as that term is defined in the UCC), and includes tangible chattel paper and electronic chattel paper.

“Collateral” has the meaning specified therefor in Section 3.

“Commercial Tort Claims” means commercial tort claims (as that term is defined in the UCC), and includes those commercial tort claims listed on Schedule 1.

“Control Agreement” means a control agreement, in form and substance reasonably satisfactory to Administrative Agent, executed and delivered by the applicable Borrower or Grantor, Administrative Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account).

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“Copyrights” means, with respect to any Grantor, all of such Grantor’s right, title and interest in and to all works of authorship and all intellectual property rights therein, all United States and foreign copyrights (whether or not the underlying works of authorship have been published), including copyrights in software and databases, all designs (including all industrial designs, “Protected Designs” within the meaning of 17 U.S.C. § 1301 et. seq. and Community designs), and all “Mask Works” (as defined in 17 U.S.C. § 901 of the U.S. Copyright Act), whether registered or unregistered, and with respect to any and all of the foregoing: (a) all registrations and applications for registration thereof including the registrations and applications listed on Schedule 2, (b) all extensions, renewals, and restorations thereof, (c) all rights to sue or otherwise recover for any past, present and future infringement or other violation thereof, (d) all Proceeds of the foregoing, including license fees, royalties, income, payments, claims, damages and proceeds of suit now or hereafter due and/or payable with respect thereto, and (e) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

“Copyright Security Agreement” means each Copyright Security Agreement executed and delivered by Grantors, or any of them, and Administrative Agent, in substantially the form of Exhibit A.

“Credit Agreement” has the meaning specified therefor in the recitals to this Agreement.

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

“Equipment” means (a) equipment (as that term is defined in the UCC) (b) all machinery, equipment, furnishings and Fixtures, and (c) any and all additions, substitutions, and replacements of any of the foregoing, wherever located, together with all attachments, components, parts, equipment, and accessories installed thereon or affixed thereto (in each case, regardless of whether characterized as equipment under the UCC).

“Event of Default” has the meaning specified therefor in the Credit Agreement.

“Excluded Deposit Accounts” has the meaning specified therefor in the Credit Agreement.

“Excluded Property” has the meaning specified therefor in Credit Agreement.

“Excluded Securities Accounts” means, collectively, Securities Accounts of Grantors with Property therein with an aggregate value that, when aggregated with Property in all other Securities Accounts for which a Control Agreement has not been obtained, do not exceed $200,000 at any time.

“Excluded Swap Obligations” has the meaning specified therefor in the Credit Agreement.

“Farm Products” means farm products (as that term is defined in the UCC).

“Fixtures” means fixtures (as that term is defined in the UCC).

“Foreclosed Grantor” has the meaning specified therefor in Section 2(j)(iv).

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“General Intangibles” means general intangibles (as that term is defined in the UCC), and includes payment intangibles, software, contract rights, rights to payment, rights under Hedge Agreements (including the right to receive payment on account of the termination (voluntarily or involuntarily) of such Hedge Agreements), rights arising under common law, statutes, or regulations, choses or things in action, goodwill, Intellectual Property, Intellectual Property Licenses, purchase orders, customer lists, monies due or recoverable from pension funds, route lists, rights to payment and other rights under any royalty or licensing agreements, including Intellectual Property Licenses, infringement claims, pension plan refunds, pension plan refund claims, insurance premium rebates, tax refunds, and tax refund claims, interests in a partnership or limited liability company which do not constitute a security under Article 8 of the UCC, and any other personal property other than Commercial Tort Claims, money, Accounts, Chattel Paper, Deposit Accounts, goods, Investment Property, Negotiable Collateral, and oil, gas, or other minerals before extraction.

“Grantor” and “Grantors” have the respective meanings specified therefor in the preamble to this Agreement.

“Guarantor” has the meaning specified therefor in the Credit Agreement.

“Guaranty” means the guaranty set forth in Section 2 hereof.

“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of any Debtor Relief Law or, any assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.

“Insurance” means (a) all insurance policies covering any or all of the Collateral (regardless of whether the Administrative Agent is the loss payee thereof) and (b) any key man life insurance policies.

“Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under the United States, multinational or foreign laws, or otherwise, including, any and all Patents, Copyrights, Trademarks, trade secrets, know-how, inventions (whether or not patentable), algorithms, software programs (including source code and object code), processes, product designs, industrial designs, blueprints, drawings, data, customer lists, URLs and domain names, specifications, documentations, reports, catalogs, literature, and any other forms of technology or proprietary information of any kind, including all rights therein and all applications for registration or registrations thereof.

“Intellectual Property Licenses” means, with respect to any Person (the “Specified Party” ), (a) any licenses or other similar rights provided to the Specified Party in or with respect to Intellectual Property owned or controlled by any other Person, and (b) any licenses or other similar rights provided to any other Person in or with respect to Intellectual Property owned or controlled by the Specified Party, in each case, including (i) any software license agreements (other than license agreements for commercially available off-the-shelf software that is generally available to the public which have been licensed to a Grantor pursuant to end-user licenses), (ii) the license agreements listed on Schedule 3, and (iii) the right to use any of the licenses or other similar rights described in this definition in connection with the enforcement of the Secured Parties’ rights under the Loan Documents.

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“Intercreditor Agreement” has the meaning specified therefor in the Credit Agreement.

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

“Investment Property” means (a) any and all investment property (as that term is defined in the UCC), and (b) any and all of the following (regardless of whether classified as investment property under the UCC): all Securities, Security Accounts, Security Entitlements, Commodity Contracts, Commodity Accounts, Pledged Interests, Pledged Operating Agreements, and Pledged Partnership Agreements.

“Joinder” means each Joinder to this Agreement executed and delivered by Administrative Agent and each of the other parties listed on the signature pages thereto, in substantially the form of Annex 1.

“Lender” and “Lenders” have the respective meanings specified therefor in the recitals to this Agreement.

“Loan Documents” has the meaning specified therefor in the Credit Agreement.

“Material Intellectual Property” means any Intellectual Property included in the Collateral that is material to the business of any Grantor or is otherwise of material value.

“Negotiable Collateral” means Letters of Credit, Letter-of-Credit Rights, Instruments, Promissory Notes, Drafts and Documents (as each such term is defined in the UCC).

“Obligations” has the meaning specified therefor in the Credit Agreement.

“Ownership Interests” has the meaning specified therefor in the Credit Agreement.

“Patents” means, with respect to any Grantor, all of such Grantor’s right, title and interest in and to all patentable inventions and designs, all United States, foreign, and multinational patents, certificates of invention, and similar industrial property rights, and applications for any of the foregoing, including (a) each patent and patent application listed on Schedule 4, (b) all reissues, substitutes, divisions, continuations, continuations-in-part, extensions, renewals, and reexaminations thereof, (c) all inventions and improvements described and claimed therein, (d) all rights to sue or otherwise recover for any past, present and future infringement or other violation thereof, (e) all Proceeds of the foregoing, including license fees, royalties, income, payments, claims, damages, proceeds of suit and other payments now or hereafter due and/or payable with respect thereto, and (f) all other rights accruing thereunder or pertaining thereto throughout the world.

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“Patent Security Agreement” means each Patent Security Agreement executed and delivered by Grantors, or any of them, and Administrative Agent, in substantially the form of Exhibit B.

“Permitted Liens” has the meaning specified therefor in the Credit Agreement.

“Permitted Prior Liens” has the meaning specified therefor in the Credit Agreement.

“Person” has the meaning specified therefor in the Credit Agreement.

“Pledged Companies” means each Person listed on Schedule 5 as a “Pledged Company”, together with each other Person, all or a portion of whose Ownership Interests are acquired or otherwise owned by a Grantor after the Closing Date.

“Pledged Interests” means all of each Grantor’s right, title and interest in and to all of the Ownership Interests now owned or hereafter acquired by such Grantor, regardless of class or designation, including in each of the Pledged Companies, and all substitutions therefor and replacements thereof, all proceeds thereof and all rights relating thereto, also including any certificates representing the Ownership Interests, the right to receive any certificates representing any of the Ownership Interests, all warrants, options, share appreciation rights and other rights, contractual or otherwise, in respect thereof and the right to receive all dividends, distributions of income, profits, surplus, or other compensation by way of income or liquidating distributions, in cash or in kind, all voting and management rights and all cash, instruments, and other property from time to time received, receivable, or otherwise distributed in respect of or in addition to, in substitution of, on account of, or in exchange for any or all of the foregoing.

“Pledged Interests Addendum” means a Pledged Interests Addendum substantially in the form of Exhibit C.

“Pledged Notes” has the meaning specified therefor in Section 6(n).

“Pledged Operating Agreements” means all of each Grantor’s rights, powers, and remedies under the limited liability company operating agreements of each of the Pledged Companies that are limited liability companies.

“Pledged Partnership Agreements” means all of each Grantor’s rights, powers, and remedies under the partnership agreements of each of the Pledged Companies that are partnerships.

“Proceeds” has the meaning specified therefor in Section 3.

“PTO” means the United States Patent and Trademark Office.

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

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“Secured Obligations” means the Obligations (including all Secured Party Expenses regardless of whether such expenses accrue before or after the commencement of an Insolvency Proceeding, and regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), whether now existing or hereafter arising, due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired (including all interest, costs, fees (including fees provided for in the Administrative Agent Fee Letter), premiums and charges after the commencement of an Insolvency Proceeding against any Grantor, whether or not such interest, costs, fees, premiums, and charges would be allowed or allowable in whole or in part as a claim against such Grantor in any such proceeding); provided, however, that, with respect to any Guarantor, Secured Obligations Guaranteed by such Guarantor shall exclude all Excluded Swap Obligations.

“Secured Parties” has the meaning specified therefor in the Credit Agreement.

“Secured Party Expenses” means all (a) reasonable costs or expenses (including taxes and insurance premiums) required to be paid by either Borrower or its Subsidiaries under any of the Loan Documents that are paid, advanced, or incurred by the Secured Parties, (b) reasonable documented out-of-pocket fees or charges paid or incurred by Administrative Agent in connection with the Secured Parties’ transactions with either Borrower or its Subsidiaries under any of the Loan Documents, including, photocopying, notarization, couriers and messengers, telecommunication, public record searches, filing fees, recording fees, publication, real estate surveys, real estate title policies and endorsements, and environmental audits, (c) Administrative Agent’s customary fees and charges imposed or incurred in connection with any background checks or OFAC/PEP searches related to either Borrower or its Subsidiaries, (d) Administrative Agent’s customary fees and charges (as adjusted from time to time) with respect to the disbursement of funds (or the receipt of funds) to or for the account of either Borrower (whether by wire transfer or otherwise), together with any out-of-pocket costs and expenses incurred in connection therewith, (e) reasonable documented customary charges imposed or incurred by Administrative Agent resulting from the dishonor of checks payable by or to any Loan Party, (f) reasonable documented out-of-pocket costs and expenses paid or incurred by the Secured Parties to correct any default or enforce any provision of the Loan Documents, or during the continuance of an Event of Default, in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale is consummated, (g) Administrative Agent’s reasonable costs and expenses (including reasonable documented attorney’s fees and expenses) relative to third party claims or any other lawsuit or adverse proceeding paid or incurred, whether in enforcing or defending the Loan Documents or otherwise in connection with the transactions contemplated by the Loan Documents, Administrative Agent’s Liens in and to the Collateral, or the Secured Parties’ relationship with either Borrower or any of its Subsidiaries, (h) Administrative Agent’s reasonable documented costs and expenses (including reasonable documented attorney’s fees and due diligence expenses) incurred in advising, structuring, drafting, reviewing, administering (including travel, meals, and lodging), syndicating (including reasonable costs and expenses relative to CUSIP, DXSyndicate™, SyndTrak or other communication costs incurred in connection with a syndication of the Credit), or amending, waiving, or modifying the Loan Documents, and (i) Administrative Agent’s and each Lender’s reasonable documented costs and expenses (including reasonable documented attorneys, accountants, consultants, and other advisors fees and expenses) incurred in terminating, enforcing (including attorneys, accountants, consultants, and other advisors fees and expenses incurred in connection with a “workout,” a “restructuring,” or an Insolvency Proceeding concerning either Borrower or any of its Subsidiaries or in exercising rights or remedies under the Loan Documents), or defending the Loan Documents, irrespective of whether a lawsuit or other adverse proceeding is brought, or in taking any enforcement action or any remedial action with respect to the Collateral; provided that, in no event shall the Grantors be responsible for the fees and expenses of more than one counsel for Administrative Agent or more than one counsel for the Lenders, collectively, in each case, with respect to any occurrence, event or matter involving the matters referred to in this clause (i).

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

“Securities Act” means the Securities Act of 1933, as amended.

“Security Interest” has the meaning specified therefor in Section 3.

“Supporting Obligations” means supporting obligations (as such term is defined in the UCC), and includes letters of credit and guaranties issued in support of Accounts, Chattel Paper, documents, General Intangibles, instruments or Investment Property.

“Trademarks” means, with respect to any Grantor, all of such Grantor’s right, title and interest in and to all domestic, foreign and multinational trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade dress, trade styles, logos, Internet domain names, other indicia of origin or source identification, and general intangibles of a like nature, whether registered or unregistered, and, with respect to any and all of the foregoing, (a) all registrations and applications for registration thereof including the registrations and applications listed on Schedule 6, (b) all extensions and renewals thereof, (c) all of the goodwill of the business connected with the use of and symbolized by any of the foregoing, (d) all rights to sue or otherwise recover for any past, present and future infringement, dilution, or other violation thereof, (e) all Proceeds of the foregoing, including license fees, royalties, income, payments, claims, damages, proceeds of suit and other payments now or hereafter due and/or payable with respect thereto, and (f) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

“Trademark Security Agreement” means each Trademark Security Agreement executed and delivered by Grantors, or any of them, and Administrative Agent, in substantially the form of Exhibit D.

“UCC” means the New York Uniform Commercial Code, as in effect from time to time; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, priority, or remedies with respect to Administrative Agent’s Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies.

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“URL” means “uniform resource locator,” an internet web address.

(b) Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Section, subsection, clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Agreement to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein or in the Credit Agreement). The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties. Any reference herein to the satisfaction, repayment, or payment in full of the Secured Obligations shall have the same meaning as set forth in Section 11.20 of the Credit Agreement as if each reference therein to Obligations was a reference to Secured Obligations.

Section 2. Guaranty.

(a) In recognition of the direct and indirect benefits to be received by Guarantors from the proceeds of the Loans and by virtue of the financial accommodations to be made to the Borrowers, each of the Guarantors, jointly and severally, hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as a surety the full and prompt payment by each other Guarantor, each Borrower and any other Loan Party, when due, whether upon maturity, acceleration, or otherwise, of all of the Secured Obligations. If any or all of the Obligations constituting Secured Obligations becomes due and payable, each of the Guarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Administrative Agent, for the benefit of the Secured Parties, together with any and all reasonable expenses (including Secured Party Expenses) that may be incurred by Administrative Agent or any other Secured Party in demanding, enforcing, or collecting any of the Secured Obligations (including the enforcement of any collateral for such Secured Obligations or any collateral for the obligations of the Guarantors under this Guaranty). If claim is ever made upon Administrative Agent or any other Secured Party for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Secured Obligations and any of Administrative Agent or any other Secured Party repays all or part of said amount by reason of (i) any judgment, decree, or order of any court or administrative body having jurisdiction over such payee or any of its property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including either Borrower or any Guarantor), then and in each such event, each of the Guarantors agrees that any such judgment, decree, order, settlement, or compromise shall be binding upon the Guarantors, notwithstanding any revocation (or purported revocation) of this Guaranty or other instrument evidencing any liability of any Grantor, and the Guarantors shall be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.

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(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Secured Obligations to Administrative Agent, for the benefit of the Secured Parties, whether or not due or payable by any Loan Party upon the occurrence of any of the events specified in Section 8.1(h) or (i) of the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Administrative Agent, for the benefit of the Secured Parties, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States. Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all Secured Obligations (including interest, reasonable fees, costs and expenses) that would be owed by any other obligor on the Secured Obligations but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding involving such other obligor because it is the intention of the Guarantors, the Administrative Agent and the Secured Parties that the Secured Obligations which are guaranteed by the Guarantors pursuant hereto should be determined without regard to any rule of law or order which may relieve either Borrower or any other Guarantor or Loan Party of any portion of such Secured Obligations.

(c) Notwithstanding any other provision hereof, each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each other Secured Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the Secured Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of the United States Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law to the extent applicable to this Guaranty and the Secured Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Administrative Agent, the other Secured Parties and the Guarantors hereby irrevocably agree that the Secured Obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Secured Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance after giving full effect to the liability under such guaranty set forth in Section 2 hereof and its related contribution rights. To the fullest extent permitted by applicable law, this Section 2(c) shall be for the benefit solely of creditors and representatives of creditors of each Guarantor and not for the benefit of such Guarantor or the holders of any Ownership Interest in such Guarantor.

(d) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Secured Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Administrative Agent or any other Secured Party on account of the Obligations which Administrative Agent or any other Secured Party repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, (iv) any action or inaction by Administrative Agent or any other Secured Party, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.

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(e) Each Guarantor shall be liable under its guaranty set forth in this Section 2, without any limitation as to amount, for all present and future Secured Obligations, including under any transactions continuing, compromising, extending, modifying, releasing, or renewing the Secured Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or increasing the outstanding amount of the Loans or other Secured Obligations, whether or not any such increase is committed, contemplated or provided for by the Loan Documents on the date hereof, or creating new or additional Secured Obligations after prior Secured Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Secured Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Administrative Agent, (ii) no such revocation shall apply to any Secured Obligations in existence on the date of receipt by Administrative Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Secured Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any Secured Party in existence on the date of such revocation, (iv) no payment by any Guarantor, either Borrower, or from any other source, prior to the date of Administrative Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by either Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Secured Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Administrative Agent (for the benefit of the Secured Parties) and its successors, transferees, or assigns.

(f) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.

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(g) Each of the Guarantors authorizes Administrative Agent and the other Secured Parties without notice or demand, and without affecting or impairing its liability hereunder, from time to time to:

(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Secured Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Secured Obligations as so changed, extended, renewed, or altered;

(ii) take and hold security for the payment of the Secured Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure any of the Secured Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;

(iii) exercise or refrain from exercising any rights against any Grantor;

(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other obligors;

(v) settle or compromise any of the Secured Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;

(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Administrative Agent or any other Secured Party regardless of what liability or liabilities of such Grantor remain unpaid;

(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify, or supplement this Agreement, any other Loan Document, or any of such other instruments or agreements; or

(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Guaranty.

(h) It is not necessary for Administrative Agent or any other Secured Party to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Secured Obligations made or created in reliance upon the professed exercise of such powers shall be Secured Obligations hereunder.

