Exhibit 10.1
Imperalis Holding Corp., a Nevada Corporation
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT
is entered into with an effective date as of August 15, 2023, by and between Xxxx Alliance, Inc., a Delaware corporation (“AAI”)
and Imperalis Holding Corp., d/b/a TurnOnGreen, Inc., Nevada corporation (“Borrower”).
RECITALS
WHEREAS, AAI, through its
subsidiary, has previously loaned Borrower, inclusive of $233,000 related to the allocation of corporate overhead, One Million Eighty
Thousand Four Hundred Fifty-Eight Dollars and Twenty-Eight Cents ($1,080,458.28) in the aggregate schedule on Exhibit D attached
hereto (the “Prior Loans”);
WHEREAS, Xxxxxxxx wishes to
seek, and AAI wishes to grant, an increase in additional credit of Nine Hundred Nineteen Thousand Five Hundred Forty-One Dollars and Seventy-Two
Cents ($919,541.72), which would represent an aggregate loan amount of Two Million Dollars ($2,000,000);
WHEREAS, in consideration
of the increase in additional maximum credit, inclusive of the Prior Loans, of up to $2,000,000, AAI and the Borrower wishes to terminate
the Prior Loans and enter into this Agreement and to make other changes to the terms of the issuance of credit; and
WHEREAS, XXX and Xxxxxxxx
have agreed to enter into this Agreement to memorialize their understanding regarding their respective rights and obligations with respect
to this Agreement and the Loan as such term is defined herein.
AGREEMENT
NOW; THEREFORE, in consideration
of the making of the Loan and the covenants, agreements, representations and warranties set forth in this Agreement and the other Loan
Documents as defined herein, the receipt and legal sufficiency of which hereby are acknowledged, the parties hereby covenant, agree, represent
and warrant as follows:
1. DEFINITIONS
AND CONSTRUCTION.
1.1 Definitions.
As used in this Agreement, the following terms shall have the following definitions:
“AAI Expenses”
means all reasonable costs or expenses (including reasonable attorneys’ fees and expenses, whether generated in-house or by outside
counsel) incurred in connection with the preparation, negotiation, administration, and enforcement of the Loan Documents; reasonable annual
Collateral audit fees; and AAI’s reasonable attorneys’ fees and expenses (whether generated in-house or by outside counsel)
incurred in amending, enforcing or defending the Loan Documents (including fees and expenses of appeal), incurred before, during and after
an Insolvency Proceeding, whether or not suit is brought.
“Advance”
or “Advances” means a cash advance or cash advances under the Non-Revolving Line.
“Affiliate”
means, with respect to any Person, any Person that owns or controls directly or indirectly such Person, any Person that controls or is
controlled by or is under common control with such Person, and each of such Person’s senior executive officers, directors, and partners.
“Borrower’s
Books” means all of Xxxxxxxx’s books and records including: ledgers; records concerning Xxxxxxxx’s assets or liabilities,
the Collateral, business operations or financial condition; and all computer programs, or tape files, and the equipment, containing such
information.
“Business Day”
means any day that is not a Saturday, Sunday, or other day on which national and state banks located in the State of New York are authorized
or required to close.
“Cash”
means cash and cash equivalents.
“Change in Control”
shall mean a transaction in which any “person” or “group” (within the meaning of Section 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934), directly or indirectly, of a sufficient number of shares of all classes of stock then outstanding of Borrower ordinarily
entitled to vote in the election of directors, empowering such “person” or “group” to elect a majority of the
Board of Directors of Xxxxxxxx, who did not have such power before such transaction.
“Closing Date”
means the date of this Agreement.
“Code”
means the Uniform Commercial Code, as amended or supplemented from time to time.
“Collateral”
means the property described on Exhibit A attached hereto.
“Contingent Obligation”
means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to (i) any indebtedness,
lease, dividend, letter of credit or other obligation of another, including, without limitation, any such obligation directly or indirectly
guaranteed, endorsed, co-made or discounted or sold with recourse by that Person, or in respect of which that Person is otherwise directly
or indirectly liable; (ii) any obligations with respect to undrawn letters of credit; and (iii) all obligations arising under any interest
rate, currency or commodity swap agreement, interest rate cap agreement, interest rate collar agreement, or other agreement or arrangement
designated to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; provided, however,
that the term “Contingent Obligation” shall not include endorsements for collection or deposit in the ordinary course of business.
The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determined amount of the primary obligation
in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof as determined by such Person in good faith; provided, however, that such amount shall not in any event exceed the maximum
amount of the obligations under the guarantee or other support arrangement.
“Credit Extension”
means each Advance or any other extension of credit by AAI to or for the benefit of Borrower hereunder.
“Equipment”
means all present and future machinery, equipment, tenant improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which any Borrower has any interest.
“Event of Default”
has the meaning assigned in Article 8.
“GAAP”
means generally accepted accounting principles in the United States, consistently applied, as in effect from time to time.
“Indebtedness”
means (a) all indebtedness for borrowed money or the deferred purchase price of property or services, including without limitation reimbursement
and other obligations with respect to surety bonds and letters of credit, (b) all obligations evidenced by notes, bonds, debentures or
similar instruments, (c) all capital lease obligations, and (d) all Contingent Obligations, if any.
