rmbl_ex101










Exhibit 10.1






 



Execution Version











OAKTREE CAPITAL MANAGEMENT, L.P.


333
South Grand Avenue, 28th Floor


Los
Angeles, California 90071



CONFIDENTIAL

 


March
12, 2021

 


RumbleOn,
Inc.


901 W.
Walnut Lane, Suite #350C


Irving,
Texas 75038


Attention:
Marshall Chesrown


 

 



Project Wheelie



Commitment Letter

 


Ladies
and Gentlemen:

 


RumbleOn, Inc, a
Nevada corporation (“you” or the
“Borrower”),
has advised Oaktree Capital Management, L.P. (“Oaktree” or
the “Commitment
Party”, “us” or
“we”), that you
intend to acquire, directly or indirectly, the “Target”
(as defined in Exhibit
A hereto) and consummate the other transactions described in
Exhibit A hereto.
Capitalized terms used but not defined herein are used with the
meanings assigned to them on the exhibits attached hereto (such
exhibits, together with this letter, collectively, the
“Commitment
Letter”).

 



1.            


Commitments





 


In
connection with the Transactions, Oaktree (the “Initial
Lender”) is pleased to advise you of its commitment to
provide, and hereby agrees to provide, 100% of the principal amount
of the Term Facilities, upon the terms expressly set forth in this
Commitment Letter (including, without limitation, the Summary of
Terms and Conditions attached hereto as Exhibit B, respectively (the
“Term
Sheet”)) and subject solely to the Exclusive Funding
Conditions (as defined below).

 



2.            


Titles and Roles





 


You
hereby appoint (i) Oaktree to act as sole lead arranger and
bookrunning manager (in such capacity, the “Lead
Arranger”) and (ii) Oaktree Fund Administration,
LLC to act as sole administrative agent (in such capacity, the
“Administrative
Agent”) for the Term Facilities.

 


It is
further agreed that Oaktree will have “left” placement
on any marketing materials or other documentation used in
connection with the Term Facilities and shall hold the leading role
and responsibility associated with such “top left”
placement. You agree that no other agents or arrangers will be
appointed, no other titles will be awarded and no compensation
(other than that compensation expressly contemplated by this
Commitment Letter and the Fee Letter referred to below) will be
paid in connection with obtaining the commitment of Lenders (as
defined below) to participate in the Term Facilities unless you and
we shall so agree.

 



 







 





 



3.            


Syndication





 


The
Lead Arranger intends to syndicate the Term Facilities to a group
of banks, financial institutions and other lenders (together with
the Initial Lender but excluding Specified Competitors (as defined
below), the “Lenders”);
provided that (i)
the Lead Arranger will not syndicate, assign or participate to
those entities reasonably satisfactory to the Lead Arranger and
identified by you in writing within five (5) business days hereof
as competitors of the Borrower, the Target or their respective
subsidiaries (collectively, the “Specified
Competitors”) and (ii) the Lead Arranger may not
syndicate more than $200,000,000 of the principal amount of the
Term Facilities. Notwithstanding any other provision of this
Commitment Letter to the contrary and notwithstanding any
assignment, syndication or participation by the Initial Lender, (i)
the Initial Lender shall not be released, relieved or novated from
its obligations hereunder (including its obligation to fully fund
the Initial Term Facility on the Closing Date) in connection with
any syndication, assignment or participation of the Initial Term
Facility, including its commitments in respect thereof, until after
the funding of the Initial Term Facility on the Closing Date, (ii)
no assignment or novation shall become effective with respect to
all or any portion of the Initial Lender’s commitments in
respect of the Term Facilities until after the funding of the
Initial Term Facility on the Closing Date and (iii) unless you
otherwise agree in writing, the Initial Lender shall retain
exclusive control over all rights and obligations with respect to
its respective commitments in respect of the Term Facilities,
including all rights with respect to consents, modifications,
supplements and amendments, until after the initial funding of the
Term Facilities on the Closing Date has occurred.

 


The
Lead Arranger intends to commence syndication efforts with respect
to the Term Facilities promptly following your execution and
delivery of this Commitment Letter and, until thirty (30) days
after the Closing Date (such period, the “Syndication
Period”), you agree to use your commercially
reasonable efforts to assist (and to use your commercially
reasonable efforts to cause the Target to assist) the Lead Arranger
in completing a syndication reasonably satisfactory to the Lead
Arranger and you. Such assistance shall include the following:
using your commercially reasonable efforts to facilitate direct
contact between your senior management and the proposed Lenders
(and using your commercially reasonable efforts to obtain such
contact between the senior management of the Target and the
proposed Lenders) at times and locations to be mutually agreed;
provided that all
such meetings shall be virtual. Notwithstanding anything to the
contrary contained in this Commitment Letter or the Fee Letter or
any other letter agreement or undertaking concerning the financing
of the Transactions to the contrary, neither the commencement nor
the completion of the syndication of the Term Facilities nor the
compliance with any of the other provisions set forth in any
provision of this or any other paragraph of this Section 3 shall constitute a
condition to the commitments hereunder or the funding of the Term
Facilities on the Closing Date.

 


The
Lead Arranger, in its capacity as such, will manage, in
consultation with you (subject to your rights set forth in the
preceding paragraphs of this Section 3), all aspects of the
syndication, including decisions as to the selection of
institutions (other than Specified Competitors) to be approached
and when they will be approached, when the Lenders’
commitments will be accepted, which Lenders (other than Specified
Competitors) will participate, the allocation of the commitments
among the Lenders and, subject to the provisions of the Fee Letter,
the amount and distribution of fees among the Lenders.

 



 


[Commitment
Letter]







 





 


You
acknowledge that (a) the Lead Arranger on your behalf will make
available, on a confidential basis, an information package and
presentation to the proposed syndicate of Lenders by posting the
information package and presentation on IntraLinks, DebtDomain or
another similar electronic system and (b) certain prospective
Lenders may be “public side” Lenders (i.e., Lenders
that have personnel that do not wish to receive material non-public
information (within the meaning of the United States federal and
state securities laws, “MNPI”) with
respect to you, the Target, your or their respective subsidiaries,
the respective securities of any of the foregoing or the
Acquisition and who may be engaged in investment and other
market-related activities with respect to such entities’
securities). At the reasonable request of the Lead Arranger, you
agree to use your commercially reasonable efforts to assist (and to
use commercially reasonable efforts to cause the Target to assist)
in the preparation of a version of the information package and
presentation to be used in connection with the syndication of the
Term Facilities consisting exclusively of information and
documentation with respect to you, the Target, your or the
Target’s securities and the Acquisition that is (a) not
material (as reasonably determined by you) with respect to you, the
Target, your or their respective subsidiaries, the Acquisition or
any of your or their respective securities for purposes of United
States federal and state securities laws or (b) of a type that
would customarily be publicly disclosed (as reasonably determined
by you) in connection with any issuance by you or the Target or any
of your or their respective subsidiaries of any debt or equity
securities issued pursuant to a public offering, Rule 144A offering
or other private placement where assisted by a placement agent (all
such information and documentation being “Public Lender
Information” and with any information and documentation that
is not Public Lender Information being referred to herein as
“Private
Lender Information”). It is understood that in
connection with your assistance described above, a customary
authorization letter will be included in the Confidential
Information Memorandum that authorizes the distribution of such
information to prospective Lenders and confirms to the Lead
Arranger that the Public Lender Information does not include
information about the Borrower, the Target or their respective
subsidiaries or their respective securities other than as described
in clauses (a) and (b) above (other than information about the
Transactions or the Term Facilities) and will include a customary
representation consistent with the representation in Section 4 below with respect to
the information set forth therein, and the Public Lender
Information will contain customary language exculpating us, our
affiliates, you, the Target and your and their respective
affiliates with respect to any liability related to the use (or
misuse) of the contents of such Public Lender Information or the
related marketing material by the recipients thereof. You
acknowledge and agree that the following documents may be
distributed to prospective Lenders wishing to receive only the
Public Lender Information (unless you promptly notify us otherwise
and provided that you have been given a reasonable opportunity to
review such documents): (i) drafts and final definitive
documentation with respect to the Term Facilities (excluding, if
applicable, any specifically identified schedules thereof); (ii)
administrative materials prepared by the Lead Arranger for
prospective Lenders (such as a Lender meeting invitation,
allocations and funding and closing memoranda (but excluding any
Projections (as defined below))); and (iii) term sheets and
notification of changes in the terms of the Term Facilities. You
also agree to identify that portion of any other Information (as
defined below) as relating to you or the Target (the
“Borrower
Materials”) to be distributed to “public
side” Lenders and that you will clearly and conspicuously
mark such materials “PUBLIC” which, at a minimum, shall
mean that the word “PUBLIC” shall appear prominently on
the first page thereof. By marking Borrower Materials
“PUBLIC,” you shall be deemed to have authorized the
Lead Arranger and the proposed Lenders to treat such Borrower
Materials as not containing any information about the Borrower, the
Target or their respective subsidiaries or their respective
securities other than as described in clauses (a) and (b) above
(other than information about the Transactions or the Term
Facilities) (it being understood that you shall not be under any
obligation to mark the Information Materials “PUBLIC”).
You agree that, unless expressly identified as Public Lender
Information, each document to be disseminated by the Lead Arranger
to any Lender in connection with the Term Facilities will be deemed
to contain Private Lender Information (except with respect to those
documents described in clauses (i), (ii) and (iii) of the third
preceding sentence or information about the Transactions or the
Term Facilities).

 



4.            


Information





 


You
hereby represent and warrant (with respect to Information (as
defined below) relating to the Target and its subsidiaries and
their respective businesses, to your knowledge) that, (a) all
written information, other than customary financial projections to
be used in connection with the syndication of the Term Facilities
including financial estimates, pro forma financial statements,
forecasts and other forward-looking information (the
“Projections”)
and information of a general economic or industry-specific nature,
concerning you, the Target, your and its respective subsidiaries,
the Acquisition and the other transactions contemplated hereby (the
“Information”),
that has been or will be made available to us by or on behalf of
you or your representatives in connection with the transactions
contemplated hereby, taken as a whole and as supplemented, does not
contain (or, in the case of Information furnished after the date
hereof, will not contain), as of the time it was (or hereafter is)
furnished, any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements contained
therein not materially misleading in light of the circumstances
under which such statements are made, as supplemented and updated
as provided below and (b) the Projections that have been or
will be made available to us by or on behalf of you in connection
with the transactions contemplated hereby have been or will be
prepared in good faith based upon assumptions believed by you to be
reasonable at the time furnished (it being recognized by the
Commitment Party that (i) such Projections are not to be
viewed as facts or a guarantee of performance and are subject to
significant uncertainties and contingencies many of which are
beyond your control and (ii) no assurance can be given that
any particular financial projections will be realized, and that
actual results during the period or periods covered by any such
Projections may differ from the projected results, and such
differences may be material). You agree that if, at any time prior
to the later of Closing Date and the end of the Syndication Period,
you become aware that any of the representations and warranties in
the preceding sentence would be, (with respect to Information
relating to the Target and its subsidiaries and their respective
businesses, to your knowledge) incorrect in any material respect if
the Information or Projections were being furnished and such
representations and warranties were being made at such time, then
you will (and will use commercially reasonable efforts to cause the
Target to) promptly supplement the Information and the Projections
so that (with respect to Information relating to the Target and its
subsidiaries and their respective businesses, to your knowledge)
such representations are correct, in all material respects, under
those circumstances. The making or accuracy of the foregoing
representations and warranties, whether or not cured, shall not be
a condition to the obligations of the Commitment Party. You
understand that in arranging and syndicating the Term Facilities we
may use and rely on the Information and the Projections without
independent verification thereof, and we do not assume
responsibility for the accuracy or completeness of the Information
or the Projections.

 



 


[Commitment
Letter]







 





 



5.            


Fees





 


As
consideration for the commitments and agreements of the Commitment
Party hereunder, you agree to pay or cause to be paid the
nonrefundable compensation described in the separate fee letter
dated the date hereof and delivered herewith (the
“Fee
Letter”) on the terms and subject to the conditions
expressly set forth therein.

 



6.            


Conditions





 


The
Initial Lender’s commitments hereunder are subject solely to
the satisfaction (or waiver) of the Exclusive Funding Conditions,
and upon the satisfaction (or waiver by the Commitment Party) of
the Exclusive Funding Conditions, the initial funding of the
Initial Term Facility shall occur.

 


Notwithstanding
anything in this Commitment Letter, the Fee Letter, the Credit
Facility Documentation or any other letter agreement or other
undertaking concerning the financing of the transactions
contemplated hereby to the contrary, (a) the only
representations the accuracy of which shall be a condition to the
availability of the Initial Term Facility on the Closing Date,
shall be (i) such of the representations made by or on behalf
of the Target and its subsidiaries in the Purchase Agreement as are
material to the interests of the Lenders, but only to the extent
that you or your applicable affiliates have the right (determined
without regard to any notice provisions but taking into account any
applicable cure provisions) to terminate your (or their)
obligations under the Purchase Agreement or decline to consummate
the Acquisition as a result of a breach of such representations in
the Purchase Agreement (the “Specified Purchase
Agreement Representations”) and (ii) the
Specified Representations (as defined below) (the representations
described in clauses (i) and (ii) being the
“Closing
Date Representations”) and (b) the terms of the
Credit Facility Documentation shall be in a form such that they do
not impair the availability of the Initial Term Facility on the
Closing Date if the Exclusive Funding Conditions are satisfied (or
waived by the Commitment Party), it being understood that, to the
extent any lien search, insurance certificate, guarantee (solely
with respect to the Target and its subsidiaries) or Collateral
(including the creation or perfection of any security interest) is
not or cannot be provided on the Closing Date (other than the
pledge and perfection of Collateral of Borrower and the Guarantors
with respect to which a lien may be perfected solely by (A) the
filing of financing statements (other than fixture filings on real
estate) under the Uniform Commercial Code (“UCC”) and (B)
the delivery of stock certificates or other certificates, if any,
representing equity interests of the Borrower and any material
domestic wholly-owned restricted subsidiary of Borrower (if any)
that is part of the Collateral required to be pledged pursuant to
the Term Sheet to the extent (x) possession of such certificates
perfects a security interest therein and (y) in the case of stock
certificates or other certificates representing equity interests of
subsidiaries of the Target, such stock certificates have been
received from the Target after your use of commercially reasonable
efforts to do so) after your use of commercially reasonable efforts
to do so without undue burden or expense, then the provision and/or
perfection, as applicable, of any such lien search, insurance
certificate and/or Collateral shall not constitute a condition
precedent to the availability of the Initial Term Facility, but may
instead be provided within sixty (60) days after the Closing Date,
in each case, subject to such extensions as are reasonably agreed
by Oaktree and Borrower, or pursuant to arrangements to be mutually
agreed by the parties hereto acting reasonably. “Specified
Representations” means the representations in the
Credit Facility Documentation relating to corporate or other
organizational existence, organizational power and authority of
Borrower and the Guarantors (as they relate to due authorization,
execution, delivery and performance of the Credit Facility
Documentation); due authorization, execution, delivery and
enforceability, in each case relating to the entering into and
performance of such Credit Facility Documentation by Borrower and
the Guarantors; solvency as of the Closing Date (after giving
effect to the Transactions) of Borrower and its subsidiaries on a
consolidated basis (in form and scope consistent with the solvency
certificate to be delivered pursuant to paragraph 1 of
Exhibit C hereto);
no violations or conflicts with organizational documents (as
related to the Credit Facility Documentation) of Borrower and the
Guarantors; Federal Reserve margin regulations; the Investment
Company Act; the PATRIOT Act; use of proceeds of the Term Loans not
violating OFAC or FCPA; and the creation, validity and perfection
of the security interests (subject to customary permitted liens) in
the Collateral of Borrower and the Guarantors and subject in all
respects to the foregoing provisions of this paragraph.
Notwithstanding anything in this Commitment Letter, the Fee Letter,
the Credit Facility Documentation or any other letter agreement or
other undertaking concerning the financing of the transactions
contemplated hereby to the contrary, (a) the commitments of
the Initial Lender hereunder and the Lead Arranger’s
agreements to perform the services described herein, including the
funding of the Initial Term Facility, are subject (i) to the
conditions expressly set forth under the heading “Conditions
to Initial Borrowing on the Closing Date” in the Term Sheet
on Exhibit B, and
(ii) to the conditions set forth in this Section 6 and in Exhibit C hereto (collectively,
the “Exclusive Funding
Conditions”), (b) the only conditions (express or
implied) to the availability of the Initial Term Facility on the
Closing Date are the Exclusive Funding Conditions and (c) to
the extent the Closing Date Representations with respect to the
Target and its subsidiaries are qualified or subject to
“material adverse effect”, the definition thereof shall
be “Material Adverse Effect” as defined in the Purchase
Agreement as in effect on the date hereof or as amended in
accordance with paragraph 2 of Exhibit C hereto
(“Target
Material Adverse Effect”) for purposes of any
representations and warranties made or to be made on or as of the
Closing Date. This paragraph, and the provisions herein, shall be
referred to as the “Certain Funds
Provision.” The Lead Arranger will cooperate with you
as reasonably requested in coordinating the timing and procedures
for the funding of the Initial Term Facility in a manner consistent
with the Purchase Agreement on the Closing Date.

