Exhibit 10.2


 




 





 


 


SECURED REVOLVING CREDIT AGREEMENT


 


by and among


 


LEXINGTONPARK PARENT CORP.


(to be renamed COWEN GROUP, INC.)


 


Borrower


 


 


and


 


 


BAYERISCHE HYPO-UND VEREINSBANK AG, NEW YORK BRANCH


 


Administrative Agent


 


 


Dated as of November 2, 2009


 


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
  1.1

  	
  Defined Terms

  	
   

  
	
   

  	
  1.2

  	
  Accounting Terms

  	
  17

  
	
  2.

  	
  REVOLVING CREDIT LOANS; LETTER OF CREDIT

  	
  18

  
	
   

  	
  2.1

  	
  The Revolving Commitment

  	
  18

  
	
   

  	
  2.2

  	
  Manner of Borrowing

  	
  18

  
	
   

  	
  2.3

  	
  Minimum Loan Amounts

  	
  20

  
	
   

  	
  2.4

  	
  Funding

  	
  20

  
	
   

  	
  2.5

  	
  Interest Rate

  	
  20

  
	
   

  	
  2.6

  	
  Determination of Rate

  	
  20

  
	
   

  	
  2.7

  	
  Unused Commitment Fee

  	
  21

  
	
   

  	
  2.8

  	
  Letter of Credit Fee

  	
  21

  
	
   

  	
  2.9

  	
  Letter of Credit

  	
  21

  
	
   

  	
  2.10

  	
  Fronting Loans

  	
  22

  
	
  3.

  	
  PAYMENT OF OBLIGATIONS

  	
  23

  
	
   

  	
  3.1

  	
  Evidence of Debt

  	
  23

  
	
   

  	
  3.2

  	
  Payment of Obligation

  	
  23

  
	
   

  	
  3.3

  	
  Payment of Interest

  	
  23

  
	
   

  	
  3.4

  	
  Payments on the Obligations

  	
  23

  
	
   

  	
  3.5

  	
  Voluntary Prepayments

  	
  24

  
	
   

  	
  3.6

  	
  Mandatory Prepayments

  	
  24

  
	
   

  	
  3.7

  	
  Reduction or Early Termination of Commitments

  	
  24

  
	
   

  	
  3.8

  	
  Lending Office

  	
  25

  
	
   

  	
  3.9

  	
  Currency of Payment

  	
  25

  
	
  4.

  	
  CHANGE IN CIRCUMSTANCES

  	
  25

  
	
   

  	
  4.1

  	
  Increased Cost and Reduced Return

  	
  25

  
	
   

  	
  4.2

  	
  Limitation on Types of Loans

  	
  26

  
	
   

  	
  4.3

  	
  Illegality

  	
  26

  
	
   

  	
  4.4

  	
  Treatment of Affected Loans

  	
  27

  
	
   

  	
  4.5

  	
  Compensation

  	
  27

  
	
   

  	
  4.6

  	
  Taxes

  	
  27

  
	
   

  	
  4.7

  	
  Requests for Compensation

  	
  29

  
	
  5.

  	
  SECURITY

  	
  30

  
	
   

  	
  5.1

  	
  Liens and Security Interest

  	
  30

  
	
   

  	
  5.2

  	
  Subordination of All Intercompany Loans

  	
  30

  
	
  6.

  	
  CONDITIONS PRECEDENT TO LENDING

  	
  30

  
	
   

  	
  6.1

  	
  Initial Funding Obligations of Lenders

  	
  30

  
	
   

  	
  6.2

  	
  All Loans

  	
  32

  



 

















 


	
  7.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  32

  
	
   

  	
  7.1

  	
  Organization and Qualification

  	
  32

  
	
   

  	
  7.2

  	
  Authority Relative to the Loan Documents; Board Action

  	
  33

  
	
   

  	
  7.3

  	
  No Violation

  	
  33

  
	
   

  	
  7.4

  	
  Consents and Approvals

  	
  33

  
	
   

  	
  7.5

  	
  Enforceable Obligations

  	
  34

  
	
   

  	
  7.6

  	
  Priority of Liens

  	
  34

  
	
   

  	
  7.7

  	
  Capital Stock

  	
  34

  
	
   

  	
  7.8

  	
  Subsidiaries

  	
  34

  
	
   

  	
  7.9

  	
  Absence of Certain Changes or Events

  	
  34

  
	
   

  	
  7.10

  	
  Reports and Financial Statements; Undisclosed Liabilities

  	
  35

  
	
   

  	
  7.11

  	
  Litigation

  	
  36

  
	
   

  	
  7.12

  	
  Compliance with Applicable Laws and Permits

  	
  36

  
	
   

  	
  7.13

  	
  Significant Agreements

  	
  37

  
	
   

  	
  7.14

  	
  Event of Default

  	
  38

  
	
   

  	
  7.15

  	
  Insurance

  	
  38

  
	
   

  	
  7.16

  	
  Employee Benefit Plans

  	
  38

  
	
   

  	
  7.17

  	
  Taxes

  	
  39

  
	
   

  	
  7.18

  	
  Properties

  	
  40

  
	
   

  	
  7.19

  	
  Intellectual Property

  	
  41

  
	
   

  	
  7.20

  	
  Transactions with Affiliates

  	
  41

  
	
   

  	
  7.21

  	
  Investment Contracts and Clients

  	
  42

  
	
   

  	
  7.22

  	
  Accuracy of Loan Documents and Information

  	
  42

  
	
   

  	
  7.23

  	
  Accounting Records; Internal Controls

  	
  42

  
	
   

  	
  7.24

  	
  Fiscal Year

  	
  42

  
	
   

  	
  7.25

  	
  Investment Company Act

  	
  42

  
	
   

  	
  7.26

  	
  Margin Stock

  	
  43

  
	
   

  	
  7.27

  	
  Anti-money Laundering

  	
  43

  
	
  8.

  	
  AFFIRMATIVE COVENANTS

  	
  43

  
	
   

  	
  8.1

  	
  Financial Statements and Other Reports

  	
  43

  
	
   

  	
  8.2

  	
  Access to Information

  	
  45

  
	
   

  	
  8.3

  	
  Maintenance of Existence and Rights

  	
  46

  
	
   

  	
  8.4

  	
  Compliance with Law

  	
  46

  
	
   

  	
  8.5

  	
  Payment of Taxes

  	
  46

  
	
   

  	
  8.6

  	
  Notice of Default

  	
  46

  
	
   

  	
  8.7

  	
  Compliance with Loan Documents

  	
  46

  
	
   

  	
  8.8

  	
  Books and Records; Access

  	
  46

  
	
   

  	
  8.9

  	
  Operations and Properties

  	
  47

  
	
   

  	
  8.10

  	
  Insurance

  	
  47

  
	
   

  	
  8.11

  	
  Maintenance of Liens

  	
  47

  
	
   

  	
  8.12

  	
  Net Investment Balance

  	
  47

  
	
  9.

  	
  NEGATIVE COVENANTS

  	
  47

  
	
   

  	
  9.1

  	
  Agreements

  	
  47

  
	
   

  	
  9.2

  	
  ERISA Compliance

  	
  47

  
	
   

  	
  9.3

  	
  Restricted Payments

  	
  48

  



 


ii

















 


	
   

  	
  9.4

  	
  Incurrence of Additional Debt

  	
  48

  
	
   

  	
  9.5

  	
  Limitation on Liens

  	
  48

  
	
   

  	
  9.6

  	
  Merger, Consolidation or Sale of Assets

  	
  48

  
	
   

  	
  9.7

  	
  Transactions with Affiliates

  	
  49

  
	
   

  	
  9.8

  	
  Financial Condition

  	
  49

  
	
   

  	
  9.9

  	
  Changes in Accounting Principles

  	
  50

  
	
   

  	
  9.10

  	
  Fiscal Year

  	
  50

  
	
   

  	
  9.11

  	
  Intellectual Property

  	
  50

  
	
   

  	
  9.12

  	
  Use of Proceeds

  	
  50

  
	
   

  	
  9.13

  	
  Additional Reporting Requirements

  	
  50

  
	
   

  	
  9.14

  	
  Board Approval

  	
  50

  
	
  10.

  	
  EVENTS OF DEFAULT

  	
  50

  
	
   

  	
  10.1

  	
  Events of Default

  	
  50

  
	
   

  	
  10.2

  	
  Remedies upon Event of Default with Respect to the Borrower

  	
  52

  
	
  11.

  	
  THE ADMINISTRATIVE AGENT

  	
  52

  
	
   

  	
  11.1

  	
  Appointment and Authorization of the Administrative Agent

  	
  52

  
	
   

  	
  11.2

  	
  Delegation of Duties

  	
  53

  
	
   

  	
  11.3

  	
  Liability of the Administrative Agent

  	
  53

  
	
   

  	
  11.4

  	
  Reliance by Administrative Agent

  	
  53

  
	
   

  	
  11.5

  	
  Notice of Default

  	
  54

  
	
   

  	
  11.6

  	
  Credit Decision; Disclosure of Information by the
  Administrative Agent

  	
  54

  
	
   

  	
  11.7

  	
  Indemnification of the Administrative Agent

  	
  54

  
	
   

  	
  11.8

  	
  The Administrative Agent in its Individual Capacity

  	
  55

  
	
   

  	
  11.9

  	
  Successor Administrative Agent

  	
  55

  
	
   

  	
  11.10

  	
  The Administrative Agent May File Proofs of Claim

  	
  56

  
	
   

  	
  11.11

  	
  Collateral Matters

  	
  56

  
	
  12.

  	
  THE ISSUING BANK

  	
  56

  
	
   

  	
  12.1

  	
  Appointment

  	
  56

  
	
   

  	
  12.2

  	
  Nature of Duties

  	
  56

  
	
   

  	
  12.3

  	
  Lack of Reliance on the Issuing Bank

  	
  57

  
	
   

  	
  12.4

  	
  Certain Rights of the Issuing Bank

  	
  57

  
	
   

  	
  12.5

  	
  Reliance

  	
  57

  
	
   

  	
  12.6

  	
  Indemnification

  	
  57

  
	
   

  	
  12.7

  	
  The Issuing Bank in Its Individual Capacity

  	
  58

  
	
   

  	
  12.8

  	
  Resignation by the Issuing Bank

  	
  58

  
	
  13.

  	
  MISCELLANEOUS

  	
  58

  
	
   

  	
  13.1

  	
  Amendments and Waivers; Voting Rights

  	
  58

  
	
   

  	
  13.2

  	
  Setoff

  	
  59

  
	
   

  	
  13.3

  	
  Payments Set Aside

  	
  59

  
	
   

  	
  13.4

  	
  Waiver

  	
  60

  
	
   

  	
  13.5

  	
  Payment of Expenses

  	
  60

  
	
   

  	
  13.6

  	
  Indemnification by Borrower

  	
  60

  
	
   

  	
  13.7

  	
  Notice

  	
  61

  



 


iii

















 


	
   

  	
  13.8

  	
  Governing Law

  	
  61

  
	
   

  	
  13.9

  	
  Choice of Forum; Consent to Service of Process and
  Jurisdiction; Waiver of Trial by Jury

  	
  61

  
	
   

  	
  13.10

  	
  Invalid Provisions

  	
  62

  
	
   

  	
  13.11

  	
  Entirety

  	
  62

  
	
   

  	
  13.12

  	
  Successors and Assigns

  	
  62

  
	
   

  	
  13.13

  	
  Maximum Interest

  	
  64

  
	
   

  	
  13.14

  	
  Confidentiality

  	
  64

  
	
   

  	
  13.15

  	
  Headings

  	
  65

  
	
   

  	
  13.16

  	
  Survival

  	
  65

  
	
   

  	
  13.17

  	
  USA Patriot Act Notice

  	
  65

  
	
   

  	
  13.18

  	
  Multiple Counterparts; Facsimile Execution

  	
  65

  



 


Exhibits


 


	
  A

  	
   

  	
  Letter
  of Credit in the stated amount of $6,745,569.00

  
	
  B

  	
   

  	
  Request
  for Borrowing

  
	
  C

  	
   

  	
  Rollover
  Notice/Conversion Notice

  
	
  D

  	
   

  	
  Note

  
	
  E-1

  	
   

  	
  Security
  Agreement (Borrower)

  
	
  E-2

  	
   

  	
  Security
  Agreement (Exchange Sub)

  
	
  F

  	
   

  	
  Opinion
  of Willkie Farr & Gallagher LLP, counsel to the Borrower

  
	
  G

  	
   

  	
  Weekly
  Report

  



 


Schedules


 


	
  Schedule
  7.7

  	
  Capital
  Stock

  
	
  Schedule
  7.8

  	
  Subsidiaries

  
	
  Schedule
  7.9

  	
  Absence
  of Certain Change or Events

  
	
  Schedule
  7.10

  	
  Reports
  and Financial Statements

  
	
  Schedule
  7.11

  	
  Litigation

  
	
  Schedule
  7.12

  	
  Compliance
  with Applicable Laws and Permits

  
	
  Schedule
  7.13

  	
  Significant
  Agreements

  
	
  Schedule
  7.17

  	
  Taxes

  
	
  Schedule
  7.18

  	
  Properties

  
	
  Schedule
  7.19

  	
  Intellectual
  Property

  
	
  Schedule
  7.20

  	
  Transactions
  with Affiliates

  
	
  Schedule
  7.21

  	
  Investment
  Contracts and Clients

  
	
  Schedule
  9.3

  	
  Restricted
  Payments

  
	
  Schedule
  9.4

  	
  Incurrence
  of Additional Debt

  



 


iv

















 


SECURED REVOLVING CREDIT AGREEMENT


 


THIS
SECURED REVOLVING CREDIT AGREEMENT (this “Credit Agreement”
or the “Agreement”) is dated as of November 2, 2009, by and among LEXINGTONPARK PARENT CORP. (to be renamed COWEN GROUP, INC.)
(the “Borrower”), BAYERISCHE HYPO-UND
VEREINSBANK AG, NEW YORK BRANCH as administrative agent (together
with any successor appointed pursuant to Section 11.9 below, the “Administrative
Agent”), issuer of the Letter of Credit (in such capacity, the “Issuing
Bank”) and provider of Fronting Loans (in such capacity, the “Fronting
Lender”) and the several banks and other financial institutions from time
to time party hereto, whether as original signatories or pursuant to Section 13.12
(each, a “Lender” and collectively, the “Lenders”) (the “Lenders”
and together with the Administrative, and Issuing Bank, and the Fronting Bank,
each a “Credit Party” and collectively, the “Credit Parties”).


 


1.             DEFINITIONS


 


1.1          Defined Terms.  For the purposes of this Credit Agreement,
unless otherwise expressly defined, the following terms shall have the
respective meanings assigned to them in this Section 1 or in the Section or
recital referred to:


 


“Accounting Principles”
means GAAP or IAS, as the case may be.


 


“Action” is defined
in Section 7.11 hereof.


 


“Administrative Agent”
is defined in the introductory paragraph hereof.


 


“Advisers Act” means
the Investment Advisers Act of 1940, as amended.


 


“Affiliate” of any
Person means any other Person that, directly or indirectly, controls or is
controlled by, or is under common control with, such Person.  For the purpose of this definition, “control”
and the correlative meanings of the terms “controlled by” and “under common
control with” mean the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting shares or partnership interests, by contract or
otherwise.


 


“Affiliate Transaction”
is defined in Section 9.7 hereof.


 


“Agreement” is
defined in the introductory paragraph hereof.


 


“Applicable Jurisdiction”
means the United States.


 


“Applicable Margin”
means, (a) with respect to LIBOR Rate Loans, three hundred fifty basis
points (3.50%) per annum, and (b) with respect to Base Rate Loans, one
hundred fifty basis points (1.50%) per annum.


 


“Asset Coverage Ratio”
as of any date of determination, the ratio of its aggregate Net Investment
Balance to its Total Outstandings.


 


[Signature
Page to Secured Revolving Credit Agreement - LexingtonPark Parent Corp.]


 

















 


“Asset Coverage Shortfall”
shall be deemed to exist when the Asset Coverage Shortfall Amount as of the end
of any calendar month is greater than zero.


 


“Asset Coverage Shortfall
Amount” means the amount that, if added to the Net Investment Balance,
would cause the Asset Coverage Ratio to equal the Minimum Asset Coverage Ratio.


 


“Asset Exchange Agreement”
means that certain Asset Exchange Agreement dated as of the date hereof by and
among RAMIUS LLC, HVB ALTERNATIVE ADVISORS LLC, BAYERISCHE HYPO- UND
VEREINSBANK AG, COWEN GROUP INC., LEXINGTONPARK PARENT CORP., and PARK EXCHANGE
LLC.


 


“Assignee” is defined
in Section 13.12(b)(ii) hereof.


 


“Assignment and
Assumption Agreement” means an Assignment and Assumption Agreement entered
into by a Lender and an Assignee, in a form mutually agreed to by the Borrower
and the Administrative Agent.


 


“Attorney Costs”
means all out-of-pocket fees and disbursements of any law firm or other
external counsel.


 


“Bank Austria” or “BA”
means Bank Austria Creditanstalt AG.


 


“Base Rate” means for
any day, a fluctuating interest rate per annum equal to the highest of (a) the
Prime Rate, (b) the Federal Funds Effective Rate plus 0.50% per annum, and
(c) the LIBOR Rate plus 1.00%, in each case as in effect for such day,
such rate to change as and when such Prime Rate or Federal Funds Effective Rate
changes.


 


“Base Rate Conversion”
shall have the meaning specified in Section 2.2(e) hereof.


 


“Base Rate Loan”
means a Loan with respect to which the interest rate is calculated by reference
to the Base Rate.


 


“Borrower” is defined
in the introductory paragraph hereof.


 


“Borrower Principal”
means any of Jeffrey Solomon, Peter A. Cohen, Morgan B. Stark or Thomas W.
Strauss, and “Borrower Principals” means, collectively, all of the foregoing
individuals.


 


“Borrowing” means (i) the
deemed issuance of the Letter of Credit or (ii) a disbursement made by the
Lender of any of the proceeds of the Loans to the Borrower.


 


“Bridge Credit Agreement”
means the Secured Revolving Credit Agreement dated as of June 4, 2009 by
and among Bayerische Hypo- und Vereinsbank AG, New York Branch as
Administrative Agent, Issuing Bank and Lender and Ramius LLC as borrower.


 


“Bridge Credit Documents”
means the Bridge Credit Agreement and the documents defined therein as “Loan
Documents”


 


2

















 


“Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks
are authorized or required by law to close under the Laws of, or are in fact
closed in, the State of New York, and if such day relates to any interest rate
determinations as to a LIBOR Rate Loan, any fundings, disbursements,
settlements and payments in respect of any such Loan, or any other dealings in
Dollars to be carried out pursuant to this Credit Agreement in respect of any
such Loan, means any such day on which dealings in deposits in Dollars are
conducted by and between banks in the interbank Eurodollar market.


 


“Capital Stock” means
(a) with respect to any Person that is a corporation, any and all shares,
interests, participations or other equivalents (however designated and whether
or not voting) of corporate stock, including, without limitation, each class of
common stock and preferred stock of such Person and (b) with respect to
any Person that is not a corporation, any and all partnership or other equity
interests of such Person.


 


“Closing Date” means November 2,
2009.


 


“Collateral” is
defined in Section 5.1 hereof.


 


“Collateral Documents”
means the security agreements, financing statements, assignments, and other
documents and instruments from time to time executed and delivered pursuant to
this Credit Agreement to grant, perfect and continue a security interest in the
Collateral and any documents or instruments amending or supplementing the same,
including, without limitation, the Security Agreement.


 


“Commitment” means (a) with
respect to each Lender, such Lender’s obligation to (i) make Loans to the
Borrower and (ii) purchase a ratable participation in Unpaid Drawings, in
each case in the amounts set forth on Schedule I and (b) with respect to
the Issuing Bank, to issue the Letters of Credit.


 


“Commitment Period”
means the period commencing on the Closing Date and ending on the Maturity
Date.


 


“Compliance Certificate”
is defined in Section 8.1(c) hereof.


 


“Confidential Information”
means all information that a Loan Party furnishes to a Credit Party, whether
written or oral, unless such Loan Party informs the recipient that such information
is not confidential or marks such information as such, other than any such
information that (i) is or becomes generally available to the public,
other than as a result of a breach of the confidentiality provisions of this
Agreement, or (ii) is or becomes available to such Person from a source
other than a Loan Party, unless such Person has actual knowledge after due
inquiry that (a) such source is bound by a confidentiality agreement or (b) such
information has been previously furnished to such Person on a confidential
basis.


 


“Constituent Documents”
means, for any entity, its constituent or organizational documents.


 


3

















 


“Continue”, “Continuation”
and “Continued” shall refer to the continuation pursuant to a Rollover
of a LIBOR Rate Loan as a LIBOR Rate Loan from one Interest Period to the next
Interest Period.


 


“Controlled Group”
means (a) the controlled group of corporations as defined in Section 1563
of the Internal Revenue Code or (b) the group of trades or businesses
under common control as defined in Section 414(b), (c) (n) or (o) of
the Internal Revenue Code, in each case of which Borrower is a part or may
become a part.


 


“Conversion Date”
means a LIBOR Conversion Date or Base Rate Conversion Date, as the context
requires.


 


“Conversion Notice”
is defined in Section 2.2(f) hereof.


 


“Convert,” “Conversion,”
and “Converted” shall refer to a conversion pursuant to Section 2.2(b) or
Section 4 hereof of one Type of Loan into another Type of Loan.


 


“Cowen” means Cowen
Holdings, Inc.


 


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


 


“Credit Parties”
means the Administrative Agent, the Issuing Bank and all Lenders.


 


“Debt” of a Person
means, at a particular time (i) indebtedness for borrowed money or for the
deferred purchase price of property or services (other than current accounts
payable arising in the ordinary course of business on terms customary in the
trade) in respect of which such Person is liable, contingently or otherwise, as
guarantor, obligor or otherwise or in respect of which such Person has
committed to assure a creditor against loss, including contingent reimbursement
obligations with respect to letters of credit, (ii) indebtedness otherwise
described in this definition guaranteed in any manner by such Person, including
guaranties in the form of an agreement to repurchase or reimburse; provided
that the amount of indebtedness otherwise described in this definition
represented by any guaranty of limited recourse shall be the lesser of the
amount of indebtedness otherwise described in this definition so guaranteed or
the value of the asset to which the recourse of such indebtedness is limited, (iii) obligations
under leases which shall have been, or should be, in accordance with GAAP,
recorded as capital leases in respect of which obligations such Person is
liable, contingently or otherwise, as obligor, guarantor or otherwise, or in
respect of which obligations such Person assures a creditor against loss, (iv) obligations
under any synthetic lease, tax retention operating lease, off-balance sheet
loan or similar off-balance sheet financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP (other than leases described in clause
(iii)), (v) any unfunded obligation of, or withdrawal liability incurred
but not paid by, such Person with respect to a Multiemployer Plan (as defined
in Section 4001(a)(3) of ERISA), (vi) net liabilities under Rate
Hedging Obligations and (vii) all accounts payable of such Person, which
are not being contested in good faith by appropriate proceedings and which are
more than one hundred twenty (120) days past due.  Notwithstanding the foregoing, Debt of a
Person shall not include any right of such Person to assume the obligations of
a borrower under a mortgage loan to pay interest on such mortgage 


 


4

















 


loan,
or the exercise of such right; provided that such right arises in
connection with such Person’s investment in such mortgage loan or in a
participation therein.


 


“Debt Ratio” is
defined in Section 9.8(b).