“Insolvency Proceeding”
means any proceeding commenced by or against any Person or entity under any provision of the United States Bankruptcy Code, as amended,
or under any other bankruptcy or insolvency law, including assignments for the benefit of creditors, formal or informal moratoria, compositions,
extension generally with its creditors, or proceedings seeking reorganization, arrangement, or other relief.
“Investment”
means any beneficial ownership of (including stock, partnership or limited liability company interest other securities) any Person, or
any loan, advance or capital contribution to any Person.
“IRC” means
the Internal Revenue Code of 1986, as amended, and the regulations thereunder.
“Lien”
means any mortgage, lien, deed of trust, charge, pledge, security interest or other encumbrance.
“Liquidity”
means the sum of Xxxxxxxx’s consolidated Cash.
“Loan”
means, collectively, the Credit Extensions available to Borrower under the Loan Documents.
“Loan Documents”
means, collectively, this Agreement, the Note, and any other document, instrument or agreement entered into in connection with this Agreement,
all as amended or extended from time to time.
“Material Adverse
Effect” means a material adverse effect on (i) the business operations, or financial condition of Borrower and its Subsidiaries
taken as a whole, (ii) the ability of Borrower to repay the Obligations or otherwise perform its obligations under the Loan Documents,
(iii) Borrower’s interest in, or the value, perfection or priority of AAI’s security interest in the Collateral.
“Maturity Date”
shall mean that date that the Note becomes due and payable, which shall be five (5) Business Days after written demand for repayment is
made by AAI.
“Negotiable Collateral”
means all of Borrower’s present and future letters of credit of which it is a beneficiary, drafts, instruments (including promissory
notes), securities, documents of title, and chattel paper, and Xxxxxxxx’s Books relating to any of the foregoing.
“Non-Revolving Line”
means a Credit Extension of up to Two Million Dollars ($2,000,000) granted by AAI to Borrower.
“Note”
has the meaning given to such term in Section 3.1.
“Obligations”
means all debt, principal, interest, AAI Expenses and other amounts owed to AAI by Borrower pursuant to this Agreement or any other agreement,
whether absolute or contingent, due or to become due, now existing or hereafter arising, including any interest that accrues after the
commencement of an Insolvency Proceeding and including any debt, liability, or obligation owing from Borrower to others that AAI may have
obtained by assignment or otherwise.
“Periodic Payments”
means all installments or similar recurring payments that Borrower may now or hereafter become obligated to pay to AAI pursuant to the
terms and provisions of any instrument, or agreement, including this Agreement, now or hereafter in existence between Borrower and AAI.
“Permitted Indebtedness”
means:
(a) Indebtedness
of Borrower in favor of AAI arising under this Agreement or any other Loan Document;
(b) Indebtedness
existing on the Closing Date;
(c) Indebtedness
incurred in connection with capital leases secured by a lien described in clause (c) of the defined term “Permitted Liens;”
provided such Indebtedness does not exceed the lesser of the cost or fair market value of the equipment financed with such Indebtedness;
(d) Subordinated
Debt;
(e) Indebtedness
to trade creditors incurred in the ordinary course of business;
(f) Indebtedness
that constitutes a Permitted Investment;
(g) Guaranties
made in the ordinary course of business; and
(h) Extensions,
refinancings and renewals of any items of Permitted Indebtedness, provided that the principal amount is not increased or the terms modified
to impose more burdensome terms upon Borrower or its Subsidiary, as the case may be.
“Permitted Investment”
means:
(a) Investments
existing on the Closing Date;
(b) (i)
Marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency or any State thereof
maturing within one (1) year from the date of acquisition thereof, (ii) commercial paper maturing no more than one (1) year from the date
of creation thereof and currently having rating of at least A-2 or P-2 from either Standard & Poor’s Corporation or Xxxxx’x
Investors Service, (iii) certificates of deposit maturing no more than one year from the date of investment therein, and (iv) money market
accounts;
(c) Investments
accepted in connection with Permitted Transfers;
(d) Investments
of Subsidiaries in or to other Subsidiaries or Borrower and Investments by Borrower in Subsidiaries to fund operating expenses in the
ordinary course of business;
(e) Investments
consisting of travel advances and employee relocation loans and other employee loans and advances in the ordinary course of business;
(f) Investments
(including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement
of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of Borrower’s business;
(g) Investments
consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates,
in the ordinary course of business, provided that this subparagraph (g) shall not apply to Investments of Borrower in any Subsidiary;
and
(h) Other
Investments approved in advance and in writing by AAI in its sole discretion.