 



 


[Commitment
Letter]







 





 



7.            


Indemnification and Expenses





 


You
agree (a) to indemnify and hold harmless the Commitment Party,
its controlled affiliates and controlling persons and the
respective directors, officers, employees and other representatives
of each of the foregoing and their respective successors (each, an
“indemnified
person”) from and against any and all actual losses,
claims, damages, liabilities and expenses, joint or several, to
which any such indemnified person may become subject arising out of
or in connection with this Commitment Letter, the Fee Letter, the
Transactions or the use of proceeds of the Initial Term Facility or
any claim, litigation, investigation or proceeding (a
“Proceeding”)
relating to any of the foregoing, regardless of whether any
indemnified person is a party thereto, whether or not such
Proceedings are brought by you, the Target, your or their equity
holders, affiliates, creditors or any other person, and to
reimburse each indemnified person within thirty (30) days of
written demand (together with reasonable backup documentation) for
any reasonable out-of-pocket expenses incurred in connection with
investigating or defending any of the foregoing (but limited, in
the case of legal fees and expenses, to one counsel to such
indemnified persons taken as a whole and, if reasonably necessary,
one local counsel in any relevant material jurisdiction and, in the
case of a conflict of interest, one additional counsel to the
affected indemnified persons taken as a whole, in each case
excluding allocated costs of in-house counsel); provided that, the foregoing
indemnity will not, as to any indemnified person, apply to losses,
claims, damages, liabilities or related expenses to the extent they
arise from (i) the willful misconduct, bad faith, fraud or
gross negligence of such indemnified person (or its controlled
affiliates and controlling persons and their respective directors,
officers, employees and other representatives), (ii) the
material breach of the Commitment Letter or Fee Letter by any
indemnified person (or its controlled affiliates and controlling
persons and their respective directors, officers, employees and
other representatives) (in the case of each of preceding clause
(i) and this clause (ii), as determined by a court of
competent jurisdiction in a final non-appealable judgment) and
(iii) any disputes solely among indemnified persons (other
than (x) any claims against the Commitment Party in its capacity as
a Lead Arranger or any similar role under the Term Facilities
unless such claim would otherwise be excluded pursuant to clause
(i) or (ii) above and (y) claims arising out of any act or
omission of Borrower or the Target or any of your or its respective
subsidiaries) and (b) whether or not the Closing Date occurs,
to reimburse the Commitment Party and its affiliates for all
reasonable and documented expenses (including, but not limited to, due
diligence expenses, syndication expenses and (limited to)
reasonable fees, charges and disbursements of one primary counsel
to the Commitment Party and, if reasonably necessary, one local
counsel in any relevant material jurisdiction incurred in
connection with the Term Facilities and any related documentation
(including this Commitment Letter, the Fee Letter and the Credit
Facility Documentation) or the administration, amendment,
modification or waiver of any of the foregoing) within thirty (30)
days of written demand (including documentation reasonably
supporting such request) (other than with respect to such fees and
expenses paid on the Closing Date for which written demand
including documentation reasonably supporting such request is
provided at least three (3) business days prior to the Closing
Date); provided
that, such fees and expenses (i) in the case of legal counsel,
shall be limited to the reasonable fees and expenses of counsel
described in this clause (b) which, in any event, shall exclude
allocated costs of in-house counsel and (ii) in the case of any
other advisors and consultants, shall be limited solely to advisors
and consultants approved by you;. No person a party hereto nor any
indemnified person shall be liable for any damages arising from the
use by others of Information or other materials obtained through
electronic, telecommunications or other information transmission
systems, including, without limitation, SyndTrak, IntraLinks, the
internet, email or similar electronic transmission systems, in each
case, except to the extent any such damages are found in a final
non-appealable judgment of a court of competent jurisdiction to
have resulted from the gross negligence, bad faith, fraud or
willful misconduct of, or material breach of this Commitment Letter
or the Fee Letter by, such person (or its controlled affiliates and
controlling persons and their respective directors, officers,
employees and other representatives). None of the indemnified
persons or you, the Target or any of your or its respective
affiliates or the respective directors, officers, employees,
advisors, and agents of the foregoing shall be liable for any
indirect, special, punitive or consequential damages in connection
with this Commitment Letter, the Fee Letter, the Term Facilities or
the transactions contemplated hereby; provided that, nothing
contained in this sentence shall limit your indemnification and
reimbursement obligations to the extent expressly set forth herein
in respect of any losses, claims, damages, liabilities and expenses
incurred or paid by an indemnified person to a third party
unaffiliated with the Commitment Party. Each indemnified person (by
accepting the benefits hereof) agrees to refund and return any and
all amounts paid by you to such indemnified person pursuant to the
terms of this paragraph to the extent such indemnified person is
not entitled to the payment thereof pursuant to the terms of this
paragraph.

 


You
shall not be liable for any settlement of any Proceeding (or
expenses solely in respect of such settlement) effected without
your written consent (which consent shall not be unreasonably
withheld, delayed or conditioned), but if settled with your written
consent, or if there is a final judgment against an indemnified
person in any such Proceeding, you agree to indemnify and hold
harmless each indemnified person to the extent and in the manner
set forth above. You shall not, without the prior written consent
of the affected indemnified person (which consent shall not be
unreasonably withheld, conditioned or delayed), effect any
settlement of any pending or threatened Proceeding against such
indemnified person in respect of which indemnity could have been
sought hereunder by such indemnified person unless (a) such
settlement includes an unconditional release of such indemnified
person from all liability or claims that are the subject matter of
such Proceeding, (b) includes customary confidentiality provisions
and (c) such settlement does not include any statement as to
any admission of fault, culpability or failure to act by or on
behalf of any indemnified person.

 



 


[Commitment
Letter]







 





 


In case
any Proceeding is instituted involving any indemnified person for
which indemnification is to be sought hereunder by such indemnified
person, then such indemnified person will promptly notify you of
the commencement of any Proceeding after such indemnified person
has actual knowledge of the same; provided, however, that the failure so to
notify you will not relieve you from any liability that you may
have to such indemnified person pursuant to this Section 7.

 


Notwithstanding
anything to the contrary contained herein, upon the execution of
the Credit Facility Documentation, (a) the relevant provisions
of such definitive documentation shall supersede the provisions of
the preceding paragraphs of this Section 7 and (b) your
obligation pursuant to this Commitment Letter to reimburse an
indemnified person (or its related indemnified persons) for losses,
claims, damages, liabilities, expenses, fees or any such
indemnified obligations or any other expense reimbursement shall
automatically terminate and be replaced in all respects by the
relevant provisions set forth in the Credit Facility
Documentation.

 



8.            


Sharing of Information, Absence of Fiduciary Relationship,
Affiliate Activities





 


You
acknowledge that the Commitment Party (or its affiliates) is a
full-service securities firm and that we may from time to time
(a) effect transactions, for our own or our affiliates’
account or the account of customers, and hold positions in loans,
securities or options on loans or securities of you, the Target or
its affiliates and of other companies that may be the subject of
the transactions contemplated by this Commitment Letter or with
which you or the Target or their subsidiaries may have commercial
or other relationships or adverse interests or (b) provide
debt financing, equity capital, investment banking, financial
advisory services, securities trading, hedging, financing and
brokerage activities and financial planning and benefits counseling
to other companies in respect of which you may have conflicting
interests. In addition, consistent with the Commitment
Party’s policy to hold in confidence the affairs of its
customers, the Commitment Party will not furnish information
obtained from you, the Target or your or their respective
affiliates and representatives to any of its other clients (or to
clients of its affiliates) or in connection with the performance by
the Commitment Party and its affiliates of services for its other
clients (or for clients of their affiliates). You also acknowledge
that the Commitment Party and its affiliates have no obligation to
use in connection with the transactions contemplated hereby, or to
furnish to you, confidential information obtained from other
companies or other persons.

 


You
further acknowledge and agree that (a) you are capable of
evaluating and understanding, and you understand and accept, the
terms, risks and conditions of the transactions contemplated by
this Commitment Letter, (b) you have been advised that the
Commitment Party and its affiliates are engaged in a broad range of
transactions that may involve interests that differ from your and
your affiliates’ interests and that the Commitment Party has
no obligation to disclose such interests and transactions to you or
your affiliates, (c) you have consulted your own legal,
accounting, regulatory and tax advisors to the extent you have
deemed appropriate and you are not relying on the Commitment Party
for such advice, and (d) none of the Commitment Party nor its
affiliates have any obligation to you or your affiliates with
respect to the transactions contemplated hereby except those
obligations expressly set forth herein or in any other express
writing executed and delivered by the Commitment Party and you.
Please note that neither the Commitment Party nor any of its
affiliates provide tax, accounting or legal advice.

 



 


[Commitment
Letter]







 







 


You
further acknowledge and agree that (a) no fiduciary, advisory or
agency relationship between you and us is intended to be or has
been created in respect of any of the transactions contemplated by
this Commitment Letter, irrespective of whether we or our
affiliates have advised or are advising you on other matters, (b)
we, on the one hand, and you, on the other hand, have an
arms-length business relationship that does not directly or
indirectly give rise to, nor do you rely on, any fiduciary duty on
our part, (c) in connection therewith and with the process leading
to the Transactions, the Commitment Party and its affiliates (as
the case may be) are acting solely as a principal and not as agents
or fiduciaries of you and their management, stockholders,
creditors, affiliates or any other person and (d) you will not
claim that the Commitment Party (in its capacity as such) or its
applicable affiliates, as the case may be, have rendered advisory
services of any nature or respect, or owe a fiduciary or similar
duty to you or your affiliates, in connection with the transactions
contemplated by this Commitment Letter or the process leading
thereto.

 



9.            


Confidentiality





 


This
Commitment Letter is delivered to you on the understanding that
neither this Commitment Letter nor the Fee Letter nor any of their
terms shall be disclosed by you to any other person, except
(a) to your officers, directors, employees, affiliates,
members, partners, stockholders, actual and potential co-investors,
attorneys, accountants, agents and advisors on a confidential
basis, (b) to the Target and its officers, directors,
employees, affiliates, members, partners, stockholders, attorneys,
accountants, agents and advisors on a confidential basis (provided
that, any disclosure of the Fee Letter or its terms or substance
under this clause (b) prior to the Closing Date shall
be redacted in a customary manner in respect of the amounts,
percentages and basis points of compensation set forth therein
(and, after the Closing Date, may be disclosed in an unredacted
version to the Target and its respective officers, directors,
employees, attorneys, accountants, agents and advisors, in each
case, on a confidential basis)), unless the Commitment Party
otherwise consents in writing (including via e-mail) (such consent
not to be unreasonably withheld, delayed or conditioned), (c) after
the Closing Date, the Commitment Letter and Fee Letter may be used
for customary accounting purposes, including accounting for
deferred accounting costs or the aggregate amount of fees payable
may be used as part of projections, pro forma information and a
generic disclosure of aggregate sources and uses, (d) in any
legal, regulatory, judicial or administrative proceeding or as
otherwise required by applicable law, rule or regulation or as
requested by a governmental authority (including a self-regulatory
authority) (in which case you agree, to the extent permitted by
law, rule or regulation, to inform us promptly thereof),
(e) in connection with the exercise of any remedy or
enforcement of any right under this Commitment Letter and the Fee
Letter, (f) the existence and contents of the Commitment Letter and
the Term Sheet may be disclosed (but not the Fee Letter or the
contents thereof other than the existence thereof and the aggregate
amount of fees payable as part of projections, pro forma
information and a generic disclosure of aggregate sources and uses)
in any proxy, public filing, prospectus, offering memorandum,
offering circulation, syndication materials or other materials in
connection with the Transactions, (g) the Commitment Letter
including the Term Sheet and Exhibit C hereto (but not the
Fee Letter or the contents thereof other than the existence thereof
and the aggregate amount of fees payable as part of projections,
pro forma information and a generic disclosure of aggregate sources
and uses) may be disclosed to actual and prospective Lenders and to
any rating agency in connection with the Transactions or in any
public regulatory filing requirement (including, for clarity
purposes, any customary 8-K in connection with the Commitment
Letter) relating to the Transactions, (h) to the extent any such
information becomes publicly available other than by reason of
disclosure by you, your controlled affiliates or your
representatives in violation of this Commitment Letter and (i) with
the Commitment Party’s consent in writing (including via
e-mail). The foregoing restrictions shall cease to apply after the
Credit Facility Documentation shall have been executed and
delivered by the parties hereto (other than with respect to any
economics referenced in the Fee Letter).

 



 


[Commitment
Letter]







 





 


The
Commitment Party shall treat confidentially all information
received by it from you, the Target or your or their respective
affiliates and representatives in connection with the Acquisition
and the other Transactions and only use such information for the
purposes of providing the services contemplated by this Commitment
Letter; provided,
however, that
nothing herein shall prevent the Commitment Party from disclosing
any such information (a) to any actual or prospective participants,
current or prospective funding sources (including leverage
providers) or derivative counterparties (other than Specified
Competitors and persons to whom you have affirmatively declined to
provide your consent to the assignment or syndication thereto);
provided that, the
disclosure of any such information to any actual or prospective
participants or derivative counterparties referred to above shall
be made subject to the acknowledgment and acceptance by such actual
or prospective Lender, participant or derivative counterparty that
such information is being disseminated on a confidential basis (on
substantially the terms set forth in this paragraph or as is
otherwise reasonably acceptable to you and the Commitment Party,
including, without limitation, as agreed in any confidential
information memorandum or other marketing materials) in accordance
with the standard syndication practice of the Commitment Party or
customary market standards for dissemination of such type of
information, in the event of any electronic access through
IntraLinks, another website or similar electronic system or
platform, which shall in any event require “click
through” or other affirmative action on the part of the
recipient to access such information and acknowledge its
confidentiality obligations in respect thereof, in each case on
terms reasonably acceptable to you; (b) in any legal,
judicial, or administrative proceeding or other compulsory process
or otherwise as required by applicable law, rule or regulations (in
which case the Commitment Party shall promptly notify you, in
advance, to the extent permitted by law, rule or regulation (except
with respect to any routine audit or examination conducted by bank
accountants or regulatory authority exercising routine examination
or regulatory authority)), (c) upon the request or demand of
any governmental or regulatory authority having jurisdiction over
the Commitment Party or any of its affiliates or upon the good
faith determination by counsel that such information must be
disclosed in light of ongoing oversight or review of the Commitment
Party by any governmental or regulatory authority having
jurisdiction over the Commitment Party or its affiliates (in each
case the Commitment Party shall, except with respect to any audit
or examination conducted by bank accountants or any governmental
bank regulatory authority exercising examination or regulatory
authority, promptly notify you, in advance, to the extent lawfully
permitted to do so), (d) to the officers, directors,
employees, legal counsel, independent auditors, professionals,
financing sources, and other experts or agents of the Commitment
Party (collectively, “Representatives”);
provided that, any
such Representative is advised of its obligation to retain such
information as confidential and agrees to keep information of this
type confidential, and the Commitment Party shall be responsible
for the compliance of its Representatives with this paragraph, (e)
to any of its affiliates and Representatives of its affiliates
(provided that, any such affiliate or Representative is advised of
its obligation to retain such information as confidential, and the
Commitment Party shall be responsible for the compliance of its
affiliates and Representatives of their affiliates with this
paragraph) solely in connection with the Term Facilities and the
related Transactions, (f) to the extent any such information
becomes publicly available other than by reason of disclosure by
the Commitment Party, its affiliates or Representatives in breach
of this Commitment Letter or other obligation of confidentiality
owed to you, the Target or your or their respective affiliates, (g)
to the extent that such information is received by the Commitment
Party, its affiliates or their respective Representatives from a
third party that is not known (after due inquiry) by the Commitment
Party to be subject to confidentiality obligations to you, the
Target or your or their respective affiliates, (h) to the extent
that such information is independently developed by the Commitment
Party, its affiliates, or their respective Representatives without
the use of such information and (i) to enforce or defend their
respective rights hereunder or under the Fee Letter; provided, however, that, no such
disclosure shall be made by the Commitment Party to any Specified
Competitor (as defined in Exhibit A). The Commitment
Party’s obligations under this paragraph shall remain in
effect until the earlier of (x) two years from the date hereof and
(y) the date the Credit Facility Documentation is effective, at
which time our obligations under this paragraph shall automatically
terminate and be superseded by the confidentiality provisions in
the Credit Facility Documentation upon the execution and delivery
thereof.