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(i) Each Guarantor jointly and severally guarantees that the Secured Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation, or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Secured Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:

(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;

(ii) the validity, perfection, non-perfection or lapse in perfection, priority or avoidance of any security interest or lien, the release of any or all collateral securing, or purporting to secure, the Secured Obligations or any other impairment of such collateral;

(iii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any renewal, extension or acceleration of or any increase in the Secured Obligations resulting from the extension of additional credit;

(iv) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Secured Obligations;

(v) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Administrative Agent or any other Secured Party;

(vi) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Secured Obligations or any security therefor;

(vii) any failure or omission to assert or enforce, or agreement or election not to assert or enforce, delay in enforcement, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under any Loan Document, at law, in equity or otherwise) with respect to the Secured Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Secured Obligations;

(viii) any exercise of remedies with respect to any security for the Secured Obligations (including any collateral, including the Collateral, securing or purporting to secure any of the Secured Obligations) at such time and in such order and in such manner as the Administrative Agent and the Secured Parties may decide and whether or not every aspect thereof is commercially reasonable and whether or not such action constitutes an election of remedies;

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(ix) any right or defense arising by reason of any claim or defense based upon an election of remedies by any Secured Party including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties, and without limiting the generality of the foregoing or any other provisions hereof, each Guarantor hereby expressly waives any and all benefits which might otherwise be available to such Guarantor under applicable law;

(x) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of any Grantor and any corresponding restructuring of the Secured Obligations; or

(xi) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor or any other guarantor or surety (other than payment of the Secured Obligations to the extent of such payment)

(j) Waivers

(i) Each of the Guarantors waives any right (except as shall be required by applicable statute and cannot be waived) to require Administrative Agent or any other Secured Party to (A) proceed against any other Grantor or any other Person, (B) proceed against or exhaust any security held from any other Grantor or any other Person, (C) protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any other Grantor, any other Person, or any collateral, or (D) pursue any other remedy in any Secured Party’s power whatsoever. Each of the Guarantors waives any defense based on or arising out of any defense of any Grantor or any other Person, other than payment of the Secured Obligations to the extent of such payment, based on or arising out of the disability of any Grantor or any other Person, or the validity, legality, or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Grantor other than payment of the Obligations to the extent of such payment. As and to the extent permitted under the Loan Documents, Administrative Agent may, at the election of the Required Lenders, foreclose upon any Collateral held by Administrative Agent by one or more judicial or nonjudicial sales or other dispositions, whether or not every aspect of any such sale is commercially reasonable or otherwise fails to comply with applicable law or may exercise any other right or remedy Administrative Agent or any other Secured Party may have against any Grantor or any other Person, or any security, in each case, without affecting or impairing in any way the liability of any of the Guarantors hereunder except to the extent the Secured Obligations have been paid and performed.

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(ii) Each of the Guarantors waives all diligence, presentments, demands for performance, protests and notices, including notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, and notices of the existence, creation, or incurring of new or additional Obligations or other financial accommodations. Each of the Guarantors waives notice of any Default or Event of Default under any of the Loan Documents. Each of the Guarantors assumes all responsibility for, and has adequate means of, being and keeping itself informed of each Grantor’s financial condition and assets and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope, and extent of the risks which each of the Guarantors assumes and incurs hereunder, and agrees that neither Administrative Agent nor any of the other Secured Parties shall have any duty to advise any of the Guarantors of information known to them regarding such circumstances or risks.

(iii) To the fullest extent permitted by applicable law, each Guarantor hereby waives: (A) any right to assert against any Secured Party, any defense (legal or equitable), set-off, counterclaim, or claim which each Guarantor may now or at any time hereafter have against either Borrower or any other Guarantor or Loan Party; (B) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Secured Obligations or any security therefor; (C) any right or defense arising by reason of any claim or defense based upon an election of remedies by any Secured Party including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against either Borrower or other guarantors or sureties; and (D) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement thereof, and any act which shall defer or delay the operation of any statute of limitations applicable to the Secured Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to such Guarantor’s liability hereunder.

(iv) No Guarantor will exercise any rights that it may now or hereafter acquire against any Grantor or any other Guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this Guaranty, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Administrative Agent or any other Secured Party against any Grantor or any other Guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Grantor or any other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until all of the Secured Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and all of the Commitments have been terminated. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence, such amount shall be held in trust for the benefit of Administrative Agent, for the benefit of the Secured Parties, and shall forthwith be paid to Administrative Agent to be credited and applied to the Secured Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Credit Agreement, or to be held as Collateral for any Secured Obligations or other amounts payable under this Guaranty thereafter arising. Notwithstanding anything to the contrary contained in this Guaranty, no Guarantor may exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and may not proceed or seek recourse against or with respect to any property or asset of, any other Grantor (the “Foreclosed Grantor” ), including after payment in full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Ownership Interests of such Foreclosed Grantor whether pursuant to this Agreement or otherwise.

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(v) The obligations of the Guarantors under this Agreement and the other Loan Documents, including their liability for the Secured Obligations and the enforceability of the security interests granted thereby, are not contingent upon the validity, legality, enforceability, collectability or sufficiency of any right of reimbursement, contribution or subrogation arising under this Section 2(j) or otherwise. The invalidity, insufficiency, unenforceability or uncollectability of any such right shall not in any respect diminish, affect or impair any such obligation or any other claim, interest, right or remedy at any time held by the Administrative Agent or any Secured Party against any Guarantor or its property. The Administrative Agent and the Secured Parties make no representations or warranties in respect of any such right and shall have no duty to assure, protect, enforce or ensure any such right or otherwise relating to any such right.

(vi) Each of the Guarantors represents, warrants, and agrees that each of the waivers set forth above is made with full knowledge of its significance and consequences and that if any of such waivers are determined to be contrary to any applicable law or public policy, such waivers shall be effective to the maximum extent permitted by law.

(k) Any Indebtedness of either Borrower or any other Guarantor or Loan Party now or hereafter held by any other Guarantor (the “Obligee Guarantor” ) whether as original creditor, assignee, or by way of subrogation, restitution or otherwise, is hereby subordinated in right of payment to the Secured Obligations, and any such Indebtedness collected or received by the Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust for the Administrative Agent on behalf of the Secured Parties and shall forthwith be paid over to the Administrative Agent for the benefit of the Secured Parties to be credited and applied against the Secured Obligations in accordance with the terms of the Credit Agreement or to be held as Collateral for any Secured Obligations, but without affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any other provision hereof.

(l) Until the payment in full of the Secured Obligations, no Guarantor shall, without the prior written consent of the Administrative Agent, commence or join with any other person in commencing any Insolvency Proceeding of or against either Borrower or any other Guarantor or Loan Party. The obligations of the Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or terminated by any case or Insolvency Proceeding, voluntary or involuntary, involving either Borrower or any other Guarantor or Loan Party or by any defense which either Borrower or any other Guarantor or Loan Party may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding. To the fullest extent permitted by law, the Guarantors will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person to pay the Administrative Agent, or allow the claim of the Administrative Agent in respect of, any interest, fees, costs, expenses or other Secured Obligations accruing or arising after the date on which such case or proceeding is commenced.

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(m) Intentionally omitted.

(n) If all of the Ownership Interests of any Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of (including by merger or consolidation) in accordance with the terms and conditions of the Loan Documents to a Person that is not an Affiliate of either Borrower or any Guarantor, the guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall automatically be discharged and released without any further action by the Administrative Agent, any Secured Party or other Person effective as of the time of such sale or disposition.

Section 3. Grant of Security.

Each Grantor hereby unconditionally grants, assigns and pledges to Administrative Agent, for the benefit of each Secured Party, to secure the Secured Obligations, a Lien on and continuing security interest (hereinafter referred to as the “Security Interest” ) in all of such Grantor’s right, title, and interest in and to all personal property and other assets, whether now owned, existing or hereafter acquired or arising from time to time, including without limitation the following property of such Grantor, wherever located (the “Collateral” ), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations:

(a)

all of such Grantor’s Accounts;

(b)

all of such Grantor’s Books;

(c)

all of such Grantor’s Chattel Paper;

(d)

all of such Grantor’s Commercial Tort Claims now or hereafter described on Schedule 1;

(e)

all of such Grantor’s Deposit Accounts;

(f)

all of such Grantor’s Equipment;

(g)

all of such Grantor’s Farm Products;

(h)

all of such Grantor’s Fixtures;

(i)

all of such Grantor’s General Intangibles;

(j)

all of such Grantor’s Insurance;

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(k)

all of such Grantor’s Instruments;

(l)

all of such Grantor’s Inventory;

(m)

all of such Grantor’s Investment Property;

(n)

all of such Grantor’s Intellectual Property and Intellectual Property Licenses;

(o)

all of such Grantor’s Letters of Credit and Letter of Credit Rights;

(p)

all of such Grantor’s Negotiable Collateral (including all of such Grantor’s Pledged Notes);

(q)

all of such Grantor’s Pledged Interests (including all of such Grantor’s Pledged Operating Agreements and Pledged Partnership Agreements);

(r)

all of such Grantor’s Securities Accounts;

(s)

all of such Grantor’s Supporting Obligations;

(t)

all of such Grantor’s money, Cash Equivalents, or other assets of such Grantor that now or hereafter come into the possession, custody, or control of Administrative Agent (or its agent or designee) or any other Secured Party;

(u)

all of such Grantor’s Goods and other property not otherwise described above; and

(v)

all of the proceeds (as such term is defined in the UCC), and products, whether tangible or intangible, of any of the foregoing, including proceeds of insurance or Commercial Tort Claims covering or relating to any or all of the foregoing, and all collateral security and guaranties given by any Person with respect to the foregoing, and any and all Accounts, Books, Chattel Paper, Deposit Accounts, Equipment, Fixtures, General Intangibles, Inventory, Investment Property, Intellectual Property, Negotiable Collateral, Pledged Interests, Securities Accounts, Supporting Obligations, money, or other tangible or intangible property resulting from the sale, lease, license, exchange, collection, or other disposition of any of the foregoing, the proceeds of any award in condemnation with respect to any of the foregoing, any rebates or refunds, whether for taxes or otherwise, and all proceeds of any such proceeds, or any portion thereof or interest therein, and the proceeds thereof, and all proceeds of any loss of, damage to, or destruction of the above, whether insured or not insured, and, to the extent not otherwise included, any indemnity, warranty, or guaranty payable by reason of loss or damage to, or otherwise with respect to any of the foregoing (the “Proceeds”). Without limiting the generality of the foregoing, the term “Proceeds” includes whatever is receivable or received when Investment Property or proceeds are sold, exchanged, collected, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes proceeds of any indemnity or guaranty payable to any Grantor or Administrative Agent from time to time with respect to any of the Investment Property.

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Notwithstanding anything contained in this Agreement to the contrary, (i) the term “Collateral” shall not include any Excluded Property and (ii) until an Event of Default has occurred and is continuing under the Credit Agreement or any other Loan Document and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on vehicles or other Goods which are subject to a certificate of title law need not be perfected if the total value of such property at any one time not so perfected does not exceed $100,000 in the aggregate.

Section 4. Security for Secured Obligations.

The Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Administrative Agent, the Secured Parties or any of them, but for the fact that they are unenforceable or not allowable (in whole or in part) as a claim in an Insolvency Proceeding involving any Grantor due to the existence of such Insolvency Proceeding.

Section 5. Grantors Remain Liable.

Anything herein to the contrary notwithstanding, (a) each of the Grantors shall remain liable under the contracts and agreements included in the Collateral, including the Pledged Operating Agreements and the Pledged Partnership Agreements, to perform all of the duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by Administrative Agent or any other Secured Party of any of the rights hereunder shall not release any Grantor from any of its duties or obligations under such contracts and agreements included in the Collateral, and (c) none of the Secured Parties shall have any obligation or liability under such contracts and agreements included in the Collateral by reason of this Agreement, nor shall any of the Secured Parties be obligated to perform any of the obligations or duties of any Grantors thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. So long as no Event of Default shall occur and be continuing, neither Administrative Agent nor any other Secured Party shall interfere with the quiet use, possession and enjoyment of the Collateral for the purpose of conducting the ordinary course of their respective businesses, except as otherwise provided in, and subject to and upon the terms of, this Agreement, the Credit Agreement, or any other Loan Document. Without limiting the generality of the foregoing, it is the intention of the parties hereto that record and beneficial ownership of the Pledged Interests, including all voting, consensual, dividend, and distribution rights, shall remain in the applicable Grantor unless an Event of Default has occurred and is continuing, as described more fully in Section 16.

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Section 6. Representations and Warranties.

In order to induce Administrative Agent to enter into this Agreement for the benefit of the Secured Parties, each Grantor makes the following representations and warranties to the Secured Parties which shall be true, correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), as of the Closing Date and such representations and warranties shall survive the execution and delivery of this Agreement:

(a) The representations and warranties set forth in Section 5 of the Credit Agreement as they relate to such Grantor or to the Loan Documents to which such Grantor is a party, each of which is hereby incorporated herein by reference, are true and correct, in all material respects, except for representations and warranties that are qualified as to “materiality”, “Material Adverse Effect” or similar language, in which case such representations and warranties are true and correct (after giving effect to any such qualification therein) in all respects as of such date, in each case unless expressly stated to relate to a specific earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date, and the Secured Parties shall be entitled to rely on each of such representations and warranties as if they were fully set forth herein; provided that each reference in each such representation and warranty to each Borrower’s knowledge shall, for the purposes of this Section 6(a), be deemed to be a reference to such Grantor’s knowledge.

(b) The name (within the meaning of Section 9-503 of the UCC) and jurisdiction of organization of each Grantor and each of its Subsidiaries is set forth on Schedule 7 (as such Schedule may be updated from time to time to reflect changes resulting from transactions permitted under the Loan Documents). Each Grantor is organized solely under the law of the jurisdiction so specified and has not filed any certificates of domestication, transfer or continuance in any other jurisdiction. Unless otherwise stated on Schedule 7, such Grantor is not a transmitting utility as defined in Section 9-102(a)(80) of the UCC.

(c) The chief executive office of each Grantor and each of its Subsidiaries is located at the address indicated on Schedule 7 (as such Schedule may be updated from time to time to reflect changes resulting from transactions permitted under the Loan Documents).

(d) Each Grantor’s and each of its Subsidiaries’ tax identification numbers and organizational identification numbers, if any, are identified on Schedule 7 (as such Schedule may be updated from time to time to reflect changes resulting from transactions permitted under the Loan Documents).

(e) As of the Closing Date, no Grantor and no Subsidiary of a Grantor holds any Commercial Tort Claims that exceed $500,000 in amount, except as set forth on Schedule 1.

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(f) As of the Closing Date, no Grantor is a beneficiary or assignee under any letter of credit other than the letters of credit described on Schedule 10.

(g) As of the Closing Date, (i) Schedule 2 provides a complete and correct list of all registered Copyrights owned by any Grantor, all applications for registration of Copyrights owned by any Grantor, and all other Copyrights owned by any Grantor and constituting Material Intellectual Property; (ii) Schedule 3 provides a complete and correct list of all Intellectual Property Licenses entered into by any Grantor pursuant to which (A) any Grantor has provided any license or other rights in Intellectual Property owned or controlled by such Grantor to any other Person (other than non-exclusive software licenses granted in the ordinary course of business) or (B) any Person has granted to any Grantor any license or other rights in Material Intellectual Property, including any Intellectual Property that is incorporated in any Inventory, software, or other product marketed, sold, licensed, or distributed by such Grantor; (iii) Schedule 4 provides a complete and correct list of all Patents owned by any Grantor and all applications for Patents owned by any Grantor; and (iv) Schedule 6 provides a complete and correct list of all registered Trademarks owned by any Grantor, all applications for registration of Trademarks owned by any Grantor, and all other Trademarks owned by any Grantor constituting Material Intellectual Property.

(h) (i) Except for those matters which would not reasonably be expected to have a Material Adverse Effect, no action or proceeding is pending, or, to the knowledge of such Grantor, threatened, alleging that such Grantor, or the conduct of such Grantor’s business, infringes, misappropriates, dilutes, or otherwise violates the Intellectual Property of any other Person. To each Grantor’s knowledge, no Person has infringed, misappropriated, diluted or otherwise violated or is currently infringing, misappropriating, diluting or otherwise violating any Intellectual Property rights owned by such Grantor, in each case, that either individually or in the aggregate would reasonably be expected to result in a Material Adverse Effect.

(ii) As of the Closing Date, to each Grantor’s knowledge, all registered Copyrights, registered Trademarks, and issued Patents that currently constitute Material Intellectual Property are valid, subsisting and enforceable and in compliance with all Legal Requirements, filings, and payments and other actions that are required to maintain such Intellectual Property in full force and effect.

(iii) As of the Closing Date, to each Grantor’s knowledge, all Copyrights owned by such Grantor have been registered with the United States Copyright Office or, where appropriate, any foreign counterpart.

(iv) As of the Closing Date, to each Grantor’s knowledge, such Grantor has been using appropriate statutory notice of registration in connection with its use of registered Trademarks, appropriate notice of its trademark rights in common law Trademarks, proper marking practices in connection with its Patents, and appropriate notice of copyright in connection with the publication of its Copyrights.

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(v) Except as set forth on Schedule 2, 4, or 6, as applicable, as of the Closing Date such Grantor has not made a previous assignment, sale, transfer, exclusive license, or similar arrangement constituting a present or future assignment, sale, transfer, exclusive license or similar arrangement of any property that currently constitutes Material Intellectual Property that has not been terminated or released.

(vi) Except for those matters which would not reasonably be expected to have a Material Adverse Effect, no holding, decision, ruling, or judgment has been rendered in any action or proceeding before any court or administrative authority challenging the validity, enforceability, or scope of, or such Grantor’s right to register, own or use, any Material Intellectual Property of such Grantor or such Grantor’s ownership interest therein, and no such action or proceeding is pending or, to the best of such Grantor’s knowledge, threatened.

(vii) Except as would not reasonably be expected to have a Material Adverse Effect, each Grantor has taken commercially reasonable steps to maintain the confidentiality of and otherwise protect and enforce its rights in all trade secrets owned by such Grantor that constitute Material Intellectual Property. Except as would not reasonably be expected to have a Material Adverse Effect, none of the trade secrets of such Grantor has been used, divulged, disclosed or misappropriated to the detriment of such Grantor for the benefit of any other Person.

