EXHIBIT 2.1

ASSET PURCHASE AGREEMENT

by and between

NEOTERIC COSMETICS, INC.,

as the Buyer

and

ULTIMARK PRODUCTS, INC.,

as the Seller

Dated as of June 30, 2016

Table of Contents

Note: The Company hereby agrees to furnish supplementally a copy of any omitted schedule to the Securities and Exchange Commission upon request.

ASSET PURCHASE AGREEMENT

This ASSET PURCHASE AGREEMENT (this “ Agreement ”), dated as of June 30, 2016, is by and between Neoteric Cosmetics, Inc., a Colorado corporation (“ Buyer ”), and Ultimark Products, Inc., a Delaware corporation (“ Seller ”).

RECITAL

Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, the Purchased Assets (as defined below) upon the terms and subject to the conditions set forth herein.

AGREEMENT

NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is acknowledged by the parties, and in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties agree as follows:

Article I.

DEFINITIONS

1.1 Certain Definitions .

For purposes of this Agreement, the following capitalized terms shall have the meanings specified in this Section 1.1 :

“ Accounts Payable ” means (a) as it relates to Seller, all accounts and notes payable to any Person by Seller that accrued prior to the Closing Date, and (b) as it relates to Buyer, all accounts and notes payable to any Person by Buyer that accrued on or after the Closing Date.

“ Accounts Receivable ” means (a) as it relates to Seller (i) any rights to payment from customers relating to the Purchased Assets prior to the Closing Date representing amounts receivable in respect of goods shipped or Products sold or services rendered to such customers prior to the Closing Date and (ii) any claim, privilege, cause of action, remedy or other right related to any of the foregoing, and (b) as it relates to Buyer (i) any rights to payment from customers relating to the Purchased Assets on or after the Closing Date representing amounts receivable in respect of goods shipped or Products sold or services rendered to such customers on or after the Closing Date and (ii) any claim, privilege, cause of action, remedy or other right related to any of the foregoing.

“ Affiliate ” means, with respect to any specified Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by Contract or otherwise.

“ Agreement ” has the meaning assigned to it in the Preamble of this Agreement.

“ Allocation Statement ” has the meaning set forth in Section 3.4 .

“ Ancillary Agreements ” means the Assignment and Assumption Agreement, the Bill of Sale, the Escrow Agreement, the Intellectual Property Assignments and the License Agreement.

“ Assignment and Assumption Agreement ” means an assignment and assumption agreement in form and substance satisfactory to the parties thereto.

“ Basket Amount ” has the meaning set forth in Section 9.4(a) .

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“ Bill of Sale ” means a bill of sale in form and substance satisfactory to the parties thereto.

“ Brands ” means, collectively, the Prell, Denorex and Zincon brands.

“ Business Day ” means any day of the year on which national banking institutions in the State of Colorado are open to the public for conducting business and are not required or authorized to close.

“ Buyer ” has the meaning assigned to it in the Preamble of this Agreement.

“ Buyer Indemnified Parties ” has the meaning set forth in Section 9.2(a) .

“ Cap ” has the meaning set forth in Section 9.4(b) .

“ CGMP ” means the Current Good Manufacturing Practice in Manufacturing, Processing, Packing, or Holding of Drugs, and the Current Good Manufacturing Practice for Finished Pharmaceuticals regulations (21 C.F.R. Parts 210 and 211, respectively).

“ Claim ” means any demand, claim, suit, cause of action or chose in action, right of recovery, right of set-off, counterclaim, defense, or other right to legal, equitable, administrative, or arbitral remedy of any kind.

“ Claim Notice ” has the meaning set forth in Section 9.3(a) .

“ Closing ” has the meaning set forth in Section 3.9 .

“ Closing Date ” has the meaning set forth in Section 3.9 .

“ Closing Inventory Value ” has the meaning set forth in Section 3.2(a) .

“ Closing Statement ” has the meaning set forth in Section 3.2(a) .

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

“ Collateral ” means all selling, advertising, promotional and marketing collateral, accounts, ad layouts, audio, copy, descriptions, digital or non-digital footage, photographs, pictures, recordings, scripts, digital or non-digital signage, video, website pages/mentions and other materials (in each case whether text, graphic, audiovisual, audio-only or visual-only).

“ Competitive Business ” has the meaning set forth in Section 6.5(a) .

“ Contract ” means any contract, agreement, note, instrument, lease, license, purchase or customer order, commitment, arrangement, understanding, undertaking, or other commitment or obligation, whether written or oral.

“ Contract Manufacturers ” has the meaning set forth in Section 2.1(k) .

“ Coupons ” has the meaning set forth in Section 2.4(g) .

“ Covered Party ” and “ Covered Parties ” has the meaning set forth in Section 9.2(c).

“ Damages ” means all losses, Claims, damages, dues, penalties, fines, costs, amounts paid in settlement, Taxes, Liens, Liabilities, expenses, and fees, including reasonable legal costs, costs of experts and consultants, and reasonable attorney’s fees and expenses, but excluding direct, indirect, consequential, lost profits, lost opportunities, punitive, special, and exemplary damages and damages based upon any type of multiple or diminution in value, in each case other than any such damages actually paid to a Third Party in a Third Party Claim.  

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“ Deductions ” has the meaning set forth in Section 2.4(j) .

“ Default ” has the meaning set forth in Section 4.11(k)(v).   

“ Disclosure Schedule ” has the meaning set forth in Article IV .

“ Dispute Notice ” has the meaning set forth in Section 3.2(b) .

“ Documents ” means all files, documents, instruments, papers, books, reports, records, tapes, microfilms, photographs, letters, budgets, forecasts, financial and accounting records, ledgers, journals, title policies, lists of past, present and/or prospective customer lists and records, supplier lists, regulatory filings, operating data and plans, technical documentation (including design specifications, functional requirements, operating instructions, manufacturing instructions and documentation, and flow charts), research and development reports, production reports, standard operating policies and procedures, quality records, service and warranty records, equipment logs, operating guides and manuals, training materials, and working papers, marketing documentation (including sales brochures, flyers, pamphlets, and web pages), and other similar materials, in each case whether or not in electronic form.

“ Environmental Condition ” means the presence of any Hazardous Materials, including any pollution, contamination or Damage to natural resources or the environment, caused by or relating to the use, manufacture, production, importation, refinement, processing, emission, handling, storage, treatment, recycling, generation, transportation, Release or threatened Release of Hazardous Materials by Seller.  

“ Environmental Law ” means any Law in any way relating to the protection of human health and safety, property, the environment or natural resources, including the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et   seq. ), the Hazardous Materials Transportation Act (49 U.S.C. App. § 1801 et seq. ), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq. ), the Clean Water Act (33 U.S.C. § 1251 et seq. ), the Clean Air Act (42 U.S.C. § 7401 et seq. ), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq. ), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq. ), and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq. ), as each has been or may be amended and the regulations promulgated pursuant thereto.

“ Environmental Noncompliance ” means any violation of any Environmental Law.

“ Escrow ” has the meaning set forth in Section 3.8 .

“ Escrow Agent ” means Wilmington Trust, N.A.

“ Escrow Agreement ” means the escrow agreement in form and substance satisfactory to the parties thereto.  

“ Escrow Amount ” means $350,000.

“ Excluded Assets ” has the meaning set forth in Section 2.2 .

“ Excluded Liabilities ” has the meaning set forth in Section 2.4 .

“ Export Approvals ” has the meaning set forth in Section 4.21(b) .

“ FDA ” means the U.S. Food and Drug Administration.

“ FDA Law ” means any Law in any way relating to food, drug and cosmetic safety and labeling, including CGMP and the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq. ), as each has been or may be amended and the regulations promulgated pursuant thereto, and all related guidance.  

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“ Final Inventory Value ” means Closing Inventory Value (a) as shown in the Closing Statement prepared pursuant to Section 3.2(a) if no Dispute Notice with respect thereto is duly delivered pursuant to Section 3.2(b) or (b) if such a Dispute Notice is delivered, (i) as agreed to by Buyer and Seller pursuant to Section 3.2(c) or (ii) in the absence of such an agreement, as shown in the Independent Accountant’s report delivered pursuant to Section 3.2(c) .  

“ Financial Reporting Package ” means the profit and loss statements for each Brand as well as any additional revenue and other financial information included in the monthly and annual reporting packages provided by Seller to Buyer.

“ Former Product ” has the meaning set forth in Section 4.17(a) .

“ FTC ” means the U.S. Federal Trade Commission.  

“ FTC Law ” means any Law in any way relating to the safety, labeling, and advertising of consumer products, including the Federal Trade Commission Act (15 U.S.C. §§ 41-58), as it has been or may be amended and the regulations promulgated pursuant thereto, and all related guidance.  

“ Fundamental Reps ” has the meaning set forth in Section 9.1 .

“ GAAP ” means generally accepted accounting principles in the United States, consistently applied throughout the period specified.

“ Governmental Entity ” means any:  (a) government or governmental or regulatory body thereof, or political subdivision thereof, whether non-U.S., federal, state, local, municipal or provincial, or any agency, branch, department, official, entity, instrumentality or authority thereof, or any court or arbitrator (public or private) or (b) body entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature.

“ Hazardous Material ” means any substance, material or waste regulated by any Governmental Entity, including any substance, material or waste defined or classified as a “hazardous waste,” “hazardous material,” hazardous substance,” “extremely hazardous waste,” “pollutant,” “restricted hazardous waste,” “contaminant,” “toxic waste,” or “toxic substance,” under any provision of Environmental Law, including petroleum, petroleum products, asbestos, presumed asbestos-containing materials, or asbestos-containing materials, urea formaldehyde or polychlorinated biphenyls.

“ Indemnifying Party ” has the meaning set forth in Section 9.3(a) .

“ Independent Accountant ” means CliftonLarsonAllen or such other independent accounting firm of national reputation reasonably acceptable to both Buyer and Seller to resolve the remaining matters in dispute, and such firm shall be the Independent Accountant for all purposes of Section 3.2(c) and Section 8.2 .  

“ Intellectual Property ” means all forms of intellectual property rights and other proprietary rights, whether protected, created or arising under the Laws of the United States or any other jurisdiction or under any international convention, including all:  (a) patents and patent applications, including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof, and other Governmental Entity-issued indicia of invention ownership (including certificates of invention, petty patents and patent utility models); (b) trademarks, service marks, brands, d/b/a names, certification marks, identifying symbols, logos, trade dress, trade names, fictitious names and other similar indicia of source or origin, together with the goodwill connected with the use of and symbolized by any of the foregoing (“ Trademarks ”); (c) internet domain names and social media accounts or user names (including “handles”), whether or not Trademarks, all associated web addresses, URLs, websites and web pages, social media sites and pages, and all content and data thereon or relating thereto, whether or not copyrightable; (d) copyrights and works of authorship, whether or not copyrightable, published or unpublished; (e) mask works; (f) industrial designs; (g) trade secrets, know-how, formulae, formulations, recipes, batching procedures, algorithms, compositions, inventions (whether or not patentable),

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discoveries, improvements, technology, business, manufacturing, operational and technical information and data, databases, data compilations and collections, tools, tooling, methods, procedures, processes, designs, recordings, graphics, drawings, specifications, research and development, techniques, customer lists, supplier lists, pricing and cost information, and business and marketing plans and proposals and other confidential and proprietary information and all rights therein (“ Trade Secrets ”); (h) computer programs, operating systems, applications, firmware and other code, including all source code, object code, application programming interfaces, data files, databases, protocols, specifications and other documentation thereof; (i) rights of publicity; (j) all other intellectual or industrial property and proprietary rights; (k) all registrations, issuances, applications and renewals for any of the foregoing; and (l) all copies and tangible embodiments of and improvements to the intellectual property set forth in (a) through (j) hereof.

“ Intellectual Property Agreements ” means all licenses, sublicenses, consent to use agreements, Platform Agreements, settlements, coexistence agreements, covenants not to sue, waivers, releases, permissions and other Contracts, whether written or oral, relating to any Intellectual Property that is related to the Brands, current or planned Products, or Former Products, to which Seller is a party, beneficiary or otherwise bound, and that are not terminated or expired.  

“ Intellectual Property Assets ” means all Intellectual Property that is owned by Seller and that is related to the Brands, current or planned Products, or Former Products, including the Seller Marks and any Intellectual Property Registrations included in the foregoing (but, for the avoidance of doubt, excluding (i) the “Ultimark” Trademark and (ii) the UPC codes owned by or attributable to Seller).  

“ Intellectual Property Assignments ” means the Intellectual Property assignment agreements in form and substance satisfactory to the parties thereto.

“ Intellectual Property Registrations ” means all Intellectual Property Assets that are subject to any issuance, registration, application or other filing by, to or with any Governmental Entity or authorized private registrar in any jurisdiction, including registered Trademarks, domain names and copyrights, issued and reissued patents and pending applications for any of the foregoing.  

“ Inventory ” means inventory of Products that is owned, used, held for use or intended to be used by Seller in connection with or otherwise related to the Brands, current and planned Products, and Former Products, including all raw and packing materials, all work-in-progress, finished goods, supplies, parts, UPCs, SKUs and similar items owned, used, held for use or intended to be used by Seller or by any Third Party on Seller’s behalf in connection with or otherwise related to the Brands, current and planned Products, and Former Products.

“ Inventory Target ” means $493,034.

“ IRS ” means the United States Internal Revenue Service and, to the extent relevant, the United States Department of Treasury.

“ Knowledge of Seller ” and “ Seller’s Knowledge ” means the actual knowledge, after due inquiry, of Lance Funston and/or Doug Haas.  

“ Law ” means any non-U.S., federal, state, local, municipal or provincial law, constitution, statute, code, ordinance, rule, regulation, Order, treaty, common law, judgment, decree or other requirement or rule issued by any Governmental Entity, including Environmental Laws, FDA Laws and FTC Laws.

“ Legal Proceeding ” means any judicial, administrative or arbitral action, suit, mediation, hearing, investigation, inquiry, or proceeding of any kind.

“ Liability ” means any liability, obligation or commitment of any kind, whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, determined or determinable, disputed or undisputed, liquidated or unliquidated, or due or to become due, and all Claims, Damages, Liens, and indebtedness resulting from any of the foregoing.

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“ License Agreement ” means a trademark license agreement in form and substance satisfactory to the parties thereto.  

“ Licensed Intellectual Property ” means all Intellectual Property related to the Brands, current or planned Products, or Former Products, in which Seller holds any rights or interests granted from other Persons, including Seller’s Affiliates, pursuant to any Intellectual Property Agreement.  

“ Lien ” means any lien, encumbrance, pledge, mortgage, deed of trust, security interest, hypothecation, license, lease, charge, option, right of first refusal, easement, covenant, servitude, proxy, voting trust or agreement, transfer restriction under any shareholder or similar agreement, or any other direct or indirect restriction or limitation.

“ Marketing Obligations ” has the meaning set forth in Section 2.4(h) .

“ Material Adverse Effect ” means any change, circumstance, effect, event, occurrence, state of facts or development that has (or could reasonably be expected to have) a material adverse effect on (a) the business, assets, liabilities, condition (financial or otherwise), or results of operations of Seller related to the Brands or current or Former Products, (b) the value of the Purchased Assets, or (c) the ability of Seller to perform its obligations under this Agreement, the Ancillary Agreements, or the transactions contemplated hereby or thereby in a timely manner, including a prospective effect that would likely result from a current event or circumstance.

“ Material Customer ” has the meaning set forth in Section 4.16(a) .

“ Material Supplier ” has the meaning set forth in Section 4.16(a) .

“ Media Accounts ” has the meaning set forth in Section 4.11(i)(i) .

“ Mentar Trademark Application ” has the meaning set forth in Section 6.10 .

“ Monthly Promotional Reports ” means all reports provided by Seller to Buyer that include Product information related to any Coupons, Marketing Obligations and Deductions and any other related information, including all dates, customers, Brands, representatives, managers, event descriptions, scan amounts, forecast units, scan liabilities, event fees, slotting fees, markdowns and any other fees, including total fees.

“ Nonassignable Assets ” has the meaning set forth in Section 2.5 .

“ Order ” means any order, injunction, judgment, settlement, decree, ruling, writ, assessment or arbitration award of any Governmental Entity.

“ Organizational Documents ” means the articles of incorporation, certificate of formation, bylaws, operating agreement, limited liability company agreement, partnership agreement, limited partnership agreement, board resolutions, and other similar documents, instruments or certificates executed, adopted, or filed in connection with the creation, formation, or organization of a Person, including any amendments thereto.

“ Permit ” means any pending or finalized approval, application, registration, notification, authorization, consent, license, permit, franchise, variance, certificate and similar rights obtained from any Governmental Entity.

“ Permitted Liens ” means Liens for Taxes and assessments that are not yet due and payable as of the Closing (or if delinquent, that are being contested in good faith by Seller in appropriate Proceedings).

“ Person ” means any individual, corporation, limited liability company, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Entity or other entity.

“ Personal Information ” means (a) information and data concerning an identified or identifiable natural person (including any information specifically defined or identified in any of Seller’s Privacy Policies as “personal information,” “personally identifiable information,” “personal identification information” or with a similar

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designation), including any information from which identification or contact information of an individual person is directly derived, including address, phone number, fax number, email address, internet account credentials and credit card information, in each case in paper, electronic or any other form; and (b) any data collected from an IP address, web beacon, pixel gig, ad tag, cookie, local storage, software, or by any other means, or from a particular computer, web browser, mobile telephone, or other device or application, where such data is or may be used to identify or contact an individual or device or application, to predict or infer the preferences, interests, or other characteristics of the device or of a user of such device or application, or to target advertisements or other content to a device or application, or to a user of such device or application.

“ Platform Agreements ” has the meaning set forth in Section 4.11(i)(ii) .

“ Pre-Closing Deductions ” has the meaning set forth in Section 3.6 .

“ Products ” means all Prell, Denorex and Zincon brands of products set forth on Schedule 1.1 .

“ Purchase Price ” has the meaning set forth in Section 3.1 .

“ Purchased Assets ” has the meaning set forth in Section 2.1 .

“ Purchased Equipment ” has the meaning set forth in Section 2.1(k) .

“ Purchased Inventory ” has the meaning set forth in Section 2.1(a) .

“ Purchased IP Contracts ” has the meaning set forth in Section 2.1(c) .

“ Recipients ” has the meaning set forth in Section 6.3 .

“ Record Owner Jurisdictions ” means Bahamas, Barbados, Bermuda, Canada, China (People’s Republic), Curacao, Dominican Republic, Ecuador, Guatemala, Jamaica, Japan, Mexico, Netherlands Antilles, New Zealand, Nicaragua, South Africa, St. Maarten, and Trinidad and Tobago.

“ Release ” means any release, spill, emission, overflow, leaking, pumping, pouring, injection, deposit, dumping, emptying, disposal, discharge, dispersal, escaping, leaching, seepage, infiltration or migration into or from the indoor or outdoor environment, including ambient, surface, or subsurface environments, whether intentional or accidental, authorized or unauthorized.

“ Representatives ” means the officers, directors, managers, employees, attorneys, accountants, advisors, representatives and agents of a Person.

“ Returns ” has the meaning set forth in Section 2.4(h) .

“ Sales Database ” means all information provided by Seller to Buyer related to Seller’s historic sales and invoice prices of the Products, including sales and invoice prices by Brand, sales and invoice prices by Product, sales and invoice prices by customer for the relevant month and for the year-to-date as of such month, the distribution grid, sales of cases by month, and the invoice register.

“ Seller ” has the meaning assigned to it in the Preamble of this Agreement.

“ Seller Indemnified Parties ” has the meaning set forth in Section 9.2(c) .

“ Seller Corporate Records ” means, collectively, Seller’s corporate books and records of internal corporate proceedings, Tax Returns and Tax records, work papers and books and records that Seller is required by Law to retain and that do not relate to the Brands, current or planned Products, or Former Products.

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“ Seller Marks ” means the Trademarks “Prell,” “Denorex” and “Zincon” and any other Trademarks otherwise related to the Brands, current or planned Products, or Former Products that are owned by Seller (but, for the avoidance of doubt, excluding the “Ultimark” Trademark).

“ Straddle Period ” has the meaning set forth in Section 8.2(b) .

“ Straddle Period Return ” has the meaning set forth in Section 8.2(b) .

“ Tax ” or “ Taxes ” means any non-U.S., federal, state, local, municipal or provincial income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, windfall profits, environmental, severance, customs duties, capital stock, franchise, profits, capital gains, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value-added, ad valorem, or other similar tax, including any interest, penalty, or addition thereto, whether disputed or not, and including any Liability for any of the foregoing taxes or other items arising as a transferee, successor, by Contract, or otherwise, for which such Person may be liable.  

“ Tax Claim ” has the meaning set forth in Section 8.2(e)(i) .

“ Tax Return ” means any return, report or statement required to be filed with respect to any Tax (including any elections, declarations, schedules or attachments thereto, and any amendment thereof), including any information return, Claim for refund, amended return or declaration of estimated Tax, and including, where permitted or required, combined, consolidated or unitary returns for any group of entities that includes Seller, or any of its Affiliates.

“ Taxing Authority ” means the IRS and any other Governmental Entity responsible for the administration or collection of any Tax.

“ Territory ” has the meaning set forth in Section 6.5(a) .

“ Third Party ” means any Person (or group of Persons) other than any party to this Agreement or one of their respective Affiliates.

“ Toll-Free Telephone Numbers ” means any and all telephone numbers that are billed for arriving calls instead of incurring charges to the originating telephone subscribers that are used in connection with the manufacture and sale of current and planned Products and Former Products, including any and all 1-800 numbers on the packaging of current and planned Products or Former Products.

“ Trade Secrets ” has the meaning set forth in the definition of Intellectual Property.

“ Trademarks ” has the meaning set forth in the definition of Intellectual Property.

“ Transfer Pricing Information ” means all information provided by Seller to Buyer pertaining to purchase orders related to the Brands, current and planned Products, and Former Products. As to purchase orders, such information includes the respective vendors, product lines, item numbers, order identification numbers, status of the orders, date of the orders, relevant warehouses, units of measurement, prices per unit of measurement, quantities, total prices for the purchase orders and transfer pricing, including price per case, units per case and price per unit.

“ Transfer Taxes ” has the meaning set forth in Section 8.1 .

“ Unsaleables ” has the meaning set forth in Section 2.4(h) .

“ Wire Reports ” means the wire reports provided by Emerson Healthcare LLC related to the Brands, current and planned Products, and Former Products.

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1.2 Other Definitional and Interpretive Matters .    In this Agreement, unless the context otherwise requires, references:  (a) to the recitals, articles, sections, or schedules are to a Recital, Article or Section of, or Schedule to, this Agreement; (b) to any agreement (including this Agreement), Contract, or Law are to the agreement, Contract, or Law as amended, modified, supplemented or replaced from time to time, and to any section of any Law are to any successor to the section; (c) to any Governmental Entity include any successor to that Governmental Entity; and (d) to this Agreement are to this Agreement and schedules to it, taken as a whole.  The table of contents and headings contained herein are for reference purposes only and do not limit or otherwise affect any of the provisions of this Agreement.  Whenever the words “include,” “includes,” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  Whenever the words “herein” or “hereunder” are used in this Agreement, they shall be deemed to refer to this Agreement as a whole and not to any specific Section, unless otherwise indicated.  The terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa, and words denoting any gender include all genders .  The terms “dollars” and “$” shall mean dollars of the United States of America.

Article II.

PURCHASE AND SALE OF ASSETS

2.1 Purchase and Sale of Assets .  Upon the terms and subject to the conditions of this Agreement, Seller hereby agrees to sell, assign, transfer, convey and deliver to Buyer, and Buyer, in reliance on the representations, warranties and covenants of Seller contained herein, hereby agrees to purchase, acquire and accept from Seller, free and clear of any Liens other than the Permitted Liens, all of Seller’s right, title and interest in and to each of the following, but expressly excluding the Excluded Assets (the “ Purchased Assets ”):

(a) all Inventory (including any Inventory paid for but not yet delivered to or received by a Third Party on behalf of Seller and Inventory held by any Third Party), including the inventory set forth on Schedule 2.1(a) (the “ Purchased Inventory ”);  

(b) all Intellectual Property Assets, including the Intellectual Property set forth on Schedule 2.1(b)   or required to be listed on Schedule 4.11(a) ;

(c) all Intellectual Property Agreements and all rights thereunder, including the Intellectual Property Agreements set forth on Schedule 2.1(c) (collectively, the “ Purchased IP Contracts ”);

(d) all Collateral related to the Brands, current or planned Products, or Former Products, including all Collateral set forth on Schedule 2.1(d) ;

(e) all books, records, ledgers and files or other similar information of Seller (in any form or medium) related to, used or held for use in connection with the Brands, current or planned Products, or Former Products, including all customer lists, vendor lists, correspondence, mailing lists, revenue records, invoices, advertising materials, brochures, records of operation, standard forms of documents, manuals of operations or business procedures, photographs, blueprints, research files and materials, data books, Intellectual Property disclosures and information, media materials and plates, accounting records, litigation files, Permits and any documentation related thereto, any documentation related to current or planned Products or Former Products within the Brands and any documentation involving Governmental Entities (but excluding Seller Corporate Records), in each case whether or not physically located on any of the physical premises of Seller;

(f) all Permits and all rights and incidents of interest therein related to the Brands, current or planned Products, or Former Products, including the permits set forth on Schedule 2.1(f) ;

(g) all credits, cash reserves, prepaid expenses, advance payments, security deposits, escrows and other prepaid items of Seller arising from or related to the Brands, current or planned Products, or Former Products;

(h) all Claims against any Person arising from or related to the Brands, current or planned Products, or Former Products, whether accruing before, on or after the Closing Date, including:  (i) all rights under any Purchased IP Contract, including all rights to receive payment for products sold and services rendered thereunder, to receive goods or services thereunder, to assert Claims and to take other rightful actions in respect of Defaults thereof; (ii) all rights under or in respect of any Intellectual Property Assets, including all rights to and Claims for Damages, restitution and injunctive relief for past, present and future infringement, dilution, misappropriation, unlawful imitation, misuse or Default, with the right but no obligation to sue for such legal and equitable relief, and to collect, or otherwise recover, any such Damages, all rights of priority and protection of interests therein under the

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Laws of any jurisdiction; and all rights to receive all royalties, fees, income, payments and other proceeds now or hereafter due or payable with respect to any and all of the foregoing and (iii) all rights (including rights to proceeds) under all guarantees, warranties and indemnities arising from or related to the Brands, current or planned Products, or Former Products, whether known or unknown, contingent or non-contingen t;

(i) all goodwill and other intangible assets associated with the Brands, current or planned Products, or Former Products,  including the goodwill and going concern value arising from or related to the Brands, current or planned Products, or Former Products;  

(j) all Products ordered by Seller prior to the Closing Date but not paid for and not yet received by Seller prior to the Closing Date under the purchase orders set forth on Schedule 4.11(k)(i) (collectively, the “ Open Purchase Orders ”);  

(k) all parts, materials, molds, patterns, tools, tooling and all other tangible personal property owned or leased by Seller and used, held for use or intended for use in connection with the Brands or current or planned Products or Former Products, including such items set forth on Schedule 2.1(k) (the “ Purchased Equipment ”), together with any express or implied warranty by the manufacturers or sellers or lessors of any item or component part thereof and all maintenance records and other Documents relating thereto in the possession or control of Seller or any of its contract manufacturers (“ Contract Manufacturers ”) as of the date of this Agreement; and

(l) all assets set forth on Schedule 2.1(l) .