 


“Debtor Relief Laws”
means any applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, insolvency, fraudulent conveyance, reorganization, or similar
Laws affecting the rights, remedies, or recourse of creditors generally,
including without limitation the United States Bankruptcy Code and all
amendments thereto, as are in effect from time to time during the term of the
Loans.


 


“Default Rate” means,
on any day, the lesser of (a) the Base Rate in effect on such day, plus
the Applicable Margin, plus two percent (2%) or (b) the Maximum Rate.


 


“Dollar” and the
symbol “$” mean the lawful currency of the United States.


 


“Eligible Lender”
means (a) a Lender; (b) an Affiliate of a Lender; (c) a Related
Fund of a Lender; (d) a commercial bank organized under the laws of the
United States, or any State thereof, and having a combined capital and surplus
of at least $250,000,000; (e) a savings and loan association or savings
bank organized under the laws of the United States, or any State thereof, and
having a combined capital and surplus of at least $250,000,000; (f) a
commercial bank organized under the laws of any other country that is a member
of the Organization for Economic Cooperation and Development, or a political
subdivision of any such country, and having a combined capital and surplus of
at least $250,000,000, so long as such bank is acting through a branch or
agency located in the United States, (g) the central bank of any country
that is a member of the Organization for Economic Cooperation and Development and (h) a finance company,
insurance company or other financial institution (whether a corporation,
partnership, trust or other entity but excluding hedge funds) that is engaged
in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and having a combined capital and surplus of at
least $250,000,000.


 


“Enterprise Investment”
means the limited partnership interests of the Partnership owned by the
Borrower or any of its Subsidiaries.


 


“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended, and the rules and
regulations promulgated thereunder by any Governmental Authority, as from time
to time in effect.


 


“ERISA Affiliate” is
defined in Section 7.16(d) hereof.


 


“Event of Default” is
defined in Section 10.1 hereof.


 


“Event of Termination”
means (a) any Reportable Event; (b) the determination that a Plan is “at
risk” (within the meaning of section 302 of ERISA); (c) the failure to
meet minimum funding standards or the filing pursuant to Section 412 of
the Internal Revenue Code or ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the incurrence by
the Borrower or any member of the Controlled Group of any liability under Title
IV of ERISA with respect to the termination of any Plan; (e) the receipt
by the Borrower or any 


 


5

















 


member
of the Controlled Group from the Pension Benefit Guaranty Corporation or a plan
administrator of any notice relating to an intention to terminate any Plan or
to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any member of the Controlled Group of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (g) the
receipt by the Borrower or any member of the Controlled Group of any notice, or
the receipt by the Borrower or any member of the Controlled Group of any
notice, concerning the imposition of withdrawal liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA; (h) the present
value of all benefit liabilities under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) exceed
the fair market value of the assets of such Plan or (i) the assets of the
Borrower are treated as “plan assets” within the meaning of 29 C.F.R.
2510.3-101 as modified by section 3(42) of ERISA.


 


“Exchange Sub” means
Park Exchange LLC (to be renamed Ramius LLC).


 


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


 


“First
Tier Entities” shall mean, collectively, the Exchange Sub, the Partnership
and Cowen.


 


“Fronting Commitment”
means the obligation of the Fronting Lender to make Fronting
Loans pursuant to Section 2.10 in an aggregate principal amount at any one
time outstanding not to exceed the Commitment of Bank Austria.


 


“Fronting Lender”
means Bayerische Hypo-Und Vereinsbank AG, acting through its New York Branch.


 


“Fronting Loans” is
defined in Section 2.10(a) hereof.


 


“Fronting Participation
Amount” is defined in Section 2.11(d) hereof.


 


“Fund Consolidation Debt”
is defined in the definition of “Permitted Debt” hereof.


 


“Fund Investor” is
defined in Section 7.27 hereof.


 


“Fund Real Estate
Agreement” means any agreement, contract or commitment, oral or written, to
which any Fund that invests in real estate or real estate related securities or
assets is a party or by which it or any of its assets are bound, constituting a
mortgage, indenture, security agreement, guaranty, “keep well,” comfort letter,
pledge and other agreement or instrument relating to the borrowing of money or
the extension of credit.


 


6
















 


“GAAP” means
generally accepted accounting principles in the United States of America from
time to time.


 


“Governing Documents”
is defined in Section 7.7 hereof.


 


“Governmental Authority”
means, with respect to the Borrower, any foreign government, the United States
of America, any State of the United States of America, and any subdivision of
any of the foregoing, and any agency, department, commission, board, authority
or instrumentality, bureau, or court having jurisdiction over it or any of its
respective businesses, operations, assets, or properties.


 


“Guaranty Obligations”
of any Person means any contract, agreement or understanding of such Person
pursuant to which such Person guarantees, or in effect guarantees, any
indebtedness for borrowed money of any other Person (for purposes of this
definition, the “Primary Obligor”) in any manner, whether directly or
indirectly, including without limitation agreements: (a) to purchase such
indebtedness or any property constituting security therefor; (b) to advance
or supply funds for the purchase or payment of such indebtedness or (c) to
purchase, for a fixed or measurable amount of money, property, or securities
primarily for the purpose of assuring the holder of such indebtedness of the
ability of the Primary Obligor to make payment of the indebtedness; provided,
however, that “Guaranty Obligations” shall not include the endorsement by a
Person in the ordinary course of business of negotiable instruments or
documents for deposit or collection.


 


“HVB” means Bayerische
Hypo-und Vereinsbank AG.


 


“HVB Group Parties”
means BA, HVB and any of their respective Affiliates that are holders of common
stock of the Borrower and not direct Subsidiaries of the Borrower.


 


“HVB/Ramius Agreements”
shall mean (a) the Purchase Agreement, (b) the investment management
agreements and investment reporting agreements to which HVB or BA and any
Ramius Group Party is a party, and (c) the surviving provisions of the JV
LLC Agreement.


 


“IAS” means the
international accounting standards adopted by the International Accounting
Standards Board, as in effect from time to time.


 


“Indemnified Taxes”
are defined in Section 4.6 hereof.


 


“Indemnitee” and “Indemnitees”
are defined in Section 13.6 hereof.


 


“Intellectual Property
Rights” is defined in Section 7.19 hereof.


 


“Intercompany Loans”
means any loans from the Borrower to any other Loan Party or from any other
Loan Party to the Borrower which are (a) unsecured and are payable on
demand; (b) at the time any such intercompany loan is made and after
giving effect to such loan, both the creditor and obligor are Solvent; (c) the
obligor of such loan shall use the proceeds thereof solely for corporate
purposes arising in the ordinary course of business; (d) the entity
borrowing under such loan shall have executed and delivered to the creditor, on
the date of the funding of such loan, a demand promissory note to evidence any
such obligation owing at any time; (e) the 


 


7

















 


relevant
Loan Parties shall have recorded such intercompany transactions on their
respective books and records; and (f) no Event of Default or Potential
Default shall have occurred and be continuing after giving effect to the
incurrence of any such proposed intercompany loan.


 


“Interest Option”
means the LIBOR Rate plus the Applicable Margin, or the Base Rate plus the
Applicable Margin.


 


“Interest Payment Date”
means (i) the last day of the Interest Period for such Loan; or (ii) such
earlier date as such Loan shall mature, by acceleration or otherwise; and (c) as
to any Loan, the date of any prepayment made hereunder, as to the amount
prepaid.


 


“Interest Period”
means; (a) as to any Base Rate Loan, the last Business Day of each month,
commencing on the first of such days to occur after such Base Rate Loan is made
or after any LIBOR Rate Loan is converted to a Base Rate Loan, or such earlier
date as such Base Rate Loan shall mature, by acceleration or otherwise, and any
Conversion Date with respect to such Loan, and (b) as to any LIBOR Rate Loan,
the period commencing on the date such LIBOR Rate Loan is disbursed or
converted to or continued as a Loan and ending on the date one (1), two (2), or
three (3) months thereafter, as selected by the applicable Borrower in its
Request for Borrowing; provided, that, with respect to LIBOR Rate Loans, (i) any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest Period shall end
on the next preceding Business Day; (ii) any Interest Period that begins
on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and (iii) no
Interest Period shall extend beyond the Maturity Date.


 


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


 


“Investment Company Act”
means the Investment Company Act of 1940, as amended.


 


“Issuing Bank” is
defined in the introductory paragraph hereof.


 


“JV LLC Agreement”
means that certain Amended and Restated Limited Liability Company Agreement,
dated as of December 31, 2004, by and among Ramius HVB Partners, LLC
(n/k/a Ramius Fund of Funds Group LLC, HVB Alternative Advisors Inc.,
Bayerische-Hypo-Und Vereinsbank AG, C4S & Co., LLC, Peter Cohen,
Jeffrey Solomon, Morgan Stark and Thomas Strauss.


 


“Laws” means,
collectively, all applicable international, foreign, federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.


 


8

















 


“Lender” is defined
in the introductory paragraph hereof.


 


“Letter of Credit”
means the letter of credit issued by the Issuing Bank in the form attached
hereto as Exhibit A.


 


“Letter of Credit Fees”
is defined in Section 2.8 hereof.


 


“Letter of Credit
Outstandings” means the sum of (i) the Stated Amount of the Letter of
Credit plus (ii) the aggregate amount of all Unpaid Drawings with respect
to such Letter of Credit.


 


“Letter of Credit
Sublimit” means $7,000,000.00.


 


“LIBOR Conversion Date”
is defined in Section 2.2(f) hereof.


 


“LIBOR Rate” means
for each day during each Interest Period with respect to a LIBOR Rate Loan:


 


(a)           the applicable Screen Rate
for such Interest Period; or


 


(b)           if the applicable Screen
Rate shall not be available, the rate per annum reasonably determined by the
Administrative Agent as the rate of interest at which deposits in Dollars for
delivery on the first day of such Interest Period in Same Day Funds in the
approximate amount of the LIBOR Rate Loan being made, continued or converted by
the Administrative Agent and with a term equivalent to such Interest Period
would be offered by the Administrative Agent’s branch in London (or other
branch or Affiliate of the Administrative Agent) to major banks in the London
or other offshore interbank market for Dollars at their request at
approximately 4:00 p.m. (London time) two Business Days prior to the first
day of such Interest Period.


 


“LIBOR Rate Loan”
means a Loan that bears interest at a rate based on the LIBOR Rate.


 


“Lien” means any
lien, mortgage, security interest, pledge, encumbrance, or conditional sale or
title retention arrangement, or any other interest in property designed to
secure the repayment of indebtedness, whether arising by agreement or under
common law, any statute or otherwise.


 


“Loans” means a LIBOR
Rate Loan or a Base Rate Loan.


 


“Loan Documents”
means this Credit Agreement, the Note, if any (including any renewals,
extensions, re-issuances and refundings thereof), the Letter of Credit, each of
the Collateral Documents, any guaranty or other credit support for the Loans
for the benefit of the Lenders, and such other written agreements and
documents, and any amendments or supplements thereto or modifications thereof.


 


“Loan Parties” shall
include the Borrower and its Subsidiaries.


 


9

















 


“Loan Sublimit” means
the Total Commitment, less the amount of the Letter of Credit Outstandings.


 


“Loans” means a LIBOR
Rate Loan.


 


“Managed Accounts”
means all investment accounts with respect to which the Borrower or any of its
Affiliates serves as investment advisor.


 


“Managed Funds” means
any investment funds not directly or indirectly wholly owned by the Borrower
for which the Borrower or any of its Affiliates acts as investment advisor or
is a general partner or managing member.


 


“Managing Employee”
means (a) any of Jeffrey Solomon, Peter A. Cohen, Morgan B. Stark or
Thomas W. Strauss or (b) any other Person whom a Lender (or its
Affiliates) and the Borrower (or its Affiliates) determine in writing is a
Managing Employee.


 


“Margin Stock” shall
have the meaning assigned to such term in Regulation U.


 


“Material Adverse Effect”
means, any circumstances or events which could reasonably be expected to (i) have
any material adverse effect upon the validity or enforceability of any of the
Loan Documents executed by the Borrower or (ii) materially impair the
ability of the Borrower to fulfill its obligations under the Loan Documents.


 


“Material Jurisdictions”
is defined in Section 8.4 hereof.


 


“Material Lease” is
defined in Section 7.18(b) hereof.


 


“Maturity Date” means
the earliest of (a) the date upon which the Obligations become due and
payable after the occurrence of an Event of Default; (b) the date upon
which the Commitment terminates pursuant to Section 3.7 hereof and (c) September 29,
2011.


 


“Maximum
Rate” means, with respect to any day, the highest rate of interest (if any)
permitted by applicable Law on such day.


 


“Minimum Asset Coverage
Ratio” shall be 6.67 to 1.00, [provided, that during the period beginning
as of the Closing Date and ending as of January 4, 2010, the applicable
ratio shall be 5.00 to 1.00.


 


“Multiemployer Plan”
means any multiemployer plan as defined in section 3(37) of ERISA.


 


“Net Investment Balance”
shall mean the net asset value of the interests in the Enterprise Investment
pledged by the Borrower and Exchange Sub as collateral under the Security
Agreements, as such net asset value is derived from (i) the net asset
value of the underlying master fund reported from time to time in the Weekly
Report in the column “Equity” and (ii) the percentage interest in the
underlying master fund owned by the Partnership and the percentage interests in
the Partnership represented by such pledged interests.


 


10

















 


“Net Worth” means the
Borrower’s consolidated net worth (calculated in accordance with GAAP,
consistently applied).


 


“Note” is defined in Section 3.1
hereof.


 


“Obligations” means
all indebtedness, obligations, and liabilities of the Borrower to the Credit
Parties, and all renewals and extensions thereof, or any part thereof, arising
pursuant to this Credit Agreement (including, without limitation, the indemnity
provisions hereof) and all interest and fees accruing thereon, and Attorney
Costs incurred in the enforcement or collection thereof, regardless of whether
such indebtedness, obligations, and liabilities are direct, indirect, fixed or contingent;
together with all indebtedness, obligations, and liabilities of the Borrower to
the Credit Parties evidenced or arising pursuant to any of the other Loan
Documents, and all renewals and extensions thereof, or any part thereof.


 


“OFAC” is defined in Section 7.27
hereof.


 


“Other Taxes” is
defined in Section 4.6(b) hereof.


 


“Participant” is
defined in Section 13.12(c) hereof.


 


“Partnership” means
Ramius Enterprise LP, a Delaware limited partnership.


 


“Patriot Act” is
defined in Section 13.17 hereof.


 


“Permitted Debt”
means (a) Debt under the Loan Documents; (b) Subordinated Debt; (c) Intercompany
Debt; (d) Securities Lending Debt; (e) Debt incurred by the Borrower
or any of its Subsidiaries in connection with its propriety securities trading
business and incurred in the ordinary course of such business (all such Debt
being herein referred to as “Trading Debt”); (f) Debt that is
secured only by the assets purchased with the proceeds of such secured Debt,
whether in the form of a secured loan or capital lease (all such Debt being
referred to as “Secured Debt”); (g) Debt under any interest rate “cap”
agreement, device or arrangement or other similar Rate Hedging Obligation with
respect to the Loan Documents; (h) any Debt incurred (all such Debt being
herein referred to as “Refinancing Debt”) to refinance, extend, renew,
refund, repay, redeem or replace any Debt of a kind described in clause (f) or
(g) (the “Refinanced Debt”) in an aggregate amount not exceeding
the principal amount of the Refinanced Debt plus any required premium and fees
and expenses in connection therewith; (h) Debt incurred by any Fund or any
Subsidiary of a Fund in respect of which the Borrower or any of its
Subsidiaries has liabilities or obligations solely by virtue of its status as general
partner or investment manager of such Fund; (i) Debt incurred by any Fund
or any Subsidiary of a Fund which is included on the consolidated financial
statements of the Borrower and its Subsidiaries solely by virtue of the
Borrower being an investment advisor, general partner or managing member of
such Fund or Subsidiary of a Fund and which Debt is non-recourse to the
Borrower and its Subsidiaries (all such Debt being herein referred to as “Fund
Consolidation Debt”); (j) other unsecured Debt; provided, that no
Event of Default or Potential Default shall have occurred and be continuing
after giving effect to the incurrence of any such proposed Debt, and (k) any
Guaranties issued by the Borrower with respect to the Permitted Debt described
in clauses (b) through (k).


 


11

















 


“Permitted Liens”
means (a) Liens arising under the Collateral Documents; (b) Liens
arising in connection with Permitted Debt; (c) Liens imposed by law for
taxes that are not yet due or are being contested in good faith by appropriate
proceedings (provided that in the case of contested taxes, appropriate reserves
therefore have been established and funded on the books of the affected
Borrower); (d) carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s and other like Liens imposed by law, arising in the ordinary course
of business and Liens securing judgments (if not overdue for a period of more
than thirty (30) days or that are being contested in good faith and by
appropriate proceedings (provided that in the case of contested liens,
appropriate reserves therefore have been established and funded on the books of
the affected Borrower)); (e) Liens in favor of depositary banks and
securities intermediaries over accounts maintained by them in respect of
ordinary course charges; (f) Liens securing the performance of bids,
trade contracts (other than for Debt), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations (other than Debt) of
a like nature incurred in the ordinary course of business; (g) Liens
arising by operation of law in connection with judgments, only to the extent,
for an amount and for a period not resulting in an Event of Default with
respect thereto; (g) pledges or deposits made in the ordinary course of
business in connection with workers’ compensation, unemployment insurance and
other types of social security legislation, (h) Liens with respect to
recorded minor imperfections of title and easements, rights-of-way,
restrictions, reservations, permits, servitudes and other similar encumbrances
on real property and fixtures which do not materially interfere with the
ordinary conduct of the business conducted at any material property; (i) leases
or subleases to any other Person in the ordinary course of business; (j) Liens
in the nature of trustees’ Liens granted pursuant to any indenture governing
any Debt permitted by Section 9.4 in each case in favor of the trustee
under such indenture and securing only obligations to pay compensation to such
trustee, to reimburse its expenses and to indemnify it under the terms thereof;
(k) Liens on patents, trademarks, trade names, service marks, copyrights,
trade secrets or other intellectual property to the extent such Liens arise
from the granting of licenses thereto to or from any Person in the ordinary
course of business; and (l) Liens of fee mortgagees on real property in
which the Borrower or any of its Subsidiaries has a leasehold interest.


 


“Person” means an
individual, sole proprietorship, joint venture, association, trust, estate,
business trust, corporation, nonprofit corporation, partnership, sovereign
government or agency, instrumentality, or political subdivision thereof, or any
similar entity or organization.


 


“Plan” means any
plan, including single employer and multi-employer plans to which Title IV of
ERISA applies, or any retirement medical plan, each as established or
maintained for employees of Borrower or any member of the Controlled Group to
which Title IV of ERISA applies.


 


“Potential Default”
means any condition, act, or event which, with the giving of notice or lapse of
time or both, would become an Event of Default.


 


“Prepayment Amount”
means, with respect to the Borrower, (a) in the case of an Asset Coverage
Shortfall, the corresponding Asset Coverage Shortfall Amount, (b) in the
case of a Valuation Decline Event, all Principal Obligations outstanding to the
Borrower.


 


12

















 


“Prepayment Date”
shall mean with respect to an Asset Coverage Shortfall or a Valuation Decline
Event, the last Business Day of the second succeeding full calendar month
immediately following the calendar month in which the Weekly Report reporting
such Asset Coverage Shortfall or Valuation Decline Event was required to have
been delivered.


 


“Prepayment Event”
shall mean the occurrence and continuance of (a) an Asset Coverage
Shortfall, or (b) a Valuation Decline Event.


 


“Prime Rate” means
the rate publicly announced by the Administrative Agent from time to time as
its “prime lending rate”.


 


“Principal Outstandings”
means the aggregate outstanding principal amount of the Borrower’s Loans on
such date after giving effect to any prepayment or repayments of such occurring
on such date.


 


“Purchase Agreement”
means that certain Securities Purchase Agreement, dated as of October 1,
1999, as amended through the date hereof, by and between Ramius LLC and Bank
Austria, as the same may be amended, restated, supplemented or otherwise
modified from time to time.


 


“Ramius Advisers”
means Ramius Advisers, LLC.


 


“Ramius Securities”
means Ramius Securities, L.L.C.


 


“Rate Hedging Obligations”
of a Person means any and all obligations of such Person, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions, and modifications thereof and
substitutions therefor), under (i) any and all agreements, devices or
arrangements designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates applicable to
such party’s property, liabilities or exchange transactions, including, but not
limited to, dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or interest rate options, puts and
warrants, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any of the foregoing.


 


“Refinanced Debt” is
defined within the definition of Permitted Debt.


 


“Refinancing Debt” is
defined within the definition of Permitted Debt.


 


“Regulation T,” “Regulation
U,” and “Regulation X” means Regulation T, U, or X, as the case may
be, of the Board of Governors of the Federal Reserve System, from time to time
in effect, and shall include any successor or other regulation relating to
reserve requirements or margin requirements, as the case may be, applicable to
member banks of the Federal Reserve System.


 


“Register” is defined
in Section 13.12(b)(iii) hereof.


 


13

















 


“Related Fund” means,
with respect to a Lender that is a fund or trust that makes, buys or invests in
commercial loans, any other fund or trust that makes, buys or invests in
commercial loans and is managed by such Lender or the same investment advisor
as such Lender or by an Affiliate of such Lender or such investment advisor.


 


“Reportable Event” means any
reportable event as defined in Section 4043 of ERISA and the regulations
issued under such Section with respect to a Plan, excluding, however, such
events as to which the Pension Benefit Guaranty Corporation by regulation or by
technical update waived the requirement of Section 4043(a) of ERISA
that it be notified within 30 days of the occurrence of such event; provided that a failure to meet the minimum funding standard
of Section 412 of the Internal Revenue Code or ERISA shall be a reportable
event regardless of the issuance of any waiver in accordance with Section 412(c) of
the Internal Revenue Code or ERISA.


 


“Request for Borrowing”
is defined in Section 2.2(a) hereof.


 


“Required Lenders”
means, at any time, Lenders having in the aggregate a Voting Percentage of more
than 50% of the total Voting Percentage of all the Lenders at such time;
provided that if at any time there are two or more Lenders and a single Lender’s
Voting Percentage exceeds 50% of the total Voting Percentages, “Required
Lenders” shall be deemed to include such Lender whose Voting Percentage exceeds
50% and at least one other Lender.


 


“Rollover” means the
renewal of any LIBOR Rate Loan upon the expiration of the Interest Period with
respect thereto, pursuant to Section 2.2(e) hereof.


 


“Rollover Notice” is
defined in Section 2.2(e) hereof.


 


“Screen Rate” means,
for any Interest Period, the rate for deposits in Dollars for a period equal to
the term of the relevant Interest Period which appears on Bloomberg BBAM Page 1
as of 11:00 a.m., London time, on the day that is two Business Days
preceding the first day of the relevant Interest Period.


 


“SEC” is defined in Section 6.2(e) hereof.


 


“Secured Debt” is
defined in the definition of “Permitted Debt” hereof.


 


“Securities Exchange Act”
is defined in Section 6.2(e) hereof.


 


“Securities Lending Debt”
means debt incurred by the Borrower or Ramius Securities in connection with
certain offsetting securities lending transactions whereby the Borrower or
Ramius Securities borrows securities from one entity and then lends such
securities to another entity (with the Borrower always maintaining a matched
book between securities borrowed and securities loaned).


 


“Security Agreements”
means, collectively, the Security Agreement (Borrower) and the Security
Agreement (Exchange Sub).


 


14

















 


“Security Agreement
(Borrower)” means the Security Agreement by the Borrower in favor of the
Administrative Agent for the benefit of the Credit Parties, as such Security
Agreement (Borrower) may be amended, restated, or supplemented from time to
time.