(i) This Agreement creates a valid security interest in the Collateral of each Grantor, to the extent a security interest therein can be created under the UCC, securing the payment of the Secured Obligations. Except to the extent a security interest in the Collateral cannot be perfected by the filing of a financing statement under the UCC, all filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken or will have been taken upon the filing of financing statements listing each applicable Grantor, as a debtor, and Administrative Agent, as secured party, in the jurisdictions listed next to such Grantor’s name on Schedule 9. Upon the making of such filings, Administrative Agent shall have a first priority perfected security interest (subject to Permitted Prior Liens) in the Collateral of each Grantor to the extent such security interest can be perfected by the filing of a financing statement. Upon filing of any Copyright Security Agreement with the United States Copyright Office, filing of any Patent Security Agreement and any Trademark Security Agreement with the PTO, and the filing of appropriate financing statements in the jurisdictions listed on Schedule 9, all action necessary or desirable to protect and perfect the Security Interest in and on each Grantor’s Patents, Trademarks, or Copyrights has been taken and such perfected Security Interest is enforceable as such as against any and all creditors of and purchasers from any Grantor. As of the Closing Date, all action by any Grantor necessary to protect and perfect such security interest on each item of Collateral has been duly taken. Without limiting the foregoing, each Grantor has pursuant to Section 7: (i) established the Administrative Agent’s “control” (within the meanings of Sections 8-106 and 9-106 of the UCC) over any portion of the Investment Property constituting Certificated Securities, Uncertificated Securities, Securities Accounts, Securities Entitlements or Commodity Accounts pursuant to Sections 7(d) and 7(e), (ii) established the Administrative Agent’s “control” (within the meaning of Section 9-104 of the UCC) over all Deposit Accounts (other than Excluded Deposit Accounts), (iii) established the Administrative Agent’s “control” (within the meaning of Section 9‑107 of the UCC) over all Letter of Credit Rights pursuant to Section 7(f) hereof, (iv) established the Administrative Agent’s control (within the meaning of Section 9-105 of the UCC) over all Electronic Chattel Paper pursuant to Section 7(c) hereof and (v) established the Administrative Agent’s “control” (within the meaning of Section 16 of the Uniform Electronic Transactions Act as in effect in the applicable jurisdiction (the “UETA” )) over all “transferable records” (as defined in UETA).

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(j) Such Grantor owns each item of the Collateral free and clear of any and all Liens or claims, including liens arising as a result of such Grantor becoming bound (as a result of merger or otherwise) as Grantor under a security agreement entered into by another Person, except with respect to Permitted Liens. No financing statement, mortgage or other public notice with respect to all or any part of the Collateral is on file or of record in any public office, except such as have been filed in favor of the Administrative Agent, for the benefit of the Secured Parties, pursuant to this Agreement or as are permitted by the Credit Agreement.

(k) Any Inventory now or hereafter produced by any Grantor included in the Collateral has been and will be produced in compliance with the requirements of the Fair Labor Standards Act, as amended.

(l) (i) As of the Closing Date, Schedule 5 hereto sets forth all of the Pledged Interests owned by any Grantor and such Pledged Interests constitute the percentage of issued and outstanding shares of stock, percentage of membership interest or percentage of partnership interests of the respective issuers thereof indicated on such Schedule; (ii) except for the Security Interest created hereby, each Grantor is and will at all times be the sole holder of record and the legal and beneficial owner, free and clear of all Liens other than Permitted Liens, of the Pledged Interests indicated on Schedule 5 as being owned by such Grantor and, when acquired by such Grantor, any Pledged Interests acquired after the Closing Date, and there are no outstanding warrants, options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any Pledged Interests; (iii) all of the Pledged Interests are duly authorized, validly issued, fully paid and nonassessable and the Pledged Interests constitute or will constitute the percentage of the issued and outstanding Ownership Interests of the Pledged Companies of such Grantor identified on Schedule 5 as supplemented or modified by any Pledged Interests Addendum or any Joinder to this Agreement; (iv) such Grantor has the right and requisite authority to pledge the Investment Property pledged by such Grantor to Administrative Agent as provided herein; (v) on the Closing Date all actions necessary or desirable to perfect and establish the first priority (subject to Permitted Prior Liens) of, or otherwise protect, Administrative Agent’s Liens in the Investment Property, and the proceeds thereof, have been duly taken, upon (A) the execution and delivery of this Agreement; (B) the taking of possession by Administrative Agent (or its agent or designee) of any certificates representing the Pledged Interests, together with undated powers (or other documents of transfer acceptable to Administrative Agent) endorsed in blank by the applicable Grantor; (C) the filing of financing statements in the applicable jurisdiction set forth on Schedule 9 for such Grantor with respect to the Pledged Interests of such Grantor that are not represented by certificates, and (D) with respect to any Securities Accounts (other than Excluded Securities Accounts), the delivery of Control Agreements with respect thereto; and (vi) each Grantor has delivered to and deposited with Administrative Agent all certificates representing the Pledged Interests owned by such Grantor to the extent such Pledged Interests are represented by certificates, and undated powers (or other documents of transfer acceptable to Administrative Agent) endorsed in blank with respect to such certificates. None of the Pledged Interests owned or held by such Grantor has been issued or transferred in violation of any securities registration, securities disclosure, or similar laws of any jurisdiction to which such issuance or transfer may be subject.

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(m) No consent, approval, authorization, or other order or other action by, and no notice to or filing with, any Governmental Authority or any other Person is required (i) for the grant of a Security Interest by such Grantor in and to the Collateral pursuant to this Agreement or for the execution, delivery, or performance of this Agreement by such Grantor, or (ii) for the exercise by Administrative Agent of the voting or other rights provided for in this Agreement with respect to the Investment Property or the remedies in respect of the Collateral pursuant to this Agreement, except as may be required in connection with such disposition of Investment Property by laws affecting the offering and sale of securities generally and except for consents, approvals, authorizations, or other orders or actions that have been obtained or given (as applicable) and that are still in force. No Intellectual Property License of any Grantor that constituted Material Intellectual Property requires any consent of any other Person that has not been obtained in order for such Grantor to grant the security interest granted hereunder in such Grantor’s right, title or interest in or to such Intellectual Property License.

(n) As of the Closing Date, Schedule 5 hereto sets forth under the heading “Pledged Notes” all of the promissory notes (as defined in the UCC) or other debt securities owned by any Grantor (each a “Pledged Note” ) and all of such Pledged Notes have been, in the case of those issued by Affiliates of such Grantor, or, in the case of those issued by Persons that are not Affiliates of such Grantor, to the knowledge of such Grantor have been, duly authorized, authenticated, issued and delivered and are the legal, valid and binding obligation of the issuers thereof enforceable in accordance with their terms and, in the case of those issued by Affiliates of such Grantor, constitute all of the issued and outstanding intercompany indebtedness owed by such Affiliates to such Grantor evidenced by an instrument or certificated security of the respective issuers thereof.

(o) As of the Closing Date, Schedule 5 hereto sets forth under the headings “Securities Accounts,” “Commodities Accounts,” and “Deposit Accounts,” respectively, all of the Securities Accounts, Commodities Accounts and Deposit Accounts in which each Grantor or their Subsidiaries has an interest (as such Schedule may be updated from time to time and provided that Grantors comply with Section 7(e) hereof), including, with respect to each bank or securities intermediary (i) the name and address of such Person, and (ii) the account numbers of the Securities Accounts, Commodities Accounts or Deposit Accounts maintained with such Person. Each Grantor is the sole entitlement holder or customer of each such account, and such Grantor has not consented to, and is not otherwise aware of, any Person (other than the Administrative Agent pursuant hereto) having “control” (within the meanings of Sections 8-106, 9-106 and 9-104 of the UCC) over, or any other interest in, any such Securities Account, Commodity Account or Deposit Account or any securities, commodities or other property credited thereto.

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(p) As to all limited liability company or partnership interests, issued under any Pledged Operating Agreement or Pledged Partnership Agreement, each Grantor hereby represents and warrants that the Pledged Interests issued pursuant to such agreement (i) are not dealt in or traded on securities exchanges or in securities markets, (ii) do not constitute investment company securities, and (iii) are not held by such Grantor in a Securities Account. In addition, none of the Pledged Operating Agreements, the Pledged Partnership Agreements, or any other agreements governing any of the Pledged Interests issued under any Pledged Operating Agreement or Pledged Partnership Agreement, provide that such Pledged Interests are securities governed by Article 8 of the UCC as in effect in any relevant jurisdiction. No Grantor shall exist or be formed or acquired as a limited liability company or a partnership unless applicable local law would permit the Administrative Agent, on behalf of the Secured Parties, to exercise all of its rights and remedies under this Agreement with respect to the applicable Pledged Interests, Pledged Operating Agreements and/or Pledged Partnership Agreements, including exercising voting and other consensual rights of a member or partner thereunder, as applicable, and the right to participate in the management in the business and affairs of such limited liability company or partnership, as applicable, in each case without any further action or approval under, and without the need for complying with any other procedures set forth in, such Pledged Interests, Pledged Operating Agreements and/or Pledged Partnership Agreements.

(q) (i) As of the Closing Date, none of the Collateral constitutes, or is the Proceeds of, (A) Farm Products, (B) As-Extracted Collateral, (C) Manufactured Homes, (D) Health-Care Insurance Receivables, (E) timber to be cut or (F) satellites, ships or railroad rolling stock. As of the Closing Date, no material portion of the Collateral consists of Vehicles or other goods subject to a certificate of title.

(ii) As of the Closing Date, no material portion of such Grantor’s assets constitutes Excluded Property and no Excluded Property is material to the business of such Grantor.

Section 7. Covenants.

Each Grantor, jointly and severally, covenants and agrees with Administrative Agent that from and after the date of this Agreement and until the date of termination of this Agreement in accordance with Section 23:

(a) Intentionally Omitted.

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(b) Possession of Collateral . In the event that any Collateral, including Proceeds, is evidenced by or consists of Negotiable Collateral, Investment Property, or Chattel Paper having an aggregate value or face amount of $1,000,000 or more for all such Negotiable Collateral, Investment Property, or Chattel Paper, the Grantors shall promptly (and in any event within five (5) Business Days after acquisition thereof), notify Administrative Agent thereof, and endorse and deliver physical possession of such Negotiable Collateral, Investment Property, or Chattel Paper to Administrative Agent, together with such undated powers (or other relevant document of transfer acceptable to Administrative Agent) endorsed in blank as shall be requested by Administrative Agent, and shall do such other acts or things deemed necessary or desirable by Administrative Agent to protect Administrative Agent’s Security Interest therein and promptly (and in any event within five (5) Business Days) after request by Administrative Agent, shall execute such other documents and instruments as shall be requested by Administrative Agent.

(c) Chattel Paper . (i) If any of the Collateral with a value in excess of $1,000,000 is or shall become Electronic Chattel Paper, such Grantor shall ensure that (A) a single authoritative copy exists which is unique, identifiable and unalterable (except as provided in clauses (C), (D) and (E) of this paragraph), (B) such authoritative copy identifies the Administrative Agent as the assignee and is communicated to and maintained by the Administrative Agent or its designee, (C) copies or revisions that add or change the assignee of the authoritative copy can only be made with the participation of the Administrative Agent, (D) each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy and not the authoritative copy and (E) any revision of the authoritative copy is readily identifiable as an authorized or unauthorized revision; and

(ii) If any Grantor retains possession of any Chattel Paper or instruments (which retention of possession shall be subject to the extent permitted hereby and by the Credit Agreement), promptly upon the request of Administrative Agent, such Chattel Paper and instruments shall be marked with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the Security Interest of Prospect Capital Corporation, as Administrative Agent, for the benefit of the Secured Parties”.

(d) Uncertificated Securities . If any of the Collateral is or shall become evidenced or represented by Uncertificated Securities having an aggregate value in excess of $1,000,000, the Grantors shall cause the issuers thereof either (i) to register the Administrative Agent as the registered owner of each such Uncertificated Security, upon original issue or registration of transfer or (ii) to agree in writing with the applicable Grantor and the Administrative Agent that such issuer will comply with instructions with respect to such Uncertificated Security originated by the Administrative Agent without further consent of such Grantor, such agreement to be in form and substance reasonably satisfactory to the Administrative Agent.

(e) Control Agreements . Each Grantor shall obtain an authenticated Control Agreement from each bank or financial institution maintaining a Deposit Account (other than Excluded Deposit Accounts) or Securities Account (other than Excluded Securities Accounts) for such Grantor.

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(f) Letter-of-Credit Rights . If the Grantors (or any of them) are or become the beneficiary of letters of credit having a face amount or value of $1,000,000 or more in the aggregate, then the applicable Grantor or Grantors shall promptly (and in any event within five (5) Business Days after becoming a beneficiary), notify Administrative Agent thereof and, promptly (and in any event within five (5) Business Days) after request by Administrative Agent, enter into a tri-party agreement with Administrative Agent and the issuer or confirming bank with respect to letter-of-credit rights assigning such letter-of-credit rights to Administrative Agent and directing all payments thereunder to a Deposit Account subject to a Control Agreement, all in form and substance reasonably satisfactory to Administrative Agent.

(g) Commercial Tort Claims . If the Grantors (or any of them) obtain Commercial Tort Claims having a value, or involving an asserted claim, in the amount of $1,000,000 or more in the aggregate for all Commercial Tort Claims, then the applicable Grantor or Grantors shall promptly (and in any event within five (5) Business Days of obtaining such Commercial Tort Claim), notify Administrative Agent upon incurring or otherwise obtaining such Commercial Tort Claims and, promptly (and in any event within five (5) Business Days) after request by Administrative Agent, amend Schedule 1 to describe such Commercial Tort Claims in a manner that reasonably identifies such Commercial Tort Claims and which is otherwise reasonably satisfactory to Administrative Agent, and hereby authorizes the filing of additional financing statements or amendments to existing financing statements describing such Commercial Tort Claims, and agrees to do such other acts or things deemed necessary or desirable by Administrative Agent to give Administrative Agent a first priority perfected security interest (subject to Permitted Prior Liens) in any such Commercial Tort Claim.

(h) Government Contracts . Following the request of Administrative Agent, other than Accounts and Chattel Paper the aggregate value of which does not at any one time exceed $1,000,000, if any Account or Chattel Paper arises out of a contract or contracts with the United States of America or any department, agency, or instrumentality thereof, Grantors shall promptly (and in any event within five (5) Business Days of the creation thereof) notify Administrative Agent thereof and, promptly (and in any event within five (5) Business Days) after request by Administrative Agent, execute any instruments or take any steps reasonably required by Administrative Agent in order that all moneys due or to become due under such contract or contracts shall be assigned to Administrative Agent, for the benefit of the Secured Parties, and shall provide written notice thereof under the Assignment of Claims Act or other applicable law.

(i) Intellectual Property . (i) In order to facilitate filings with the PTO and the United States Copyright Office, each Grantor shall execute and deliver to Administrative Agent one or more Copyright Security Agreements, Trademark Security Agreements, or Patent Security Agreements to further evidence Administrative Agent’s Lien on such Grantor’s Patents, Trademarks, or Copyrights, and the General Intangibles of such Grantor relating thereto or represented thereby, and such Grantor shall promptly execute and deliver, and have recorded, any and all other agreements, instruments, documents and papers as the Administrative Agent may reasonably request to evidence the Security Interest in any such Intellectual Property with any other applicable offices, agencies or Governmental Authorities;

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(ii) Each Grantor shall have the duty, with respect to Material Intellectual Property, to protect and diligently enforce and defend at such Grantor’s expense such Intellectual Property, including (A) to diligently enforce and defend, including promptly suing for infringement, misappropriation, or dilution and to recover any and all damages for such infringement, misappropriation, or dilution, and filing for opposition, interference, and cancellation against conflicting Intellectual Property rights of any Person, (B) to prosecute diligently any trademark application or service mark application that is part of such Trademarks pending as of the date hereof or hereafter until the termination of this Agreement, (C) to prosecute diligently any patent application that is part of such Patents pending as of the date hereof or hereafter until the termination of this Agreement, and (D) to take all reasonable and necessary action to preserve and maintain all of such Grantor’s material Trademarks, Patents, Copyrights, Intellectual Property Licenses, and its rights therein, including paying all maintenance fees and filing of applications for renewal, affidavits of use, and affidavits of noncontestability. Each Grantor further agrees not to discontinue use of or abandon, forfeit, cancel, dedicate to the public, allow to lapse or otherwise impair any Material Intellectual Property or Intellectual Property License that constituted Material Intellectual Property. Each Grantor hereby agrees to take the steps described in this Section 7(i)(ii) with respect to all new or acquired Material Intellectual Property to which it or any of its Subsidiaries is now or later becomes entitled;

(iii) Grantors acknowledge and agree that the Secured Parties shall have no duties with respect to any Intellectual Property or Intellectual Property Licenses of any Grantor. Without limiting the generality of this Section 7(i)(iii), Grantors acknowledge and agree that no Secured Party shall be under any obligation to take any steps necessary to preserve rights in the Collateral consisting of Intellectual Property or Intellectual Property Licenses against any other Person, but the Administrative Agent, on behalf of the Secured Parties, may do so at its option from and after the occurrence and during the continuance of an Event of Default, and all expenses incurred in connection therewith (including reasonable fees and expenses of attorneys and other professionals) shall be for the sole account of the Borrowers and shall be chargeable to the loan account of the Borrowers as a Secured Party Expense;

(iv) On each date on which an Officer’s Compliance Certificate is to be delivered pursuant to Section 6.2 of the Credit Agreement in respect of a fiscal quarter (or, if an Event of Default has occurred and is continuing, more frequently if requested by Administrative Agent), each Grantor shall provide Administrative Agent with a written report of all Patents, Trademarks or Copyrights that are registered or the subject of pending applications for registrations, and of all Intellectual Property Licenses that constitute Material Intellectual Property, in each case, which were acquired, registered, or for which applications for registration were filed by any Grantor during the prior period and any statement of use or amendment to allege use which were filed by any Grantor during the prior period with respect to intent-to-use trademark applications. In the case of such registrations or applications therefor, which were acquired by any Grantor, each such Grantor shall file the necessary documents with the appropriate Governmental Authority identifying the applicable Grantor as the owner (or as a co-owner thereof, if such is the case) of such Intellectual Property except as would not result in a Material Adverse Effect. In each of the foregoing cases, the applicable Grantor shall promptly (A) comply with Section 7(i)(i) with respect to such Intellectual Property and (B) cause to be prepared, executed, and delivered to Administrative Agent supplemental schedules to the applicable Loan Documents to identify such Patent, Trademark and Copyright registrations and applications therefor (with the exception of Trademark applications filed on an intent-to-use basis for which no statement of use or amendment to allege use has been filed) and Intellectual Property Licenses as being subject to the security interests created thereunder;

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(v) Anything to the contrary in this Agreement notwithstanding, in no event shall any Grantor, either itself or through any agent, employee, licensee, or designee, file an application for the registration of any material Copyright with the United States Copyright Office or any similar office or agency in another country without giving Administrative Agent prompt written notice thereof and complying with Section 7(i)(i). Upon receipt from the United States Copyright Office of notice of registration of any Copyright, each Grantor shall promptly (but in no event later than five (5) Business Days following such receipt) notify (but without duplication of any notice required by Section 7(i)(v)) Administrative Agent of such registration by delivering, or causing to be delivered, to Administrative Agent, documentation sufficient for Administrative Agent to perfect Administrative Agent’s Liens on such Copyright. If any Grantor acquires from any Person any Copyright registered with the United States Copyright Office or an application to register any Copyright with the United States Copyright Office, such Grantor shall promptly (but in no event later than five (5) Business Days following such acquisition) notify Administrative Agent of such acquisition and deliver, or cause to be delivered, to Administrative Agent, documentation sufficient for Administrative Agent to perfect Administrative Agent’s Liens on such Copyright. In the case of such Copyright registrations or applications therefor which were acquired by any Grantor, each such Grantor shall promptly (but in no event later than five (5) Business Days following such acquisition) file the necessary documents with the appropriate Governmental Authority identifying the applicable Grantor as the owner (or as a co-owner thereof, if such is the case) of such Copyrights;

(vi) No Grantor shall enter into any Intellectual Property License that constitutes Material Intellectual Property to receive any license or rights in any Intellectual Property of any other Person unless such Grantor has used commercially reasonable efforts to permit the assignment of or grant of a security interest in such Intellectual Property License (and all rights of Grantor thereunder) to Administrative Agent (and any transferees of Administrative Agent);

(vii) Such Grantor shall use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that would in any way materially impair or prevent the creation of a security interest in such Grantor’s rights and interests in any property that constitutes Material Intellectual Property;

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(viii) Such Grantor shall promptly notify the Administrative Agent if it knows or has reason to know that any item of Material Intellectual Property may become (A) abandoned or dedicated to the public or placed in the public domain, (B) invalid or unenforceable, (C) subject to any adverse determination or development regarding such Grantor’s ownership, registration or use or the validity or enforceability of such item of Intellectual Property (including the institution of, or any adverse development with respect to, any action or proceeding in the PTO, the United States Copyright Office, any state registry, any foreign counterpart of the foregoing, or any court) or (D) the subject of any reversion or termination rights;

(ix) Such Grantor shall use proper notice of its Intellectual Property rights in connection with the use of any of its Material Intellectual Property; and

(x) Such Grantor shall take all commercially reasonable steps reasonably necessary to protect the secrecy of all trade secrets constituting Material Intellectual Property, including entering into confidentiality agreements with employees and consultants and labeling and restricting access to secret information and documents.