 


After
the closing of the Transactions, the Borrower may, after
consultation with the Commitment Party (except no consultation
shall be required for customary form 8-K filings), disclose the
existence of the Term Facilities (including Oaktree’s role in
arranging any syndicating the Term Facilities) in any press release
or public filing.

 



 


[Commitment
Letter]







 





 


After
the closing of the Transactions, the Commitment Party may (i) after
consultation with the Borrower, place advertisements in periodicals
and on the Internet as it may choose and (ii) on a confidential
basis, circulate promotional materials in the form of a
“tombstone” or “case study” (and, in each
case, otherwise describe the names of any of you or your affiliates
and any other information about the Transactions, including the
amount, type and closing date of the Term Facilities). In addition,
the Commitment Party may disclose the existence of the Term
Facilities and the information about the Term Facilities to market
data collectors, similar service providers to the lending industry,
and service providers to the Commitment Party in connection with
the administration and management of the Term
Facilities.

 



10.            


Miscellaneous





 


This
Commitment Letter shall not be assignable by any party hereto
(except by you to one or more of your subsidiaries that is a newly
formed domestic “shell” company wholly-owned, directly
or indirectly, by the Borrower to effect the consummation of the
Acquisition) without the prior written consent of the other parties
hereto (and any purported assignment without such consent shall be
null and void), is intended to be solely for the benefit of the
parties hereto and, to the extent set forth in Section 7, the indemnified
persons and is not intended to and does not confer any benefits
upon, or create any rights in favor of, any person other than the
parties hereto and the indemnified persons to the extent expressly
set forth herein. This Commitment Letter may not be amended or
waived except by an instrument in writing signed by you and the
Commitment Party. This Commitment Letter may be executed in any
number of counterparts, each of which shall be an original, and all
of which, when taken together, shall constitute one agreement.
Delivery of an executed signature page of this Commitment Letter by
facsimile or other electronic transmission (e.g.,
“pdf” or
“tif”) shall be
effective as delivery of a manually executed counterpart hereof,
and the words “execution,” “execute”,
“signed,” “signature,” and words of like
import in or related to this Commitment Letter shall be deemed to
include electronic signatures, the electronic matching of
assignment terms and contract formations on electronic platforms
approved by the Commitment Party, or the keeping of records in
electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the
use of a paper based recordkeeping system, as the case may be, to
the extent and as provided for in any applicable law, including the
Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any
other similar state laws based on the Uniform Electronic
Transactions Act. This Commitment Letter and the Fee Letter are the
only agreements that have been entered into among us and you with
respect to the Term Facilities and set forth the entire
understanding of the parties with respect thereto. This Commitment
Letter shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York without regard
to principles of conflicts of law, to the extent that the same are
not mandatorily applicable by statute and would require or permit
the application of the law of another jurisdiction; provided, however, that the laws of the
state which governs the Purchase Agreement shall govern in
determining (a) the interpretation of a “Target Material
Adverse Effect” and whether a “Target Material Adverse
Effect” has occurred, (b) the accuracy of any Specified
Purchase Agreement Representation and whether as a result of any
inaccuracy thereof you or your applicable affiliate have the right
or would have the right (without regard to any notice requirement
but taking into account any applicable cure provisions) to
terminate your obligations (or to refuse to consummate the
Acquisition) under the Purchase Agreement and (c) whether the
Acquisition has been consummated in accordance with the terms of
the Purchase Agreement. Each of the parties hereto agrees that
(i) this Commitment Letter is a binding and enforceable
agreement with respect to the subject matter herein, including an
agreement to negotiate in good faith the Credit Facility
Documentation by the parties hereto in a manner consistent with
this Commitment Letter and the Documentation Principles (it being
acknowledged and agreed that the funding of the Initial Term
Facility is subject only to the Exclusive Funding Conditions,
including the execution and delivery of the Credit Facility
Documentation as provided in this Commitment Letter) and
(ii) the Fee Letter is a binding and enforceable agreement
with respect to the subject matter contained therein. Reasonably
promptly following the execution of this Commitment Letter, the
parties hereto shall proceed with the negotiation in good faith of
the Credit Facility Documentation for the purpose of executing and
delivering the Credit Facility Documentation substantially
simultaneously with the consummation of the Acquisition. Section
headings used herein are for convenience of reference only and are
not to affect the construction of, or to be taken into
consideration in interpreting, this Commitment Letter.

 


Each of
the parties hereto irrevocably and unconditionally
(a) submits, for itself and its property, to the exclusive
jurisdiction of any federal court sitting in the Borough of
Manhattan in the City of New York or, if that court does not have
subject matter jurisdiction, in any state court located in the City
and County of New York, and any appellate court from any thereof,
over any suit, action or proceeding arising out of or relating to
the Transactions or the other transactions contemplated hereby,
this Commitment Letter or the Fee Letter or the performance of
services hereunder or thereunder or for recognition or enforcement
of any judgment and agrees that all claims in respect of any such
action or proceeding shall be heard and determined in such New York
state or, to the extent permitted by law, in such federal court and
(b) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. You and we agree that service of any process,
summons, notice or document by registered mail addressed to any of
the parties hereto at the applicable addresses above shall be
effective service of process for any suit, action or proceeding
brought in any such court. You and we hereby irrevocably and
unconditionally waive, to the fullest extent you and we may legally
and effectively do so, any objection to the laying of venue of any
such suit, action or proceeding brought in any court in accordance
with clause (a) of the first
sentence of this paragraph and any claim that any such suit, action
or proceeding has been brought in any inconvenient forum. YOU AND
WE HEREBY IRREVOCABLY WAIVE (TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW) TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED
TO OR ARISING OUT OF THE TRANSACTIONS, THIS COMMITMENT LETTER OR
THE FEE LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER OR
THEREUNDER.

 



 


[Commitment
Letter]







 





 


The
Commitment Party hereby notifies you that, pursuant to the
requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56
(signed into law on October 26, 2001) (as amended, the
“PATRIOT
Act”), we are required to obtain, verify and record
information that identifies Borrower and each Guarantor, which
information includes names, addresses, tax identification numbers
and other information that will allow the Commitment Party or such
Lender to identify Borrower and each Guarantor in accordance with
the PATRIOT Act. This notice is given in accordance with the
requirements of the PATRIOT Act and is effective for the Commitment
Party and each Lender. In addition to the foregoing, you shall,
promptly upon the reasonable request by the Commitment Party,
deliver to the Commitment Party all documentation and other
information reasonably requested by the Commitment Party with
respect to the Borrower and the Guarantors under applicable
“know your customer” and anti-money laundering rules
and regulations, including, without limitation, the certification
regarding beneficial ownership required by 31 C.F.R. §1010.230
(the “Beneficial Ownership
Regulation”).

 


The
indemnification, jurisdiction, waiver of jury trial, service of
process, venue, governing law, sharing of information, no agency or
fiduciary duty and confidentiality provisions contained herein and
the Fee Letter shall remain in full force and effect regardless of
whether definitive financing documentation shall be executed and
delivered and notwithstanding the termination of this Commitment
Letter or the commitments hereunder; provided that, your obligations
under this Commitment Letter (but not the Fee Letter) (and other
than in respect of your obligations in respect of syndication
assistance and related information provisions (which shall
terminate in accordance with Sections 3 and 4, respectively), your
agreements in respect of no fiduciary or similar duties and your
obligations in respect of confidentiality (which shall terminate in
accordance with Section
9) and indemnification (which shall terminate in accordance
with Section 7))
shall automatically terminate and be superseded by the provisions
of the Credit Facility Documentation upon the execution thereof,
and you shall automatically be released from all liability in
connection therewith at such time. You may terminate the Commitment
Party’s commitments (or a portion thereof) hereunder at any
time subject to the provisions of the preceding
sentence.

 


If the
foregoing correctly sets forth our agreement, please indicate your
acceptance of the terms of this Commitment Letter and the Fee
Letter by returning to us executed counterparts of this Commitment
Letter and of the Fee Letter not later than 11:59 p.m., New York
City time, on March 12, 2021. This offer will automatically expire
at such time if we have not received such executed counterparts in
accordance with the preceding sentence, unless we shall, in our
sole discretion, agree to an extension. Unless we shall, in our
sole discretion, agree to an extension, this Commitment Letter and
the commitments hereunder shall automatically terminate in the
event that (a) if the initial borrowing under the Initial Term
Facility does not occur on or before 11:59 p.m., New York City
time, on September 12, 2021, (b) the Acquisition closes with or
without the use of the Initial Term Facility, (c) after
execution of the Purchase Agreement and prior to the consummation
of the Acquisition, the valid termination by you of the Purchase
Agreement in accordance with its terms or (d) the occurrence of the
Closing Date; provided that, the termination
of any commitment pursuant to this sentence does not prejudice your
rights and remedies in respect of any breach of this Commitment
Letter.

 


[Remainder
of this page intentionally left blank]

 




[Commitment
Letter]








 






We are
pleased to have been given the opportunity to assist you in
connection with the financing for the Transactions.

 


Very
truly yours,


 


OAKTREE CAPITAL
MANAGEMENT, L.P.


By: /s/
Christine
Pope


      
Name: Christine Pope



      
Title: Managing Director



 




[Signature
Page To Commitment Letter]








 






Accepted
and agreed to as of


the
date first above written:

 


RUMBLEON,
INC.

 

 


By: /s/ Steve
Berrard





 
    Name: Steve Berrard



  
   Title: CFO


 


 




[Signature
Page To Commitment Letter]








  EXHIBIT
A







Project Wheelie


$280,000,000
Term Loan Facility



$120,000,000 Delayed Draw Term Loan Facility


Transaction
Description


 


Capitalized terms
used but not defined in this Exhibit A shall have the
meanings set forth in the other Exhibits to the Commitment Letter
to which this Exhibit
A is attached (the “Commitment
Letter”) or in the Commitment Letter. In the case of
any such capitalized term that is subject to multiple and differing
definitions, the appropriate meaning thereof in this Exhibit A shall be determined
by reference to the context in which it is used.

 


Reference is made
to that certain Plan of Merger and Equity Purchase Agreement, dated
as of March 12, 2021 (together with the exhibits and disclosure
schedules thereto, as amended, modified, supplemented or waived,
the “Purchase
Agreement”), by and among the Borrower, RO Merger Sub
I, Inc., an Arizona corporation (“Merger Sub
I”), RO Merger Sub II, Inc., an Arizona corporation
(“Merger
Sub II”), RO Merger Sub III, Inc., an Arizona
corporation (“Merger Sub
III”), RO Merger Sub IV, Inc., an Arizona corporation
(“Merger
Sub IV” and, together with Merger Sub I, Merger Sub II
and Merger Sub III, each a “Merger Sub”
and collectively, the “Merger
Subs”), C&W Motors, Inc., an Arizona
corporation, , Metro Motorcycle, Inc., an Arizona corporation,
Tucson Motorcycles, Inc., an Arizona corporation, and Tucson
Motorsports, Inc., an Arizona corporation, and the sellers party
thereto, and Mark Tkach, as representative of the sellers party
thereto, pursuant to which the Borrower intends to acquire,
directly or indirectly, (the “Acquisition”)
certain of the outstanding Equity Interests (as defined in the
Purchase Agreement) of the Acquired Companies (as defined in the
Purchase Agreement; the Acquired Companies, individually and
collectively, are herein referred to as the “Target”)
and in connection with the foregoing, it is intended
that:

 


(a)           The
Acquisition shall occur through the acquisition by the Borrower,
directly or indirectly, of certain of the outstanding Equity
Interests of the Target either directly, indirectly or through a
merger by the Merger Subs with and into certain of such of the
Target entities, with such Target entities as the surviving
entities and direct or indirect restricted subsidiaries of
Borrower.

 


(b)           Cash
proceeds for equity (in the form of (x) common equity or (y)
preferred equity that does not constitute “disqualified
stock” in a manner consistent with the terms of the Credit
Facility Documentation or that is otherwise reasonably acceptable
to the Commitment Party, any equity described in the foregoing
clauses (x) and (y) being “Permitted
Equity”) will be paid in cash directly to the Borrower
in exchange for Permitted Equity (the “Equity
Contribution”) in an aggregate amount of not less than
$170.0 million.

 


(c)           Substantially
concurrently with the Acquisition, the Borrower will obtain (i)
$280 million in aggregate principal amount of senior secured term
loans and (ii) $120 in commitments under a senior secured delayed
draw term loan facility, as described in Exhibit B to the Commitment
Letter.

 


(d)           Prior
to, or substantially concurrently with the funding of the Initial
Term Facility, the Borrower will repay the outstanding debt of the
Target issued pursuant to (i) that certain Term Loan Agreement,
dated as of July 1, 2016, by and among CMG Powersports, Inc.,
America’s Powersports, Inc., San Diego House of Motorcycles,
Inc., Woods Fun Center, Inc., APS Austin Holdings, LLC, APS Texas
Holdings, LLC, APS of Texas LLC, APS of Oklahoma, LLC and APS of
Ohio, LLC, collectively, as borrower, and The Northern Trust
Company, as bank, as amended, restated, amended and restated,
supplemented or otherwise modified from time to time prior to the
Closing Date and (ii) that certain Line of Credit Note, dated as of
February 12, 2020, made by BJ Motorsports, LLC, C&W Motors,
Inc., Coyote Motorsports-Allen, Ltd., Coyote Motorsports-Garland,
Ltd., East Valley Motorcycles, L.L.C., ECHD Motorcycles, LLC,
Glendale Motorcycles, L.L.C., IOT Motorcycles, LLC, JJB Properties,
L.L.C., Metro Motorcycle, Inc., Ride Now, LLC, Ride Now-Carolina,
LLC, Ride Now 6 Garland, LLC, Ride Now USA, L.L.C., RN-Gainesville,
LLC, RN Tri-Cities, LLC, RNKC, LLC, RNMC Daytona, LLC, Top Cat
Enterprises, L.L.C., Tucson Motorcycles, Inc., Tucson Motorsports,
Inc., YSA Motorsports, LLC, TC Motorcycles, LLC, Ride Now 5 Allen,
LLC and RHND Ocala, LLC, as borrowers, payable to JPMorgan Chase
Bank, N.A., as the bank, as amended, restated, amended and
restated, supplemented or otherwise modified prior to the Closing
Date (collectively, the “Existing Target Financing
Agreements”) so that upon such repayment there shall
not exceed $15 million outstanding (the repayment to reduce such
outstanding debt under the Existing Target Financing Agreements
and, subject to the Certain Funds Provision, the release of
substantially all guarantees and liens in respect of any Existing
Target Financing Agreement paid in full, the “Refinancing”).

 


(e)           The
proceeds of a portion of the Equity Contribution, the Initial Term
Facility and cash on hand at the Borrower, the Target and their
respective subsidiaries on the Closing Date will be applied to,
among other things, (i) fund the Acquisition, (ii) consummate the
Refinancing and (iii) pay the fees, premiums, expenses and other
transaction costs incurred in connection with the foregoing (the
“Transaction
Costs”).

 


The
transactions described above are collectively referred to herein as
the “Transactions.”
For purposes of the Commitment Letter and the Fee Letter,
“Closing
Date” shall mean the date of (i) the satisfaction or
waiver of the Exclusive Funding Conditions, (ii) the initial
funding of the Initial Term Facility, (iii) the consummation of the
Refinancing and (iv) the consummation of the
Acquisition.

 


 


 




A-1








  EXHIBIT
B







Project Wheelie


$280,000,000
Term Loan Facility



$120,000,000 Delayed Draw Term Loan Facility


Summary
of Principal Terms and Conditions


 


Set
forth below is a summary of the principal terms and conditions for
the Term Facilities. Capitalized terms used but not defined in this
Exhibit B
shall have the meanings set forth in the letter to which this
Exhibit B is
attached or in Exhibits
A or C
attached thereto.

 


	


Borrower:


 

	

RumbleOn,
Inc., a corporation organized under the laws of the State of
Delaware (the “Borrower”).


 


	


Transactions:


 

	

As set
forth in Exhibit A to the Commitment Letter.


 


	


Administrative Agent and Collateral
Agent:


 

	

Oaktree
Fund Administration, LLC will act as sole administrative agent and
sole collateral agent (in such capacities, the “Administrative
Agent”) for a syndicate of banks, financial
institutions and other entities reasonably acceptable to the
Borrower (excluding any Specified Competitors) with respect to the
Term Facilities (together with the Initial Lenders, the
“Lenders”), and
will perform the duties customarily associated with such
roles.