 


“Security Agreement
(Exchange Sub)” means the Security Agreement by Exchange Sub in favor of
the Administrative Agent for the benefit of the Credit Parties, as such
Security Agreement (Exchange Sub) maybe amended, restated or supplemented from
time to time.


 


“Significant Agreement”
is defined in Section 7.13 hereof.


 


“Solvent” means, when
used with respect to any Person on any date of determination, that (i) the
fair saleable value of such Person’s assets is in excess of the total amount of
the present value of its liabilities (including for purposes of this definition
all liabilities, whether or not reflected on a balance sheet prepared in
accordance with GAAP, and whether direct or indirect, fixed or contingent,
liquidated or unliquidated, secured or unsecured, disputed or undisputed), (ii) such
Person is able to pay its debts or obligations in the ordinary course as they
mature, and (iii) such Person has capital sufficient to carry on its
business as conducted and as proposed to be conducted.  In computing the amount of contingent,
unliquidated or disputed liabilities at any time, such liabilities will be
computed at the amount which, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.


 


“Stated Amount”
means, at any time, the maximum amount available to be drawn under the Letter
of Credit (regardless of whether any conditions of drawing could then be met).


 


“Subordinated Debt”
means all Debt of the Borrower or its Subsidiaries that expressly provides that
such Debt shall be subordinated in right of payment to the Debt under this
Agreement and the Note and is subject to a subordination agreement reasonably
satisfactory to the Administrative Agent.


 


“Subsidiaries” means,
with respect to any Person, any corporation, association or other business
entity of which more than 50% of the total voting power of shares of stock or
other equity interest entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustee thereto is at the
time owned or controlled, directly or indirectly by that person or one or more
of the other Subsidiaries of that Person or a combination thereof; provided,
however, that none of the Managed Funds shall be a Subsidiary of the Borrower.


 


“Tax
Return” means any return, report, information return or other document
(including any related or supporting information and, where applicable, profit
and loss accounts and balance sheets) with respect to Taxes.


 


“Taxes” is defined in
Section 4.6(a) hereof.


 


“Total Commitment”
means for the period from the Closing Date until January 4, 2010,
$50,000,000.00, and thereafter. $25,000,000.00.


 


15

















 


“Total Outstandings”
shall mean the aggregate amount of the Principal Outstanding and the Letter of
Credit Outstanding as of any date of determination.


 


“Trading Debt” is
defined within the definition of Permitted Debt.


 


“Transaction Agreement”
means that certain Transaction Agreement and Agreement and Plan of Merger,
dated as of the date hereof, by and among Cowen Group, Inc,, LexingtonPark
Parent Corp., Lexington Merger Corp., Park Exchange LLC and Ramius LLC.


 


“Transaction Closing Date”
means the date as of which the transactions contemplated by the Asset Exchange
Agreement and the Transaction Agreement are consummated.


 


“Type of Loan” means,
with respect to a Loan, its character as a Base Rate Loan or LIBOR Rate Loan.


 


“UCC” means the
Uniform Commercial Code as adopted in the State of New York, as in effect from
time to time.


 


“Unpaid Drawings”
means the aggregate principal amount drawn under the Letter of Credit and paid
by the Issuing Bank with respect to which the Borrower has not reimbursed the Issuing
Bank.


 


“Valuation Decline Amount”
means, with respect to any period, the difference, if positive, between (a) the
Net Investment Balance of the Borrower and Exchange Sub on the first day of
such period and (b) the Net Investment Balance of the Borrower and
Exchange Sub on the last day of such period.


 


“Valuation Decline Event”
shall be deemed to have occurred upon the delivery by the Administrative Agent
of a written notice to the Borrower within thirty (30) days after the delivery
of a Weekly Report reporting the occurrence of an event described in clauses
(a)-(c) below, stating that the Principal Obligations shall be repaid due
to the occurrence of any of the following with respect to the Borrower’s and
Exchange Sub’s Net Investment Balance during the periods specified below:


 


(a)           the Valuation Decline Rate
shall exceed 10% during any one-month period; or


 


(b)           the Valuation Decline Rate
shall exceed 20% during any three-month period; or


 


(c)           the Valuation Decline Rate
shall exceed 30% during any one-year period.


 


“Valuation
Decline Rate” means, with respect to any period, a fraction, the numerator
of which equals the difference, if positive, of (a) the Valuation Decline
Amount of the Borrower and Exchange Sub minus (b) the amount paid to the
Borrower or Exchange Sub in respect of the pledged units of the Partnership
that have been redeemed or liquidated during the period, and the denominator of
which equals the Net Investment Balance of the Borrower and Exchange Sub on the
first day of such period.


 


16
















 


“Voting Percentage”
means, at any time:


 


(a)           prior to the making of the initial Loans, the percentage
which such Lender’s aggregate commitment at such time is of the total aggregate
commitments of all the Lenders at such time; and


 


(b)           on and after the making of the initial Loans, the
percentage which (i) the sum of the outstanding principal amount of such
Lender’s Loans and its ratable share of any Letter of Credit Outstandings plus
such Lenders aggregate unutilized Commitments at such time is of, (ii) the
sum of the outstanding principal amount of all Loans plus the Letter of Credit
Outstandings plus the aggregate amount of all unused Commitments at such time.


 


“Weekly Report” is
defined in Section 8.1(e) hereof.


 


Other Interpretive
Provisions.  With reference to this
Credit Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:


 


(a)           The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.


 


(b)           (i)            The words “herein,” “hereto,” “hereof”
and “hereunder” and words of similar import when used in any Loan Document
shall refer to such Loan Document as a whole and not to any particular
provision thereof.


 


(ii)           Article, Section, Exhibit and Schedule references are
to the Loan Document in which such reference appears, unless otherwise
specified.


 


(iii)          The term “including” is by way of example and not
limitation.


 


(iv)          The term “documents” includes any and all instruments,
documents, agreements, certificates, notices, reports, financial statements and
other writings, however evidenced, whether in physical or electronic form.


 


(c)           In
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to” and “until”
each mean “to but excluding;” and the word “through” means “to and including.”


 


(d)           Section headings
herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Credit Agreement
or any other Loan Document.


 


1.2          Accounting
Terms.


 


(a)           All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to
this Credit Agreement shall be prepared in conformity with, Accounting
Principles applied on a consistent basis, applied in a manner 


 


17

















 


consistent
with that used in preparing the applicable Borrower’s audited consolidated
financial statements, except as otherwise specifically prescribed herein.


 


(b)           If
at any time any change in Accounting Principles would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and the
Administrative Agent shall so request, the Borrower and the Credit Parties
shall negotiate in good faith to amend such ratio or requirement to preserve
the original intent thereof in light of such change in Accounting Principles;
provided that, until so amended, such ratio or requirement shall continue to be
computed in accordance with Accounting Principles prior to such change.


 


Rounding.  Any financial ratios required to be
maintained by a Borrower pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component; provided that if the
resulting ratio is expressed in more decimal places than the ratio given
herein, the resulting ratio shall be rounded up or down to the nearest matching
numeral in the corresponding decimal place to the ratio given herein (rounded
up if numeral to be rounded is five).


 


Times of Day.  Unless otherwise specified, all references
herein to times of day shall be references to U.S. Eastern standard time
(daylight or standard, as applicable).


 


2.                                      REVOLVING CREDIT LOANS; LETTER OF CREDIT.


 


2.1          The
Revolving Commitment.


 


(a)           Committed
Amounts.  Subject to the terms and
conditions herein set forth, each Lender agrees, from time to time during the
Commitment Period, to extend to the Borrower its ratable share of revolving
credit loans (each a “Loan”), in an aggregate principal amount not to
exceed its ratable share of the Loan Sublimit. 
Subject to the terms and conditions of this Credit Agreement, each such
Loan may be repaid and, during the Commitment Period, reborrowed.


 


(b)           Limitation
on Loans.  Notwithstanding anything
to the contrary herein contained, a Lender shall not be required to advance any
Borrowing, Conversion or Rollover to the Borrower if after giving effect to
such Borrowing, Conversion or Rollover:


 


(i)            the Total Outstandings would exceed the Total Commitment;


 


(ii)           the Lender’s Total Outstandings would exceed its
Commitment;


 


(iii)          An Asset Coverage Shortfall would exist; or


 


(iv)          an Event of Default or a Potential Default exists.


 


2.2          Manner
of Borrowing.


 


(a)           Delivery
of Request for Loan.  The Borrower
may request a Loan by delivering to the Administrative Agent notice of the date
of such requested Loan, which notice may be by telephone, if confirmed in
writing by facsimile in the form attached hereto as Exhibit 


 


18

















 


B (with blanks appropriately completed in conformity
herewith) (a “Request for Borrowing”). 
No Request for Borrowing shall be effective until a duly executed
written version thereof has been received by the Administrative Agent.  Each Request for Borrowing shall also
specify:  (i) the amount requested; (ii) whether
such Loan will be a Base Rate Loan or a LIBOR Rate Loan, and (iii) with
respect to any LIBOR Rate Loan, the Interest Period therefor.


 


(b)           Timing
of Delivery of Request for Borrowing. 
Each Request for Borrowing shall be irrevocable and effective upon
receipt by the Administrative Agent, and shall be furnished to the
Administrative Agent (i) no later than 11:00 a.m. at least three (3) Business
Days prior to the requested date of the funding of a LIBOR Rate Loan, and (ii) no
later than 11:00 am on the Business Day on which funding is requested with
respect to a Base Rate Loan.


 


(c)           Deadline
for Delivery of Request for Borrowing. 
Any Request for Borrowing received by the Administrative Agent after
11:00 a.m. shall be deemed to have been given by the Borrower on the next
succeeding Business Day.


 


(d)           Deemed
Representations and Warranties.  Each
Request for Borrowing shall be deemed to constitute a representation and
warranty by the Borrower that as of the date of such Request for Borrowing and
the date of the corresponding Loan:


 


(i)            The representations and warranties set forth in Section 7
hereof are and will be true and correct, except to the extent related to a
prior date, in all material respects both immediately before and immediately
after giving effect to such Borrowing, with the same force and effect as if
made on and as of such date;


 


(ii)           No Event of Default or, to its knowledge, Potential
Default exists and is continuing on such date;


 


(iii)          On the date of the requested Borrowing and after giving
effect to such Borrowing, the Total Outstandings will not exceed the Total
Commitment;


 


(iv)          On the date of the requested Borrowing and after giving
effect to such Borrowing, no Asset Coverage Shortfall shall exist; and


 


(v)           Each Request for Borrowing shall be irrevocable and
binding on the Borrower.


 


(e)           Rollovers.  No later than 11:00 a.m. at least (i) three
(3) Business Days prior to the termination of each Interest Period with
respect to a LIBOR Rate Loan, the Borrower shall give the Administrative Agent
written notice substantially in the form of Exhibit C attached hereto
(a “Rollover Notice”) stating whether the Borrower desires to renew such
LIBOR Rate Loan and designating the Interest Period to be applicable to such
Rollover upon the expiration of such Interest Period.  Each Rollover Notice shall be irrevocable and
effective upon notification thereof to the Administrative Agent.  If the Borrower fails to timely give the
Administrative Agent, the Borrower shall be deemed to have elected to Rollover
such Loan as an LIBOR Rate Loan with an Interest Period of one month.


 


19





















 


(f)            Conversions.  The Borrower shall have the right, with
respect to:  (i) any Base Rate Loan,
on any Business Day (a “LIBOR Conversion Date”), to convert such Base Rate Loan
to a LIBOR Rate Loan; and (ii) any LIBOR Rate Loan, on any Business Day (a
“Base Rate Conversion Date”) to convert such LIBOR Rate Loan to be a Base Loan
provided, however, that the Borrower shall make the payments required by Section 4.5
hereof by giving the Administrative Agent written notice substantially in the
form of Exhibit C attached hereto (a “Conversion Notice”) of such
selection no later than 11:00 a.m. at least (A) three (3) Business
Days prior to such LIBOR Conversion Date or (B) one (1) Business Day
prior to such Base Rate Conversion Date. 
Each Conversion Notice shall be irrevocable and effective upon
notification thereof to the Administrative Agent.


 


(g)           Notice
to Lenders.  The Administrative Agent
shall provide timely written notice to each Lender with respect to any notices
delivered to it by the Borrower pursuant to this Section 2.2.


 


2.3          Minimum Loan Amounts.  Each Base Rate Loan shall be in an amount
that is no less than $500,000 and may be in integral multiples of $100,000 in
excess thereof.  Each LIBOR Rate Loan shall
be in an aggregate amount that is not less than $1,000,000 and may be for
integral multiples of $1,000,000 in excess thereof, notwithstanding the
foregoing, that a Loan may be in an aggregate amount that is equal to the
entire unused balance of the Total Commitment.


 


2.4          Funding.  The Administrative Agent shall make the
proceeds of each Borrowing funded to it by the Lenders available to the
Borrower upon fulfillment of all applicable conditions set forth herein, by
depositing immediately available funds in an account designated by the Borrower
not later than the close of business on the borrowing date specified in the
relevant Request for Borrowing.


 


2.5          Interest
Rate.


 


(a)           Interest
Rate.  The unpaid principal amount of
each LIBOR Rate Loan shall bear interest during each Interest Period with
respect thereto at a rate per annum equal to the LIBOR Rate for the applicable
Interest Period plus the Applicable Margin.


 


(i)            The unpaid principal amount of each Base Rate Loan shall
bear interest, for each day that it is outstanding, at a rate per annum equal
to the Base Rate in effect for such day, plus the Applicable Margin.


 


(b)           Calculations
of Interest.  Interest on the unpaid
principal balance of each Loan shall be calculated on the basis of the actual
days elapsed in a year consisting of 360 days.


 


(c)           Past
Due Amounts.  If any principal of, or
interest on, any Loan is not paid when due, then (in lieu of the interest rate
provided in Section 2.5(a) above) such past due principal and
interest shall bear interest at the Default Rate.


 


2.6          Determination of
Rate.  The Administrative Agent shall
determine each interest rate applicable to the Borrowings hereunder, and its
determination thereof shall be conclusive and binding in the absence of
manifest error.


 


20

















 


2.7          Unused Commitment
Fee.  The Borrower shall pay to the
Administrative Agent for the account of the Lenders an unused commitment fee on
the average daily amount of the unused Total Commitment during the immediately
preceding calendar quarter calculated on the basis of actual days elapsed in a
year consisting of 360 days at the rate of one hundred basis points (1.00%) per
annum, payable in arrears on the fifth Business Day of each February, May, August and
November and on the Maturity Date, in each case for the period beginning
as of the first day of the immediately preceding calendar quarter and ending as
of the last day of such preceding calendar quarter or the Maturity Date, as
applicable, commencing in February, 2010 covering the period beginning as of
the Closing Date and ending as of December 31, 2009.  For the avoidance of doubt, a calendar
quarter means the period from January 1st through March 31st, April 1st
through June 30th, July 1st through September 30th, and October 1st
through December 31st, as the case may be.


 


2.8          Letter of Credit Fee.  The Borrower shall pay to the Administrative
Agent a fee for the account of the Issuing Bank on the Stated Amount of the
Letter of Credit at the rate of three hundred fifty basis points (3.50%) per
annum, payable in arrears on the fifth Business Day of each February, May, August and
November and on the Maturity Date, in each case for the period beginning
as of the first day of the immediately preceding calendar quarter and ending as
of the last day of such preceding calendar quarter or on the Maturity Date, as
applicable, commencing in February, 2010 covering the period beginning as of
the Closing Date and ending as of December 31, 2009 (the “Letter of
Credit Fees”).  For the avoidance of
doubt, a calendar quarter means the period from January 1st through March 31st,
April 1st through June 30th, July 1st through September 30th,
and October 1st through December 31st, as the case may be.


 


2.9          Letter of Credit.  Effective as of the date of the initial
funding pursuant to Section 6.1, the Letter of Credit shall be deemed to
have been issued pursuant to this Agreement, and shall be subject to the terms
and provisions hereof.


 


(a)           The
sum of the Unpaid Drawings plus the Stated Amount of the Letter of Credit may
not exceed the Letter of Credit Sublimit.


 


(b)           The
Letter of Credit issued by the Issuing Bank pursuant hereto shall have an
expiration date no later than the Maturity Date (but may provide by its terms
for automatic annual renewal unless the Issuing Bank notifies the beneficiary
that such Letter of Credit will not be renewed).


 


(c)           Prior
to the occurrence and continuance of an Event of Default, Unpaid Drawings shall
constitute, without the requirement of any further action on the part of the
Borrower, the making of a Base Rate Loan by the Lenders pursuant to Section 2.1(a).  Accordingly, upon delivery to the Lenders by
Administrative Agent of notice of the deemed advance of such Base Rate Loan,
each Lender hereby agrees to remit to the Issuing Bank funds in an amount equal
to its ratable share of such Base Rate Loan. 
Upon the occurrence and continuance of an Event of Default, Unpaid
Drawings shall be immediately due and payable.


 


(d)           The
Borrower’s obligations to reimburse the Issuing Bank with respect to Unpaid
Drawings (including, in each case, interest thereon) shall be the primary
obligation of the Borrower, absolute and unconditional under any and all
circumstances and irrespective of any 


 


21





















 


setoff,
counterclaim or defense to payment which the Borrower may have or have had
against any Lender, the Issuing Bank, the Administrative Agent or any
beneficiary of the Letter of Credit, including, without limitation, any defense
based upon the failure of any drawing under a Letter of Credit to conform to
the terms of the Letter of Credit or any non-application or misapplication by
the beneficiary of the proceeds of such drawing; provided, however, that the
Borrower shall not be obligated to reimburse the Issuing Bank for any wrongful
payment made by the Issuing Bank under a Letter of Credit as a result of acts
or omissions constituting willful misconduct or gross negligence on the part of
the Issuing Bank (as determined by a court of competent jurisdiction in a final
and non-appealable decision). 
Notwithstanding anything to the contrary set forth herein, any action
taken or omitted to be taken by the Issuing Bank under or in connection with
the Letter of Credit, if taken or omitted in the absence of the Issuing Bank’s
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision), shall not create for the
Issuing Bank any resulting liability to the Borrower.


 


(e)           The
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
the Issuing Bank, a ratable participation interest in the Letter of
Credit.  Each Lender acknowledges and
agrees that its obligation to acquire such participation pursuant to this
paragraph in respect of the Letter of Credit is absolute, irrevocable, and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of the Letter of Credit or the
occurrence and continuance of an Event of Default hereunder, or the reduction
or termination of the Commitments.  In
furtherance and not in limitation of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender’s ratable share of any Unpaid
Drawings promptly upon demand therefor by the Administrative Agent.


 


(f)            Upon
receipt by the Issuing Bank of any payments from the Borrower as payment with
respect to the Unpaid Drawings (whether in respect of interest of principal),
the Issuing Bank shall remit such proceeds to the Administrative Agent for
distribution to the Lenders.


 


(g)           The
Issuing Bank shall provide notice to the Credit Parties and Loan Parties
whenever a drawing is made under the Letter of Credit.


 


2.10        Fronting
Loans.


 


(a)           Subject
to the terms and conditions hereof, the Fronting Lender agrees, with respect to
each Base Rate Loan to be advanced to the Borrower, to fund the portion of such
Loan which is required to be funded by Bank Austria in its capacity as a Lender
pursuant to this Agreement.  The amount
so funded shall constitute a fronting loan (each, a “Fronting Loan”).


 


(b)          
The Fronting Lender shall advise Bank Austria of the making of any Fronting
Loan no later than 12:00 Noon on the Business Day immediately following the
date on which such Fronting Loan was advanced.


 


(c)           The
receipt by Bank Austria of any such notice shall constitute a request by the
Fronting Lender to Bank Austria to reimburse it for the amounts so
advanced.  Bank 


 


22





















 


Austria
shall reimburse such amount(s) to the Fronting Lender not later than 2:00 P.M.,
on the date three (3) Business Days after receipt of such notice.  Upon the reimbursement of such amount to the
Fronting Lender, the Fronting Loan shall be deemed repaid.


 


(d)           For
so long as any Fronting Loan is outstanding, the Fronting Lender shall be
entitled to all payments made by the Borrower with respect to the corresponding
portion of the Base Rate Loan.  In
consideration for the advance of such Fronting Loan, Bank Austria shall remit
to the Fronting Lender a fee equal to 0.25% of the aggregate principal amount
of the Fronting Loans with respect to each day on which a Fronting Loan is
outstanding.


 


(e)           Bank
Austria shall be deemed to have acquired from the Fronting Lender, with respect
to each Fronting Loan, an unfunded participation interest therein. Accordingly,
Bank Austria’s obligation to reimburse the Fronting Lender in an amount equal
to the outstanding Fronting Loans and/or to purchase participating interests
therein shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense
or other right that Bank Austria or the Borrower may have against the Fronting
Lender, the Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of an Event of Default, (iii) any adverse change
in the condition (financial or otherwise) of the Borrower, (iv) any breach
of this Agreement or any other Loan Document by any Loan Party, or (v) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.


 


3.                                      PAYMENT OF OBLIGATIONS


 


3.1          Evidence of Debt.  The Loans to be made by each Lender to the
Borrower hereunder shall be evidenced by the books and records of the
Administrative Agent and the Lenders, and the books and records of the
Administrative Agent shall constitute prima facie evidence of such obligations,
absent manifest error.  Notwithstanding
the foregoing, if and to the extent that a Lender shall request the issuance of
a promissory note, the Borrower shall issue a promissory note payable to such
Lender substantially in the form of Exhibit D attached hereto in
the amount of the Lender’s Commitment (with blanks appropriately completed in
conformity herewith) (each, a “Note”).


 


3.2          Payment of
Obligation.  The
principal amount of the Loans and Unpaid Drawings, together with all accrued
but unpaid interest thereon, shall, unless otherwise specified, be due and
payable by the Borrower on the Maturity Date.


 


3.3          Payment
of Interest.


 


(a)           Interest.  Interest on each Loan and any portion thereof
shall begin to accrue in accordance with the terms of this Credit Agreement on
the date of the disbursal of the proceeds of such Loan by the Administrative
Agent.


 


(b)           Interest
Payment Dates.  Accrued and unpaid
interest on the Loans shall be due and payable in arrears by the Borrower on
each Interest Payment Date; and on any past due Obligations, upon demand by the
Administrative Agent.


 


3.4          Payments on the
Obligations.  All payments
of principal of, and interest on, the Obligations owing under this Credit
Agreement by the Borrower to a Lender shall be made without condition 


 


23

















 


or deduction for any
counterclaim, defense, recoupment or setoff by the Borrower for receipt by the
Administrative Agent before 2:00 p.m. in immediately available funds.  Funds received after 2:00 p.m. shall be
treated for all purposes as having been received by the Administrative Agent on
the first Business Day next following receipt of such funds.  The Administrative Agent will provide the
Borrower with written notice of any amounts payable by the Borrower under this
Credit Agreement and any Loan Document, including interest and principal on the
Notes, and any fees, not later than three (3) Business Days prior to the
date such amounts are due; provided, however, that the Administrative Agent’s
failure to deliver such written notice discussed in this Section 3.4 shall
not relieve the Borrower of its obligation to pay such amounts.


 


3.5          Voluntary
Prepayments.  The Borrower
may, without premium or penalty, upon three (3) Business Days’ prior
written notice to the Administrative Agent delivered prior to 11:00 a.m.,
elect to prepay the principal of the Obligation then outstanding in the name of
the Borrower, in whole or in part, at any time or from time to time; provided,
however, that if such prepayment is made with respect to any LIBOR Rate Loan on
any date other than the last day of the Interest Period applicable thereto, the
Borrower shall make the payments required by Section 4.5 hereof.  All prepayments shall be made on a Business
Day.


