Second Amended and Restated Loan and Security Agreement, dated as of March 21, 2023, by and among PhenomeX Inc., as borrower, East West Bank, a California banking corporation, as lender, and the other parties thereto

(b)          All such policies of insurance shall be in such form, with such companies, and in such amounts as reasonably satisfactory to Bank.  All policies of property insurance shall contain a lender's loss payable endorsement, in a form reasonably satisfactory to Bank, showing Bank as a lender's loss payee, and all liability insurance policies shall show Bank as an additional insured and specify that the insurer must give at least twenty (20) days' notice to Bank before canceling its policy for any reason (10 days' notice for cancellation for reason of non-payment of premiums).  All policies of insurance shall be addressed to Bank as follows: East West Bank, its successors and assigns, 135 North Robles Avenue, 2^nd Floor, Pasadena, California 91101.  Upon Bank's request, Borrower shall deliver to Bank certified copies of the policies of insurance and evidence of all premium payments.  All proceeds payable under any such policy shall, at Bank's option, be payable to Bank to be applied on account of the Obligations.

6.6.        Deposit Accounts; Securities Accounts.

(a)          Subject to Section 6.16, each Loan Party shall maintain its primary depository relationship with Bank, including general operating and administrative deposit accounts, cash management services, and its primary investment accounts (covered by reasonably satisfactory control agreements).

(b)         Subject to Section 6.16, (i) Borrower shall cause at least ninety percent (90%) of the cash and cash equivalents of Borrower and its Subsidiaries to be held in deposit or investment accounts maintained with Bank at all times, and (ii) the Loan Parties shall not maintain Deposit Accounts or Securities Accounts with any other bank or securities intermediary located within the United States (other than that certain Securities Account maintained with Morgan Stanley Smith Barney LLC, as of the Closing Date that has been previously disclosed to Bank).

(c)          Subject to Section 6.16, all Deposit Accounts and Securities Accounts of the Loan Parties shall be subject to control agreements in form and content reasonably acceptable to Bank (other than (i) Excluded Accounts and (ii) Deposit Accounts that are subject to an assignment of deposit as contemplated by Section 6.7(b)); provided, however, that the Loan Parties may maintain Deposit Accounts at branch offices of a bank or securities intermediary located outside the United States that are not subject to control agreements so long as the aggregate balances of all such Deposit Accounts located outside the United States not subject to a control agreement do not exceed Three Million Dollars ($3,000,000) at any time.

6.7.        Financial Covenants.  The Loan Parties shall at all times maintain the following ratios and covenants:

(a)         Remaining Months Liquidity.  Have Remaining Months Liquidity of at least 4.00 to 1.00, measured as of the last day of each fiscal quarter; provided, however, that if the Loan Parties are out of compliance with such Remaining Months Liquidity requirement, it shall not be an Event of Default or a breach of this Section 6.7 if each Loan Party, within ten (10) Business Days of falling out of compliance (the "IP Trigger Milestone"), executes an Amendment to Loan and Security Agreement (in a form to be mutually agreed among the parties thereto) and Intellectual Property Security Agreement (in substantially the form attached hereto as Exhibit F) in order to provide Bank with a perfected first priority security interest on each Loan Party's Intellectual Property. Furthermore, if after falling out of compliance and entering into the aforementioned documents, Borrower achieves Remaining Months Liquidity of at least 10.00 to 1.00 (the "IP Release Milestone"), Bank agrees to execute the necessary documents required to release such perfected first priority security interest on each Loan Party's Intellectual Property.

(b)         Minimum Unrestricted Cash.  Maintain unrestricted cash and cash equivalents of the Loan Parties of not less than Seventy Million Dollars ($70,000,000) in the aggregate at all times, all of which shall be held in a Deposit Accounts of one or more Loan Parties maintained with Bank that are not Excluded Accounts and are subject to an assignment of deposit in form and substance satisfactory to Bank (it being acknowledged and agreed by Bank that the form of Assignment of Deposit executed and delivered on the Closing Date is satisfactory).

(c)          Minimum EBITDA.  During any Covenant Testing Period, maintain EBITDA, measured on the last day of each quarter, for the one-quarter period ending on such date, of at least the amount set forth in the following table for the one-quarter period ending on the date set forth opposite thereto:

6.8.        Registration of Intellectual Property Rights.

(a)          Borrower shall register or cause to be registered (to the extent not already registered) with the United States Patent and Trademark Office or the United States Copyright Office, as the case may be, those registrable intellectual property rights now owned or hereafter developed or acquired by Borrower, to the extent that Borrower, in its reasonable business judgment, deems it appropriate to so protect such intellectual property rights.

(b)          Borrower shall, in the then-next Compliance Certificate, give Bank written notice of any applications or registrations of intellectual property rights filed with the United States Patent and Trademark Office, including the date of such filing and the registration or application numbers, if any.

(c)          Borrower shall give Bank prompt written notice of the filing of any applications or registrations with the United States Copyright Office, including the title of such intellectual property rights to be registered, as such title will appear on such applications or registrations, and the date such applications or registrations will be filed.