 


	


Lead Arranger and Bookrunner:


 

	

Oaktree
Capital Management, L.P. will act as lead arranger and bookrunner
for the Term Facilities (together with its designated affiliates,
in such capacity, the “Lead
Arranger”), and will perform the duties customarily
associated with such roles.


 


	


Initial Term Facility:


 

	

A
senior secured first lien term loan facility (the
“Initial
Term Facility”) in an aggregate principal amount of
$280 million.


 


Lenders
with commitments under the Initial Term Facility are collectively
referred to herein as the “Initial Term Facility
Lenders”.


 


Loans
under the Initial Term Facility (“Initial Term
Loans”) will be available to the Borrower in U.S.
dollars.


 


	


Delayed Draw Term Loan Facility:


 

	

A
senior secured first lien delayed draw term loan facility in an
aggregate principal amount of up to $120 million (the
“Delayed
Draw Term Facility” and, together with the Initial
Term Facility, the “Term
Facilities”).


 


Lenders
with commitments under the Delayed Draw Term Facility are
collectively referred to herein as the “Delayed Draw Term Facility
Lenders”. Initial Term Facility Lenders and Delayed
Draw Term Facility Lenders are collectively referred to herein as
“Lenders”


 


Loans,
if any, under the Delayed Draw Term Facility (the
“Delayed
Draw Term Loans” and together with the Initial Term
Loans, the “Term Loans”)
will be available to the Borrower in U.S. dollars. The Initial Term
Loans and, after the funding thereof, the Delayed Draw Term Loans,
shall have the same terms and shall be treated as a single
“fungible” class for all purposes; provided that the
Credit Facility Documentation may be amended by the Borrower and
the Administrative Agent as may be necessary or advisable in their
reasonable opinion to have such facility fungible with other Term
Loans.






 



 

B-1







 





 


	


 


 

	



Loans
under the Delayed Draw Term Facility will be available on and after
the six-month anniversary of the Closing Date until the
eighteenth-month anniversary of the Closing Date (the
“Delayed
Draw Termination Date”), in a maximum number of five
(5) draws. Amounts repaid or prepaid under the Delayed Draw Term
Facility may not be reborrowed.


 


If the
Delayed Draw Term Facility has not been drawn in full by the
Delayed Draw Termination Date, then on such date any remaining
unused commitments under the Delayed Draw Term Facility shall
automatically be reduced to $0. The Borrower may reduce commitments
under the Delayed Draw Term Facility, at its option, in whole or in
part, prior to the Delayed Draw Termination Date.


 


Any
incurrence of Delayed Draw Term Loans after the Closing Date will
be in minimum amounts of the lesser of $20 million and the
remaining undrawn amount of the Delayed Draw Term Facility, and
subject only to the following conditions, measured at the time of
the incurrence of such Delayed Draw Term Loans (clause (a) through
(c) below, collectively, the “Delayed Draw Term Loan
Conditions”):


 

(a) the Consolidated
Total Net Leverage Ratio (as defined in Exhibit D hereto) as of the
last day of the most recently ended fiscal quarter of the Borrower
for which internal financial statements are available, calculated
on a pro forma basis, giving effect to the use of proceeds
therefrom (excluding the cash proceeds to the Borrower of any
Delayed Draw Term Loans) does not exceed the Consolidated Total Net
Leverage Ratio on the Closing Date upon Acquisition;

 

(b) the proceeds of
borrowings under the Delayed Draw Term Facility shall only be used
by the Borrower (A) to finance Permitted Acquisitions and similar
investments (and such Delayed Draw Term Loans may be drawn prior to
or substantially simultaneously with the consummation of such
Permitted Acquisition or investment), and earnouts and (B) in each
case, to pay related fees and expenses, including earnout
obligations with respect to such acquisitions;

 

(c) all representations
and warranties will be true and correct in all material respects
(in the case of any representation and warranty that is qualified
as to “materiality”, “material adverse
effect” or similar language, the accuracy in all respects)
immediately prior to, and after giving effect to, the incurrence of
such Delayed Draw Term Loans (subject to customary “Certain
Funds Provisions” if being incurred in connection with a
Permitted Acquisition).








 

 



 

B-2







 





 


	

Incremental
Term Facilities:


 

	

The
Credit Facility Documentation will permit the Borrower to add one
or more incremental term loan facilities under the Credit Facility
Documentation (each, an “Incremental Term
Facility”) until the eighteenth-month anniversary of
the Closing Date in an aggregate amount of up to $100 million;
provided that each Incremental Term Facility shall be subject to
the following terms and conditions:

(i) the Incremental
Term Facilities will have the same guarantees as, and be secured on
a pari passu basis by the
same collateral securing, the Initial Term Facility;

 

(ii) the
Delayed Draw Term Facility shall have been fully funded prior to,
or at the time of, the addition of any Incremental Term
Facility;

 

(iii) the
Delayed Draw Term Loan Conditions shall be satisfied;

 

(iv) no
existing Lender will be required to participate in any such
Incremental Term Facility without its consent;

 

(v) any Incremental
Term Facility may be offered to third-party lenders but shall first
be offered to any then-existing Lenders on a pro rata basis as more
fully described in the Credit Facility Documentation;

 

(vi) the
maturity date of any Incremental Term Facility shall be no earlier
than the maturity date of the Term Facilities and the weighted
average life of such Incremental Term Facility shall be not shorter
than the then remaining weighted average life of the Term
Facilities;

 






 



 

B-3







 





 


	

 


 

	

 
 
 


(vii) the
interest rate margins applicable to any Incremental Term Facility
shall be determined by the Borrower and the lenders thereunder;
provided that, in the event the interest rate margins for the
Incremental Term Facility are higher than the interest rate margins
for the Term Facilities by more than 50 basis points per annum,
then the interest rate margins for the Term Loans shall be
increased to the extent necessary so that such interest rate
margins are equal to the interest rate margins for the Incremental
Term Facility minus 50 basis points per annum; provided further
that, in determining the interest rate margins applicable to the
Incremental Term Facility, (x) customary arrangement or commitment
fees payable to the Lead Arranger (or its affiliates) in connection
with the Term Loans or to one or more arrangers (or their
affiliates) of the Incremental Term Facility shall be excluded,
(y) original issue discount (“OID”) and
upfront fees paid to the lenders thereunder shall be included (with
OID being equated to interest based on assumed four-year life to
maturity) and (z) if the Incremental Term Facility includes an
interest rate floor greater than the applicable interest rate floor
under the existing Term Facilities, such differential between
interest rate floors shall be equated to the applicable interest
rate margin for purposes of determining whether an increase to the
interest rate margin under the existing Term Facility shall be
required, but only to the extent an increase in the interest rate
floor in the existing Term Facility would cause an increase in the
interest rate then in effect thereunder, and in such case the
interest rate floor (but not the interest rate margin) applicable
to the existing Term Facilities shall be increased to the extent of
such differential between interest rate floors;

 

(viii) any
Incremental Term Facility, for purposes of prepayments, shall be
treated substantially the same as (and in any event no more
favorably than) the Term Facilities;

 

(ix) any
Incremental Term Facility shall be on terms and pursuant to
documentation to be determined; provided that, to the extent such
terms and documentation are not consistent with the Term Facility
(except to the extent permitted by clause (vi), (vii) or (viii)
above), they shall be reasonably satisfactory to the Administrative
Agent (it being understood that no consent shall be required from
the Administrative Agent for terms or conditions that are more
restrictive than the Credit Facility Documentation if the Lenders
under the Initial Term Facility receive the benefit of such terms
or conditions through their addition to the Credit Facility
Documentation or to the extent that they apply solely to periods
following the latest maturity date then in effect);
and

 

(x) each Incremental
Term Facility shall be in such minimum amounts and subject to such
notice provisions and other mechanics as are consistent with the
Documentation Principles and, if incurred in connection with a
Permitted Acquisition, subject to customary “Certain Funds
Provisions.”

 
      

 






 



 

B-4







 





 


	


Purpose:


 

	

The
proceeds of borrowings under the Initial Term Facility will be used
by the Borrower on the Closing Date, together with the Equity
Contribution and cash on hand at the Target, to (i) fund the
Acquisition, (ii) consummate the Refinancing and (iii) pay the
Transaction Costs.


 


The
proceeds of borrowings under the Delayed Draw Term Facility will be
used by the Borrower (A) to finance Permitted Acquisitions and
similar investments (and such Delayed Draw Term Loans may be drawn
prior to or substantially simultaneously with the consummation of
such Permitted Acquisition or investment), and earnouts and (B) in
each case, to pay related fees and expenses, including earnout
obligations with respect to such acquisitions.


 


	


Availability:


 

	

The
Initial Term Facility will be available in a single drawing on the
Closing Date.


 


The
Delayed Draw Term Facility may be drawn in one or more drawings
prior to the Delayed Draw Termination Date.


 


Amounts
borrowed under the Initial Term Facility and the Delayed Draw Term
Facility that are repaid or prepaid may not be
reborrowed.


 


	


Interest Rates and Fees:


 

	

As set
forth on Annex I hereto.


 


	


Default Rate:


 

	

With
respect to any overdue amount (including overdue principal and
overdue interest), the applicable interest rate plus 2.00% per
annum shall be payable on demand.


 








 

B-5







 





 


	


Final Maturity andAmortization:


 

	

The
Term Facilities will mature on the fifth (5th) anniversary of the
Closing Date (subject to extension with the consent of only the
extending lender) and will amortize in equal quarterly installments
in an aggregate annual amount equal to 1.00% of the original
principal amount of the Initial Term Facility (as increased by the
original principal amount of any extension of credit under the
Delayed Draw Term Facility and/or any Incremental Term Facility in
the form of an increase to the Initial Term Facility from and after
the first full fiscal quarter ending after the applicable date of
drawing of the Delayed Draw Term Loans and/or loans under such
Incremental Term Facility, as applicable (with appropriate
adjustments as may be necessary to cause the Delayed Draw Term
Loans and/or loans under such Incremental Term Facility, as
applicable, to be treated as the same class as loans under the
Initial Term Facility and to permit “fungibility” with
the Initial Term Facility)) during each year of the Term Facilities
(such payments subject to reduction as provided herein and in the
Documentation Principles and such other reductions as the Borrower
and the Lead Arranger may agree), with the balance of the original
principal amount of the Term Facilities payable at maturity.
Amortization will commence on the last business day of the first
full fiscal quarter ending after the Closing Date.


 


	


Guarantees:


 

	

All
obligations of the Borrower (the “Borrower
Obligations”) under the Term Facilities will be
unconditionally guaranteed jointly and severally on a senior
secured basis (the “Guarantees”)
by each existing and subsequently acquired or organized direct or
indirect wholly-owned domestic restricted subsidiary of the
Borrower (the “Guarantors”
and, together with the Borrower, each a “Loan Party”
and collectively, the “Loan
Parties”), provided that Guarantors shall not
include, (a) (i) any domestic subsidiary of a foreign subsidiary
that is a “controlled foreign corporation” within the
meaning of Section 957 of the U.S. Internal Revenue Code (a
“CFC”) or (ii)
any domestic subsidiary that owns no material assets (directly or
through one or more disregarded entities) other than capital stock
or debt (including any debt instrument treated as equity for U.S.
federal income tax purposes) of one or more foreign subsidiaries
that are CFCs (a “Domestic Foreign Holding
Company”), (b) unrestricted subsidiaries,
(c) immaterial subsidiaries, (d) captive insurance companies,
(e) not-for-profit subsidiaries, (f) special purpose entities and
(g) any subsidiary that is prohibited by applicable law, rule or
regulation or by any contractual obligation existing on the Closing
Date or at the time such restricted subsidiary is acquired (and not
entered into in contemplation of such acquisition), as applicable,
from guaranteeing the Term Facilities or which would require
governmental (including regulatory) consent, approval, license or
authorization to provide a Guarantee unless such consent, approval,
license or authorization has been received.


 


	
 

	

Notwithstanding
the foregoing, subsidiaries may be excluded from the guarantee
requirements in circumstances where the Borrower and the
Administrative Agent reasonably agree that the cost of providing
such a guarantee is excessive in relation to the value afforded
thereby.


 






 



 

B-6







 





 


	


Security:


 

	

Subject
to the limitations set forth below in this section and subject to
the Certain Funds Provision, the Borrower Obligations and the
Guarantees will be secured by: (i) (a) a perfected first priority pledge of the equity
interests of each subsidiary directly held by the Borrower or any
subsidiary Guarantor, (b) perfected first priority security
interests in, and mortgages on, substantially all tangible and
intangible personal property and fee-owned real property above an
agreed threshold of the Borrower and each Guarantor (including but
not limited to, equipment, general intangibles (including contract
rights), investment property, U.S. intellectual property,
intercompany notes, instruments, chattel paper and documents and
proceeds of the foregoing) and (c) a perfected first priority
security interest in the cash, cash equivalents, deposit,
securities, commodity and similar accounts of the Borrower and the
Guarantors, subject to customary exceptions to be mutually agreed
(in each case, subject to control agreements in form and substance
reasonably satisfactory to the Administrative Agent) and (ii) a
perfected second priority interest in and on any assets securing
obligations of the Borrower or any Guarantor under any Floor Plan
Financing (solely to the extent permitted under such facility and,
with respect to perfection in deposit accounts that are reserves
for Floor Plan Financings, solely to the extent consented to by the
capital provider of the applicable Floor Plan Financing) (the items
described in clauses (i) (a), (b) and (c) and (ii) above, but
excluding the Excluded Assets, collectively, the
“Collateral”).
Borrower shall use commercially reasonable efforts to obtain a
landlord waiver, collateral access agreement or similar agreement
with respect to each location where a material portion (subject to
a threshold to be agreed) of the Collateral is
located.


 


	
 

	

Notwithstanding
anything to the contrary, the Collateral shall exclude (including
from any applicable security documents) the following: (i) any
fee-owned real property with a fair market value of less than an
amount to be agreed (with all required mortgages being permitted to
be delivered post-closing) and all leasehold interests in real
property, (ii) motor vehicles and other assets subject to
certificates of title to the extent a lien therein cannot be
perfected by the filing of a UCC financing statement, letter of
credit rights (other than to the extent perfection of the security
interest therein is accomplished by the filing of a UCC financing
statement) and commercial tort claims below a threshold to be
agreed, (iii) pledges and security interests prohibited by
applicable law, rule or regulation after giving effect to the
anti-assignment provisions of the UCC and other applicable law,
(iv) margin stock and, to the extent requiring the consent of
one or more third parties (that are not the Borrower or its direct
or indirect subsidiaries) or prohibited by the terms of any
applicable organizational documents, joint venture agreement or
shareholders’ agreement after giving effect to the
anti-assignment provisions of the UCC and other applicable law,
equity interests in any person other than wholly-owned material
restricted subsidiaries, (v) any lease, license or other agreement
or any property subject to a purchase money security interest,
capital lease obligation or similar arrangements, in each case, to
the extent permitted under the Credit Facility Documentation, to
the extent that a grant of a security interest therein would
violate or invalidate such lease, license or agreement, purchase
money, capital lease or a similar arrangement or create a right of
termination in favor of any other party thereto (other than the
Borrower or a Guarantor) after giving effect to the applicable
anti-assignment provisions of the Uniform Commercial Code or other
applicable law, other than proceeds and receivables thereof, the
assignment of which is expressly deemed effective under applicable
law notwithstanding such prohibition, (vi) any assets to the extent
a security interest in such assets would result in material adverse
tax consequences as reasonably determined by the Borrower, in
consultation with (but without the consent of) the Administrative
Agent, (vii) those assets as to which the Administrative Agent and
the Borrower reasonably agree in writing that the cost of obtaining
such a security interest or perfection thereof are excessive in
relation to the benefit to the Lenders of the security to be
afforded thereby, (viii) any intent-to-use trademark application
prior to the filing of a “Statement of Use” or
“Amendment to Allege Use” with respect thereto, to the
extent, if any, that, and solely during the period, if any, in
which, the grant of a security interest therein would impair the
validity or enforceability of such intent-to-use trademark
application under applicable federal law, (ix) up to $5.2 million
in cash held in an escrow account or reserve account in connection
with any prepayment of the PPP Debt (as defined below) and (x)
other exceptions to be mutually agreed upon (the foregoing
described in clauses (i) through (x) are, collectively, the
“Excluded
Assets”).