(j) Investment Property . (i) If any Grantor shall acquire, obtain, receive or become entitled to receive any Pledged Interests after the Closing Date, whether in addition to, in substitution of, as a conversion for, or in exchange for, any shares of or other ownership interests in the Pledged Interests, it shall (except to the extent the same constitutes Excluded Property for purposes of this Agreement) (A) promptly (and in any event within five (5) Business Days of acquiring or obtaining such Collateral) deliver to Administrative Agent a duly executed Pledged Interests Addendum identifying such Pledged Interests, (B) accept the same as the agent of the Administrative Agent and the Secured Parties, hold the same in trust for the benefit of the Administrative Agent and deliver the same forthwith to the Administrative Agent in the exact form received, duly endorsed by such Grantor to the Administrative Agent, if required, together with an undated stock power covering such certificate duly executed in blank by such Grantor and with, if the Administrative Agent so requests, signature guaranteed, to be held by the Administrative Agent, subject to the terms hereof, as additional collateral security for the Secured Obligations;

(ii) Upon the occurrence and during the continuance of an Event of Default, all sums of money and property paid or distributed in respect of the Investment Property that are received by any Grantor (including in connection with the liquidation or dissolution of any issuer of such Investment Property) shall be held by the Grantors in trust for the benefit of Administrative Agent segregated from such Grantor’s other property, and such Grantor shall deliver it forthwith to Administrative Agent in the exact form received, duly endorsed by such Grantor to the Administrative Agent, if required, together with an undated stock power covering such certificate duly executed in blank by such Grantor and with, if the Administrative Agent so requests, signature guaranteed, to be held by the Administrative Agent, subject to the terms hereof, as additional collateral security for the Secured Obligations;

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(iii) Each Grantor shall promptly deliver to Administrative Agent a copy of each material notice or other material communication received by it in respect of any Pledged Interests;

(iv) No Grantor shall make or consent to any amendment or other modification or waiver with respect to any Pledged Interests, Pledged Operating Agreement, or Pledged Partnership Agreement, or enter into any agreement or permit to exist any restriction with respect to any Pledged Interests in any manner that materially changes the rights of such Grantor with respect to any Pledged Interests or adversely affects the validity, perfection or priority of the Administrative Agent’s security interest therein;

(v) Each Grantor agrees that it will cooperate with Administrative Agent in obtaining all necessary approvals and making all necessary filings under federal, state, local, or foreign law to effect the perfection of the Security Interest on the Investment Property or to effect any sale or transfer thereof;

(vi) Each Grantor which is an issuer of Pledged Interests agrees that (A) it will be bound by the terms of this Agreement relating to the Pledged Interests issued by it and will comply with such terms insofar as such terms are applicable to it, (B) it will notify the Administrative Agent promptly in writing of the occurrence of any of the events described in Section 7(j)(i) or (ii) with respect to the Pledged Interests issued by it and (C) the terms of Section 16(d) shall apply to it, mutatis mutandis , with respect to all actions that may be required of it pursuant to Section 16(d) with respect to the Pledged Interests issued by it. In addition, each Grantor which is either an issuer or an owner of any Pledged Interests hereby consents to the grant by each other Grantor of the security interest hereunder in favor of the Administrative Agent and to the transfer of any Pledged Interest to the Administrative Agent or its nominee following an Event of Default and to the substitution of the Administrative Agent or its nominee as a partner, member or shareholder or other equity holder of the issuer of the related Pledged Interest;

(vii) As to all limited liability company or partnership interests, issued under any Pledged Operating Agreement or Pledged Partnership Agreement, each Grantor hereby covenants that the Pledged Interests issued pursuant to such agreement (A) are not and shall not be dealt in or traded on securities exchanges or in securities markets, (B) do not and will not constitute investment company securities, and (C) are not and will not be held by such Grantor in a securities account. Without the prior written consent of the Administrative Agent, no Grantor will cause or permit the issuer of any Pledged Interests which are not securities (for purposes of the UCC) on the date hereof to elect or otherwise take any action to cause the Pledged Operating Agreements, the Pledged Partnership Agreements, or any other agreements governing any of the Pledged Interests to provide that such Pledged Interests are securities governed by Article 8 of the UCC as in effect in any relevant jurisdiction; provided, however, that notwithstanding the foregoing, if any issuer of any Pledged Interests takes any such action in violation of the foregoing in this clause (vii), such Grantor shall promptly notify the Administrative Agent in writing of any such election or action and, in such event, shall take all steps necessary or advisable to establish the Administrative Agent’s “control” thereof;

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(viii) In addition to and not in lieu of the foregoing, if any issuer of any Investment Property is organized under the law of, or has its chief executive office in, a jurisdiction outside of the United States, each Grantor shall take such additional actions, including causing the issuer to register the pledge on its books and records, as may be necessary or advisable or as may be reasonably requested by the Administrative Agent, under the laws of such jurisdiction to insure the validity, perfection and priority of the security interest of the Administrative Agent; and

(ix) Unless an Event of Default shall have occurred and be continuing, each Grantor shall be permitted to receive dividends and other distributions in respect of the Pledged Interests and all payments made in respect of the Pledged Notes, in each case paid in the normal course of business or otherwise as a result of the exercise of reasonable business judgment of the relevant issuer, to the extent permitted by the Credit Agreement, and to exercise all voting, corporate, consensual and other rights and privileges with respect to the Investment Property; provided, that no vote shall be cast or corporate or other consensual right exercised or other action taken which, in the Administrative Agent’s reasonable discretion, would be inconsistent with or result in any violation of any provision of the Credit Agreement, this Agreement or any other Loan Document.

(k) Fixtures . Each Grantor acknowledges and agrees that, to the extent permitted by applicable law, all of the Collateral shall remain personal property regardless of the manner of its attachment or affixation to real property.

(l) Transfers and Other Liens . The inclusion of Proceeds in the Collateral shall not be deemed to constitute Administrative Agent’s consent to any sale or other disposition of any of the Collateral except as expressly permitted in this Agreement or the other Loan Documents.

(m) Name, Etc . No Grantor will, nor will any Grantor permit any of its Subsidiaries to, change its name, organizational identification number, jurisdiction of organization or organizational identity; provided, that Grantor or any of its Subsidiaries may change its name upon at least five (5) days prior written notice to Administrative Agent of such change and delivery to the Administrative Agent of duly authorized and, where required, executed copies of all additional financing statements and other documents reasonably requested by the Administrative Agent to maintain the validity, perfection and priority of the security interests provided f or herein.

(n) Pledged Notes . Grantors (i) without the prior written consent of Administrative Agent, will not (A) waive or release any obligation of any Person that is obligated under any Pledged Notes with a value in excess of $1,000,000 in the aggregate, (B) take or omit to take any action or knowingly suffer or permit any action to be omitted or taken, the taking or omission of which would result in any right of offset against sums payable under the Pledged Notes with a value in excess of $1,000,000 in the aggregate, or (C) other than Asset Dispositions, assign or surrender their rights and interests under the Pledged Notes with a value in excess of $1,000,000 in the aggregate or terminate, cancel, modify, change, supplement or amend the Pledged Notes, and (ii) shall provide to Administrative Agent copies of all material written notices (including notices of default) given or received with respect to the Pledged Notes with a value in excess of $1,000,000 promptly after giving or receiving such notice.

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Section 8. Relation to Other Collateral Documents.

The provisions of this Agreement shall be read and construed with the other Loan Documents referred to below in the manner so indicated.

(a) Credit Agreement . In the event of any conflict between any provision in this Agreement and a provision in the Credit Agreement, such provision of the Credit Agreement shall control.

(b) Patent, Trademark, Copyright Security Agreements . The provisions of the Copyright Security Agreements, Trademark Security Agreements, and Patent Security Agreements are supplemental to the provisions of this Agreement, and nothing contained in the Copyright Security Agreements, Trademark Security Agreements, or the Patent Security Agreements shall limit any of the rights or remedies of Administrative Agent hereunder. In the event of any conflict between any provision in this Agreement and a provision in a Copyright Security Agreement, Trademark Security Agreement or Patent Security Agreement, such provision of this Agreement shall control.

Section 9. Further Assurances.

(a) Each Grantor agrees that from time to time, at its own expense, such Grantor will promptly execute and deliver all further instruments and documents, and take all further action, that Administrative Agent may reasonably request in order to perfect and protect the Security Interest granted hereby, having at least the priority described in Section 6(i), to create, perfect or protect the Security Interest purported to be granted hereby or to enable Administrative Agent to exercise and enforce its rights and remedies hereunder with respect to any of the Collateral.

(b) Each Grantor authorizes the filing by Administrative Agent of financing or continuation statements, or amendments thereto, and such Grantor will execute and deliver to Administrative Agent such other instruments or notices, as Administrative Agent may reasonably request, in order to perfect and preserve the Security Interest granted or purported to be granted hereby.

(c) Each Grantor authorizes Administrative Agent at any time and from time to time to file, transmit, or communicate, as applicable, financing statements and amendments (i) describing the Collateral as “all personal property of debtor” or “all assets of debtor” or words of similar effect, (ii) describing the Collateral as being of equal or lesser scope or with greater detail, or (iii) that contain any information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance. Each Grantor also hereby ratifies any and all financing statements or amendments previously filed by Administrative Agent in any jurisdiction.

(d) Each Grantor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement filed in connection with this Agreement without the prior written consent of Administrative Agent, subject to such Grantor’s rights under Section 9-509(d)(2) of the UCC.

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(e) Each Grantor shall furnish the Administrative Agent with such information regarding the Collateral, including the location thereof, as the Administrative Agent may reasonably request from time to time.

Section 10. Administrative Agent’s Right to Perform Contracts, Exercise Rights, etc.

Upon the occurrence and during the continuance of an Event of Default, Administrative Agent (or its designee) (a) may proceed to perform any and all of the obligations of any Grantor contained in any contract, lease, or other agreement and exercise any and all rights of any Grantor therein contained as fully as such Grantor itself could, (b) shall have the right to use any Grantor’s rights under Intellectual Property Licenses in connection with the enforcement of Administrative Agent’s rights hereunder, including the right to prepare for sale and sell any and all Inventory and Equipment now or hereafter owned by any Grantor and now or hereafter covered by such licenses, and (c) shall have the right to request that any Ownership Interests that are pledged hereunder be registered in the name of Administrative Agent or any of its nominees.

Section 11. Administrative Agent Appointed Attorney-in-Fact.

Each Grantor hereby irrevocably appoints Administrative Agent its attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of such Grantor or otherwise, at such time as an Event of Default has occurred and is continuing under the Credit Agreement, to take any action and to execute any instrument which Administrative Agent may reasonably deem necessary or advisable to accomplish the purposes of this Agreement, including:

(a) to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in connection with the Accounts or any other Collateral of such Grantor and to direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Administrative Agent or as the Administrative Agent shall direct;

(b) to receive and open all mail addressed to such Grantor and to notify postal authorities to change the address for the delivery of mail to such Grantor to that of Administrative Agent;

(d) to file any claims or take any action or institute any proceedings which Administrative Agent may deem necessary or desirable for the collection of any of the Collateral of such Grantor or otherwise to enforce the rights of Administrative Agent with respect to any of the Collateral;

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(e) to repair, alter, or supply goods, if any, necessary to fulfill in whole or in part the purchase order of any Person obligated to such Grantor in respect of any Account of such Grantor;

(f) execute, in connection with any sale provided for in Section 17(a) or 17(g), any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral;

(g) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral;

(h) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Administrative Agent may deem appropriate;

(i) to use any Intellectual Property or Intellectual Property Licenses of such Grantor, including any labels, Patents, Trademarks, trade names, URLs, domain names, industrial designs, Copyrights, or advertising matter, in preparing for sale, advertising for sale, or selling Inventory or other Collateral and to collect any amounts due under Accounts, contracts or Negotiable Collateral of such Grantor;

(j) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Copyright, Patent or Trademark pertains), throughout the world for such term or terms, on such conditions, and in such manner, as the Administrative Agent shall in its sole discretion determine;

(k) Administrative Agent, on behalf of the Secured Parties, shall have the right, but shall not be obligated, to bring suit in its own name to enforce the Intellectual Property and Intellectual Property Licenses and, if Administrative Agent shall commence any such suit, the appropriate Grantor shall, at the request of Administrative Agent, do any and all lawful acts and execute any and all proper documents reasonably required by Administrative Agent in aid of such enforcement; and

(l) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Administrative Agent were the absolute owner thereof for all purposes, and do, at the Administrative Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Administrative Agent deems necessary to protect, preserve or realize upon the Collateral and the security interests of the Administrative Agent therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.

To the extent permitted by law, each Grantor hereby ratifies all that such attorney-in-fact shall lawfully do or cause to be done by virtue hereof. This power of attorney is coupled with an interest and shall be irrevocable until this Agreement is terminated.

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Section 12. Administrative Agent May Perform.

If any Grantor fails to perform any agreement contained herein, Administrative Agent may itself perform, or cause performance of, such agreement, and the reasonable expenses of Administrative Agent incurred in connection therewith shall be payable, jointly and severally, by Grantors.

Section 13. Administrative Agent’s Duties.

(a) Each Grantor acknowledges that the rights and responsibilities of the Administrative Agent under this Agreement with respect to any action taken by the Administrative Agent or the exercise or non-exercise by the Administrative Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Administrative Agent and the Secured Parties, be governed by the Credit Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Administrative Agent and the Grantors, the Administrative Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.

(b) The powers conferred on Administrative Agent hereunder are solely to protect Administrative Agent’s interest in the Collateral, for the benefit of the Secured Parties, and shall not impose any duty upon Administrative Agent to exercise any such powers. Except for the safe custody of any Collateral in its actual possession and the accounting for moneys actually received by it hereunder, Administrative Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its actual possession if such Collateral is accorded treatment substantially equal to that which Administrative Agent accords its own property.

(c) The Administrative Agent may perform any and all of its duties and exercise its rights and powers under this Agreement or under any other Collateral Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates. All of the rights, benefits, and privileges (including the exculpatory and indemnification provisions) of this Agreement shall apply to any such sub-agent and to any of the Affiliates of the Administrative Agent and any such sub-agents, and shall apply to their respective activities as if such sub-agent and Affiliates were named herein in connection with the transactions contemplated hereby and by the Collateral Documents. Notwithstanding anything herein to the contrary, each sub-agent appointed by the Administrative Agent or Affiliate of the Administrative Agent or Affiliate of any such sub-agent shall be a third party beneficiary under this Agreement with respect to all such rights, benefits and privileges (including exculpatory rights and rights to indemnification) and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such rights, benefits and privileges (including exculpatory rights and rights to indemnification) directly, without the consent or joinder of any other Person, against any or all of the Loan Parties and the Secured Parties, and such rights, benefits and privileges (including exculpatory rights and rights to indemnification) shall not be modified or amended without the consent of such sub-agent or Affiliate acting in such capacity.

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Section 14. Collection of Accounts, General Intangibles and Negotiable Collateral.

At any time upon the occurrence and during the continuance of an Event of Default, Administrative Agent or Administrative Agent’s designee may (a) notify Account Debtors of any Grantor that the Accounts, General Intangibles, Chattel Paper or Negotiable Collateral of such Grantor have been assigned to Administrative Agent, for the benefit of the Secured Parties, or that Administrative Agent has a security interest therein, and (b) collect the Accounts, General Intangibles and Negotiable Collateral of any Grantor directly, and any collection costs and expenses shall constitute part of such Grantor’s Secured Obligations under the Loan Documents.

Section 15. Disposition of Pledged Interests by Administrative Agent.

None of the Pledged Interests existing as of the date of this Agreement are, and none of the Pledged Interests hereafter acquired on the date of acquisition thereof will be, registered or qualified under the various federal or state securities laws of the United States and disposition thereof after an Event of Default may be restricted to one or more private (instead of public) sales in view of the lack of such registration. Each Grantor understands that in connection with such disposition, Administrative Agent may approach only a restricted number of potential purchasers and further understands that a sale under such circumstances may yield a lower price for the Pledged Interests than if the Pledged Interests were registered and qualified pursuant to federal and state securities laws and sold on the open market. Each Grantor, therefore, agrees that: (a) if Administrative Agent shall, pursuant to the terms of this Agreement, sell or cause the Pledged Interests or any portion thereof to be sold at a private sale, Administrative Agent shall have the right to rely upon the advice and opinion of any nationally recognized brokerage or investment firm (but shall not be obligated to seek such advice and the failure to do so shall not be considered in determining the commercial reasonableness of such action) as to the best manner in which to offer the Pledged Interest or any portion thereof for sale and as to the best price reasonably obtainable at the private sale thereof; and (b) such reliance shall be conclusive evidence that Administrative Agent has handled the disposition in a commercially reasonable manner.