“Permitted Liens”
means the following:
(a) Any
Liens existing on the Closing Date or arising under this Agreement or the other Loan Documents;
(b) Liens
for taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate
proceedings and for which adequate reserves are maintained;
(c) Liens
incurred (i) upon or in any acquired or held by any Borrower or any of its Subsidiaries to secure the purchase price of such Equipment
or indebtedness incurred solely for the purpose of financing the acquisition or lease of such Equipment, or (ii) existing on such Equipment
at the time of its acquisition, provided that the Lien is confined solely to the property so acquired and improvements thereon, and the
proceeds of such Equipment;
(d) Liens
of materialmen, mechanics, warehousemen, carriers, landlord, artisan’s or other similar Liens arising in the ordinary course of
business or by operation of law, which are not past due or which are being contested in good faith by appropriate proceedings;
(e) Liens
which in the aggregate constitute an immaterial and insignificant monetary amount with respect to the net value of Borrower’s assets
taken as a whole;
(f) Lien
securing Subordinated Debt;
(g) Liens
securing judgments or attachments in circumstances that do not constitute an Event of Default;
(h) leases
or subleases, licenses or sublicenses granted in the ordinary course of business which do not interfere in any material respect with the
business of Borrower;
(i) Liens
in favor of custom and revenue authorities arising as a matter of law, in the ordinary course of business, to secure payment of custom
duties in connection with the import and export of goods;
(j) Liens
in favor of financial institutions arising in connection with deposit or investment accounts held at such financial institutions, provided
that such liens only secure fees and service charges associated with such accounts;
(k) deposits
in the ordinary course of business under worker’s compensation, unemployment insurance, social security and other similar laws,
or to secure the performance of bids, tenders or contracts or to secure indemnity, performance or other similar bonds for the performance
of bids, tenders or contracts or to secure statutory obligations or surety or appeal bonds;
(l) Liens
incurred in connection with the extension, renewal or refinancing of the indebtedness secured by Permitted Liens, provided that any extension,
renewal or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness
being extended, renewed or refinanced does not increase in any material respect; and
(m) Liens
arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Sections 8.5 or 8.9.
“Permitted Transfer”
means the conveyance, sale, lease, transfer or disposition by Borrower or any Subsidiary of:
(a) Inventory
in the ordinary course of business;
(b) licenses
and similar arrangements for the use of the property of Borrower or its Subsidiaries in the ordinary course of business;
(c) worn-out
or obsolete Equipment;
(d) Transfers
otherwise permitted by the terms of Section 7;
(e) sales
and transfers in the ordinary course of business, including normal intercompany business transactions; or
(f) other
assets of Borrower or its Subsidiaries that do not in the aggregate exceed One Hundred Thousand Dollars ($100,000) during any fiscal year.
“Person”
means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or government agency.
“Interest Rate”
means 10% interest, per annum.
“Responsible Officer”
means each of the Chief Executive Officer and the Chief Financial Officer of Borrower.
“Schedule”
means the schedule of exceptions attached hereto and approved by AAI, if any.
“Subordinated Debt”
means any debt incurred by Borrower that is subordinated in writing to the debt owing by Borrower to AAI on terms reasonably acceptable
to AAI (and identified as being such by Xxxxxxxx and AAI).
“Subsidiary”
means any corporation, partnership or limited liability company or joint venture in which (i) any general partnership interest or (ii)
more than fifty percent (50%) of the stock, limited liability company interest or joint venture of which by the terms thereof has the
ordinary voting power to elect the Board of Directors, managers or trustees of the entity, at the time as of which any determination is
being made, is owned by a Borrower, either directly or through an Affiliate.
“Trademarks”
means any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and like
protections, and the entire goodwill of the business of a Borrower connected with and symbolized by such trademarks.
1.2 Accounting
Terms. Any accounting term not specifically defined herein shall be construed in accordance with GAAP and all calculations shall be
made in accordance with GAAP. The term “financial statements” shall include the accompanying notes and schedules.
2. LOAN
AND TERMS OF PAYMENT.
2.1 Credit
Extensions.
(a) Promise
to Pay. Xxxxxxxx promises to pay to AAI, in lawful money of the United States of America, the aggregate unpaid principal amount of
all Credit Extensions made by AAI to Borrower, together with interest on the unpaid principal amount of such Credit Extensions at rates
in accordance with the terms hereof.
(b) Advances
Under Non Revolving Line.
(i) Amount.
Subject to and upon the terms and conditions of this Agreement and AAI’s availability of capital, as determined by AAI in its sole
and absolute discretion, Borrower may request Advances in an aggregate outstanding amount not to exceed the Non-Revolving Line. Amounts
borrowed pursuant to this Section 2.1(b) which have been repaid may not be reborrowed at any time. All Advances under this Section 2.1(b)
shall be immediately due and payable on the Maturity Date. Borrower may prepay any Advances without penalty or premium upon notice.
(ii) Form
of Request. Whenever a Borrower desires an Advance, such Borrower will notify AAI by email or telephone no later than ten (10) Business
Day prior to the date the Advance is to be made. Each such notification shall be promptly confirmed by a Payment/Advance Form in substantially
the form of Exhibit C hereto. AAI is authorized to make Advances under this Agreement, based upon instructions received from a Responsible
Officer or a designee of a Responsible Officer, or without instructions if in AAI’s discretion such Advances are necessary to meet
Obligations which have become due and remain unpaid. AAI shall be entitled to rely on any telephonic notice given by a person who AAI
reasonably believes to be a Responsible Officer or a designee thereof, and Borrower shall indemnify and hold AAI harmless for any damages
or loss suffered by AAI as a result of such reliance. AAI will evidence the amount of Advances made under this Section 2.1(b) by a Note.
2.2 Overadvances.
If the aggregate amount of the outstanding Advances exceeds the Non-Revolving Line at any time, then within fifteen (15) days (or such
longer period as AAI may grant in its sole discretion) of notice of such excess advanced, Borrower shall pay to AAI, in cash, the amount
of such excess, together with all accrued but unpaid interest on such excess.
2.3 Interest
Rates, Payments, and Calculations.
(a) Interest
Rates. Except as set forth in Section 2.3(b), the Advances shall bear interest at the rate equal to the Interest Rate.