 






 



 

B-7







 





 


	
 

	

Notwithstanding
anything to the contrary, but subject to the Certain Funds
Provision, the Borrower and the Guarantors shall not be required,
nor shall the Administrative Agent be authorized, to (i) perfect
the above-described pledges, security interests and mortgages in
the Collateral by any means other than by (A) filings pursuant to
the Uniform Commercial Code in the office of the secretary of state
(or similar central filing office) of the relevant State(s) and
filings in the applicable real estate records with respect to
mortgaged properties constituting Collateral or any fixtures
relating to such mortgaged properties, (B) filings in United States
government offices with respect to intellectual property as
expressly required in the Credit Facility Documentation, (C)
mortgages in respect of fee-owned real property with a fair market
value in excess of an amount to be agreed or (D) delivery to the
Administrative Agent to be held in its possession of all Collateral
consisting of intercompany notes, stock certificates of the
Borrower and its subsidiaries and instruments, in each case as
expressly required in the Credit Facility Documentation or (ii) to
take any action with respect to any assets located outside of the
United States (it being understood that there shall be no security
agreements or pledge agreements governed under the laws of any
non-U.S. jurisdiction).


 


	
 

	

All the
above-described pledges, security interests and mortgages shall be
created on terms to be set forth in the Credit Facility
Documentation, and none of the Collateral shall be subject to other
pledges, security interests or mortgages (except permitted liens
and other exceptions and baskets to be set forth in the Credit
Facility Documentation).


 


	


Mandatory Prepayments:


 

	

Loans
under the Term Facilities shall be prepaid with:

(a) commencing with the
fiscal year ending December 31, 2021, 50% of Excess Cash Flow (as
defined in Exhibit D hereto) in excess of $2.5 million; provided
that in any fiscal year, any voluntary prepayments (including those
pursuant to debt buybacks made by Borrower or one of its restricted
subsidiaries in an amount equal to the discounted amount actually
paid in respect thereof) of loans under the Term Facilities or any
revolving credit facility to the extent there is a corresponding
permanent reduction in commitments thereunder (other than, in each
case, prepayments funded with the proceeds of incurrences of
indebtedness (other than revolving loans)) shall be credited
against Excess Cash Flow prepayment obligations on a
dollar-for-dollar basis prior to the making of such Excess Cash
Flow prepayment;

 

(b) 100% of the net
cash proceeds of all non-ordinary course asset sales or other
dispositions of property by the Borrower and its restricted
subsidiaries (including insurance and condemnation proceeds and
sale leaseback proceeds) subject to exceptions to be agreed
(including in excess of thresholds per transaction and per fiscal
year to be agreed) and subject to the right to reinvest 100% of
such proceeds, if such proceeds are reinvested in the business (but
excluding investments in cash and cash equivalents), including in
permitted acquisitions or capital expenditures within 12 months,
and other exceptions to be set forth in the Credit Facility
Documentation;

 




 






 


	
 

	
 



(c) 100% of the net
cash proceeds of issuances of debt obligations of the Borrower and
its restricted subsidiaries after the Closing Date (excluding
Incremental Term Facility, Delayed Draw Term Facility and other
debt permitted under the Credit Facility Documentation);
and

 

(d) 50% of the net cash
proceeds of public or private equity issuances of the Borrower and
its restricted subsidiaries after the Closing Date; provided that
the Borrower and its restricted subsidiaries may issue public or
private equity securities in order to finance Permitted
Acquisitions or to fund working capital, and, so long as the
Borrower is in pro forma compliance with the Financial Covenants
and the Minimum Liquidity Covenant set forth herein, the Borrower
shall not be required to use the proceeds of such issuances to
prepay the Term Loans.

 


Mandatory
prepayments shall be applied, without premium or penalty, subject
to reimbursement of the Lenders’ redeployment costs in the
case of a prepayment of Adjusted LIBOR borrowings other than on the
last day of the relevant interest period, on a pro rata basis to
the Term Facilities and any Incremental Term Facility under the
Credit Facility Documentation and to scheduled amortization
payments thereof in direct order of maturity to the next eight
scheduled amortization payments and then pro rata to the remaining
scheduled amortization payments.


Any
Lender under the Term Facilities may elect not to accept its pro
rata portion of any mandatory prepayment under clause (a), (b), (c)
or (d) above (each a “Declining
Lender”). Any prepayment amount declined by a
Declining Lender may be retained by the Borrower.




 







	
 

	

For the
avoidance of doubt, any mandatory prepayment required hereunder may
be made by the Borrower from any source of funds and shall not be
required to be made from the funds of any particular subsidiary of
the Borrower.


 






 



 

B-8







 





 


	


Voluntary Prepayments and Reductions in
Commitments:


 

	

Prepayments
of borrowings under the Term Facilities will be permitted at any
time (subject to customary notice requirements), in minimum
principal amounts to be agreed, subject to reimbursement of the
Lenders’ redeployment costs in the case of a prepayment of
Adjusted LIBOR borrowings prior to the last day of the relevant
interest period.


 


Any
voluntary prepayment of the Term Facilities and any mandatory
prepayments made with the net cash proceeds of issuances, offerings
or placement of debt obligations (or any mandatory assignment in
connection with a transaction analogous to a “repricing
transaction”) must be prepaid (a) with a make-whole based on
U.S. Treasury notes with a maturity closest to the first
anniversary of the Closing Date plus 50 basis points, for any
prepayments made on or after the Closing Date but prior to the
first anniversary of the Closing Date, (b) at 102% on or after the
first anniversary of the Closing Date but prior to the second
anniversary of the Closing Date, (c) at 101% on or after the second
anniversary of the Closing Date but prior to the third anniversary
of the Closing Date and (d) without premium or penalty on or after
the third anniversary of the Closing Date.


 


All
voluntary prepayments of the Term Facilities and any Incremental
Term Facility will be applied to the remaining amortization
payments under the applicable Term Facility or such Incremental
Term Facility, as applicable, in the indirect order of maturity
thereof.


 


	


Documentation Principles:


 

	

The
definitive documentation for the Term Facilities (together with the
ancillary documentation, the “Credit Facility
Documentation”) will be initially drafted by counsel
to the Lead Arranger and negotiated in good faith by the Borrower
and the Lead Arranger, giving effect to the Certain Funds
Provision, shall contain the terms and conditions set forth in this
Term Sheet and the Fee Letter. The Credit Facility Documentation
shall contain only those payments, conditions to borrowing,
mandatory prepayments, representations, warranties, covenants and
events of default and other terms and conditions expressly set
forth in this Term Sheet, in each case, applicable to the Borrower
and its restricted subsidiaries.


 


The
foregoing provisions, collectively, are referred to as the
“Documentation
Principles”. All standards, qualifications,
thresholds, exceptions, “baskets” and grace and cure
periods in the Credit Facility Documentation shall be consistent
with the Documentation Principles.


 






 



 

B-9







 





 


	


Representations and Warranties:


 

	

Subject
to the Certain Funds Provision and limited to the following (to be
applicable to the Borrower and its restricted subsidiaries and as
qualified by disclosure schedules to be delivered by the Borrower
containing information necessary to make such representations and
warranties accurate and complete when made; provided that any such information on
the disclosure schedule shall be reasonably acceptable to the Lead
Arranger): organizational status and good standing; power and
authority, due authorization, qualification, execution, delivery,
binding effect and enforceability of the Credit Facility
Documentation; with respect to the Credit Facility Documentation,
no violation of, or conflict with, law, organizational documents
and no violation of specified material debt agreements; compliance
with law; anti-terrorism laws; PATRIOT Act; OFAC; FCPA; litigation;
margin regulations; material governmental and third party
approvals; Investment Company Act; accurate and complete
disclosure; accuracy of historical and pro forma financial
statements; no material adverse change (after the Closing Date);
taxes; ERISA; labor matters; subsidiaries; intellectual property;
environmental laws; use of proceeds; ownership of properties;
creation and perfection of liens (subject to permitted liens) and
other security interests; and consolidated solvency (defined in a
manner consistent with Annex I to Exhibit C hereto) of the Borrower
and its subsidiaries as of the Closing Date, subject, in the case
of each of the foregoing representations and warranties, to
customary qualifications and limitations for materiality to be
provided in the Credit Facility Documentation consistent with the
Documentation Principles.


 


	


Conditions to Initial Borrowing on the Closing
Date:


 

	

The
availability of the initial borrowing and other extensions of
credit under the Term Facility on the Closing Date will be subject
solely to the applicable conditions set forth in Exhibit C to the
Commitment Letter.


 


	


Conditions to All Borrowings:

	

Except
as set forth above under the section titled and “Delayed Draw
Term Loan Facility” and “Incremental Term
Facilities”, the making of each extension of credit under the
Term Facilities (other than the Initial Term Facility) will be
conditioned upon (a) the making and accuracy of representations and
warranties in all material respects; provided that any such
representation that is qualified as to “materiality” or
“Material Adverse Effect” shall be accurate in all
respects, (b) the absence of defaults and events of default under
the Term Facilities at the time of, and immediately after giving
effect to the making of such extension of credit and the use of
proceeds thereof and (c) the delivery of a customary borrowing
notice.


 






 



 

B-10







 





 


	


Affirmative Covenants:


 

	

Limited
to the following (to be applicable to the Borrower and its
restricted subsidiaries only): quarterly (for (x) subject to the
Borrower’s using its commercially reasonable efforts to
deliver such quarterly financial statements, the fiscal quarter
ended March 31, 2021 (which, at the Borrower’s election, may
be presented on a standalone basis with respect to the Borrower
only (without including the Target)) and (y) the first three fiscal
quarters of a fiscal year) unaudited financial statements within 60
days after such fiscal quarter end (or such earlier date as may be
required (including any extensions)) by the United States
Securities and Exchange Commission (the “SEC”) and
annual audited financial statements (in the case of such annual
audited financial statements, without qualifications as to
“going concern” or the scope of the audit (other than
with respect to, or disclosure or an exception or qualification
resulting from (x) the impending maturity of any indebtedness or
(y) any prospective or actual default under any financial
covenant)) within 120 days after the fiscal year end (or such
earlier date as may be required (including any extensions) by the
SEC), in each case, for Borrower and its subsidiaries on a
consolidated basis (together with, if applicable, the related
consolidating financial information reflecting the adjustments
necessary to eliminate the unrestricted subsidiaries from such
consolidated financial information (it being agreed that no such
consolidating financial information shall be required to be audited
and such information may be in footnote format)); compliance
certificates and summary MD&A (delivered with the first three
quarterly financial statements of each fiscal year and annual
financial statements); annual budgets (delivered within 60 days
after the start of the applicable fiscal year), with the first such
budget being delivered for the fiscal year ending December 31,
2022; annual lender conference calls (with the ability, to the
extent permitted by applicable law, to join quarterly public calls
with public equity-holders); other information, including, upon
reasonable request of Oaktree and the Administrative Agent,
customary know-your-customer information (other than information
subject to attorney/client privilege or confidentiality
obligations); notices of defaults and material litigation; notice
of material ERISA events; inspections (subject to frequency (so
long as there is no ongoing event of default) and cost
reimbursement limitations); maintenance of property (subject to
casualty, condemnation and normal wear and tear) and customary
insurance (but not, for the avoidance of doubt, flood insurance
except to the extent required by applicable law); maintenance of
existence and corporate franchises, rights, licenses and
privileges; maintenance and inspection of books and records;
payment of material taxes and similar claims; compliance with laws
and regulations (including ERISA, environmental, the PATRIOT Act,
OFAC and FCPA); additional Guarantors and Collateral (subject to
limitations set forth above); use of proceeds; changes in lines of
business; commercially reasonable efforts to maintain ratings (but
not any specific ratings); and further assurances on collateral and
guarantee matters, subject, in the case of each of the foregoing
covenants, to exceptions and qualifications to be provided in the
Credit Facility Documentation consistent with the Documentation
Principles.


 






 



 

B-11







 





 


	


Negative Covenants:


 

	

Limited
to the following (to be applicable to the Borrower and its
restricted subsidiaries) limitations on:

a) the incurrence of
debt, with exceptions including, among others, the ability to incur
indebtedness (i) in the form of the Term Facilities and Incremental
Term Facility, (ii) in the form of purchase money indebtedness and
capital leases for personal property in an aggregate principal
amount not to exceed $5 million outstanding at any time, (iii) in
the form of indebtedness assumed in connection with a Permitted
Acquisition (but not in contemplation of a Permitted Acquisition),
and any refinancing thereof, in an aggregate principal amount not
to exceed $5 million outstanding at any time (such indebtedness,
the “Permitted Acquisition
Debt”), (iv) in the form of intercompany indebtedness,
including, without limitation, indebtedness arising from
intercompany loans and advances (subject to limitations on
indebtedness owed by non-Loan Parties to Loan Parties in an
aggregate amount to be agreed), (v) in the form of convertible
promissory notes existing on the Closing Date and in an aggregate
principal amount not to exceed $40 million (such indebtedness, the
“Convertible
Notes”), and any refinancing thereof in the form of
non-cash pay unsecured indebtedness, (vi) in the form of
indebtedness under the United States Small Business
Administration’s Paycheck Protection Program in an amount not
to exceed $5.2 million in principal amount (such indebtedness,
“PPP
Debt”), (vii) in the form of indebtedness under the
Existing Target Financing Agreements in an aggregate principal
amount not to exceed $15 million (the “Target Debt”),
(viii) in the form of indebtedness under that certain Loan
Agreement, dated as of June 17, 2020, by and between CL Rider
Finance, L.P., as lender, and RumbleOn Finance, LLC, as borrower,
in an aggregate principal amount not to exceed $2.5 million
outstanding at any time (such indebtedness, the “Warehouse
Debt”), (ix) in the form of Floor Plan Financings in
an aggregate principal amount not to exceed 100% of the cost to the
Borrower of the vehicles being financed by such Floor Plan
Financings, consistent with historical practice, (x) pursuant to a
general debt basket not to exceed $15 million outstanding at any
time and (xi) in the form of unsecured indebtedness so long as the Borrower is in compliance with a
Consolidated Total Net Leverage Ratio, on a pro forma basis, of no
greater than 2.25 to 1.00 (any such indebtedness incurred pursuant
to the foregoing, “Unsecured
Ratio Debt”);
provided that (A) any such Unsecured Ratio Debt is
incurred by the Borrower or another Guarantor, (B) any such
Unsecured Ratio Debt is not guaranteed by and person that does not
guaranty the Term Facilities (C) any such Unsecured Ratio Debt does
not mature prior to the date that is 180 days after the maturity
date of the Term Facilities or have a weighted average life less
than the weighted average life of the Term Facilities plus 180
days, (D) any such Unsecured Ratio Debt does not have mandatory
prepayment, redemption or offer to purchase events more onerous
than those set forth in the Term Facilities and (E) the other terms
and conditions of such Unsecured Ratio Debt (excluding pricing and
optional prepayment or redemption terms) reflect market terms and
conditions at the time of incurrence or issuance;

 

b) liens, with
exceptions including, among others, the ability to incur additional
liens (i) to secure the Term Facilities and Incremental Term
Facility, (ii) to secure Floor Plan Financings, (iii) to secure
Warehouse Debt, (iv) to secure the Convertible Notes, (v) to secure
Permitted Acquisition Debt, (vi) to secure the Target Debt, (vii)
to secure the permitted purchase money indebtedness and capital
leases for personal property, (viii) of not more than $5.2 million
cash deposits securing the PPP Debt and (ix) pursuant to a general
liens basket not to exceed $15 million;

 

c) fundamental changes
(with exceptions to include (i) intercompany mergers,
consolidations, liquidation and dissolutions, (ii) Permitted
Acquisitions and other permitted investments and (iii) certain
other transactions to be mutually agreed);

 

d) asset sales
(including sales of capital stock of restricted subsidiaries) and
sale leasebacks (which, in each case, shall be permitted on the
terms set forth in the section entitled “Asset Sales”
hereof);

 

e) investments (with
baskets for (i) loans and advances to officers, directors and
employees to acquire equity in the Borrower or for other customary
purposes (e.g. travel, entertainment, relocation) or otherwise,
(ii) investments in immaterial subsidiaries (to be defined as any
restricted subsidiary with not more than 2.5% of the total assets
or consolidated revenue of the Borrower and its restricted
subsidiaries and all such immaterial subsidiaries shall not in the
aggregate account for more than 5.0% of the total assets or
consolidated revenue of the Borrower and its restricted
subsidiaries), (iii) intercompany investments (subject to a
mutually agreed cap on investments by Loan Parties in non-Loan
Parties), (iv) the extension of trade credit, (v) a general
investment basket not to exceed $10 million, (vi) Permitted
Acquisitions (which shall be permitted on the terms set forth in
the section entitled “Permitted Acquisitions” hereof)
and (vii) investments on the Closing Date in non-wholly owned and
non-guarantor restricted subsidiaries not to exceed $10
million;

 

f) dividends or
distributions on, or redemptions of, the Borrower’s equity
interests, with exceptions including, among others, (i) dividends
made only in common stock or other equity interests of the Borrower
and (ii) on the terms set forth in the section entitled
“General Restricted Payment Incurrence Test”
hereof;

 

g) prepayments,
purchases or redemptions of junior lien, unsecured or subordinated
indebtedness (collectively, “Specified
Indebtedness”), with exceptions including, among
others, (i) on the terms set forth in the section entitled
“General Restricted Payment Incurrence Test” hereof,
(ii) payments of PPP Debt in an aggregate amount not to exceed $5.2
million in principal amount and (iii) redemptions of options or
equity issued by the Borrower to any directors, officers,
employees, consultants, advisors or other services provided in an
amount to be mutually agreed;

 

h) amendments of any
documentation governing such indebtedness in a manner material and
adverse to the Lenders;

 

i) negative pledge
clauses and clauses restricting distributions from restricted
subsidiaries;

 

j) changes in business
and/or lines of business;

 

k) changes in fiscal
year; and

 

l) transactions with
affiliates.