(d)         Borrower shall (i) protect, defend and maintain the validity and enforceability of the Trademarks, Patents, Copyrights, and trade secrets that have any material value, (ii) subject to any applicable attorney-client privilege, use commercially reasonable efforts to detect infringements of the Trademarks, Patents and Copyrights that have any material value and promptly advise Bank in writing of material infringements detected, (iii) not allow any Trademarks, Patents or Copyrights that are material to the business of Borrower and its Subsidiaries to be abandoned, forfeited or dedicated to the public without the written consent of Bank, which shall not be unreasonably withheld and (iv) require all employees, consultants, and contractors of each Loan Party who were involved in the creation or development of such Intellectual Property to sign agreements containing assignment of Intellectual Property rights and obligations of confidentiality.

(e)          Each Loan Party's use of Open Source Software shall be (i) in full compliance with the terms of each applicable open source license and (ii) in a manner that does not require or condition the use or distribution of any Loan Party's proprietary software on the disclosure, licensing, or distribution of any source code for any portion of the proprietary software, or otherwise impose an obligation to disclose or distribute any proprietary software on a royalty-free basis.

6.9.      Notice for Inbound Licenses.  In the then-next Compliance Certificate after entering into or becoming bound by any inbound license or agreement (other than off-the-shelf software that is commercially available to the public) that is material or necessary to the conduct of the business of Borrower and its Subsidiaries, Borrower shall provide written notice to Bank of the material terms of such license or agreement with a description of its likely impact on Borrower's business or financial condition.

6.10.      Creation/Acquisition of Subsidiaries.  In the event Borrower or any Subsidiary creates or acquires any Domestic Subsidiary, Borrower and such Subsidiary shall notify Bank in the then-next Compliance Certificate after the creation or acquisition of such new Subsidiary and take all such action as may be reasonably required by Bank to cause each such Domestic Subsidiary to guarantee the Obligations of Borrower under the Loan Documents and grant a continuing pledge and security interest in and to the collateral of such Subsidiary (substantially as described on Exhibit B hereto), and Borrower (or the applicable Subsidiary) shall grant and pledge to Bank a perfected security interest in the Shares of each Subsidiary (whether foreign or domestic).

6.11.       [Reserved].

6.12.      Further Assurances.  At any time and from time to time each Loan Party shall execute and deliver such further instruments and take such further action as may reasonably be requested by Bank to effect the purposes of this Agreement.

6.13.      Interest Rate Protection.  Subject to Section 6.16, Borrower shall at all times be party to Hedging Agreements satisfactory to Bank for interest rate protection with respect to not less than seventy-five percent (75%) of the Term Loan for a period of not less than one (1) year and shall keep such Hedging Agreements in full force and effect at all times during such period.

6.14.      Patriot Act, Bank Secrecy Act and Office of Foreign Assets Control.  As required by federal law and Bank's policies and practices, Bank may need to obtain, verify and record certain customer identification information and documentation in connection with opening or maintaining accounts, or establishing or continuing to provide services and each Loan Party agrees, and shall cause each of its Subsidiaries to provide such information.  In addition, and without limiting the foregoing sentence, each Loan Party shall not use or permit the use of the proceeds of the Loans to violate any of the foreign asset control regulations of OFAC or any enabling statute or Executive Order relating thereto, and comply, and cause each Subsidiary to comply, with all applicable Bank Secrecy Act (P.L. 91-508, 84 Stat. 118) (1970) (the "BSA") and the PATRIOT Act and any regulations under the BSA or the PATRIOT Act.

6.15.      Bank Meetings.  Promptly following the delivery of financial statements pursuant to Section 6.2(a) and 6.2(b) or, if earlier, the filing of each Form 10-K and 10-Q filed with the Securities and Exchange Commission, Borrower will hold, at times during normal business hours to be mutually agreed between Borrower and Bank, a conference call with Bank at which meeting the parties shall review the financial results of the Loan Parties and their Subsidiaries presented in the applicable financial statements and the financial condition of the Loan Parties and their Subsidiaries.

6.16.      Post-Closing Obligations.  Within the time periods specified under the heading "Post-Closing Obligations" of the Post-Closing Schedule (or such longer period of time as may be agreed to by Bank in writing in its sole discretion), Borrower shall execute and deliver the documents to Bank, and complete such undertakings, as are set forth on such schedule.

7.           NEGATIVE COVENANTS.

Each Loan Party covenants and agrees that, until the Obligations are Paid in Full or for so long as Bank may have any commitment to make any Credit Extensions, no Loan Party, and no Subsidiary of any Loan Party will do any of the following without Bank's prior written consent, which shall not be unreasonably withheld:

7.1.       Dispositions.  Convey, sell, lease, license, transfer or otherwise dispose of (collectively, to "Transfer"), or permit any Loan Party or any of its Subsidiaries to Transfer, all or any part of its business or property, or subject to Section 6.6 of the Agreement, move cash balances on deposit with Bank to accounts opened at another financial institution, other than Permitted Transfers; provided that it is understood and agreed that, to the extent that any Collateral is Transferred as expressly permitted by this Section 7.1 to any Person that is not a Loan Party and Borrower has delivered to Bank, a certificate of a Responsible Officer of Borrower as to such Transfer being made in compliance with this Section 7.1, such Collateral shall be Transferred of free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Transfer; it being understood and agreed that Bank shall be authorized to take, and shall take any actions reasonably requested by Borrower in order to effect the foregoing.