2.2 Excluded Assets .  Notwithstanding anything contained in Section 2.1 to the contrary, Seller shall not sell, and Buyer shall not purchase, any of the following assets of Seller, all of which shall be retained by Seller (collectively, the “ Excluded Assets ”):

(a) all of Seller’s cash and cash equivalents;

(b) all of Seller’s Accounts Receivable;  

(c) all assets used in connection with the Porcelana line of business of Seller;

(d) all of Seller’s insurance policies;

(e) all employee Contracts, benefit plans or any other employee or employee benefit matters;

(f) all rights of Seller under this Agreement and the Ancillary Agreements;

(g) Seller’s Corporate Records;

(h) any interest in or right to any refund of Taxes for, or applicable to, any taxable period (or portion thereof) ending prior to the Closing Date;  

(i) the Contracts listed on Schedule 2.2(i) (the “ Excluded Contracts ”); and

(j) any other assets not expressly included in the Purchased Assets set forth in Section 2.1 .

2.3 Assumed Liabilities .  Except for all Liabilities of Buyer related to (a) the Open Purchase Orders and (b) the Purchased IP Contracts arising on or after the Closing Date (the “ Assumed Liabilities ”), Buyer shall not assume any liabilities or obligations of Seller related to the Purchased Assets or otherwise in connection with the purchase and sale of the Purchased Assets pursuant to this Agreement.

2.4 Excluded Liabilities .  Except for the Assumed Liabilities but without otherwise limiting the terms of Section 2.3 , Buyer shall not assume or become liable for and shall not be obligated to pay or satisfy any Liabilities of Seller whatsoever, contingent or otherwise, including the following (the “ Excluded Liabilities ”):

(a) all Liabilities of Seller whether or not related to the Purchased Assets;

(b) all accounts payable of Seller in respect of any services performed for or products purchased by Seller prior to the Closing Date;

(c) all Liabilities of Seller for fees and expenses incurred or arising in connection with this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby;

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(d) except as provided for in Section 8.1 , all Liabilities for Taxes of Seller for any taxable period (or portion thereof) prior to the Closing Date, including any Taxes arising as a result of Seller’s operation of its business related to the Purchased Assets or Seller’s ownership of the Purchased Assets prior to the Closing Date;

(e) all Claims arising out of, relating to or otherwise in respect of:  (i) the ownership of the Purchased Assets and the operation of Seller’s business related to the Purchased Assets to the extent any such Claim relates to such ownership or operation prior to the Closing Date; or (ii) any Excluded Asset;

(f) all Liabilities that constitute product liabilities or recall liabilities arising from the Purchased Assets or operation of Seller’s business related to the Purchased Assets prior to the Closing Date;

(g) all Liabilities for all coupons and rebates implemented by Seller relating to Inventory and Products issued prior to the Closing Date (“ Coupons ”);

(h) all Liabilities for advertising, media commitments, trade promotions, including co-op, price features, displays, slotting fees and other merchandising of the Products, trade allowances, trade discounts and other marketing related obligations or offers that occurred prior to the Closing Date (collectively, “ Marketing Obligations ”);

(i) all refund and replacement obligations relating to Inventory and Products shipped prior to the Closing Date and returned on or after the Closing Date (“ Returns ”) and for any expired Inventory and Products or other retail unsaleables shipped prior to the Closing Date (collectively, “ Unsaleables ”);

(j) all Liabilities for customer deductions (which shall not include Liabilities for Coupons, Marketing Obligations, Returns or Unsaleables, which are addressed in paragraphs (g), (h) and (i) of this Section 2.4 ) attributable to invoices with respect to Inventory and Products shipped prior to the Closing Date (collectively, “ Deductions ”);  

(k) any Liabilities arising out of or in connection with (i) any product or service warranties or guarantees given by Seller in connection with or (ii) Claims for personal injuries, property damage or losses that involve, in each case, any product sold, delivered or otherwise disposed of, or any service performed or delivered, by Seller prior to the Closing Date, or with respect to any products that are Excluded Assets, at any time;

(l) any Liabilities of Seller arising from any breach, violation or late performance by Seller of the terms and provisions of any Contract, including with respect to delayed delivery, shortages of Products, and any fines and/or charges related to the delivery of Products;

(m) any Liabilities arising from or relating to a breach or violation prior to the Closing by Seller of any Law applicable to the ownership or use of the Purchased Assets by Seller or to the operation of Seller’s business related to the Purchased Asset;

(n) any brokers’ or finders’ fees or similar fees or expenses relating to this Agreement or any of the transactions contemplated hereby;

(o) all Liabilities related to any Contracts entered into by Seller prior to the Closing Date not specifically assumed by Buyer herein, including the Excluded Contracts;

(p) except as otherwise expressly provided in this Agreement, any Liabilities of any Affiliates of Seller (whether or not similar to any of the categories of Liabilities of Seller described above); and

(q) all liabilities otherwise excluded under the terms of this Agreement.

2.5 Consent or Waiver of Third Parties .  Nothing in this Agreement or the Ancillary Agreements nor the consummation of the transactions contemplated hereby or thereby shall be construed as an attempt or agreement to sell, assign, transfer or deliver any Purchased Asset, which by its terms or by Law is not capable of being sold, assigned, transferred or delivered without the consent or waiver of a Third Party or is cancelable by a Third Party in the event of an assignment (“ Nonassignable Assets ”) unless and until such consent shall have been obtained.  Seller shall, and shall cause its Affiliates to, use its commercially reasonable efforts to cooperate with Buyer to obtain such consents and waivers and to resolve the impediments to the sale, assignment, transfer or delivery contemplated by this Agreement or the Ancillary Agreements and to obtain any other consents and waivers necessary to convey to Buyer all of the Purchased Assets; provided, however, that nothing contained in this Section 2.5 shall require Seller or any of its Affiliates to pay any consideration, offer or grant any accommodation or other benefit, release any claim or right, or subject itself to any Liability to obtain such consents and waivers and to resolve such impediments.  To the extent permitted by applicable Law, if any such consents or waivers cannot be obtained prior to the Closing

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Date, Seller shall continue at Seller’s expense to use its commercially reasonable efforts to obtain the relevant consents or waivers until such consents and waivers are obtained, and Seller shall cooperate with Buyer in any lawful and economically feasible arrangement to provide Buyer the interests of Seller in the benefits under any such Nonassignable Assets, including performance by Seller, if economically feasible, as agent.  Nothing in this Section 2.5 shall affect Buyer’s right to be indemnified pursuant to the terms of this Agreement or to be entitled to any other rights under this Agreement if any consent or waiver as described herein is not obtained prior to the Closing Date.

2.6 Former Products .  Seller hereby acknowledges and agrees that it will give Buyer, at no cost to Buyer (other than as set forth in Section 2.6(c) ), any and all existing inventory of Former Products from each warehouse or other facility of Seller or its subcontractors where such Former Products are located . Buyer hereby acknowledges and agrees that Buyer (a) is picking up the Former Products in situ , (b) shall be responsible for moving or relocating (or arranging for the movement or relocation of) such Former Products from each warehouse or other facility of Seller or its subcontractors where such Former Products are located, and (c) shall bear all costs, expenses and risk of loss in connection with Section 2.6(a) and Section 2.6(b) .

2.7 Delivery of Purchased Assets .

(a) Buyer hereby acknowledges and agrees that it (i) is purchasing the Purchased Inventory in situ , (ii) shall be responsible for moving or relocating (or arranging for the movement or relocation of) the Purchased Inventory from each warehouse or other facility of Seller or its subcontractors where such Purchased Inventory is located, and (iii) shall bear all costs, expenses and risk of loss in connection with the foregoing.

(b) Seller hereby acknowledges and agrees that (i) at Closing or as soon as reasonably practicable after Closing (and in any event within 30 days after Closing), it shall deliver to Buyer the Purchased Assets, other than (A) the Purchased Inventory as set forth in Section 2.7(a) and (B) the Personal Information as set forth in Section 2.7(c) , and (ii) it shall bear all costs, expenses and risk of loss in connection with the foregoing.  

(c) On the date that is 35 days following the Closing Date, Seller shall transfer to Buyer all Personal Information held or used by Seller relating to the Seller’s customers; however, the Personal Information shall not include any Personal Information about Seller’s customers who have opted-out of having their Personal Information transferred to Buyer.  Seller’s customers may opt-out of such transfer at any time until 30 days after Closing, and Seller must withhold such Personal Information from transfer to Buyer in accordance with this Section 2.7(c) .

(d) Seller hereby acknowledges and agrees that at Closing or as soon as reasonably practicable after Closing (and in any event within 30 days after Closing), it shall provide updated financial information required to be set forth on Schedules 4.4(a) , 4.4(b) , 4.4(c) , and 4.4(d) for the period commencing April 30, 2016 and ending on the Closing Date.

Article III.

PURCHASE PRICE

3.1 Consideration .  The aggregate consideration to be paid by Buyer for the Purchased Assets shall be (a) $9,093,034 (the “Purchase Price”), plus or minus , as applicable, (b) the adjustment made pursuant to Section 3.2(e), if any.   

3.2 Purchase Price Adjustment .   

(a) As promptly as practicable, but no later than 30 calendar days after the Closing Date, Buyer shall cause to be prepared and delivered to Seller the closing statement (the “ Closing Statement ”).  The Closing Statement shall present Buyer’s good faith calculation of the value of the Purchased Inventory as of the close of business on the Closing Date (“ Closing Inventory Value ”) and shall be calculated in accordance with GAAP, the past practices of Seller, and the accounting protocol used by Seller to prepare the Inventory workpaper as set forth on Schedule 3.2(a) , which includes agreed-upon Purchased Inventory unit costs and the value of the Purchased Inventory in accordance with this Section 3.2 .  

(b) Within 30 calendar days of Seller’s receipt of the Closing Statement, Seller may deliver a written notice of disagreement (a “ Dispute Notice ”) to Buyer setting forth Seller’s good faith calculation of the Closing Inventory Value.  If Seller does not deliver a Dispute Notice to Buyer within such 30 calendar day period, then the

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Closing Inventory Value set forth in the Closing Statement shall be deemed final, conclusive and binding on the parties in all respects.  Any such Dispute Notice shall specify those items or amounts in the Closing Statement as to which Seller disagrees, and Seller shall be deemed to have agreed with all other items, amounts and calculations contained in the Closing Statement delivered pursuant to Section 3.2(a) not objected to in such notice.

(c) If a Dispute Notice is duly delivered pursuant to Section 3.2(b) , Buyer and Seller shall, during the ten Business Days following such delivery, use their commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the amount of Closing Inventory Value.  If the parties so resolve all disputes, the Closing Inventory Value, as amended to the extent necessary to reflect the resolution of the dispute, shall be conclusive and binding on the parties.  If during such period, Buyer and Seller are unable to reach an agreement, they shall promptly thereafter cause the Independent Accountant to review the disputed items or amounts for the purpose of resolving each disputed item and calculating Closing Inventory Value (it being understood that in making such calculation, the Independent Accountant shall be functioning as an arbitrator and not as an accountant).  In resolving such disputed items and making such calculation, the Independent Accountant shall consider only those items or amounts in the Closing Statement and the Dispute Notice and the actual quantities of the Purchased Inventory, if necessary.  In resolving any disputed item, the Independent Accountant may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party.  The Independent Accountant shall deliver to Buyer and Seller, as promptly as practicable (but in any case no later than 30 calendar days from the date of engagement of the Independent Accountant) a report setting forth such calculation.  Such report shall be final and binding upon Buyer and Seller with no right to appeal the decision of the Independent Accountant and which shall not be subject to collateral attack for any reason (other than fraud or manifest error) and shall be in writing and signed by the Independent Accountant and made in accordance with this Agreement.  Buyer and Seller agree to execute, if requested by the Independent Accountant, a reasonable engagement letter in customary form.  The fees, costs and expenses of the Independent Accountant’s review and report shall be borne by the party whose aggregate estimate of the disputed amounts differs most greatly from the determination of the Independent Accountant.

(d) Buyer and Seller shall, and shall cause their respective Representatives to, cooperate and assist in the preparation of the Closing Statement and the calculation of Closing Inventory Value and in the conduct of the review referred to in Section 3.2(c) , including the making available to the extent necessary of books, records, work papers and personnel.

(e) If the Final Inventory Value is less than the Inventory Target, Seller shall pay to Buyer, in the manner set forth in Section 3.2(f) , the amount of the shortfall.  If the Final Inventory Value is more than the Inventory Target, Buyer shall pay to Seller, in the manner set forth in Section 3.2(f) , the amount of the excess.  If the Final Inventory Value is equal to the Inventory Target, there shall be no adjustment to the Purchase Price.

(f) Any payment pursuant to Section 3.2(e) shall be made within five Business Days after the Final Inventory Value has been determined by wire transfer by Buyer or Seller, as the case may be, of immediately available funds to an account of such other party as may be designated in writing by such other party; provided, however , if Seller owes Buyer any amount pursuant to Section 3.2(e) ,  Buyer may, but shall not be required to, cause the Escrow Agent to pay to Buyer any such amount from the Escrow Amount.

3.3 Distribution of the Purchase Price .  At the Closing:

(a) Buyer shall deliver by wire transfer of immediately available funds to Seller the Purchase Price minus the Escrow Amount; and  

(b) subject to the terms herein, Buyer shall deposit with the Escrow Agent the Escrow Amount in accordance with the terms of the Escrow Agreement.

3.4 Purchase Price Allocation .  The Purchase Price (which shall include the Assumed Liabilities) shall be allocated among the Purchased Assets and the covenants contained in Section 6.5 .  Buyer shall prepare an allocation (“ Allocation Statement ”) of the Purchase Price among the Purchased Assets and the covenants contained in Section 6.5 in accordance with Section 1060 of the Code and the applicable Treasury Regulations promulgated thereunder (and any similar provision of state, local or foreign Law, as appropriate).  Buyer shall deliver the Allocation Statement to Seller no later than 30 calendar days following the Closing.  Seller shall notify Buyer of any objections to the Allocation Statement within 15 calendar days after Seller receives the Allocation Statement.  If Seller does not notify Buyer of any objections to the Allocation Statement within such 15 calendar day period, the

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Allocation Statement shall be construed as final.  If Seller notifies Buyer of an objection to the Allocation Statement by the end of such 15 calendar day period, and Seller and Buyer are unable to resolve their differences within 15 calendar days thereafter, then the disputed items on the Allocation Statement shall be submitted to the Independent Accountant for resolution, with the fees and expenses of the Independent Accountant paid one-half by Buyer and one-half by Seller, and the Independent Accountant shall be instructed to deliver a finalized Allocation Statement as soon as possible.  All Tax Returns of Seller and Buyer shall be filed consistently with the information set forth on the Allocation Statement unless otherwise required by applicable Law.  Seller and Buyer further agree to file IRS Form 8594 (and any corresponding form required to be filed by a state or local Taxing Authority) in a manner that is consistent with the information on the Allocation Statement.  Seller and Buyer agree to promptly provide each other with any information necessary to complete such Tax Returns and IRS Forms 8594 (and any corresponding form required to be filed by a state or local Taxing Authority).  Seller and Buyer shall not take any position on a Tax Return, Tax proceeding or audit that is inconsistent with any information set forth on the Allocation Statement except to the extent required otherwise by applicable Law; provided , however , that (a) Buyer’s cost for the Purchased Assets and the covenants contained in Section 6.5 may differ from the total amount allocated hereunder to reflect the inclusion in the total cost of items (for example, capitalized acquisition costs) not included in the total amount so allocated and (b) the amount realized by Seller may differ from the total amount allocated hereunder to reflect transaction costs that reduce the amount realized for federal income Tax purposes.

3.5 Accounts Receivable Post-Closing .  Any checks or any other amounts in cash received by Buyer after the Closing in respect of any of Seller’s Accounts Receivable shall be held in trust by Buyer for the benefit of Seller and shall be paid over to Seller promptly upon receipt by Buyer.  Buyer shall promptly send Seller copies of all Wire Reports, remittance advices and checks related to payments received by Buyer with respect to such items.  Any checks or any other amounts in cash received by Seller on or after the Closing Date in respect of any of Buyer’s Accounts Receivable shall be held in trust by Seller for the benefit of Buyer and shall be paid over to Buyer promptly upon receipt by Seller.  Seller shall promptly send Buyer copies of all Wire Reports, remittance advices and checks related to payments received by Seller with respect to such items.  For a period of 180 calendar days following the Closing Date, each of Buyer and Seller shall make its employees and any other necessary Third Party reasonably available as requested by the other party in order to assist with the collection of Accounts Receivable.  After the expiration of such 180 calendar day period, each of Buyer and Seller shall be solely responsible for collecting, or for having a Third Party collect, its Accounts Receivable.

3.6 Pre-Closing Deductions .  Buyer shall promptly deliver to Seller a copy of any and all remittance advices, invoices, bills or Claims received by Buyer on or after the Closing Date related to Coupons, Marketing Obligations, Returns, Unsaleables, Deductions or other Liabilities (including Liabilities due to delayed delivery, shortage of Products and any fines and/or charges related to the delivery of Products) related to the Purchased Assets or the operation of Seller’s business related to the Purchased Assets prior to the Closing Date (collectively, “ Pre-Closing Deductions ”).  Seller shall promptly pay to Buyer any amounts paid by Buyer to any Third Party (including amounts set-off by such Third Party against payments owed to Buyer) with respect to such Pre-Closing Deductions; provided , however , that, if Seller does not pay such amounts within 10 Business Days of Seller’s receipt of such remittances, advices, invoices, bills or Claims, Buyer, at Buyer’s sole and absolute discretion, may elect to deduct any amounts related to such Pre-Closing Deductions from the Escrow Amount, to the extent available.

3.7 Accounts Payable Post-Closing .  Any invoices or bills received by Buyer on or after the Closing Date with respect to Seller’s Accounts Payable shall be delivered to Seller promptly upon receipt by Buyer, and Seller shall pay any such Accounts Payable to the appropriate Person.  Any invoices or bills received by Seller on or after the Closing Date with respect to Buyer’s Accounts Payable shall be delivered to Buyer promptly upon receipt by Seller.

3.8 Escrow . At the Closing, Buyer, Seller and the Escrow Agent shall enter into the Escrow Agreement, pursuant to which Buyer shall deliver the Escrow Amount to the Escrow Agent, to be held in escrow (“ Escrow ”) as provided in this Agreement and the Escrow Agreement.  The Escrow Amount shall be used, in accordance with the terms of this Agreement and the Escrow Agreement, to pay indemnity obligations of Seller in accordance with Article IX , purchase price adjustments in accordance with Section 3.2(f) and Pre-Closing Deductions in accordance with Section 3.6 .  Subject to the terms of this Agreement and the Escrow Agreement, on the 18 month anniversary of the Closing Date, the Escrow Amount ( plus all earnings on such Escrow Amount, less the aggregate amounts released from Escrow through such date in respect of Seller’s indemnification obligations under Article IX , purchase price adjustments under Section 3.2(f) and Pre-Closing Deductions under Section 3.6 , the amount of any such

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indemnification Claims, purchase price adjustments or Pre-Closing Deductions resolved but remaining unpaid as of such date and any amounts with respect to other indemnification Claims against Seller under Article IX , purchase price adjustments under Section 3.2(f) or Pre-Closing Deductions in accordance with Section 3.6 then pending) shall be released to Seller.  The amounts of any such indemnification obligations of Seller or Pre-Closing Deductions resolved but remaining unpaid shall be released in accordance with the terms of this Agreement and the Escrow Agreement, and the amounts of any such other indemnification Claims against Seller or any Pre-Closing Deductions then pending shall be released to Seller or Buyer in accordance with the terms of this Agreement and the Escrow Agreement.   

3.9 The Closing .  The consummation of the transactions contemplated by this Agreement (the “ Closing ”) shall take place remotely via the electronic exchange of documents and signatures and will be effective as of 5:00 PM Mountain Time on the date hereof or at such other time and date as the parties hereto agree in writing.  The date on which (including the effective time at which) the Closing takes place is referred to herein as the “ Closing Date .”

Article IV.

REPRESENTATIONS AND WARRANTIES OF SELLER

Except as set forth in the correspondingly numbered schedules included in a Disclosure Schedule (the “ Disclosure Schedule ”), Seller hereby represents and warrants to Buyer that the statements contained in this Article IV are true and correct as of the date hereof:  

4.1 Organization; Foreign Qualification . Seller is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware, and has full corporate power and authority required to own, lease and operate its properties and the Purchased Assets and to carry on its business related to the Purchased Assets as presently conducted. Seller is duly qualified to do business as a foreign entity and is in good standing in the jurisdictions set forth on Schedule 4.1 , which includes each jurisdiction where the character of the property owned, leased or operated by it or the nature of its activities makes qualification necessary, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect on the business related to the Purchased Assets.  

4.2 Authorization .  Seller has all requisite power and authority to execute and deliver this Agreement and the Ancillary Agreements and to perform its obligations hereunder and thereunder.  The execution, delivery and performance of this Agreement, the Ancillary Agreements, and the other transaction documents contemplated hereby and thereby have been duly and validly authorized and no other proceedings on the part of Seller are necessary to authorize or consummate this Agreement, the Ancillary Agreements, or the transactions contemplated hereby or thereby.  This Agreement has been duly and validly executed and delivered by Seller, and (assuming the due authorization, execution and delivery hereof by Buyer) constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the rights of creditors generally and of general principles of equity.

4.3 No Conflicts; Consents .   Except as set forth on Schedule 4.3 , the execution and delivery by Seller of, and the performance by Seller of its obligations under, this Agreement and the Ancillary Agreements, and the consummation by Seller of the transactions contemplated hereby and thereby do not and will not (a) violate any provision of Seller’s Organizational Documents; (b) violate any Law applicable to Seller or the Purchased Assets; (c) violate, create a Default under, require any consent of or notice to any Third Party, or give to any Third Party any right of modification, acceleration or cancellation, or result in the creation of any Lien upon any of the Purchased Assets pursuant to, any Contract or Permit to which Seller is a party or by which Seller or any of the Purchased Assets may be bound, affected or benefited; or (d) require any consent or approval of, registration or filing with, or notice to any Governmental Entity.  

4.4 Financial Information .

(a) True, correct and complete copies of the Financial Reporting Packages for the period commencing January 1, 2016 and ending on April 30, 2016 and the fiscal years ended December 31, 2015, December 31, 2014, and December 31, 2013 are attached hereto as Schedule 4.4(a) .  Each of the Financial Packages attached hereto as Schedule 4.4(a) (i) are true, correct and complete in all material respects and have been prepared in accordance with

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the books and records of Seller pertaining to the Purchased Assets, (ii) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and (iii) fairly present, in all material respects, the results of operations of Seller related to the Purchased Assets as at the respective dates thereof and for the respective periods indicated therein, except as otherwise noted therein and subject to normal and recurring year-end adjustments that will not, individually or in the aggregate, be material .   

(b) True, correct and complete copies of the Sales Databases for the period commencing January 1, 2012 and ending on May 31, 2016 are attached hereto as Schedule 4.4(b) .  Each of the Sales Databases attached hereto as Schedule 4.4(b) (i) are true, correct and complete in all material respects and have been prepared in accordance with the books and records of Seller pertaining to the Purchased Assets and (ii) fairly present, in all material respects, the sales of Seller related to the Purchased Assets as at the respective dates thereof, for the respective periods indicated therein and by the categories set forth therein.  

(c) A true, correct and complete copy of the Transfer Pricing Information for the period commencing January 1, 2013 and ending on April 30, 2016 is attached hereto as Schedule 4.4(c) .  The Transfer Pricing Information attached hereto as Schedule 4.4(c) (i) is true, correct and complete in all material respects and has been prepared in accordance with the books and records of Seller pertaining to the Purchased Assets and (ii) fairly presents, in all material respects, the purchase orders of Seller related to the Purchased Assets as at the respective dates thereof, for the respective periods indicated therein and by the categories set forth therein.

(d) True, correct and complete copies of the Monthly Promotional Reports for the period commencing January 1, 2013 and ending on April 30, 2016 are attached hereto as Schedule 4.4(d) .  The Monthly Promotional Reports attached hereto as Schedule 4.4(d) (i) are true, correct and complete in all material respects and have been prepared in accordance with the books and records of Seller pertaining to the Purchased Assets and (ii) fairly presents, in all material respects, the Coupons, and Deductions of Seller related to the Purchased Assets as at the respective date thereof, for the respective periods indicated therein and by the categories set forth therein.

4.5 No Undisclosed Liabilities .   Except as set forth on Schedule 4.5 , Seller does not have any Liability of any nature arising out of, relating to or affecting the Purchased Assets, whether accrued, absolute, contingent or otherwise, known or unknown and whether or not required by GAAP to be reflected on a balance sheet of Seller.

4.6 Solvency .  Seller is not insolvent, will not be rendered insolvent or be forced to seek protection from creditors as a result of any of the transactions contemplated by this Agreement.  As used in this Section 4.6 , “insolvent” means that the sum of the debts and other probable Liabilities of Seller exceeds the present fair market value of Seller’s assets.  Immediately after giving effect to the consummation of the transactions contemplated by this Agreement, Seller will (a) be able to pay its Liabilities as they become due in the usual course of its business, (b) not have unreasonably small capital with which to conduct its present or proposed business and (c) have assets (calculated at fair market value) that exceed its Liabilities.  The cash available to Seller, after taking into account all other anticipated uses of the cash, will be sufficient to pay all such Liabilities promptly in accordance with their terms.