 


3.6          Mandatory Prepayments.
 On each Prepayment Date with
respect to any Prepayment Event, the Borrower shall prepay to the
Administrative Agent for the account of the respective Lenders, an amount equal
to the corresponding Prepayment Amount. 
Any amount paid pursuant to this Section 3.6 before the Maturity
Date may, subject to the terms and conditions of this Agreement, be reborrowed.


 


3.7          Reduction
or Early Termination of Commitments.


 


(a)           So
long as no Request for Borrowing is outstanding, the Borrower may reduce the
Total Commitment, the Loan Sublimit or the Letter of Credit Sublimit by giving
prior irrevocable written notice to the Administrative Agent of such reduction
three (3) Business Days prior to the effective date of such
reduction.  The reduction or early
termination of the Total Commitment, Loan Sublimit or Letter of Credit to the
amount(s) specified in the request will be effective:  (a) in the case of termination of the
Letter of Credit, upon prepayment of all Obligations of the Borrower, together
with all interest accrued thereon, in accordance with the terms of Section 3.5
hereof; or (b) in the case of a reduction of the Letter of Credit, upon
prepayment of the amount by which the Principal Outstandings exceed the reduced
Letter of Credit Sublimit, in each case, together with all interest accrued
thereon, in accordance with the terms of Section 3.5 hereof.  All such reductions shall apply to the
Lenders on a pro rata basis.


 


(b)           Upon
the cancellation and return of the Letter of Credit, and after repayment in
full of the outstanding amount of any Unpaid Drawings, the Borrower may
terminate the Letter of Credit Sublimit.


 


(c)           Any
reduction of the Total Commitment or the Letter of Credit Sublimit shall be in
an amount equal to or greater than $500,000, or if less, the remaining amount
of the Total Commitment or Letter of Credit Sublimit.  No partial reductions of the Letter of Credit
Sublimit shall be permitted.


 


24





















 


(d)           This
Agreement may only be terminated prior to the stated term with the express
consent of the Administrative Agent, the Required Lenders and the Borrower.


 


(e)           Voluntary
and mandatory prepayments shall not effect, without consent of the Borrower,
any reduction in the Total Commitment, the Loan Sublimit or the Letter of
Credit Sublimit.


 


3.8          Lending Office.  Each Lender may:  (a) designate its principal office or a
branch, subsidiary or Affiliate as its lending office (and the office to whose
accounts payments are to be credited) for any LIBOR Rate Loan; (b) designate
its principal office or a branch, subsidiary or Affiliate as its lending office
(and the office to whose accounts payments are to be credited) for any Base
Rate Loan; and (c) change its lending offices from time to time by notice
to the Borrower.


 


3.9          Currency of Payment.  All payments made or required to be made by
the Borrower pursuant to this Credit Agreement shall be made in Dollars without
reduction, setoff or counterclaim whatsoever.


 


4.                                      CHANGE IN CIRCUMSTANCES.


 


4.1          Increased
Cost and Reduced Return.


 


(a)           Change
in Law; Increased Cost.  If any Lender
reasonably determines that as a result of the introduction after the date
hereof, or any change in or in the interpretation by any Governmental Authority
of any Law or the method by which such Lender must comply therewith after such
date, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Loans or the Issuing Bank issuing or
maintaining the Letter of Credit, or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding
for purposes of this Section 4.1(a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section 4.6
hereof shall govern); (ii) changes in the basis of taxation measured by or
imposed on net income, gross income, or net worth or capital or with respect to
franchise taxes by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or has its applicable lending office; and (iii) reserve
requirements not included in the determination of the LIBOR Rate, then such
Lender shall so advise the Administrative Agent, who shall promptly so advise
the Borrower, whereupon the Borrower shall (subject to Section 4.7 hereof
and without duplication of amounts paid or payable under Section 4.1(b) or
4.6 hereof) pay to such Lender such additional amounts, to the extent
attributable to the Obligations, as will compensate such Lender for such
increased cost or reduction (provided, however, that such amounts shall be
consistent with amounts that such Lender is generally charging other borrowers
similarly situated to the Borrower) promptly on demand.


 


(b)           Change
in Law; Reduced Return.  If any Lender
reasonably determines that the introduction after the date hereof of any Law
regarding capital adequacy or any change therein or in the interpretation by
any Governmental Authority thereof, or the method by which such Lender (or its
lending office) must comply therewith, has the effect of reducing the rate of
return on the capital of such Lender or any corporation controlling such Lender
as a consequence 


 


25





















 


of
such Lender’s obligations hereunder (taking into consideration its policies
with respect to capital adequacy and such Lender’s desired return on capital),
then such Lender shall so advise the Administrative Agent, who shall promptly
so advise the Borrower, and thereupon, the Borrower shall (subject to Section 4.7
hereof and without duplication of amount paid or payable under Section 4.1(a) or
4.6 hereof) pay to such Lender such additional amounts, as will compensate such
Lender for such reduction (provided, however, that such amounts shall be
consistent with amounts that such Lender is generally charging other borrowers
similarly situated to the Borrower), promptly on demand;


 


(c)           Compensation.  If a Lender demands compensation under this Section 4.1,
then the Borrower may at any time, upon at least three (3) Business Days’
prior notice to the Administrative Agent: 
(i) repay in full the then outstanding principal amount of such
LIBOR Rate Loan, together with accrued interest thereon to the date of
prepayment or (ii) convert such LIBOR Rate Loan to a Base Rate Loan in
accordance with the provisions of this Credit Agreement; provided, however,
that the Borrower shall be liable for any compensation due under Section 4.5
hereof in connection therewith.


 


(d)           If
any Lender changes its applicable lending office (other than pursuant to the
following sentence) and the effect of such change, as of the date of such
change, would be to cause the Borrower to become obligated to pay any
additional amount under subsection 4.1 or 4.6, the Borrower shall not be
obligated to pay such additional amount. 
If a condition or an event occurs which would, or would upon the passage
of time or giving of notice, result in the payment of any additional amount to
such Lender by the Borrower pursuant to subsection 4.1 or 4.6, the
Administrative Agent shall promptly notify the Borrower and shall take such
steps or shall request such Lender to take such steps as may reasonably be
available to mitigate the effects of such condition or event (which shall
include efforts to rebook the Loans held by such Lender at another lending
office, or through another branch or an Affiliate, of such Lender); provided
that such Lender shall not be required to take any step that, in its reasonable
judgment, would be materially disadvantageous to its business or operations or
would require it to incur additional costs (unless the Borrower agrees to
reimburse such Lender for the reasonable incremental out-of-pocket costs
thereof).


 


4.2          Limitation on Types
of Loans.  If any Lender
reasonably determines in connection with any request for a LIBOR Rate Loan or a
Conversion or Continuation thereof that: 
(a) deposits are not being offered to banks in the applicable
offshore market for the applicable amount and Interest Period of such LIBOR
Rate Loan or (b) adequate and reasonable means do not exist for
determining the LIBOR Rate for such LIBOR Rate Loan; such Lender will promptly
so notify the Administrative Agent, who will thereupon notify the
Borrower.  Thereafter, the obligation of
such Lender to make or maintain LIBOR Rate Loans shall be suspended until such
Lender revokes such notice.  Upon receipt
of such notice, the Borrower may revoke, without penalty, any pending Request
for Borrowing Conversion or Continuation of such LIBOR Rate Loans or, failing
that, may cause the Borrower to either prepay such Loans or Convert such Loans
into another Type of Loan in accordance with the terms of this Credit
Agreement.


 


4.3          Illegality.  If any Lender reasonably determines that any
Law adopted after the date hereof has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for such Lender or its
applicable lending office to make, maintain or fund LIBOR Rate Loans, or


 


26
















 


materially restricts the
authority of such Lender to purchase or sell, or to take deposits of, in the
applicable offshore market, or to determine or charge interest rates based upon
the applicable LIBOR Rate, then, on notice thereof by such Lender to the Administrative
Agent (who shall thereupon notify the Borrower) any obligation of such Lender
to make or Continue LIBOR Rate Loans or to Convert Base Rate Loans to LIBOR
Rate Loans shall be suspended until such Lender notifies the Administrative
Agent (who shall thereupon notify the Borrower) that the circumstances giving
rise to such determination no longer exist. 
Upon the prepayment of any such Loans, the Borrower shall also pay
interest on the amount so prepaid.


 


4.4          Treatment of Affected
Loans.  If the obligation of any Lender
to make or to Continue a LIBOR Rate Loan or to Convert Base Rate Loans into
LIBOR Rate Loans shall be suspended pursuant to Section 4.2 or Section 4.3
hereof, such Lender’s LIBOR Rate Loans shall be automatically Converted into
Base Rate Loans on the last day(s) of the then current Interest Period(s) for
such LIBOR Rate Loans (or, in the case of a Conversion required by Section 4.3
hereof, on such earlier date as such Lender may specify to the Borrower) and,
unless and until such Lender gives notice as provided below that the
circumstances specified in Section 4.2 or Section 4.3 hereof that
gave rise to such Conversion no longer exist:


 


(a)                                  to the extent that such Lender’s LIBOR Rate Loans have been
so Converted, all payments and prepayments of principal that would otherwise be
applied to such Lender’s LIBOR Rate Loans shall be applied instead to its Base
Rate Loans; and


 


(b)                                 all Loans that would otherwise be made or Continued by such
Lender as LIBOR Rate Loans shall be made instead as Base Rate Loans , and all
Loans of such Lender that would otherwise be Converted into LIBOR Rate Loans
shall remain as Base Rate Loans.


 


4.5          Compensation.  Upon demand of any Lender from time to time,
conveyed by delivery of a written notice to such effect to the Administrative
Agent, the Borrower shall promptly compensate such Lender for any loss, cost or
expense (excluding any loss of profit or anticipated gains) incurred by such
Lender as a result of:


 


(a)                                  any Continuation, payment or prepayment of any LIBOR Rate
Loan on a day other than the last day of the Interest Period for such Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise); or


 


(b)                                 any failure by the Borrower (for a reason other than the
failure of any Lender to make a Loan, and including, without limitation, the
failure of any condition precedent specified in Section 6 hereof to be
satisfied) to prepay, borrow, or Continue or Convert any LIBOR Rate Loan on the
date or in the amount previously designated by the Borrower.


 


4.6                               Taxes.


 


(a)                                  Indemnified Taxes.  Except as provided in this Section 4.6
hereof, or otherwise required by law, any and all payments by or for the
account of the Borrower to any Lender under any Loan Document shall be made
free and clear of and without deduction for any and all present or future
taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and all liabilities with respect thereto (all such taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings, charges
and liabilities being 


 


27





















 


referred
to herein as “Taxes”), in each case, imposed by an Applicable
Jurisdiction or any other jurisdiction from which or through which such payments
are made on behalf of or at the direction of the Borrower or in which any
shareholder of the Borrower is domiciled, excluding, in the case of any
Lender:  (i) Taxes imposed on or
measured by gross income, net income, net worth or capital and franchise Taxes
imposed in lieu of net income taxes, by the jurisdiction (or any political
subdivision thereof) under the Laws of which such Lender is organized or branch
operates (or in the case of a pass-through entity, under which any of its
beneficial owners are organized or operate); (ii) Taxes that would not
have been imposed but for a connection between such Lender (or, in the case of
a pass-through entity, any of its beneficial owners) or applicable lending
office or branch and the jurisdiction imposing such Taxes (other than a
connection arising solely from such Lender having executed, delivered,
performed its obligation under, received payment under, or enforced, the Loan
Documents); (iii) all withholding Taxes imposed by an Applicable
Jurisdiction or any political subdivision or taxing authority thereof unless
such withholding Taxes would not have been imposed but for a change in the
applicable statute, regulations or treaty occurring after the date hereof; and (iv) Taxes
imposed solely by reason of the failure of such Lender to comply with Section 4.6(d) hereof
(all such non-excluded Taxes, being hereinafter referred to as “Indemnified
Taxes”).  If the Borrower shall be
required by any Law to deduct any Indemnified Taxes from or in respect of any
sum payable under any Loan Document to any Lender, the sum payable shall be
increased as necessary so that after making all required deductions of
Indemnified Taxes (including deductions of Indemnified Taxes applicable to
additional sums payable under this Section 4.6), such Lender receives an
amount equal to the sum it would have received had no such deductions been
made, provided, however, that the Borrower shall (i) deduct and withhold
any such Taxes; (ii) pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Laws; and (iii) within
30 days after the date of such payment, furnish to such Lender the original or
a certified copy of a receipt evidencing payment thereof.


 


(b)                                 Other Taxes.  In addition, the Borrower agrees to pay any
and all present or future stamp, court or documentary taxes and any other
excise taxes or similar charges or similar levies which arise from any payment
made by it or for its account under any Loan Document or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, any
Loan Document (hereinafter referred to as “Other Taxes”).


 


(c)                                  Indemnification.  The Borrower agrees to indemnify each Lender
for:  (i) the full amount of
Indemnified Taxes and Other Taxes (including any Indemnified Taxes or Other
Taxes imposed or asserted by any jurisdiction on amounts payable under this Section 4.6)
paid by such Lender in respect of Loans made to the Borrower; and (ii) any
liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, in each case whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority, except if such penalties, interest, expenses or
liabilities arise from the gross negligence or willful misconduct of such
Lender.  Payment under this subsection
4.6(c) shall be made by the Borrower within thirty (30) days after the
date such Lender makes a demand therefor.


 


(d)                                 Prescribed Forms.  If any Lender is a “foreign corporation,
partnership or trust” within the meaning of the Internal Revenue Code of 1986
(as amended), such Lender shall deliver to the Borrower, prior to receipt of
any payment subject to withholding under the Internal 


 


28





















 


Revenue
Code of 1986 (as amended), two duly signed completed copies of either IRS Form W-8BEN
or any successor thereto (relating to such Lender (and, if a pass-through
entity, its beneficial owners) and entitling it (and, if a pass-through entity,
its beneficial owners) to an exemption from or reduction of withholding tax on
all payments to be made to such Lender by the Borrower pursuant to any Loan
Document) or IRS Form W-8ECI or any successor thereto (relating to all
payments to be made to such Lender by the Borrower pursuant to this Credit
Agreement) or such other evidence satisfactory to the Borrower that such Lender
is (and, if a pass-through entity, its beneficial owners are) entitled to an
exemption from or reduction of, U.S. withholding tax.  From time to time, each Lender (and, if a
pass-through entity, its beneficial owners) shall:  (i) promptly submit to the Borrower such
additional duly completed and signed copies of one of such forms or certificates
(or such successor forms or certificates as shall be adopted from time to time
by the relevant taxing authorities) as may then be available under then
applicable Laws and regulations to claim any available exemption from or
reduction of any withholding taxes in respect of all payments to be made to
such Lender by the Borrower pursuant to any Loan Document; (ii) promptly
notify the Borrower of any change in circumstances which would modify or render
invalid any claimed exemption or reduction of; and (iii) take such steps
as shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re-designation
of its lending office) to avoid any requirement of applicable Laws that the Borrower
make any deduction or withholding for taxes from amounts payable to such
Lender.


 


(e)                                  Evidence of Payment.  Within thirty (30) days after the date of any
payment of Indemnified Taxes or Other Taxes by the Borrower, the Borrower shall
furnish to the Administrative Agent the original or a certified copy of a
receipt evidencing such payment.


 


4.7                               Requests for Compensation.


 


(a)                                  Certificate.  In connection with any demand for payment
pursuant to Section 4.1, 4.5, or 4.6 hereof, the relevant Lender shall
provide to the Borrower a certificate (which shall be conclusive in the absence
of manifest error) setting forth in reasonable detail the basis for such
demand, the amount required to be paid by the Borrower to such Lender, the
computations made to determine such amount and satisfaction of the condition
set forth in subsection 4.7(b) below.


 


(b)                                 No Duplication.  Any amount payable by the Borrower on account
of Section 4.1, 4.5, or 4.6 hereof shall not be duplicative of:  (i) any amount paid under any other such
sections or in Section 13.6; or (ii) any amounts included in the
calculation of the LIBOR Rate.


 


(c)                                  Refund.  Any amount determined to be paid by the
Borrower in error pursuant to Section 4.1, 4.5, or 4.6 hereof and any
refund of any Indemnified Taxes or Other Taxes received by a Lender shall be,
if no Event of Default with respect to the Borrower has occurred and is
continuing, promptly refunded to the Borrower, or applied to amounts owing
hereunder, as the Borrower may elect; provided, however, that during the
existence of an Event of Default with respect to the Borrower, such amount may
be applied to repay the Borrower’s Obligations.


 


29





















 


(d)                                 Survival.  Without prejudice to the survival of any
other agreement of Borrower hereunder, the Borrower’s Obligations under this Section 4.6
shall survive the termination of the Commitments and payment in full of the
Obligations.


 


5.                                      SECURITY.


 


5.1          Liens and Security
Interest.  Pursuant to
the Collateral Documents, to secure the payment and performance of its
Obligations, (a) the Borrower shall grant to the Administrative Agent, for
the benefit of the Credit Parties, a security interest in and lien on the
Capital Stock of the Partnership now or from time to time hereafter owned by
the Borrower and (b) will cause Exchange Sub to grant to the
Administrative Agent for the benefit of the Credit Parties a security interest
in and a lien on the Capital Stock of the Partnership now or from time to time
hereafter owned by Exchange Sub (all such pledged interest in the Capital Stock
of the Partnership referred to herein as the “Collateral”).


 


5.2          Subordination of All
Intercompany Loans.  Any liens,
security interests, judgment liens, charges, or other encumbrances upon the Borrower’s
assets securing payment of Intercompany Loans, shall be and remain inferior and
subordinate in right of payment and of security to any liens, security
interests, judgment liens, charges, or other encumbrances in favor of
Administrative Agent pursuant to any of the Collateral Documents, regardless of
whether such encumbrances presently exist or are hereafter created or attached.


 


6.                                      CONDITIONS PRECEDENT TO LENDING.


 


6.1          Initial Funding
Obligations of Lenders.  The
obligation of any Lender to provide Loans to the Borrower and the obligation of
the Issuing Bank to cause the Letter of Credit to be outstanding hereunder is
subject to the satisfaction of the following conditions:


 


(a)                                  Credit Agreement.  This Credit Agreement shall have been duly
executed and delivered by the Administrative Agent, the Issuing Bank, the
Lenders and the Borrower.


 


(b)                                 Payment of Fees; Costs and Expenses.  Payment of all fees
and other amounts due and payable by the Borrower on or prior to the date
hereof, and, to the extent invoiced, reimbursement or payment of all expenses
required to be reimbursed or paid by the Borrower hereunder, including the
Attorney Costs referred to in Section 13.5, invoiced through the date
hereof, of the Administrative Agent’s special counsel;


 


(c)                                  Notes.  A Note in favor of each Lender (if requested
by such Lender) shall have been executed and delivered by the Borrower;


 


(d)                                 Security Agreement (Borrower).  A Security Agreement substantially in the
form of Exhibit E-1 hereto shall have been duly executed and
delivered by the Borrower in favor of the Administrative Agent for the benefit
of the Credit Parties;


 


(e)                                  Security Agreement (Exchange Sub).  A Security
Agreement substantially in the form of Exhibit E-2 hereto shall
have been duly executed and delivered by Exchange Sub in favor of the
Administrative Agent for the benefit of the Credit Parties.


 


30





















 


(f)                                    Resolutions (Borrower).  The Administrative Agent shall have received
resolutions of the Borrower approving the execution, delivery and performance
of this Credit Agreement, the Notes (if any), and the other Loan Documents, to
which it is a party and the transactions contemplated herein and therein,
accompanied by a certificate of a legal representative of the Borrower stating
that such resolutions are true and correct, have not been altered or repealed,
and are in full force and effect;


 


(g)                                 Resolutions (Exchange Sub).  The Administrative Agent shall have received
resolutions of Exchange Sub approving the execution, delivery and performance
of the Security Agreement (Exchange Sub) and the other Loan Documents to which
Exchange Sub is a party and the transactions contemplated therein, accompanied
by a certificate of a legal representative of Exchange Sub stating that such
resolutions are true and correct, have not been altered or repealed, and are in
full force and effect;


 


(h)                                 Authority and Incumbency Certificates.  The Administrative
Agent shall have received a signed certificate of the Borrower which attaches
the principal Constituent Documents of the Borrower and provides for the
certification of the names of the Persons authorized to sign each of the Loan
Documents and the other documents or certificates to be delivered pursuant to
the Loan Documents on behalf of the Borrower, together with the true signatures
of each such Person (it being further acknowledged and agreed that the
Administrative Agent may conclusively rely on such certificate until it shall
receive a further certificate canceling or amending the prior certificate and
submitting the signatures of the Persons named in such further certificate);


 


(i)                                     Authority and Incumbency Certificates.  The Administrative
Agent shall have received a signed certificate of Exchange Sub which attaches
the principal Constituent Documents of Exchange Sub and provides for the
certification of the names of the Persons authorized to sign each of the Loan
Documents and the other documents or certificates to be delivered pursuant to
the Loan Documents on behalf of Exchange Sub, together with the true signatures
of each such Person (it being further acknowledged and agreed that the
Administrative Agent may conclusively rely on such certificate until it shall
receive a further certificate canceling or amending the prior certificate and
submitting the signatures of the Persons named in such further certificate);


 


(j)                                     Opinions of Counsel.
The Administrative Agent shall have received an opinion of Willkie Farr &
Gallagher LLP, special New York counsel to the Borrower and Exchange Sub,
covering such matters relating to the transactions contemplated hereby as
reasonably requested by the Administrative Agent, such opinion to be in
substantially in the form of Exhibit F hereto;


 


(k)                                  Transaction Documents.  The Administrative Agent shall have received
true and complete copies of all Transaction Documents;


 


(l)                                     Weekly Report.  The Administrative Agent shall have received
a Weekly Report issued on or prior to the date of the proposed Borrowing which
demonstrates, inter alia, that the amount to be
borrowed by the Borrower, taken together with the Total Outstandings, will 


 


31





















 


not
cause the Total Outstandings to exceed the Total Commitment nor result in the
occurrence of an Asset Coverage Shortfall;


 


(m)                               Termination of Bridge Credit Facility.  The Bridge Credit
Facility shall have been terminated and all amounts outstanding thereunder
shall have been repaid in full.


 


(n)                                 Pro Forma Financial Statement.  The Administrative Agent shall have received
a consolidated statement of assets and liabilities of the Borrower at June 30,
2009, prepared on a pro forma basis and giving effect to the transactions
contemplated by the Transaction Agreement and the Asset Exchange Agreement.


 


(o)                                 Additional Information.  The Administrative Agent shall have received
from the Borrower, such financial and disclosure information regarding the Loan
Parties as the Administrative Agent may deem, in its sole and absolute
discretion, necessary and adequate.


 


6.2          All Loans.  The obligation of each Lender to advance each
Borrowing (including, without limitation, the initial Borrowing) hereunder to
the Borrower is further subject to the conditions that:


 


(a)                                  Representations and Warranties.  The representations
and warranties set forth in Article 7 hereof are true and correct in all
material respects on and as of the date of the advance of such Borrowing with
the same force and effect as if made by the Borrower on and as of such date;
provided, however, that those representations and warranties expressly
referring to another date shall be true and correct in all material respects as
of such date.


 


(b)                                 No Default.  No event shall have occurred and be
continuing, or would result from the Borrowing, which constitutes an Event of
Default.


 


(c)                                  Receipt of Request for Borrowing.  The Administrative
Agent shall have received a duly completed Request for Borrowing.