7.2.        Change in Name, Location, Executive Office, or Executive Management; Change in Business; Change in Fiscal Year; Change in Control.  In the case of Borrower, change its name or the Borrower State or relocate its chief executive office without thirty (30) days' prior written notification to Bank; in the case of any Loan Party (other than Borrower) or any Subsidiary of any Loan Party, change its name or state of organization or relocate its chief executive office without thirty (30) days written notification to Bank; engage in any business, or permit any of its Subsidiaries to engage in any business, other than or reasonably related or incidental to the businesses currently engaged in by Borrower; change its fiscal year end; have a Change in Control.

7.3.      Mergers or Acquisitions.  Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary that is a Loan Party or into Borrower (or in the case of Subsidiaries that are not Loan Parties, into another Subsidiary that is not a Loan Party)), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the Capital Stock or property of another Person except where (i) such transactions do not in the aggregate exceed One Hundred Thousand Dollars ($100,000) during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity.

7.4.        Indebtedness.  Create, incur, assume, guarantee or be or remain liable with respect to any Indebtedness, or permit any Subsidiary so to do, other than Permitted Indebtedness, or prepay any Indebtedness or take any actions which impose on Borrower an obligation to prepay any Indebtedness prior to the scheduled maturity or due date, except Indebtedness to Bank.

7.5.       Encumbrances.  Create, incur, assume or allow any Lien with respect to any of its property, or assign or otherwise convey any right to receive income, including the sale of any Accounts, or permit any of its Subsidiaries so to do, except for Permitted Liens, or covenant to any other Person (other than (i) the licensors of in-licensed property with respect to such property or (ii) the lessors of specific equipment or lenders financing specific equipment with respect to such leased or financed equipment) that any Loan Party or any Subsidiary in the future will refrain from creating, incurring, assuming or allowing any Lien with respect to any of such Loan Party's or such Subsidiary's property.

7.6.       Distributions.  Pay any dividends or make any other distribution or payment on account of or in redemption, retirement or purchase of any Capital Stock, except that Borrower may (i) repurchase the stock of former employees, consultants or directors in an aggregate amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in any fiscal year, pursuant to stock repurchase agreements as long as an Event of Default does not exist prior to such repurchase or would not exist after giving effect to such repurchase, (ii) repurchase the stock of former employees, consultants or directors pursuant to stock repurchase agreements in any amount where the consideration for the repurchase is the cancellation of indebtedness owed by such former employees , consultants or directors to Borrower regardless of whether an Event of Default exists, (iii) make dividends or distributions solely in the common stock of Borrower; (iv) convert any of its equity or Subordinated Debt securities into other equity or Subordinated Debt securities pursuant to the terms of such securities or otherwise in exchange therefore; (v) purchase Capital Stock in connection with the exercise of stock options or stock appreciation by way of a cashless exercise, provided that such purchases do not in the aggregate exceed Two Hundred Fifty Thousand Dollars ($250,000) per fiscal year and (vi) purchase fractional shares of Capital Stock arising out of stock dividends, splits or combinations or business combinations in an amount not to exceed Fifty Thousand Dollars ($50,000) per fiscal year.

7.7.        Investments.  Directly or indirectly acquire or own, or make any Investment in or to any Person, or permit any of its Subsidiaries to do so, other than Permitted Investments, or, subject to the requirements of Section 6.6, maintain or invest any of its Investment Property with a Person other than Bank or Bank's Affiliates or permit any Subsidiary to do so unless such Person has entered into a control agreement with Bank, in form and substance satisfactory to Bank, or suffer or permit any Subsidiary to be a party to, or be bound by, an agreement that restricts such Subsidiary from paying dividends or otherwise distributing property to Borrower. Further, no Loan Party or any Subsidiary shall enter into any license or agreement with any Prohibited Territory or with any Person organized under or doing business in a Prohibited Territory.

7.8.        Transactions with Affiliates.  Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower except for (i) transactions that are in the ordinary course of Borrower's business, upon fair and reasonable terms that are no less favorable to Borrower than would be obtained in an arm's length transaction with a non-affiliated Person, (ii) the sale or issuance of Borrower's equity securities in a bona fide equity investment round to investors, (iii) Subordinated Debt and (iv) compensation arrangements on fair and reasonable terms approved by Borrower's board of directors.

7.9.        Subordinated Debt.  Make any payment in respect of any Subordinated Debt, or permit any of its Subsidiaries to make any such payment, except in compliance with the terms of such Subordinated Debt and the terms of the subordination agreement relating to such Subordinated Debt, or amend any provision of any document evidencing such Subordinated Debt, except in compliance with the terms of the subordination agreement relating to such Subordinated Debt, or amend any provision affecting Bank's rights contained in any documentation relating to the Subordinated Debt without Bank's prior written consent.