4.7 Title to Purchased Assets .  Except as set forth on Schedule 4.7 , Seller has good and valid title to, or a valid leasehold interest in, all of the Purchased Assets, free and clear of any Liens other than the Permitted Liens.   To Seller’s Knowledge, all of the Purchased Equipment is in good working order and repair, has been operated and maintained in the ordinary course of business of Seller and meets the requirements of customers of Seller with respect to the Purchased Assets.  To Seller’s Knowledge, none of the Purchased Equipment is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost.  Seller has not deferred maintenance of any Purchased Equipment in contemplation of the transactions contemplated by this Agreement or otherwise.  On the Closing Date, Seller shall convey to Buyer good and valid title to or valid license or leasehold interest in all of the Purchased Assets, free and clear of all Liens of any nature other than the Permitted Liens.  

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4.8 Manufacture of Personal Property and Equipment . Schedule 4.8 sets forth (a) the Contracts entered into between Seller and the Third Parties that are engaged by Seller to manufacture Products and that own, lease, use or hold for use all parts, materials, molds, tools, tooling or any other tangible personal property owned, leased, used or held for use by a Third Party in connection with the manufacture of the Products and (b) to Seller’s Knowledge, all parts, materials, molds, tools, tooling or any other tangible personal property owned, leased, used or held for use by a Third Party that are used exclusively in connection with the manufacture of Products.   

4.9 Absence of Certain Changes . Except as disclosed on Schedule 4.9 , since September 30, 2015:

(a) Seller has owned and used the Purchased Assets and has conducted the business related to the Purchased Assets only in the ordinary course of business consistent with past practices ;

(b) there has not been any event, change, development or occurrence that has had or would reasonably be expected to have a Material Adverse Effect;

(c) there has not been any material damage, destruction or casualty loss (whether or not insured against) affecting any of the Purchased Assets; and  

(d) there has not been any revocation or termination or material curtailment or reduction, or any written notice of any threatened revocation or termination or material curtailment or reduction, of any Permits that relate to Seller’s business related to the Purchased Assets or otherwise related to the Purchased Assets.

4.10 Taxes .

(a) Seller has timely filed all Tax Returns related to the Purchased Assets required to be filed by Seller.  All such Tax Returns were true, correct and complete in all material respects when filed or made and are still true, correct and complete in all material respects.  There are no pending audits with respect to such Tax Returns.  Seller has accrued on its books all Taxes accruing on or with respect to the Purchased Assets which are presently payable.  All Taxes which are due and payable by Seller have been paid in full.  To the extent required by applicable Law, all such amounts have been paid to the proper Governmental Entity.

(b) No Claim has ever been made by an authority in writing in a jurisdiction where Seller does not file Tax Returns that it is or may be subject to taxation by that jurisdiction with respect to the Purchased Assets.

(c) To Seller’s Knowledge, neither Seller nor any director, or officer (or employee responsible for Tax matters) of Seller expects any Taxing Authority to assess any additional Taxes with respect to the Purchased Assets for any period for which Tax Returns have been filed.

(d) There is no dispute or Claim concerning any Tax Liability with respect to the Purchased Assets either (i) claimed or raised by any Taxing Authority in writing or (ii) as to which Seller or the directors, managers and officers (and employees responsible for Tax matters) of Seller has knowledge based upon personal contact with any agent of such Taxing Authority.

(e) Seller has not waived any statute of limitations in respect of Taxes related to the Purchased Assets or agreed to any extension of time with respect to a Tax assessment or deficiency related to the Purchased Assets, in each case which has continuing effect.

(f) Seller (i) has not been a member of any affiliated group within the meaning of Code section 1504(a) or any similar group defined under a similar provision of state, local, or foreign Law and (ii) has no Liability for the Taxes of any Person under section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local, or foreign Law), as a transferee or successor, by Contract or otherwise.  

4.11 Intellectual Property .

(a) Intellectual Property Assets .   Schedule 4.11(a) contains a correct, current and complete list of all:  (i) Intellectual Property Registrations and specifying as to each, as applicable, the jurisdiction by or in which such Intellectual Property Registration has been issued or registered or in which an application for such issuance or registration has been filed and is pending; the application serial number; the application date; the registration or issuance number, if applicable; and the registration or issuance date, if applicable, and (ii) Intellectual Property Assets that are not registered but that are material to the operation of Seller’s business related to the Purchased Assets as currently conducted, formerly conducted or proposed to be conducted or are otherwise material to the

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Brands, current or planned Products, or Former Products and including, in each case, a brief description of the Intellectual Property, and (iii) to the extent not already set forth on Schedule 4.11(a) , all formulas, recipes, processes, and batching instructions to manufacture the current and planned Products and Former Products. All of the items set forth on Schedule 4.11(a) constitute Intellectual Property Assets.

(b) Registration Formalities .  Except as set forth on Schedule 4.11(b) , all required filings and fees related to the Intellectual Property Registrations have been timely filed with and paid to the relevant Governmental Entities and authorized registrars, and all Intellectual Property Registrations are in good standing. Seller has provided Buyer with true and complete copies of all file histories, Documents, certificates, office actions, correspondence and other materials related to all Intellectual Property Registrations that are material and in Seller’s possession.  

(c) Right to Use; Title .

(i) Seller is the sole and exclusive legal and beneficial owner of all right, title and interest in and to Intellectual Property Assets, including the Intellectual Property Registrations and all formulas, recipes, processes, and batching instructions to manufacture the current and planned Products and Former Products.  Except as set forth on Schedule 4.11(c)(i) , Seller is the record owner of all Intellectual Property Registrations contained in the Intellectual Property Assets and Seller has the valid right pursuant to a written agreement to use all other Intellectual Property used or held for use in or necessary for the conduct of Seller’s business related to the Purchased Assets as currently conducted, formerly conducted or proposed to be conducted or otherwise related to the Brands, the current or planned Products, or Former Products, in each case, free and clear of all Liens.

(ii) The Intellectual Property Assets and Licensed Intellectual Property constitute all of the Intellectual Property necessary to operate Seller’s business related to the Purchased Assets as presently conducted, formerly conducted or proposed to be conducted.  The Intellectual Property Assets include all of the Trademarks and Trade Secrets owned by Seller necessary for the continued conduct of the business related to the Purchased Assets after the Closing in substantially the same manner as conducted prior to the Closing and constitute all of the Trademarks and Trade Secrets owned by Seller necessary to conduct the business related to the Purchased Assets as currently conducted.  The consummation of the transactions contemplated hereunder will not result in the loss or impairment of or payment of additional amounts with respect to, nor require the consent of any other Person in respect of, Buyer’s right to own, use or hold for use any Intellectual Property as owned, used or held for use in the conduct of Seller’s business related to the Purchased Assets as currently conducted, formerly conducted, or proposed to be conducted or related to the Brands, current or planned Products, or Former Products.

(d) Employee and Consultant Agreements.   Except as set forth on Schedule 4.11(d) and without limiting the generality of the foregoing, Seller has entered into binding, written agreements with every current and former employee and independent contractor of Seller who is or was involved in the creation of any of the material Intellectual Property Assets related to the current or planned Products or Former Products, whereby such employees and independent contractors:  (A) enter into an enforceable Contract with Seller whereby such employee or contractor acknowledges that all Intellectual Property created by such employee or contractor in connection with his, her or its employment or engagement with Seller is a “work-made-for-hire,” as applicable, and assigns to Seller any ownership interest and right he, she or it may have in the Intellectual Property Assets; and (B) acknowledge Seller’s exclusive ownership of the Intellectual Property Assets. Seller has provided Buyer with true and complete copies of all such Contracts.

(e) Validity and Enforceability .  Seller’s rights in the Intellectual Property Registrations are, and, to Seller’s Knowledge, Seller’s rights in all other Intellectual Property Assets are, valid, subsisting and enforceable.  Seller has taken all reasonable steps to maintain the Intellectual Property Assets and to protect and preserve the confidentiality of all Trade Secrets included in the Intellectual Property Assets, including requiring all Persons having access thereto to execute written non-disclosure agreements.

(f) Patent Claims.   To Seller’s Knowledge, there is no reason to believe that any Claims of any patent applications included in the Intellectual Property Assets or Licensed Intellectual Property will fail to receive the grant of a patent substantially in its current form or otherwise be altered or narrowed in scope.  

(g) Non-Infringement .

(i) The conduct of Seller’s business related to the Purchased Assets as currently and formerly conducted and proposed to be conducted, and the products, processes and services of Seller’s business related to the

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Purchased Assets, including the Intellectual Property Assets and Licensed Intellectual Property as currently or formerly owned, licensed or used by Seller, the current and planned Products and the Former Products, have not infringed, misappropriated, diluted or otherwise violated, and do not, infringe, dilute, misappropriate or otherwise violate, the Intellectual Property or other rights of any Person.

(ii) To Seller’s Knowledge, no Person has infringed, misappropriated, diluted or otherwise violated, or is currently infringing, misappropriating, diluting or otherwise violating, any Intellectual Property Assets.  Seller has taken reasonable steps to police the use of and enforce its rights in the Intellectual Property Assets.  

(h) Intellectual Property Legal Proceedings and Orders .  There are no Legal Proceedings (including any oppositions, interferences or re-examinations) settled, pending or threatened (including in the form of offers to obtain a license):  (A) alleging any infringement, misappropriation, dilution or violation of the Intellectual Property of any Person by Seller in connection with Seller’s business related to the Purchased Assets or the Intellectual Property Assets; (B) challenging the validity, enforceability, registrability or ownership of any Intellectual Property Assets or Seller’s rights with respect to any Intellectual Property Assets or Licensed Intellectual Property; or (C) by Seller or any other Person alleging any infringement, misappropriation, dilution or violation by any Person of any Intellectual Property Assets.  Seller is not subject to any outstanding or prospective Order (including any motion or petition therefor) that does or would restrict or impair the use of any Intellectual Property Assets or Licensed Intellectual Property.

(i) Social Media .

(i) Schedule 2.1(b) contains a correct, current and complete list of all social media accounts that are included in the Purchased Assets and are used by Seller in the conduct of Seller’s business related to the Purchased Assets or otherwise related to the Purchased Assets (the “ Media Accounts ”). Seller has provided Buyer with all login identification, account IDs, user names, handles, passwords and other relational information associated with the Media Accounts used by Seller in the conduct of Seller’s business related to the Purchased Assets.

(ii) Seller has complied in all material respects with all terms of use, terms of service and other Contracts and all associated policies and guidelines relating to its use of any social media platforms, sites or services in the conduct of Seller’s business related to the Purchased Assets or otherwise related to the Purchased Assets (collectively, “ Platform Agreements ”).

(iii) There are no Legal Proceedings, audits or investigations settled, pending or threatened alleging (A) any breach or other violation of any Platform Agreement by Seller; or (B) defamation, any violation of publicity or privacy rights of any Person or any other violation by Seller in connection with its use of social media in the conduct of Seller’s business related to the Purchased Assets or otherwise related to the Purchased Assets.

(j) Personal Information .  At all times during the operation of Seller’s business related to the Purchased Assets, Seller and, to Seller’s Knowledge, any Person acting on behalf of Seller, has provided accurate notice of its privacy practices on all of its websites included in the Purchased Assets.  No such notice has contained any material omissions of the Privacy Policies.  The current privacy policies for Seller’s websites listed on Schedule 2.1(b) are set forth on Schedule 4.11(j) (collectively, the “ Privacy Policies ”).  The Seller’s privacy practices related to Personal Information conform, and at all times during the operation of Seller’s business related to the Purchased Assets, have conformed, in all material respects to the Privacy Policies and to Seller’s contractual commitments.  To Seller’s Knowledge, Seller has complied in all material respects with all applicable Laws relating to (i) the privacy of users of the Seller’s websites, and (ii) the collection, use, storage and disclosure of any Personal Information.  Except as required to process a transaction, Seller has not disclosed, nor has any obligations to disclose, any Personal Information to any third party that would violate Seller’s obligations under the Privacy Policies.  Neither this Agreement nor the transactions contemplated by this Agreement will violate the Privacy Policies as they currently exist or, to Seller’s Knowledge, as they existed at any time during which any of the Personal Information was collected or obtained by Seller. Seller has established and implemented policies, programs and procedures that are commercially reasonable to protect the confidentiality, integrity and security of Personal Information in its possession, custody or control against unauthorized access, use, modification disclosure or other misuse.

(k) Intellectual Property Agreements .

(i) Set forth on Schedule 4.11(k)(i) is a correct, current and complete schedule of all Intellectual Property Agreements, including the date, title and parties for each agreement (or, if such Intellectual Property

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Agreement is unwritten, an accurate summary of its terms), and, with respect to any Intellectual Property Agreements pursuant to which Seller is the licensee or otherwise permitted to use a Third Party’s Intellectual Property, the Licensed Intellectual Property that relates to such Intellectual Property Agreements.  Each Intellectual Property Agreement is in full force and effect and is a valid and binding obligation on Seller, and, to the Knowledge of Seller, the other parties thereto, enforceable against Seller and the other parties thereto in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the rights of creditors generally and of general principles of equity .  Seller has delivered to Buyer prior to the Closing Date accurate and complete copies of all Intellectual Property Agreements (or in the case of any oral agreements, a complete and accurate written description), including all modifications, amendments and supplements thereto and waivers thereunder.    The Intellectual Property Agreements constitute all of the Contracts that are required to operate Seller’s business related to the Purchased Assets as presently conducted, formerly conducted or proposed to be conducted and to own, use or hold for use the Purchased Assets.  Seller has not received notice of the termination of, or intent to terminate or otherwise fail to fully perform any Intellectual Property Agreement and otherwise has no reason to believe or not believe that the parties to any Intellectual Property Agreement shall not fulfill their obligations thereunder in all material respects.

(ii) Except as noted on Schedule 4.11(k)(i) , none of the payments required under the Intellectual Property Agreements have been pre-billed or prepaid prior to the due date thereof, Seller is not in possession of any retainer or other prepayment which represents compensation for services not yet performed and there is not any Default in performance or payment by Seller, or to the Knowledge of Seller, any party thereto.  

(iii) Except as noted on Schedule 4.11(k)(iii) , Seller has not received any notice of dispute, and is not aware of any basis for any dispute, related to any Intellectual Property Agreement.  

(iv) With respect to the Intellectual Property Agreements, Schedule 4.11(k)(i) lists which Intellectual Property Agreements, if any:  (A) are with Affiliates of Seller, (B) are with any Governmental Entity and (C) in which Seller has granted any exclusive rights .

(v) Seller is not, nor has Seller received any notice from any Third Party alleging that it is, or, to the Knowledge of Seller, no Third Party is, in breach, default or violation (each a “ Default ”) (and no event has occurred or not occurred through Seller’s inaction or, to the Knowledge of Seller, through the action or inaction of any Third Parties, which with notice or the lapse of time or both would constitute a Default) of any term, condition or provision of any Intellectual Property Agreement.

4.12 Litigation .

(a) Except as set forth on Schedule 4.12(a) , there is no Claim or Legal Proceeding (i) in connection with Seller’s business related to the Purchased Assets or otherwise related to the Purchased Assets or Seller’s ownership or operation thereof; (ii) to restrain or prevent the consummation of the transactions contemplated hereby or (iii) that, to Seller’s Knowledge, might affect the right of Buyer to own and operate the business related to the Purchased Assets or otherwise own the Purchased Assets, nor, to Seller’s Knowledge, is there any basis for any of the foregoing.   Neither Seller nor any officer or employee of Seller has been permanently or temporarily enjoined by any Order of any Governmental Entity from engaging in or continuing any conduct or practice in connection with Seller’s business related to the Purchased Assets or otherwise related to the Purchased Assets nor is Seller, or any officer or employee of Seller, under any investigation related to Seller’s business related to the Purchased Assets or otherwise related to the Purchased Assets by any Governmental Entity.

(b) There are no outstanding Orders and no unsatisfied judgments, penalties or awards against, relating to or affecting the Purchased Assets. Seller is in compliance with the terms of each Order set forth on Schedule 4.12(b) . No event has occurred or circumstances exist that may constitute or result in (with or without notice or lapse of time) a violation of any such Order.

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4.13 Compliance with Laws; Permits .

(a) Except as set forth on Schedule 4.13(a) , Seller is and has been for the past five years in compliance in all material respects with all Laws applicable to it in connection with the conduct or operation of Seller’s business related to the Purchased Assets and the ownership or use of the Purchased Assets.   Schedule 2.1(f) sets forth all Permits held by Seller with respect to the Purchased Assets.  The Permits listed on Schedule 2.1(f) constitute all Permits that are required in order for Seller to own, lease, use and operate the Purchased Assets and to carry on Seller’s business related to the Purchased Assets as currently conducted, and Seller has, maintains in full force and effect, and has been and is in full compliance with, all such Permits.  There is no basis for the revocation, lapse, suspension, limitation or withdrawal of any Permit, either as a consequence of the transactions contemplated hereby or otherwise.  All of the Permits are transferable to Buyer pursuant to their terms and applicable Law.  Seller is (i) a non-resident, (ii) not registered and (iii) not carrying on business in Canada for purposes of Part IX of the Excise Tax Act (Canada).

(b) Except as set forth on Schedule 4.13(b) , none of the Products or Former Products have ever been subject to FDA Laws, FTC Laws, or similar Laws in any foreign jurisdiction.  Each Product and Former Product has been developed, manufactured, marketed, sold and distributed in compliance in all material respects with all Laws (including to the extent applicable, those relating to investigational use, pre-market clearance or marketing approval to market a Product, CGMP good manufacturing practices, labeling, advertising, record keeping, filing of reports and security).  Seller has not received any notice or other communication from the FDA, FTC, or any other Governmental Entity (i) contesting the uses of or the labeling and promotion of any Products or Former Products or (ii) otherwise alleging any violation applicable to any Product or Former Product of any Laws.  

(c) Except as set forth on Schedule 4.13(c) , no Product is under consideration by senior management of Seller for recall, withdrawal, suspension, seizure or discontinuance, nor has any Product or any Former Product been recalled, withdrawn, suspended, seized or discontinued (other than for commercial or other business reasons) by Seller in the United States or outside the United Sates (whether voluntarily or otherwise) in each case since January 1, 2011.

4.14 Environmental Matters .   There are no Claims pending or, to Seller’s Knowledge, threatened against Seller or any of the Purchased Assets or the business of Seller related to the Purchased Assets under or relating to Environmental Laws including those that involve or relate to Environmental Conditions, Environmental Noncompliance or Seller’s Release, use, disposal or arranging for disposal of any Hazardous Materials on any real property or facility currently or formerly owned, leased or used by Seller.  To Seller’s Knowledge, there are no Hazardous Materials that have been Released by Seller in violation of Environmental Laws or are being stored or are otherwise present on or under any real property or facility currently or formerly owned, leased or used by Seller in violation of Environmental Laws.  Any real property owned, leased or used by Seller, during the period it has been or was owned, leased or used by Seller, has been maintained in, and Seller is and has at all prior times otherwise been in, compliance in all material respects with all applicable Environmental Laws. Seller has not assumed, contractually or, to Seller’s Knowledge, by operation of Law, any liabilities or obligations under any Environmental Laws.  Seller complies with and has complied at all times with Environmental Laws with respect to the use, storage and disposal of Hazardous Materials in the performance of services to customers of Seller’s business related to the Purchased Assets or otherwise related to the Purchased Assets.

4.15 Affiliate Transactions .  

(a) Except as set forth on Schedule 4.15(a) , there are no Contracts related to the Purchased Assets between Seller and (i) its stockholders, (ii) any present or former officer, director, or employee of Seller, (iii) any Affiliate of Seller or (iv) immediate family member or relative of the individuals described in Sections 4.15(a)(i) through 4.15(a)(iii) .

(b) Schedule 4.15(b) sets forth a list of all Persons engaged in a business competing with the Purchased Assets or Seller’s business related to the Purchased Assets with which, to Seller’s Knowledge, any Affiliate of Seller has an equity interest, is employed as an employee or contractor, or otherwise has a Contract.

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4.16 Major Suppliers and Customers .

(a) Set forth on Schedule 4.16(a) is a list of (i) all suppliers of Seller in connection with Seller’s operation of its business related to the Purchased Assets (each, a “ Material Supplier ”) and (ii) the 10 largest customers per Brand (including distributor and reseller customers) (each, a “ Material Customer ”), each for the most recent fiscal year and the period commencing January 1, 2016 and ending on April 30, 2016, and Schedule 4.16(a) sets forth for each Material Supplier and Material Customer the dollar amount attributable to such Material Supplier or such Material Customer for such fiscal year and the period commencing January 1, 2016 and ending on April 30, 2016.  

(b) Except as set forth on Schedule 4.16(b) , in the past 12 months, no Material Supplier or Material Customer (i) has stopped or materially decreased or (ii) has provided notice to Seller that it intends to stop or materially decrease the rate of, or materially change the terms (whether related to payment, price or otherwise) with respect to, purchasing materials, products or services from (including the discontinuation of any Products or the reduction of the number of its stores selling any Products), or supplying materials, products or services to, Seller or a Third Party on behalf of Seller.  No termination, cancellation or limitation of, or any material modification or change in, the business relationships (including product pricing and payment terms) with any Material Supplier or Material Customer has occurred.  No Material Supplier or Material Customer has indicated that it shall, nor to the Knowledge of Seller does such Material Supplier or Material Customer intend to, (w) terminate its relationship with Seller or a Third Party related to the Products, (x) materially change the price or terms of its transactions related to the Products, (y) materially reduce the level of its purchases from or sales to Seller or a Third Party on behalf of Seller related to the Products or (z) discontinue any Products or reduce the number of stores selling any Product.  

(c) The current suppliers and service providers of Seller provide sufficient materials and services for the operation of Seller’s business related to the Purchased Assets, and the Contracts governing such business relationships with such suppliers and service providers are set forth on Schedule 4.16(c) .

4.17 Product Liability and Warranty .

(a) The Products that Seller is developing, manufacturing, having manufactured by a Person other than Seller, marketing, selling and distributing as of the Closing Date are listed on Schedule 1.1 .  Any products that Seller (i) has ever previously developed, manufactured, marketed, sold or distributed in connection with the Purchased Assets, and (ii) no longer develops, manufactures, markets, sells or distributes (any such product, a “ Former Product ”) are listed on Schedule 4.17(a) .  Each Product is and has been, and each Former Product was, in conformity in all material respects with all applicable contractual commitments and all express and implied warranties, and Seller does not have any Liability (and, to Seller’s Knowledge, there is no basis for any present or future Claim or Legal Proceeding against Seller or Buyer on or after the Closing Date) or other Damages in connection therewith.  No Product or Former Product manufactured by or for, marketed, sold, delivered, or provided or distributed by Seller is subject to any guaranty, warranty or other indemnity beyond applicable Law and the applicable standard terms and conditions of sale.

(b) Except as set forth on Schedule 4.17(b) , Seller does not have any Liability and there is no basis for any present or future Claim or Legal Proceeding against Seller or Buyer, giving rise to any Liability, arising out of any injury to any Person or property as a result of the ownership, possession or use of a Product or Former Product manufactured by or for, marketed, sold, delivered, or provided or distributed by Seller.  

(c) Seller’s warranties exclude all warranties provided by Contract Manufacturers.  Seller passes back to the Contract Manufacturers all Products that are covered by that Contract Manufacturer warranty, and Seller has no Liability therefor.

4.18 Inventory .   Schedule 2.1(a) contains a complete and accurate list of all Purchased Inventory and a description thereof, including the UPCs and SKU numbers for each item of Purchased Inventory.  All such Inventory consists of a quality and quantity usable and salable in the ordinary course of business consistent with past practice, except for obsolete, damaged, defective or slow-moving items that have been written off or written down to fair market value or for which adequate reserves have been established. All Purchased Inventory is owned by Seller free and clear of all Liens except for the Permitted Liens. The quantities of each item of Purchased Inventory (whether raw materials, work-in-process or finished goods) are not excessive, but are reasonable in the present circumstances of Seller.

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4.19 Brokers .  Other than KB Financial Advisory Partners, LLC (as successor-by-merger to Dana Holdings LLC), whose fees and commissions shall be paid solely by Seller, there is no investment banker, financial advisor, broker, finder or other intermediary that has been retained by, or is authorized to act on behalf of, Seller that might be entitled to any fee or commission from Seller, Buyer or any of their respective Affiliates upon consummation of any of the transactions contemplated by this Agreement or the Ancillary Agreements.

4.20 Foreign Corrupt Practices Act .  Neither Seller nor, to the Knowledge of Seller, any of its Affiliates, directors, officers, agents or employees, for or on behalf of Seller, has (a) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; (b) made, authorized, promised or offered to make any unlawful payments of money or other things of value to foreign government officials or employees or related parties, or to foreign political parties or campaigns or violated any provision of the Foreign Corrupt Practices Act of 1977, as amended; or (c) knowingly made any other payments in violation of Law.

4.21 Export Controls .  

(a) Seller has at all times conducted its export and related transactions in connection with the operation of Seller’s business related to the Purchased Assets or otherwise related to the Purchased Assets in all material respects in accordance with (i) all applicable U.S. export, re-export, and anti-boycott Laws, including the Export Administration Regulations, and U.S. economic sanctions Laws administered by the U.S. Treasury Department’s Office of Foreign Assets Control and (ii) all other applicable import and export controls in other countries in which Seller conducts its business related to the Purchased Assets.  Without limiting the foregoing:

(b) Seller has obtained all material export licenses and other material consents, authorizations, waivers, approvals, and orders, and has made or filed any and all necessary notices, registrations, declarations and filings with any Governmental Entity required in Seller’s conduct of its business related to the Purchased Assets or otherwise with respect to the Purchased Assets, and has met the requirements of any license exceptions or exemptions related to the operation of Seller’s business related to the Purchased Assets or otherwise related to the Purchased Assets, as required in connection with (i) the export and re-export of Products and (ii) releases of technology, technical data or software to foreign nationals located in the United States and abroad (“ Export Approvals ”);

(c) Seller is in compliance in all material respects with the terms of all applicable Export Approvals with respect to Seller’s conduct of its business related to the Purchased Assets or otherwise related to the Purchased Assets;

(d) There are no pending or, to the Knowledge of Seller, threatened inquiries, investigations, enforcement actions, voluntary disclosure or other Claims against Seller related to Seller’s conduct of its business related to the Purchased Assets or otherwise related to the Purchased Assets with respect to Export Approvals;

(e) There are no actions, conditions or circumstances pertaining to Seller’s export and related transactions that may give rise to any future inquiries, investigations, enforcement actions, voluntary disclosures or other Claims;

(f) No Export Approvals for the transfer of export licenses related to Seller’s conduct of its business related to the Purchased Assets or otherwise related to the Purchased Assets to Buyer are required, or such Export Approvals can be obtained expeditiously without material cost; and

(g) Schedule 4.21(g) sets forth the true, complete and accurate export control classification numbers applicable to the Products.