 


(d)                                 No Asset Coverage Shortfall.
 No Asset Coverage Shortfall shall exist,
either prior to or after giving effect to the proposed Borrowing.


 


(e)                                  No Delay in Timing of Delivery of Financial Statements.  The Borrower shall
not have received the consent of the Securities Exchange Commission (the “SEC”)
to the delayed delivery to the SEC of financial reports on Form 10-K or Form 10-Q
pursuant to the Securities Exchange Act of 1934, as amended (the “Securities
Exchange Act”), provided, however, that immediately upon delivery by the
Borrower of such financial reports this condition shall be immediately
satisfied.


 


7.             REPRESENTATIONS AND WARRANTIES.


 


To induce the Credit Parties
to provide the financial accommodations hereunder, the Borrower represents and
warrants to each of the Credit Parties that:


 


7.1          Organization and
Qualification.  The Borrower
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its respective organization and has the corporate, partnership
or limited liability company power, as the case may be, to carry on its
business as it 


 


32

















 


is now being conducted and
currently proposed to be conducted.  The
Borrower is duly qualified as a foreign corporation, partnership or limited
liability company, as the case may be, to do business, and is in good standing,
in each jurisdiction where the character or location of its properties owned or
held under lease or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified has not had, and is not
likely, alone or in the aggregate, to have a Material Adverse Effect on the
Borrower, individually or the Borrower and its consolidated Subsidiaries taken
as a whole.  The Borrower has all
federal, state, local and foreign governmental authorizations necessary for it
to own or lease its properties and assets and to carry on its business as it is
now conducted and currently proposed to be conducted, except where the failure
to have such authorization has not had, and is not likely, alone or in the
aggregate, to have a Material Adverse Effect on the Borrower, Cowen or Exchange
Sub., individually.


 


7.2          Authority Relative to
the Loan Documents; Board Action.  The Borrower has the corporate, partnership
or limited liability company power, as the case may be, to enter into each Loan
Document to which it is a party, to carry out its respective obligations
hereunder and thereunder.  The execution
and delivery of each Loan Document by the Borrower, and the consummation by it
of the transactions contemplated by the Loan Documents have been duly
authorized by the Borrower and no other corporate, partnership or limited
liability company action, notice, consent or proceeding on the part of the
Borrower is necessary to approve the Loan Documents and to authorize and
consummate the transactions contemplated hereby and thereby.  Each of the Loan Documents constitutes a
valid and binding obligation of the Borrower, enforceable in accordance with
its terms except as enforcement may be limited by bankruptcy, insolvency,
fraudulent conveyance or other similar laws affecting the enforcement of
creditors’ rights generally and except that the availability of equitable
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought.


 


7.3          No Violation.  The Borrower is not subject to or obligated
under (i) any operating agreement, partnership agreement, charter, by-law,
indenture or loan document provision or (ii) any other contract, license,
franchise, permit, order, decree, concession, lease, instrument, judgment,
statute, law, ordinance, rule or regulation applicable to any of them or
any of their respective properties or assets, that would be breached or
violated, or under which there would be a default (with or without notice or
lapse of time, or both), or under which there would arise a right of
termination, cancellation or acceleration of any obligation or the loss of a
material benefit, or a right to receive a severance or other similar payment,
by any of the Loan Parties executing any Loan Document to which it is (or will
be) a party or carrying out the transactions contemplated by any such Loan
Document, other than such breaches, violations, defaults, terminations,
cancellations, accelerations, losses or rights to severance or other payments
that, have not had, and are not likely, alone or in the aggregate, to have a
Material Adverse Effect on the Loan Parties, taken as a whole, or any of the
Borrower, Cowen or Exchange Sub individually, and are not likely to delay or
prevent the consummation by them of the transactions contemplated by the Loan
Documents.


 


7.4          Consents and
Approvals.  No filing or
registration with, or authorization, consent or approval of, any federal,
state, local or foreign governmental body or authority or any third party is
necessary to be effected or obtained by the Borrower for the consummation by
the Borrower of the transactions contemplated by the Loan Documents, other than
such filings, registrations, 


 


33

















 


authorizations, consents or
approvals, the failure of which to make or obtain, alone or in the aggregate,
is not likely to prevent or delay the consummation of the transactions
contemplated by the Loan Documents and has not had, and is not likely, alone or
in the aggregate, to have a Material Adverse Effect on the Loan Parties, taken
as a whole, or any of the Borrower, Cowen or Exchange Sub individually.


 


7.5          Enforceable
Obligations.  This Credit
Agreement, the Notes (if any) and the other Loan Documents to which it is a
party are its legal and binding obligations, enforceable against it in
accordance with their respective terms, subject to Debtor Relief Laws and
equitable principles.


 


7.6          Priority of Liens.  (a) The Collateral Documents to which it
is a party create, as security for its Obligations, valid and enforceable
security interests in and Liens on all of its Collateral described therein in
favor of the Administrative Agent, subject to no other Liens other than
Permitted Liens, except as may be limited by applicable Debtor Relief Laws,
general equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; and (b) when
(i) the actions specified in Schedule I to the Security Agreement
to which the Borrower is a party have been duly taken and (ii) all
applicable Instruments and Documents (each as described therein) a security
interest in which is perfected by possession have been delivered to, and/or are
in the continued possession of, the Administrative Agent, the security
interests granted pursuant thereto shall constitute (to the extent described
therein) a perfected security interest in all right, title and interest of the
Borrower in the Collateral described therein with respect to the Borrower.


 


7.7          Capital Stock.  The common and preferred equity stock of the
Borrower and its Subsidiaries issued and outstanding as of the Closing Date are
set forth in Schedule 7.7.  Except
as provided in the Purchase Agreement and except as set forth on Schedule
7.7, none of the Loan Parties is obligated to issue or sell any of its
Capital Stock, to make distributions thereon or to repurchase the same.  Schedule 7.7 sets forth, as of the
date hereof, the outstanding Capital Stock of the Borrower and its
Subsidiaries, all of which Capital Stock has been duly authorized, validly
issued and is fully paid and non-assessable (except as such rights may arise
under mandatory provisions of applicable statutory law that may not be waived
or otherwise agreed).  The Borrower has
delivered or made available to the Administrative Agent true and correct copies
of the charters, by-laws, partnership agreements and limited liability company
agreements (such charters, by-laws, partnership agreements and limited
liability company agreements, the “Governing Documents”) with respect to
the Borrower and its Subsidiaries. 
Except as set forth on Schedule 7.7, as of the date hereof, the
Borrower is not obligated to issue or sell any Capital Stock of itself or any
of its Subsidiaries or to make distributions thereon or repurchase the
same.  As of the date hereof, the
Borrower (or another Subsidiary of the Borrower) has valid title to all Capital
Stock of the Loan Parties that is indicated as owned by the Borrower or another
Subsidiary thereof in Schedule 7.7, free and clear of all liens, claims
and encumbrances except for those that may arise from the Governing Documents.


 


7.8          Subsidiaries.  Schedule 7.8 lists all Subsidiaries of
the Borrower as of the date hereof.


 


7.9          Absence of Certain
Changes or Events.  Except as
disclosed in Schedule 7.9, as permitted by this Agreement or fees and
expenses incurred or to be incurred or expenditures made or to be made in
connection with the transactions contemplated by this Agreement, since December 31,
2008 


 


34

















 


and through the date hereof,
there has not been any transaction, commitment, dispute, change or other event
or condition (financial or otherwise) of any character (whether or not in the
ordinary course of business) that, alone or in the aggregate, has had or is
likely to have a Material Adverse Effect on the Loan Parties, taken as a whole,
or any of the Borrower, Cowen or Exchange Sub individually.


 


7.10                        Reports and Financial Statements; Undisclosed Liabilities.


 


(a)                                  The unaudited pro forma condensed statement of financial
condition of the Borrower at June 30, 2009 and related statement of
operations for the period ended June 30, 2009 (i) is contained in Schedule
7.10, (ii) have been prepared giving effect to the transactions
contemplated by the Asset Exchange Agreement and Transaction Agreement, and (iii) have
been prepared in good faith based on assumptions believed by the Borrower to
have been reasonable as of the date of delivery thereof (it being understood that
such assumptions are based on good faith estimates of certain items and that
the actual amount of such items on the Transaction Closing Date is subject to
change), and presents fairly in all material respects on a pro forma basis the
estimated financial position of the Borrower as of the Transaction Closing
Date, assuming that the Transactions had actually occurred on the first day of
the relevant period.


 


(b)                                 The audited consolidated statement of financial condition of
Ramius LLC as of December 31, 2008, and the related statements of
operations, changes in members’ capital and cash flows for the period ended December 31,
2008, (i) are contained in Schedule 7.10, (ii) have been
prepared in accordance with GAAP applied on a consistent basis, (iii) present
fairly the financial position of Ramius LLC as of the dates thereof and the
results of its operations and cash flows for the periods then ended subject, in
the case of unaudited interim financial statements, to year-end audit
adjustments and any other adjustments described therein which are normal in
nature and amount.


 


(c)                                  The audited consolidated statement of financial condition of
Cowen Group, Inc. as of December 31, 2008, and the related statements
of operations and cash flows for the period ended December 31, 2008, (i) are
contained in Schedule 7.10, (ii) have been prepared in accordance
with GAAP applied on a consistent basis, (iii) present fairly the
financial position of Cowen Group, Inc. as of the dates thereof and the
results of its operations and cash flows for the periods then ended subject, in
the case of unaudited interim financial statements, to year-end audit
adjustments and any other adjustments described therein which are normal in
nature and amount.


 


(d)                                 As of the date hereof, except as (i) disclosed in Schedule
7.10, (ii) disclosed or reflected in the financial statements referred
to in Sections 7.10(a)-(c) or (iii) incurred in the ordinary course
of business consistent with past practice, and except for obligations incurred
in connection with the transactions contemplated by the Asset Exchange
Agreement, the Transaction Agreement and the Loan Documents, none of the Loan
Parties has any liabilities or obligations of any nature (whether accrued,
absolute, contingent or otherwise) which, individually or in the aggregate, has
had or are likely to have a Material Adverse Effect on the Loan Parties, taken
as a whole, or any of the Borrower, Cowen or Exchange Sub individually.


 


35
















 


(e)                                  As of the date hereof, none of the Borrower, Cowen or
Exchange Sub has received any “management” letters from its respective
independent certified public accountant to such entity’s respective management
with respect to such accountant’s audit of such entity’s respective financial
statements since July 2000.


 


7.11                        Litigation.  Except as disclosed in Schedule 7.11,
there is no claim, suit, action or proceeding (each, an “Action”)
pending or, to the knowledge of the Borrower, threatened against or affecting
any of the Borrower, Cowen or Exchange Sub that alone or in the aggregate, has
had or is likely to have a Material Adverse Effect on any of the Borrower,
Cowen or Exchange Sub nor is there any judgment, decree, injunction, rule or
order of any court, governmental department, commission, agency,
instrumentality or arbitrator outstanding against any of the Borrower, Cowen or
Exchange Sub that, alone or in the aggregate, has had or is likely to have any
such Material Adverse Effect on the any of the Borrower, Cowen or Exchange Sub
either individually or taken as a whole, and the Loan Parties are not in
default with respect to any judgment, order, writ, injunction, decree or
restriction of any court or Governmental Authority.  As of the date hereof, there is no Action
pending, or to the knowledge of the Borrower, threatened, relating to the
termination of, or limitation of, the rights of the Borrower, Cowen or Exchange
Sub under its registration under the Advisers Act, if any, as an investment
adviser.  As of any date after the date
hereof that this representation is deemed to be made, there is no Action
pending, or to the knowledge of the Borrower, threatened, relating to the
termination of, or limitation of, the rights of any Loan Party under its
registration under the Advisers Act, if any, as an investment adviser or of
Cowen or Exchange Sub under its registration under the Securities Exchange Act
as a broker-dealer, if any, its membership in any exchange (as defined under
the Securities Exchange Act) or any similar or related rights under any
registrations or qualifications with various self-regulatory bodies, states or
other jurisdictions, except for any Action that, either alone or in the
aggregate, has not had, or is not likely to have, a Material Adverse Effect on
the Borrower, Cowen or Exchange Sub either individually or taken as a whole.


 


7.12                        Compliance
with Applicable Laws and Permits.  Except as disclosed in Schedule 7.12,
as of the date hereof, the businesses of each of the Loan Parties are being conducted
in material compliance with all applicable laws, ordinances, regulations,
orders, writs, permits, licenses or other authorizations of any Governmental
Authority.  As of any date after the date
hereof that this representation is deemed to be made, the businesses of each of
the Loan Parties are being conducted in compliance with all applicable laws,
ordinances, regulations, orders, writs, permits, licenses or other
authorizations of any Governmental Authority, except for any such failure to
comply that, either alone or in the aggregate, has not had and is not likely to
have a Material Adverse Effect on the Loan Parties, taken as a whole, or the
Borrower, Cowen or Exchange Sub individually. 
Except as disclosed in Schedule 7.12, none of the Loan Parties
has received notice of violation of any law, ordinance, regulation, order,
writ, permit, license or authorization or is in default with respect to any
order, writ, judgment, award, injunction, decree, permit, license or
authorization of any Governmental Authority that, either alone or in the
aggregate, has had or is likely to have a Material Adverse Effect on the Loan
Parties, taken as a whole, or the Borrower, Cowen or Exchange Sub
individually.  Except as disclosed in Schedule
7.12, no investigation or review by any Governmental Authority with respect
to a Loan Party (a) is pending, nor (b) to the knowledge of the
Borrower, (i) is threatened nor (ii) has any Governmental Authority
indicated an intention to conduct the same, except for any such investigation
or review that, either alone or in the aggregate, has not had and is not likely
to have a Material Adverse Effect on any of the 


 


36

















 


Borrower, Cowen or Exchange
Sub taken as a whole, or the Borrower, Cowen or Exchange Sub individually.


 


7.13                        Significant
Agreements.  Schedule
7.13 lists all Significant Agreements (as defined below) as of the date
hereof (other than (i) Significant Agreements relating to the incurrence of the
BA Debt, (ii) Trading Debt or Securities Lending Debt entered into in the
ordinary course of business and (iii) any Governing Documents of the
Borrower, any of its Subsidiaries previously delivered to the Administrative
Agent).  The Borrower has delivered or
made available to the Administrative Agent true and correct copies of all
Significant Agreements on Schedule 7.13. 
Except as disclosed in Schedule 7.13, none of the Loan Parties is
in default (or would be in default with notice or lapse of time, or both)
under, is in violation (or would be in violation with notice or lapse of time,
or both) of, or has otherwise breached, any Significant Agreement listed on
Schedule 7.13, which default, either alone or in the aggregate with all other
such defaults, has had or is likely to have a Material Adverse Effect on the
Loan Parties, taken as a whole, or the Borrower, Cowen or Exchange Sub
individually.  There are no unresolved
disputes involving the Borrower, Cowen or Exchange Sub under any Significant Agreement
listed on Schedule 7.13, except for disputes the outcome of which, alone or in
the aggregate, have not had and are not likely to have a Material Adverse
Effect on the Borrower and its Subsidiaries, taken as a whole.  For the purposes of the foregoing, a “Significant
Agreement” means any agreement, contract or commitment, oral or written, to
which the Loan Parties are a party or by which they or any of their assets are
bound (provided that an entity is not deemed a party to, or to be bound by, a
Significant Agreement if it signs such agreement on behalf of another entity in
its capacity as a general partner or investment advisor of such entity or
otherwise has liability in respect of such agreement as a general partner or
investment advisor) constituting:


 


(a)                                  a mortgage, indenture, security agreement, guaranty, “keep
well,” comfort letter, pledge and other agreement or instrument relating to the
borrowing of money or extension of credit, other than a Fund Real Estate
Agreement;


 


(b)                                 an employment, severance or material consulting agreement
which provides for payments (including, without limitation, any termination or
severance payments) to any Borrower Principal or to his respective Affiliates
and Family Members (other than an employment agreement of a Borrower Principal’s
Family Member who is an employee of the Borrower);


 


(c)                                  a joint venture, partnership or limited liability company
agreement (other than any such agreement entered into in connection with an
investment made in the ordinary course of business);


 


(d)                                 a non-competition agreement or any other agreement or
obligation which purports to limit in any material respect (i) the manner
in which, or the localities in which, the business of the Borrower, Cowen or
Exchange Sub may be conducted or (ii) the use or development by the
Borrower, Cowen or Exchange Sub of any type of securities product;


 


(e)                                  an agreement limiting or restricting the ability of the
Borrower, Cowen or Exchange Sub to make distributions or declare or pay
dividends in respect of its Capital Stock;


 


37





















 


(f)                                    an agreement to make a capital expenditure (as defined in
GAAP and which in no event shall include investments purchased in the ordinary
course of business) in excess of $250,000; or


 


(g)                                 any other material agreement (other than a Fund Real Estate
Agreement) not in the ordinary course of the business of the respective Loan
Parties, which agreement provides for payments to or from any such entity in
any one year period in excess of $250,000.


 


Notwithstanding
the foregoing, with respect to Cowen, a “Significant Agreement” shall mean
solely those agreements filed with the SEC as an exhibit to the Form 10-K
for the year ended December 31, 2008 and the Form 10-Qs for the
quarters ended March 31, 2009 and June 30, 2009 and the Asset
Exchange Agreement and the Transaction Agreement.


 


7.14                        Event
of Default.  No event has
occurred and is continuing which constitutes an Event of Default or a Potential
Default.


 


7.15                        Insurance.  The respective Loan Parties maintain
sufficient insurance coverage to insure their respective properties and
business against such risks and in such amounts as are prudent in the
reasonable judgment of the Borrower and, other than with respect to errors and
omissions coverage, customary in the places where such property and business is
located in light of the business of the Loan Parties and the current use of
such property.  Each insurance policy
maintained by a Loan Party is in full force and effect and all premiums due
thereon have been paid in full.


 


7.16                        Employee Benefit Plans.


 


(a)                                  As of the date hereof, the Borrower has delivered or made
available to the Administrative Agent true and complete copies of all Plans, as
in effect, and will make available all other employee plans, together with all
amendments thereto which will become effective at a later date, as well as the
latest Internal Revenue Service determination letters obtained with respect to
any Plan intended to be qualified under Section 401(a) of the Code,
and exempt from tax under Section 501(a) of the Code.  With respect to each Plan, true and complete
copies of the (i) most recent annual actuarial valuation report, if any, (ii) the
last filed Form 5500 together with Schedule A and/or B thereto, if any, (iii) summary
plan description (as defined in ERISA), if any, and all modifications thereto
communicated to employees, and (iv) most recent annual and periodic
accounting of related plan assets, if any, have been, or will be, delivered to
or made available to the Administrative Agent and are, or will be, correct in
all material respects.


 


(b)                                 As of the date hereof, neither the Borrower, Cowen or
Exchange Sub nor, to the knowledge of the Borrower, any of their respective
directors, officers, employees or agents has, with respect to any Plan, engaged
in or been a party to any “prohibited transaction”, as such term is defined in Section 4975
of the Code or Section 406 of ERISA, which could result in the imposition
of either a penalty assessed pursuant to Section 502(i) of ERISA or a
tax imposed by Section 4975 of the Code, in each case applicable to the
Borrower, Cowen or Exchange Sub or any Plan. 
As of any date after the date hereof that this representation is deemed
to be made, neither the Borrower, Cowen or Exchange Sub, nor, to the knowledge
of the Borrower, any of their respective directors, officers, employees or
agents has, with respect to any Plan, engaged in 


 


38





















 


or
been a party to any “prohibited transaction”, as such term is defined in Section 4975
of the Code or Section 406 of ERISA, which could result in the imposition
of either a penalty assessed pursuant to Section 502(i) of ERISA or a
tax imposed by Section 4975 of the Code, in each case applicable to the
Borrower, Cowen or Exchange Sub or any Plan, except as has not had, and is not
likely, alone or in the aggregate, with any other events in this Section 7.16
to have a Material Adverse Effect on the Borrower, Cowen and Exchange Sub taken
as a whole, or individually.


 


(c)                                  As of the date hereof, all Plans are in compliance in all
material respects with the currently applicable requirements prescribed by all
statutes, orders, or governmental rules or regulations currently in effect
with respect to such Plans, including, but not limited to, ERISA and the Code
and there are no pending or, to the knowledge of the Borrower, threatened
claims, lawsuits or arbitrations (other than routine claims for benefits),
relating to any of the Plans, which have been asserted or instituted against
the Borrower, Cowen, Exchange Sub, any Plan or the assets of any trust for any
Plan.  As of any date after the date
hereof that this representation is deemed to be made, all Plans are in
compliance in all material respects with the currently applicable requirements
prescribed by all statutes, orders, or governmental rules or regulations
currently in effect with respect to such Plans, including, but not limited to,
ERISA and the Code and there are no pending or, to the knowledge of the
Borrower, threatened claims, lawsuits or arbitrations (other than routine
claims for benefits), relating to any of the Plans, which have been asserted or
instituted against the Borrower, Cowen, Exchange Sub, any Plan or the assets of
any trust for any Plan, except as has not had, and is not likely, alone or in
the aggregate, with any other events in this Section 7.16 to have a
Material Adverse Effect on the Borrower, Cowen and Exchange Sub.


 


(d)                                 Each Plan intended to qualify under Section 401(a) of
the Code, and the trusts created thereunder intended to be exempt from tax
under the provisions of Section 501(a) of the Code, either (i) has
received a favorable determination letter from the Internal Revenue Service to
such effect or (ii) is still within the “remedial amendment period,” as
described in Section 401(b) of the Code and the regulations
thereunder.  No Plan, nor any plan
maintained or contributed to by any ERISA Affiliate (defined below), is or has
been subject to Section 412 of the Code or Title IV of ERISA.  Neither the Borrower, Cowen, Exchange Sub nor
any ERISA Affiliate contributes, has contributed or has been obligated to
contribute, to or has any obligation or liability with respect to, any pension
or retirement plan which is a “Multiemployer Plan”.  (For purposes of this Agreement, “ERISA
Affiliate” means any member of a “controlled group” (as defined in Section 4971(e) (2) (B) of
the Code) of which the Borrower is or has been a member.)


 


(e)                                  None of the assets of the Borrower or the First Tier
Entities constitute plan assets of a plan subject to ERISA or section 4975 of
the Code within the meaning of 29 C.F.R. 2510.3-101 as modified by section
3(42) of ERISA.


 


7.17                        Taxes.  Except as disclosed in Schedule 7.17,
and except as has not had, and is not likely, alone or in the aggregate, to
have a Material Adverse Effect on the Loan Parties, taken as a whole, or on any
of the Borrower, Cowen or Exchange Sub individually, (i) all Tax Returns
that are required to be filed on or before the date hereof by or with respect
to a Loan Party, the Loan Parties or their respective operations or assets have
been or will be timely filed on or before the date hereof with the appropriate
governmental authorities, and all such Tax Returns are or will be true,
complete and accurate, (ii) all Taxes shown to be due on such Tax Returns
have been or 


 


39

















 


will be timely paid when due
or, if applicable, withheld and paid to the appropriate taxing authority in the
manner provided by law, (iii) the Tax Returns referred to in clause (i) have
been examined by the Internal Revenue Service or the appropriate state, local
or foreign taxing authority, or the period for assessment of Taxes in respect
of which such Tax Returns were required to be filed has expired without such returns
having been examined, (iv) all Taxes due with respect to completed and
settled examinations have been paid in full, (v) to the knowledge of the
Borrower, no issues have been raised by the relevant taxing authority in
connection with the examination of any of the Tax Returns referred to in clause
(i), (vi) there have not been any waivers of statutes of limitations with
respect to any Taxes of the any Loan Party, (vii) there are no Liens on
any of the assets of any Loan Party that arose in connection with a failure (or
alleged failure) to pay any Taxes, (viii) no closing agreements, private
letter rulings, technical advance memoranda or similar agreements or rulings
have been entered into or issued by any taxing authority with, in the case of
agreements, or, in all other cases, with respect to a Loan Party and (ix) the
reserve for Taxes set forth on the consolidated balance sheet of the Borrower
as of December 31, 2008 is adequate for the payment of all Taxes for such
entities through the date thereof and no Taxes have been incurred after December 31,
2008 which were not incurred in the ordinary course of business through the
date hereof.