7.10.      Inventory and Equipment.  Other than Inventory and Equipment at customer sites, store the Inventory or the Equipment having a book value in excess of Five Hundred Thousand Dollars ($500,000) with a bailee, warehouseman, or similar third party unless the third party has been notified of Bank's security interest and (a) the applicable Loan Party has used commercially reasonable efforts to obtain an acknowledgment from the third party that it is holding or will hold the Inventory or Equipment for Bank's benefit or (b) Bank is in possession of the warehouse receipt, where negotiable, covering such Inventory or Equipment.  Except for Inventory sold in the ordinary course of business and for movable items of personal property having book value not in excess of Five Hundred Thousand Dollars ($500,000), and except for such other locations as Bank may approve in writing, each Loan Party shall keep the Inventory and Equipment only at the location set forth in Section 10 and such other locations of which Borrower gives Bank written notice and as to which Bank files a financing statement where needed to perfect its security interest.

7.11.     No Investment Company; Margin Regulation.  Become or be controlled by an "investment company," within the meaning of the Investment Company Act of 1940, or become principally engaged in, or undertake as one of its important activities, the business of extending credit for the purpose of purchasing or carrying margin stock, or use the proceeds of any Credit Extension for such purpose.

8.           EVENTS OF DEFAULT.

The occurrence of any one or more of the following events shall constitute an Event of Default by Borrower under this Agreement:

8.1.        Payment Default.  If Borrower fails to pay any of the Obligations when due;

8.2.        Covenant Default.

(a)          (i) If any Loan Party fails to perform any obligation under Sections 6.2, 6.4, 6.5, 6.6, 6.7(a) (after giving effect to the grace period set forth therein), 6.7(b), 6.7(c), 6.8, 6.11, 6.12, 6.13, 6.14, or 6.16 (after giving effect to any extensions provided by Bank pursuant to such Section 6.16) or violates any of the covenants contained in Article 7 of this Agreement or (ii) if any Loan Party fails to perform any obligation under Section 6.1 (solely if any Loan Party fails to maintain its organizational existence); or

(b)        If any Loan Party fails or neglects to perform or observe any other material term, provision, condition, covenant contained in this Agreement, in any of the Loan Documents, and as to any default under such other term, provision, condition or covenant that can be cured, has failed to cure such default within thirty (30) days after Borrower receives notice thereof or any Responsible Officer  of Borrower becomes aware thereof;

8.3.       Material Adverse Change.  If there occurs any circumstance or circumstances that could reasonably be expected to have a Material Adverse Effect;

8.4.       Attachment.  If any material portion of any Loan Party's assets is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes into the possession of any trustee, receiver or person acting in a similar capacity and such attachment, seizure, writ or distress warrant or levy has not been removed, discharged or rescinded within ten (10) days, or if any Loan Party is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs, or if a judgment or other claim becomes a lien or encumbrance upon any material portion of any Loan Party's assets, or if a notice of lien, levy, or assessment is filed of record with respect to any material portion of any Loan Parties assets by the United States Government, or any department, agency, or instrumentality thereof, or by any state, county, municipal, or governmental agency, and the same is not paid within ten (10) days after Borrower receives notice thereof, provided that none of the foregoing shall constitute an Event of Default where such action or event is stayed or an adequate bond has been posted pending a good faith contest by the applicable Loan Party (provided that no Credit Extensions will be made during such cure period);

8.5.      Insolvency.  If any Loan Party becomes insolvent, or if an Insolvency Proceeding is commenced by any Loan Party, or if an Insolvency Proceeding is commenced against any Loan Party and is not dismissed or stayed within forty-five (45) days (provided that no Credit Extensions will be made prior to the dismissal of such Insolvency Proceeding);

8.6.        Other Agreements.  If there is an uncured default or other uncured failure to perform in any agreement to which any Loan Party is a party with a third party or parties resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of any Indebtedness in an amount in excess of Three Hundred Thousand Dollars ($300,000) or that would reasonably be expected to have a Material Adverse Effect;

8.7.       Subordinated Debt.  If any Loan Party or any other Person on behalf of a Loan Party makes any payment on account of Subordinated Debt, except to the extent the payment is allowed under any subordination agreement entered into with Bank;

8.8.        Judgments.  If one or more judgments, orders, or decrees for the payment of money in an amount, individually or in the aggregate, of at least One Million Dollars ($1,000,000) (not covered by independent third-party insurance as to which liability has been accepted by such insurance carrier) shall be rendered against any Loan Party or any Subsidiary of any Loan Party, or any Loan Party or any Subsidiary of any Loan Party enters into a settlement agreement with respect to any action or proceeding pending against any Loan Party or any Subsidiary of a Loan Party before any court or administrative agency or threatened in writing that involves the payment of consideration by such Loan Party or Subsidiary, individually or in the aggregate, of One Million Dollars ($1,000,000) or more.

8.9.        Misrepresentations.  If any material misrepresentation or material misstatement exists now or hereafter in any warranty or representation set forth herein or in any certificate delivered to Bank by any Responsible Officer pursuant to this Agreement or to induce Bank to enter into this Agreement or any other Loan Document.