4.22 Reliance .  Seller hereby acknowledges that Buyer has entered into this transaction in express reliance upon the representations and warranties of Seller made in this Agreement.

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4.23 No Other Representations and Warranties .  Except for the representations and warranties contained in this Article IV (including the related portions of the Disclosure Schedule), neither Seller nor any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of Seller, including any representation or warranty as to the accuracy or completeness of any information regarding the Purchased Assets furnished or made available to Buyer and its Representatives or any information, documents or materials, management presentations or in any other form in expectation of the transactions contemplated hereby) or as to the future revenue, profitability or success of Seller’s business related to the Purchased Assets, or any representation or warranty arising from statute or otherwise in Law.

Article V.

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer hereby represents and warrants to Seller that the statements contained in this Article IV are true and correct as of the date hereof:

5.1 Organization .  Buyer is a corporation duly organized, validly existing and in good standing under the Laws of the State of Colorado, and has all requisite corporate power and authority required to own, lease and operate its properties and to carry on its business as presently conducted.  

5.2 Authorization .  Buyer has all requisite corporate power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is a party, and to perform its obligations hereunder and thereunder.  The execution, delivery and performance of this Agreement and the Ancillary Agreements to which it is a party have been duly and validly authorized, and no other proceedings on the part of Buyer are necessary to authorize or consummate this Agreement, the Ancillary Agreements to which it is a party, or the transactions contemplated hereby or thereby.  This Agreement has been duly and validly executed and delivered by Buyer, and (assuming the due authorization, execution and delivery hereof by Seller) constitutes the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the rights of creditors generally and of general principles of equity.

5.3 No Conflicts; Consents .   The execution and delivery by Buyer of, and the performance by Buyer of its obligations under, this Agreement and the Ancillary Agreements, and the consummation by Buyer of the transactions contemplated hereby and thereby do not and will not (a) violate any provision of Buyer’s Organizational Documents; (b) violate any Law applicable to Buyer; (c) violate, create a Default under, require any consent of or notice to any Third Party pursuant to any Contract to which Buyer is a party or by which Buyer may be bound, affected or benefited, in each case that would affect Buyer’s ability to complete the transactions contemplated by this Agreement; or (d) require any consent or approval of, registration or filing with, or notice to any Governmental Entity.  

5.4 Legal Proceedings .   There are no Claims pending, or to the knowledge of Buyer, threatened, against Buyer seeking to prevent or to challenge the transactions contemplated by this Agreement or any Ancillary Agreement or otherwise prevent Buyer from complying with the terms and provisions of this Agreement or any Ancillary Agreement.

5.5 Independent Investigation .  Buyer has conducted its own independent investigation, review and analysis of Seller and the Purchased Assets and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of Seller for such purpose.  Buyer acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, Buyer has relied solely upon its own investigation and the express representations and warranties of Seller set forth in Article IV (including the related portions of the Disclosure Schedule) and (b) neither Seller nor any other Person has made any representation or warranty as to Seller or the Purchased Assets or this Agreement, except as expressly set forth in Article IV (including the related portions of the Disclosure Schedule) .

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5.6 Brokers .  Other than Threadstone Advisors LLC, which has been retained as a financial advisor for Buyer, there is no investment banker, financial advisor, broker, finder or other intermediary that has been retained by, or is authorized to act on behalf of, Buyer that might be entitled to any fee or commission from Seller, Buyer or any of their respective Affiliates upon consummation of any of the transactions contemplated by this Agreement or the Ancillary Agreements.

Article VI.

COVENANTS

6.1 Preservation of Records .  Seller and Buyer agree that both of them shall preserve and keep the records held by them or their Affiliates relating to the Purchased Assets for a period of five years from the Closing Date and shall make such records and personnel available to the other as may be reasonably required by such party in connection with, among other things, any Legal Proceedings against Seller or Buyer or any of their respective Affiliates or in order to enable Seller or Buyer to comply with their respective obligations under this Agreement, the Ancillary Agreements and each other agreement, document or instrument contemplated hereby or thereby.  If Seller or Buyer wishes to destroy such records after that time, such party shall first give 90 calendar days’ prior written notice to the other and such other party shall have the right at its option and expense, upon prior written notice given to such party within that 90 calendar day period, to take possession of the records within 180 calendar days after the date of such notice.

6.2 Public Announcements .  Neither party hereto shall issue any press release or make any public statement with respect to this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby without the prior written consent of the other party hereto, except as may be required by applicable Law, including the rules of any applicable stock exchange.

6.3 Confidentiality .  Seller shall, and shall cause its Affiliates and Representatives (collectively with Seller, the “ Recipients ”) to, keep confidential any information relating to the Purchased Assets, this Agreement, the Ancillary Agreements and the transactions contemplated hereunder and thereunder, except for any such information that (a) is available to the public on the Closing Date, (b) thereafter becomes available to the public other than as a result of a disclosure by a Recipient, (c) is or becomes available to a Recipient on a non-confidential basis from a source that to such Recipient’s knowledge is not prohibited from disclosing such information to Recipient by a legal, contractual or fiduciary obligation to any other Person, or (d) may be disclosed pursuant to Section 6.2 .  If a Recipient is required to disclose any such information in response to an Order or as otherwise required by Law, it shall inform Buyer in writing of such request or obligation as soon as reasonably possible after Recipient is informed of it and, if possible, before any information is disclosed, so that a protective Order or other appropriate remedy may be obtained by Buyer (at its sole cost and expense).  If such Recipient is obligated to make such disclosure, it shall only make such disclosure to the extent to which it is so obligated, but not further or otherwise.  The confidentiality restrictions set forth in this Section 6.3 shall expire on the fifth anniversary of the Closing Date.

6.4 Use of Names .  Buyer and its Affiliates shall have the sole right to the use of the Seller Marks, and Seller shall not, and shall not permit any Affiliate of Seller to, use such Seller Marks or any variation or simulation thereof.

6.5 Restrictive Covenants .

(a) For the period beginning on the Closing Date and ending on the fifth anniversary of the Closing Date, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in any business in the United States and Canada (the “ Territory ”) that is directly competitive with the business of designing, manufacturing, distributing, marketing and/or selling the Products or the Brands (the “ Competitive Business ”); (ii) have an ownership interest in any Person that engages directly or indirectly in the Competitive Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause, induce or encourage any actual or prospective client, customer, supplier or licensor of Seller in connection with the Purchased Assets (including any existing or former client or customer of Seller and any Person that becomes a client or customer of Buyer in connection with the Purchased Assets after the Closing), or any other Person who has a material business relationship with Seller in connection with the Purchased Assets, to terminate or modify any such actual or prospective relationship with Buyer in connection with the Purchased Assets. Notwithstanding the foregoing, (A) Seller may own, directly or indirectly,

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solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person and (B) the parties (1) acknowledge that Lance Funston, the CEO of Seller, is also a controlling stockholder and Chairman of the Board of Directors of CCA Industries, Inc. and (2) acknowledge and agree that CCA Industries, Inc. shall not at any time on or after the Closing Date be deemed to conduct a Competitive Business or otherwise be subject to the scope of the covenants set forth in this Section 6.5 .

(b) Seller acknowledges that the covenants of Seller set forth in this Section 6.5 are an essential element of this Agreement and that any breach by Seller of any provision of this Section 6.5 will result in irreparable injury to Buyer.  Seller acknowledges that in the event of such a breach, in addition to all other remedies available at Law, Buyer shall be entitled to equitable relief, including injunctive relief, and an equitable accounting of all earnings, profits or other benefits arising therefrom, as well as such other Damages as may be appropriate.  Seller has independently consulted with its own counsel and after such consultation agrees that the covenants set forth in this Section 6.5 are reasonable and proper to protect the legitimate interest of Buyer.

(c) If a court of competent jurisdiction determines that the character, duration or geographical scope of the provisions of this Section 6.5 are unreasonable, it is the intention and the agreement of the parties hereto that these provisions shall be construed by the court in such a manner as to impose only those restrictions on Seller’s conduct that are reasonable in light of the circumstances and as are necessary to assure to Buyer the benefits of this Agreement, and specifically if any provision of this Section 6.5 is, for any reason, held to be invalid or unenforceable, the parties hereto agree that the court or arbitral panel making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Section 6.5 shall be enforceable as so modified.  In the event such court or arbitral panel does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.  If, in any judicial proceeding, a court shall refuse to enforce all of the separate covenants of this Section 6.5 because taken together they are more extensive than necessary to assure to Buyer the intended benefits of this Agreement, it is expressly understood and agreed by the parties hereto that the provisions hereof, if eliminated or limited, would permit the remaining separate provisions to be enforced in such proceeding, shall be deemed eliminated or limited, for the purposes of such proceeding, from this Agreement.

(d) Seller acknowledges that enforcement of the restrictive covenants in this Section 6.5 would not impose an undue financial, personal, or professional burden or hardship on Seller, and that enforcement of such restrictive covenants would not constitute a violation of public policy.

6.6 Title Updates .  Prior to the Closing Date, at Seller’s sole cost and expense, Seller shall make filings with the registries and other recording Governmental Entities in all Record Owner Jurisdictions (or, if Seller has not received confirmation of such filings from its foreign counsel in any Record Owner Jurisdiction prior to the Closing, then copies of the communications from Seller’s counsel to such foreign counsel instructing foreign counsel to make such filings on behalf of Seller; provided; however, that nothing in this parenthetical shall limit Seller’s obligations pursuant to this Section 6.6 and Seller will pay all expenses incurred in connection with making such filings) to update the chain of title of each Intellectual Property Registration in such Record Owner Jurisdictions such that, once such filings are recorded by such Governmental Entities, Seller shall be identified in the records of the applicable Governmental Entity as the current owner of record, without break in chain of title, of each such Intellectual Property Registration, free and clear of all Liens. Prior to the Closing Date, Seller shall deliver to Buyer complete and accurate copies of filings with the registries and other recording Governmental Entities (or, without limiting Seller’s obligations pursuant to the first sentence of this Section 6.6, if Seller has not received copies of such filings from its foreign counsel in any Record Owner Jurisdiction prior to the Closing, then copies of the communications from Seller’s counsel to foreign counsel instructing foreign counsel to make such filings on behalf of Seller and all related correspondence between Seller’s foreign counsel, Seller’s counsel and Seller) in all Record Owner Jurisdictions to update the chain of title of each Intellectual Property Registration in such Record Owner Jurisdictions. Prior to the Closing Date, Seller shall deliver to Buyer a list of names and contact information for foreign counsel.

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6.7 Further Assurances .   Buyer and Seller shall, and shall cause their respective Affiliates to, (a) execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to (i) carry out the provisions hereof and (ii) give effect to the transactions contemplated by this Agreement and the Ancillary Agreements and (b) make available any financial statements and financial records and provide reasonable access to any personnel  (including, for the avoidance of doubt, Doug Haas, Brent Funston and Lance Funston) of any Third Party, including any accounting firm, involved with the preparation of such financial statements and financial records, as may be reasonably required in connection with any disclosures required to be made by a Governmental Entity in connection with the transactions contemplated by this Agreement and the Ancillary Agreements.

6.8 Bulk Sales Laws .  The parties hereby waive compliance with the provisions of any bulk sales notification, bulk transfer notification or similar notification Laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Purchased Assets to Buyer; it being understood that any Liabilities arising out of the failure of Seller to comply with the requirements and provisions of any bulk sales notification, bulk transfer notification or similar notification Laws of any jurisdiction shall be treated as Excluded Liabilities.  Any transfer Taxes that may apply by reason of engaging in what is deemed a “bulk sale” itself are not waived, and the parties agree to pay any such Taxes in accordance with Section 8.1 .

6.9 Domain Name Transfers .  Seller shall use its commercially reasonable efforts to have the domain name registrations www.denorexshampoo.com and www.denorex.net transferred to Buyer by December 31, 2016.

6.10 Prosecution of Mentar Trademark Application . Seller shall prosecute and use its commercially reasonably efforts to register U.S. Trademark Application Number 87062558 with the U.S. Patent and Trademark Office (the “ Mentar Trademark Application ”).  Seller agrees that, in the event that Seller specifically requests in writing that Buyer assist Seller in the prosecution or registration of the Mentar Trademark Application following the Closing, Seller will reimburse Buyer for any and all reasonable costs and expenses incurred by Buyer or Buyer’s counsel in connection therewith on or after the date that such written request is provided by Seller to Buyer.  

Article VII.

CLOSING DELIVERIES

7.1 Deliveries by Seller .  At the Closing, Seller shall have delivered, or caused to be delivered, to Buyer the following;

(a) executed copies of all consents, waivers, approvals and authorizations that are listed on Schedule 4.3 , in each case in form and substance reasonably satisfactory to Buyer;

(b) the name of the administrator, operator and owner of each of the following: (i) the Purchased IP Contracts, (ii) the Terms of Service, dated as of April 26, 2016 (as amended from time to time) by and between Seller and BigCommerce, Inc. and (iii) the Toll-Free Telephone Numbers, and such person’s email address and password, if applicable;

(c) all Permits that are listed on Schedule 2.1(f) ;

(d) a counterpart signature page, duly executed by Seller, to each of the following Ancillary Agreements:  

(i) the Intellectual Property Assignments;

(ii) the Assignment and Assumption Agreement;

(iii) the Bill of Sale;

(iv) the Escrow Agreement; and

(v) the License Agreement;

(e) evidence of the release of all Liens relating to the Purchased Assets other than Permitted Liens, in form and substance reasonably satisfactory to Buyer; and

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(f) such other customary instruments of transfer, assumption, filings or documents in a form and substance reasonably satisfactory to Buyer, as may be required to consummate the transactions contemplated hereby.

7.2 Deliveries by Buyer .  Buyer shall have delivered, or caused to be delivered, to Seller the following:  

(a) a counterpart signature page, duly executed by Buyer, to each of the following Ancillary Agreements:

(i) the Intellectual Property Assignments;

(ii) the Assignment and Assumption Agreement;

(iii) the Bill of Sale;

(iv) the Escrow Agreement; and

(v) the License Agreement;

(b) such other customary instruments of transfer, assumption, filings or documents in a form and substance reasonably satisfactory to Seller, as may be required to consummate the transactions contemplated hereby.

Article VIII.

TAXES

8.1 Transfer Taxes .  Seller and Buyer shall each be responsible for 50%  of any and all sales, use, stamp, documentary, filing, recording, transfer, income, bulk sales, value added, goods and services, registration or similar Taxes as levied by any Governmental Entity in connection with the transactions contemplated by this Agreement (collectively, “ Transfer Taxes ”).  The parties shall use their respective commercially reasonable efforts, and cooperate with each other, to obtain any sales Tax or other Tax exemptions applicable to the purchase and sale of the Purchased Assets or any other action contemplated hereby.  Buyer shall provide to Seller, and Seller shall accept, a signed and completed Streamlined Sales and Use Tax Agreement Certificate of Exemption (SSTGB Form F0003) claiming a sale for resale exemption from Indiana sales and use tax with respect to that portion of the Inventory that (a) is located within Indiana on the Closing Date and (b) will be resold by Buyer in the regular course of Buyer’s business in the same form as acquired, unless otherwise required by applicable Law.  The party responsible for filing any Tax Return with respect to Transfer Taxes shall, at its own expense, prepare and file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Law, Buyer shall, and shall cause its Affiliates to, join in the execution of any such Tax Returns and other documentation after a reasonable opportunity to review and approve such Tax Returns and other documentation before they are required to be filed.

8.2 Allocation of Taxes .

(a) Seller shall be liable for and shall pay to discharge when due (i) all Taxes relating directly or indirectly to the Purchased Assets that are attributable to any taxable period or portion thereof ending before the Closing Date.  Seller shall cause any applicable Tax Return required to be filed with respect to any Taxes described in this Section 8.2(a) to be prepared and duly and timely filed.

(b) With respect to Taxes relating directly or indirectly to the Purchased Assets that are attributable to a taxable period that begins before the Closing Date and ends on or after the Closing Date (a “ Straddle Period ”): in the case of Taxes imposed on a periodic basis, the portion of any such Tax that is attributable to the portion of the period ending before the Closing Date shall be considered to equal the amount of such Taxes for the entire taxable period, multiplied by a fraction, the numerator of which is the number of days in the portion of such taxable period that ends on the Closing Date and the denominator of which is the number of days in the entire taxable period ( provided , however , that if the Tax is based on a valuation that pertains to a Tax period other than that in which the Closing Date occurs, such proration shall be recalculated at such time as actual Tax bills for such period are available, and Buyer and Seller shall cooperate with each other in all respects in connection with such recalculation and pay any sums due in consequence thereof to the party entitled to recover the same).  For purposes hereof, Taxes attributable to any period or portion thereof ending before the Closing Date shall include sales, use, value added, goods and services and similar Taxes imposed on sales or gross receipts that accrue or are received prior to the Closing Date,

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and Taxes attributable to the ownership of property during the period before the Closing Date.  All other Taxes shall be apportioned between Seller and Buyer on the assumption that the applicable Tax period ended on the Closing Date.  The party responsible under applicable Law for filing Tax Returns required to be filed with respect to any Taxes described in this Section 8.2(b) and not described in the immediately preceding sentence (the “ Straddle Period Return ”) shall cause such Tax Returns to be prepared and duly and timely filed.  Such Tax Returns shall be true, correct and accurate in all material respects.  For each Straddle Period Return, each of Buyer and Seller shall deliver to the other party, for its review and comment no less than 45 calendar days prior to the applicable filing deadline (taking into account applicable extensions), a copy of the draft return (with copies of any relevant schedules, work papers and other documentation then available).  At least 30 calendar days prior to the due date for the filing of such return (including extensions), each of Buyer and Seller shall notify the other party in writing of any objections to any items set forth on such returns, and the parties shall address these objections in accordance with Section 8.2(f) .

(c) Except as otherwise set forth in this Agreement, to the extent any refunds or credits with respect to Taxes paid by either Buyer or Seller with respect to the Purchased Assets are attributable to taxable years or a portion thereof ending before the Closing Date, such refunds or credits, less either party’s reasonable expenses of obtaining such refunds or credits, shall belong to Seller.  Except as provided in the immediately preceding sentence, to the extent that any refunds or credits with respect to Taxes paid by either Buyer or Seller with respect to the Purchased Assets are attributable to taxable years or a portion thereof commencing on or after the Closing Date, such refunds or credits, less either party’s reasonable expenses of obtaining such refunds or credits, shall belong to Buyer.  Each of Buyer and Seller shall equitably apportion any refund or credit, net of expenses of obtaining such refunds or credits, with respect to Taxes for any Straddle Period in a manner consistent with the principles set forth in Section 8.2(b) .  Each of Buyer and Seller shall forward to the other party or reimburse the other party for the amount of such refunds or credits belonging to the other party under this Section 8.2(c) within 30 calendar days after receipt thereof by either Buyer or Seller (as the case may be) ( provided that for such purpose, a credit shall be deemed received on the due date for the Taxes it is actually applied against).  

(d) Without the review and consent of the other party (which consent may not be unreasonably withheld, conditioned or delayed), neither Buyer or Seller nor any of their respective Affiliates shall file or make a formal or informal Claim for refund or file any amended Tax Returns attributable to the Purchased Assets for any Straddle Period.

(e) Tax Claims .

(i) In case of any Claim, audit, investigation, court proceeding or other dispute with respect to any Tax matter that affects the Purchased Assets (a “ Tax Claim ”) that, if successful, might result in an indemnity payment under Article IX , Buyer shall notify Seller of such Claim no later than ten Business Days after written notice of such Tax Claim is received by Buyer; provided , however , that the failure to provide timely notice shall not affect Buyer’s right to indemnification hereunder except to the extent that Seller is actually prejudiced thereby.

(ii) With respect to any Tax Claim relating to (A) Taxes attributable to (1) the applicable Excluded Assets for any and all periods or (2) the Purchased Assets, in each case, for any and all periods ending before the Closing Date; or (B) any other Taxes for which Seller might be entirely liable, then Seller shall have the right (but not the duty) to control any resulting proceedings and to determine whether and when to settle any such Claim, assessment, or dispute.

(iii) Buyer and Seller shall jointly control and participate in all proceedings in connection with (A) any Tax Claim relating to Taxes for any Straddle Period and (B) any Tax Claim that may result in a Liability for both parties.  The costs incurred by Buyer and Seller in connection with such proceedings shall be borne by the parties in proportion to their Liability for the Taxes asserted in the Tax Claim.  Neither Buyer nor Seller shall settle or compromise any such Tax Claim without the prior written consent of the other, which consent shall not be unreasonably withheld, conditioned or delayed.

(iv) Except as otherwise provided in this Section 8.2 , Buyer shall control all proceedings with respect to Tax Claims attributable to the Purchased Assets for any taxable year or period beginning on or after the Closing Date.

(v) This Section 8.2 shall govern with respect to any Tax matter.

(f) If Buyer and Seller disagree as to the amount of Taxes for which each is liable under this Agreement, Buyer and Seller shall promptly consult each other in an effort to resolve such dispute.  If any such dispute cannot

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be resolved within 15 calendar days after the initial date of consultation, then each party shall deliver simultaneously to the Independent Accountant such work papers and other reports and information relating to the disputed matter(s) as the Independent Accountant may request and shall be afforded the opportunity to discuss the disputed matter(s) with the Independent Accountant.  The Independent Accountant shall have 30 calendar days to carry out its review and prepare a written statement of its determination regarding the disputed matter(s) (including a statement regarding the Independent Accountant’s determination of the prevailing party in any such disputed matter that provides the Independent Accountant’s reasons for and an explanation of such determination), which determination shall be final and binding upon Buyer and Seller.  The fees, costs and expenses of the Independent Accountant’s review and report shall be borne by the party whose estimate of the amount of Taxes for which each party is liable differs most greatly from the amount of Taxes for which the Independent Account determines each party is liable.

(g) Buyer and Seller further agree, upon request, to use commercially reasonable efforts to obtain any certificate or other document from any Taxing Authority or any other Person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed (including with respect to the transactions contemplated hereby).

8.3 Cooperation on Tax Matters .  Buyer and Seller shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with the filing of Tax Returns and any audit, protest, litigation or other proceeding with respect to Taxes related to the Purchased Assets.  Such cooperation shall include the retention and (upon the other party’s request) the provision of records and information reasonably relevant to any such audit, litigation, or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.  Seller and Buyer shall (a) retain all books and records with respect to Tax matters pertinent to Seller relating to any taxable period beginning before the Closing Date until expiration of the statute of limitations (and, to the extent notified by Buyer or Seller, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any Taxing Authority, and (b) give the other party reasonable written notice prior to transferring, destroying or discarding any such books and records and, if the other party so requests, Seller shall allow Buyer to take possession of such books and records.

Article IX.

INDEMNIFICATION

9.1 Survival .  T he representations and warranties of Seller contained in this Agreement, and all Claims with respect thereto, shall survive the Closing Date until 18 months thereafter; provided , however , that: (a) the representations and warranties set forth in Section 4.1 (Organization; Foreign Qualification), Section 4.2 (Authorization), Section 4.7 (Title to Purchased Assets), and Section 4.19 (Brokers) shall survive in perpetuity, (b) the representations and warranties set forth in Section 4.10 (Taxes) shall survive the Closing until 90 calendar days following the expiration of any applicable statute of limitations (including any extensions thereof) for the underlying Claim, and (c) the representations and warranties set forth in Sections 4.11(a) , 4.11(c) , 4.11(e) , 4.11(g) , 4.11(h) , and 4.11(k)(i) (Intellectual Property) shall survive until the third anniversary of the Closing Date; provided further , however , that in the case of fraud or intentional misrepresentation all representations and warranties of Seller shall survive in perpetuity.  The representations and warranties referred to in clauses (a), (b) and (c) of this Section 9.1 shall be referred to collectively as the “ Fundamental Reps .” The representations and warranties of Buyer contained in this Agreement, and all Claims with respect thereto, shall survive the Closing until 60 calendar days following the expiration of any applicable statute of limitations (including any extensions thereof) for the underlying Claim.  Any Claims under this Agreement with respect to a breach of a representation and warranty must be asserted by written notice within the applicable survival period contemplated by this Section 9.1 , and if such a notice is given, the survival period for such representation and warranty shall continue until the Claim is fully resolved.  All agreements, covenants and obligations contained in this Agreement and the Ancillary Agreements, including the special indemnification obligations set forth in Section 9.2(b) , shall survive in perpetuity unless satisfied earlier in accordance with their terms.  

9.2 Covenants to Indemnify .

(a) Subject to the limitations described below in Section 9.4 , each of Buyer and its Affiliates and each of their respective members, stockholders, and Representatives (the “ Buyer Indemnified Parties ”) shall be indemnified, defended, held harmless and reimbursed by Seller from and against any and all Damages asserted against, incurred, sustained, accrued or suffered by such Buyer Indemnified Party that arise out of or relate to (i) any breach of any

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representation or warranty made by Seller in this Agreement, (ii) any failure to perform any agreement, covenant or obligation made by Seller in or pursuant to this Agreement , (iii) any Excluded Asset or Excluded Liability, and (iv) Seller’s ownership of the Purchased Assets or Seller’s operation of its business related to the Purchased Assets before the Closing Date.

(b) In addition to the provisions of Section 9.2(a) , and notwithstanding anything to the contrary in Section 9.4 , the Buyer Indemnified Parties shall be indemnified, defended, held harmless and reimbursed by Seller from and against any and all Damages asserted against, incurred, sustained, accrued or suffered by such Buyer Indemnified Party from a Third Party Claim that arise out of or relate to the following:

(i) the ownership, registration or use of the www.denorexshampoo.com and www.denorex.net domain names until the earlier of (i) the date on which the ownership of the last or both of such domain names is transferred to Buyer or (ii) the expiration or termination of the License Agreement in accordance with its terms; provided, however, that this indemnity shall cover all Products and Former Products displaying these domain names that were produced or sold prior to the expiration or termination of the License Agreement until such Products and Former Products are consumed by consumers;

(ii) the Mentar trademark or the use of the “™” or “®” trademark symbols for the term “Mentar” by either Seller or Buyer (provided that Buyer is using the “Mentar” mark in connection with substantially similar goods and/or services as Seller used such mark as of the Closing Date) for the marketing, sale or distribution of current and planned Products and Former Products during the period ending on the date the Mentar Trademark Application becomes subject to federal trademark registration that is in full force and effect, or, if the Mentar Trademark Application is denied registration pursuant to a final, non-appealable office action by the U.S. Patent and Trademark Office, during the period prior to the one-year anniversary of such final office action.  