 


 






 



 

B-12







 





 


	


Asset Sales:


 

	

The
Borrower or any restricted subsidiary will be permitted to make (i)
dispositions of inventory, obsolete or worn out property and
property no longer used or useful in the business and (ii)
unlimited non-ordinary course asset sales, subject solely to the
following terms and conditions: (A) such asset sales are for fair
market value as reasonably determined by the Borrower or the
applicable restricted subsidiary in good faith, (B) the
consideration for any such sales in excess of an amount to be
agreed is at least 75% cash consideration (including designated
non-cash consideration up to an amount to be agreed), (C) the
proceeds of such asset sales are subject to the terms set forth in
the section entitled “Mandatory Prepayments” hereof and
(D) no default or event of default is existing or would result
therefrom (other than with respect to
an asset sale made pursuant to a legally binding commitment entered
into at a time when no event of default existed or would have
resulted from such asset sale).


 


The
Borrower and its restricted subsidiaries will also be permitted to
make (i) sales of obsolete, damaged, technologically outdated, worn
out or surplus assets or assets no longer used or useful in the
business (in each case determined by Borrower in good faith), (ii)
asset swaps, (iii) dispositions of noncore assets acquired in
connection with a Permitted Acquisition or other permitted
investment, or made to obtain the approval of an anti-trust
authority, (iv) intercompany transfers for fair value or otherwise
subject to limitations on the value of transfers to non-Loan
Parties to be mutually agreed, (v) sales of assets in the ordinary
course of business and immaterial assets, in each case, consistent
with the Documentation Principles and (vi) licensing
arrangements.


 


	


General Restricted Payment Incurrence
Test:


 

	

The
Credit Facility Documentation shall permit the Borrower and its
restricted subsidiaries to make unlimited restricted payments, and
prepayments of Specified Indebtedness so long as at the time of
making such restricted payment, or prepayment of Specified
Indebtedness (a) no default or event of default shall have occurred
and be continuing and (b) the Consolidated Total Leverage Ratio (as
defined in Exhibit D hereto) of the Borrower on a pro forma basis
shall be no greater than 2.00 to 1.00.


 


	


Permitted Acquisitions:


 

	

The
Borrower or any restricted subsidiary will be permitted to make
acquisitions (each, a “Permitted
Acquisition”), subject solely to the following terms
and conditions: (i) there is no event of default immediately before
and immediately after giving pro forma effect to such acquisition,
(ii) after giving effect thereto, the Borrower is in compliance
with the permitted lines of business covenant, (iii) the Borrower
is in compliance with the Financial Covenants (as defined below) as
of the last day of the most recently ended fiscal quarter of the
Borrower for which internal financial statements are available,
calculated on a pro forma basis, giving pro forma effect to the
consummation of such Permitted Acquisition (excluding the cash
proceeds to the Borrower of any Delayed Draw Term Loans) and (iv)
solely to the extent required by, and subject to the limitations
set forth in, “Guarantees” and “Security”
above, the acquired company and its subsidiaries will become
Guarantors and pledge their Collateral to the Administrative
Agent.


 






 



 

B-13







 





 


	


Financial Maintenance Covenants:


 

	

The
Borrower shall comply on a quarterly basis with (i) a maximum
Consolidated Total Net Leverage Ratio (as defined in Exhibit D
hereto) of 4.25 to 1.00 and (ii) a maximum Consolidated Senior
Secured Net Leverage Ratio (as defined in Exhibit D hereto) of 3.75
to 1.00, in each case, commencing with the first full fiscal
quarter following the Closing Date (collectively, the
“Financial
Covenants”).


 


	


Minimum Liquidity Covenant


 

	

The
Borrower shall maintain minimum cash liquidity of $25 million with
respect to the Borrower and its restricted subsidiaries, on a
consolidated basis, beginning on the last day of each fiscal
quarter, commencing with the first full fiscal quarter following
the Closing Date (the “Minimum Liquidity
Covenant”).


 


	


Unrestricted Subsidiaries:


 

	


The Credit Facility Documentation will contain provisions pursuant to which, subject
to limitations on loans, advances and other investments in,
unrestricted subsidiaries, the Borrower will be permitted to
designate any existing or subsequently acquired or organized
subsidiary as an “unrestricted subsidiary” and
subsequently re-designate any such unrestricted subsidiary as a
restricted subsidiary, subject solely to the following terms and
conditions: (a) after giving
effect to any such designation or re-designation (including after
the reclassification of debt of or liens on assets of the
applicable subsidiary), no event of default shall be continuing and
(b) in the case of the designation of a subsidiary as an
unrestricted subsidiary, (i) the subsidiary to be so designated
does not (directly, or indirectly through its subsidiaries) own any
equity interests or indebtedness of, or own or hold any lien on any
property of, the Borrower or any of its restricted subsidiaries and
(ii) such subsidiary has not, at the time of designation, and does
not thereafter, create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable with respect to any
indebtedness pursuant to which the lender has recourse to any of
the assets of the Borrower or any restricted subsidiary.
Unrestricted subsidiaries will not be subject to the representation
and warranties, affirmative or negative covenant or event of
default provisions of the Credit Facility
Documentation, and the results of
operations and indebtedness of unrestricted subsidiaries will not
be taken into account for purposes of determining Consolidated
EBITDA. The designation of any
restricted subsidiary as an unrestricted subsidiary shall
constitute an investment therein at the date of designation in an
amount equal to the fair market value thereof.


 



The designation of any unrestricted subsidiary as a restricted
subsidiary shall constitute the incurrence at the time of
designation of any indebtedness or liens of such subsidiary
existing at such time.


 



As of the Closing Date, the Borrower shall not be permitted to have
any Unrestricted Subsidiaries.


 






 



 

B-14







 





 


	


Events of Default:


 

	

Limited
to the following (except as otherwise expressly indicated, to be
applicable to the Borrower and its restricted subsidiaries only):
nonpayment of principal when due; nonpayment of interest or other
amounts after a customary five business day grace period; violation
of affirmative covenants with after a thirty day grace period
(except for notices of default and preservation of existence of the
Borrower, which shall have no grace period) and violation of
negative covenants; incorrectness of representations and warranties
in any material respect when made; cross-payment default to, and
cross-acceleration to, other indebtedness in excess of $5 million;
bankruptcy or other insolvency events of the Borrower or its
material subsidiaries (with a customary grace period for
involuntary events); unsatisfied monetary judgments in excess of $5
million; ERISA events resulting in a material adverse effect;
actual or asserted in writing invalidity of material guarantees or
security documents or any material security interest purported to
be created thereunder; and Change of Control (which shall not
mature into an event of default until after a thirty day grace
period to the extent not otherwise cured during such thirty day
period) (as defined in Exhibit D).


 


	


Voting:


 

	

Amendments
and waivers of the Credit Facility Documentation will require the
approval of Lenders holding more than 50% of the aggregate amount
of the loans and, without duplication, commitments under the Term
Facilities (the “Required
Lenders”); provided, however, that the Required
Lenders shall at all times include Oaktree and its affiliates (to
the extent that Oaktree and its affiliates are Lenders under the
Credit Facility Documentation at such time), except that (i) the
consent of each Lender directly and adversely affected thereby
shall be required with respect to only the following: (A) increases
in the commitment of such Lender, (B) reductions or forgiveness of
principal, interest, fees, or (if any) prepayment premiums, (C)
changes in the “waterfall” or subordination provisions
relating to the Term Facilities and (D) extensions of scheduled
amortization payments, final maturity, interest, fees, or
prepayment premiums, (ii) the consent of 100% of the Lenders will
be required with respect to only the following: (A) modifications
to any of the voting percentages, (B) releases of all or
substantially all of the value of the Guarantors or releases of all
or substantially all of the Collateral and (C) modifications to the
pro rata sharing and payment provisions (other than any amendments
that establish Term Loans and/or Incremental Term Facilities and
other than in connection with loan buy-backs permitted pursuant to
the terms hereof), (iii) customary protections for the
Administrative Agent will be provided and (iv) any amendment or
waiver that by its terms affects the rights or duties of Lenders
holding loans or commitments of a particular class (but not the
Lenders holding loans or commitments of any other class) will
require only the requisite percentage in interest of the affected
class of Lenders that would be required to consent thereto if such
class of Lenders were the only class of Lenders.


 


	
 

	

The
Credit Facility Documentation shall contain customary provisions
for replacing (i) non-consenting Lenders in connection with
amendments and waivers requiring the consent of all relevant
Lenders, or of all relevant Lenders directly affected thereby (and
for replacing any lender that constitutes a non-extending lender in
connection with an extension of the maturity date of the Term
Facilities as permitted under the section titled “Final
Maturity and Amortization” hereof), so long as Lenders under
the relevant Term Facility holding more than 50% of the aggregate
amount of the loans and commitments thereunder shall have consented
thereto, (ii) Lenders requesting compensation for increased costs
or loss of yield and (iii) Lenders that are Specified
Competitors.


 






 



 

B-15







 





 


	


Cost and Yield Protection:


 

	

The
Credit Facility Documentation will include customary tax gross-up,
cost and yield protection provisions. The obligation of the
Borrower and the Guarantors to gross up for and/or to indemnify
Lenders for taxes imposed on payments will be subject to customary
exceptions, including the requirement to provide applicable tax
related documentation, and will include customary mitigation
provisions. Protection for increased costs imposed as a result of
rules enacted or promulgated under the Dodd-Frank Act or Basel III
shall be included in the Credit Facility Documentation (but solely
for such costs that would have been included if they had been
otherwise imposed under the applicable increased cost provisions
and only to the extent the applicable Lender is imposing such
charges on other similarly situated borrowers under comparable
syndicated Term Facilities).


 


	


Assignments and Participations:


 

	

After
the Closing Date, the Lenders will be permitted to assign loans
and/or commitments under the Term Facilities with the consent of
the Administrative Agent (not to be unreasonably withheld or
delayed); provided that (A) no assignment may be made to a natural
person, a Specified Competitor or, except as permitted below, an
Affiliated Lender, (B) no consent of the Administrative Agent shall
be required with respect to assignment of any Term Loans if such
assignment is an assignment to another Lender, an affiliate of a
Lender or an approved fund and (C) Oaktree and its Affiliates shall
only be permitted to assign up to $200 million of the loans and/or
commitments under the Term Facilities to an entity that is not
Oaktree or an Affiliate of Oaktree prior to the twelve (12) month
anniversary of the Closing Date without the consent of the
Borrower.


 


Each
assignment (other than to another Lender, an affiliate of a Lender
or an approved fund) will be in an amount of an integral multiple
of $1.0 million (or lesser amounts, if agreed between the Borrower
and the Administrative Agent) or, if less, all of such
Lender’s remaining loans and commitments of the applicable
class. Assignments will be by novation and will not be required to
be pro rata. The Administrative Agent shall receive a processing
and recordation fee of $3,500 for each assignment (unless waived by
such Administrative Agent).


 


	
 

	

The
Lenders will be permitted to sell participations in loans and
commitments (other than, so long as the identity of the Specified
Competitors is posted to the Lenders, to Specified Competitors)
without restriction in accordance with applicable law and subject
to limitations consistent with the Documentation Principles. Voting
rights of participants shall be limited to matters set forth under
“Voting” above with respect to which the unanimous vote
of all Lenders (or all directly and adversely affected Lenders, if
the participant is directly and adversely affected) would be
required.


 


The
Administrative Agent shall not be responsible or have any liability
for, or have any duty to ascertain, inquire into, monitor or
enforce, compliance with the provisions hereof relating to
Specified Competitors. Without limiting the generality of the
foregoing, the Administrative Agent shall not (x) be obligated to
ascertain, monitor or inquire as to whether any Lender or
participant or prospective Lender or participant is a Specified
Competitor or (y) have any liability with respect to or arising out
of any assignment or participation of loans and commitments under
the Term Facilities, or disclosure of confidential information, to
any Specified Competitor.


 






 



 

B-16







 





 


	
 

	

Non-pro
rata distributions will be permitted without any consent in
connection with loan buy-back or similar programs and assignments
to, and purchases by you and your affiliates who own 10% or more of
the outstanding equity interests of the Borrower or its
subsidiaries (including, without limitation, the Borrower and its
subsidiaries) but excluding the Initial Lenders (each, an
“Affiliated
Lender”), including through open-market purchases;
provided that (i) the Borrower and its restricted subsidiaries
shall cause any loans or commitments assigned to it (including as
contemplated by the following clause (ii)) or them to be cancelled,
(ii) any Term Loans acquired by an Affiliated Lender (other than
the Borrower) may, with the consent of the Borrower, be contributed
to the Borrower (whether through any of its direct or indirect
parent entities or otherwise) and exchanged for debt or equity
securities of such parent entity or the Borrower that are otherwise
permitted to be issued by such entity at such time, (iii) the
aggregate principal amount of Term Loans held by all Affiliated
Lenders (excluding Affiliated Debt Funds (as defined below)) shall
not exceed 25% of the aggregate unpaid principal amount of Term
Loans then outstanding (determined as of the time of such
purchase), (iv) Affiliated Lenders will not receive information
provided solely to Lenders and will not be permitted to attend or
participate in Lender only meetings and will not be entitled to
challenge the Administrative Agent’s and the applicable
Lenders attorney-client privilege as a result of their status as
Affiliated Lenders, (v) in the event that any proceeding under the
Bankruptcy Code shall be instituted by or against the Borrower or
any Guarantor, each Affiliated Lender shall acknowledge and agree
that they are each “insiders” under Section 101(31) of
the Bankruptcy Code and, as such, the claims associated with the
loans and commitments owned by it shall not be included in
determining whether the applicable class of creditors holding such
claims has voted to accept a proposed plan for purposes of section
1129(a)(10) of the Bankruptcy Code, or, alternatively, to the
extent that the foregoing designation is deemed unenforceable for
any reason, each Affiliated Lender shall vote in such proceedings
in the same proportion as the allocation of voting with respect to
such matter by those Lenders who are not Affiliated Lenders, except
to the extent that any plan of reorganization proposes to treat the
Borrower Obligations held by such Affiliated Lender in a manner
that is less favorable in any material respect to such Affiliated
Lender than the proposed treatment of similar Borrower Obligations
held by Lenders that are not Affiliated Lenders (provided, however,
that this clause (v) shall not apply to Affiliated Debt Funds),
(vi) any purchases by Affiliated Lenders shall require that such
Affiliated Lender clearly identify itself as an Affiliated Lender
in any assignment and assumption agreement executed in connection
with such purchases or sales and each such assignment and
assumption shall contain customary “big boy”
representations but no requirement to make representations as to
the absence of any material nonpublic information, (vii) each
Affiliated Lender shall waive any rights to bring any action in
connection with such purchased Term Loans against the
Administrative Agent in its capacity as such or to challenge the
Administrative Agent’s or Lender’s attorney client
privilege, (viii) the Borrower and its subsidiaries may not
purchase any loans so long as any event of default has occurred and
is continuing and (ix) for purposes of any amendment, waiver or
modification of the Credit Facility Documentation that requires the
consent of the Required Lenders or that does not in each case
adversely affect such Affiliated Lender (in its capacity as a
Lender) in any material respect as compared to other Lenders,
Affiliated Lenders will be deemed to have voted in the same
proportion as non-affiliated Lenders voting on such matter;
provided, however, that an Affiliated Lender that is primarily
engaged in, or advises funds or other investment vehicles that are
engaged in, making, purchasing, holding or otherwise investing in
commercial loans, bonds and similar extensions of credit in the
ordinary course and with respect to which you do not, directly or
indirectly, possess the power to direct or cause the direction of
the investment policies of such entity (such lender an
“Affiliated Debt
Fund”), will not be subject to such voting limitations
and will be entitled to vote as if it was a Lender, except that
Affiliated Debt Funds may not, in the aggregate, account for more
than 49.9% of the amount necessary to constitute the Required
Lenders.