(b) Default
Rate. If any payment is not made within ten (10) days after the date such payment is due, Borrower shall pay AAI a late fee equal
to the lesser of (i) five percent (5%) of the amount of such unpaid amount or (ii) the maximum amount permitted to be charged under applicable
law. All Obligations shall bear interest, from and after the occurrence and during the continuance of an Event of Default, at a rate equal
to five (5) percentage points above the Interest Rate applicable immediately prior to the occurrence of the Event of Default.
(c) Payments.
Interest and principal hereunder shall be due and payable on the Maturity Date. Borrower authorizes AAI, at its option, to charge such
interest, all AAI Expenses, and all Periodic Payments against the Non-Revolving Line, in which case those amounts shall thereafter accrue
interest at the rate then applicable hereunder.
(d) Computation.
All interest chargeable under the Loan Documents shall be computed on the basis of a three hundred sixty-five (365) day year for the actual
number of days elapsed.
2.4 Crediting
Payments. If no Event of Default exists, AAI shall credit a wire transfer of funds, check or other item of payment to such deposit
account or Obligation as Borrower specifies. During the existence of an Event of Default, AAI shall have the right, in its sole discretion,
to immediately apply any wire transfer of funds, check, or other item of payment AAI may receive to conditionally reduce Obligations,
but such applications of funds shall not be considered a payment on account unless such payment is of immediately available federal funds
or unless and until such check or other item of payment is honored when presented for payment. Notwithstanding anything to the contrary
contained herein, any wire transfer or payment received by AAI or for its benefit at its financial institution after 12:00 noon Pacific
time shall be deemed to have been received by AAI as of the opening of business on the immediately following Business Day. Whenever any
payment to AAI under the Loan Documents would otherwise be due (except by reason of acceleration) on a date that is not a Business Day,
such payment shall instead be due on the next Business Day, and additional fees or interest, as the case may be, shall accrue and be payable
for the period of such extension.
2.5 [Reserved]
2.6 Term.
This Agreement shall become effective on the Closing Date and, subject to Section 12.7, shall continue in full force and effect for so
long as any Obligations remain outstanding or AAI has any obligation to make Credit Extensions under this Agreement. Notwithstanding the
foregoing, AAI shall have the right to terminate its obligation to make Credit Extensions under this Agreement immediately and without
notice upon the occurrence and during the continuance of an Event of Default. After December 31, 2023, AAI will not be obligated to make
any further Advances.
3. CONDITIONS
OF LOANS.
3.1 Conditions
Precedent to Initial Credit Extension. The obligation of AAI to make the initial Credit Extension is subject to the condition precedent
that AAI shall have received, in form and substance satisfactory to AAI, the following:
(a) this
Agreement duly executed by the Borrower;
(b) a
promissory note for the outstanding amount in the form of Exhibit B duly executed by each Borrower (the “Note”);
and
(c) an
officer’s certificate of each Borrower with respect to incumbency and resolutions authorizing the execution and delivery of this
Agreement.
3.2 Conditions
Precedent to all Credit Extensions. The obligation of AAI to make each Credit Extension, including the initial Credit Extension, is
further subject to the following conditions:
(a) timely
receipt by AAI of the Payment/Advance Form as provided in Section 2.1; and
(b) the
representations and warranties contained in Section 5 shall be true and correct in all material respects on and as of the date of such
Payment/Advance Form and on the effective date of each Credit Extension as though made at and as of each such date, and no Event of Default
shall have occurred and be continuing, or would exist after giving effect to such Credit Extension (provided, however, that those representations
and warranties expressly referring to another date shall be true, correct and complete in all material respects as of such date). The
making of each Credit Extension shall be deemed to be a representation and warranty by each Borrower on the date of such Credit Extension
as to the accuracy of the facts referred to in this Section 3.2.
3.3 Cancellation
of Prior Loans and Consolidation of Advances.
(a) Subject
to all of the terms and conditions hereof and in consideration of the increase in the extension of credit to Xxxxxxxx, AAI and Borrower
agree as follows:
(i) AAI
and Xxxxxxxx agree to cancel the Prior Loans; and
(ii) AAI
will issue a new Promissory Note in the aggregate face amount of One Million Eighty Thousand Four Hundred Fifty-Eight Dollars and Twenty-Eight
Cents ($1,080,458.28) which aggregates the Prior Loans and prior advances.
4. CREATION
OF SECURITY INTEREST.
4.1 Grant
of Security Interest. Borrower grants and pledges to AAI a continuing security interest in the Collateral to secure prompt repayment
of any and all Obligations and to secure prompt performance by Borrower of its covenants and duties under the Loan Documents. Except for
Permitted Liens, such security interest constitutes a valid, first priority security interest in the presently existing Collateral, and
will constitute a valid, first priority security interest in later-acquired Collateral.