(iii) with respect to the Collateral described on Schedule 2.1(d) : (A) any copyrightable work owned by any Third Party and displayed on such Collateral; (B) the name, likeness, voice, identity, endorsement or other words and indicia associated with and/or identifying a Third Party displayed or otherwise used in such Collateral; and (C) any rights held by an independent contractor of Seller who is or was involved in the creation of such Collateral, in each case in the manner used by Seller as of the Closing Date.

(c) Subject to the limitations described below in Section 9.4 , each of Seller and its Affiliates and each of their respective members, stockholders, and Representatives (the “ Seller Indemnified Parties; ” the Seller Indemnified Parties and the Buyer Indemnified Parties shall sometimes be referred to herein individually as a “ Covered Party ” and collectively as the “ Covered Parties ”) shall be indemnified, defended and held harmless and reimbursed by Buyer from and against any and all Damages asserted against, incurred, sustained, accrued or suffered by such Seller Indemnified Party arising out of or relating to (i) any breach of any representation or warranty made by Buyer in this Agreement, (ii) any failure to perform any agreement, covenant or obligation made by Buyer in or pursuant to this Agreement, (iii) any Assumed Liability, and (iv) Buyer’s ownership of the Purchased Assets or Buyer’s operation of its business related to the Purchased Assets on or after the Closing Date.

(d) The term “Damages” as used in this Article IX is not limited to matters asserted by Third Parties against the Covered Parties, but includes Damages incurred, sustained or suffered by such Persons in the absence of Third-Party Claims, and payments by a Covered Party shall not be a condition precedent to recovery.

9.3 Notice of Claims .  

(a) If a Covered Party seeking indemnification hereunder receives notice of the assertion of any Claim (a “ Claim Notice ”) with respect to which a party required to provide indemnification hereunder (an “ Indemnifying Party ”) may be obligated under this Agreement to provide indemnification, such Covered Party shall give such Indemnifying Party prompt written notice thereof; provided , however , that the failure of any Covered Party to give such Claim Notice shall not relieve any Indemnifying Party of its obligations under this Article IX , except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure.  Such Claim Notice shall describe the Claim in reasonable detail, and, if practicable, shall indicate the estimated amount of Damages that have been or may be sustained by such Covered Party.  

(b) An Indemnifying Party, at such Indemnifying Party’s own expense (including all legal and other expenses) and through counsel reasonably acceptable to the Covered Party, may elect to defend any Third Party Claim; and if it so elects, it shall, within 20 calendar days after receiving notice of such Third Party Claim (or sooner, if the nature of such Third Party Claim so requires), notify the Covered Party of its intent to do so, and such

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Covered Party shall cooperate in the defense of such Third Party Claim; provided , that such notice shall include an acknowledgment from the Indemnifying Party that such Indemnifying Party is undertaking and will prosecute the defense of the Claim and confirming that based on the information available as between the Covered Party and such Indemnifying Party, such Indemnifying Party will, subject to the provisions of Section 9.4 , be able to pay the full amount of potential Liability in connection with any such Claim (including for the Legal Proceeding and all Legal Proceedings on appeal or other review which counsel for the Covered Party may reasonably consider appropriate); provided , further , such Indemnifying Party shall not have the right to defend or direct the defense of such Claim that (i) is asserted directly by or on behalf of a Person that is a supplier or customer of Seller, Buyer or their Affiliates or (ii) seeks an injunction or other equitable relief against the Covered Party.  After notice from an Indemnifying Party to a Covered Party of its election to assume the defense of a Third Party Claim, such Indemnifying Party shall not be liable to such Covered Party for any legal or other expenses subsequently incurred by such Covered Party in connection with the defense thereof; provided , however , that such Covered Party shall have the right to employ one counsel to represent such Covered Party and all other Persons entitled to indemnification in respect of such Claim hereunder if, in the reasonable opinion of counsel to the Covered Party, (y) there are legal defenses available to a Covered Party that are different from or additional to those available to the Indemnifying Party or (z) a conflict of interest between such Covered Party and such Indemnifying Party exists in respect of such Claim which would make representation of the Indemnifying Party and the Covered Party impermissible under applicable standards of professional conduct, and in either of those events the reasonable fees and expenses of one such separate counsel for all Covered Parties shall be paid by such Indemnifying Party.   If the Indemnifying Party does not notify the Covered Party within such 20 calendar days (or sooner, if the nature of such Third Party Claim so requires), the Covered Party shall have the right to undertake, at the Indemnifying Party’s cost, risk and expense, the defense, compromise or settlement of the Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement.  The Indemnifying Party shall not, except with the consent of the Covered Party, enter into any settlement that is not exclusively monetary and shall be paid entirely by the Indemnifying Party and does not include as an unconditional term thereof the giving by the Person or Persons asserting such Claim to all Covered Parties of an unconditional release from all Liability with respect to such Claim or consent to entry of any judgment.  Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control any Claim relating to Taxes of Buyer or Seller for any Tax or accounting period ending on or after the Closing Date and shall not be entitled to settle, either administratively or after the commencement of litigation, any Claim for Taxes which could adversely affect the Liability of Buyer or Seller for Taxes for any Tax or accounting period (or portion thereof) ending on or after the Closing Date, without the prior written consent of Buyer; in the event of a conflict between this Section 9.3(b) and Section 8.2(e) , Section 8.2(e) shall govern.   

9.4 Limitation on Indemnity .

(a) Notwithstanding anything expressed or implied in this Article IX to the contrary, no Covered Party shall be entitled to make a Claim for indemnification pursuant to this Article IX unless and until the aggregate of all Damages suffered by such Covered Party hereunder exceeds $50,000 (the “ Basket Amount ”), whereupon all Damages (including the Basket Amount) shall become due and payable.  Notwithstanding the foregoing, no Basket Amount shall apply to (i) a Claim for a breach of a Fundamental Rep, (ii) a Covered Party’s Claim for indemnification hereunder to the extent a breach results from fraud or intentional misrepresentation, and (iii) any Claim for indemnification under Sections 9.2(a)(ii) though 9.2(a)(iv) , Section 9.2(b) or Sections 9.2(c)(ii) through 9.2(c)(iv) .  Notwithstanding anything herein to the contrary, in determining the amount of any Damages with respect to such breach, such representations, warranties and covenants, agreements and obligations shall be read without regard to any materiality qualifier (including any reference to Material Adverse Effect) contained therein.  

(b) Any indemnification payments required to be made by Seller shall promptly be paid first from the Escrow Amount to the extent available, and second, from Seller by wire transfer of immediately available funds.  Seller shall not be liable to any Buyer Indemnified Party under the terms of this Agreement for amounts in excess of $480,000 (the “ Cap ”), except with respect to Claims for (i) fraud or intentional misrepresentation, in which case there will be no Cap, (ii) a breach of the Fundamental Reps, in which case the “Cap” will be the amount of the Purchase Price paid by Buyer to Seller and (iii) any Damages arising out of or relating to Sections 9.2(a)(ii) though 9.2(a)(iv) or Section 9.2(b) , in which case there will be no Cap.

(c) Except with respect to the matters covered in the next succeeding sentence of this Section 9.4(c) , each party hereto hereby acknowledges and agrees that such party’s sole and exclusive remedy with respect to any and all Damages relating to the subject matter of this Agreement shall be pursuant to the indemnification provisions

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set forth in this Article IX .  Notwithstanding the foregoing, (i) Buyer shall have the right to seek injunctive relief in accordance with Section 6.5(b) , (ii) for the avoidance of doubt, Pre-Closing Deductions shall not constitute Damages and (iii) in no event shall the limitations set forth in this Section 9.4(c) apply to Pre-Closing Deductions or Damages that result from fraud or intentional misrepresentation.

(d) The amount of any Damages subject to indemnification under this Article IX shall be reduced by the amount, if any, of any insurance or Third Party recovery actually received by the Covered Party, net of any expenses incurred by such Covered Party (including any increase in premiums, reasonable attorney’s fees and other expenses) in insuring against and collecting such amount that the Covered Party may receive or otherwise enjoy with respect to the event that directly or indirectly caused such Damages.  The Covered Party shall use commercially reasonable efforts to recover all insurance and Third Party recoveries and benefits that may be available.  If the Covered Party receives any payment from an Indemnifying Party in respect of any Damages pursuant to this Article IX and the Covered Party could have recovered all or a part of such Damages from a Third Party (each, a “ Potential Contributor ”) based on the underlying Claim asserted against the Covered Party, the Covered Party shall assign those of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party to recover from the Potential Contributor the amount of that payment.  If the Covered Party receives any insurance or third party recoveries after the Indemnifying Party has paid the Covered Party under any indemnification provision of this Agreement in respect of such Damages, the Covered Party must notify the Indemnifying Party and pay to the Indemnifying Party the value of the benefit to the Covered Party of that recovery, net of any expenses incurred by such Covered Party (including any increase in premiums, reasonable attorney’s fees and other expenses) in insuring against and collecting such amount within 15 calendar days after the recovery or benefit has been received.  

(e) Any Damages hereunder shall be determined without duplication of the amount of recovery by reason of the facts giving rise to such indemnification claim based upon a breach of more than one representation, warranty, covenant or agreement under this Agreement.

(f) To the extent permitted by Law, any payment made by a Person indemnifying a Covered Party pursuant to this Article IX shall be treated on the parties’ Tax Returns as an adjustment to the Purchased Price for all Tax purposes to the extent permitted by applicable Law.

9.5 Right of Set Off . Notwithstanding any other provision in this Agreement to the contrary, Buyer and its Affiliates, in Buyer’s sole discretion, shall have the right to set off and retain any amount to which Buyer or its Affiliates may be entitled from any other party against any amount otherwise payable by Buyer or its Affiliates to such party (including any amounts payable pursuant to Section 3.2 ). The exercise of or failure to exercise such right of set off shall not constitute an election of remedies or limit in any manner the enforcement of any other remedy.  

Article X.

MISCELLANEOUS

10.1 Fees and Expenses .  Except as otherwise specifically provided herein, all fees and expenses incurred in connection herewith and the transactions contemplated hereby shall be paid by the party incurring such fees and expenses.

10.2 Notices .  All notices, requests, demands and other communications under this Agreement will be in writing and will be deemed to have been duly given (a) on the date of service if served personally on the party to whom notice is to be given, (b) on the day of transmission if sent via facsimile transmission to the facsimile number given below, and electronic printed confirmation of receipt is obtained promptly after completion of transmission, (c) on the date sent by email of a pdf document if also sent (on the day of the email delivery) by reputable overnight delivery service for next Business Day delivery or (d) one Business Day after delivery to a reputable overnight delivery service for next Business Day delivery.  If the day on which a notice or other communication is deemed given under this Section 10.2 is not a Business Day, then such notice or other communication will instead be deemed given on the next Business Day.  Such notices, requests, demands and other communications will be addressed to the Parties as follows:

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10.3 Jurisdiction .  Except as otherwise expressly provided in this Agreement, the parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought exclusively in the state or federal court located in Wilmington, Delaware, and each of the parties hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any suit, action or proceeding and irrevocably waives, to the fullest extent permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any suit, action or proceeding in any of such courts or that any suit, action or proceeding that is brought in any of such courts has been brought in an inconvenient forum.  Process in any suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any of the named courts.  Without limiting the foregoing, each party agrees that service of process on it by notice as provided in Section 10.2 shall be deemed effective service of process.

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10.4 Amendments; No Waivers .  Any provision of this Agreement may be amended or waived if, and only if, the amendment or waiver is in writing and signed, in the case of an amendment, by Seller and by Buyer, or in the case of a waiver, by the party against whom the waiver is to be effective.  No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Law.   The knowledge of a Default, misrepresentation or breach of warranty or covenant hereunder shall not be deemed a waiver of or non-reliance on such warranty or consent by any other party.

10.5 Governing Law .  This Agreement shall be construed in accordance with and governed by the internal Laws of the State of Delaware applicable to Contracts executed and fully performed within the State of Delaware, other than such Laws that would require the application of the Laws of a state other than the State of Delaware.

10.6 Severability .  If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any Law or public policy, all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party.  Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

10.7 Successors and Assigns .  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  Neither party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other party hereto; provided , however , that Buyer may assign, delegate or otherwise transfer any of its rights or obligations, without the consent of Seller, to (a) one or more of its Affiliates or (b) a Third Party lender as security for borrowings.  Any purported assignment in violation hereof shall be null and void.

10.8 Third Party Beneficiaries .  The terms and provisions of this Agreement are intended solely for the benefit of the parties hereto and their respective successors and permitted assigns.  No provision of this Agreement is intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.

10.9 Enforcement of Agreement .  Seller acknowledges and agrees that Buyer could be damaged irreparably if any of the provisions of this Agreement are not performed in accordance with their specific terms.  Accordingly, Seller agrees that, (a) it shall waive, in any action for specific performance, the defense of adequacy of a remedy at Law, and (b) in addition to any other right or remedy to which Buyer may be entitled, at Law or in equity, Buyer shall be entitled to enforce any provision of this Agreement by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of any of the provisions of this Agreement, without posting any bond or other undertaking.

10.10 Entire Agreement .  This Agreement, together with the Disclosure Schedule hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof.

10.11 Schedules .  The Disclosure Schedules referenced in this Agreement are a material part hereof and shall be treated as if fully incorporated into the body of this Agreement.

10.12 Authorship .  The parties agree that the terms and language of this Agreement were the result of negotiations between the parties and, as a result, there shall be no presumption that any ambiguities in this Agreement shall be resolved against either party.  Any controversy over construction of this Agreement shall be decided without regard to events of authorship or negotiation.

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10.13 Counterparts; Effectiveness .  This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto.   Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic means shall be effective as delivery of a manually executed counterpart to this Agreement.

[Signature Page Follows]

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The parties hereto have caused this Agreement to be executed as of the date first written above.

[SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT]

EXHIBIT 2.2

CREDIT AGREEMENT

dated as of

June 30, 2016

among

SCOTT’S LIQUID GOLD-INC., a Colorado corporation,

NEOTERIC COSMETICS, INC., a Colorado corporation,

the other Loan Parties party hereto

and

JPMORGAN CHASE BANK, N.A.

TABLE OF CONTENTS

i

ii

SCHEDULES :

Schedule 3.05 – Properties

Schedule 3.06 – Disclosed Matters

Schedule 3.14 – Insurance

Schedule 3.15 – Capitalization and Subsidiaries

EXHIBITS :

Exhibit A - Opinion of Counsel for the Loan Parties

Exhibit B - Compliance Certificate

Exhibit C - Joinder Agreement

Note: The Company hereby agrees to furnish supplementally a copy of any omitted schedule or exhibit to the Securities Exchange Commission upon request.

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CREDIT AGREEMENT dated as of June 30, 2016 (as it may be amended or modified from time to time, this “ Agreement ”), among SCOTT’S LIQUID GOLD-INC., a Colorado corporation and NEOTERIC COSMETICS, INC., a Colorado corporation, as Borrowers, the other Loan Parties party hereto, and JPMORGAN CHASE BANK, N.A., as Lender.

The parties hereto agree as follows:

Article I

Definitions

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

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

“ Account Debtor ” means any Person obligated on an Account.

“ Acquisition Expense ” means any expense or commitment to expend money for any proposed and/or actual purchase or other acquisition of any asset or Equity Interests of a Person incurred in connection with such acquisitions and transactions.

“ Adjusted EBITDA ” means, as of any period of determination, (a) EBITDA plus (b) any extraordinary charges, plus (c) any other non-cash charges, and minus (d) any extraordinary gains and any non-cash items of income, in each case, for such period.

“ Adjusted One Month LIBOR Rate ” means, for any day, an interest rate per annum equal to the sum of (i) 2.50% per annum plus (ii) the LIBO Rate for a one-month interest period on such day (or if such day is not a Business Day, the immediately preceding Business Day); provided that, for the avoidance of doubt, the LIBO Rate for any day shall be based on the rate appearing on the Reuters Screen LIBOR01 Page (or on any successor or substitute page) at approximately 11:00 a.m. London time on such day (without any rounding).

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

“ Agreement ” has the meaning set forth in the introductory paragraph.

“ Aggregate Availability ” means, at any time, the aggregate Availability of all the Borrowers.

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

“ Applicable Rate ” means, for any day, with respect to any Loan, or with respect to the commitment fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “Revolving Commitment CBFR Spread”, “Revolving Commitment Eurodollar Spread” “Term Loan CBFR Spread”, or “Term Loan Eurodollar Spread”.

“ Approved Fund ” has the meaning assigned to such term in Section 8.04(b) .

“ Assignment of Representations ” means that certain Assignment of Representations, Warranties Covenants and Indemnities executed by Neoteric Cosmetics, Inc. in favor of Lender, of even date herewith.

“ Availability ” means, with respect to each Borrower, at any time, an amount equal to (a) the Revolving Commitment less (b) the Revolving Exposure.  

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“ Availability Period ” means the period from and including the Effective Date to but excluding the Revolving Credit Maturity Date.

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

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

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

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

“ Borrower ” or “ Borrowers ” means , individually or collectively, the Company and Neoteric Cosmetics, Inc., a Colorado corporation.

“ Borrower Representative ” has the meaning assigned to such term in Section 10.01 .  

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

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

“ Burdensome Restrictions ” means any consensual encumbrance or restriction of the type described in clause (a) or (b) of Section 6.10 .

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

“ Capital Expenditures ” means, without duplication, any expenditure or commitment to expend money for any purchase or other acquisition of any asset which would be classified as a fixed or capital asset on a consolidated balance sheet of the Company and its Subsidiaries prepared in accordance with GAAP.

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“ Capital Lease Obligations ” 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 on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“ CB Floating Rate ” means the Prime Rate; provided that the CB Floating Rate shall never be less than the Adjusted One Month LIBOR Rate on such day (or if such day is not a Business Day, the immediately preceding Business Day).  Any change in the CB Floating Rate due to a change in the Prime Rate or the Adjusted One Month LIBOR Rate shall be effective from and including the effective date of such change in the Prime Rate or the Adjusted One Month LIBOR Rate, respectively.

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

“ Change in Control ” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Company; (b) the Company shall cease to own, directly or indirectly, free and clear of all Liens or other encumbrances, at least 80% of the outstanding voting Equity Interests of the other Borrower and each Guarantor on a fully diluted basis; or (c) occupation at any time of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were not (i) directors of the Borrower on the date of this Agreement or (ii) nominated or appointed by the board of directors of the Borrower.

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

“ Charges ” has the meaning assigned to such term in Section 8.16 .

“ Class ”, when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or the Term Loan, and (b) any Commitment, refers to whether such Commitment is a Revolving Commitment, or the Term Commitment.

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

“ Collateral ” means any and all property owned, leased or operated by a Person covered by the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that may at any time be, become or intended to be, subject to a security interest or Lien in favor of the Lender, on behalf of the Secured Parties, to secure the Secured Obligations.

“ Collateral Documents ” means, collectively, the Security Agreement, the Assignment of Representations, and any other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure the Secured Obligations, including, without limitation, all other security agreements, pledge agreements, mortgages, deeds of trust, loan agreements, notes, guarantees, subordination

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agreements, pledges, powers of attorney, consents, assignments, contracts, fee letters, notices, leases, financing statements and all other written matter whether theretofore, now or hereafter executed by any Loan Party or any Subsidiary and delivered to the Lender.

“ Commitment ” means the sum of the Revolving Commitment and Term Commitment.  

“ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“ Company ” means Scott’s Liquid Gold-Inc., a Colorado corporation.

“ 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.

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

“ Debt Service Coverage Ratio ” means, for any period, the ratio of (a) (i) Adjusted EBITDA, minus (ii) Unfinanced Capital Expenditures, minus (iii)  income taxes paid in cash, in each case, for such period to (b) the sum of (i) Interest Expense, plus (ii) scheduled principal payments on Long Term Debt (other than Subordinated Indebtedness) plus (iii) payments made on Capital Lease Obligations plus (iv)  principal payments made on Subordinated Indebtedness, plus (v) any permitted Restricted Payments, in each case, for such period.

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

“ Disclosed Matters ” means the actions, suits, proceedings and environmental matters disclosed in Schedule 3.06 .

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

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

“ EBITDA ” means, for any period, Net Income for such period plus without duplication and to the extent deducted in determining Net Income for such period, the sum of (a) Interest Expense for such period, (b) income tax expense for such period net of tax refunds, (c) all amounts attributable to depreciation and amortization expense for such period, (d) non-cash stock compensation expense and (e) Acquisition Expenses and financing expenses for an Acquisition, including legal fees owed to Holland & Hart LLP, incurred through September 30, 2016 and not to exceed the lesser of (i) the actual expense for such items or (ii) $900,000.00, in the aggregate, all calculated for the Company and its Subsidiaries on a consolidated basis in accordance with GAAP.

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

“ Effective Date ” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 8.02 ).

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

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

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

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

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

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

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

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

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

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

“ Excluded Swap Obligation ” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an ECP at the time the Guarantee of such Guarantor or the grant of such security interest becomes or would become effective with respect to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

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

“ FATCA ” means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code.

“ Federal Funds Effective Rate ” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Lender from three federal funds brokers of recognized standing selected by it.  

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

“ Financial Statements ” has the meaning assigned to such term in Section 5.01 .

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

“ Funded Indebtedness ” means, at any date, total liabilities, minus the sum of (a) accounts payable arising from the purchase of goods and services in the ordinary course of business, (b) accrued expenses or losses, (c) deferred revenues or gains, determined for the Company and its Subsidiaries on a consolidated basis at such date, and (d) income Taxes payable in the ordinary course of business, in accordance with GAAP.

“ Funded Indebtedness to Adjusted EBITDA Ratio ” means, at any date, the ratio of (a) Funded Indebtedness for such date to (b) Adjusted EBITDA for the period of four fiscal quarters ended on or most recently prior to such date.

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

“ Funding Date ” means the date any Loan is funded by the Lender.

“ GAAP ” means generally accepted accounting principles in the U.S.

“ Governmental Authority ” means the government of the U.S., any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

“ 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)

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such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.

“ Guaranteed Obligations ” has the meaning assigned to such term in Section 9.01 .

“ Guarantor Payment ” has the meaning assigned to such term in Section 9.11(a) .

“ Guarantors ” means each of Colorado Product Concepts, Inc., a Colorado corporation, SLG Chemicals, Inc., a Colorado corporation, SLG Touch-A-Lite, Inc., a Colorado corporation, and each other Person who executes a Joinder Agreement as a Guarantor, and the term “Guarantor” means each or any one of them individually.

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

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

“ Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (k) obligations under any liquidated earn-out, (l) any other Off-Balance Sheet Liability, and (m) obligations, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (i) any and all Swap Agreements, and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

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

“ Indemnitee ” has the meaning assigned to such term in Section 8.03(b) .

“ Information ” has the meaning assigned to such term in Section 8.12 .

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

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“ Interest Expense ” means, with reference to any period, total interest expense (including that attributable to Capital Lease Obligations) of the Company and its Subsidiaries for such period with respect to all outstanding Indebtedness of the Company and its Subsidiaries (including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptances and net costs under Swap Agreements in respect of interest rates, to the extent such net costs are allocable to such period in accordance with GAAP), calculated for the Company and its Subsidiaries on a consolidated basis for such period in accordance with GAAP.

“ Interest Payment Date ” means (a) with respect to any CBFR Loan, the last day of each calendar month, for Revolving Loans, and quarter, for the Term Loan, and the Revolving Credit Maturity Date, the Term Loan Maturity Date, as applicable, and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and the Revolving Credit Maturity Date, or the Term Loan Maturity Date, as applicable.

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

“ Interpolated Rate ” means, at any time, for any Interest Period, the rate per annum (rounded upward to four decimal places) determined by the Lender (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period (for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period and (b) the LIBO Screen Rate for the shortest period (for which the LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time.  

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

“ IRS ” means the United States Internal Revenue Service.

“ Joinder Agreement ” means a Joinder Agreement in substantially the form of Exhibit C .

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

“ LC Disbursement ” means any payment made by the Lender pursuant to a Letter of Credit.

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

“ Lender ” means JPMorgan Chase Bank, N.A., its successors and assigns.

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

“ LIBO Rate ” means, with respect to any Eurodollar Borrowing for any applicable Interest Period, the London interbank offered rate administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars) for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate as shall be selected by the Lender from time to time in its reasonable

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discretion (the “ LIBO Screen Rate ”) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period; provided that, (x) if any LIBO Screen Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement and (y) if the LIBO Screen Rate shall not be available at such time for a period equal in length to such Interest Period (an “ Impacted Interest Period ”), then the LIBO Rate shall be the Interpolated Rate at such time, subject to Section 2.12 in the event that the Lender shall conclude that it shall not be possible to determine such Interpolated Rate (which conclusion shall be conclusive and binding absent manifest error); provided, that, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“ LIBO Screen Rate ” has the meaning assigned to such term in the definition of “LIBO Rate”.

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

“ Loan Documents ” means, collectively, this Agreement, each promissory note issued pursuant to this Agreement, any Letter of Credit application, each Collateral Document, the Loan Guaranty, and each other agreement, instrument, document and certificate identified in Section 4.01 executed and delivered to, or in favor of, the Lender and including each other pledge, power of attorney, consent, assignment, contract, notice, letter of credit agreement and each other written matter whether heretofore, now or hereafter executed by or on behalf of any Loan Party, or any employee of any Loan Party, and delivered to the Lender in connection with this Agreement or the transactions contemplated hereby.  Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.

“ Loan Guaranty ” means Article IX of this Agreement.

“ Loan Parties ” means, collectively, the Borrowers, the Guarantors, and any other Person who becomes a party to this Agreement pursuant to a Joinder Agreement and their successors and assigns, and the term “Loan Party” shall mean any one of them or all of them individually, as the context may require.

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

“ Long-Term Debt ” means any Indebtedness that, in accordance with GAAP, constitutes (or, when incurred, constituted) a long-term liability.