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Section 16. Voting and Other Rights in Respect of Pledged Interests.

(a) Upon the occurrence and during the continuation of an Event of Default, in addition to all other rights and remedies available to the Administrative Agent under any other agreement, at law, in equity, or otherwise, and in all cases without any requirement that any notice be delivered to any Person, (i) the Administrative Agent shall have the sole and exclusive right to receive any and all dividends, payments or other Proceeds paid in respect of the Pledged Interests and other Investment Property and make application thereof to the Secured Obligations in the manner set forth in Section 2.9 of the Credit Agreement, (ii) the Administrative Agent shall have the sole and exclusive right (but shall be under no obligation) to register any or all of the Pledged Interests and other Investment Property in the name of the Administrative Agent or its nominee (iii) all rights of each Grantor to exercise or refrain from exercising the voting and other consensual rights with respect to Pledged Interests and Investment Property which it would otherwise be entitled to exercise shall automatically cease and all such rights shall thereupon become vested, solely and exclusively in the Administrative Agent and Administrative Agent or its nominee may, at its option, and without notice to any Grantor, and in addition to all rights and remedies available to Administrative Agent under any other agreement, at law, in equity, or otherwise, exercise or refrain from exercising, (x) all voting rights, or any other ownership or consensual rights (including any dividend or distribution rights) in respect of the Pledged Interests and Investment Property owned by such Grantor, whether at any meeting of shareholders of the relevant issuer or issuers, by written consent in lieu of a meeting or otherwise, but under no circumstances is Administrative Agent obligated by the terms of this Agreement to exercise such rights and (y) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to the Pledged Interest and other Investment Property as if it were the absolute owner thereof (including the right to exchange, at its discretion, any and all of the Pledged Interest or other Investment Property upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate structure of any issuer, or upon the exercise by any Grantor or the Administrative Agent of any right, privilege or option pertaining to the Pledged Interest or other Investment Property, and in connection therewith, the right to deposit and deliver any and all of the Pledged Interest or other Investment Property with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Administrative Agent may determine in its sole discretion), all without liability except to account for property actually received by the Administrative Agent, but the Administrative Agent shall have no duty to any Grantor or any other Person to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing and (iv) each Grantor hereby appoints Administrative Agent, such Grantor’s true and lawful attorney-in-fact and Irrevocable Proxy to vote all or any such Pledged Interests and Investment Property in any manner Administrative Agent deems advisable for or against all matters submitted or which may be submitted to a vote of shareholders (including holders of Capital Stock of any issuer), partners or members, as the case may be. The power-of-attorney and proxy granted hereby is coupled with an interest and shall be irrevocable, and shall be effective without the necessity that any action be taken by any Person (including the issuer of the relevant Pledged Interest or other Investment Property or any officer or agent thereof), shall survive the bankruptcy, dissolution or winding up of each relevant Grantor, and shall terminate only on the Facility Termination Date. In order to permit the Administrative Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder each Grantor shall promptly (and in any event within one (1) Business Day following a request from the Administrative Agent), execute and deliver (or cause to be executed and delivered) to the Administrative Agent all proxies, dividend payment orders and other instruments as the Administrative Agent may from time to time reasonably request and each Grantor acknowledges that the Administrative Agent may utilize the power of attorney set forth herein.

(b) Upon the occurrence and during the continuation of an Event of Default, the Administrative Agent shall have the sole and exclusive right (but not the obligation), without notice to any Grantor, to transfer all or any portion of the Pledged Interest, Pledged Securities and Investment Property to its name or the name of its nominee or agent.

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(c) For so long as any Grantor shall have the right to vote the Pledged Interests or any other Investment Property owned by it, such Grantor covenants and agrees that it will not, without the prior written consent of Administrative Agent, vote or take any consensual action with respect to such Pledged Interests which would adversely affect the rights of Administrative Agent or the other Secured Parties, or impair the value of the Pledged Interests and Investment Property or which would be inconsistent with or result in any violation of any provision of the Credit Agreement, this Agreement or any other Loan Document.

(d) Each Grantor hereby authorizes and instructs each issuer of any Pledged Interests pledged by such Grantor hereunder to comply with any instruction received by it from the Administrative Agent in writing that (i) states that an Event of Default has occurred and is continuing and (ii) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that each issuer shall be fully protected in so complying.

(e) Each Grantor covenants and agrees that on the date that is thirty (30) days prior to the date of expiration (by operation of applicable law) of the irrevocable proxy granted pursuant to this Section 16 each Grantor shall (and shall automatically be deemed to) grant the Administrative Agent a new irrevocable proxy, on the same terms as those previously granted pursuant to this Section 16. Upon the reasonable written request of the Administrative Agent, such Grantor agrees to deliver to the Administrative Agent, on behalf of the Administrative Agent and the other Secured Parties, such further evidence of such irrevocable proxy or such further irrevocable proxies to enable the Secured Party to vote the Pledged Interest after the occurrence of an Event of Default.

Section 17. Remedies.

Upon the occurrence and during the continuance of an Event of Default:

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(a) Administrative Agent may, and, at the instruction of the Required Lenders, shall exercise in respect of the Collateral, in addition to other rights and remedies provided for herein, in the other Loan Documents, or otherwise available to it, all the rights and remedies of a secured party on default under the UCC or any other applicable law. Without limiting the generality of the foregoing, each Grantor expressly agrees that, in any such event, Administrative Agent without demand of performance or other demand, advertisement or notice of any kind (except a notice specified below of time and place of public or private sale) to or upon any Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC or any other applicable law), may take immediate possession of all or any portion of the Collateral and (i) require Grantors to, and each Grantor hereby agrees that it will at its own expense and upon request of Administrative Agent forthwith, assemble all or part of the Collateral as directed by Administrative Agent and make it available to Administrative Agent at one or more locations where such Grantor regularly maintains Inventory, and (ii) without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of Administrative Agent’s offices or elsewhere, for cash, on credit, and upon such other terms as Administrative Agent may deem commercially reasonable. Each Grantor agrees that, to the extent notification of sale shall be required by law, at least ten (10) days notification by mail to the applicable Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification and specifically such notification shall constitute a reasonable “authenticated notification of disposition” within the meaning of Section 9-611 of the UCC. Administrative Agent shall not be obligated to make any sale of Collateral regardless of notification of sale having been given. Administrative Agent may adjourn any public sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Grantor agrees that (A) the internet shall constitute a “place” for purposes of Section 9-610(b) of the UCC and (B) to the extent notification of sale shall be required by law, notification by mail of the URL where a sale will occur and the time when a sale will commence at least ten (10) days prior to the sale shall constitute a reasonable notification for purposes of Section 9-611(b) of the UCC. Each Grantor agrees that any sale of Collateral to a licensor pursuant to the terms of a license agreement between such licensor and a Grantor is sufficient to constitute a commercially reasonable sale (including as to method, terms, manner, and time) within the meaning of Section 9-610 of the UCC. Each Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any portion thereof by using internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the Administrative Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Administrative Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Administrative Agent shall have the right to enter onto the property where any Collateral is located without any obligation to pay rent and take possession thereof with or without judicial process.

(b) Administrative Agent shall deduct from such Proceeds all reasonable costs and expenses of every kind incurred in connection with the exercise of its rights and remedies against the Collateral or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Secured Parties hereunder, including reasonable attorneys’ fees and disbursements. Any net Proceeds remaining after such deductions shall be applied or retained by the Administrative Agent in accordance with Section 17(e). Only after such application and after the payment by the Administrative Agent of any other amount required by any provision of law, including Section 9-615(a) of the UCC, need the Administrative Agent account for the surplus, if any, to any Grantor. If the Administrative Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Administrative Agent. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the applicable Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against the Administrative Agent or any other Secured Party arising out of the exercise by it or them of any rights hereunder.

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(c) Administrative Agent is hereby granted an irrevocable, nonexclusive and assignable license or other right to use, without liability for royalties or any other charge, each Grantor’s Intellectual Property now owned or hereafter acquired, developed or created, wherever the same may be located, including any labels, Patents, Trademarks, trade names, URLs, domain names, industrial designs, Copyrights, and advertising matter, whether owned by any Grantor or with respect to which any Grantor has rights under license, sublicense, or other agreements (including any Intellectual Property License), as it pertains to the Collateral, in preparing for sale, advertising for sale and selling any Collateral, and each Grantor’s rights under all licenses and all franchise agreements shall inure to the benefit of Administrative Agent. Such license shall include access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof.

(d) Administrative Agent may, in addition to other rights and remedies provided for herein, in the other Loan Documents, or otherwise available to it under applicable law and without the requirement of notice to or upon any Grantor or any other Person (which notice is hereby expressly waived to the maximum extent permitted by the UCC or any other applicable law), (i) with respect to any Grantor’s Deposit Accounts in which Administrative Agent’s Liens are perfected by control under Section 9-104 of the UCC, instruct the bank maintaining such Deposit Account for the applicable Grantor to pay the balance of such Deposit Account to or for the benefit of Administrative Agent, and (ii) with respect to any Grantor’s Securities Accounts in which Administrative Agent’s Liens are perfected by control under Section 9-106 of the UCC, instruct the securities intermediary maintaining such Securities Account for the applicable Grantor to (A) transfer any cash in such Securities Account to or for the benefit of Administrative Agent, or (B) liquidate any financial assets in such Securities Account that are customarily sold on a recognized market and transfer the cash proceeds thereof to or for the benefit of Administrative Agent.

(e) Any cash held by Administrative Agent as Collateral and all cash proceeds received by Administrative Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral shall be applied against the Secured Obligations in the order set forth in the Credit Agreement. With respect to any proceeds of Insurance received by the Administrative Agent, (i) if no Event of Default shall have occurred and be continuing, (A) such Insurance Proceeds shall be returned to the Grantors if permitted or required by the Credit Agreement or (B) if not so permitted or required by the Credit Agreement, then such Insurance Proceeds shall be applied in accordance with this Section 17(e) and (ii) if an Event of Default shall have occurred and be continuing, then such Insurance Proceeds shall be applied in accordance with this Section 17(e). In the event the proceeds of Collateral are insufficient to satisfy all of the Secured Obligations in full, each Grantor shall remain jointly and severally liable for any such deficiency.

(f) Each Grantor hereby acknowledges that the Secured Obligations arise out of a commercial transaction, and agrees that if an Event of Default shall occur and be continuing Administrative Agent shall have the right to an immediate writ of possession without notice of a hearing. Administrative Agent shall have the right to the appointment of a receiver for the properties and assets of each Grantor, and each Grantor hereby consents to such rights and such appointment and hereby waives any objection such Grantor may have thereto or the right to have a bond or other security posted by Administrative Agent.

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(g) Each Grantor recognizes that the Administrative Agent may be unable to effect a public sale of any or all of the Pledged Interests or the Pledged Notes by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Administrative Agent shall be under no obligation to delay a sale of any of the Pledged Interests or the Pledged Notes for the period of time necessary to permit the issuer thereof to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if such issuer would agree to do so.

Section 18. Remedies Cumulative.

Each right, power, and remedy of Administrative Agent or any other Secured Party as provided for in this Agreement or the other Loan Documents now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power, or remedy provided for in this Agreement and the other Loan Documents now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by Administrative Agent or any other Secured Party, of any one or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by Administrative Agent or such other Secured Party of any or all such other rights, powers, or remedies.

Section 19. Marshaling.

Administrative Agent shall not be required to marshal any present or future collateral security (including the Collateral) for, or other assurances of payment of, the Secured Obligations or any of them or to resort to such collateral security or other assurances of payment in any particular order, and all of its rights and remedies hereunder and in respect of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights and remedies, however existing or arising. To the extent that it lawfully may, each Grantor hereby agrees that it will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of Administrative Agent’s rights and remedies under this Agreement or under any other instrument creating or evidencing any of the Secured Obligations or under which any of the Secured Obligations is outstanding or by which any of the Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, each Grantor hereby irrevocably waives the benefits of all such laws.

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Section 20. Indemnity and Expenses.

The terms and provisions of Section 11.5 of the Credit Agreement are hereby incorporated by reference herein as if fully set forth herein, and each Grantor agrees that the terms of Section 11.5 of the Credit Agreement shall apply to such Grantor, mutatis mutandis .

Section 21. Merger, Amendments; Etc.

This Agreement, together with the other Loan Documents, represents the final agreement between the parties in respect of the subject matter hereof and may not be contradicted by evidence of prior, contemporaneous or oral agreements of the parties. There are no unwritten agreements between the parties. No waiver of any provision of this Agreement, and no consent to any departure by any Grantor herefrom, shall in any event be effective unless the same shall be in writing and signed by Administrative Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No amendment of any provision of this Agreement shall be effective unless the same shall be in writing and signed by Administrative Agent and each Grantor to which such amendment applies. Notwithstanding anything herein to the contrary, none of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with the last paragraph of Section 11.4 of the Credit Agreement (“Amendments, Waivers and Consents”).

Section 22. Addresses for Notices.

All notices and other communications provided for herein shall be (a) in writing, (b) delivered and deemed received in accordance with the procedures set forth in Section 11.3 of the Credit Agreement, and (c) addressed to the parties at the address, facsimile number or email address provided therein. Any party hereto may change its address, facsimile number or email address for notice and other communications hereunder by notice to all of the other parties hereto in accordance with the foregoing.

Section 23. Continuing Security Interest: Assignments under Credit Agreement.

(a) This Agreement shall create a continuing security interest in the Collateral and shall (i) remain in full force and effect until the Secured Obligations have been paid in full in accordance with the provisions of the Credit Agreement and the Commitments have expired or have been terminated, (ii) be binding upon each Grantor, and their respective successors and assigns, and (iii) inure to the benefit of, and be enforceable by, Administrative Agent, and its successors, transferees and assigns and the other Secured Parties and their successors and assigns. Without limiting the generality of the foregoing clause (iii), any Lender may, in accordance with the provisions of the Credit Agreement, assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Lender herein or otherwise. Upon payment in full of the Secured Obligations in accordance with the provisions of the Credit Agreement and the expiration or termination of the Commitments, the Guaranty made and the Security Interest granted hereby shall terminate and all rights to the Collateral shall revert to Grantors or any other Person entitled thereto. At such time, upon Borrowers’ request, Administrative Agent will authorize the filing of appropriate termination statements to terminate such Security Interest and will otherwise comply with its obligations under Section 10.13 of the Credit Agreement. No transfer or renewal, extension, assignment or termination of this Agreement or of the Credit Agreement, any other Loan Document, or any other instrument or document executed and delivered by any Grantor to Administrative Agent nor any additional Loans or other loans made by any Lender to the Borrowers, nor the taking of further security, nor the retaking or re-delivery of the Collateral to Grantors, or any of them, by Administrative Agent, nor any other act of the Secured Parties, or any of them, shall release any Grantor from any obligation, except as contemplated by Section 10.13 of the Credit Agreement. Administrative Agent shall not by any act, delay, omission or otherwise, be deemed to have waived any of its rights or remedies hereunder, unless such waiver is in writing and signed by Administrative Agent and then only to the extent therein set forth. A waiver by Administrative Agent of any right or remedy on any occasion shall not be construed as a bar to the exercise of any such right or remedy which Administrative Agent would otherwise have had on any other occasion.

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(b) Each Grantor agrees that, if any payment made by any Grantor or other Person and applied to the Secured Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or the proceeds of any Collateral are required to be returned by Administrative Agent or any other Secured Party to such Grantor, its estate, trustee, receiver or any other party, including any Grantor, under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, any Lien or other Collateral securing such liability shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, (i) any Lien or other Collateral securing such Grantor’s liability hereunder shall have been released or terminated by virtue of the foregoing clause (a), or (ii) any provision of the Guaranty hereunder shall have been terminated, cancelled or surrendered, such Lien, other Collateral or provision shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such Grantor in respect of any Lien or other Collateral securing such obligation or the amount of such payment.

Section 24. Exculpation of the Administrative Agent.

(a) Without limiting the exculpation provisions of the Credit Agreement, the Administrative Agent shall not be responsible to any Secured Party for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency hereof or of any Collateral Document or the validity or perfection of any security interest or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by the Administrative Agent to the Secured Parties or by or on behalf of any Secured Party to the Administrative Agent or any Secured Party in connection with the Collateral Documents and the transactions contemplated thereby or for the financial condition or business affairs of any Loan Party or any other Person liable for the payment of any Secured Obligations, nor shall the Administrative Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Collateral Documents or as to the existence or possible existence of any Event of Default or Default or to make any disclosures with respect to the foregoing.

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(b) Neither the Administrative Agent nor any of its officers, partners, directors, employees or agents shall be liable to any Secured Party for any action taken or omitted by the Administrative Agent under or in connection with any of the Collateral Documents except to the extent caused solely and proximately by the Administrative Agent’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. The Administrative Agent shall be entitled to refrain from any act or the taking of any action in connection herewith or any of the Collateral Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until the Administrative Agent shall have been instructed in respect thereof by the Required Lenders and, upon such instruction, the Administrative Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such written instructions. Without prejudice to the generality of the foregoing, (i) the Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for the Grantors and their Subsidiaries), accountants, experts and other professional advisors selected by it; and (ii) no Secured Party shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting hereunder or under any of the Collateral Documents in accordance with the Credit Agreement.

(c) Without limiting the indemnification provisions of the Credit Agreement, each Secured Party not party to the Credit Agreement severally agrees to indemnify the Administrative Agent, to the extent that the Administrative Agent shall not have been reimbursed by any Loan Party, for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent in exercising its powers, rights and remedies or performing its duties hereunder or under the Collateral Documents or otherwise in its capacity as the Administrative Agent in any way relating to or arising out of this Agreement or the Collateral Documents; provided, no such Secured Party shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely and proximately from the Administrative Agent’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. If any indemnity furnished to the Administrative Agent for any purpose shall, in the opinion of the Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for additional indemnity and cease, or not commence, to do the acts insufficiently indemnified against until such additional indemnity is furnished.

(d) No direction given to the Administrative Agent which imposes, or purports to impose, upon the Administrative Agent any obligation not set forth in or arising under this Agreement or any Collateral Document accepted or entered into by the Administrative Agent shall be binding upon the Administrative Agent.

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Section 25. No Individual Foreclosure, Etc.

No Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any guarantee of the Secured Obligations except to the extent expressly contemplated by this Agreement or the other Loan Documents, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the guarantees of the Secured Obligations provided hereunder and under any other Loan Documents, to have agreed to the foregoing provisions and the other provisions of this Agreement. Without limiting the generality of the foregoing, each Secured Party authorizes the Administrative Agent to credit bid all or any part of the Secured Obligations held by it.

Section 26. Taxes.