8.10.      Guaranty.  If the Guaranty is limited (other than any limitations expressly set forth therein) or ceases for any reason to be in full force and effect (for any reason other than Payment in Full of the Obligations and the termination of the commitment of Bank, if any, to make Credit Extensions), or any Guarantor fails to perform any obligation under the Guaranty or any Guarantor repudiates, revokes or purports to repudiate or revoke the Guaranty.

9.           BANK'S RIGHTS AND REMEDIES.

9.1.       Rights and Remedies. Upon the occurrence and during the continuance of an Event of Default, Bank may, at its election, without notice of its election and without demand, do any one or more of the following, all of which are authorized by each Loan Party:

(a)          Declare all Obligations, whether evidenced by this Agreement, by any of the other Loan Documents, or otherwise, immediately due and payable (provided that upon the occurrence of an Event of Default described in Section 8.5 (insolvency), all Obligations shall become immediately due and payable without any action by Bank);

(b)        Cease advancing money or extending credit to or for the benefit of Borrower under this Agreement or under any other agreement between Borrower and Bank;

(c)          (i) enforce collection of any of such Loan Party's Accounts or other amounts owed to such Loan Party by suit or otherwise; (ii) exercise all of such Loan Party's rights and remedies with respect to proceedings brought to collect any Accounts or other amounts owed to such Loan Party; (iii) surrender, release or exchange all or any part of any Accounts or other amounts owed to such Loan Party, or compromise or extend or renew for any period (whether or not longer than the original period) any indebtedness thereunder; (iv) sell or assign any Account of such Loan Party or other amount owed to such Loan Party upon such terms, for such amount and at such time or times as Bank deems advisable; (v) prepare, file and sign such Loan Party's name on any proof of claim in bankruptcy or other similar document against any Account Debtor or other Person obligated to such Loan Party; (vi) do all other acts and things which are necessary, in Bank's sole discretion, to fulfill such Loan Party's obligations under the Loan Documents and to allow Bank to collect the Accounts or other amounts owed to such Loan Party; (vii) at such Loan Party's expense, notify any parties obligated on any of the Accounts to make payment directly to Bank of any amounts due or to become due thereunder; (viii) settle or adjust disputes and claims directly with account debtors for amounts, upon terms and in whatever order Bank reasonably considers advisable;

(d)          Make such payments and do such acts as Bank considers necessary or reasonable to protect its security interest in the Collateral.  Each Loan Party agrees to assemble the Collateral if Bank so requires, and to make the Collateral available to Bank as Bank may designate.  Each Loan Party authorizes Bank to enter the premises where the Collateral is located, to take and maintain possession of the Collateral, or any part of it, and to pay, purchase, contest, or compromise any encumbrance, charge, or lien which in Bank's determination appears to be prior or superior to its security interest and to pay all expenses incurred in connection therewith.  With respect to Loan Party's owned premises, each Loan Party hereby grants Bank a license to enter into possession of such premises and to occupy the same, without charge, in order to exercise any of Bank's rights or remedies provided herein, at law, in equity, or otherwise;

(e)          Set off and apply to the Obligations any and all (i) balances and deposits of each Loan Party held by Bank, and (ii) indebtedness at any time owing to or for the credit or the account of such Loan Party held by Bank;

(f)          Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell (in the manner provided for herein) the Collateral.  Bank is hereby granted a license or other right, solely pursuant to the provisions of this Section 9.1, to use, without charge, each Loan Party' labels, patents, copyrights, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any property of a similar nature, as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Bank's exercise of its rights under this Section 9.1, each Loan Party's rights under all licenses and all franchise agreements shall inure to Bank's benefit;

(g)         Sell the Collateral at either a public or private sale, or both, by way of one or more contracts or transactions, for cash or cash equivalents or on terms, in such manner and at such places (including any Loan Party's premises) as Bank determines is commercially reasonable, and apply any proceeds to the Obligations in whatever manner or order Bank deems appropriate.  Bank may sell the Collateral without giving any warranties as to the Collateral.  Bank may specifically disclaim any warranties of title or the like.  This procedure will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral.  If Bank sells any of the Collateral upon credit, the Loan Parties will be credited only with payments actually made by the purchaser, received by Bank, and applied to the indebtedness of the purchaser.  If the purchaser fails to pay for the Collateral, Bank may resell the Collateral and the Loan Parties shall be credited with the proceeds of the sale;

(h)          Bank may credit bid and purchase at any public sale;

(i)          Apply for the appointment of a receiver, trustee, liquidator or conservator of the Collateral, without notice and without regard to the adequacy of the security for the Obligations and without regard to the solvency of any Loan Party, any guarantor or any other Person liable for any of the Obligations; and

(j)           Any deficiency that exists after disposition of the Collateral as provided above will be paid immediately by Borrower or any Guarantor.

Bank may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral.