“ Material Adverse Effect ” means a material adverse effect on (a) the business, assets, operations or condition, financial or otherwise, of the Company and its Subsidiaries taken as a whole, (b) the ability of any Loan Party to perform any of its obligations under the Loan Documents to which it is a party, (c) the Collateral, or the Lender’s Liens (on behalf of itself and the other Secured Parties) on the Collateral or the priority of such Liens, or (d) the rights of or benefits available to the Lender under any of the Loan Documents.

“ Material Indebtedness ” means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Loan Parties in an aggregate principal amount exceeding $250,000.00.  For purposes of determining Material Indebtedness, the “principal amount of the obligations” of the Loan Parties in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that such Loan Party would be required to pay if such Swap Agreement were terminated at such time.

“ Maximum Rate ” has the meaning assigned to such term in Section 8.16 .

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

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

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“ Neoteric ” means Neoteric Cosmetics, Inc., a Colorado corporation.

“ Net Income ” means, for any period, the consolidated net income (or loss) determined for the Company and its Subsidiaries, on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the Company or any Subsidiary, and (b) the income (or deficit) of any Person (other than a Subsidiary) in which the Company or any Subsidiary has an ownership interest, except to the extent that any such income is actually received by the Company or such Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary, to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any contractual obligation (other than under any Loan Document) or Requirement of Law applicable to such Subsidiary.

“ Net Proceeds ” means, with respect to any event, (a) the cash proceeds received in respect of such event including (i) any cash received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but excluding any interest payments), but only as and when received, (ii) in the case of a casualty, insurance proceeds and (iii) in the case of a condemnation or similar event, condemnation awards and similar payments, minus (b) the sum of (i) all reasonable fees and out-of-pocket expenses paid to third parties (other than Affiliates) in connection with such event, (ii) in the case of a sale, transfer or other disposition of an asset (including pursuant to a sale and leaseback transaction or a casualty or a condemnation or similar proceeding), the amount of all payments required to be made as a result of such event to repay Indebtedness (other than Loans) secured by such asset or otherwise subject to mandatory prepayment as a result of such event and (iii) the amount of all taxes paid (or reasonably estimated to be payable) and the amount of any reserves established to fund contingent liabilities reasonably estimated to be payable, in each case during the year that such event occurred or the next succeeding year and that are directly attributable to such event (as determined reasonably and in good faith by a Financial Officer of the Company.

“ Obligated Party ” has the meaning assigned to such term in Section 9.02 .

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

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

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

“ Original Indebtedness ” has the meaning assigned to such term in Section 6.01(e) .

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

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“ 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.

“ Parent ” means, with respect to the Lender, the Person of which the Lender is, directly or indirectly, a subsidiary.

“ Participant ” has the meaning assigned to such term in Section 8.04(c) .

“ Participant Register ” has the meaning assigned to such term in Section 8.04(c) .

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

“ Permitted Discretion ” means a determination made in good faith and in the exercise of reasonable (from the perspective of a secured lender) business judgment.

“ Permitted Encumbrances ” means:

(a) Liens imposed by law for Taxes that are not yet due or are being contested in compliance with Section 5.04 ;

(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than thirty (30) days or are being contested in compliance with Section 5.04 ;

(c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;

(d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

(e) judgment Liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VII ; and

(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of any Borrower or any Subsidiary;

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness, except with respect to clause (e) above.

“ Permitted Investments ” means:

(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the U.S. (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the U.S.), in each case maturing within one year from the date of acquisition thereof;

(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

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(c) investments in certificates of deposit, bankers’ acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the U.S. or any state thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;

(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; and

(e) money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.

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

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

“ Prepayment Event ” means:

(a) any sale, transfer or other disposition (including pursuant to a sale and leaseback transaction) of any property or asset of any Loan Party or any Subsidiary, other than dispositions described in Section 6.05(a) ; or

(b) any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of any Loan Party or any Subsidiary with a fair value immediately prior to such event equal to or greater than $50,000.00; or

(c) the incurrence by any Loan Party or any Subsidiary of any Indebtedness, other than Indebtedness permitted under Section 6.01 .

“ Prime Rate ” means the rate of interest per annum publicly announced from time to time by the Lender as its prime rate in effect at its principal offices in New York City. Each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.  

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

“ Real Property ” means all real property that was, is now or may hereafter be owned, occupied or otherwise controlled by any Loan Party pursuant to any contract of sale, lease or other conveyance of any legal interest in any real property to any Loan Party.

“ Refinance Indebtedness ” has the meaning assigned to such term in Section 6.01(e) .

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

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

“ Report ” means reports prepared by the Lender or another Person showing the results of appraisals, field examinations or audits pertaining to a Borrower’s assets from information furnished by or on behalf of such Borrower, after the Lender has exercised its rights of inspection pursuant to this Agreement.

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

“ Reserves ” means any and all reserves which the Lender deems necessary, in its Permitted Discretion, to maintain with respect to the Collateral or any Loan Party.

“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Company, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests or any option, warrant or other right to acquire any such Equity Interests.

“ Revolving Commitment ” means the commitment of the Lender to make Revolving Loans and issue Letters of Credit hereunder, as such commitment may be reduced from time to time pursuant to Section 2.07 .  The initial amount of the Lender’s Revolving Commitment is $4,000,000.00.

“ Revolving Commitment CBFR Spread ” means 0.25%.

“ Revolving Commitment Eurodollar Spread ” means 3.0%.

“ Revolving Credit Maturity Date ” means June 30, 2019 (if the same is a Business Day, or if not then the immediately next succeeding Business Day), or any earlier date on which the Revolving Commitment is reduced to zero or otherwise terminated pursuant to the terms hereof.

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

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

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

“ Sanctioned Country ” means, at any time, a country or territory which is the subject or target of any Sanctions.

“ Sanctioned Person ” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person controlled by any such Person.

“ Sanctions ” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State.

“ SEC ” means the Securities and Exchange Commission of the U.S.

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

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

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

“ Shareholder Rights Agreement ” means that certain Shareholder Rights Agreement, dated February 21, 2001, as amended by the Amendment to Shareholder Rights Agreement, dated February 15, 2011, as further amended by the Second Amendment to Shareholder Rights Agreement, dated January 6, 2012 and as further amended by the Third Amendment to Shareholder Rights Agreement, dated February 19, 2016.

“ Statements ” has the meaning assigned to such term in Section 2.16(d) .

“ Subordinated Indebtedness ” of a Person means any Indebtedness of such Person, the payment of which is subordinated to payment of the Secured Obligations to the written satisfaction of the Lender.  

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

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

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

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

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

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

“ Term Commitment ” means the commitment of the Lender to make a Term Loan, expressed as an amount representing the maximum principal amount of the Term Loan to be made by the Lender.  The amount of the Lender’s Term Commitment on the Effective Date is $2,400,000.00.

“ Term Loan ” means a Loan made pursuant to Section 2.01(b) .

“ Term Loan CBFR Spread ” means 1.0%.

“ Term Loan Eurodollar Spread ” means 3.75%.

“ Term Loan Maturity Date ” means the date that is three years from the Funding Date.

“ Transactions ” means the execution, delivery and performance by the Borrowers of this Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.

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

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

“ Ultimark ” has the meaning assigned to such term in Section 4.01(e) .

“ Ultimark Acquisition ” has the meaning assigned to such term in Section 4.01(l)

“ Unfinanced Capital Expenditures ” means Capital Expenditures paid in cash (other than cash that constitutes proceeds of Indebtedness).  

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

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

“ USA PATRIOT Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.

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

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

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

Section 1.04. Accounting Terms; GAAP .  Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if after the date hereof there occurs any change in GAAP or in the application thereof on the operation of any provision hereof and the Borrower Representative notifies the Lender that the Borrowers request an amendment to any provision hereof to eliminate the effect of such change in GAAP or in the application thereof (or if the Lender notifies the Borrower Representative that the Lender requests an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Financial Accounting Standards Board Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Loan Party at “fair value”, as defined therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Financial Accounting Standards Board Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.

Section 1.05. Rounding .  Any financial ratios required to be maintained by any Loan Party pursuant to 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 for fractions with values equal to or greater than 0.5).

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

Article II

The Credits

Section 2.01. Commitments .  

(a) Subject to the terms and conditions set forth herein, the Lender agrees to make Revolving Loans in dollars to the Borrowers from time to time during the Availability Period in an aggregate principal amount that will not result in the Revolving Exposure exceeding the Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.

(b) Subject to the terms and conditions set forth herein, the Lender agrees to make a Term Loan in dollars to the Borrowers, on the Effective Date, in a principal amount not to exceed the Lender’s Term Commitment. Amounts prepaid or repaid in respect of the Term Loan may not be reborrowed.

Section 2.02. Loans and Borrowings .  

(a) Each Loan shall be made as part of a Borrowing consisting of Loans of the same Class and Type.  

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

(c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such Revolving Borrowing shall be in an aggregate amount that is an integral multiple of $100,000.00 and not less than $1,000,000.00.  CBFR Revolving Borrowings may be in any amount.  Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of three (3) Eurodollar Revolving Borrowings outstanding.  

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

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Section 2.03. Borrowing Procedures; Requests for Revolving Borrowings .  To request a Borrowing, the Borrower Representative shall notify the Lender of such request either in writing (delivered by hand or fax) in a form approved by the Lender and signed by the Borrower Representative or by telephone (a) in the case of a Eurodollar Borrowing, not later than 10:00 a.m., Denver, Colorado time, three (3) Business Days before the date of the proposed Borrowing or (b) in the case of a CBFR Borrowing, not later than noon, Denver, Colorado time, on the date of the proposed Borrowing; provided that any such notice of a CBFR Revolving Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.04(d) may be given not later than 9:00 a.m., Denver, Colorado time, on the date of the proposed Borrowing.  Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or fax to the Lender of a written Borrowing Request in a form approved by the Lender and signed by the Borrower Representative.  Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.01 :   

If no election as to the Type of  Borrowing is specified, then the requested Borrowing shall be a CBFR Borrowing.  

Section 2.04. Letters of Credit .  

(a) General .  Subject to the terms and conditions set forth herein, the Borrower Representative, on behalf of a Borrower, may request the issuance of Letters of Credit denominated in dollars as the applicant thereof for the support of the obligations of any Borrower or any Subsidiary thereof, in a form reasonably acceptable to the Lender, at any time and from time to time during the Availability Period.  In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrowers to, or entered into by the Borrowers with, the Lender relating to any Letter of Credit, the terms and conditions of this Agreement shall control.  Each Borrower unconditionally and irrevocably agrees that, in connection with any Letter of Credit issued for the support of any Subsidiary’s obligations as provided in the first sentence of this paragraph, such Borrower will be fully responsible for the reimbursement of LC Disbursements in accordance with the terms hereof, the payment of interest thereon and the payment of fees due under Section 2.10(b) to the same extent as if it were the sole account party in respect of such Letter of Credit (each Borrower hereby irrevocably waiving any defenses that might otherwise be available to it as a guarantor or surety of the obligations of such Subsidiary that is an account party in respect of any such Letter of Credit).

(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions .  To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower Representative shall hand deliver or fax (or transmit by electronic communication, if arrangements for doing so have been approved by the Lender) to the Lender (reasonably in advance of the requested date of issuance, amendment, renewal or extension, but in any event no less than three (3) Business Days) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof, and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit.  If requested by the Lender, the applicable Borrower also shall submit a letter of credit application on the Lender’s standard form in connection with any request for a Letter of Credit.   A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrowers shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension the (i) LC Exposure shall not exceed $500,000.00 and (ii) the Revolving Exposure shall not exceed the Revolving Commitment.

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(c) Expiration Date .  Each Letter of Credit shall expire (or be subject to termination or non-renewal by notice from the Lender to the beneficiary thereof) at or prior to the close of business on the earlier of (i) the date that is one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, including, without limitation, any automatic renewal provision, one year after such renewal or extension) and (ii) the date that is five Business Days prior to the Revolving Credit Maturity Date.

(d) Reimbursement .  If the Lender shall make any LC Disbursement in respect of a Letter of Credit, the Borrowers shall reimburse such LC Disbursement by paying to the Lender an amount equal to such LC Disbursement not later than 11:00 a.m., Denver, Colorado time, on the Business Day immediately following the day that the Borrower Representative receives such notice; provided that the Borrowers may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or Section 2.05 that such payment be financed with a CBFR Revolving Borrowing in an equivalent amount and, to the extent so financed, the Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting CBFR Revolving Borrowing.  

(e) Obligations Absolute .  The Borrowers’ joint and several obligation to reimburse LC Disbursements as provided in paragraph (d) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of any (i) lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein or herein, (ii) draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the Lender under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrowers’ obligations hereunder.  Neither the Lender nor any of its Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit, any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Lender; provided that the foregoing shall not be construed to excuse the Lender from liability to the Borrowers to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by any Borrower that are caused by the Lender’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Lender (as finally determined by a court of competent jurisdiction), the Lender shall be deemed to have exercised care in each such determination.  In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Lender may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.  

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

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(g) Interim Interest .  If the Lender shall make any LC Disbursement, then, unless the Borrowers shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrowers reimburse such LC Disbursement, at the rate per annum then applicable to CBFR Revolving Loans and such interest shall be due and payable on the date when such reimbursement is due; provided that, if the Borrowers fail to reimburse such LC Disbursement when due pursuant to paragraph (d) of this Section, then Section 2.11(c) shall apply.  Interest accrued pursuant to this paragraph shall be for the account of the Lender.  

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

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

Section 2.05. Funding of Borrowings .  The Lender shall make each Loan to be made by it hereunder on the proposed date thereof available to the Borrowers by promptly crediting the amounts in immediately available funds, to the Funding Account(s); provided that CBFR Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.04(d) shall be remitted to the Lender.

Section 2.06. Interest Elections .  

(a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request.  Thereafter, the Borrower Representative may elect to convert such Borrowing to a different Type or to continue such Borrowing.  The Borrower Representative may elect different options with respect to different portions of the affected Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.  

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

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(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02 :

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

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

(iii) whether the resulting Borrowing is to be a CBFR Borrowing or a Eurodollar Borrowing.

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

Section 2.07. Termination of Commitment .

(a) Unless previously terminated, (i) the Term Commitment shall terminate at 5:00 p.m., Denver, Colorado time, on the closing date of the Ultimark Acquisition and (ii) the Revolving Commitment shall terminate on the Revolving Credit Maturity Date.

(b) The Borrowers may at any time terminate the Revolving Commitment upon (i) the payment in full of all outstanding Revolving Loans and LC Disbursements, together with accrued and unpaid interest thereon, (ii) the cancellation and return of all outstanding Letters of Credit (or alternatively, with respect to each such Letter of Credit, the furnishing to the Lender of a cash deposit (or at the discretion of the Lender a backup standby letter of credit satisfactory to the Lender) in an amount equal to 105% of the LC Exposure as of such date), (iii) the payment in full of the accrued and unpaid fees, including applicable prepayment fees (if any), and (iv) the payment in full of all reimbursable expenses and other Secured Obligations together with accrued and unpaid interest thereon.

(c) The Borrower Representative shall notify the Lender of any election to terminate the Revolving Commitment under paragraph (b) of this Section at least three (3) Business Days prior to the effective date of such termination, specifying such election and the effective date thereof.  Each notice delivered by the Borrower Representative pursuant to this Section shall be irrevocable; provided that a notice of termination of the Revolving Commitment delivered by the Borrower Representative may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrower Representative (by notice to the Lender on or prior to the specified effective date) if such condition is not satisfied.  Any termination of the Revolving Commitment shall be permanent.   

Section 2.08. Repayment and Amortization of Loans; Evidence of Debt .  

(a) The Borrowers hereby unconditionally promise to pay the Lender the then unpaid principal amount of each Revolving Loan on the Revolving Credit Maturity Date.

(b) The Borrowers hereby unconditionally promise to pay to the Lender on the last Business Day of the then-current quarter, the aggregate principal amount of $200,000 with respect to the Term Loan. To the extent not previously paid, the unpaid Term Loan shall be paid in full in cash by the Borrowers on the Term Loan Maturity Date.

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

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

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

(f) The Lender may request that Loans made by it be evidenced by a promissory note.  In such event, the Borrowers shall prepare, execute and deliver to the Lender a promissory note payable to the order of the Lender (or, if requested by the Lender, to the Lender and its registered assigns) and in a form approved by the Lender.  Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 8.04 ) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

Section 2.09. Prepayment of Loans .  

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

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

(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of any Loan Party or any Subsidiary in respect of any Prepayment Event, the Borrowers shall, immediately after such Net Proceeds are received by such Loan Party or Subsidiary, prepay the Obligations and cash collateralize LC Exposure as set forth in Section 2.09(d) below in an aggregate amount equal to in the case of all other Prepayment Events, 100% of such Net Proceeds, provided that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, if the Borrower Representative shall deliver to the Lender a certificate of a Financial Officer to the effect that the Loan Parties intend to apply the Net Proceeds from such event (or a portion thereof specified in such certificate), within 90 days after receipt of such Net Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used in the business of the Loan Parties, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in such certificate, provided that to the extent of any such Net Proceeds that have not been so applied by the end of such 90-day period, a prepayment shall be required at such time in an amount equal to such Net Proceeds that have not been so applied.

(d) All prepayments required to be made pursuant to Section 2.09(c) shall be applied, first to prepay the Term Loan, and shall be applied to reduce the subsequent scheduled repayments of the Term Loan to be made pursuant to Section 2.08 and second to prepay the Revolving Loans without a corresponding reduction in the Revolving Commitment and third to cash collateralize outstanding LC Exposure; provided that all prepayments required to be made pursuant to Section 2.09(c) with respect to Net Proceeds arising from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding, to the extent they arise from casualties or losses to cash or Inventory shall be applied, first, to prepay the Revolving Loans without a corresponding reduction in the Revolving Commitment and second, to cash collateralize outstanding LC Exposure, and third, to prepay the Term Loan.  

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(e) The Borrower Representative shall notify the Lender by telephone (confirmed by fax) of any prepayment under this Section:  (i) in the case of prepayment of a Eurodollar Borrowing, not later than 10:00 a.m., Denver, Colorado time, three (3) Business Days before the date of prepayment, or (ii) in the case of prepayment of a CBFR Borrowing, not later than 10:00 a.m., Denver, Colorado time, on the date of prepayment.  Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that if a notice of prepayment is given in connection with a conditional notice of termination of the Revolving Commitment as contemplated by Section 2.07 , then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 .  Each partial prepayment of any Revolving Borrowing or Term Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02 , except as necessary to apply fully the required amount of a mandatory prepayment.  Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.11 and (ii) break funding payments pursuant to Section 2.14 .

Section 2.10. Fees .  

(a) The Borrowers agree to pay to the Lender a commitment fee, which shall accrue at 0.5% per annum on the daily amount of the undrawn portion of the Revolving Commitment of the Lender during the period from and including the Effective Date to but excluding the date on which the Lender’s Revolving Commitment terminates; it being understood that the LC Exposure shall be included in the drawn portion of the Revolving Commitment for purposes of calculating the commitment fee.  Accrued commitment fees shall be payable in arrears on the last day of March, June, September and December of each year and on the date on which the Revolving Commitment terminates, commencing on the first such date to occur after the date hereof.  All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(b) The Borrowers agree to pay (i) to the Lender a letter of credit fee with respect to Letters of Credit, which shall accrue at a rate of 2.0% per annum on the daily amount of the Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which the Lender’s Revolving Commitment terminates and the date on which the Lender ceases to have any LC Exposure, and (ii) the Lender’s standard fees and commissions with respect to the issuance, amendment, cancellation, negotiation, transfer, presentment, renewal or extension of any Letter of Credit or processing of drawings thereunder.  Letter of credit fees accrued through and including the last day of March, June, September and December of each year shall be payable on the third Business Day following such last day, commencing on the first such date to occur after the Effective Date; provided that all such fees shall be payable on the date on which the Revolving Commitment terminates and any such fees accruing after the date on which the Revolving Commitment terminates shall be payable on demand.  Any other fees payable to the Lender pursuant to this paragraph shall be payable within ten (10) days after demand.  All letter of credit fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(c) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Lender.  Fees paid shall not be refundable under any circumstances.

Section 2.11. Interest .  

(a) The Loans comprising each CBFR Borrowing shall bear interest at the CB Floating Rate plus the Applicable Rate.

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

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(c) Notwithstanding the foregoing, during the occurrence and continuance of an Event of Default, the Lender may, at its option, by notice to the Borrower Representative, declare that (i) all Loans shall bear interest at 3% plus the rate otherwise applicable to such Loans as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount outstanding hereunder, such amount shall accrue at 3% plus the rate applicable to such fee or other obligation as provided hereunder.

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

(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the CB Floating Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  The applicable CB Floating Rate, or LIBO Rate shall be determined by the Lender, and such determination shall be conclusive absent manifest error.

Section 2.12. Alternate Rate of Interest .  If prior to the commencement of any Interest Period for a Eurodollar Borrowing:

(a) the Lender determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining (including, without limitation, by means of an Interpolated Rate) the LIBO Rate for such Interest Period; or

(b) the Lender determines the LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to the Lender of making or maintaining its Loan included in such Borrowing for such Interest Period;

then the Lender shall give notice thereof to the Borrower Representative by telephone, fax or electronic communication as promptly as practicable thereafter and, until the Lender notifies the Borrower Representative that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and any such Eurodollar Borrowing shall be repaid on the last day of the then current Interest Period applicable thereto, and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as a CBFR Borrowing.

Section 2.13. Increased Costs .  

(a) If any Change in Law shall:

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

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

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

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

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

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

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

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

Section 2.15. Taxes .  

(a) Withholding Taxes; Gross-Up; Payments Free of Taxes .  Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law.  If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance

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with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.15 ), the Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made.

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

(c) Evidence of Payment .  As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.15 , the Borrower Representative shall deliver to the Lender 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 Lender.

(d) Indemnification by the Loan Parties .  The Loan Parties shall jointly and severally indemnify the Lender, 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 the Lender or required to be withheld or deducted from a payment to the Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower Representative by the Lender shall be conclusive absent manifest error.

(e) Treatment of Certain Refunds .  If the Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.15 (including by the payment of additional amounts pursuant to this Section 2.15 ), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.15 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of the Lender 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 the Lender, shall repay to the Lender the amount paid to the Lender (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event the Lender is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (e), in no event will the Lender be required to pay any amount to any indemnifying party pursuant to this paragraph (e), the payment of which would place the Lender in a less favorable net after-Tax position than the Lender would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid.  This paragraph (e) shall not be construed to require the Lender 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.

(f) Survival .  Each party’s obligations under this Section 2.15 shall survive the resignation or replacement of the Lender or any assignment of rights by, or the replacement of, the Lender, the termination of the Commitment and the repayment, satisfaction or discharge of all obligations under any Loan Document.

(g) Defined Terms .  For purposes of this Section 2.15 , the term “applicable law” includes FATCA.

Section 2.16. Payments Generally; Allocation of Proceeds .  

(a) The Borrowers shall make each payment required to be made by them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Sections 2.13 , 2.14 or 2.15 , or otherwise) prior to 2:00 p.m., Denver, Colorado time, on the date when due, in immediately available funds, without set‑off or counterclaim.  Any amounts received after such time on any date may, in the discretion of the Lender, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made to the Lender at its offices at 1125 17th St., 3rd Floor, Denver, CO  80202 or by wire transfer in immediately available funds.  If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.  All payments hereunder shall be made in dollars.  

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(b) Any proceeds of Collateral received by the Lender (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers), or (B) a mandatory prepayment (which shall be applied in accordance with Section 2.09 ) or (ii) after an Event of Default has occurred and is continuing and the Lender so elects, such funds shall be applied ratably first , to pay any fees, indemnities, or expense reimbursements including amounts then due to the Lender from the Borrowers, second , to pay interest then due and payable on the Loans ratably, third , to prepay principal on the Loans and unreimbursed LC Disbursements and to pay any amounts owing with respect to Swap Agreement Obligations, ratably (with amounts allocated to the Term Loan applied to reduce the subsequent scheduled repayments of the Term Loan to be made pursuant to Section 2.08 ) , fourth , to pay an amount to the Lender equal to one hundred five percent (105%) of the aggregate LC Exposure, to be held as cash collateral for such Obligations, fifth , to the payment of any amounts owing with respect to Banking Services Obligations, and sixth , to the payment of any other Secured Obligation due to the Lender from the Borrowers or any other Loan Party . Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower Representative, or unless a Default is in existence, the Lender shall not apply any payment which it receives to any Eurodollar Loan of a Class , except (i) on the expiration date of the Interest Period applicable thereto, or (ii) in the event, and only to the extent, that there are no outstanding CBFR Loans of the same Class and, in any such event, the Borrowers shall pay the break funding payment required in accordance with Section 2.14 . The Lender shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations.  

(c) At the election of the Lender, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees, costs and expenses pursuant to Section 8.03 ), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder, whether made following a request by the Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account of any Borrower maintained with the Lender. The Borrowers hereby irrevocably authorize (i) the Lender to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agree that all such amounts charged shall constitute Loans, and that all such Borrowings shall be deemed to have been requested pursuant to Section 2.03 and (ii) the Lender to charge any deposit account of any Borrower maintained with the Lender for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents.

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

Section 2.17. Indemnity for Returned Payments .  If after receipt of any payment which is applied to the payment of all or any part of the Obligations (including a payment effected through exercise of a right of setoff), the Lender is for any reason compelled to surrender such payment or proceeds to any Person because such payment or application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible setoff, or a diversion of trust funds, or for any other reason (including pursuant to any settlement entered into by the Lender in its discretion), then the Obligations or part thereof intended to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by the Lender.  The provisions of this Section 2.17 shall be and remain effective notwithstanding any contrary action which may have been taken by the Lender in reliance upon such payment or application of proceeds.  The provisions of this Section 2.17 shall survive the termination of this Agreement.

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Article III

Representations and Warranties

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

Section 3.01. Organization; Powers .  Each Loan Party and each Subsidiary is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.  

Section 3.02. Authorization; Enforceability .  The Transactions are within each Loan Party’s organizational powers and have been duly authorized by all necessary organizational actions and, if required, actions by equity holders.  Each Loan Document to which each Loan Party is a party has been duly executed and delivered by such Loan Party and, and (assuming the due authorization, execution and delivery hereof by the other parties thereto) constitutes a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

Section 3.03. Governmental Approvals; No Conflicts .  The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect and except for filings necessary to perfect Liens created pursuant to the Loan Documents, (b) will not violate any Requirement of Law applicable to any Loan Party or any Subsidiary, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon any Loan Party or any Subsidiary or the assets of any Loan Party or any Subsidiary , or give rise to a right thereunder to require any payment to be made by any Loan Party or any Subsidiary, and (d) will not result in the creation or imposition of any Lien on any asset of any Loan Party or any Subsidiary, except Liens created pursuant to the Loan Documents.