4.2 Perfection
of Security Interest. Borrower authorizes AAI to file at any time financing statements, continuation statements, and amendments thereto
that (i) specifically describing the Collateral or describe the Collateral as all assets of such Borrower of the kind pledged hereunder,
and (ii) contain any other information required by the Code for the sufficiency of filing office acceptance of any financing statement,
continuation statement, or amendment, including whether Borrower is an organization, the type of organization and any organizational identification
number issued to Borrower, if applicable. Borrower shall from time to time endorse and deliver to AAI, at the request of AAI, all Negotiable
Collateral and other documents that AAI may reasonably request, in form satisfactory to AAI, to perfect and continue perfected AAI’s
security interests in the Collateral and in order to fully consummate all of the transactions contemplated under the Loan Documents. Borrower
shall have possession of the Collateral, except where expressly otherwise provided in this Agreement or where AAI chooses to perfect its
security interest by possession in addition to the filing of a financing statement. Borrower shall take such steps as AAI reasonably requests
for AAI to obtain “control” of any Collateral consisting of investment property, deposit accounts, letter-of-credit rights
or electronic chattel paper (as such items and the term “control” are defined in Revised Article 9 of the Code) by causing
the securities intermediary or depositary institution or issuing AAI to execute a control agreement in form and substance satisfactory
to AAI. Borrower will not create any chattel paper in which Xxxxxxxx is a lessor without placing a legend on the chattel paper acceptable
to AAI indicating that AAI has a security interest in the chattel paper.
4.3 Right
to Inspect. AAI (through any of its officers, employees, or agents) shall have the right, upon reasonable prior notice, from time
to time during Borrower’s usual business hours to inspect a Borrower’s Books and to make copies thereof and to check, test,
and appraise the Collateral in order to verify such Borrower’s financial condition or the amount, condition of, or any other matter
relating to, the Collateral.
5. REPRESENTATIONS
AND WARRANTIES.
Each Borrower represents and
warrants as follows:
5.1 Due
Organization and Qualification. Borrower and each Subsidiary is duly existing under the laws of the state in which it is organized
and qualified and licensed to do business in any state in which the conduct of its business or its ownership of property requires that
it be so qualified, except where the failure to do so could not reasonably be expected to cause a Material Adverse Effect.
5.2 Due
Authorization; No Conflict. The execution, delivery, and performance of the Loan Documents are within Borrower’s powers, have
been duly authorized, and are not in conflict with nor constitute a breach of any provision contained in Borrower’s Certificate/Articles
of Incorporation or Bylaws, nor will they constitute an event of default under any material agreement by which Borrower is bound. Borrower
is not in default under any agreement by which it is bound, except to the extent such default could not reasonably be expected to cause
a Material Adverse Effect.
5.3 Collateral.
Borrower has rights in or the power to transfer the Collateral, and its title to the Collateral is free and clear of Liens, adverse claims,
and restrictions on transfer or pledge except for Permitted Liens.
5.4 Intellectual
Property. To the best of Xxxxxxxx’s knowledge, each of the copyrights, Trademarks and patents is valid and enforceable, and
no part of such intellectual property has been judged invalid or unenforceable, in whole or in part, and no claim has been made to Borrower
that any part of such intellectual property violates the rights of any third party except to the extent such claim could not reasonably
be expected to cause a Material Adverse Effect.
5.5 Legal
Name. Xxxxxxxx’s exact legal name is as set forth in the first paragraph of this Agreement.
5.6 Litigation.
There are no actions or proceedings pending by or against Borrower or any Subsidiary before any court or administrative agency in which
a likely adverse decision could reasonably be expected to have a Material Adverse Effect.
5.7 No
Material Adverse Change in Financial Statements. All consolidated and consolidating financial statements related to Borrower and any
Subsidiary that are delivered by Borrower to AAI fairly present in all material respects Borrower’s consolidated and consolidating
financial condition as of the date thereof and Xxxxxxxx’s consolidated and consolidating results of operations for the period then
ended. There has not been a material adverse change in the consolidated or in the consolidating financial condition of Borrower since
the date of the most recent of such financial statements submitted to AAI.
5.8 Solvency,
Payment of Debts. Borrower is able to pay its debts as they mature; the fair saleable value of Borrower’s assets (including
goodwill minus disposition costs) exceeds the fair value of its liabilities; and Borrower is not left with unreasonably small capital
after the transactions contemplated by this Agreement.
5.9 Compliance
with Laws and Regulations. Borrower and each Subsidiary have met the minimum funding requirements of ERISA with respect to any employee
benefit plans subject to ERISA. No event has occurred resulting from Xxxxxxxx’s failure to comply with ERISA that is reasonably
likely to result in Xxxxxxxx’s incurring any liability that could have a Material Adverse Effect. Borrower is not an “investment
company” or a company “controlled” by an “investment company” within the meaning of the Investment Company
Act of 1940. Borrower is not engaged principally, or as one of the important activities, in the business of extending credit for the purpose
of purchasing or carrying margin stock (within the meaning of Regulations T and U of the Board of Governors of the Federal Reserve System).
Xxxxxxxx has complied in all material respects with all the provisions of the Federal Fair Labor Standards Act. Borrower is in compliance
with all environmental laws, regulations and ordinances except where the failure to comply is not reasonably likely to have a Material
Adverse Effect. Borrower has not violated any statutes, laws, ordinances or rules applicable to it, the violation of which could reasonably
be expected to have a Material Adverse Effect. Borrower and each Subsidiary have filed or caused to be filed all tax returns required
to be filed, and have paid, or have made adequate provision for the payment of, all taxes reflected therein except those being contested
in good faith with adequate reserves under GAAP or where the failure to file such returns or pay such taxes could not reasonably be expected
to have a Material Adverse Effect.