9.2.        Power of Attorney.  Effective only upon the occurrence and during the continuance of an Event of Default, each Loan Party hereby irrevocably appoints Bank (and any of Bank's designated officers, or employees) as such Loan Party's true and lawful attorney to:  (a) send requests for verification of Accounts or notify Account Debtors of Bank's security interest in the Accounts; (b) endorse such Loan Party's name on any checks or other forms of payment or security that may come into Bank's possession, cash or deposit such checks or other items of payment or security, and apply to the Obligations all proceeds of such checks or other items; (c) sign such Loan Party's name on any invoice or bill of lading relating to any Account, drafts against account debtors, schedules and assignments of Accounts, verifications of Accounts, and notices to account debtors; (d) dispose of any Collateral; (e) make, settle, and adjust all claims under and decisions with respect to such Loan Party's policies of insurance; (f) settle and adjust disputes and claims respecting the accounts directly with account debtors, for amounts and upon terms which Bank determines to be reasonable; and (g) file, in its sole discretion, one or more financing or continuation statements and amendments thereto, relative to any of the Collateral without the signature of such Loan Party where permitted by law; provided Bank may exercise such power of attorney to sign the name of such Loan Party on any of the documents described in clause (g) above, regardless of whether an Event of Default has occurred.  The appointment of Bank as each Loan Party's attorney in fact, and each and every one of Bank's rights and powers, being coupled with an interest, is irrevocable until all of the Obligations have been Paid in Full and Bank's obligation to provide Credit Extensions hereunder is terminated (it being understood that any such Obligations will continue to be effective or automatically reinstated, as the case may be, if at any time payment, in whole or in part, of any of the Obligations is rescinded or must otherwise be restored or returned by Bank for any reason, including as a preference, fraudulent conveyance or otherwise under any bankruptcy, insolvency or similar law, as though such payment had not been made, it being further understood that in the event payment of all or any part of the Obligations is rescinded or must be restored or returned, all reasonably out-of-pocket costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements) incurred by Bank in defending and enforcing such reinstatement shall be deemed to be included as part of the Obligations)).

9.3.       Accounts Collection.  At any time after the occurrence and during the continuation of an Event of Default, Bank may notify any Person owing funds to a Loan Party of Bank's security interest in such funds and verify the amount of such Account.  Each Loan Party shall collect all amounts owing to such Loan Party for Bank, receive in trust all payments as Bank's trustee, and immediately deliver such payments to Bank in their original form as received from the account debtor, with proper endorsements for deposit.

9.4.        Bank Expenses.  If any Loan Party fails to pay any amounts or furnish any required proof of payment due to third persons or entities, as required under the terms of this Agreement, then Bank may do any or all of the following after reasonable notice to Borrower:  (a) make payment of the same or any part thereof or (b) obtain and maintain insurance policies of the type discussed in Section 6.5 of this Agreement, and take any action with respect to such policies as Bank deems prudent.  In addition, Bank may make Credit Extensions as Bank deems necessary, in its reasonable credit judgment, to preserve or protect the Collateral or the value thereof.  Any amounts so paid or deposited by Bank shall constitute Bank Expenses, shall be immediately due and payable, and shall bear interest at the then rate applicable to the Term Loan hereinabove provided, and shall be secured by the Collateral.  Any payments made by Bank shall not constitute an agreement by Bank to make similar payments in the future or a waiver by Bank of any Event of Default under this Agreement.

9.5.       Bank's Liability for Collateral.  Bank has no obligation to clean up or otherwise prepare the Collateral for sale.  All risk of loss, damage or destruction of the Collateral shall be borne by the Loan Parties.

9.6.        No Obligation to Pursue Others.  Bank has no obligation to attempt to satisfy the Obligations by collecting them from any other person liable for them and Bank may release, modify or waive any collateral provided by any other Person to secure any of the Obligations, all without affecting Bank's rights against the Loan Parties.  Each Loan Party waives any right it may have to require Bank to pursue any other Person for any of the Obligations.

9.7.        Remedies Cumulative.  Bank's rights and remedies under this Agreement, the Loan Documents, and all other agreements shall be cumulative.  Bank shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law, or in equity.  No exercise by Bank of one right or remedy shall be deemed an election, and no waiver by Bank of any Event of Default on Borrower's part shall be deemed a continuing waiver.  No delay by Bank shall constitute a waiver, election, or acquiescence by it.  No waiver by Bank shall be effective unless made in a written document signed on behalf of Bank and then shall be effective only in the specific instance and for the specific purpose for which it was given.  Each Loan Party expressly agrees that this Section 9.7 may not be waived or modified by Bank by course of performance, conduct, estoppel or otherwise.

9.8.        Demand; Protest.  Except as otherwise provided in this Agreement, each loan Party waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment and any other notices relating to the Obligations.

10.          NOTICES.

Unless otherwise provided in this Agreement, all notices or demands by any party relating to this Agreement or any other agreement entered into in connection herewith shall be in writing and (except for financial statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or sent by a recognized overnight delivery service, certified mail, postage prepaid, return receipt requested, to the Loan Parties or to Bank, as the case may be, at its addresses set forth below:

The parties hereto may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other.