Section 3.04. Financial Condition; No Material Adverse Change .  

(a) The Company has heretofore furnished to the Lender its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2015, reported on by its independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended March 31, 2016, certified by a Financial Officer.  Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year‑end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above.

(b) No event, change or condition has occurred that has had, or could reasonably be expected to have, a Material Adverse Effect, since March 31, 2016.

Section 3.05. Properties .  

(a) As of the date of this Agreement, Schedule 3.05 sets forth the address of each parcel of real property that is owned or leased by any Loan Party.  Each of such leases and subleases is valid and enforceable in accordance with its terms and is in full force and effect, and no default by any party to any such lease or sublease exists.  Each of the Loan Parties and each Subsidiary has good and indefeasible title to, or valid leasehold interests in, all of its real and personal property, free of all Liens other than those permitted by Section 6.02 .  

(b) Each Loan Party and each Subsidiary owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property necessary to its business as currently conducted, a correct and complete list of all such items that are owned by any Loan Party or Subsidiary and that are registered, issued or subject to a pending application for registration or issuance, as of the date of this Agreement, is set forth on

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Schedule 3.05 , and the use thereof of any such items owned by each Loan Party and each Subsidiary does not infringe in any material respect upon the rights of any other Person, and each Loan Party’s and each Subsidiary’s rights thereto in any such items that are owned by any Loan Party or Subsidiary are not subject to any licensing agreement or similar arrangement.

Section 3.06. Litigation and Environmental Matters .  

(a) There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of any Loan Party, threatened against or affecting any Loan Party or any Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters set forth on Schedule 3.06 ) or (ii) that involve any Loan Document or the Transactions.

(b) Except for the Disclosed Matters, for the past three years (i) no Loan Party or any Subsidiary has received notice of any claim with respect to any Environmental Liability or knows of any basis for any Environmental Liability and (ii) and except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, no Loan Party or any  Subsidiary (A) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law (B) has become subject to any Environmental Liability, (C) has received notice of any claim with respect to any Environmental Liability or (D) knows of any basis for any Environmental Liability.

(c) Since the date of this Agreement, there has been no change in the status of the Disclosed Matters that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect.

Section 3.07. Compliance with Laws and Agreements; No Default .  Except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, each Loan Party and each Subsidiary is in compliance with (i) all Requirements of Law applicable to it or its property and (ii) all indentures, agreements and other instruments binding upon it or its property.  No Default has occurred and is continuing.

Section 3.08. Investment Company Status .  No Loan Party or any Subsidiary is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

Section 3.09. Taxes .  Each Loan Party and each Subsidiary has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which such Loan Party or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so could not be expected to result in a Material Adverse Effect.  No tax liens have been filed and no claims are being asserted with respect to any such taxes.

Section 3.10. ERISA .  No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.  The present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than $50,000 the fair market value of the assets of such Plan.

Section 3.11. Disclosure .  The Loan Parties have disclosed to the Lender all agreements, instruments and corporate or other restrictions to which any Loan Party or any Subsidiary is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.  None of the reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party or any Subsidiary to the Lender in connection with the negotiation of this Agreement or any other Loan Document (as

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modified or supplemented by other information so furnished) contains any material misstatement of 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; provided that, with respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time delivered and, if such projected financial information was delivered prior to the Effective Date, as of the Effective Date.

Section 3.12. Material Agreements .  No Loan Party is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in (i) any material agreement to which it is a party or (ii) any agreement or instrument evidencing or governing Indebtedness.

Section 3.13. Solvency .  

(a) Immediately after the consummation of the Transactions to occur on the Effective Date, (i) the fair value of the assets of each Loan Party, at a fair valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair saleable value of the property of each Loan Party will be greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) each Loan Party will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) no Loan Party will have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted after the Effective Date.

(b) No Loan Party intends to, nor will permit any Subsidiary to, and no Loan Party believes that it or any Subsidiary will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing of and amounts of cash to be received by it or any such Subsidiary and the timing of the amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Subsidiary.

Section 3.14. Insurance .   Schedule 3.14 sets forth a description of all insurance maintained by or on behalf of the Loan Parties and their Subsidiaries as of the Effective Date.  As of the Effective Date, all premiums in respect of such insurance required to be paid as of the Effective Date have been paid.  The Loan Parties believe that the insurance maintained by or on behalf of the Loan Parties and their Subsidiaries is adequate and is customary for companies engaged in the same or similar businesses operating in the same or similar locations.  

Section 3.15. Capitalization and Subsidiaries .   Schedule 3.15 sets forth (a) a correct and complete list of the name and relationship to the Company of each Subsidiary, (b) a true and complete listing of each class of each of the Company’s authorized Equity Interests, of which all of such issued Equity Interests are validly issued, outstanding, fully paid and non-assessable, provided that with respect to the Company, Schedule 3.15 only lists those Persons owning at 5% or more of the Equity Interests of the Company as of April 21, 2016, and (c) the type of entity of the Company and each Subsidiary.  All of the issued and outstanding Equity Interests owned by any Loan Party have been (to the extent such concepts are relevant with respect to such ownership interests) duly authorized and issued and are fully paid and non‑assessable.

Section 3.16. Security Interest in Collateral .  The provisions of this Agreement and the other Loan Documents create legal and valid Liens on all the Collateral in favor of the Lender, for the benefit of the Secured Parties, and such Liens constitute perfected and continuing Liens on the Collateral, securing the Secured Obligations, enforceable against the applicable Loan Party and all third parties, and having priority over all other Liens on the Collateral except in the case of (a) Permitted Encumbrances, to the extent any such Permitted Encumbrances would have priority over the Liens in favor of the Lender pursuant to any applicable law and (b) Liens perfected only by possession (including possession of any certificate of title), to the extent the Lender has not obtained or does not maintain possession of such Collateral.

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Section 3.17. Employment Matters .   The hours worked by and payments made to employees of the Loan Parties and their Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable federal, state, local or foreign law dealing with such matters.  All payments due from any Loan Party or any Subsidiary, or for which any claim may be made against any Loan Party or any Subsidiary, 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 Loan Party or such Subsidiary.  

Section 3.18. Federal Reserve Regulations .  No part of the proceeds of any Loan or Letter of Credit has been used or will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.

Section 3.19. Use of Proceeds .  The proceeds of the Loans have been used and will be used, whether directly or indirectly as set forth in Section 5.08 .

Section 3.20. No Burdensome Restrictions .  No Loan Party is subject to any Burdensome Restrictions except Burdensome Restrictions permitted under Section 6.10 .

Section 3.21. Anti-Corruption Laws and Sanctions .  Each Loan Party has implemented and maintains in effect policies and procedures designed to ensure compliance by such Loan Party, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and such Loan Party, its Subsidiaries and their respective officers and employees and to the knowledge of such Loan Party its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects.  None of (a) any Loan Party, any Subsidiary or , to the knowledge of any such Loan Party or Subsidiary, any of their respective directors, officers or employees, or (b) to the knowledge of any such Loan Party or Subsidiary, any agent of such Loan Party or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person.   No Borrowing or Letter of Credit, use of proceeds, Transaction or other transaction contemplated by this Agreement or the other Loan Documents will violate Anti-Corruption Laws or applicable Sanctions.

Article IV

Conditions

Section 4.01. Effective Date .  The obligations of the Lender to make Loans and to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 8.02 ):

(a) Credit Agreement and Loan Documents .  The Lender (or its counsel) shall have received (i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence satisfactory to the Lender (which may include fax or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies of the Loan Documents and such other certificates, documents, instruments and agreements as the Lender shall reasonably request in connection with the transactions contemplated by this Agreement and the other Loan Documents, including a written opinion of the Loan Parties’ counsel, addressed to the Lender in substantially the form of Exhibit A .

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(b) Closing Certificates; Certified Certificate of Incorporation; Good Standing Certificates .  The Lender shall have received (i) a certificate of each Loan Party, dated the Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors, members or other body authorizing the execution, delivery and performance of the Loan Documents to which it is a party, (B) identify by name and title and bear the signatures of the officers of such Loan Party authorized to sign the Loan Documents to which it is a party, and (C) contain appropriate attachments, including the charter, articles or certificate of organization or incorporation of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, or other organizational or governing documents, and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.

(c) No Default Certificate .  The Lender shall have received a certificate, signed by a Financial Officer of each Borrower, dated as of the Effective Date (i) stating that no Default has occurred and is continuing, (ii) stating that the representations and warranties contained in the Loan Documents are true and correct as of such date, and (iii) certifying as to any other factual matters as may be reasonably requested by the Lender.

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

(e) Lien Searches .  The Lender shall have received the results of a recent lien search in the jurisdiction of organization of each Loan Party and Ultimark Products, Inc. (“ Ultimark ”) and each jurisdiction where assets of the Loan Parties and the assets associated with the Acquisition are located, and such search shall reveal no Liens on any of the assets of the Loan Parties or the assets associated with the Acquisition except for liens permitted by Section 6.02 or discharged on or prior to the Effective Date pursuant to a pay-off letter or other documentation satisfactory to the Lender.

(f) Pay-off Letter .  The Lender shall have received satisfactory pay-off letters for all existing Indebtedness required to be repaid and which confirms that all Liens upon any of the property of the Loan Parties constituting Collateral will be terminated concurrently with such payment and all letters of credit issued or guaranteed as part of such Indebtedness shall have been cash collateralized or supported by a Letter of Credit.

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

(h) Landlord Waiver .  The Lender shall have received from the lessor of each leased property a landlord waiver as required to be provided pursuant to the Security Agreement.

(i) Solvency .  The Lender shall have received a solvency certificate signed by a Financial Officer of the Company dated the Effective Date in form and substance reasonably satisfactory to the Lender.

(j) Pledged Equity Interests; Stock Powers; Pledged Notes .  The Lender shall have received the certificates representing the Equity Interests pledged pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof.

(k) Filings, Registrations and Recordings .  Each document (including any Uniform Commercial Code financing statement) required by the Collateral Documents or under law or reasonably requested by the Lender to be filed, registered or recorded in order to create in favor of the Lender, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 6.02 ), shall be in proper form for filing, registration or recordation.

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(l) Acquisitions .   The Lender shall have received copies of all documents executed in connection with the acquisition of certain assets of Ultimark related to the Prell, Denorex and Zincon brands as set forth in the Asset Purchase Agreement between Neoteric and Ultimark (the “ Ultimark Acquisition ”).

(m) Insurance .  The Lender shall have received evidence of insurance coverage in form, scope, and substance reasonably satisfactory to the Lender and otherwise in compliance with the terms of Section 5.10 of this Agreement and Section 4.12 of the Security Agreement.

(n) Legal Due Diligence . The Lender and its counsel shall have completed all legal due diligence, the results of which shall be satisfactory to Lender in its sole discretion.

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

(p) Other Documents .  The Lender shall have received such other documents as the Lender or its counsel may have reasonably requested.

The Lender shall notify the Borrowers of the Effective Date, and such notice shall be conclusive and binding.  Notwithstanding the foregoing, the obligations of the Lender to make Loans and to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 8.02 ) at or prior to 2:00 p.m., Denver, Colorado time, on the closing date of the Ultimark Acquisition (and, in the event such conditions are not so satisfied or waived, the Commitment shall terminate at such time).

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

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

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

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

(d) No event shall have occurred and no condition shall exist which has or could be reasonably expected to have a Material Adverse Effect.  

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

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Article V

Affirmative Covenants

Until the Commitment shall have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or terminated, in each case without any pending draw, and all LC Disbursements shall have been reimbursed, each Loan Party executing this Agreement covenants and agrees, jointly and severally with all of the other Loan Parties, with the Lender that:

Section 5.01. Financial Statements and Other Information .  The Borrowers will furnish to the Lender:

(a) within 90 days after the end of each fiscal year of the Company, unless the 90th day would fall on a day that is not a Business Day, in which case such period shall be extended to the next succeeding Business Day, its audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by independent public accountants acceptable to the Lender (without a “going concern” or like qualification, commentary or exception, and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;

(b) within 45 days after the end of each of the first three fiscal quarters of the Company, unless the 45th day of such quarter would fall on a day that is not a Business Day, in which case such period shall be extended to the next succeeding Business Day, its consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;

(c) concurrently with any delivery of financial statements under clause (a) or (b)  above (collectively or individually, as the context requires, the “ Financial Statements ”), a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit B (i) certifying, in the case of the Financial Statements delivered under clause (b) or (c) above, as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, (ii) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.12 and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the Financial Statements accompanying such certificate; and

(d) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Lender may reasonably request.

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Section 5.02. Notices of Material Events .  The Borrowers will furnish to the Lender prompt (but in any event within any time period that may be specified below) written notice of the following:

(a) the occurrence of any Default;

(b) receipt of any notice of any investigation by a Governmental Authority or any litigation or proceeding commenced or threatened against any Loan Party or any Subsidiary that (i) seeks damages in excess of $100,000, (ii) seeks injunctive relief, (iii) is asserted or instituted against any Plan, its fiduciaries or its assets, (iv) alleges criminal misconduct by any Loan Party or any Subsidiary, (v) alleges the violation of, or seeks to impose remedies under, any Environmental Law or related Requirement of Law, or seeks to impose Environmental Liability, (vi) asserts liability on the part of any Loan Party or any Subsidiary in excess of $50,000 in respect of any tax, fee, assessment, or other governmental charge, or (vii) involves any product recall;

(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Loan Parties and their Subsidiaries in an aggregate amount exceeding $100,000; and

(d) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.

Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Borrower Representative setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

Section 5.03. Existence; Conduct of Business .  Each Loan Party will, and will cause each Subsidiary to, (a) do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, qualifications, licenses, permits, franchises, governmental authorizations, intellectual property rights (to the extent still used in or necessary for each such Loan Party’s business), licenses and permits material to the conduct of its business, and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03 and (b) carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted.

Section 5.04. Payment of Obligations .  Each Loan Party will pay or discharge all Material Indebtedness and all other material liabilities and obligations, including Taxes, before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) such Loan Party has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect; provided , however , that each Loan Party will, and will cause each Subsidiary to, remit withholding taxes and other payroll taxes to appropriate Governmental Authorities as and when claimed to be due, notwithstanding the foregoing exceptions.

Section 5.05. Maintenance of Properties .  Each Loan Party will keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted.

Section 5.06. Books and Records; Inspection Rights .  Each Loan Party will (a) keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities and (b) permit any representatives designated by the Lender (including employees of the Lender or any consultants, accountants, lawyers, agents and appraisers retained by the Lender), upon reasonable prior notice, to visit and inspect its properties, conduct at the Loan Party’s premises field examinations of the Loan Party’s assets, liabilities, books and records, including examining and making extracts from its books and records, environmental assessment reports and Phase I or Phase II studies, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested.  The Loan Parties acknowledge that the Lender, after exercising its rights of inspection, may prepare certain Reports pertaining to the Loan Parties’ assets for internal use by the Lender.

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Section 5.07. Compliance with Laws and Material Contractual Obligations .  Each Loan Party will (i) comply in all material respects with each Requirement of Law applicable to it or its property (including, without limitation, Environmental Laws) and (ii) perform in all material respects its obligations under material agreements to which it is a party.  Each Loan Party will maintain in effect and enforce policies and procedures designed to ensure compliance by such Loan Party, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.

Section 5.08. Use of Proceeds .  

(a) The proceeds of the Loans and the Letters of Credit will be used only for financing the Ultimark Acquisition and any other acquisitions consented to by Lender, working capital, and general corporate purposes.  No part of the proceeds of any Loan and no Letter of Credit will be used, whether directly or indirectly, (i) for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.  

(b) The Borrowers will not request any Borrowing or Letter of Credit, and no Borrower shall use, and each Borrower shall ensure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws , (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

Section 5.09. Accuracy of Information .  The Loan Parties will ensure that any information, including financial statements or other documents, furnished to the Lender in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder contains no material misstatement of 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, and the furnishing of such information shall be deemed to be a representation and warranty by the Borrowers on the date thereof as to the matters specified in this Section 5.09 ; provided that, with respect to any projections furnished to Lender, the Borrowers will cause such projections to be prepared in good faith based upon assumptions believed to be reasonable at the time.

Section 5.10. Insurance . Each Loan Party will, and will cause each Subsidiary to, maintain with financially sound and reputable carriers having a financial strength rating of at least A- by A.M. Best Company (a) insurance in such amounts (with no greater risk retention) and against such risks (including loss or damage by fire and loss in transit; theft, burglary, pilferage, larceny, embezzlement, and other criminal activities; business interruption; and general liability) and such other hazards, as is customarily maintained by companies of established repute engaged in the same or similar businesses operating in the same or similar locations and (b) all insurance required pursuant to the Collateral Documents.  The Borrowers will furnish to the Lender information in reasonable detail as to the insurance so maintained.

Section 5.11. Casualty and Condemnation .  The Borrowers (a) will furnish to the Lender prompt written notice of any casualty or other insured damage to any material portion of the Collateral or the commencement of any action or proceeding for the taking of any material portion of the Collateral or interest therein under power of eminent domain or by condemnation or similar proceeding and (b) will ensure that the Net Proceeds of any such event (whether in the form of insurance proceeds, condemnation awards or otherwise) are collected and applied in accordance with the applicable provisions of this Agreement and the Collateral Documents.

Section 5.12. Depository Banks .  Each Loan Party will maintain the Lender as its principal depository bank, including for the maintenance of operating, administrative, cash management, collection activity, and other deposit accounts for the conduct of its business.

Section 5.13. Bailee Waivers .  Within 60 days after the Effective Date, each Loan Party, as applicable, shall use commercially reasonable efforts to obtain a bailee waiver from the bailee with respect to any warehouse, processor or converter facility or other location where Collateral is stored or located, which agreement or letter shall provide access rights, contain a waiver or subordination of all Liens or claims that the bailee may assert against the Collateral at that location, and shall otherwise be reasonably satisfactory in form and substance to the Lender.

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Section 5.14. Additional Collateral ; Further Assurances .

(a) Subject to applicable Requirements of Law, each Loan Party will cause each of its domestic Subsidiaries formed or acquired after the date of this Agreement to become a Loan Party by executing a Joinder Agreement. Upon execution and delivery thereof, each such Person (i) shall automatically become a Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Lender, for the benefit of the Secured Parties, in any property of such Loan Party which constitutes Collateral, including any parcel of real property located in the U.S. owned by any Loan Party.

(b) Each Loan Party will cause 100% of the issued and outstanding Equity Interests of each of its domestic Subsidiaries to be subject at all times to a first priority, perfected Lien in favor of the Lender, for the benefit of the Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Lender shall reasonably request.

(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Lender such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01 , as applicable), which may be required by any Requirement of Law or which the Lender may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.  

(d) If any material assets (including any real property or improvements thereto or any interest therein) are acquired by any Loan Party after the Effective Date (other than assets constituting Collateral under the Security Agreement that become subject to the Lien under the Security Agreement upon acquisition thereof), the Borrower Representative will (i) notify the Lender and, if requested by the Lender, cause such assets to be subjected to a Lien securing the Secured Obligations and (ii)  take, and cause each applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Lender to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.

Article VI

Negative Covenants

Until the Commitment shall have expired or been terminated and the principal of and interest on each Loan and all fees, expenses and other amounts payable under any Loan Document shall have been paid in full and all Letters of Credit shall have expired or terminated, in each case without any pending draw, and all LC Disbursements shall have been reimbursed, each Loan Party executing this Agreement covenants and agrees, jointly and severally with all of the other Loan Parties, with the Lender that:

Section 6.01. Indebtedness .  No Loan Party will create, incur, assume or suffer to exist any Indebtedness, except:

(a) the Secured Obligations;

(b) Indebtedness of any Borrower to any Subsidiary and of any Subsidiary to any Borrower or any other Subsidiary, provided that (i) Indebtedness of any Subsidiary that is not a Loan Party to any Borrower or any other Loan Party shall be subject to Section 6.04 and (ii) Indebtedness of any Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Secured Obligations on terms reasonably satisfactory to the Lender;

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(c) Guarantees by any Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of any Borrower or any other Subsidiary, provided that (i) the Indebtedness so Guaranteed is permitted by this Section 6.01 , (ii) Guarantees by any Borrower or any other Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04 and (iii) Guarantees permitted under this clause (c) shall be subordinated to the Secured Obligations on the same terms as the Indebtedness so Guaranteed is subordinated to the  Secured Obligations;

(d) Indebtedness of any Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets (whether or not constituting purchase money Indebtedness), including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness in accordance with clause (f) below; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (d) together with any Refinance Indebtedness in respect thereof permitted by clause (e) below, shall not exceed $500,000 at any time outstanding;

(e) Indebtedness which represents extensions, renewals, refinancing or replacements (such Indebtedness being so extended, renewed, refinanced or replaced being referred to herein as the “ Refinance Indebtedness ”) of any of the Indebtedness described in clause (e) hereof (such Indebtedness being referred to herein as the “ Original Indebtedness ”); provided that (i) such Refinance Indebtedness does not increase the principal amount or interest rate of the Original Indebtedness, (ii) any Liens securing such Refinance Indebtedness are not extended to any additional property of any Loan Party or any Subsidiary, (iii) no Loan Party or any Subsidiary that is not originally obligated with respect to repayment of such Original Indebtedness is required to become obligated with respect to such Refinance Indebtedness, (iv) such Refinance Indebtedness does not result in a shortening of the average weighted maturity of such Original Indebtedness, (v) the terms of such Refinance Indebtedness are not less favorable to the obligor thereunder than the original terms of such Original Indebtedness and (vi) if such Original Indebtedness was subordinated in right of payment to the Secured Obligations, then the terms and conditions of such Refinance Indebtedness must include subordination terms and conditions that are at least as favorable to the Lender as those that were applicable to such Original Indebtedness;

(f) Indebtedness owed to any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business; and

(g) Indebtedness of any Loan Party in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the ordinary course of business.

Section 6.02. Liens .  No Loan Party will create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including Accounts) or rights in respect of any thereof, except:

(a) Liens created pursuant to any Loan Document;

(b) Liens securing Indebtedness permitted pursuant to Section 6.01(d) ; and

(c) Permitted Encumbrances.

Section 6.03. Fundamental Changes .  

(a) No Loan Party will merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) any Subsidiary of any Borrower may merge into a Borrower in a transaction in which a Borrower is the surviving entity, (ii) any Loan Party (other than any Borrower) may merge into any other Loan Party in a transaction in which the surviving entity is a Loan Party and (iii) any Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrowers determine in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially

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disadvantageous to the Lender; provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04 .

(b) No Loan Party will, nor will it permit any Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the Borrowers and their Subsidiaries on the date hereof and businesses reasonably related thereto.

Section 6.04. Investments, Loans, Advances, Guarantees and Acquisitions .  No Loan Party will form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any Equity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person (other than Ultimark) constituting a business unit (whether through purchase of assets, merger or otherwise), except:

(a) Permitted Investments, subject to control agreements in favor of the Lender or otherwise subject to a perfected security interest in favor of the Lender;

(b) investments by the Loan Parties in Equity Interests in their existing respective Subsidiaries;

(c) loans or advances made by any Loan Party to any other Loan Party;

(d) Guarantees constituting Indebtedness permitted by Section 6.01 ;

(e) loans or advances made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes;

(f) notes payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the ordinary course of business, consistent with past practices;

(g) investments in the form of Swap Agreements permitted by Section 6.07 ;

(h) investments received in connection with the disposition of assets permitted by Section 6.05 ; and

(i) investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”.

Section 6.05. Asset Sales .  No Loan Party will sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will any Borrower permit any Subsidiary to issue any additional Equity Interest in such Subsidiary (other than to another Borrower or another Subsidiary in compliance with Section 6.04 ), except:

(a) sales, transfers and dispositions of (i) Inventory in the ordinary course of business and (ii) used, obsolete, worn out or surplus Equipment or property in the ordinary course of business;

(b) sales, transfers and dispositions of assets to any Borrower or any Subsidiary, provided that any such sales, transfers or dispositions involving a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09 ;

(c) sales, transfers and dispositions of Accounts (excluding sales or dispositions in a factoring arrangement) in connection with the compromise, settlement or collection thereof;

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(d) sales, transfers and dispositions of Permitted Investments and other investments permitted by clauses (h) and (i) of Section 6.04 ; and

(e) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of any Borrower or any Subsidiary;

provided that all sales, transfers, leases and other dispositions permitted under this Section 6.05 (other than those permitted by paragraphs (b), (d) and (e) above) shall be made for fair value and for at least 75% cash consideration.

Section 6.06. Sale and Leaseback Transactions .  No Loan Party will, nor will it permit any Subsidiary to, enter into any arrangement, directly or indirectly, 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 that it intends to use for substantially the same purpose or purposes as the property sold or transferred.

Section 6.07. Swap Agreements .  No Loan Party will, nor will it permit any Subsidiary to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or mitigate risks to which any Borrower or any Subsidiary has actual exposure (other than those in respect of Equity Interests of any Borrower or any Subsidiary), and (b) Swap Agreements entered into in order to effectively cap, collar or exchange interest rates (from floating to fixed rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of any Borrower or any Subsidiary.

Section 6.08. Restricted Payments; Certain Payments of Indebtedness .  

(a) No Loan Party will, nor will it permit any Subsidiary to, declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) the Borrowers may declare and pay dividends with respect to its common stock payable solely in additional shares of its common stock, and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock, (ii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, and (iii) the Company may pay dividends and make other distributions pursuant to the Shareholder Rights Agreement.

(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:

(i) payment of Indebtedness created under the Loan Documents;

(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted under Section 6.01 , other than payments in respect of the Subordinated Indebtedness prohibited by the subordination provisions thereof;

(iii) refinancings of Indebtedness to the extent permitted by Section 6.01 ; and

(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness to the extent such sale or transfer is permitted by the terms of Section 6.05 .

Section 6.09. Transactions with Affiliates .  No Loan Party will sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) transactions that (i) are in the ordinary course of business and (ii) are at prices and on terms and conditions not less favorable to such Loan Party than could be obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among the Loan Parties not involving

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any other Affiliate, (c) any investment permitted by Sections 6.04(c) or 6.04(d) , (d) any Indebtedness permitted under Section 6.01(c) , (e) any Restricted Payment permitted by Section 6.08 , (f) loans or advances to employees permitted under Section 6.04(f) , (g) the payment of reasonable fees to directors of any Borrower or any Subsidiary who are not employees of such Borrower or any Subsidiary, and compensation and employee benefit arrangements paid to, and indemnities provided for the benefit of, directors, officers or employees of the Borrowers or their Subsidiaries in the ordinary course of business, and (h) any issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements, stock options and stock ownership plans approved by a Borrower’s board of directors.