5.10 Subsidiaries.
Borrower does not own any stock, partnership or membership interest or other equity securities of any Person, except for those set forth
on Schedule 5.10 attached hereto.
5.11 Government
Consents. Borrower and each Subsidiary have obtained all consents, approvals and authorizations of, made all declarations or filings
with, and given all notices to, all governmental authorities that are necessary for the continued operation of Xxxxxxxx’s business
as currently conducted, except where the failure to do so could not reasonably be expected to cause a Material Adverse Effect.
5.12 Full
Disclosure. No representation, warranty or other statement made by Borrower in any certificate or written statement furnished to AAI
taken together with all such certificates and written statements furnished to AAI contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements contained in such certificates or statements not misleading,
it being recognized by AAI that the projections and forecasts provided by Borrower in good faith and based upon reasonable assumptions
are not to be viewed as facts and that actual results during the period or periods covered by any such projections and forecasts may differ
from the projected or forecasted results.
6. AFFIRMATIVE
COVENANTS.
Borrower covenants and agrees
that, until payment in full of all outstanding Obligations (other than inchoate indemnity obligations), and for so long as AAI may have
any commitment to make a Credit Extension hereunder, such Borrower shall do all of the following:
6.1 Good
Standing and Government Compliance. Borrower shall maintain its and each of its Subsidiaries’ corporate existence and good standing
in the jurisdiction of formation, shall maintain qualification and good standing in each other jurisdiction in which the failure to so
qualify could have a Material Adverse Effect, and shall furnish to AAI the organizational identification number issued to Borrower by
the authorities of the state in which Borrower is organized, if applicable. Borrower shall meet, and shall cause each Subsidiary to meet,
the minimum funding requirements of ERISA with respect to any employee benefit plans subject to ERISA. Borrower shall comply in all material
respects with all applicable Environmental Laws, and maintain all material permits, licenses and approvals required thereunder where the
failure to do so could reasonably be expected to have a Material Adverse Effect. Borrower shall comply, and shall cause each Subsidiary
to comply, with all statutes, laws, ordinances and government rules and regulations to which it is subject, and shall maintain, and shall
cause each of its Subsidiaries to maintain, in force all licenses, approvals and agreements, the loss of which or failure to comply with
which could reasonably be expected to have a Material Adverse Effect.
6.2 [Reserved].
6.3 [Reserved].
6.4 Taxes.
Borrower shall make, and cause each Subsidiary to make, due and timely payment or deposit of all material federal, state, and local taxes,
assessments, or contributions required of it by law, including, but not limited to, those laws concerning income taxes, F.I.C.A., F.U.T.A.
and state disability, and will execute and deliver to AAI, on demand, proof satisfactory to AAI indicating that Borrower or a Subsidiary
has made such payments or deposits and any appropriate certificates attesting to the payment or deposit thereof; provided that each Borrower
or a Subsidiary need not make any payment if the amount or validity of such payment is contested in good faith by appropriate proceedings
and is reserved against (to the extent required by GAAP) by Borrower.
6.5 Insurance.
(a) Borrower,
at its expense, shall keep the Collateral insured against loss or damage by fire, theft, explosion, sprinklers, and all other hazards
and risks, and in such amounts, as ordinarily insured against by other owners in similar businesses conducted in the locations where each
Borrower’s business is conducted on the date hereof. Borrower shall also maintain liability and other insurance in an amount not
less than One Million Dollars ($1,000,000) and of a type that are customary to businesses similar to Borrower’s.
(b) All
such policies of insurance shall be in such form, with such companies, and in such amounts as reasonably satisfactory to AAI. All policies
of property insurance shall contain a AAI’s loss payable endorsement, in a form satisfactory to AAI, showing AAI as an additional
loss payee, and all liability insurance policies shall show AAI as an additional insured and specify that the insurer must give at least
30 days’ notice to AAI before canceling its policy for any reason. Upon AAI’s request, each Borrower shall deliver to AAI
certified copies of the policies of insurance and evidence of all premium payments. If no Event of Default has occurred and is continuing,
proceeds payable under any casualty policy will, at each Borrower’s option, be payable to such Borrower to replace the property
subject to the claim, provided that any such replacement property shall be deemed Collateral in which AAI has been granted a first priority
security interest. If an Event of Default has occurred and is continuing, all proceeds payable under any such policy shall, at AAI’s
option, be payable to AAI to be applied on account of the Obligations.
6.6 Additional
Filings. Borrower shall use its best efforts, to the extent requested by the AAI, to execute any documents necessary in order to consummate
the transactions contemplated in this Agreement including without limitation, UCC-1 Financial Statement(s) filed in the State of Nevada.
7. NEGATIVE
COVENANTS.
Borrower covenants and agrees
that, until the outstanding Obligations (other than inchoate indemnity obligations) are paid in full, Borrower will not do any of the
following without AAI’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 of its
Subsidiaries to Transfer, all or any part of its business or property, other than Permitted Transfers. Borrower will not engage in any
bulk sale of all or substantially all of its assets.
7.2 Change
in Name, Location, Executive Office, or Executive Management; Change in Business; Change in Fiscal Year. Change its name or its jurisdiction
of formation or relocate its chief executive office without prior written notification to AAI; hire or fire any executive officer; 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 each Borrower; change its fiscal year end.