 


7.18                        Properties.


 


(a)                                  Each of the Loan Parties has good and marketable title to,
or a valid leasehold interest in, all their material properties and assets,
free and clear of all liens, except as disclosed in Schedule 7.18 and
for Permitted Liens.


 


(b)                                 Schedule 7.18
sets forth a true and complete list, as of the date hereof, of each lease or
sublease relating to real or personal property or interests in real or personal
property leased by a Loan Party that involves annual rental payments by a Loan
Party of $250,000 or more (collectively, the “Material Leases”).  As of the date hereof, all rents and
additional rents due to date on each Material Lease have been paid; in each
case, the lessee has been in peaceable possession since the commencement of the
original term of such Material Lease and is not in default thereunder and no
waiver, indulgence or postponement of the lessee’s obligations thereunder has
been granted by the lessor; and there exists no event of default by the lessee
or event, occurrence, condition or other act which, with the giving of notice,
the lapse of time or the happening of any further event or condition, would
become a default by the lessee under such Material Lease.  As of any date after the date hereof that
this representation is deemed to be made, all rents and additional rents due to
date on each Material Lease have been paid; in each case, the lessee has been
in peaceable possession since the commencement of the original term of such
Material Lease and is not in default thereunder and no waiver, indulgence or
postponement of the lessee’s obligations thereunder has been granted by the
lessor; and there exists no event of default by the lessee or event,
occurrence, condition or other act which, with the giving of notice, the lapse
of time or the happening of any further event or condition, would become a
default by the lessee under such Material Lease, except for any default which
has not had, and is not likely, alone or in the aggregate, to have, a Material
Adverse Effect on the Borrower, Cowen or Exchange Sub, taken as a whole, or
individually.


 


(c)                                  Each of the Loan Parties has performed all obligations
required to be performed by it with respect to all assets and properties leased
by it through the date hereof and 


 


40





















 


has
not violated any of the terms or conditions under such lease, except where the failure
to perform or violation of the terms or conditions under such lease has not
had, and is not likely, alone or in the aggregate, to have a Material Adverse
Effect on the Loan Parties, taken as a whole, or the Borrower, Cowen or
Exchange Sub, individually.  All
buildings and all fixtures, equipment and other property and assets which are
held under leases or subleases by the Borrower, Cowen or Exchange, are held
under valid leases or subleases, except where the failure to obtain such leases
or subleases has not had, and is not likely, alone or in the aggregate, to have
a Material Adverse Effect on the Borrower, Cowen or Exchange Sub, taken as a
whole or individually.


 


7.19                        Intellectual
Property.  Except as
set forth in Schedule 7.19, as of the date hereof, each of the Borrower,
Cowen or Exchange Sub own, or is licensed or otherwise possesses the rights to
use, all patents, trademarks and service marks (registered or unregistered),
trade names, domain names, computer software and copyrights and applications
and registrations therefor, in each case, which are necessary to the conduct of
the business of the Borrower, Cowen or Exchange Sub as presently conducted,
free and clear of all Liens (collectively, the “Intellectual Property Rights”).  Except as set forth in Schedule 7.19,
as of the date hereof, there are neither any outstanding nor, to the knowledge
of the Borrower, threatened disputes or disagreements with respect to any of
the Intellectual Property Rights, except for such disputes or disagreements which
have not had, and are not likely, alone or in the aggregate, to have a Material
Adverse Effect on the Loan Parties, taken as a whole, or the Borrower, Cowen or
Exchange Sub individually.  To the
knowledge of the Borrower, none of the Loan Parties has infringed or violated
any trademark, trade name, copyright, patent, trade secret right or other
proprietary right of others, nor, to the knowledge of the Borrower, has any
other Person infringed on a continuing basis any rights that the Loan Parties
have in the Intellectual Property Rights, except for any infringements which
have not had, and are not likely, alone or in the aggregate, to have a Material
Adverse Effect on the Loan Parties, taken as a whole, or the Borrower, Cowen or
Exchange Sub individually.  The
Intellectual Property Rights are valid, in use, and in full force and effect
and have not been judged invalid or unenforceable, nor has any decision been
rendered by any Governmental Authority which would limit or cancel the validity
or enforceability of any of the Intellectual Property Rights except where such
judgment of invalidity or unenforceability has not had, and is not likely,
alone or in the aggregate, to have a Material Adverse Effect on the Loan
Parties, taken as a whole, or the Borrower, Cowen or Exchange Sub individually.


 


7.20                        Transactions
with Affiliates.  Except as
disclosed in Schedule 7.20, no Borrower Principal, nor any Affiliate
thereof (other than a Loan Party) has on the date hereof, or since January 1,
2009 through the date hereof has had (i) any interest in any property
(whether real, personal or mixed and whether tangible or intangible) used in or
pertaining to any of the businesses of the Loan Parties or (ii) any
transaction with the Loan Parties (other than, in the ordinary course of
business, (w) fees and compensation paid to and indemnity provided on
behalf of, officers, employees, consultants or agents of the Loan Parties, and
benefits received by such Persons in connection with participation in any
Plans, (x) ordinary course reimbursement of expenses incurred on behalf of
a Loan Party, (y) distributions in respect of the Borrower’s Capital Stock
permitted under the HVB/Ramius Agreements and (z) transactions on terms no
less favorable to a Loan Party than those which could have been obtained in an
arm’s-length transaction with an unrelated third party and which provide for
payments in any full year period of less than $250,000).


 


41

















 


7.21                        Investment
Contracts and Clients.  The
aggregate assets under management by the Loan Parties as of June 30, 2009,
December 31, 2008 and December 31, 2007 are accurately set forth on Schedule
7.21.


 


7.22                        Accuracy
of Loan Documents and Information.  Neither this Agreement nor the other Loan
Documents contain any untrue statement of a material fact, or omits to state a
material fact necessary to make the statements or facts contained herein or
therein, in light of the circumstances in which they were made, not misleading.  To the knowledge of the Borrower, there are
no facts that materially and adversely affect or are reasonably likely to
materially and adversely affect the business, operations or condition
(financial or otherwise) of the Loan Parties, or their respective properties
and assets, in each case taken as a whole, which have not been set forth in
this Agreement, the financial statements referred to in Section 7.10
hereto (including the footnotes thereto), the Loan Documents, or in any
document, exhibit, certificate, opinion, schedule or statement in writing which
has been supplied by or on behalf of the Loan Parties in connection with the
transactions contemplated by the Loan Documents or in connection with the
Administrative Agent’s due diligence process in connection with the
transactions contemplated hereby.


 


7.23                        Accounting Records; Internal Controls.


 


(a)                                  The Loan Parties have records that accurately and validly
reflect their respective transactions, and accounting controls sufficient to
insure that such transactions are (i) executed in accordance with
management’s general or specific authorization and (ii) recorded in
conformity with GAAP so as to maintain accountability for assets, except that,
in the case of certain of such entities holding real estate assets,
transactions are recorded on a tax basis.


 


(b)                                 Such records, to the extent they contain important
information that is not easily and readily available elsewhere, have been
duplicated, and such duplicates are stored safely and securely pursuant to
techniques and procedures utilized by companies of comparable size in similar
lines of business, except where the failure to so duplicate and store such
information has not had, and is not likely, alone or in the aggregate, to have
a Material Adverse Effect on the Loan Parties, taken as a whole, or the
Borrower, Cowen or Exchange Sub individually. 
The data processing equipment, data transmission equipment, related
peripheral equipment and software used by the Loan Parties in the operation of
their respective businesses (including any disaster recovery facility) to
generate and retrieve such records are comparable in performance, condition and
capacity with those utilized by companies of comparable size in similar lines
of business, except where the failure to generate or retrieve such records has
not had, and is not likely, alone or in the aggregate, to have a Material
Adverse Effect on the Loan Parties, taken as a whole, or the Borrower, Cowen or
Exchange Sub individually.


 


7.24                        Fiscal
Year.  Its fiscal year is the calendar
year.


 


7.25                        Investment
Company Act.  Pursuant to
an exemption from the definition of “investment company” within the meaning of
the Investment Company Act of 1940, as amended, the Borrower is not subject to
the Investment Company Act of 1940.


 


42

















 


7.26                        Margin
Stock.  It is not engaged in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock, and no proceeds of any Loan will be used by it (a) to purchase or
carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock; (b) to reduce or retire any
indebtedness which was originally incurred to purchase or carry any such Margin
Stock; or (c) for any other purpose which might constitute this transaction
a “purpose credit” within the meaning of Regulation T, U, or X.  It has not taken, and will not take any
action which might cause any Loan Document to violate Regulation T, U or X or
any other regulation of the Board of Governors of the Federal Reserve System or
to violate Section 7 of the Securities Exchange Act, in each case as now
in effect or as the same may hereafter be in effect.


 


7.27                        Anti-money
Laundering.  It has
received representations from each of the investors in its Managed Funds (each
such investor, a “Fund Investor”) such that it has formed a reasonable
belief that it knows the true identity of such Fund Investors.  To the best of its knowledge (based on these
representations), no funds used in connection with this transaction are derived
from illegal or suspicious activities. 
To the best of its knowledge, none of its Fund Investors are contained
on any list of “Specially Designated Nationals” or known or suspected
terrorists that has been generated by the Office of Foreign Assets Control of
the United States Department of Treasury (“OFAC”), nor are they citizens
or residents of any country that is subject to embargo or trade sanctions
enforced by OFAC.


 


8.                                      AFFIRMATIVE
COVENANTS.  


 


So long as any Lender has
any commitment to lend to the Borrower hereunder, and until payment and
satisfaction in full of the Borrower’s Obligations, the Borrower hereby agrees
that:


 


8.1                               Financial
Statements and Other Reports.  The Borrower shall deliver to the
Administrative Agent:


 


(a)                                  as soon as available and in any event within 50 days (or
such later date as financial statements required by this clause (a) are
permitted to be filed by the Borrower with the SEC under the Securities
Exchange Act) under after the end of each of the first three fiscal quarters of
each fiscal year, (i) the consolidated statement of assets and liabilities
of the Borrower and its consolidated Subsidiaries as at the end of such fiscal
quarter, (ii) the related consolidated statements of income for such
fiscal quarter and for the period from the beginning of the then current fiscal
year to the end of such fiscal quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding periods of the
previous fiscal year, all in reasonable detail and certified by the Borrower on
its behalf by its chief financial officer (in his capacity as such) that such
statements fairly present the consolidated financial condition of the Borrower
and its consolidated Subsidiaries, as at the dates indicated and the results of
operations of the Borrower and its consolidated Subsidiaries for the periods
indicated, in conformity with GAAP applied on a basis consistent with prior
years subject to changes resulting from audit and normal year-end adjustments;


 


(b)                                 as soon as available and in any event within 95 days (or
such later date as financial statements required by this clause (b) are
permitted to be filed by the Borrower with the SEC under the Securities
Exchange Act) after the end of each fiscal year, (i) the consolidated statement
of assets and liabilities of the Borrower and its consolidated Subsidiaries as
at the end 


 


43





















 


of
such fiscal year, (ii) the related consolidated statements of income and
special allocation for such fiscal year, setting forth in each case in
comparative form the corresponding figures for the previous fiscal year, all in
reasonable detail and certified by the Borrower on its behalf by its chief
financial officer (in his capacity as such) that such statements fairly present
the consolidated financial condition of the Borrower and its consolidated
Subsidiaries, as at the dates indicated and the results of operations of the
Borrower and its consolidated Subsidiaries for the periods indicated, and (iii) a
report thereon of independent certified public accountants of recognized
national standing, which report shall be unqualified as to scope of audit,
shall express no doubt about the ability of the Borrower to continue as a going
concern, and shall state that such consolidated financial statements fairly
present the consolidated financial position of the Borrower and its
consolidated Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards;


 


(c)                                  together with the financial statements provided pursuant to Section 8.1(a) and
(b), a compliance certificate in a form mutually agreed to by the Borrower and
the Administrative Agent (the “Compliance Certificate”), certified to be
true and correct, stating that no Potential Default or Event of Default exists
and, if any Potential Default or Event of Default then exists, setting forth
the details thereof and the action which it is taking or proposes to take with
respect thereto;


 


(d)                                 as soon as reasonably practicable after receipt thereof, a
copy of any “management” letter from the Borrower’s independent certified
public accountant to the Borrower’s management with respect to such accountant’s
audit of the Borrower’s financial statements;


 


(e)                                  as soon as available, but in any event within two (2) 
Business Days after the end of each calendar week, a report substantially in
the form previously delivered to and confirmed as acceptable by the
Administrative Agent, together with a certificate in a form mutually acceptable
to the Borrower and the Administrative Agent stating the percentage ownership
interests necessary to compute the Net Investment Balance (such report and
certificate, together, the “Weekly Report”) which sets forth, inter alia, (w) the current market value of its
financial assets and cash, identifying all investments acquired, sold or
otherwise disposed of by it during the preceding week; (x) a calculation
of the Asset Coverage Shortfall (if any) as of the end of such monthly period;
and (y) the Valuation Decline Rate during the immediately preceding
calendar month, calendar quarter and calendar year (determined with respect to
such calendar quarters and calendar years on a rolling basis);


 


(f)                                    as soon as available, all information delivered to the SEC
in connection with any request by the Borrower to extend the deadline
applicable to it with respect to delivery of financial reports to the SEC
pursuant to the Securities Exchange Act.


 


(g)                                 as soon as available, and in any event within five (5) Business
Days of the date of exercise by the Borrower of any distribution or redemption
rights with respect to the 


 


44





















 


Enterprise
Investment, copies of all documentation executed and delivered by the Borrower
in connection therewith;


 


(h)                                 copies of all financial statements, material reports and
notices, and other material information at any time or from time to time
prepared by it or on its behalf and furnished to its Fund Investors generally;


 


(i)                                     Within 15 Business Days of the date the Borrower knows or
should have known that one or more of the events specified in Event of
Termination has occurred with respect to a Plan or a Multiemployer Plan, the
Borrower shall so advise the Administrative Agent, which notice shall specify
the actions to be taken by Seller or an ERISA Affiliate in connection with such
event; and


 


(j)                                     Other Information. 
Such other information concerning its business, properties, or financial
condition as the Administrative Agent shall reasonably request.


 


8.2                               Access to Information.


 


(a)                                  The Borrower shall, and shall cause the other Loan Parties
and each of such entity’s officers, directors, employees, agents,
representatives, accountants and counsel to: 
(i) afford the officers, employees and authorized agents,
accountants, counsel, representatives and Affiliates of the Administrative
Agent reasonable access upon reasonable advance notice, during regular business
hours, to the offices, properties, other facilities, books and records of the
Loan Parties and to those officers, directors, key employees, accountants and
counsel of the Loan Parties who have knowledge of the business or operations of
the Loan Parties and (ii) to furnish to the officers, employees and
authorized agents, accountants, counsel, representatives and Affiliates of the
Administrative Agent such additional existing financial and operating data and
other information regarding the assets, properties and goodwill of the Loan
Parties (or legible copies thereof) as the Administrative Agent may from time
to time reasonably request; provided, however, that the Borrower may elect not
to afford access to any such persons or materials, or furnish any such
materials, if the Borrower believes upon a written opinion of counsel that such
election is reasonably necessary to preserve attorney-client privilege.


 


(b)                                 Within ten days of receipt thereof, the Borrower shall, and
shall cause the other Loan Parties to, provide the Administrative Agent with
copies of any correspondence received by such entity from any Governmental
Authority relating to any inquiry, claim, suit, action or proceeding resulting
from such entity’s alleged violation of any material law, ordinance,
regulation, order, writ, permit, license or authorization promulgated by such
Governmental Authority.


 


(c)                                  Upon the request of the Administrative Agent, the Loan
Parties shall request that their independent certified public accountants make
available to the Administrative Agent all working papers produced in connection
with such accountant’s audit of the respective entity’s financial statements
for each fiscal year through the Maturity Date. 
The Lenders shall pay all fees or other reasonable expenses of the
Borrower’s independent certified public accountants incurred in connection with
the obligations set forth in the preceding sentence.


 


45




















 


8.3                               Maintenance of Existence and Rights.


 


(a)                                  It will preserve and maintain its existence.


 


(b)                                 It shall preserve and maintain all of its rights,
privileges, and franchises necessary in the normal conduct of its business and
in accordance with all valid regulations and orders of any Governmental
Authority the failure of which would reasonably be expected to have a Material
Adverse Effect.


 


8.4                               Compliance
with Law.  The Borrower
shall, and shall cause the other Loan Parties to, conduct their respective businesses
in material compliance with any applicable law, ordinance, regulation, order,
writ, permit, license or other authorization of any Governmental Authority of
the United States, the Cayman Islands and any other jurisdiction in which any
of the Loan Parties conducts a material part of its respective business (the “Material
Jurisdictions”).  In any jurisdiction
other than the Material Jurisdictions, the Borrower shall, and shall cause the
other Loan Parties to, conduct their respective businesses in compliance with
any applicable law, ordinance, regulation, order, writ, permit, license or
other authorization of any Governmental Authority in any such jurisdiction,
except where the failure to so comply with any applicable law, ordinance,
regulation, order, writ, permit, license or other authorization has not had,
and is not likely, alone or in the aggregate, to have a Material Adverse Effect
on the Loan Parties, taken as a whole, or individually.


 


8.5                               Payment
of Taxes.  It will pay
and discharge all taxes, assessments, and governmental charges or levies
imposed upon it, upon its income or profits, or upon any property belonging to
it before delinquent, if such failure would reasonably be expected to have a
Material Adverse Effect; provided, however, that it shall not be required to
pay any such tax, assessment, charge, or levy if and so long as the amount,
applicability, or validity thereof shall currently be contested in good faith
by appropriate proceedings and appropriate funded reserves therefor have been established.


 


8.6                               Notice
of Default.  It will
provide to the Administrative Agent, within five (5) Business Days after having
knowledge of the existence of any condition or event which constitutes an Event
of Default or a Potential Default, a written notice specifying the nature and
period of existence thereof and the action which it proposes to take with
respect thereto.


 


8.7                               Compliance
with Loan Documents.  Unless
otherwise approved in accordance with the terms of this Credit Agreement, it
will promptly comply with any and all covenants and provisions of the Loan
Documents executed by it.


 


8.8                               Books
and Records; Access.  Following
three (3) Business Days’ prior written notice, it will give the Administrative
Agent or any Lender or any of their respective representatives access during
normal business hours to, and permit the Administrative Agent, any Lender or
any such representative to examine, copy, or make excerpts from, any and all
books, records, and documents in its possession relating to its affairs.  Prior to an Event of Default, such inspection(s)
shall be at the expense of the Administrative Agent, and while an Event of
Default exists, such inspection(s) shall be at the expense of the Borrower
payable upon three (3) Business Days’ prior written notice.


 


46

















 


8.9                               Operations
and Properties.  It will keep
in good working order and condition, ordinary wear and tear excepted, all of
its assets and properties which are necessary to the conduct of its business so
as not to incur a Material Adverse Effect.


 


8.10                        Insurance.  It will maintain insurance on its present and
future properties, assets, business, officers, directors and managers against
such liabilities, casualties, risks, and contingencies, and in such types and
amounts, as are consistent with customary practices and standards of the
securities industry and the failure of which to maintain would reasonably be
expected to have a Material Adverse Effect.


 


8.11                        Maintenance
of Liens.  It shall
perform all such acts and execute all such documents as the Administrative
Agent may reasonably request in order to enable the Administrative Agent to
report, file, and record every instrument that the Administrative Agent may
deem necessary in order to perfect and maintain the Administrative Agent’s
liens and security interests in its Collateral and otherwise to preserve and
protect the rights of the Administrative Agent and the Lender in such
Collateral.


 


8.12                        Net
Investment Balance.  Until such
time as the Obligations shall have been paid in full and the Loan Documents
shall have been terminated, the Borrower and Exchange Sub shall be permitted to
liquidate or distribute their interests in the Enterprise Investment provided
that the Borrower shall, and shall cause Exchange Sub to, apply the proceeds of
such liquidation or distribution of its Enterprise Investment to the repayment
and satisfaction of the Obligations; provided however, that no repayment shall
be required pursuant to this Section 8.12 (or the prepayment required shall be
limited to the amount required so that) if, immediately after giving effect to
such liquidation or distribution:


 


(a)
                               no Event of
Default or Potential Default would exist;


 


(b)                                 no Asset
Coverage Shortfall would exist; and


 


(c)                                  all other
conditions set forth in Section 6.2 hereof would be satisfied.


 


9.                                      NEGATIVE
COVENANTS.  


 


So long as the Lender has
any commitment to lend hereunder and until payment and performance in full of
the Obligations under this Credit Agreement and the other Loan Documents, the
Borrower hereby agrees that:


 


9.1                               Agreements.  It shall not alter, amend, modify, terminate,
or change any provision of its Constituent Documents in a manner which would
have a Material Adverse Effect on the Borrower or any First Tier Entity taken
as a whole, or individually; provided, however, the Borrower may amend its
Constituent Documents to change its name to Cowen Group, Inc.


 


9.2                               ERISA
Compliance.  It shall not
(i) engage, or permit any ERISA Affiliate
(to the extent such permission is within the control of a Loan Party) to
engage, in any transaction described in Section 4069 of ERISA; (ii) engage, or
permit any ERISA Affiliate to engage, in any prohibited transaction described
in Section 406 of ERISA or 4975 of the Internal Revenue Code for which a
statutory or class exemption is not available or a private exemption has not
previously been obtained from the U.S. Department of Labor; (iii) adopt or
permit any ERISA Affiliate (to the extent such permission is within the control
of a Loan Party) to adopt any employee welfare 


 


47

















 


benefit
plan within the meaning of Section 3(1) of ERISA which provides benefits to
employees after termination of employment other than as required by Section 601
of ERISA or applicable law; or (iv) fail, or permit any ERISA Affiliate (to the
extent such permission is within the control of a Loan Party) to fail, to pay
any required installment or any other payment required under Section 412 of the
Internal Revenue Code on or before the due date for such installment or other
payment.


 


9.3                               Restricted
Payments.  Except as
provided on Schedule 9.3, the Borrower shall not declare or pay or make
any distribution in respect of, or repurchase, any of its Capital Stock other
than:  (i) distributions pursuant to the
HVB/Ramius Agreements and (ii) distributions as determined by the Board of
Directors of the Borrower, provided that, after giving effect thereto and to
any related issuance of Capital Stock in accordance with the HVB/Ramius
Agreements, the Borrower’s Net Worth exceeds $125 million.  Notwithstanding the foregoing, the
distributions permitted by this Section 9.3 made in connection with the
issuance of additional Capital Stock shall be conditioned on compliance with, and
subject to, the relevant HVB/Ramius Agreements.


 


9.4                               Incurrence
of Additional Debt.  The Borrower
shall not, and shall not permit the First Tier Entities to, incur any Debt
other than Debt under the Loan Documents and the Debt set forth in Schedule
9.4.  The Borrower shall not permit the
Loan Parties other than the Borrower and the First Tier Entities to incur any
Debt other than Permitted Debt.