The terms and provisions of Section 11.1 of the Credit Agreement are hereby incorporated by reference herein as if fully set forth herein, and each Grantor agrees that the terms of Section 11.1 of the Credit Agreement shall apply to such Grantor, mutatis mutandis .

Section 27. Set-Off.

Each Grantor hereby irrevocably authorizes Administrative Agent, for the benefit of each Secured Party, at any time and from time to time while an Event of Default shall have occurred and be continuing, without notice to such Grantor or any other Grantor, any such notice being expressly waived by each Grantor, to set-off and appropriate and apply any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, at any time held or owing by any Secured Party to or for the credit or the account of such Grantor, or any part thereof in such amounts as the Administrative Agent may elect, against and on account of the obligations and liabilities then due and owing by such Grantor to such Secured Party hereunder, under the Credit Agreement or any other Loan Document. Administrative Agent, when exercising any right of set-off, shall notify such Grantor promptly of any such set-off and the application made by such Person of the proceeds thereof; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of Administrative Agent under this Section 27 are in addition to other rights and remedies (including other rights of set-off) which Administrative Agent may have.

Section 28. Survival.

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

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Section 29. Governing Law; Jurisdiction, Waiver of Jury Trial, etc.

(a) This Agreement and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions contemplated hereby shall be governed by, and construed in accordance with, the law of the State of New York for contracts made and to be performed wholly within the State of New York, without regard to principles of conflicts of laws requiring application of the law of any other jurisdiction.

(b) Each Grantor irrevocably and unconditionally agrees that it will not commence, and will not permit any Subsidiary to commence, any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against any Secured Party or any Related Party of the foregoing in any way relating to this Agreement or the transactions relating hereto in any forum other than the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by applicable Legal Requirements, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Notwithstanding anything to the contrary, nothing in this Agreement shall affect any right that any Secured Party may otherwise have to bring any action or proceeding relating to this Agreement against any Grantor or its properties in the courts of any jurisdiction.

(c) Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable Legal Requirements, any right it may have to a trial by jury in any legal proceeding directly or indirectly arising out of or relating to this Agreement or the transactions contemplated hereby (whether based on contract, tort or any other theory). Each party hereto (i) certifies that no representative, agent or attorney of any other person has represented, expressly or otherwise, that such other person would not, in the event of litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties hereto have been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this clause (c) .

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(d) Each Grantor irrevocably and unconditionally waives, to the fullest extent permitted by applicable Legal Requirements, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement in any court referred to in clause (b) above. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable Legal Requirements, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court .

(e) No claim may be made by any grantor against Administrative Agent, any Lender, or any affiliate, director, officer, employee, counsel, representative, agent, or attorney-in-fact of any of them for any special, indirect, consequential, or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission, or event occurring in connection herewith, and each grantor hereby waives, releases, and agrees not to sue upon any claim for such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

( f ) Each Grantor hereby irrevocably and unconditionally waives, to the maximum extent not prohibited by applicable law, all rights of rescission, setoff, counterclaims, and other defenses in connection with the repayment of the Secured Obligations.

Section 30. New Subsidiaries.

Pursuant to Section 6.14 of the Credit Agreement, certain Subsidiaries (whether by acquisition or creation) of any Grantor are required to enter into this Agreement by executing and delivering in favor of Administrative Agent a Joinder to this Agreement in substantially the form of Annex 1. Upon the execution and delivery of Annex 1 by any such new Subsidiary, such Subsidiary shall become a Guarantor and Grantor hereunder with the same force and effect as if originally named as a Guarantor and Grantor herein. The execution and delivery of any instrument adding an additional Guarantor or Grantor as a party to this Agreement shall not require the consent of any Guarantor or Grantor hereunder. The rights and obligations of each Guarantor and Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Guarantor or Grantor hereunder.

Section 31. Administrative Agent.

Each reference herein to any right granted to, benefit conferred upon or power exercisable by the “Administrative Agent” shall be a reference to Administrative Agent, for the benefit of each of the Secured Parties.

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Section 32. Miscellaneous.

(a) This Agreement is a Loan Document. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement constitutes the entire contract among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 3 of the Credit Agreement, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by facsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis .

(b) Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.

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

(d) Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against any Secured Party or any Grantor, whether under any rule of construction or otherwise. This Agreement has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties hereto.

Section 33. Intercreditor Agreement.

(a) Each Person that is secured hereunder, by accepting the benefits of the security provided hereby, (i) consents (or is deemed to consent), to the subordination of Liens provided for in the Intercreditor Agreement, (ii) agrees (or is deemed to agree) that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement, (iii) authorizes (or is deemed to authorize) Administrative Agent on behalf of such Person to enter into, and perform under, the Intercreditor Agreement, and (iv) acknowledges (or is deemed to acknowledge) that a copy of the Intercreditor Agreement was delivered, or made available, to such Person.

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(b) Notwithstanding any other provision contained herein, this Agreement, the Liens created hereby and the rights, remedies, duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement, to the extent provided therein and the Collateral Documents. In the event of any conflict or inconsistency between the provisions of this Agreement and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall control.

(c) Notwithstanding anything herein to the contrary, prior to the Discharge of First Lien Obligations (as defined in the Intercreditor Agreement), the requirements of this Agreement to deliver Collateral to Administrative Agent shall be deemed satisfied by delivery of such Collateral to the First Lien Administrative Agent (as defined in the Intercreditor Agreement) as bailee for Administrative Agent pursuant to the Intercreditor Agreement.

[Signature Pages Follow]

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In Witness Whereof , the undersigned parties hereto have caused this Agreement to be executed and delivered as of the day and year first above written.

Grantors:

Turning Point Brands, Inc.

By	/s/ Mark A. Stegeman
	Name	Mark A. Stegeman
	Title	Senior Vice President and Chief Financial Officer

NATC Holding Company, Inc.

By	/s/ Mark A. Stegeman
	Name	Mark A. Stegeman
	Title	Senior Vice President and Chief Financial Officer

North Atlantic Trading Company, Inc.

By	/s/ Mark A. Stegeman
	Name	Mark A. Stegeman
	Title	Senior Vice President and Chief Financial Officer

Turning Point Brands, LLC

By	/s/ Mark A. Stegeman
	Name	Mark A. Stegeman
	Title	Senior Vice President and Chief Financial Officer

Intrepid Brands, LLC

By	/s/ Mark A. Stegeman
	Name	Mark A. Stegeman
	Title	Senior Vice President and Chief Financial Officer

[Signature Page to Second Lien Guaranty and Security Agreement]

National Tobacco Finance Corporation

By	/s/ Mark A. Stegeman
	Name	Mark A. Stegeman
	Title	Senior Vice President and Chief Financial Officer

North Atlantic Operating Company, Inc.

By	/s/ Mark A. Stegeman
	Name	Mark A. Stegeman
	Title	Senior Vice President and Chief Financial Officer

North Atlantic Cigarette Company, Inc.

By	/s/ Mark A. Stegeman
	Name	Mark A. Stegeman
	Title	Senior Vice President and Chief Financial Officer

Stoker, Inc.

By	/s/ Mark A. Stegeman
	Name	Mark A. Stegeman
	Title	Senior Vice President and Chief Financial Officer

National Tobacco Company, L.P.

By	/s/ Mark A. Stegeman
	Name	Mark A. Stegeman
	Title	Senior Vice President and Chief Financial Officer

[Signature Page to Second Lien Guaranty and Security Agreement]

RBJ Sales, Inc.

By	/s/ Mark A. Stegeman
	Name	Mark A. Stegeman
	Title	Senior Vice President and Chief Financial Officer

Smoke Free Technologies Inc.

By	/s/ Mark A. Stegeman
	Name	Mark A. Stegeman
	Title	Senior Vice President and Chief Financial Officer

[Signature Page to Second Lien Guaranty and Security Agreement]

Administrative Agent:

Prospect Capital Corporation , a Maryland corporation

By:	/s/ M. Grier Eliasek
	Name:	M. Grier Eliasek
	Title:	President and Chief Operating Officer

[Signature Page to Second Lien Guaranty and Security Agreement]

Schedule 1

Commercial Tort Claims

None.

Schedule 2

Copyrights

Copyright	Registration Number	Registration Date	Owner	Completed/ Published	Status
North Atlantic Operating Company, Inc. 2001	VAu000464855	10/11/2001	North Atlantic Operating Company, Inc.	2001 1/7/2002	Registered
DURANGO ARTWORK	VA 1-125-352	3/18/2002	National Tobacco Company, L.P.	1998 3/10/1998	Registered
TROPHY ARTWORK	VA 1-190-264	3/31/2003	National Tobacco Company, L.P.	1992 3/3/1992	Registered
DURANGO ZIPPER POUCH	VAu 985-273	3/30/2009	National Tobacco Company, L.P.	2008	Registered
SMOKING MAN (Design Only)	VA 1-673-145	6/23/2009	National Tobacco Company, L.P.	2008 4/2/2009	Registered
RED SUPREME (Design)	VAu 1-150-704	10/10/2013	National Tobacco Company, L.P.	2013	Registered
Bobby Stoker (with product)	VA 1-986-222	8/24/2015	National Tobacco Company, L.P.	2014 1/13/2015	Registered

Unregistered work-for-hire original works/designs (Smoke Free Technologies, Inc.)

Schedule 3

Intellectual Property Licenses

1.	Amended and Restated Distribution and License Agreement, dated as of November 30, 1992, between Bollore S.A. and North Atlantic Operating Company Inc. relating to the distribution of Zip Zag cigarette paper booklets and related products in the United States.

2.	Amended and Restated Distribution and License Agreement, dated as of November 30, 1992, between Bollore S.A. and North Atlantic Operating Company Inc. relating to the distribution of Zig Zag cigarette paper booklets and related products in Canada.

Schedule 4

Patents

Title	Country	Application Number Filing Date	Patent Number/Patent Publication Number Grant/Publication Date	Owner
Cigarette Making Machine	U.S.	29190624 09/23/2003	D494315 08/10/2004	North Atlantic Operating Company, Inc.
Cigarette Making Machine	CA	CA20040106343F 3/23/2004	CA106343(S) 12/28/2005	North Atlantic Operating Company, Inc.
Apparatus Comprising a Check Valve for Dispensing E-Liquids	U.S.	14/680,239 4/7/2015	US20150282530 A1 10/18/2015	Intrepid Brands, LLC.
Apparatus Comprising a Check Valve for Dispensing E-Liquids	WO	PCT/US15/24632 4/7/2015	WO 2015/157224 10/15/2015	Intrepid Brands, LLC.
Electronic Vaporizer	CA	161,794 3/31/2015	161,794 (design patent) 12/10/2015	Intrepid Brands, LLC.
Electronic Vaporizer	CN	201530147486.7 5/15/2015	ZL2015301474867 2/3/2016	Intrepid Brands, LLC.
Electronic Vaporizer	EM	002696443 5/7/2015	002696443-0001/0002 5/7/2015	Intrepid Brands, LLC.
Electronic Vaporizer	KR	30-2015-0024925 5/15/2015	N/A	Intrepid Brands, LLC.

Title	Country	Application Number Filing Date	Patent Number/Patent Publication Number Grant/Publication Date	Owner
Electronic Vaporizer	KR	30-2016-0008897 2/26/2016	N/A	Intrepid Brands, LLC.
Electronic Vaporizer	U.S.	29/509,355 11/17/2014	N/A	Intrepid Brands, LLC.
Electronic Vaporizer	VN	3-2015-00729 5/15/2015	N/A	Intrepid Brands, LLC.
Electronic Vaporizer	VN	3-2016-01027 5/15/2015	N/A	Intrepid Brands, LLC.
Personal Electronic Vaporizer	U.S.	15/013,500 2/2/2016	2016-0227838 A1 8/11/2016	Intrepid Brands, LLC.
Personal Electronic Vaporizer	WO	PCT/US16/16155 2/2/2016	WO 2016/126698 8/11/2016	Intrepid Brands, LLC.
Personal Electronic Vaporizer	U.S.	62/110,838 2/2/2015	N/A	Intrepid Brands, LLC.
Personal Electronic Vaporizer	U.S.	62/326,402 4/22/2016	N/A	Intrepid Brands, LLC.
Personal Electronic Vaporizer	U.S.	62/348,491 6/10/2016	N/A	Intrepid Brands, LLC.
Apparatus Comprising a Check Valve for Dispensing E-Liquids	U.S.	61/976,225 4/7/2014	N/A	Intrepid Brands, LLC.

Title	Country	Application Number Filing Date	Patent Number/Patent Publication Number Grant/Publication Date	Owner
Personal Electronic Vaporizer	CN	2016210327279 8/31/16	N/A	Intrepid Brands, LLC.
Wax Oven for Vaporizer	U.S.	62/372,087 8/8/2016	N/A	National Tobacco Company
Wickless Cartomizer	U.S.	62/374,164 8/12/2016	N/A	Intrepid Brands, LLC

Schedule 5

Pledged Companies

Company	Owner	Jurisdiction of Organization	No. (and type) of Issued Shares/units	Certificate No. (if any)	Percentage of Issuer’s Equity Interests

NATC Holding Company, Inc.	Turning Point Brands, Inc.	DE	10	2	100%

Turning Point Brands, LLC	Turning Point Brands, Inc.	DE	100% interest	N/A	100%

Intrepid Brands, LLC	Turning Point Brands, LLC	DE	100% interest	N/A	100%

North Atlantic Trading Company, Inc.	NATC Holding Company, Inc.	DE	10	V151	100%

National Tobacco Finance Corporation	North Atlantic Trading Company, Inc.	DE	100	4	100%

North Atlantic Operating Company, Inc.	North Atlantic Trading Company, Inc.	DE	100	3	100%

North Atlantic Cigarette Company, Inc.	North Atlantic Trading Company, Inc.	DE	100	3	100%

Stoker, Inc.	North Atlantic Trading Company, Inc.	TN	1130.376	3	100%

National Tobacco Company, L.P.	National Tobacco Finance Corporation	DE	1% interest	N/A	1%

National Tobacco Company, L.P.	North Atlantic Trading Company, Inc.	DE	99% interest	N/A	99%

RBJ Sales, Inc.	Stoker, Inc.	TN	100	2	100%

Fred Stoker & Sons, Inc.	Stoker, Inc.	TN	100	2	100%

Smoke Free Technologies Inc.	North Atlantic Trading Company, Inc.	CA	100,000 Shares	7	100%

Pledged Investment Property

PLEDGED NOTES

None.

SECURITIES ACCOUNTS

None.

COMMODITIES ACCOUNTS

None.

DEPOSIT ACCOUNTS

Company

Bank

Account #

Account Type

Address

Type of

Account

Description

Excluded

Deposit

Account

North Atlantic Operating Co., Inc.

JPMorgan Chase Bank-NAOC

619028038

Commercial Checking

PO Box 32500 Louisville, KY 40232

Deposit Account

No receipt; when funded, deposits come from Main A/C no disbursements, other than outgoing wires to pay Bollore

North Atlantic Operating Co., Inc.

JPMorgan Chase Bank-NAOC

00000204167-1062

Savings Letter of Credit

PO Box 32500 Louisville, KY 40232

Deposit Account

Letters of credit to support customs bond and other bonds

Yes

National Tobacco Company, L.P.

JPMorgan Chase Bank

938157575

Commercial Checking

PO Box 32500 Louisville, KY 40232

Deposit Account

Main A/C Incoming ACH Outgoing Wires, AP and lockbox sweeps

National Tobacco Company, L.P.

JPMorgan Chase Bank

938158300

NTC Lockbox

PO Box 32500 Louisville, KY 40232

Deposit Account

NTC Lockbox account AR incoming customer deposits sweeps to Main A/C

National Tobacco Company, L.P.

JPMorgan Chase Bank

938158623

A/P Disbursements

PO Box 32500 Louisville, KY 40232

Deposit Account

Outgoing Checks Issued sweeps to Main Account

National Tobacco Company, L.P.

JPMorgan Chase Bank

131395070

Sales retail checks

PO Box 32500 Louisville, KY 40232

Deposit Account

Sales checks to retailers sweeps to Main Account

North Atlantic Trading Co., Inc.

JPMorgan Chase Bank

3002784738

Savings

PO Box 32500 Louisville, KY 40232

Deposit Account

NATC account; $1000 balance

National Tobacco Finance Corp

JPMorgan Chase Bank

3003181462

Savings

PO Box 32500 Louisville, KY 40232

Deposit Account

NTFC account; $1000 balance

Intrepid Brands, LLC (sub of Turning Point Brands LLC)

JPMorgan Chase Bank

251378006

Commercial Checking

PO Box 32500 Louisville, KY 40232

Deposit Account

Main A/C; Incoming ACH; Outgoing Wires

Turning Point Brands LLC (sub of North Atlantic Holding Company)

JPMorgan Chase Bank

253713628

Commercial Checking

PO Box 32500 Louisville, KY 40232

Deposit Account

Main A/C; Incoming ACH; Outgoing Wires

Yes

North Atlantic Holding Company

JPMorgan Chase Bank

3002753493

Commercial Checking

PO Box 32500 Louisville, KY 40232

Deposit Account

NAHC account; $1000 balance

Yes

NATC Holding Company, Inc.

JPMorgan Chase Bank

532685216

Savings

PO Box 32500 Louisville, KY 40232

Deposit Account

NATC Holdings account

Yes

Smoke Free Technologies Inc.

Bank of Southern California

0402007720

Commercial Deposit

3142 Tiger Run Ct., #107 Carlsbad, CA 92010

Deposit Account

SFT account

National Tobacco Company, L.P.

BNY Mellon

758880

MSA Escrow Account

525 William Penn Place Pittsburgh, PA 15259

Investment Account

MSA required investment funded by Main A/C either quarterly or annually

Yes

North Atlantic Operating Co., Inc.

BNY Mellon

612415

MSA Escrow Account

525 William Penn Place Pittsburgh, PA 15259

Investment Account

MSA required investment funded by Main A/C either quarterly or annually

Yes

North Atlantic Cigarette Co., Inc.

BNY Mellon

612819

MSA Escrow Account

527 William Penn Place Pittsburgh, PA 15259

Investment Account

MSA required investment funded by Main A/C either quarterly or annually

Yes

RBJ

Regions Morgan Keegan Trust

5097000555

MSA Escrow Account

1100 Ridgeway Loop Road, Suite 100 Memphis, TN 38120

Investment Account

MSA required investment escrow account trust

Yes

Turning Point Brands Inc.

Fifth Third Bank

7146720581

Comm 53 Anlyzd

38 Fountain Square, Cincinnati, OH 45263

Deposit Account

Smoke Free Technologies Inc.

Fifth Third Bank

7146720599

Comm 53 Anlyzd

38 Fountain Square, Cincinnati, OH 45263

Deposit Account

Schedule 6

Trademarks

See attached.