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 or into a Borrower), 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 Million Dollars ($1,000,000) 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 prior to its scheduled maturity or take any actions which impose on each Borrower an
obligation to prepay any Indebtedness prior to its scheduled maturity, except Indebtedness to AAI.
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.
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 (i) Borrower may pay dividends in capital stock, and (ii) Borrower may make dividends or distributions to AAI or its Affiliates.
7.7 Investments.
Acquire or own, or make any Investment in or to any Person, or permit any of its Subsidiaries so to do, other than Permitted Investments.
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 a Borrower’s business, upon fair and reasonable terms that are no less favorable
to a Borrower than would be obtained in an arm’s length transaction with a non-affiliated Person and (ii) transactions that are
otherwise permitted pursuant to Section 7.
7.9 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.
Any one or more of the following
events shall constitute an Event of Default by Borrower under this Agreement:
8.1 Payment
Default. If Xxxxxxxx fails to pay any of the Obligations when due.
8.2 Covenant
Default.
(a) If
Borrower fails to perform any obligation under Sections 6.5 or 6.7 violates any of the covenants contained in Article 7 of this Agreement;
or
(b) If
Borrower fails or neglects to perform or observe any other material term, provision, condition, covenant contained in this Agreement,
in any of the Loan Documents, or in any other present or future agreement between Borrower and AAI and as to any default under such other
term, provision, condition or covenant that can be cured, has failed to cure such default within ten (10) Business Days after Borrower
receives notice thereof; provided, however, that if the default cannot by its nature be cured within such ten (10) Business Day period
or cannot after diligent attempts by Borrower be cured within such ten (10) Business Day period, and such default is likely to be cured
within a reasonable time, then Borrower shall have an additional reasonable period (which shall not in any case exceed thirty (30) days)
to attempt to cure such default, and within such reasonable time period the failure to have cured such default shall not be deemed an
Event of Default but no Credit Extensions will be made.
8.3 Material
Adverse Effect. If there occurs any Material Adverse Effect.
8.4 Attachment.
If any material portion of Borrower’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 a Borrower 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 a Borrower’s assets, or if a notice of lien, levy, or assessment is filed
of record with respect to any of Borrower’s 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 a 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 a Borrower (provided that no Credit Extensions will be made during such cure period).
8.5 Insolvency.
If Xxxxxxxx becomes insolvent, or if an Insolvency Proceeding is commenced by Xxxxxxxx, or if an Insolvency Proceeding is commenced against
a Borrower and is not dismissed or stayed within thirty (30) days (provided that no Credit Extensions will be made prior to the dismissal
of such Insolvency Proceeding).
8.6 Judgments.
If a judgment or judgments (not covered by insurance) for the payment of money in an amount, individually or in the aggregate, of at least
One Hundred Thousand Dollars ($100,000) shall be rendered against Borrower and shall remain unsatisfied and unstayed for a period of thirty
(30) days (provided that no Credit Extensions will be made prior to the satisfaction or stay of such judgment).
8.7 Change
in Control. If a Change in Control occurs.
8.8 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 AAI by any Responsible Officer pursuant to this Agreement or to induce AAI to enter into this Agreement
or any other Loan Document.
9. AAI’S
RIGHTS AND REMEDIES.
9.1 Rights
and Remedies. Upon the occurrence and during the continuance of an Event of Default, AAI 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 Xxxxxxxx:
(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 8.6, all Obligations shall become immediately due and payable without
any action by AAI);
(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 AAI;
(c) Settle
or adjust disputes and claims directly with account debtors for amounts, upon terms and in whatever order that AAI reasonably considers
advisable;
(d) Make
such payments and do such acts as AAI considers necessary or reasonable to protect its security interest in the Collateral. Xxxxxxxx agrees
to assemble the Collateral if AAI so requires, and to make the Collateral available to AAI as AAI may designate. Borrower authorizes AAI
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 AAI’s determination appears to be prior or superior to
its security interest and to pay all expenses incurred in connection therewith. With respect to any of Xxxxxxxx’s owned premises,
Borrower hereby grants AAI a license to enter into possession of such premises and to occupy the same, without charge, in order to exercise
any of AAI’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 Borrower held by AAI, and (ii) indebtedness at any time owing
to or for the credit or the account of Borrower held by AAI;
(f) Ship,
reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell (in the manner provided for herein)
the Collateral. AAI is hereby granted a license or other right, solely pursuant to the provisions of this Section 9.1, to use, without
charge, Borrower’s 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 AAI’s exercise of its rights under this Section 9.1, Borrower’s
rights under all licenses and all franchise agreements shall inure to AAI’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 on terms, in
such manner and at such places (including Borrower’s premises) as AAI determines is commercially reasonable, and apply any proceeds
to the Obligations in whatever manner or order AAI deems appropriate. AAI may sell the Collateral without giving any warranties as to
the Collateral. AAI 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 AAI sells any of the Collateral upon credit, Borrower will be credited
only with payments actually made by the purchaser, received by AAI, and applied to the indebtedness of the purchaser. If the purchaser
fails to pay for the Collateral, AAI may resell the Collateral and Borrower shall be credited with the proceeds of the sale;
(h) AAI
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 Borrower, 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.