 






 



 

B-17







 





 


	


Expenses and Indemnification:


 

	

The
Borrower shall pay all reasonable and documented or invoiced
out-of-pocket costs and expenses of the Administrative Agent and
the Commitment Party (without duplication) associated with the
syndication of the Term Facilities and the preparation, execution
and delivery, administration, amendment, modification, waiver
and/or enforcement of the Credit Facility Documentation (including
the reasonable fees, disbursements and other charges of counsel
identified herein or otherwise retained (except in the context of
enforcement) with the Borrower’s consent (such consent not to
be unreasonably withheld or delayed)).


 


The
Borrower will indemnify the Administrative Agent, the Commitment
Party, the Lenders and their affiliates, and the directors,
officers, employees, counsel, agents, advisors and other
representatives or successors and assigns of the foregoing, and
hold them harmless from and against any and all losses,
liabilities, damages, claims and reasonable and documented or
invoiced out-of-pocket fees and expenses (including reasonable
fees, disbursements and other charges of one counsel for all
indemnified parties and, if necessary, one firm of local counsel in
each appropriate jurisdiction (which may include a single special
counsel acting in multiple jurisdictions) for all indemnified
parties (and, in the case of an actual or perceived conflict of
interest, where the indemnified person affected by such conflict
informs the Borrower of such conflict and thereafter retains its
own counsel, of another firm of counsel for such affected
indemnified person)) of any such indemnified person arising out of
or relating to any claim or any litigation or other proceeding
(regardless of whether such indemnified person is a party thereto
and whether or not such proceedings are brought by the Borrower,
its equity holders, its affiliates, creditors or any other third
person) that relates to the Transactions, including the financing
contemplated hereby; provided that no indemnified person will be
indemnified for any liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs,
expenses or disbursements to the extent it has resulted from (i)
the gross negligence, bad faith or willful misconduct of such
person or any of its controlled affiliates or any of the officers,
directors, employees, agents, advisors, or other representatives of
any of the foregoing, in each case who are involved in or aware of
the Transactions (as determined by a court of competent
jurisdiction in a final and non-appealable judgment), (ii) a
material breach of the Credit Facility Documentation by any such
person or one of its affiliates (as determined by a court of
competent jurisdiction in a final and non-appealable judgment) or
(iii) disputes between and among indemnified persons to the extent
such disputes do not arise from any act or omission of the Borrower
or any of its affiliates (other than claims against an indemnified
person acting in its capacity as an agent or arranger or similar
role under the Term Facilities unless such claims arise from the
gross negligence, bad faith or willful misconduct of such
indemnified person (as determined by a court of competent
jurisdiction in a final and non-appealable judgment)).


 


	


Governing Law and Forum:


 

	

New
York.


 


	


EU Bail-In Provisions:


 

	

Customary
Loan Syndications & Trading Association EU Bail-In provisions
shall be included in the Credit Facility Documentation (which shall
include a provision specifying that in the event any Lender (or a
direct or indirect parent company thereof) becomes subject to a
“Bail-in Action”, such Lender shall be deemed to be a
defaulting lender for all purposes under the Credit Facility
Documentation).


 


	


Counsel to the Administrative Agent, the Lead Arranger and the
Bookrunner:


 

	

Akin
Gump Strauss Hauer & Feld LLP.


 







 



B-18




















 






 

 ANNEX I
to

EXHIBIT
B



 


	

Interest
Rates:


 

	

The
interest rates under the Term Facilities will be, at the option of
the Borrower, (a) Adjusted LIBOR plus 8.25%, of which (i)
Adjusted LIBOR plus 7.25% shall be paid in cash and (ii) 1.00%
shall be payable in kind or (b) ABR plus 7.25%, of which (i) ABR
plus 6.25% shall be paid in cash and (ii) 1.00% shall be payable in
kind.


 


	
 

	

The
Borrower may elect interest periods of 1, 2, 3 or 6 months for
Adjusted LIBOR borrowings.


 


	
 

	

Calculation
of interest shall be on the basis of the actual days elapsed in a
year of (i) 360 days (or 365 or 366 days, as the case may be, in
the case of ABR loans based on the Prime Rate) and interest shall
be payable (i) in the case of Adjusted LIBOR loans, at the end of
each interest period and, in any event, at least every 3 months and
(ii) in the case of ABR loans, quarterly in arrears.


 


	
 

	

“ABR”
is the Alternate Base Rate, which is the highest of the rate
published by The Wall Street Journal (or any successor publication)
from time to time as the “U.S. prime lending rate”, the
Federal Funds Effective Rate plus 1/2 of 1.00%, and one-month
Adjusted LIBOR plus 1.00%, subject to a floor of 2.00% for the Term
Facilities.


 


	
 

	

“Adjusted
LIBOR” is the London interbank offered rate for
dollars, adjusted for customary Eurodollar reserve requirements, if
any, and shall be subject to a floor of 1.00% for the Term
Facilities.


 


	
 

	
 







 

 


 

 




Annex I
to Exhibit B-1








  EXHIBIT
C


 







Project Wheelie


$280,000,000
Term Loan Facility



$120,000,000 Delayed Draw Term Loan Facility


Summary
of Additional Conditions


 


The
availability of the Term Facilities shall be subject solely to the
satisfaction or waiver by the Commitment Party of the following
conditions (subject to the Certain Funds Provision). Capitalized
terms used but not defined in this Exhibit C have the meanings set
forth in the letter to which this Exhibit C is attached or in
Exhibits A, or
B
thereto:

 




1.

Subject to the
Certain Funds Provision, Borrower and each other Guarantor shall
have executed and delivered the Credit Facility Documentation, in
each case, consistent with the Commitment Letter and Term Sheet, to
which they are parties and the Commitment Party shall have
received:





 


(a)        
a customary notice of borrowing;

 


(b)      
  customary closing officer’s (certifying as to
resolutions, organizational documents and incumbency and to the
conditions set forth in paragraph 8 (with respect to Specified
Representations only)) and good standing (of the jurisdiction of
organization of Borrower and the Guarantors at closing)
certificates and legal opinions; and

 


(c)        
a certificate (substantially in the form of Annex I to this Exhibit C) from the chief
financial officer (or other officer with reasonably equivalent
duties) of Borrower certifying that Borrower and its subsidiaries,
on a consolidated basis after giving effect to the Transactions,
are solvent.

 




2.

The Acquisition
shall be consummated in all material respects pursuant to the
Purchase Agreement prior to, or substantially concurrently with,
the initial funding of the Initial Term Facility without giving
effect to any amendments or modifications to the provisions thereof
or express waivers or consents thereto that, in any such case, are
materially adverse to the interests of the Commitment Party without
the consent of the Commitment Party, such consent not to be
unreasonably withheld, conditioned or delayed (it being understood
and agreed that (i) any decrease in the consideration for the
Acquisition shall be deemed not to be materially adverse to the
interests of the Commitment Party so long as such decrease reduced,
on a dollar-for-dollar basis, the aggregate amount of the Initial
Term Facility, (ii) any increase in the consideration for the
Acquisition shall be deemed not to be materially adverse to the
interests of the Commitment Party so long as funded with proceeds
of common equity, preferred equity that does not constitute
“disqualified stock” in a manner consistent with the
terms of the Credit Facility Documentation and (iii) any adverse
amendment, supplement or other modification to, consent under or
waiver of the definition of Target Material Adverse Effect (in each
case, without the prior written consent of the Commitment Party
(such consent not to be unreasonably withheld, delayed or
conditioned)) shall be deemed to be materially adverse to the
interests of the Commitment Parties); provided that in each case the
Commitment Party shall be deemed to have consented to such
modification, amendment, waiver or consent unless it shall object
thereto within two (2) business days of receipt of written notice
of such modification, amendment, consent or waiver.





 



 C-1







 





 




3.

The Commitment
Party shall have received (a) an audited consolidated balance sheet
of the Borrower and an audited combined balance sheet of the Target
as at December 31, 2020 and in each case an audited consolidated
income statement and audited consolidated statement of cash flows
or an audited combined income statement and audited combined
statement of cash flows, as applicable, for the fiscal year then
ended; (b) an unaudited consolidated balance sheet of the Borrower
and an unaudited combined balance sheet of the Target for the
fiscal quarter ended March 31, 2021, at least 30 days prior to the
Closing Date; and in each case an unaudited consolidated income
statement and unaudited consolidated statement of cash flows or an
unaudited combined income statement and unaudited combined
statement of cash flows, as applicable, for each such period then
ended, and (c) a pro forma consolidated balance sheet of Borrower
and its Subsidiaries as of the date of the most recent financial
statements delivered pursuant to clause (b) above, prepared after
giving effect to the Transactions as if the Transactions had
occurred as of such date (in the case of such balance sheet) and
any other adjustments as agreed by the Borrower and the Commitment
Party (which need not be prepared in compliance with Regulation S-X
of the Securities Act of 1933, as amended, or include adjustments
for purchase or recapitalization accounting (including adjustments
of the type contemplated by Financial Accounting Standards Board
Accounting Standards Codification 805, Business Combinations
(formerly SFAS 141R))); provided, further, that (x) the
Commitment Party acknowledges receipt of, and satisfaction of the
condition with respect to, the financial statements specified in
clause (a) of this paragraph 3 and (y) such financial statements
shall be deemed to have been received by the Commitment Party upon
filing of such financial statements with the SEC.





 




4.

Since the date of
the Purchase Agreement, there shall not have occurred any Material
Adverse Change (as defined in the Purchase Agreement) or state of
facts that, individually or in the aggregate, has had or would
reasonably be expected to have a Target Material Adverse
Effect.





 




5.

So long as
requested at least five (5) business days prior to the Closing
Date, the Commitment Party and the Administrative Agent shall have
received, at least three (3) business days prior to the Closing
Date, (a) all documentation and other information with respect to
Borrower and the Guarantors that is required by regulatory
authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including, without
limitation, the PATRIOT Act and a certification regarding
beneficial ownership required by 31 C.F.R. § 1010.230 and (b)
a completed copy of the Commitment Party’s standard
environmental, social and corporate governance (ESG)
questionnaire.





 




6.

Payment of all fees
and expenses earned, due and payable to the Commitment Party and
the Lenders required to be paid on the Closing Date from the
proceeds of the initial fundings under the Initial Term Facility
for which invoices have been received at least three (3) business
days in advance (which amounts may be offset against the proceeds
of the Initial Term Facility) shall have been made (or shall be
made substantially contemporaneously with funding).





 




7.

Subject to the
Certain Funds Provision, with respect to the Term Facilities,
commercially reasonable actions necessary to establish that the
Administrative Agent will have a perfected security interest in the
Collateral of Borrower and each Guarantor under the Term Facilities
shall have been taken (or shall be taken substantially
contemporaneously with funding).





 




8.

The Specified
Purchase Agreement Representations shall be true and correct to the
extent required by the Certain Funds Provision and the Specified
Representations shall be true and correct in all material
respects.





 




9.

The Refinancing
shall have been consummated upon, or substantially simultaneously
with, the initial funding of the Term Facility.





 




10.

Prior to, or
substantially concurrently with the initial fundings contemplated
by the Commitment Letter, Borrower shall have received the Equity
Contribution substantially in the manner described in Exhibit A to the Commitment
Letter (subject to reduction in accordance with paragraph 2
above).





 


 

 



 C-2








ANNEX I
to


EXHIBIT
C






 


RUMBLEON,
INC.

 


SOLVENCY
CERTIFICATE

 


[____],
20[_]

 


Pursuant to Section
[_] of the Credit Agreement, dated as of the date hereof (as
amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among
[_________], the undersigned [chief financial officer] [other
officer with equivalent duties] of the Borrower hereby certify as
of the date hereof, solely on behalf of the Borrower and not in
their individual capacity and without assuming any personal
liability whatsoever, that:

 




1.

I am familiar with
the finances, properties, businesses and assets of the Borrower and
its Subsidiaries. I have reviewed the Loan Documents and such other
documentation and information and have made such investigation and
inquiries as I have deemed necessary and prudent therefor. I have
also reviewed the consolidated financial statements of the Borrower
and its Subsidiaries, including projected financial statements and
forecasts relating to income statements and cash flow statements of
the Borrower and its Subsidiaries.





 




2.

On the Closing
Date, after giving effect to the Transactions, the Borrower and its Subsidiaries (on a consolidated
basis) (a) have property with fair value greater than the
total amount of their debts and liabilities, contingent (it being
understood that the amount of contingent liabilities at any time
shall be computed as the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability),
subordinated or otherwise, (b) have assets with present fair
salable value not less than the amount that will be required to pay
their liability on their debts as they become absolute and matured,
(c) will be able to pay their debts and liabilities, subordinated,
contingent or otherwise, as they become absolute and matured and
(d) are not engaged in business or a transaction, and are not about
to engage in business or a transaction, for which their property
would constitute an unreasonably small capital.





 


All
capitalized terms used but not defined in this certificate shall
have the meanings set forth in the Credit Agreement.

 


[SIGNATURE
PAGE TO FOLLOW]




 








 






IN
WITNESS WHEREOF, I have executed this Certificate as of the date
first written above.

 


 

 


RUMBLEON,
INC.

 


By:
__________________________


Name:


Title:


 


 


 


 




Annex I
to Exhibit C-[Insert Page
Number]








EXHIBIT
D










 



Project Wheelie



$280,000,000 Term Loan Facility



$120,000,000 Delayed Draw Term Loan Facility



Select Definitions

 


The
Credit Facility Documentation will include definitions
substantially consistent with the concepts set forth below, which
may include additional add backs and exclusions as are agreed upon
between you and the Commitment Party, subject to the Documentation
Principles.

 


As used
in this Exhibit D, the phrase “capitalized lease
obligations” shall not be deemed to include any obligations
in respect of leases of real property.

 


“Change of
Control” shall mean the occurrence after the Equity
Contribution and Closing Date of either of the following events:
(a) any “person” or “group” (as such terms
are used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity
as trustee, agent or other fiduciary or administrator of any such
plan), other than a Permitted Holder, becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group
shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire (such
right, an “option right”), whether such right is
exercisable immediately or only after the passage of time),
directly or indirectly, of more than the greater of (x) 40.0% or
more of the capital stock of the Borrower entitled to vote for
members of the board of directors or equivalent governing body of
the Borrower on a fully diluted basis (and taking into account all
such securities that such person or group has the right to acquire
pursuant to any option right) (the “Voting Stock”)
and (y) the percentage of Voting Stock owned, directly or
indirectly, beneficially by the Permitted Holders, or (b) during
any period of 24 consecutive months (the first such period
commencing two (2) months after the Closing Date), a majority of
the members of the board of directors or other equivalent governing
body of the Borrower cease to be composed of individuals (i) who
were members of that board or equivalent governing body on the
first day of such period, (ii) whose election, appointment or
nomination to that board or equivalent governing body was approved
by individuals referred to in clause (i) above constituting at the
time of such election, appointment or nomination at least a
majority of that board or equivalent governing body or (iii) whose
election, appointment or nomination to that board or other
equivalent governing body was approved by individuals referred to
in clauses (i) and (ii) above constituting at the time of such
election, appointment or nomination at least a majority of that
board or equivalent governing body.

 


“Consolidated Depreciation
and Amortization Expense” means, with respect to any
person for any period, the total amount of depreciation and
amortization expense, including the amortization of deferred
financing fees or costs, capitalized expenditures, customer
acquisition costs and incentive payments, conversion costs and
contract acquisition costs, the amortization of original issue
discount resulting from the issuance of indebtedness at less than
par and amortization of favorable or unfavorable lease assets or
liabilities, of such person and its restricted subsidiaries for
such period on a consolidated basis and otherwise determined in
accordance with GAAP.