Schedule 7

Name and Jurisdiction of Organization; Chief Executive Office;

Tax Identification Numbers and Organizational Numbers

Name of Grantor or Subsidiary	State of Formation	Organizational identification number	Federal employer identification number	Chief Executive Office

Turning Point Brands, Inc.	DE	3750086	20-0709285	5201 Interchange Way, Louisville, KY 40229

NATC Holding Company, Inc.	DE	5440563	31-1745504	5201 Interchange Way, Louisville, KY 40229

North Atlantic Trading Company, Inc.	DE	2751946	13-3961898	5201 Interchange Way, Louisville, KY 40229

Turning Point Brands, LLC	DE	5376660	90-1009141	5201 Interchange Way, Louisville, KY 40229

Intrepid Brands, LLC	DE	5376662	90-1008239	5201 Interchange Way, Louisville, KY 40229

National Tobacco Finance Corporation	DE	2555524	13-3888034	5201 Interchange Way, Louisville, KY 40229

North Atlantic Operating Company, Inc.	DE	2760360	22-3535757	5201 Interchange Way, Louisville, KY 40229

North Atlantic Cigarette Company, Inc.	DE	3587553	11-3686023	5201 Interchange Way, Louisville, KY 40229

National Tobacco Company, L.P.	DE	2150354	61-1133037	5201 Interchange Way, Louisville, KY 40229

Fred Stoker & Sons, Inc.	TN	0383804	62-1809726	201 West North Street, Dresden, TN 38225

RBJ Sales, Inc.	TN	0383805	62-1809727	201 West North Street, Dresden, TN 38225

Stoker, Inc.	TN	0194918	62-1328641	201 West North Street, Dresden, TN 38225

Smoke Free Technologies Inc.	CA	C3554854	46-2602783	5201 Interchange Way, Louisville, KY 40229

Schedule 8

[Reserved]

Schedule 9

List of Uniform Commercial Code Filing Jurisdictions

	Name of Loan Party		UCC Filing Jurisdiction

	Turning Point Brands, Inc.		Delaware

	NATC Holding Company, Inc.		Delaware

	North Atlantic Trading Company, Inc.		Delaware

	Turning Point Brands, LLC		Delaware

	Intrepid Brands, LLC		Delaware

	National Tobacco Finance Corporation		Delaware

	North Atlantic Operating Company, Inc.		Delaware

	North Atlantic Cigarette Company, Inc.		Delaware

	National Tobacco Company, L.P.		Delaware

	RBJ Sales, Inc.		Tennessee

	Stoker, Inc.		Tennessee

	Smoke Free Technologies Inc.		California

Schedule 10

Letter of Credit Rights

None.

Exhibit A

This Copyright Security Agreement (this “Copyright Security Agreement” ) is made this [_____] day of [_________] , 20__, by and among Grantors listed on the signature pages hereof (collectively, jointly and severally, “Grantors” and each individually “Grantor” ), and Prospect Capital Corporation , a Maryland corporation, in its capacity as agent for the Lenders and the other Secured Parties (in such capacity, together with its successors and assigns in such capacity, “Administrative Agent” ).

W i t n e s s e t h:

Whereas , pursuant to that certain Second Lien Credit Agreement dated as of February 17, 2017 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the “Credit Agreement” ), by and among Turning Point Brands, Inc., a Delaware corporation ( “Turning Point” ), and North Atlantic Trading Company, Inc., a Delaware corporation ( “NATC” ; Turning Point and NATC are each individually referred to herein as a “Borrower” and are collectively referred to herein as the “Borrowers” ), the Grantors party thereto, the various institutions from time to time party thereto as Lenders (each of such Lenders, together with its successors and assigns, is referred to hereinafter as a “Lender” ), Administrative Agent, and Fifth Third Bank, as Administrative Sub-Agent, the Lenders have agreed to make certain financial accommodations available to the Borrowers from time to time pursuant to the terms and conditions thereof; and

Whereas , the Lenders and the other Secured Parties are willing to make the financial accommodations to the Borrowers as provided for in the Credit Agreement and the other Loan Documents, but only upon the condition, among others, that Grantors shall have executed and delivered to Administrative Agent, for the benefit of the Secured Parties, that certain Second Lien Guaranty and Security Agreement, dated as of February 17, 2017 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, amended and restated, supplemented or otherwise modified, the “Guaranty and Security Agreement” ); and

Whereas , pursuant to the Guaranty and Security Agreement, Grantors are required to execute and deliver to Administrative Agent, for the benefit of the Secured Parties, this Copyright Security Agreement;

Now, Therefore , in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantors hereby agree as follows:

Section 1. Defined Terms.

All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Guaranty and Security Agreement or, if not defined therein, in the Credit Agreement, and this Copyright Security Agreement shall be subject to the rules of construction set forth in Section 1(b) of the Guaranty and Security Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis .

Section 2. Grant of Security Interest in Copyright Collateral.

Each Grantor hereby unconditionally grants, assigns, and pledges to Administrative Agent, for the benefit of each Secured Party, to secure the Secured Obligations, a continuing security interest (referred to in this Copyright Security Agreement as the “Security Interest” ) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising and wherever located (collectively, the “Copyright Collateral” ):

(1) all works of authorship and all intellectual property rights therein, all United States and foreign copyrights (whether or not the underlying works of authorship have been published), including copyrights in software and databases, all designs (including all industrial designs, “Protected Designs” within the meaning of 17 U.S.C. § 1301 et. seq. and Community designs), and all “Mask Works” (as defined in 17 U.S.C. § 901 of the U.S. Copyright Act), whether registered or unregistered, and with respect to any and all of the foregoing:

(i) all registrations and applications for registration thereof including the registrations and applications listed in Schedule I attached hereto,

(ii) all extensions, renewals, and restorations thereof,

(iii) all rights to sue or otherwise recover for any past, present and future infringement or other violation thereof,

(iv) all Proceeds of the foregoing, including license fees, royalties, income, payments, claims, damages and proceeds of suit now or hereafter due and/or payable with respect thereto, and

(v) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

Section 3. Security For Secured Obligations.

This Copyright Security Agreement and the Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Copyright Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Administrative Agent, the other Secured Parties or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

-2-

Section 4. Security Agreement.

The Security Interest granted pursuant to this Copyright Security Agreement is granted in conjunction with the security interests granted to Administrative Agent, for the benefit of the Secured Parties, pursuant to the Guaranty and Security Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of Administrative Agent with respect to the Security Interest in the Copyright Collateral made and granted hereby are more fully set forth in the Guaranty and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any inconsistency between this Copyright Security Agreement and the Guaranty and Security Agreement, the Guaranty and Security Agreement shall control.

Section 5. Counterparts.

This Copyright Security Agreement is a Loan Document. This Copyright Security Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Copyright Security Agreement constitutes the entire contract among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Copyright Security Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Copyright Security Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Copyright Security Agreement.

Section 6. Choice of Law, Jurisdiction and Venue, Jury Trial Waiver, And Judicial Reference Provision.

All terms of Section 29 of the Guaranty and Security Agreement (“Governing Law; Jurisdiction, Waiver of Jury Trial, etc.”) are incorporated herein by this reference, and shall apply to this Copyright Security Agreement, mutatis mutandis .

[ Signature Page Follows ]

-3-

In Witness Whereof , the parties hereto have caused this Copyright Security Agreement to be executed and delivered as of the day and year first above written.

Grantors :

	By:
		Name:
		Title:


	By:
		Name:
		Title:

	Accepted and Acknowledged By:

Administrative Agent :	Prospect Capital Corporation , a Maryland corporation

	By:
		Name:
		Title:

[Signature Page to Copyright Security Agreement]

Schedule I

Grantor

Country

Registration No.

Registration

Date

Exhibit B

Patent Security Agreement

This Patent Security Agreement (this “Patent Security Agreement” ) is made this [_____] day of [__________] , 20__, by and among Grantors listed on the signature pages hereof (collectively, jointly and severally, “Grantors” and each individually “Grantor” ), and Prospect Capital Corporation , a Maryland corporation, in its capacity as agent for the Lenders and the other Secured Parties (in such capacity, together with its successors and assigns in such capacity, “Administrative Agent” ).

W i t n e s s e t h:

Whereas , pursuant to the Guaranty and Security Agreement, Grantors are required to execute and deliver to Administrative Agent, for the benefit of the Secured Parties, this Patent Security Agreement;

Section 1. Defined Terms.

All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Guaranty and Security Agreement or, if not defined therein, in the Credit Agreement, and this Patent Security Agreement shall be subject to the rules of construction set forth in Section 1(b) of the Guaranty and Security Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis .

Section 2. Grant of Security Interest in Patent Collateral.

Each Grantor hereby unconditionally grants, assigns, and pledges to Administrative Agent, for the benefit of each of the Secured Parties, to secure the Secured Obligations, a continuing security interest (referred to in this Patent Security Agreement as the “Security Interest” ) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising and wherever located (collectively, the “Patent Collateral” ):

(1) all patentable inventions and designs, all United States, foreign, and multinational patents, certificates of invention, and similar industrial property rights, and applications for any of the foregoing, including:

(i) each patent and patent application listed in Schedule I attached hereto,

(ii) all reissues, substitutes, divisions, continuations, continuations‑in‑part, extensions, renewals, and reexaminations thereof,

(iii) all inventions and improvements described and claimed therein,

(iv) all rights to sue or otherwise recover for any past, present and future infringement or other violation thereof,

(v) all Proceeds of the foregoing, including license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto, income, royalties, damages and other payments now and hereafter due and/or payable with respect thereto, and

(vi) all other rights of any accruing thereunder or pertaining thereto throughout the world.

Section 3. Security For Secured Obligations.

This Patent Security Agreement and the Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Patent Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Administrative Agent, the other Secured Parties or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

-2-

Section 4. Security Agreement.

The Security Interest granted pursuant to this Patent Security Agreement is granted in conjunction with the security interests granted to Administrative Agent, for the benefit of the Secured Parties, pursuant to the Guaranty and Security Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of Administrative Agent with respect to the Security Interest in the Patent Collateral made and granted hereby are more fully set forth in the Guaranty and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any inconsistency between this Patent Security Agreement and the Guaranty and Security Agreement, the Guaranty and Security Agreement shall control.

Section 5. Counterparts.

This Patent Security Agreement is a Loan Document. This Patent Security Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Patent Security Agreement constitutes the entire contract among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Patent Security Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Patent Security Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Patent Security Agreement.

Section 6. Choice of Law, Jurisdiction and Venue, Jury Trial Waiver, And Judicial Reference Provision.

[ Signature Page Follows ]

-3-

In Witness Whereof , the parties hereto have caused this Patent Security Agreement to be executed and delivered as of the day and year first above written.

Grantors :

	By:
		Name:
		Title:


	By:
		Name:
		Title:

	Accepted and Acknowledged By:

Administrative Agent :	Prospect Capital Corporation , a Maryland corporation

	By:
		Name:
		Title:

[Signature Page to Patent Security Agreement]

Schedule I

Patent Security Agreement

Patents and Patent Applications

Grantor

Country

Patent

Application

/ Patent No.

Filing Date

Issue Date

Exhibit C

Pledged Interests Addendum

This Pledged Interests Addendum, dated as of ___________, 20__ (this “Pledged Interests Addendum” ), is delivered pursuant to Section 7 of the Guaranty and Security Agreement referred to below. The undersigned hereby agrees that this Pledged Interests Addendum may be attached to that certain Second Lien Guaranty and Security Agreement, dated as of February 17, 2017 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the “Guaranty and Security Agreement” ), made by the undersigned, together with the other Grantors named therein, to Prospect Capital Corporation , a Maryland corporation, as Administrative Agent. Initially capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Guaranty and Security Agreement or, if not defined therein, in the Credit Agreement, and this Pledged Interests Addendum shall be subject to the rules of construction set forth in Section 1(b) of the Guaranty and Security Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis . The undersigned hereby agrees that the additional interests listed on Schedule I shall be and become part of the Pledged Interests pledged by the undersigned to Administrative Agent in the Guaranty and Security Agreement and any pledged company set forth on Schedule I shall be and become a “Pledged Company” under the Guaranty and Security Agreement, each with the same force and effect as if originally named therein.

This Pledged Interests Addendum is a Loan Document. This Pledged Interests Addendum may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Pledged Interests Addendum constitutes the entire contract among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Pledged Interests Addendum shall become effective when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the parties hereto. Delivery of an executed counterpart of a signature page of this Pledged Interests Addendum by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Pledged Interests Addendum.

The undersigned hereby certifies that the representations and warranties set forth in Section 6 of the Guaranty and Security Agreement of the undersigned are true and correct as to the Pledged Interests listed herein on and as of the date hereof.

[ Signature Page Follows ]

In Witness Whereof , the undersigned has caused this Pledged Interests Addendum to be executed and delivered as of the day and year first above written.

[_____________________________]

	By:
		Name:
		Title:

Schedule I

Pledged Interests Addendum

Pledged Interests

Name of

Grantor

Name of

Pledged

Company

Number of

Shares/Units

Class of

Interests

Percentage

of Class

Owned

Certificate

Nos.

Exhibit D

Trademark Security Agreement

This Trademark Security Agreement (this “Trademark Security Agreement” ) is made this [_____] day of [_________] , 20__, by and among Grantors listed on the signature pages hereof (collectively, jointly and severally, “Grantors” and each individually “Grantor” ), and Prospect Capital Corporation , a Maryland corporation, in its capacity as agent for the Lenders and the other Secured Parties (in such capacity, together with its successors and assigns in such capacity, “Administrative Agent” ).

W i t n e s s e t h:

Whereas , pursuant to the Guaranty and Security Agreement, Grantors are required to execute and deliver to Administrative Agent, for the benefit of the Secured Parties, this Trademark Security Agreement;

Section 1. Defined Terms.

All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Guaranty and Security Agreement or, if not defined therein, in the Credit Agreement, and this Trademark Security Agreement shall be subject to the rules of construction set forth in Section 1(b) of the Guaranty and Security Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis .

Section 2. Grant of Security Interest in Trademark Collateral.

Each Grantor hereby unconditionally grants, assigns, and pledges to Administrative Agent, for the benefit of each of the Secured Parties, to secure the Secured Obligations, a continuing security interest (referred to in this Trademark Security Agreement as the “Security Interest” ) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising and wherever located (collectively, the “Trademark Collateral” ):

(1) all domestic, foreign and multinational trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade dress, trade styles, logos, Internet domain names, other indicia of origin or source identification, and general intangibles of a like nature, whether registered or unregistered, and with respect to any and all of the foregoing:

(i) all registrations and applications for registration thereof including the registrations and applications listed in Schedule I attached hereto,

(ii) all extension and renewals thereof,

(iii) all of the goodwill of the business connected with the use of and symbolized by any of the foregoing,

(iv) all rights to sue or otherwise recover for any past, present and future infringement, dilution, or other violation thereof,

(v) all Proceeds of the foregoing, including license fees, royalties, income, payments, claims, damages and proceeds of suit now or hereafter due and/or payable with respect thereto, and

(vi) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

Notwithstanding anything herein to the contrary, in no event shall the Trademark Collateral include or the security interest granted hereunder attach to any “intent‑to‑use” trademark application to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of any registration issuing from such intent‑to‑use trademark application under applicable federal law; provided that, upon filing with the United States Patent and Trademark Office of an amendment to allege use pursuant to 15 U.S.C. § 1051(c) or a statement of use under 15 U.S.C. § 1051(d) (or any successor provisions), such intent‑to‑use application shall be considered Trademark Collateral.

-2-

Section 3. Security For Secured Obligations.

This Trademark Security Agreement and the Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Trademark Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Administrative Agent, the other Secured Parties or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

Section 4. Security Agreement.

The Security Interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interests granted to Administrative Agent, for the benefit of the Secured Parties, pursuant to the Guaranty and Security Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of Administrative Agent with respect to the Security Interest in the Trademark Collateral made and granted hereby are more fully set forth in the Guaranty and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any inconsistency between this Trademark Security Agreement and the Guaranty and Security Agreement, the Guaranty and Security Agreement shall control.

Section 5. Counterparts.

This Trademark Security Agreement is a Loan Document. This Trademark Security Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Trademark Security Agreement constitutes the entire contract among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Trademark Security Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Trademark Security Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Trademark Security Agreement.

Section 6. Choice of Law, Jurisdiction and Venue, Jury Trial Waiver, And Judicial Reference Provision.

[ Signature Page Follows ]

-3-

In Witness Whereof , the parties hereto have caused this Trademark Security Agreement to be executed and delivered as of the day and year first above written.

Grantors :


	By:
		Name:
		Title:


	By:
		Name:
		Title:

	Accepted and Acknowledged By:

Administrative Agent :	Prospect Capital Corporation , a Maryland corporation

	By:
		Name:
		Title:

[Signature Page to Trademark Security Agreement]

Schedule I

Trademark Security Agreement

Trademark Registrations/Applications

Grantor

Country

Mark

Application/

Registration No.

App/Reg Date

Delaware	001-37763	20-0709285
(State or other jurisdiction of incorporation or organization)	(Commission File Number)	(I.R.S. Employer Identification No.)

Exhibit No.		Description

10.1		First Lien Credit Agreement, dated as of February 17, 2017, by and among Turning Point Brands, Inc. and North Atlantic Trading Company, Inc., as the Borrowers, Fifth Third Bank, as administrative agent, and the lenders party thereto.

10.2		Second Lien Credit Agreement, dated as of February 17, 2017, by and among Turning Point Brands, Inc. and North Atlantic Trading Company, Inc., as the Borrowers, Prospect Capital Corporation, as administrative agent, and the lenders party thereto.

10.3		First Lien Guaranty and Security Agreement, dated as of February 17, 2017, by and among Turning Point Brands, Inc. and its subsidiaries, as the Grantors, Fifth Third Bank, as administrative agent, and the lenders party thereto.

10.4		Second Lien Guaranty and Security Agreement, dated as of February 17, 2017, by and among Turning Point Brands, Inc. and its subsidiaries, as the Grantors, Prospect Capital Corporation, as administrative agent, and the lenders party thereto.

10.5		Second Lien Intercreditor Agreement, dated as of February 17, 2017, by and among Turning Point Brands, Inc., North Atlantic Trading Company, Inc. and the other grantors party thereto, Fifth Third Bank, as first lien collateral agent, and Prospect Capital Corporation, as second lien collateral agent.

99.1		Press Release dated February 17, 2017.

	TURNING POINT BRANDS, INC.

Date: February 21, 2017	By	/s/ James Dobbins
		James Dobbins
		Senior Vice President, General Counsel and Secretary

Exhibit No.		Description

10.1		First Lien Credit Agreement, dated as of February 17, 2017, by and among Turning Point Brands, Inc. and North Atlantic Trading Company, Inc., as the Borrowers, Fifth Third Bank, as administrative agent, and the lenders party thereto.