11.          CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE.

11.1.      Governing Law and Venue.  This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to principles of conflicts of law.  Each Loan Party and Bank hereby submits to the exclusive jurisdiction of any state court located within the State of New York in the County of New York or in the United States District Court for the Southern District of New York; provided, however, that nothing in this Agreement shall be deemed to operate to preclude Bank from bringing suit or taking other legal action in any other jurisdiction to realize on the Collateral or any other security for the Obligations, or to enforce a judgment or other court order in favor of Bank.  Each Loan Party expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and to the extent permitted by applicable law, each Loan Party hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such legal or equitable relief as is deemed appropriate by such court.  To the extent permitted by applicable law, each Loan Party hereby waives personal service of the summons, complaints, and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made by registered or certified mail addressed to such Loan Party at the address set forth in, or subsequently provided by the Loan Parties in accordance with, Section 11 of this Agreement and that service so made shall be deemed completed upon the earlier to occur of Borrower's actual receipt thereof or 3 days after deposit thereof in the U.S. mails, proper postage prepaid.

11.2.      Jury Trial Waiver.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL PARTIES TO THIS AGREEMENT HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY.

11.3.      Jury Reference.  In the event any legal proceeding is filed in a court of the State of California by or against any party hereto in connection with any claim and if the waiver of the right to a trial by jury is not enforceable, the parties hereto agree that any and all disputes or controversies of any nature between them arising at any time shall be decided by a reference to a private judge, who shall be a retired state or federal court judge, mutually selected by the parties or, if they cannot agree, then any party may seek to have a private judge appointed in accordance with California Code of Civil Procedure §§ 638 and 640 (or pursuant to comparable provisions of federal law if the dispute falls within the exclusive jurisdiction of the federal courts).  The reference proceeding shall be conducted pursuant to and in accordance with the provisions of California Code of Civil Procedure §§ 638 through 645.1, inclusive.  The private judge shall have the power, among others, to grant provisional relief, including without limitation, entering temporary restraining orders, issuing preliminary and permanent injunctions and appointing receivers.  All such proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed.  If during the course of any dispute, a party desires to seek provisional relief, but a judge has not been appointed at that point pursuant to the judicial reference procedures, then such party may apply to the Court for such relief.  The proceeding before the private judge shall be conducted in the same manner as it would be before a court under the rules of evidence applicable to judicial proceedings.  The parties shall be entitled to discovery which shall be conducted in the same manner as it would be before a court under the rules of discovery applicable to judicial proceedings.  The private judge shall oversee discovery and may enforce all discovery rules and orders applicable to judicial proceedings in the same manner as a trial court judge.  The parties agree that the selected or appointed private judge shall have the power to decide all issues in the action or proceeding, whether of fact or of law, and shall report a statement of decision thereon pursuant to California Code of Civil Procedure § 644(a).  Nothing in this paragraph shall limit the right of any party at any time to exercise self-help remedies, foreclose against collateral, or obtain provisional remedies.  The private judge shall also determine all issues relating to the applicability, interpretation, and enforceability of this paragraph.  The parties agree that time is of the essence in conducting the referenced proceedings.  The parties shall promptly and diligently cooperate with one another and the referee, and shall perform such acts as may be necessary to obtain prompt and expeditious resolution of the dispute or controversy in accordance with the terms hereof.  The costs of any such reference proceeding shall be borne equally by the parties.

12.          GENERAL PROVISIONS.

12.1.     Successors and Assigns.  This Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of each of the parties and shall bind all persons who become bound as a debtor to this Agreement; provided, however, that neither this Agreement nor any rights hereunder may be assigned by any Loan Party without Bank's prior written consent, which consent may be granted or withheld in Bank's sole discretion.  Bank shall have the right without the consent of or notice to any Loan Party to sell, transfer, negotiate, or grant participation in all or any part of, or any interest in, Bank's obligations, rights and benefits hereunder.  If any portion of the Obligations are assigned or participated by Bank, Bank, as a non-fiduciary agent of Borrower shall maintain a register in the United States to record the names, addresses, and tax identification number of each assignee and participant and right to principal and stated interest.  No assignment of participation shall be effective unless recorded in such register.  It is intended that such register be maintained such that the Loans are in "registered form" for the purposes of the IRC.

12.2.      Indemnification.  The Loan Parties shall, jointly and severally, defend, indemnify and hold harmless Bank and its officers, employees, and agents (an "Indemnified Person") against:  (a) all obligations, demands, claims, and liabilities claimed or asserted by any other party in connection with the transactions contemplated by this Agreement or the Loan Documents; and (b) all losses or Bank Expenses in any way suffered, incurred, or paid by Bank, its officers, employees and agents as a result of or in any way arising out of, following, or consequential to transactions among Bank and the Loan Parties whether under this Agreement, or otherwise (including without limitation reasonable attorneys' fees and expenses), except for losses caused by an Indemnified Person's gross negligence or willful misconduct.

12.3.      Time of Essence.  Time is of the essence for the performance of all obligations set forth in this Agreement.

12.4.      Severability of Provisions.  Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.

12.5.      Correction of Loan Documents.  Bank may, with the prior consent of Borrower, correct patent errors and fill in any blanks in this Agreement and the other Loan Documents consistent with the agreement of the parties.

12.6.     Amendments in Writing, Integration.  All amendments to or terminations of this Agreement or the other Loan Documents must be in writing signed by the parties.  All prior agreements, understandings, representations, warranties, and negotiations between the parties hereto with respect to the subject matter of this Agreement and the other Loan Documents, if any, are merged into this Agreement and the Loan Documents.