AAI 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, Borrower hereby irrevocably appoints
AAI (and any of AAI’s designated officers, or employees) as Xxxxxxxx’s true and lawful attorney to: (a) send requests for
verification of Accounts or notify account debtors of AAI’s security interest in the Accounts; (b) endorse Xxxxxxxx’s name
on any checks or other forms of payment or security that may come into AAI’s possession; (c) sign Xxxxxxxx’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 Xxxxxxxx’s policies of insurance; and (f) settle and adjust disputes and claims respecting the accounts directly with account
debtors, for amounts and upon terms which AAI determines to be reasonable. The appointment of AAI as Xxxxxxxx’s attorney in fact,
and each and every one of AAI’s rights and powers, being coupled with an interest, is irrevocable until all of the Obligations (other
than inchoate indemnity obligations) have been fully repaid and performed and AAI’s obligation to provide Credit Extensions hereunder
is terminated.
9.3 Accounts
Collection. At any time after the occurrence and during the continuance of an Event of Default, AAI may notify any Person owing funds
to Borrower of AAI’s security interest in such funds and verify the amount of such Account. Borrower shall collect all amounts owing
to Borrower for AAI, receive in trust all payments as AAI’s trustee, and immediately deliver such payments to AAI in their original
form as received from the account debtor, with proper endorsements for deposit.
9.4 AAI
Expenses. If Borrower fail 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 AAI may do any or all of the following after reasonable notice to Borrower: (a) make payment of
the same or any part thereof; (b) set up such reserves under the Revolving Line as AAI deems necessary to protect AAI from the exposure
created by such failure; or (c) 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 AAI deems prudent. Any amounts so paid or deposited by AAI shall constitute AAI Expenses,
shall be immediately due and payable, and shall bear interest at the then applicable rate hereinabove provided, and shall be secured by
the Collateral. Any payments made by AAI shall not constitute an agreement by AAI to make similar payments in the future or a waiver by
AAI of any Event of Default under this Agreement.
9.5 AAI’s
Liability for Collateral. AAI 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 Borrower.
9.6 No
Obligation to Pursue Others. AAI has no obligation to attempt to satisfy the Obligations by collecting them from any other Person
liable for them and AAI may release, modify or waive any collateral provided by any other Person to secure any of the Obligations, all
without affecting AAI’s rights against Xxxxxxxx. Borrower waives any rights they may have to require AAI to pursue any other Person
for any of the Obligations.
9.7 Remedies
Cumulative. AAI’s rights and remedies under this Agreement, the Loan Documents, and all other agreements shall be cumulative.
AAI shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law, or in equity. No exercise by
AAI of one right or remedy shall be deemed an election, and no waiver by AAI of any Event of Default on Borrower’s part shall be
deemed a continuing waiver. No delay by AAI shall constitute a waiver, election, or acquiescence by it. No waiver by AAI shall be effective
unless made in a written document signed on behalf of AAI and then shall be effective only in the specific instance and for the specific
purpose for which it was given. Borrower expressly agrees that this Section may not be waived or modified by AAI by course of performance,
conduct, estoppel or otherwise.
9.8 Demand;
Protest. Except as otherwise provided in this Agreement, Xxxxxxxx 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, or by email to Borrower or to AAI, as the case may be, at its addresses set forth below:
If to Borrower: |
Imperalis Holding Corp. |
|
0000 XxXxxxxx Xxxx. |
|
Milpitas, CA 95035 |
|
Attn: Xxxx Xxxx |
|
Email: |
|
|
If to AAI: |
00000 Xxxxxxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000 |
|
Las Vegas, NV 89141 |
|
Attn: Xxxxxxx Xxxxx |
|
Email: |
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.
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. Borrower
and AAI hereby submits to the exclusive jurisdiction of the state and Federal courts located in the County of New York, State of New York.
THE UNDERSIGNED ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY MAY BE WAIVED UNDER CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW,
EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER CHOICE, KNOWINGLY AND VOLUNTARILY,
AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR ANY OTHER DOCUMENT, INSTRUMENT OR AGREEMENT BETWEEN THE UNDERSIGNED 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 Xxxxxxxx without AAI’s prior written consent, which consent may be granted or withheld in
AAI’s sole discretion. AAI shall have the right without the consent of or notice to Borrower to sell, transfer, negotiate, or grant
participation in all or any part of, or any interest in, AAI’s obligations, rights and benefits hereunder.
12.2 Indemnification.
Borrower shall defend, indemnify and hold harmless AAI and its officers, employees, and agents against: (a) all obligations, demands,
claims, and liabilities claimed or asserted by any other party in connection with the transactions contemplated by this Agreement; and
(b) all losses or AAI Expenses in any way suffered, incurred, or paid by AAI, its officers, employees and agents as a result of or in
any way arising out of, following, or consequential to transactions between AAI and Borrower whether under this Agreement, or otherwise
(including without limitation reasonable attorneys’ fees and expenses), except for obligations, demands, claims, liabilities and
losses caused by AAI’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 Amendments
in Writing, Integration. All amendments to or terminations of this Agreement or the other Loan Documents must be in writing. 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.
12.6 Counterparts.
This Agreement 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.
12.7 Survival.
All covenants, representations and warranties made in this Agreement shall continue in full force and effect so long as any Obligations
(other than inchoate indemnity obligations) remain outstanding or AAI has any obligation to make any Credit Extension to Borrower. The
obligations of Borrower to indemnify AAI 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 AAI have run.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed as of the date first written above.
[Signature Page to Loan and Security Agreement]