10.2		Second Lien Credit Agreement, dated as of February 17, 2017, by and among Turning Point Brands, Inc. and North Atlantic Trading Company, Inc., as the Borrowers, Prospect Capital Corporation, as administrative agent, and the lenders party thereto.

10.3		First Lien Guaranty and Security Agreement, dated as of February 17, 2017, by and among Turning Point Brands, Inc. and its subsidiaries, as the Grantors, Fifth Third Bank, as administrative agent, and the lenders party thereto.

10.4		Second Lien Guaranty and Security Agreement, dated as of February 17, 2017, by and among Turning Point Brands, Inc. and its subsidiaries, as the Grantors, Prospect Capital Corporation, as administrative agent, and the lenders party thereto.

10.5		Second Lien Intercreditor Agreement, dated as of February 17, 2017, by and among Turning Point Brands, Inc., North Atlantic Trading Company, Inc. and the other grantors party thereto, Fifth Third Bank, as first lien collateral agent, and Prospect Capital Corporation, as second lien collateral agent.

99.1		Press Release dated February 17, 2017.

Level	Consolidated Senior Leverage Ratio for such Pricing Date	Priority Applicable Margin for Base Rate Loans with respect to Revolving Credit, Priority Term Credit and Reimbursement Obligations shall be:	Priority Applicable Margin for Eurodollar Loans with respect to Revolving Credit, Priority Term Credit, and L/C Participation Fees shall be:	Priority Applicable Margin for commitment fee with respect to Revolving Credit shall be:

I	Greater than or equal to 3.50 to 1.00	2.50%	3.50%	0.50%

II	Less than 3.50 to 1.00, but greater than or equal to 3.00 to 1.00	2.25%	3.25%	0.45%

III	Less than 3.00 to 1.00, but greater than or equal to 2.50 to 1.00	2.00%	3.00%	0.40%

Exhibit A	—	Notice of Payment Request
Exhibit B	—	Notice of Borrowing
Exhibit C	—	Notice of Continuation/Conversion
Exhibit D‑1	—	Priority Term Note
Exhibit D‑2	—	Second Out Term Note
Exhibit D‑3	—	Revolving Note
Exhibit D‑4	—	Swing Note
Exhibit D‑5	—	Incremental Priority Term Note
Exhibit D‑6	—	Incremental Second Out Term Note
Exhibit E	—	Officer’s Compliance Certificate
Exhibit F	—	Assignment and Assumption
Exhibit G	—	Subordination Terms
Schedule 1	—	Commitments
Schedule 5.1	—	Jurisdictions of Organization
Schedule 5.2	—	Ownership
Schedule 5.6	—	Tax Returns and Payments
Schedule 5.9	—	Employee Benefit Matters
Schedule 5.12	—	Material Contracts; Customers and Suppliers
Schedule 5.13	—	Employee Relations
Schedule 5.18	—	Title to Properties
Schedule 5.26	—	Insurance
Schedule 6.14(d)	—	Real Property Collateral
Schedule 6.23	—	Post‑Closing Matters
Schedule 7.1	—	Indebtedness
Schedule 7.2	—	Liens
Schedule 7.3	—	Investments
Schedule 7.7	—	Transactions with Affiliates

Principal Installment Due Date	Principal Installment Payment Amount

June 30, 2017	$	1,375,000

September 30, 2017	$	1,375,000

December 31, 2017	$	1,375,000

March 31, 2018	$	1,375,000

June 30, 2018	$	1,375,000

September 30, 2018	$	1,375,000

December 31, 2018	$	1,375,000

March 31, 2019	$	1,375,000

June 30, 2019	$	2,062,500

September 30, 2019	$	2,062,500

December 31, 2019	$	2,062,500

March 31, 2020	$	2,062,500

June 30, 2020	$	2,062,500

September 30, 2020	$	2,062,500

December 31, 2020	$	2,062,500

March 31, 2021	$	2,062,500

June 30, 2021	$	2,750,000

September 30, 2021	$	2,750,000

December 31, 2021	$	2,750,000

“Lenders”

Fifth Third Bank , an Ohio banking corporation , as a Lender, as L/C Issuer, and as Administrative Agent

By	/s/ Michael Guenthner
	Name	Michael Guenthner
	Title	Senior Vice President

Capital One, National Association, as a Lender and as Syndication Agent

By	/s/ Tavis B. Maxwell
	Name	Tavis B. Maxwell
	Title	Director

Regions Bank, as a Lender and as Documentation Agent

By	/s/ Meera Patez
	Name	Meera Patez
	Title	Director

PBI Bank, Inc. as a Lender

By	/s/ Joseph C. Seiler
	Name	Joseph C. Seiler
	Title	Executive Vice President

Trustmark National Bank, as a Lender

By	/s/ Richard Marsh
	Name	Richard Marsh
	Title	Senior Vice President

HMS Income Fund, as a Lender

By	/s/ Alejandro Paloma
	Name	Alejandro Paloma
	Title	Authorized Agent

Main Street Capital Corporation, as a Lender

By	/s/ Nick Meserve
	Name	Nick Meserve
	Title	Managing Director

I-45 SPV LLC, as a Lender

By	/s/ Josh Weinstein
	Name	Josh Weinstein
	Title	Principal

	Turning Point Brands, Inc., as Borrowers’ Agent

	By
		Name
		Title

A.	Section 7.15(a) Consolidated Total Leverage Ratio

	(I)	Consolidated Funded Indebtedness	$____________

	(II)	Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending on the Statement Date (See Schedule 2)	$____________

	(III)	Line A.(I) divided by A.(II)	____ to 1.00

	(IV)	Maximum permitted Consolidated Total Leverage Ratio as set forth in Section 7.15(a) of the Credit Agreement	____ to 1.00

B.	Section 7.15(b) Consolidated Senior Leverage Ratio

	(I)	Consolidated Senior Funded Indebtedness	$____________

	(II)	Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending on the Statement Date (See Schedule 2)	$____________

	(III)	Line B.(I) divided by B.(II)	____ to 1.00

	(IV)	Maximum permitted Consolidated Senior Leverage Ratio as set forth in Section 7.15(b) of the Credit Agreement	____ to 1.00

C.	Section 7.15(c) Consolidated Fixed Charge Coverage Ratio

	(I)	Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending on the Statement Date (See Schedule 2)	$____________

	(II)	Operating lease expenses (determined in accordance with GAAP as in effect on the Closing Date) paid by Turning Point and its Subsidiaries for the period of four (4) consecutive fiscal quarters ending on the Statement Date	$____________

	(III)	Capital Expenditures made by Turning Point and its Subsidiaries not financed with Indebtedness for the period of four (4) consecutive fiscal quarters ending on the Statement Date	$____________

(IV)	Federal, state and local income taxes paid in cash by Turning Point and its Subsidiaries for the period of four (4) consecutive fiscal quarters ending on or immediately prior to the Statement Date	$____________

(V)	Restricted Payments made by Turning Point and its Subsidiaries for the period of four (4) consecutive fiscal quarters ending on the Statement Date	$____________

(VI)	Line C.(I) plus C.(II) minus C.(III) minus C.(IV) minus C.(V)	$____________

(VII)	Consolidated Fixed Charges for the period of four (4) consecutive fiscal quarters ending on the Statement Date (See Schedule 3)	$____________

(VIII)	Line C.(VI) divided by C.(VII)	____ to 1.00

(IX)	Minimum permitted Consolidated Fixed Charge Coverage Ratio as set forth in Section 7.15(c) of the Credit Agreement	1.20 to 1.00

	Consolidated Net Income	Quarter 1 ended __/__/__	Quarter 2 ended __/__/__	Quarter 3 ended __/__/__	Quarter 4 ended __/__/__	Total (Quarters 1‑4)

(1)	Net income (or loss) for such period ¹

(2)	The following amounts, without duplication, to the extent included in determining net income for such period:

	(a) Net income (or loss) of any Person (other than a Subsidiary which shall be subject to Line (2)(c) below) in which Turning Point or any of its Subsidiaries has a joint interest with a third party, except to the extent such net income is actually paid in cash by dividend or other distribution during such period

	(b) Net income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of Turning Point or any of its Subsidiaries or that Person’s assets are merged into or consolidated with Turning Point or any of its Subsidiaries or that Person’s assets are acquired by Turning Point or any of its Subsidiaries, except to the extent included pursuant to Line (2)(a)

	Consolidated EBITDA	Quarter 1 ended __/__/__	Quarter 2 ended __/__/__	Quarter 3 ended __/__/__	Quarter 4 ended __/__/__	Total (Quarters 1‑4)

(1)	Consolidated Net Income for such period (See Schedule I)

(2)	The following amounts, without duplication, to the extent deducted in determining Consolidated Net Income for such period:

	(a) income taxes payable during such period

	(b) Consolidated Interest Expense for such period

	(c) amortization of intangible assets during such period

	(d) depreciation of fixed assets during such period

	(e) extraordinary losses during such period ²

	(f) non‑cash charges or non‑cash losses or non‑cash items (including, but not limited to, unrealized losses on the TMSA Account, but excluding any non-cash charge, loss or expense that is an accrual of a reserve for a cash expense or payment to be made or anticipated to be made, in a future period and, for the avoidance of doubt, accruals reserved for bad debt and similar write downs) for such period decreasing Consolidated Net Income (excluding any non‑cash item to the extent it represents an accrual of or reserve for cash disbursements for any subsequent period, amortization of a prepaid cash expense that was paid in a prior period or a reserve for cash charges to be taken in the future)

	Consolidated Fixed Charges	Quarter 1 ended __/__/__	Quarter 2 ended __/__/__	Quarter 3 ended __/__/__	Quarter 4 ended __/__/__	Total (Quarters 1‑4)

(1)	Consolidated Interest Expense for such period

(2)	Scheduled principal payments with respect to Indebtedness for such period ⁷

(3)	Operating lease expenses paid during such period

(4)	Line (1) plus Line (2) plus Line (3)

1.	Assignor:	[ Insert Name of Assignor ] [is] [is not] a Defaulting Lender.

2.	Assignee(s):	See Schedules attached hereto.

3.	Borrowers:	Turning Point Brands, Inc., a Delaware corporation, and North Atlantic Trading Company, Inc., a Delaware corporation

4.	Administrative Agent:	Fifth Third Bank, an Ohio banking corporation, as administrative agent under the Credit Agreement

5.	Credit Agreement:	First Lien Credit Agreement dated as of February 17, 2017, by and among Turning Point Brands, Inc., a Delaware corporation, North Atlantic Trading Company, Inc., a Delaware corporation, the Guarantors party thereto, the Lenders party thereto, and Fifth Third Bank, as Administrative Agent and L/C Issuer

6.	Assigned Interest:	See Schedules attached hereto

[7.	Trade Date:	__________________] ⁴

	Assignor

	[ Name of Assignor ]

	By:
		Name:
		Title:

	Assignees

	See Schedules attached hereto

[Consented to and] ⁵ Accepted:

Fifth Third Bank , as Administrative Agent and an Arranger

By
	Title:

Capital One, National Association , as an Arranger

By
	Title:

Regions Capital Markets, a division of Regions Bank , as an Arranger ⁶

By
	Title:

[Consented to:] ⁷

Turning Point Brands, Inc .

By
	Title:

North Atlantic Trading Company, Inc .

By
	Title:

Facility Assigned ¹	Aggregate Amount of Commitment/Loans for all Lenders ²	Amount of Commitment/Loans Assigned ³	Percentage Assigned of Commitment/Loans ⁴		CUSIP Number
	$		$	%
	$		$	%
	$		$	%

	[Name of Assignee ] ⁵
	[and is an Affiliate/Approved Fund of [identify Lender] ⁶ ]

	By:
		Title:

	“Subordinated Creditor”

	[______________________]

	By :
		Name:
		Title:

	Address:

	Telecopy:

Name of Lender	Priority Term Loan Commitment		Second Out Term Loan Commitment		Revolving Credit Commitment
Fifth Third Bank	$	39,904,914.22	$	13,000,000.00	$	16,145,038.17
Capital One, National Association	$	31,854,961.83		-	$	16,145,038.17
Regions Bank	$	23,227,576.34		-	$	11,772,423.66
PBI Bank, Inc.	$	6,875,000.00		-	$	3,125,000.00
Trustmark National Bank	$	6,187,500.00		-	$	2,812,500.00
Venture VII CDO, Limited	$	1,950,047.61		-		-
Main Street Capital Corporation		-	$	8,500,000.00		-
HMS Income Fund, Inc.		-	$	8,500,000.00		-
I-45 SPV LLC		-	$	5,000,000.00		-
Total:	$	110,000,000.00	$	35,000,000.00	$	50,000,000.00

Owner	Name of Subsidiary Issuer	Type of Organization (e.g., corporation, partnership, limited liability company)	Jurisdiction of Organization	No. (and type) of Issued Shares/units	Certificate No. (if any)	Percentage of Issuer’s Equity Interests
Turning Point Brands, Inc.	NATC Holding Company, Inc.	Corporation	DE	10	2	100%
Turning Point Brands, Inc.	Turning Point Brands, LLC	Limited Liability Corporation	DE	100% interest	N/A	100%
Turning Point Brands, LLC	Intrepid Brands, LLC	Limited Liability Corporation	DE	100% interest	N/A	100%
NATC Holding Company, Inc.	North Atlantic Trading Company, Inc.	Corporation	DE	10	V151	100%
North Atlantic Trading Company, Inc.	National Tobacco Finance Corporation	Corporation	DE	100	4	100%
North Atlantic Trading Company, Inc.	North Atlantic Operating Company, Inc.	Corporation	DE	100	3	100%
North Atlantic Trading Company, Inc.	North Atlantic Cigarette Company, Inc.	Corporation	DE	100	3	100%
North Atlantic Trading Company, Inc.	Stoker, Inc.	Corporation	TN	1130.376	3	100%
National Tobacco Finance Corporation	National Tobacco Company, L.P.	Limited Partnership	DE	1% interest	N/A	1%
North Atlantic Trading Company, Inc.	National Tobacco Company, L.P.	Limited Partnership	DE	99% interest	N/A	99%

Stoker, Inc.	RBJ Sales, Inc.	Corporation	TN	100	2	100%
Stoker, Inc.	Fred Stoker & Sons, Inc.	Corporation	TN	100	2	100%
North Atlantic Trading Company, Inc.	Smoke Free Technologies Inc.	Corporation	CA	100,000 Shares	7	100%

Complete Street Address	Usage	Owned/Leased (and if Leased, Name of Landlord)
777 Boston Post Road, 3 ^rd Floor Darien, CT 06820	Office Operations	Lease Fidelity Building Company c/o Gretsch Commercial Real Estate 76 Maple Tree Ave. Stamford, CT 06906

5201 Interchange Way Louisville, KY 40229	Manufacturing, R&D, warehousing, distribution and administration	Lease Exeter 5201 Interchange, LLC 140 W. Germantown Pike Suite 150 Plymouth Meeting, PA 19462

201 North Street Dresden, TN 38255	Manufacturing	Owned National Tobacco Company, L.P. 5201 Interchange Way Louisville, KY 40229

1900 Wright Place Suite 250 San Diego County Carlsbad, CA 92008	Office Operations	Sublease Sublessor: Buyerzone.com, LLC Lessor: The Realty Associates Fund V, L.P. 21307 Hawthorne Blvd. Torrance, CA 90503

5335 W. 74 ^th Street Indianapolis, IN 46268	Public warehouse that stores and ships Loan Party’s inventory	Langhan Logistics

1195 Trademark Drive, #201 Reno, NV 89521	Public warehouse that stores and ships Loan Party’s inventory	Hopkins Distribution

Type of Coverage	Provider/Carrier	Policy #	Policy Limit
Primary Property Policy	Travelers Indemnity Co.	KTK-CMB-3420X94-0-13	$50,000,000 Deductible: $250,000

Boiler and Machinery	Federal Insurance Co.	76411350	$50,000,000 Deductible: $10,000

Automobile Policy	Hartford Insurance Co.	13UEND09107	$1,000,000 Comprehensive & Collision Deductible: $1,000

Commercial General Liability	Hartford Insurance Co.	13UEND08671	$1,000,000 Per Occ. $2,000,000 General Agg. Deductible: None

Products Liability	Admiral Ins. Co. Kinsale Ins. Co.	CA000017878-01 0100012480-0	$5,000,000 Per Occ. $6,000,000 General Agg. Deductible: $25,000

Umbrella Liability	ACE Property and Casualty Ins. Co.	M00530189004	$25,000,000 Occ. & Agg.

Private Edge Plus (Includes D&O, EPLI & Fiduciary Liability)	National Union Fire Ins. Co.	014231917	D&O $10,000,000 Employment Practices Liability $2,000,000 Fiduciary Liability $1,000,000 Deductible: $5,000

L/C Type	Bank	L/C No.	Issued on behalf of	Beneficiary	Amount	Purpose
Standby	JPMorgan Chase	CL346720	NAOC	American Casualty Co. and/or Western Surety Co.	$300,000	Collateral for NAOC Customs Bond
Standby	JPMorgan Chase	CTCS-700598	NATC	Western Surety Co.	$400,000	Collateral for NTC Customs Bond
Standby	JPMorgan Chase	CTCS-310591	NATC d/b/a National Tobacco Co. LP	American Contractors Indemnity Co. and/or US Specialty Insurance Co. and/or United States Surety Co.	$401,100	Collateral for a number of surety bonds required by various states. Most of these bonds are issued to state Departments of Revenue and cover various tobacco tax obligations. There are additional 5 MSA bonds in place

Debtor	Secured Party	Filing Date	Filing Number	Description
National Tobacco Company, L.P.	NEC Financial Services, LLC	09/07/2010	20103118100	One NEC SV8300 telephone system
National Tobacco Company, L.P.	NEC Financial Services, LLC	09/07/2010	20103118118	Leased goods
National Tobacco Company, L.P.	U.S. Bancorp Equipment Finance, Inc.	04/10/2015	20151551331	Copiers.

Consolidated EBITDA			Quarter 1 ended __/__/__	Quarter 2 ended __/__/__	Quarter 3 ended __/__/__	Quarter 4 ended __/__/__	Total (Quarters 1‑4)

(4)	The following amounts, without duplication, to the extent included in determining Consolidated Net Income for such period:

	(a)	interest income (other than distributions of cash to Turning Point or any of its Subsidiaries from the TMSA Account during such period) during such period

	(b)	extraordinary gains during such period

	(c)	non‑cash gains or non‑cash items (including, but not limited to, unrealized gains on the TMSA Account) increasing Consolidated Net Income during such period ⁴

	(d)	transfers of cash or other assets by Turning Point and its Subsidiaries into the TMSA Account during such period

(5)	Line (4)(a) plus Line (4)(b) plus Line (4)(c) plus Line (4)(d)

(6)	Pro Forma Basis Adjustments to Consolidated EBITDA, if applicable ⁵