12.7.      Counterparts.  This Agreement and any other Loan Document and any amendments, renewals, extensions, modifications, or refinancings thereof may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement or Loan Document, as applicable.  The words "execution," "signed," "signature," "delivery," and words of like import in or relating to this Agreement or any Loan Document and the transactions contemplated hereby shall be deemed to include Electronic Signatures (as defined below), 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.  As used herein, "Electronic Signatures" means any electronic symbol or process attached to, or associated with, any contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.  If any signature is delivered by facsimile transmission or by email delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the party executing this Agreement or any other Loan Document (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original hereof or thereof.

12.8.      Survival.  All covenants, representations and warranties made in this Agreement shall continue in full force and effect so long as any Obligations remain outstanding or Bank has any obligation to make any Credit Extension to the Loan Parties.  The obligations of Borrower to indemnify Bank with respect to the expenses, damages, losses, costs and liabilities described in Section 12.2 shall survive until all applicable statute of limitations periods with respect to actions that may be brought against Bank have run.

12.9.      Effect of Amendment and Restatement.  This Agreement is intended to and does completely amend and restate, without novation, the Original Agreement, which shall be terminated on the Closing Date of this Agreement.  All security interests granted by Borrower under the Original Agreement are hereby confirmed and ratified and shall continue to secure all Obligations under this Agreement.

12.10.    Confidentiality.  In handling any Confidential Information, Bank and all employees and agents of Bank shall keep such information confidential and exercise the same degree of care that Bank exercises with respect to its own proprietary information to maintain the confidentiality of any non-public information except that disclosure of such Confidential Information may be made (i) to the subsidiaries or Affiliates of Bank in connection with their present or prospective business relations with the Loan Parties, (ii) subject to an acknowledgment and agreement by the relevant recipient that the Confidential Information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as otherwise reasonably acceptable to Borrower and Bank) to prospective transferees or purchasers of any interest in the Loans, (iii) as required by law, regulations, rule or order, subpoena, judicial order or similar order, (iv) as may be required in connection with the examination, audit or similar investigation of Bank, (v) to Bank's accountants, auditors and regulators, and (vi) as Bank may reasonably determine in connection with the enforcement of any remedies hereunder.  For purposes of this Agreement, "Confidential Information" means all non-public information regarding the Loan Parties and their Subsidiaries, their operations, assets, and existing and contemplated business plans; provided that Confidential Information hereunder shall not include information that either:  (a) (i) is in the public domain or (ii) is in the knowledge or possession of Bank when disclosed by any Loan Party or any of their respective Subsidiaries to Bank, or (iii) becomes part of the public domain after disclosure to Bank through no fault of Bank; or (b) is disclosed to Bank by a third party, provided Bank does not have actual knowledge that such third party is prohibited from disclosing such information.  Notwithstanding the foregoing, the Loan Parties hereby consent to Bank's publishing a tombstone or similar advertising material relating to the financial transaction contemplated by this Agreement.

12.11.     Patriot Act.  To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account, all  in compliance with the Patriot Act.  WHAT THIS MEANS FOR YOU:  when you open an account, we will ask your name, address, date of birth, and other information that will allow us to identify you.  We may also ask to see your driver's license or other identifying documents.  Bank hereby notifies each Loan Party that pursuant to the requirements of the USA PATRIOT ACT (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "PATRIOT Act"), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow Bank to identify each Loan Party in accordance with the PATRIOT Act.  Each Loan Party shall, promptly following a request by Bank, provide all documentation and other information that Bank reasonably requests in order to comply with its ongoing obligations under applicable "know your customer" and anti-money laundering rules and regulations, including the PATRIOT Act.  Bank will require each Loan Party to provide identifying information about each beneficial owner or individuals who have significant responsibility to control, manage or direct the legal entity.

12.12.    Reinstatement.  This Agreement shall remain in full force and effect and continue to be effective should any petition be filed by or against Loan Party for liquidation or reorganization, should Loan Party become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of any Loan Party's assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Obligations, whether as a "voidable preference", "fraudulent conveyance", or otherwise, all as though such payment or performance had not been made.  In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned and Bank's Lien security such Obligations shall be effective, revived and remain in full force and effect, in each case as if such payment or performance had not been made.  If, prior to any of the foregoing, Bank's Lien shall have been released or terminated or any provision of this Agreement shall have been terminated or cancelled, then Bank's Liens, or such provision of this Agreement, shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligation of any Loan Party in respect of such liability or any Collateral securing such liability.  This provision shall survive the termination of this Agreement and Payment in Full of the Obligations.

12.13.    Acknowledgment Regarding Any Supported QFCs.  To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Hedging Agreement or any other agreement or instrument that is a QFC (such support, "QFC Credit Support" and each such QFC a "Supported QFC"), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the "U.S. Special Resolution Regimes") in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York or of the United States or any other state of the United States):

(a)          In the event a Covered Entity that is party to a Supported QFC (each, a "Covered Party") becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.