Section 6.10. Restrictive Agreements .  No Loan Party will directly or indirectly enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of such Loan Party or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to any Equity Interests or to make or repay loans or advances to any Borrower or any other Subsidiary or to Guarantee Indebtedness of any Borrower or any other Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by any Requirement of Law or by any Loan Document, (ii) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness and (iii) clause (a) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof.

Section 6.11. Amendment of Material Documents .  No Loan Party will amend, modify or waive any of its rights under (a)  any agreement relating to any Subordinated Indebtedness, or (b) its charter, articles or certificate of organization or incorporation and bylaws or operating, management or partnership agreement, or other organizational or governing documents,  to the extent any such amendment, modification or waiver would be adverse to the Lender.

Section 6.12. Financial Covenants .

(a) Debt Service Coverage Ratio .  The Company will not permit the Debt Service Coverage Ratio, as of  the last day of each fiscal quarter, commencing on December 31, 2016, calculated on a trailing four quarter basis, to be less than 1.25 to 1.0.

(b) Funded Indebtedness to Adjusted EBITDA Ratio .  The Company will not permit the Funded Indebtedness to Adjusted EBITDA Ratio, as of the last day of each fiscal quarter, commencing on December 31, 2016, to be greater than 3.0 to 1.0.

Article VII

Events of Default

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

(a) the Borrowers shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;

(b) the Borrowers shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five (5) Business Days;

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(c) any representation or warranty made or deemed made by or on behalf of any Loan Party or any Subsidiary in, or in connection with, this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, shall prove to have been materially incorrect when made or deemed made;

(d) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in 5.03 (with respect to a Loan Party’s existence) or 5.08 or Article VI;

(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Loan Document (other than those specified in clause (a), (b) or (d)), and such failure shall continue unremedied for a period of (i) five (5) Business Days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Lender if such breach relates to terms or provisions of Section 5.01 , 5.02 , 5.03 through 5.07 , 5.10 , 5.11 or 5.14 of this Agreement or (ii) 15 days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Lender if such breach relates to terms or provisions of any other Section of this Agreement or of any other Loan Document;

(f) any Loan Party or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable;

(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness to the extent such sale or transfer is permitted by the terms of Section 6.05 ;

(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of a Loan Party or any Subsidiary or its debts, or of a substantial part of its assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Loan Party or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;

(i) any Loan Party or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Loan Party or Subsidiary of any Loan Party or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;

(j) any Loan Party or any Subsidiary shall become unable, admit in writing its inability, or publicly declare its intention not to, or fail generally, to pay its debts as they become due;

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(k) one or more judgments for the payment of money in an aggregate amount in excess of $100,000 shall be rendered against any Loan Party, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Loan Party or any Subsidiary to enforce any such judgment or any Loan Party or any Subsidiary shall fail within thirty (30) days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal and being appropriately contested in good faith by proper proceedings diligently pursued;

(l) an ERISA Event shall have occurred that, in the reasonable opinion of the Lender, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;

(m) a Change in Control, not otherwise permitted pursuant to this Agreement, shall occur;

(n) the Loan Guaranty shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of the Loan Guaranty, or any Guarantor shall fail to comply with any of the terms or provisions of the Loan Guaranty to which it is a party, or any Guarantor shall deny that it has any further liability under the Loan Guaranty to which it is a party, or shall give notice to such effect;

(o) except as permitted by the terms of any Collateral Document, (i) any Collateral Document shall for any reason fail to create a valid security interest in any Collateral purported to be covered thereby, or (ii) any Lien securing any Secured Obligation shall cease to be a perfected, first priority Lien;

(p) any Collateral Document shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of any Collateral Document; or

(q) any material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (or any Loan Party shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction that evidences its assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms);

then, and in every such event (other than an event with respect to the Borrowers described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Lender may, by notice to the Borrower Representative, take either or both of the following actions, at the same or different times:  (i) terminate the Commitment, whereupon the Commitment shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, but ratably as among the Classes of Loans and the Loans of each Class at the time outstanding, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; and in the case of any event with respect to the Borrowers described in clause (h) or (i) of this Article, the Commitment shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers.  Upon the occurrence and during the continuance of an Event of Default, the Lender may increase the rate of interest applicable to the Loans and other Obligations as set forth in this Agreement and exercise any rights and remedies provided to the Lender under the Loan Documents or at law or equity, including all remedies provided under the UCC.

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Article VIII

Miscellaneous

Section 8.01. Notices .  

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

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

Scott’s Liquid Gold-Inc.

4880 Havana St., Suite 400

Denver, CO 80239

Attention: Barry J. Levine, Chief Financial Officer

Fax No: (303) 576-6030

(ii) if to JPMorgan Chase Bank, N.A. at:

1125 17th St., 3rd Floor

Denver, CO  80202

Attention: Robert C. Larkin, Vice President

Fax No: (303) 244-3351

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

(b) Notices and other communications to the Lender hereunder may be delivered or furnished by electronic communications (including e-mail and internet or intranet websites) pursuant to procedures approved by the Lender; provided that the foregoing shall not apply to notices pursuant to Article II , or to compliance certificates delivered pursuant to Section 5.01(c) unless otherwise agreed by the Lender.  Each of the Lender or the Borrower Representative (on behalf of the Loan Parties) may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.  All such notices and other communications (i) sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if not given during the normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business on the next Business Day for the recipient, and (ii) posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, e-mail or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day of the recipient.

(c) Any party hereto may change its address, facsimile number or e-mail address for notices and other communications hereunder by notice to the other parties hereto.  All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.

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Section 8.02. Waivers; Amendments .   

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

(b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Lender or (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Lender and the Loan Party or Loan Parties that are parties thereto.  

Section 8.03. Expenses; Indemnity; Damage Waiver .  

(a) The Loan Parties, jointly and severally, shall pay all (i) reasonable out-of-pocket expenses incurred by the Lender and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Lender (whether outside counsel or the allocated costs of its internal legal department), in connection with the credit facilities provided for herein, the preparation and administration of the Loan Documents and any amendments, modifications or waivers of the provisions of the Loan Documents (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) reasonable out-of-pocket expenses incurred by the Lender in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) out-of-pocket expenses incurred by the Lender, including the fees, charges and disbursements of any counsel for the Lender (whether outside counsel or the allocated costs of its internal legal department), in connection with the enforcement, collection or protection of its rights in connection with the Loan Documents, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.  Expenses being reimbursed by the Loan Parties under this Section include, without limiting the generality of the foregoing, fees, costs and expenses incurred in connection with:

(i) appraisals and insurance reviews;

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

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

(iv) Taxes, fees and other charges for (i) lien and title searches and title insurance and (ii) recording the Mortgages, filing financing statements and continuations, and other actions to perfect, protect, and continue the Lender’s Liens;

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

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

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

(b) The Loan Parties, jointly and severally, shall indemnify the Lender, and each Related Party of the Lender (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, penalties, incremental taxes, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by the Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by a Loan Party or a Subsidiary, or any Environmental Liability related in any way to a Loan Party or Subsidiary, (iv) the failure of a Loan Party to deliver to the Lender the required receipts or other required documentary evidence with respect to a payment made by such Loan Party for Taxes pursuant to Section 2.15 , or (v) any actual claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, penalties, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.  This Section 8.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim.

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

(d) All amounts due under this Section shall be payable not later than 5 days after written demand therefor.

Section 8.04. Successors and Assigns .  

(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Lender that issues any Letter of Credit), except that no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Lender (and any attempted assignment or transfer by a Borrower without such consent 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 (including any Affiliate of the Lender that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of the Lender) any legal or equitable right, remedy or claim under or by reason of this Agreement.

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(b) (i)  The Lender may 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) with the prior written consent (such consent not to be unreasonably withheld) of the Borrower Representative, provided that the Borrower Representative shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Lender within five (5) Business Days after having received notice thereof, and provided further that no consent of the Borrower Representative shall be required for an assignment to an Affiliate of the Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee;

For the purposes of this Section 8.04(b) , the term “ Approved Fund ” has the following meaning:

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

(c) The Lender may not, without the consent of the Borrowers, which consent shall not be unreasonable withheld, conditioned or delayed, sell participations to one or more banks or other entities (a “ Participant ”) in all or a portion of the Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and Letters of Credit and the Loans owing to it); provided that if the Borrowers consent to such sale to any Participant (i) the Lender’s obligations under this Agreement shall remain unchanged; (ii) the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (iii) the Borrowers shall continue to deal solely and directly with the Lender in connection with the Lender’s rights and obligations under this Agreement.  Each Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 (subject to the requirements and limitations therein) to the same extent as if it were the Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Section 2.13 or 2.15, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.

To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 8.08 as though it were the Lender.  If the Lender shall sell a participation, it shall, acting solely for this purpose as an agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement or any other Loan Document (the “ Participant Register ”); provided that the Lender shall have no 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 Commitment, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and the 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.  

(d) The 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 the Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release the Lender from any of its obligations hereunder or substitute any such pledgee or assignee for the Lender as a party hereto.

Section 8.05. Survival .  All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued

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interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitment has not expired or terminated.  The provisions of Sections  2.13 , 2.14 , 2.15 and Section 8.03 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitment or the termination of this Agreement or any other Loan Document or any provision hereof or thereof.

Section 8.06. Counterparts; Integration; Effectiveness; Electronic Execution .

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

(b) Delivery of an executed counterpart of a signature page of this Agreement by fax, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement.  The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any  document to be signed in connection with this Agreement and the transactions contemplated hereby or thereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

Section 8.07. Severability .  Any provision of any Loan Document held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

Section 8.08. Right of Setoff .  If an Event of Default shall have occurred and be continuing, the Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by the Lender or any Affiliate to or for the credit or the account of any Loan Party against any of and all the Secured Obligations held by the Lender, irrespective of whether or not the Lender shall have made any demand under the Loan Documents and although such obligations may be unmatured.  The rights of the Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which the Lender may have.

Section 8.09. Governing Law; Jurisdiction; Consent to Service of Process .  

(a) The Loan Documents (other than those containing a contrary express choice of law provision) shall be governed by and construed in accordance with the internal laws (and not the law of conflicts) of the State of Colorado but giving effect to federal laws applicable to national banks.

(b) Each Loan Party hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any U.S. federal or Colorado State court sitting in the City and County of Denver in any action or proceeding arising out of or relating to any Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such state court or, to the extent permitted by law, in

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such federal court.  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement or any other Loan Document shall affect any right that the Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Loan Party or its properties in the courts of any jurisdiction.

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

(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 8.01 .  Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

Section 8.10. WAIVER OF JURY TRIAL .  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OR OTHER AGENT (INCLUDING ANY ATTORNEY) OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

Section 8.11. Headings .  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

Section 8.12. Confidentiality .  The Lender agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by any Requirement of Law or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (x) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (y) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Loan Parties and their obligations, (g) with the consent of the Borrower Representative or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Lender on a non-confidential basis from a source other than the Borrowers.  For the purposes of this Section, “ Information ” means all information received from the Borrowers relating to the Borrowers or their business, other than any such information that is available to the Lender on a non-confidential basis prior to disclosure by the Borrowers; provided that, in the case of information received from the Borrowers after the date hereof, such information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

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Section 8.13. Nonreliance; Violation of Law .  The Lender hereby represents that it is not relying on or looking to any margin stock (as defined in Regulation U of the Board) for the repayment of the Borrowings provided for herein.  Anything contained in this Agreement to the contrary notwithstanding, the Lender shall not be obligated to extend credit to the Borrowers in violation of any Requirement of Law.

Section 8.14. USA PATRIOT Act .  The Lender is subject to the requirements of the USA PATRIOT Act and hereby notifies each Loan Party that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies such Loan Party, which information includes the name and address of such Loan Party and other information that will allow the Lender to identify such Loan Party in accordance with the USA PATRIOT Act.

Section 8.15. Disclosure . Each Loan Party hereby acknowledges and agrees that the Lender and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with, any of the Loan Parties and their respective Affiliates.

Section 8.16. Interest Rate Limitation .  Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “ Charges ”), shall exceed the maximum lawful rate (the “ Maximum Rate ”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to the Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by the Lender.

Section 8.17. No Advisory or Fiduciary Responsibility .  In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrowers acknowledge and agree that:  (i) (A) the arranging and other services regarding this Agreement provided by the Lender are arm’s-length commercial transactions between the Borrowers and their Affiliates, on the one hand, and the Lender and its Affiliates, on the other hand, (B) the Borrowers have consulted their own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrowers are capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Lender and each of its Affiliates is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrowers or any of their respective Affiliates, or any other Person and (B) neither the Lender nor any of its Affiliates has any obligation to the Borrowers or any of their Affiliates with respect to the transactions contemplated hereby except, in the case of the Lender, those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Lender and its Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers and their Affiliates, and neither the Lender nor any of its Affiliates has any obligation to disclose any of such interests to the Borrowers or their Affiliates.  To the fullest extent permitted by law, the Borrowers hereby waive and release any claims that they may have against the Lender and its Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

Article IX

Loan Guaranty

Section 9.01. Guaranty .  Each Guarantor (other than those that have delivered a separate Guaranty) hereby agrees that it is jointly and severally liable for, and, as a primary obligor and not merely as surety, absolutely and unconditionally and irrevocably guarantees to the Secured Parties, the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations and all costs and expenses including, without limitation, all court costs and reasonable attorneys’ and paralegals’ fees (including allocated costs of in-house counsel and paralegals) and expenses paid or incurred by the Lender in endeavoring to

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collect all or any part of the Secured Obligations from, or in prosecuting any action against, any Borrower, any Guarantor or any other guarantor of all or any part of the Secured Obligations (such costs and expenses, together with the Secured Obligations, collectively the “ Guaranteed Obligations ”); provided, however , that the definition of “Guaranteed Obligations” shall not create any guarantee by any Guarantor of (or grant of security interest by any Guarantor to support, as applicable) any Excluded Swap Obligations of such Guarantor for purposes of determining any obligations of any Guarantor) . Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. All terms of this Loan Guaranty apply to and may be enforced by or on behalf of any domestic or foreign branch or Affiliate of the Lender that extended any portion of the Guaranteed Obligations.

Section 9.02. Guaranty of Payment .  This Loan Guaranty is a guaranty of payment and not of collection. Each Guarantor waives any right to require the Lender to sue any Borrower, any Guarantor, any other guarantor of, or any other Person obligated for all or any part of the Guaranteed Obligations (each, an “ Obligated Party ”), or otherwise to enforce its payment against any collateral securing all or any part of the Guaranteed Obligations.

Section 9.03. No Discharge or Diminishment of Loan Guaranty .  

(a) Except as otherwise provided for herein, the obligations of each Guarantor hereunder are unconditional and absolute and not subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Guaranteed Obligations), including:  (i) any claim of waiver, release, extension, renewal, settlement, surrender, alteration, or compromise of any of the Guaranteed Obligations, by operation of law or otherwise; (ii) any change in the corporate existence, structure or ownership of any Borrower or any other Obligated Party liable for any of the Guaranteed Obligations; (iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Obligated Party, or their assets, or any resulting release or discharge of any obligation of any Obligated Party; or (iv) the existence of any claim, setoff or other rights which any Guarantor may have at any time against any Obligated Party, the Lender or any other Person, whether in connection herewith or in any unrelated transactions.  

(b) The obligations of each Guarantor hereunder are not subject to any defense or setoff, counterclaim, recoupment, or termination whatsoever by reason of the invalidity, illegality, or unenforceability of any of the Guaranteed Obligations or otherwise, or any provision of applicable law or regulation purporting to prohibit payment by any Obligated Party, of the Guaranteed Obligations or any part thereof.  

(c) Further, the obligations of any Guarantor hereunder are not discharged or impaired or otherwise affected by: (i) the failure of the Lender to assert any claim or demand or to enforce any remedy with respect to all or any part of the Guaranteed Obligations; (ii) any waiver or modification of or supplement to any provision of any agreement relating to the Guaranteed Obligations; (iii) any release, non-perfection, or invalidity of any indirect or direct security for the obligations of any Borrower for all or any part of the Guaranteed Obligations or any obligations of any other Obligated Party liable for any of the Guaranteed Obligations; (iv) any action or failure to act by the Lender with respect to any collateral securing any part of the Guaranteed Obligations; or (v) any default, failure or delay, willful or otherwise, in the payment or performance of any of the Guaranteed Obligations, or any other circumstance, act, omission or delay that might in any manner or to any extent vary the risk of such Guarantor or that would otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of the Guaranteed Obligations).  

Section 9.04. Defenses Waived .  To the fullest extent permitted by applicable law, each Guarantor hereby waives any defense based on or arising out of any defense of any Borrower or any Guarantor or the unenforceability of all or any part of the Guaranteed Obligations from any cause, or the cessation from any cause of the liability of any Borrower, any Guarantor or any other Obligated Party, other than the indefeasible payment in full in cash of the Guaranteed Obligations. Without limiting the generality of the foregoing, each Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and, to the fullest extent permitted by law, any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against any Obligated Party , or any other Person.  Each Guarantor confirms that it is not a surety under any state law and shall not raise any such law as a defense to its obligations hereunder.   The Lender may, at its election, foreclose on any Collateral held by it by one or more judicial or nonjudicial sales, accept an assignment of any such Collateral in lieu of foreclosure or otherwise

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act or fail to act with respect to any collateral securing all or a part of the Guaranteed Obligations, compromise or adjust any part of the Guaranteed Obligations, make any other accommodation with any Obligated Party or exercise any other right or remedy available to it against any Obligated Party, without affecting or impairing in any way the liability of such Guarantor under this Loan Guaranty, except to the extent the Guaranteed Obligations have been fully and indefeasibly paid in cash.  To the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such election even though that election may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Obligated Party or any security.

Section 9.05. Rights of Subrogation .  No Guarantor will assert any right, claim or cause of action, including, without limitation, a claim of subrogation, contribution or indemnification that it has against any Obligated Party, or any collateral, until the Loan Parties and the Guarantors have fully performed all their obligations to the Lender.

Section 9.06. Reinstatement; Stay of Acceleration .  If at any time any payment of any portion of the Guaranteed Obligations (including a payment effected through exercise of a right of setoff) is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, or reorganization of any Borrower or otherwise (including pursuant to any settlement entered into by a Secured Party in its discretion), each Guarantor’s obligations under this Loan Guaranty with respect to that payment shall be reinstated at such time as though the payment had not been made and whether or not the Lender is in possession of this Loan Guaranty. If acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of any Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Guaranteed Obligations shall nonetheless be payable by the Guarantors forthwith on demand by the Lender.

Section 9.07. Information .  Each Guarantor assumes all responsibility for being and keeping itself informed of the Borrowers’ financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Guarantor assumes and incurs under this Loan Guaranty, and agrees that the Lender shall not have any duty to advise any Guarantor of information known to it regarding those circumstances or risks.

Section 9.08. Termination .  The Lender may continue to make loans or extend credit to the Borrowers based on this Loan Guaranty until five (5) days after it receives written notice of termination from any Guarantor.  Notwithstanding receipt of any such notice, each Guarantor will continue to be liable to the Lender for any Guaranteed Obligations created, assumed or committed to prior to the fifth day after receipt of the notice, and all subsequent renewals, extensions, modifications and amendments with respect to, or substitutions for, all or any part of such Guaranteed Obligations.  Nothing in this Section 9.08 shall be deemed to constitute a waiver of, or eliminate, limit, reduce or otherwise impair any rights or remedies the Lender may have in respect of, any Default or Event of Default that shall exist under Article VII hereof as a result of any such notice of termination.

Section 9.09. Taxes .  Each payment of the Guaranteed Obligations will be made by each Guarantor without withholding for any Taxes, unless such withholding is required by law.  If any Guarantor determines, in its sole discretion exercised in good faith, that it is so required to withhold Taxes, then such Guarantor may so withhold and shall timely pay the full amount of withheld Taxes to the relevant Governmental Authority in accordance with applicable law.  If such Taxes are Indemnified Taxes, then the amount payable by such Guarantor shall be increased as necessary so that, net of such withholding (including such withholding applicable to additional amounts payable under this Section), the Lender receives the amount it would have received had no such withholding been made.

Section 9.10. Maximum Liability .    Notwithstanding any other provision of this Loan Guaranty, the amount guaranteed by each Guarantor hereunder shall be limited to the extent, if any, required so that its obligations hereunder shall not be subject to avoidance under Section 548 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.  In determining the limitations, if any, on the amount of any Guarantor’s obligations hereunder pursuant to the preceding sentence, it is the intention of the parties hereto that any rights of subrogation, indemnification or contribution which such Guarantor may have under this Loan Guaranty, any other agreement or applicable law shall be taken into account.

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Section 9.11. Contribution .   

(a) To the extent that any Guarantor shall make a payment under this Loan Guaranty (a “ Guarantor Payment ”) which, taking into account all other Guarantor Payments then previously or concurrently made by any other Guarantor, exceeds the amount which otherwise would have been paid by or attributable to such Guarantor if each Guarantor had paid the aggregate Guaranteed Obligations satisfied by such Guarantor Payment in the same proportion as such Guarantor’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Guarantor Payment and the Guaranteed Obligations (other than Unliquidated Obligations that have not yet arisen), and the Commitment and all Letters of Credit have terminated or expired or, in the case of all Letters of Credit, are fully collateralized on terms reasonably acceptable to the Lender, and this Agreement, the Swap Agreement Obligations and the Banking Services Obligations have terminated, such Guarantor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Guarantor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.

(b) As of any date of determination, the “Allocable Amount” of any Guarantor shall be equal to the excess of the fair saleable value of the property of such Guarantor over the total liabilities of such Guarantor (including the maximum amount reasonably expected to become due in respect of contingent liabilities, calculated, without duplication, assuming each other Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made by other Guarantors as of such date in a manner to maximize the amount of such contributions.

(c) This Section 9.11 is intended only to define the relative rights of the Guarantors, and nothing set forth in this Section 9.11 is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Loan Guaranty.

(d) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution and indemnification is owing.

(e) The rights of the indemnifying Guarantors against other Guarantors under this Section 9.11 shall be exercisable upon the full and indefeasible payment of the Guaranteed Obligations in cash (other than Unliquidated Obligations that have not yet arisen) and the termination or expiry (or, in the case of all Letters of Credit, full cash collateralization), on terms reasonably acceptable to the Lender, of the Commitment and all Letters of Credit issued hereunder and the termination of this Agreement, the Swap Agreement Obligations and the Banking Services Obligations.

Section 9.12. Liability Cumulative .  The liability of each Loan Party as a Guarantor under this Article IX is in addition to and shall be cumulative with all liabilities of each Loan Party to the Lender under this Agreement and the other Loan Documents to which such Loan Party is a party or in respect of any obligations or liabilities of the other Loan Parties, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.

Section 9.13. Keepwell .   Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Guarantee in respect of a Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 9.13 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 9.13 or otherwise under this Loan Guaranty voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount).  Except as otherwise provided herein, the obligations of each Qualified ECP Guarantor under this Section 9.13 shall remain in full force and effect until the termination of all Swap Obligations.  Each Qualified ECP Guarantor intends that this Section 9.13 constitute, and this Section 9.13 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

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Article X

The Borrower Representative

Section 10.01. Appointment; Nature of Relationship . The Company is hereby appointed by each of the Loan Parties as its contractual representative (herein referred to as the “ Borrower Representative ” hereunder and under each other Loan Document, and each of the Loan Parties’ irrevocably authorizes the Borrower Representative to act as the contractual representative of such Loan Party with the rights and duties expressly set forth herein and in the other Loan Documents.  The Borrower Representative agrees to act as such contractual representative upon the express conditions contained in this Article X .  Additionally, the Loan Parties hereby appoint the Borrower Representative as their agent to receive all of the proceeds of the Loans in the Funding Account(s), at which time the Borrower Representative shall promptly disburse such Loans to the appropriate Borrower, provided that, in the case of a Revolving Loan, such amount shall not exceed Availability.  The Lender, and its respective officers, directors, agents or employees, shall not be liable to the Borrower Representative or any Loan Party for any action taken or omitted to be taken by the Borrower Representative or the Loan Party pursuant to this Section 10.01 .

Section 10.02. Powers .  The Borrower Representative shall have and may exercise such powers under the Loan Documents as are specifically delegated to the Borrower Representative by the terms of each thereof, together with such powers as are reasonably incidental thereto.  The Borrower Representative shall have no implied duties to the Loan Parties, or any obligation to the Lender to take any action thereunder except any action specifically provided by the Loan Documents to be taken by the Borrower Representative.

Section 10.03. Employment of Agents .   The Borrower Representative may execute any of its duties as the Borrower Representative hereunder and under any other Loan Document by or through authorized officers.

Section 10.04. Notices .    Each Loan Party shall immediately notify the Borrower Representative of the occurrence of any Default or Event of Default hereunder, refer to this Agreement, describe such Default or Event of Default, and state that such notice is a “notice of default”.   In the event that the Borrower Representative receives such a notice, the Borrower Representative shall give prompt notice thereof to the Lender.  Any notice provided to the Borrower Representative hereunder shall constitute notice to each Loan Party on the date received by the Borrower Representative.

Section 10.05. Successor Borrower Representative . Upon the prior written consent of the Lender, the Borrower Representative may resign at any time, such resignation to be effective upon the appointment of a successor Borrower Representative.  

Section 10.06. Execution of Loan Documents . The Loan Parties hereby empower and authorize the Borrower Representative, on behalf of the Loan Parties, to execute and deliver to the Lender the Loan Documents and all related agreements, certificates, documents, or instruments as shall be necessary or appropriate to effect the purposes of the Loan Documents, including the Compliance Certificates.  Each Loan Party agrees that any action taken by the Borrower Representative or the Loan Parties in accordance with the terms of this Agreement or the other Loan Documents, and the exercise by the Borrower Representative of its powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Borrowers.

Section 10.07. Reporting . Each Loan Party hereby agrees that such Loan Party shall furnish promptly after each fiscal month to the Borrower Representative a copy of any certificate or report required hereunder or requested by the Borrower Representative on which the Borrower Representative shall rely to prepare the Compliance Certificate required pursuant to the provisions of this Agreement.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

[Signature Page to Credit Agreement]