 


9.5                               Limitation
on Liens.  The Borrower
shall not, and shall not permit the First Tier Entities to incur, any Liens on
or with respect to any property now owned or hereafter acquired by such parties
other than Liens incurred to secure the Loan Documents.  The Borrower shall not, and shall not permit
the other Loan Parties to, incur any Lien on or with respect to any property
now owned or hereafter acquired by such Loan Parties to secure any Debt without
making effective provision for securing the Obligations under this Agreement (i)
equally and ratably with such Debt as to such property for so long as such Debt
will be so secured or (ii) in the event such Debt is Subordinated Debt, prior
to such Debt as to such property for so long as such Debt will be so secured;
provided, however, that all other Loan Parties shall be permitted to incur
Liens to secure Secured Debt, Trading Debt, Securities Lending Debt, Rate
Hedging Obligations and Refinancing Debt.


 


9.6                               Merger,
Consolidation or Sale of Assets.  The Borrower shall not, nor shall it permit
the other Loan Parties to, in a single transaction or series of related transactions,
consolidate or merge with or into any Person, or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its respective
assets; provided, that any of such Subsidiaries may consolidate or merge
with or into, or transfer all or substantially all of its assets to, another
such Subsidiary or the Borrower, and provided further, that the following
transactions shall be permitted:


 


(a)                                  asset sales not exceeding in the aggregate during the term
of the Facility 17.0% of the total net consolidated assets of the Borrower as
of the Transaction Closing Date and


 


(b)                                 the disposition (through sale or merger or otherwise) of all
or substantially all of the assets of the Borrower and its Subsidiaries taken
as a whole so long as the purchase price of the assets subject to the
disposition is at least equal to (i) if the disposition occurs prior to the
first anniversary of the Transaction Closing Date, the book value of such
assets as of the 


 


48

















 


Transaction
Closing Date, and (ii), if such disposition occurs at any time thereafter, 110%
of the book value of such assets as of the Transaction Closing Date.


 


Nothing
in this Section 9.6 shall operate to prevent the transactions contemplated by
the Asset Exchange Agreement or the Transaction Agreement.


 


9.7                               Transactions with Affiliates.


 


(a)                                  The Borrower shall not, and shall not permit any of the
other Loan Parties to, enter into or permit to exist any transaction or series
of related transactions with, or for the benefit of, any Affiliate of the
Borrower, Cowen or Exchange Sub as applicable, or any Borrower Principal or any
Affiliate or Family Member of a Borrower Principal, Cowen or Exchange Sub (each
an “Affiliate Transaction”), other than (x) Affiliate Transactions
permitted under Section 9.7(b) and (y) Affiliate Transactions on terms that are
no less favorable to the Borrower or such Subsidiary, Cowen or Exchange Sub as
applicable, than those that might reasonably have been obtained or are obtainable
in a comparable transaction at such time on an arm’s-length basis from a Person
that is not an Affiliate of the Borrower or, any Borrower Principal.


 


(b)                                 The restrictions set forth in Section 9.7(a) shall not apply
to:  (i) reasonable fees and compensation
paid to, and indemnification for, officers, employees, consultants or agents of
any Loan Party; (ii) transactions between or among the Borrower and any of the
other Loan Parties; (iii) any agreement or arrangement as in effect on the date
hereof or any amendment thereto or any transaction contemplated thereby
(including pursuant to any amendment thereto) or in any replacement agreement
or arrangement thereto so long as any such amendment or replacement agreement
or arrangement is not more disadvantageous to the Borrower or any other Loan
Party in any material respect than the original agreement or arrangement as in
effect on the date hereof and provided that the material terms of all such
agreements or arrangements have been disclosed in writing to the Administrative
Agent prior to the date hereof; (iv) any distribution in respect of, or
repurchase of, the Borrower’s Capital Stock permitted under this Agreement; (v)
transactions between or among the Borrower, any of the other Loan Parties and
any Managed Fund; and (vi) transactions between or among the Loan Parties and
any Lender or any of the Lenders’ Affiliates.


 


9.8                               Financial Condition.


 


(a)                                  The Borrower shall not permit its Net Worth, as set forth in
its financial statements for the most recent fiscal quarter for which such
financial statements are then available, to be less than $100 million.


 


(b)                                 The Borrower shall not permit its Debt Ratio to exceed
50%.  For purposes of this subsection,
the Borrower’s “Debt Ratio” at any given time shall equal (i) the
Borrower’s Debt (excluding Trading Debt, Secured Debt and Fund Consolidation
Debt and including only the net amount of any Securities Lending Debt) divided
by (ii) the aggregate shareholder’s equity of the Borrower, in both cases, as
set forth in its consolidated financial statements for the most recent fiscal
quarter for which such financial statements are then available.


 


49

















 


9.9                               Changes
in Accounting Principles.  None
of the Loan Parties shall in any material way alter any of their respective
Accounting Principles unless such change is made in accordance with a change in
GAAP or applicable law to which such entity is subject.


 


9.10                        Fiscal
Year.  The Borrower shall not change
its fiscal year.


 


9.11                        Intellectual
Property.  The Borrower
shall use reasonable commercial efforts to obtain, and cause the First Tier
Entities to obtain, all such licenses related to the Intellectual Property
Rights (as such term is defined in Section 7.19) necessary to the conduct of
the business of the Borrower and such First Tier Entities as presently
conducted, except where such failures to obtain any such licenses, have not
had, and are not likely, alone or in the aggregate, to have a Material Adverse
Effect on the Borrower or the First Tier Entities, taken as a whole or
individually.


 


9.12                        Use of
Proceeds.  The Borrower
shall use the proceeds of the Loan (i) to refinance the loans outstanding
pursuant to the Bridge Credit Agreement (ii) to pay the purchase price under
the Asset Exchange Agreement and (iii) for general corporate purposes.


 


9.13                        Additional
Reporting Requirements.  The
Borrower shall furnish to the Administrative Agent:


 


(a)                                  Promptly after the commencement thereof, notice of all
actions, suits, and proceedings before any court or Governmental Authority,
affecting the Borrower or any First Tier Entity, which, if determined adversely
to such party, could have a Material Adverse Effect on the Borrower or any
First Tier Entity, taken as a whole or individually; and


 


(b)                                 Promptly after the occurrence thereof, any other development
known to the Borrower that has resulted in, or is likely, alone or in the
aggregate, to have a Material Adverse Effect on the Borrower or any First Tier
Entity, taken as a whole, or individually.


 


9.14                        Board
Approval.  The approval
of a majority of the Board of Directors of the Borrower shall be required with
respect to any material transactions of the Borrower which are not undertaken
in the ordinary course of business, including, without limitation, the issuance
of capital stock and the distribution of dividends.


 


10.                               EVENTS OF DEFAULT.


 


10.1                        Events
of Default.  An “Event
of Default” shall exist upon the occurrence and continuance of any one or
more of the following events (herein collectively called “Events of Default”),:


 


(a)                                  the Borrower shall fail to pay when due:  (i) any principal of its Obligations; or (ii)
any interest on its Obligation or any fee, expense, or other payment required
hereunder, and such failure under this clause (ii) shall continue for three (3)
days following the date the Administrative Agent notifies the Borrower in
writing of such failure (except for the failure to pay its Obligations in full
on the Maturity Date for which no notice shall be required);


 


(b)                                 any representation or warranty made by the Borrower under
this Credit Agreement, or any of the other Loan Documents executed by it, or in
any certificate or statement furnished or made to the Administrative Agent by
it pursuant hereto or in connection herewith or with its Obligations, shall
prove to be untrue or inaccurate in any material respect as of the date 


 


50

















 


on
which such representation or warranty is made and the adverse effect of the
failure of such representation or warranty shall not have been cured within
thirty (30) days after written notice thereof is delivered to the Borrower by
the Administrative Agent;


 


(c)                                  except as expressly provided in the following clause (d), a
default shall occur in the performance by the Borrower of any of the covenants
or agreements contained in any Loan Documents executed by it and such default
shall continue uncured to the satisfaction of the Administrative Agent for a
period of thirty (30) days after written notice thereof has been given by the
Administrative Agent to the Borrower;


 


(d)                                 a default shall occur in the performance by the Borrower of
any of the covenants or agreements of the Borrower contained in Article 9
hereof;


 


(e)                                  a default shall occur in the performance by the Borrower of
any of the covenants or agreements of the Borrower contained in Section 8.1(a)(ii)
or 8.1(b) and such default shall continue uncured to the satisfaction of the
Administrative Agent for the period of three (3) Business Days after written
notice thereof has been given by the Administrative Agent to the Borrower;


 


(f)                                    any of the Loan Documents executed by the Borrower shall
cease, in whole or in material part, to be legal, valid, binding agreements
enforceable against the Borrower in accordance with the terms thereof or shall
in any way be terminated or become or be declared ineffective or inoperative or
shall in any way whatsoever cease to give or provide the respective liens,
security interest, rights, titles, interest, remedies, powers, or privileges
intended to be created thereby;


 


(g)                                 default shall occur in the payment of any recourse
indebtedness or Guaranty Obligation of the Borrower (other than its
Obligations), in an aggregate amount greater than or equal to $500,000, and
such default shall continue for more than the applicable period of grace, if
any;


 


(h)                                 the Borrower shall:  (i)
apply for or consent to the appointment of a receiver, trustee, custodian,
intervenor, or liquidator of itself or of all or a substantial part of its
assets; (ii) file a voluntary petition in bankruptcy or admit in writing that
it is unable to pay its debts as they become due; (iii) make a general
assignment for the benefit of creditors; (iv) file a petition or answer seeking
reorganization or an arrangement with creditors or to take advantage of any
Debtor Relief Laws; (v) file an answer admitting the material allegations of,
or consent to, or default in answering, a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding; or (vi) take partnership
or corporate action for the purpose of effecting any of the foregoing;


 


(i)                                     an order, order for relief, judgment or decree shall be
entered by any court of competent jurisdiction or other competent authority
approving a petition seeking reorganization of the Borrower or appointing a
receiver, custodian, trustee, intervenor, or liquidator of the Borrower for of
all or substantially all of its assets, and such order, judgment or decree
shall continue unstayed and in effect for a period of thirty (30) days;


 


51

















 


(j)                                     any final judgment(s) for the payment of money in excess of
the sum of $500,000 in the aggregate shall be rendered against the Borrower and
such judgment or judgments remain unsatisfied for a period of sixty (60) days
or would reasonably be expected to have a Material Adverse Effect, unless
covered by insurance or unless being appealed and the Borrower has posted a
bond or cash collateral;


 


(k)                                  either (i) any of the assets of the Borrower or a First Tier
Entity become plan assets of a plan subject to ERISA or section 4975 of the
Code within the meaning of 29 C.F.R. 2510.3-101 as modified by section 3(42) of
ERISA or (ii) an Event of Termination shall occur which may reasonably be
expected to result in a Material Adverse Effect;


 


(l)                                     there shall have occurred any material impairment of the
security interest of the Administrative Agent in the Collateral.


 


10.2                        Remedies
upon Event of Default with Respect to the Borrower.  (a) If an Event of Default shall have
occurred and be continuing with respect to the Borrower, then the
Administrative Agent may:  (i) suspend
the Commitment until such Event of Default is cured; (ii) terminate the
Commitment; (iii) declare the principal of, and all interest then accrued on,
the affected Obligations to be forthwith due and payable, whereupon the same
shall forthwith become due and payable without presentment, demand, protest,
notice of default, notice of acceleration, or of intention to accelerate or
other notice of any kind all of which the Borrower hereby expressly waives,
anything contained herein or in any other Loan Document to the contrary
notwithstanding; or (iv) without notice of default or demand, pursue and
enforce any of the Administrative Agent’s rights and remedies against the
Borrower under the Loan Documents, or otherwise provided under or pursuant to
any applicable Law or agreement; provided, however, that if any Event of
Default specified in Section 10.1(h) or Section 10.1(i) hereof shall occur, the
principal of, and all interest on, the Obligations of the Borrower shall
thereupon become due and payable concurrently therewith, without any further
action by the Administrative Agent and without presentment, demand, protest,
notice of default, notice of acceleration, or of intention to accelerate or
other notice of any kind, all of which the Borrower hereby expressly waives.


 


11.                               THE ADMINISTRATIVE AGENT.


 


11.1                        Appointment
and Authorization of the Administrative Agent.  The Lenders hereby irrevocably appoint,
designate and authorize the Administrative Agent to take such action on their
behalf under the provisions of this Credit Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Credit Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or Participant, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Credit Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.  Without limiting the generality of the
foregoing sentence, the use of the term “agent” herein and in the other Loan
Documents with reference to the Administrative Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of 


 


52

















 


any applicable Law.  Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.


 


11.2                        Delegation
of Duties.  The
Administrative Agent may execute any of its duties under this Credit Agreement
or any other Loan Document by or through agents, employees or
attorneys-in-fact, including such sub-agents as shall be deemed necessary by
the Administrative Agent, and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties.  The Administrative Agent shall not be
responsible for the negligence or misconduct of any agent, sub-agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct by the Administrative Agent, such agent, sub-agent or
attorney-in-fact.  Any such agent,
sub-agent or other Person retained or employed pursuant to this Section 11
shall have all the benefits and immunities provided to the Administrative Agent
in this Section 11.


 


11.3                        Liability
of the Administrative Agent.  The Administrative Agent shall (a) not be
liable for any action taken or omitted to be taken by it or through agents,
employees or attorneys-in-fact under or in connection with this Credit
Agreement or any other Loan Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct in connection with
its duties expressly set forth herein), or (b) not be responsible in any manner
to any Lender or Participant for any recital, statement, representation or
warranty made by the Borrower or any officer thereof, contained herein or in
any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Credit Agreement or any other Loan
Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Credit Agreement or any other Loan Document, or for any
failure of the Borrower or any other party to any Loan Document to perform its
obligations hereunder or thereunder.  The
Administrative Agent shall not be under any obligation to any Lender or
Participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Credit Agreement or
any other Loan Document, or to inspect the properties, books or records of the
Borrower.


 


11.4                        Reliance
by Administrative Agent.  The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent.  The Administrative Agent shall be fully
justified in failing or refusing to take any action under any Loan Document
unless it shall first receive such advice or concurrence of the Lenders as it
deems appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.  The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Credit
Agreement or any other Loan Document in accordance with a request or consent of
the Required Lenders (or such greater 


 


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number of Lenders as may be
expressly required hereby in any instance) and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders.


 


11.5                        Notice
of Default.  The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Potential Default or Event of Default hereunder, except with
respect to Borrower defaults in the payment of principal, interest and fees
required to be paid to Administrative Agent for the account of a Lender, unless
the Administrative Agent shall have received written notice from such Lender or
the Borrower referring to this Credit Agreement, describing such Potential
Default or Event of Default and stating that such notice is a “notice of
default.”  The Administrative Agent will
notify the Lenders of its receipt of any such notice.  The Administrative Agent shall take such
action with respect to such Potential Default or Event of Default as may be
directed by the Required Lenders in accordance with Section 13.1 hereof;
provided, however, that unless and until the Administrative Agent has received
any such direction, the Administrative Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Potential Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders.


 


11.6                        Credit
Decision; Disclosure of Information by the Administrative Agent.  The Lenders acknowledge that the
Administrative Agent has not made any representation or warranty to it, and
that no act by the Administrative Agent hereafter taken, including any consent
to and acceptance of any assignment or review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to a Lender as to any matter, including whether the
Administrative Agent has disclosed material information in its possession.  Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Borrower, and all applicable bank or other regulatory Laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Credit Agreement and to extend credit to the Borrower.  Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Credit Agreement and the other Loan Documents, and
to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower.  Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent herein, the Administrative Agent shall
not have any duty or responsibility to provide the Lenders with any credit or
other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Borrower which may
come into the possession of the Administrative Agent.


 


11.7                        Indemnification
of the Administrative Agent.  Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Administrative Agent (to the extent not reimbursed by or on behalf of the
Borrower and without limiting the obligation of the Borrower to do so), pro
rata, and hold harmless the Administrative Agent from and against any and all
costs, losses and damages incurred by it; provided, however, that the Lenders
not 


 


54

















 


shall be liable for the
payment to the Administrative Agent of any portion of such costs, losses and
damages to the extent determined in a final, nonappealable judgment by a court
of competent jurisdiction to have resulted from the Administrative Agent’s own
gross negligence or willful misconduct, provided, however, that no action taken
in accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this
Section.  Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Credit Agreement,
any other Loan Document, or any document contemplated by or referred to herein,
to the extent that the Administrative Agent is not reimbursed for such expenses
by or on behalf of the Borrower.  The
undertaking in this Section shall survive termination of the Total Commitment,
the payment of the Obligations and the resignation of the Administrative Agent.


 


11.8                        The
Administrative Agent in its Individual Capacity.  The Administrative Agent may make loans to,
issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with any Loan Party as
though it were not the Administrative Agent hereunder and without notice to or
consent of any other Credit Party and such other Credit Parties acknowledge that,
pursuant to such activities, the Administrative Agent may receive information
regarding the Loan Parties (including information that may be subject to
confidentiality obligations in favor of such Loan Parties) and acknowledge that
the Administrative Agent shall be under no obligation to provide such
information to them.  With respect to its
Loans, the Administrative Agent shall have the same rights and powers under
this Credit Agreement as any other Lender and may exercise such rights and
powers as though it were not the Administrative Agent.


 


11.9                        Successor
Administrative Agent. 
Administrative Agent may, at any time, resign as the Administrative
Agent upon 30 days’ notice to the Lenders and the Borrower and such resignation
shall become effective upon the appointment of a successor Administrative Agent
in accordance with this paragraph.  If
the Administrative Agent resigns under this Credit Agreement, the Lenders shall
appoint from among the Lenders a successor administrative agent for the
Lenders, with the consent of the Borrower, at all times other than during the
existence of an Event of Default (which consent of the Borrower shall not be
unreasonably withheld or delayed).  If no
successor administrative agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Lenders and the Borrower, a successor administrative
agent from among the Lenders.  Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term “Administrative
Agent” shall mean such successor administrative agent and the retiring
Administrative Agent’s appointment, powers and duties as the Administrative
Agent shall be terminated, without any other or further act or deed on the part
of any other Lender.  After any retiring
Administrative Agent’s resignation hereunder as the Administrative Agent, the
provisions of this Section 11.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent under
this Credit Agreement.


 


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11.10      The
Administrative Agent May File Proofs of Claim.  In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Borrower, the Administrative
Agent (irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise (a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Obligations and to file such
other documents as may be necessary or advisable in order to have the claims of
the Lender and Administrative Agent allowed in such judicial proceeding; and (b)
to collect and receive any monies or other property payable or deliverable on
any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by the Lenders to make such
payments to Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders, to
pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel.  Nothing contained herein
shall be deemed to authorize the Administrative Agent to authorize or consent
to or accept or adopt on behalf of a Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights
of a Lender or to authorize the Administrative Agent to vote in respect of the
claim of a Lender in any such proceeding.


 


11.11      Collateral
Matters.  The Lenders
irrevocably authorize the Administrative Agent, at the Administrative Agent’s
option and in the Administrative Agent’s discretion, to release any Lien on the
Collateral granted to or held by Administrative Agent under any Loan Document (a)
upon termination of the Commitments of the Lenders and payment in full of the
Obligations (other than contingent indemnification obligations) to which such
Collateral pertains, or (b) in accordance with any such Loan Document.


 


Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent’s authority to release any Collateral.


 


12.          THE ISSUING BANK.


 


12.1       Appointment.  The Lenders hereby designate Bayerische Hypo
-und Vereinsbank AG, acting through its New York Branch, as Issuing Bank to act
as specified herein and in the other Loan Documents.  Each Lender hereby irrevocably authorizes the
Issuing Bank to take such action on its behalf under the provisions of this
Agreement, the other Loan Documents and any other instruments and agreements
referred to herein or therein and to exercise such powers and to perform such
duties hereunder and thereunder as are specifically delegated to or required of
the Issuing Bank by the terms hereof and thereof and such other powers as are
reasonably incidental thereto.  The
Issuing Bank may perform any of its duties hereunder or under the other Loan Documents
by or through its officers, directors, agents, employees or Affiliates.


 


12.2        Nature
of Duties.  The Issuing
Bank shall not have any duties or responsibilities except those expressly set
forth in this Agreement and the Collateral Documents.  None of the Issuing Bank or any of its
officers, directors, agents, employees or Affiliates shall be liable for any
action taken 


 


56

















 


or omitted by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith, unless caused by its or their bad faith, fraud, willful misconduct
or gross negligence.  The duties of the
Issuing Bank shall be mechanical and administrative in nature; the Issuing Bank
shall not have by reason of this Agreement or any other Loan Document a
fiduciary relationship in respect of any Lender or the Holder of any Note; and
nothing in this Agreement or any other Loan Document, expressed or implied, is
intended to or shall be so construed as to impose upon the Issuing Bank any
obligations in respect of this Agreement or any other Loan Document except as
expressly set forth herein or therein.


 


12.3        Lack of
Reliance on the Issuing Bank.  Independently and without reliance upon the
Issuing Bank, each Lender, to the extent it deems appropriate, has made and
shall continue to make (i) its own independent investigation of the financial
condition and affairs of each Credit Party in connection with the making and
the continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of each
Credit Party and, except as expressly provided in this Agreement, the Issuing
Bank shall not have any duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or other information
with respect thereto, whether coming into its possession before the making of
the Loans or at any time or times thereafter. The Issuing Bank shall not be
responsible to any Lender for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Loan Document or the financial
condition of each Credit Party or be required to make any inquiry concerning
either the performance or observance of any of the terms, provisions or
conditions of this Agreement or any other Loan Document, or the financial
condition of each Credit Party or the existence or possible existence of any
Default.


 


12.4        Certain
Rights of the Issuing Bank.  If the Issuing Bank shall request
instructions from the Lenders with respect to any act or action (including
failure to act) in connection with this Agreement or any other Loan Document,
the Issuing Bank shall be entitled to refrain from such act or taking such
action unless and until the Issuing Bank shall have received instructions from
the Lenders, and the Issuing Bank shall not incur any liability to any Person
by reason of so refraining.  Without
limiting the foregoing, the Lenders shall not have any right of action
whatsoever against the Issuing Bank as a result of the Issuing Bank acting or
refraining from acting hereunder or under any other Loan Document in accordance
with the instructions of the Required Lenders or such greater percentage as is
required pursuant to this Agreement.


 


12.5        Reliance.  The Issuing Bank shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message,
cablegram, radiogram, order or other document or telephone message signed, sent
or made by any Person that the Issuing Bank believed to be the proper Person,
and, with respect to all legal matters pertaining to this Agreement and any
other Loan Document and its duties hereunder and thereunder, upon advice of
counsel selected by the Issuing Bank.


 


12.6        Indemnification.  To the extent the Issuing Bank is not
reimbursed and indemnified by a Credit Party, the Lenders shall reimburse and
indemnify the Issuing Bank, in proportion to their respective Voting Percentage
as used in determining the Lender, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or 


 


57

















 


disbursements of whatsoever
kind or nature which may be imposed on, asserted against or incurred by the
Issuing Bank in performing its duties hereunder or under any other Loan
Document, in any way relating to or arising out of this Agreement or any other
Loan Document; provided, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Issuing Bank’s
willful misconduct or gross negligence.


 


12.7        The
Issuing Bank in Its Individual Capacity.  With respect to its obligation to make Loans
under this Agreement, the Issuing Bank in its individual capacity shall have
the rights and powers specified herein for a “Lender” and may exercise the same
rights and powers as though it were not performing the duties specified herein;
and the term “Lender” or any similar terms shall, unless the context clearly
otherwise indicates, include the Issuing Bank in its individual capacity.  The Issuing Bank in its individual capacity
may accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with each Credit Party or any of their
respective Affiliates as if it were not performing the duties specified herein,
and may accept fees and other consideration from each Credit Party for services
in connection with this Agreement and otherwise without having to account for
the same to the Lender.


 


12.8        Resignation
by the Issuing Bank.  The Issuing
Bank may resign from the performance of all its functions and duties hereunder
and/or under the other Loan Documents at any time by giving thirty (30) days’
prior written notice to each Credit Party and the Lenders.  Such resignation shall take effect upon the
appointment of a successor Issuing Bank. 
Upon any such notice of resignation, the Lenders shall appoint a
successor Issuing Bank hereunder or thereunder who shall be a commercial bank
or trust company and, unless an Event of Default is then in existence, shall be
reasonably acceptable to each Credit Party. 
If a successor Issuing Bank shall not have been so appointed within such
thirty (30) day period, the Issuing Bank, with (unless an Event of Default is
then in existence) the consent of the Borrower (which consent shall not be
unreasonably withheld), shall then appoint a successor Issuing Bank who shall
serve as Issuing Bank hereunder or thereunder until such time, if any, as the
Lender appoint a successor Issuing Bank as provided above.  If no successor Issuing Bank has been
appointed by the thirtieth (30th) Business Day after the date such notice of
resignation was given by the Issuing Bank, the Issuing Bank’s resignation shall
become effective and the Lenders shall thereafter perform all the duties of the
Issuing Bank hereunder and/or under any other Loan Document until such time, if
any, as the Lenders appoint a successor Issuing Bank as provided above.


 


13.          MISCELLANEOUS.


 


13.1        Amendments
and Waivers; Voting Rights.  Neither this Agreement nor any other Loan
Document nor any terms hereof or thereof may be changed, waived, discharged or
terminated unless such change, waiver, discharge or termination is in writing
and approved by the Borrower and the Required Lenders; provided, that the
consent of each Lender (with Obligations being directly affected thereby in the
case of the following clause (i)) shall be required for any such change,
waiver, discharge or termination seeking to (i) extend any time fixed for the
payment of any principal of the Loans, or reduce the rate or extend the time of
payment of interest (other than as a result of waiving the applicability of any
post- default increase in interest rates) or fees thereon, or reduce the
principal amount thereof, or change the currency of payment thereof, (ii) release
all or substantially all of the Collateral (in each case except as expressly
provided in the 


 


58

















 


Loan Documents), (iii) amend,
modify or waive any provision of this Section 13.1, (iv) reduce the percentage
specified in the definition of Required Lenders (it being understood that, with
the consent of the Required Lenders, additional extensions of credit pursuant
to this Agreement may be included in the determination of the Required Lenders
on substantially the same basis as the extensions of Commitments are included
on the Closing Date), (v) consent to the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement provided, further,
that no such change, waiver, discharge or termination shall (x) increase the
Commitments of any Lender over the amount thereof then in effect without the
consent of such Lender (it being understood that waivers or modifications
(otherwise permitted hereunder) of conditions precedent, covenants or Defaults
shall not constitute an increase of the Commitment of any Lender, and that an
increase in the available portion of any Commitment of any Lender shall not
constitute an increase in the Commitment of such Lender), (y) without the
consent of the Issuing Bank, amend, modify or waive any provision of this
Agreement which relates to the rights or obligations of the Issuing Bank in its
capacity as Issuing Bank or (z) without the consent of the Administrative
Agent, amend, modify or waive any provision of Article 11 as same applies to
the Administrative Agent, or any other provision as same relates to the rights
or obligations of the Administrative Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the
Lenders and shall be binding upon the Borrower, the Lenders, the Administrative
Agent and all future holders of the Loans and the Lender Notes.  In the case of any waiver, the Borrower, the
Lenders and the Administrative Agent shall be restored to their former position
and rights hereunder and under the other Loan Documents, and any Default waived
shall be deemed to be cured and not continuing, to the extent so provided
herein; but no such waiver shall extend to any subsequent or other Default, or
impair any right consequent thereon.


 


13.2        Setoff.  In addition to any rights and remedies of a
Lender provided by Law, upon the occurrence and during the continuance of any
Event of Default, each Lender is authorized at any time and from time to time,
without prior notice to the Borrower or any other obligor, any such notice being
waived by the Borrower to the fullest extent permitted by Law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held by, and other indebtedness at any time owing by, the
Lender to or for the credit or the account of the Borrower, against any and all
Obligations of the corresponding Borrower owing to such Lender, now or
hereafter existing, irrespective of whether or not such Lender shall have made
demand under this Credit Agreement or any other Loan Document and although such
Obligations may be contingent or unmatured. 
The Lender agrees promptly to notify the Borrower after any such setoff
and application made by any Lender; provided, however, that the failure to give
such notice shall not affect the validity of such setoff and application.


 


13.3        Payments
Set Aside.  To the
extent that the Borrower makes a payment to a Lender or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any
part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by such Lender) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been made or such setoff had not
occurred.


 


59

















 


13.4        Waiver.  No failure to exercise, and no delay in
exercising, on the part of a Lender, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other further exercise thereof or the exercise of any other right.  The rights of any Lender hereunder and under
the Loan Documents shall be in addition to all other rights provided by Law.  No modification or waiver of any provision of
this Credit Agreement, the Notes (if any) or any of the other Loan Documents,
nor consent to departure therefrom, shall be effective unless in writing and no
such consent or waiver shall extend beyond the particular case and purpose
involved.  No notice or demand given in
any case shall constitute a waiver of the right to take other action in the
same, similar or other instances without such notice or demand.


 


13.5        Payment
of Expenses.  The Borrower
agrees to pay, within five (5) days after receipt of written notice therefrom:  (a) the Administrative Agent for all
reasonable out-of-pocket costs and expenses, including all Attorney Costs,
incurred by the Credit Parties in connection with the preparation, negotiation,
execution and delivery of the Loan Documents and any amendment, waiver, consent
or other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and thereby,
and (b) the Administrative Agent for all out-of-pocket costs and expenses
incurred by any Credit Party in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under the Loan Documents
against the Borrower (including all such costs and expenses incurred during any
“workout” or restructuring in respect of the Obligations and during any legal
proceeding, including any proceeding under any Debtor Relief Law), including
all fees and disbursements of any law firm or other external counsel.  The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal charges
and fees and taxes related thereto, and other out-of-pocket expenses incurred
by the Administrative Agent and the cost of independent public accountants and
other outside experts retained by the Administrative Agent.  The agreements in this Section shall survive
the termination of the Commitment and the repayment of all the other
Obligations.


 


13.6        Indemnification
by Borrower.  Whether or
not the transactions contemplated hereby are consummated, the Borrower agree to
indemnify, save and hold harmless the Credit Parties and their respective
Affiliates, directors, officers, employees, counsel, agents and attorneys-in-fact
(each an “Indemnitee” and collectively the “Indemnitees”) from
and against:  (a) any and all claims,
demands, actions or causes of action that may at any time be asserted or
imposed against any Indemnitee, arising out of or relating to, the Loan Documents,
the Commitments, the use or contemplated use of the proceeds of the Loans or
Letter of Credit, or the relationship of the Loan Parties and/or the Credit
Parties under the Loan Documents; (b) any administrative or investigative
proceeding by any Governmental Authority arising out of or related to a claim,
demand, action or cause of action described in subsection (a) above; and (c) any
and all liabilities (including liabilities under indemnities), losses, costs or
expenses (including reasonable and documented Attorney Costs) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action, cause of action or proceeding, or as a result of the
preparation of any defense in connection with any foregoing claim, demand,
action, cause of action or proceeding, in all cases, whether or not arising out
of the negligence of an Indemnitee, and whether or not an Indemnitee is a party
to such claim, demand, action, cause of action or proceeding; provided that no
Indemnitee shall be entitled to indemnification for consequential damages or
any claim, demand, action, cause of action or proceeding caused by its own
gross 


 


60

















 


negligence or willful
misconduct or for any loss asserted against it by another Indemnitee, and
provided further that Article 4 (instead of this Section 13.6) shall govern
indemnity with respect to the matters addressed in such article (including,
without limitation, Taxes).  The
agreements in this Section shall survive the termination of the Commitments and
the repayment of all the other Obligations and shall be construed in accordance
with the provisions in Section 13.8 with respect to the Obligations of the
Borrower.


 


13.7        Notice.  Any notice, demand, request or other
communication which any party hereto may be required or may desire to give
hereunder shall be in writing (except where telephonic instructions or notices
are expressly authorized herein to be given) and shall be deemed to be
effective:  (a) if by hand delivery,
telecopy or other facsimile transmission, on the day and at the time on which
delivered to such party at the address or fax numbers specified on Schedule I; (b)
if by mail, on the day which it is received after being deposited, postage
prepaid, in the United States registered or certified mail, return receipt
requested, addressed to such party at the address specified on Schedule I;
(c) if by FedEx or other reputable express mail service, on the next Business
Day following the delivery to such express mail service, addressed to such
party at the address specified on Schedule I; or (d) if by telephone, on
the day and at the time reciprocal communication (i.e., direct communication
between two or more persons, which shall not include voice mail messages) with
one of the individuals named below occurs during a call to the telephone number
or numbers indicated for such party on Schedule I.  Any party may change its address for purposes
of this Credit Agreement by giving notice of such change to the other parties
pursuant to this Section 13.7.  Upon
receipt of any such notice, the Administrative Agent will update Schedule I
accordingly.


 


13.8        Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to its principles or rules of conflicts of laws to the
extent that the same are not mandatorily applicable by statute and the
application of the laws of another jurisdiction would be required thereby.


 


13.9        Choice
of Forum; Consent to Service of Process and Jurisdiction; Waiver of Trial by
Jury.  Any suit, action or proceeding
against any party hereto with respect to the Loan Documents or any judgment
entered by any court in respect thereof, may be brought in the courts of the
State of New York, or in the United States Courts located in the Borough of
Manhattan in New York City, and each party hereto hereby irrevocably submits to
the non-exclusive jurisdiction of such courts for the purpose of any such suit,
action or proceeding.  Each party hereto
hereby irrevocably consents to the service of process in any suit, action or
proceeding in said court by the mailing thereof by registered or certified
mail, postage prepaid, to such Person’s address specified pursuant to Section 13.7
hereof.  Each party hereto hereby
irrevocably waives, to the fullest extent permitted by law, any objections
which they may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to the Loan Documents brought in the
courts located in the State of New York, Borough of Manhattan in New York City,
and hereby further irrevocably waives, to the fullest extent permitted by law,
any claim that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum. 
THE CREDIT PARTIES AND THE BORROWER HEREBY WAIVE TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THIS CREDIT AGREEMENT,
THE NOTES (IF ANY) OR ANY OF THE OTHER LOAN DOCUMENTS, WHICH WAIVER IS INFORMED
AND VOLUNTARY.


 


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13.10      Invalid
Provisions.  If any
provision of this Credit Agreement is held to be illegal, invalid, or
unenforceable under present or future Laws effective during the term of this Credit
Agreement, such provision shall be fully severable and this Credit Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Credit Agreement, and the
remaining provisions of this Credit Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Credit Agreement, unless such continued
effectiveness of this Credit Agreement, as modified, would be contrary to the
basic understandings and intentions of the parties as expressed herein.  If any provision of this Credit Agreement
shall conflict with or be inconsistent with any provision of any of the other
Loan Documents, then the terms, conditions and provisions of this Credit
Agreement shall prevail.


 


13.11      Entirety.  This Credit Agreement and the other Loan
Documents are intended by the parties hereto and thereto as the final, complete
and exclusive statement of the transactions evidenced herein and therein, and
may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements of such parties.  All
prior or contemporaneous promises, agreements and understandings, whether oral
or written, are deemed to be superceded by this Credit Agreement and the other
Loan Documents, and no party is relying on any promise, agreement or
understanding not set forth in this Credit Agreement and the other Loan
Documents.  There are no unwritten oral
agreements between such parties.


 


13.12      Successors
and Assigns.


 


(a)           Binding
Effect.  The provisions of this Credit Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby.


 


(b)           Assignments.


 


(i)            The Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of the Credit Parties.


 


(ii)           Each Lender may at any time
assign to one or more Eligible Lender (each, an “Assignee”) all or a
portion of its rights and obligations under this Credit Agreement (including
all or a portion of its Commitment and the Loans) with the prior written
consent of the Borrower; provided, that no Borrower’s consent shall be required
for any assignment of such rights or obligations by a Lender (x) to an
Affiliate of a Lender or (y) to a Related Fund, in each case, so long as such
assignment does not result in any increased borrowing costs or any additional
amounts payable as of the date of such assignment pursuant to Section 4.1, Section
4.5 or Section 4.6.  All such assignments
shall be documented pursuant to an Assignment and Assumption Agreement.


 


(iii)          The Administrative Agent
shall maintain at one of its offices a copy of each Assignment and Assumption
Agreement delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and interest and principal
amount of the Loans owing to the Lenders pursuant to the terms hereof from time
to time (the “Register”).  The
entries in the Register shall be conclusive absent manifest error, and 


 


62

















 


the Borrower, and the Credit Parties shall
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
The Register shall be available for inspection by the Loan Parties and
the Credit Parties, at any reasonable time and from time to time upon
reasonable prior notice.


 


(iv)          Upon its receipt of a duly
completed Assignment and Assumption Agreement executed by an assigning Lender
and an Assignee and any written consent to such assignment required by
paragraph (b)(ii) of this subsection, the Administrative Agent shall accept
such Assignment and Assumption Agreement, record the information contained
therein in the Register.  No assignment
shall be effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this paragraph.


 


(v)           On or prior to the effective
date of any assignment pursuant to this subsection 13.12(b), the assigning
Lender shall surrender any outstanding Notes held by it of which all or a
portion is being assigned.  Any Notes
surrendered by the assigning Lender shall be returned by the Administrative
Agent to the Borrower marked “cancelled”.


 


(c)           Participations.  Each Lender may at
any time, without the consent of, or notice to the Borrower sell participations
to any Person (other than a natural person or the Borrower or any Affiliates of
the Borrower) (each a “Participant”) in all or a portion of the Lenders’
rights and/or obligations under this Credit Agreement; provided, however, that (i)
the Lenders’ rights and obligations under this Agreement shall remain
unchanged, (ii) the Lenders shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the Borrower
shall continue to deal solely and directly with the Administrative Agent in
connection with its rights and obligations under this Agreement, (iv) in any
bankruptcy proceeding in respect of the Borrower, the Administrative Agent
shall remain and be, to the fullest extent permitted by law, the sole
representative with respect to the rights and obligations held in its name
(whether such rights or obligations are for its own account or for the account
of any Participant) and (v) no Participant shall have any right to approve any
amendment or waiver of any provision of this Agreement, any Note or any other
Loan Document or to consent to any departure by the Borrower therefrom, except
to the extent that any such amendment, waiver or consent would (x) reduce the
principal of, or interest on, any outstanding Loan, in each case to the extent
the same is subject to such participation, or (y) postpone any date fixed for
the payment of principal of, or interest on, any outstanding Loan, in each case
to the extent the same is subject to such participation.  In the case of any such participation,
notwithstanding anything to the contrary in the Loan Documents, all amounts
payable by the Borrower pursuant to Section 4.1, Section 4.5 or Section 4.6
shall be determined as if the relevant Lender had not sold such participation,
and a Borrower shall not be obligated to make any greater payment under Section
4.1, Section 4.5 or Section 4.6 than it would have been required to make in the
absence of such participation.


 


(d)           Pledge
by Lender.  Each Lender may at any time pledge or assign
a security interest in all or any portion of its rights under this Credit
Agreement (including under its Note, if any) to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall 


 


63

















 


release
such Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.


 


13.13      Maximum
Interest.  Regardless
of any provision contained in any of the Loan Documents, no Lender shall be
entitled to receive, collect or apply as interest on the Obligations any amount
in excess of the Maximum Rate, and, in the event that a Lender ever receives,
collects or applies as interest any such excess, the amount which would be
excessive interest shall be deemed to be a partial prepayment of principal and
treated hereunder as such; and, if the principal amount of the Obligations is
paid in full, any remaining excess shall forthwith be paid to the Borrower, as
applicable.  In determining whether or
not the interest paid or payable under any specific contingency exceeds the
Maximum Rate, the Borrower and each Lender shall, to the maximum extent
permitted under applicable Law:  (a) characterize
any nonprincipal payment as an expense, fee or premium rather than as interest;
(b) exclude voluntary prepayments and the effects thereof; and (c) amortize,
prorate, allocate and spread, in equal parts, the total amount of interest
throughout the entire contemplated term of the Obligation so that the interest
rate does not exceed the Maximum Rate; provided that, if the Obligations are
paid and performed in full prior to the end of the full contemplated term
thereof, and if the interest received for the actual period of existence
thereof exceeds the Maximum Rate, the Lenders shall refund to the Borrower the
amount of such excess or credit the amount of such excess against the principal
amount of the Obligations.


 


13.14      Confidentiality.  Each of the Credit Parties agrees (on behalf
of itself and each of its Affiliates, directors, officers, employees and
representatives) to keep confidential, in accordance with its customary
procedures of handling confidential information of the same nature, any
Confidential Information; provided, however, that nothing herein shall limit
the disclosure of any such information (i) to the extent required by statute,
rule, regulation or judicial process, (ii) to directors, officers, employees,
Affiliates, agents, accountants, counsel and any other advisors of such Credit
Party on a need-to-know basis; provided that such Persons are advised of the
confidential nature of such information and their obligation to keep such
information confidential, (iii) to bank examiners, auditors or accountants, any
Governmental Authority or to any other regulatory agency or body with proper
authority (including nongovernmental regulatory agencies or bodies), (iv) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any suit, action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder or thereunder, (v) to
a Subsidiary or Affiliate of such Credit Party on a need-to-know basis in
connection with a transfer permitted by Section 13.12, provided that such
Persons are advised of the confidential nature of such information and their
obligation to keep such information confidential, (vi) to any assignee or
participant (or prospective assignee or participant) so long as the Lender
making such assignment or selling such participation shall procure that such
assignee or participant (or prospective assignee or participant) first executes
and delivers to the Lender an agreement for the benefit of the Borrower to the
effect that it is bound by the provisions of this Section 13.14, (vii) to any
credit rating agency that rates the financial condition or the claims paying
ability of the Lender or the financial condition or assets of the Borrower, or (viii)
with the consent of the Borrower. 
Nothing in the Loan Documents shall limit the disclosure of the tax
treatment or tax structure of any transaction under or contemplated by any Loan
Document.  As used in this paragraph, the
term “tax treatment” refers to the purported or claimed U.S. federal income tax
treatment and the term “tax structure” refers to any fact that may be relevant
to understanding the purported or claimed 


 


64

















 


U.S. federal income tax
treatment, provided that, (A) for the avoidance of doubt, except to the extent
otherwise established in published guidance by the U.S. Internal Revenue
Service, tax treatment and tax structure shall not include, the name of,
contact information for, or any other similar identifying information regarding
the Borrower or the Lenders (including the names of any employees or affiliates
thereof) and (B) nothing in this paragraph shall limit the ability of the
Borrower or the Lenders to make any disclosure to the Borrower’s or Lenders’
tax advisors or to the U.S. Internal Revenue Service.


 


13.15      Headings.  Section headings are for convenience of
reference only and shall in no way affect the interpretation of this Credit
Agreement.


 


13.16      Survival.  All representations and warranties made by
the Borrower herein shall survive delivery of the Notes (if any) and the making
of the Loans.


 


13.17      USA
Patriot Act Notice.  The
Administrative Agent hereby notifies the Borrower 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 the Borrower, which information
includes the name and address of the Borrower, and other information that will
allow the Administrative Agent to identify the Borrower in accordance with the
Patriot Act.


 


13.18      Multiple
Counterparts; Facsimile Execution.  This Credit Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same agreement, and any of the parties hereto may execute this Credit
Agreement by signing any such counterpart. 
In furtherance and not in limitation of the foregoing, the execution and
delivery to the Administrative Agent or its counsel by any of the undersigned
parties of a duly executed signature page shall constitute, for all purposes,
the execution and delivery by such party of an original signature page with
respect to this Credit Agreement.


 


65
















 


IN WITNESS WHEREOF, the
parties hereto have caused this Credit Agreement to be duly executed as of the
day and year first above written.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  LEXINGTONPARK
  PARENT CORP. (to be renamed COWEN GROUP, INC.), as Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey M. Solomon

  
	
   

  	
   

  	
  Name:
  Jeffrey M. Solomon

  
	
   

  	
   

  	
  Title:   President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher A. White

  
	
   

  	
   

  	
  Name: Christopher A. White

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 


[Signature
Page to Secured Revolving Credit Agreement - LexingtonPark Parent Corp.]


 

















 


	
   

  	
  ADMINISTRATIVE
  AGENT:

  
	
   

  	
   

  
	
   

  	
  BAYERISCHE
  HYPO-UND VEREINSBANK AG, NEW YORK BRANCH, as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael A. Imperiale

  
	
   

  	
   

  	
  Name:
  Michael A. Imperiale

  
	
   

  	
   

  	
  Title:   Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rebecca Jones

  
	
   

  	
   

  	
  Name: Rebecca Jones

  
	
   

  	
   

  	
  Title:   Vice President

  



 


SIGNATURE PAGE- LPPC CREDIT
AGREEMENT-NOVEMBER 2, 2009


 

















 


	
   

  	
  ISSUING
  BANK:

  
	
   

  	
   

  
	
   

  	
  BAYERISCHE
  HYPO-UND VEREINSBANK AG, NEW YORK BRANCH, as Issuing Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael A. Imperiale

  
	
   

  	
   

  	
  Name:
  Michael A. Imperiale

  
	
   

  	
   

  	
  Title:
    Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Rebecca Jones

  
	
   

  	
   

  	
  Name:
  Rebecca Jones

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 


SIGNATURE PAGE- LPPC CREDIT
AGREEMENT-NOVEMBER 2, 2009


 

















 


	
   

  	
  FRONTING
  BANK:

  
	
   

  	
   

  
	
   

  	
  BAYERISCHE
  HYPO-UND VEREINSBANK AG, NEW YORK BRANCH, as Fronting Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael A. Imperiale

  
	
   

  	
   

  	
  Name:
  Michael A. Imperiale

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rebecca Jones

  
	
   

  	
   

  	
  Name: Rebecca Jones

  
	
   

  	
   

  	
  Title: Vice President

  



 


SIGNATURE PAGE- LPPC CREDIT
AGREEMENT-NOVEMBER 2, 2009


 

















 


	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
  BAYERISCHE
  HYPO-UND VEREINSBANK AG, NEW YORK BRANCH, as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael A. Imperiale

  
	
   

  	
   

  	
  Name:
  Michael A. Imperiale

  
	
   

  	
   

  	
  Title:   Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rebecca Jones

  
	
   

  	
   

  	
  Name: Rebecca Jones

  
	
   

  	
   

  	
  Title:   Vice President

  



 


SIGNATURE PAGE- LPPC CREDIT
AGREEMENT-NOVEMBER 2, 2009


 

















 


	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
  UNICREDIT
  BANK AUSTRIA AG

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gavin Burke

  
	
   

  	
   

  	
  Name:
  Gavin Burke

  
	
   

  	
   

  	
  Title:
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael A. Imperiale

  
	
   

  	
   

  	
  Name: Michael A. Imperiale

  
	
   

  	
   

  	
  Title: Director