 


“Consolidated
EBITDA” means, with respect to any person for any
period, the Consolidated Net Income of such person for such
period:

 


(a)           increased
(without duplication) by the following:

 


(i)           provision
for taxes based on income or profits or capital, including, without
limitation, state franchise, excise and similar taxes and foreign
withholding taxes of such person paid or accrued during such
period, including any penalties and interest relating to any tax
examinations, deducted (and not added back) in computing
Consolidated Net Income; plus

 



 

D-1







 





 


(ii)           Consolidated
Interest Expense (other than Floor Plan Interest Expense) of such
person for such period to the extent the same were deducted (and
not added back) in computing Consolidated Net Income; plus

 


(iii)           Consolidated
Depreciation and Amortization Expense of such person for such
period to the extent the same were deducted (and not added back) in
computing Consolidated Net Income whether before or after the
Closing Date; plus

 


(iv)           any
expenses or charges (other than depreciation or amortization
expense) related to any equity offering, investment, acquisition,
disposition or recapitalization permitted hereunder or the
incurrence of indebtedness permitted to be incurred hereunder
(including a refinancing thereof, but excluding any expenses or
charges relating to any Floor Plan Financing) (whether or not
successful), including (A) such fees, expenses or charges related
to the Credit Facility Documentation and (B) any amendment or other
modification of the Credit Facility Documentation, in each case,
deducted (and not added back) in computing Consolidated Net Income;
plus

 


(v)           the
amount of any restructuring charge or reserve, integration cost or
other business optimization expense or cost that is deducted (and
not added back) in such period in computing Consolidated Net
Income, including any one-time costs incurred in connection with
acquisitions or divestitures after the Closing Date, and costs
related to the closure and/or consolidation of facilities and to
existing lines of business; plus

 


(vi)           any
other non-cash charges, write-downs, expenses, losses or items
reducing Consolidated Net Income for such period including any
impairment charges or the impact of purchase accounting, (excluding
any such non-cash charge, write-down or item to the extent it
represents an accrual or reserve for a cash expenditure for a
future period) or other items classified by the Borrower as special
items less other non-cash items of income increasing Consolidated
Net Income (excluding any such non-cash item of income to the
extent it represents a receipt of cash in any future period);
plus

 


(vii)           the
amount of any minority interest expense consisting of Subsidiary
income attributable to minority equity interests of third parties
in any non-wholly-owned subsidiary; plus

 


(viii)           the
amount of “run-rate” cost savings, operating expense
reductions and synergies projected by the Borrower in good faith to
result from actions taken prior to or during, or expected to be
taken following such period (which cost savings, operating expense
reductions or synergies shall be subject only to certification by a
responsible officer of the Borrower and shall be calculated on a
pro forma basis as though such cost savings, operating expense
reductions or synergies had been realized on the first day of such
period), net of the amount of actual benefits realized prior to or
during such period from such actions; provided that (A) a responsible officer
of the Borrower shall have certified to the Administrative Agent
that (x) such cost savings, operating expense reductions or
synergies are reasonably identifiable, reasonably attributable to
the actions specified and reasonably anticipated to result from
such actions and (y) such actions have been taken or are to be
taken within eighteen (18) months from the date of such transaction
and (B) amounts added back pursuant to this clause (viii) shall not
exceed, when added to the aggregate amount of add backs made
pursuant to clause (v) of this definition of “Consolidated
EBITDA”, 20% of Consolidated EBITDA for such period
calculated prior to giving effect to the add-backs set forth in
this clause (viii); plus

 



 

D-2







 





 


(ix)           any
costs or expenses incurred by the Borrower or a restricted
subsidiary pursuant to any management equity plan or stock option
plan or any other management or employee benefit plan or agreement,
any severance agreement or any stock subscription or shareholder
agreement, to the extent that such cost or expenses are funded with
cash proceeds contributed to the capital of the Borrower or net
cash proceeds of an issuance of equity interests (other than
disqualified equity interests) of the Borrower; plus

 


(x)           cash
receipts (or any netting arrangements resulting in reduced cash
expenditures) not representing Consolidated EBITDA or Consolidated
Net Income in any period to the extent non-cash gains relating to
such income were deducted in the calculation of Consolidated EBITDA
pursuant to paragraph
(b) below for any previous period and not added back;
plus

 


(xi)           any
net loss included in Consolidated Net Income attributable to
non-controlling interests pursuant to the application of Accounting
Standards Codification Topic 810-10-45; plus

 


(xii)       
realized foreign exchange gains or losses resulting from the impact
of foreign currency changes on the valuation of assets or
liabilities on the balance sheet of the Borrower and its restricted
subsidiaries; plus

 


(xiii)        
net realized losses from swap contracts or embedded derivatives
that require similar accounting treatment and the application of
Accounting Standard Codification Topic 815 and related
pronouncements;

 


(b)           decreased
(without duplication) by the following:

 


(i)           non-cash
gains increasing Consolidated Net Income of such person for such
period, excluding any non-cash gains to the extent they represent
the reversal of an accrual or reserve for a potential cash item
that reduced Consolidated EBITDA in any prior period and any
non-cash gains with respect to cash actually received in a prior
period so long as such cash did not increase Consolidated EBITDA in
such prior period; plus

 


(ii)        
realized foreign exchange income or gains resulting from the impact
of foreign currency changes on the valuation of assets or
liabilities on the balance sheet of the Borrower and its restricted
subsidiaries; plus

 


(iii)       
any net realized income or gains from any obligations under any
swap contracts or embedded derivatives that require similar
accounting treatment and the application of Accounting Standard
Codification Topic 815 and related pronouncements; plus

 


(iv)           any
amount included in Consolidated Net Income of such person for such
period attributable to non-controlling interests pursuant to the
application of Accounting Standards Codification Topic
810-10-45;

 


(c)           increased
or decreased (without duplication) by, as applicable, any
adjustments resulting from the application of Accounting Standards
Codification Topic 460 or any comparable regulation;
and

 


(d)           increased
or decreased (to the extent not already included in determining
Consolidated EBITDA) by any pro forma adjustment.

 



 

D-3







 





 


There
shall be included in determining Consolidated EBITDA for any
period, without duplication, (A) the EBITDA of any person,
property, business or asset acquired by the Borrower or any
restricted subsidiary during such period (but not the EBITDA of any
related person, property, business or assets to the extent not so
acquired), to the extent not subsequently sold, transferred or
otherwise disposed of by the Borrower or such restricted subsidiary
during such period (each such person, property, business or asset
acquired and not subsequently so disposed of, an
“Acquired
Entity or Business”), and the EBITDA of any
unrestricted subsidiary that is converted into a restricted
subsidiary during such period (each, a “Converted Restricted
Subsidiary”), based on the actual EBITDA of such
Acquired Entity or Business or Converted Restricted Subsidiary for
such period (including the portion thereof occurring prior to such
acquisition or conversion) and (B) an adjustment in respect of each
Acquired Entity or Business equal to the amount of the pro forma
adjustment with respect to such Acquired Entity or Business for
such period (including the portion thereof occurring prior to such
acquisition) as specified in a certificate executed by a
responsible officer and delivered to the Lenders and the
Administrative Agent. For purposes of determining Consolidated
EBITDA for any period, there shall be excluded in determining
Consolidated EBITDA for any period the EBITDA of any person,
property, business or asset (other than an unrestricted subsidiary)
sold, transferred or otherwise disposed of, closed or classified as
discontinued operations by the Borrower or any restricted
subsidiary during such period (each such person, property, business
or asset so sold or disposed of, a “Sold Entity or
Business”) and the EBITDA of any restricted subsidiary
that is converted into an unrestricted subsidiary during such
period (each, a “Converted Unrestricted
Subsidiary”), based on the actual EBITDA of such Sold
Entity or Business or Converted Unrestricted Subsidiary for such
period (including the portion thereof occurring prior to such sale,
transfer or disposition).

 


“Consolidated Interest
Expense” means, with respect to any person for any
period, without duplication, the sum of:

 


(1)           consolidated
interest expense of such person and its restricted subsidiaries for
such period, to the extent such expense was deducted (and not added
back) in computing Consolidated Net Income (including
(a) amortization of original issue discount or premium
resulting from the issuance of indebtedness at less than par,
(b) all commissions, discounts and other fees and charges owed
with respect to letters of credit or bankers acceptances,
(c) non-cash interest payments (but excluding any non-cash
interest expense attributable to the movement in the mark to market
valuation of swap contracts or other derivative investments
pursuant to GAAP), (d) the interest component of capitalized
lease obligations,(e) net payments, if any, pursuant to
interest rate obligations under any swap contracts with respect to
indebtedness and (f) interest expense related to Floor Plan
Financings); plus

 


(2)           consolidated
capitalized interest of such person and its restricted subsidiaries
for such period, whether paid or accrued; less

 


(3)           interest
income for such period.

 


For
purposes of this definition, interest on a capitalized lease
obligation shall be deemed to accrue at an interest rate reasonably
determined by such person to be the rate of interest implicit in
such capitalized lease obligation in accordance with
GAAP.

 


“Consolidated Net
Income” means, with respect to any person for any
period, the net income (loss) of such person and its restricted
subsidiaries for such period determined on a consolidated basis on
the basis of GAAP; provided, however, that there will not be
included in such Consolidated Net Income:

 


(1)           any
net income (loss) of any person if such person is not a restricted
subsidiary, except that the Borrower’s equity in the net
income of any such person for such period will be included in such
Consolidated Net Income up to the aggregate amount of cash or cash
equivalents actually distributed (or, so long as such person is not
(x) a joint venture with outstanding third-party indebtedness for
borrowed money or (y) an unrestricted subsidiary, that (as
reasonably determined by a responsible officer of the Borrower)
could have been distributed by such person during such period to
the Borrower or a restricted subsidiary) as a dividend or other
distribution or return on investment;

 



 

D-4







 





 


(2)           any
net gain (or loss) from disposed, abandoned or discontinued
operations and any net gain (or loss) on disposal of disposed,
discontinued or abandoned operations;

 


(3)           any
net gain (or loss) realized upon the sale or other disposition of
any asset (including pursuant to any sale/leaseback transaction)
which is not sold or otherwise disposed of in the ordinary course
of business (as determined in good faith by a responsible officer
or the board of directors of the Borrower);

 


(4)       
any extraordinary, exceptional, unusual or nonrecurring gain, loss,
charge or expense (including relating to the Transaction Costs), or
any charges, expenses or reserves in respect of any restructuring,
redundancy or severance expense, new product introductions or
one-time compensation charges;

 


(5)           the
cumulative effect of a change in accounting
principles;

 


(6)           any
(i) non-cash compensation charge or expense arising from any grant
of stock, stock options or other equity based awards and any
non-cash deemed finance charges in respect of any pension
liabilities or other provisions and (ii) income (loss) attributable
to deferred compensation plans or trusts;

 


(7)           all
deferred financing costs written off and premiums paid or other
expenses incurred directly in connection with any early
extinguishment of indebtedness and any net gain (loss) from any
write-off or forgiveness of indebtedness;

 


(8)           any
unrealized gains or losses in respect of any obligations under any
swap contracts or any ineffectiveness recognized in earnings
related to hedge transactions or the fair value of changes therein
recognized in earnings for derivatives that do not qualify as hedge
transactions, in each case, in respect of any obligations under any
swap contracts;

 


(9)           any
unrealized foreign currency transaction gains or losses in respect
of indebtedness of any person denominated in a currency other than
the functional currency of such person and any unrealized foreign
exchange gains or losses relating to translation of assets and
liabilities denominated in foreign currencies;

 


(10)        
any purchase accounting effects including, but not limited to,
adjustments to inventory, property and equipment, software and
other intangible assets and deferred revenue in component amounts
required or permitted by GAAP and related authoritative
pronouncements (including the effects of such adjustments pushed
down to the Borrower and the restricted subsidiaries), as a result
of any consummated acquisition, or the amortization or write-off of
any amounts thereof (including any write-off of in process research
and development);

 


(11)        
any impairment charge, asset write-down or write-off, including
impairment charges, or asset write-downs or write-offs relating to
intangible assets, long-lived assets, investments in debt and
equity securities or as a result of a change in law or
regulation;

 


(12)           any
after-tax effect of income (loss) from the early extinguishment or
cancellation of indebtedness or any obligations under any swap
contracts or other derivative instruments;

 



 

D-5







 





 


(13)           accruals
and reserves that are established within twelve months after the
Closing Date that are so required to be established as a result of
the Transactions in accordance with GAAP;

 


(14)        
any net unrealized gains and losses resulting from swap contracts
or embedded derivatives that require similar accounting treatment
and the application of Accounting Standards Codification Topic 815
and related pronouncements; and

 


(15)           any
deferred tax expense associated with tax deductions or net
operating losses arising as a result of the Transactions, or the
release of any valuation allowance related to such
item.

 


In
addition, to the extent not already included in the Consolidated
Net Income of such person and its restricted subsidiaries,
notwithstanding anything to the contrary in the foregoing,
Consolidated Net Income shall include (i) any expenses and charges
that are reimbursed by indemnification or other reimbursement
provisions in connection with any investment or any sale,
conveyance, transfer or other disposition of assets permitted
hereunder and (ii) to the extent covered by insurance and actually
reimbursed, or, so long as the Borrower has made a determination
that there exists reasonable evidence that such amount will in fact
be reimbursed by the insurer and only to the extent that such
amount is (A) not denied by the applicable carrier in writing
within 180 days and (B) in fact reimbursed within 365 days of the
date of such evidence (with a deduction for any amount so added
back to the extent not so reimbursed within such 365 days),
expenses with respect to liability or casualty events or business
interruption.

 


“Consolidated Senior Secured
Net Leverage Ratio” means, with respect to any test
period, the ratio of (a) Consolidated Total Net Debt (other than
any portion of Consolidated Net Debt that is unsecured) as of the
last day of such test period to (b) Consolidated EBITDA of the
Borrower and its restricted subsidiaries for such test
period.

 


“Consolidated Total
Debt” means, as of any date of determination, the
aggregate principal amount of indebtedness of the Borrower and its
restricted subsidiaries outstanding on such date, determined on a
consolidated basis in accordance with GAAP (but excluding the
effects of any discounting of indebtedness resulting from the
application of purchase accounting in connection with the
Transactions or any Permitted Acquisition), consisting of
indebtedness for borrowed money, capitalized lease obligations and
debt obligations evidenced by bonds, debentures, notes, loan
agreements or other similar instruments; provided that Consolidated Total Debt
shall not include (x) obligations under swap contracts entered into
in the ordinary course of business and not for speculative
purposes, (y) undrawn letters of credit and (z) Floor Plan
Debt.

 


“Consolidated Total Leverage
Ratio” means, with respect to any test period, the
ratio of (a) Consolidated Total Debt as of the last day of such
test period to (b) Consolidated EBITDA of the Borrower and its
restricted subsidiaries for such test period.

 


“Consolidated Total Net
Debt” means, as of any date of determination, (a)
Consolidated Total Debt minus (b) the aggregate amount of
unrestricted cash and cash equivalents of the Borrower and its
restricted subsidiaries as of such date held in (i) reserve
accounts in connection with any prepayment of the PPP Debt and (ii)
accounts that are subject to a control agreement in favor of the
Administrative Agent.

 


“Consolidated Total Net
Leverage Ratio” means, with respect to any test
period, the ratio of (a) Consolidated Total Net Debt as of the last
day of such test period to (b) Consolidated EBITDA of the Borrower
and its restricted subsidiaries for such test period.

 



 

D-6







 





 


“Consolidated Working
Capital” means, at any date, (x) the sum of (i) all
amounts (other than cash and cash equivalents) that would, in
conformity with GAAP, be set forth opposite the caption
“total current assets” (or any like caption) on a
consolidated balance sheet of the Borrower and its restricted
subsidiaries at such date and (ii) long-term accounts receivable
less (y) the sum of (i) all
amounts that would, in conformity with GAAP, be set forth opposite
the caption “total current liabilities” (or any like
caption) on a consolidated balance sheet of the Borrower and its
restricted subsidiaries on such date and (ii) long-term deferred
revenue, but excluding, without duplication, (a) the current
portion of any funded debt or other long-term liabilities, (b) the
current portion of interest, (c) the current portion of current and
deferred income taxes, (d) the current portion of any capitalized
lease obligations, (e) deferred revenue arising from cash receipts
that are earmarked for specific projects, (f) the current portion
of deferred acquisition costs and (g) current accrued costs
associated with any restructuring or business optimization
(including accrued severance and accrued facility closure
costs).

 


“Excess Cash
Flow” means, for any period, an amount equal
to:

 


(a)           the
sum, without duplication, of:

 


(i)           Consolidated
Net Income for such period;

 


(ii)           an
amount equal to the amount of all non-cash charges (including
depreciation and amortization) to the extent deducted in arriving
at such Consolidated Net Income;

 


(iii)           decreases
in Consolidated Working Capital for such period (other than any
such decreases arising from acquisitions by the Borrower and its
restricted subsidiaries completed during such period or the
application of purchase accounting);

 


(iv)           an
amount equal to the aggregate net non-cash loss on dispositions by
the Borrower and its restricted subsidiaries during such period
(other than dispositions in the ordinary course of business) to the
extent deducted in arriving at such Consolidated Net Income;
and

 


(v)           cash
receipts in respect of swap contracts during such period to the
extent not otherwise included in Consolidated Net Income;
less

 


(b)           the
sum, without duplication, of:

 


(i)           an
amount equal to the amount of all non-cash credits included in
arriving at such Consolidated Net Income and cash charges to the
extent included in arriving at such Consolidated Net
Income;

 


(ii)           without
duplication of amounts deducted pursuant to clause (xi) below in
prior fiscal years, the amount of capital expenditures or
acquisitions made in cash during such period, except to the extent
that such capital expenditures or acquisitions were financed with
the proceeds of an incurrence or issuance of indebtedness of the
Borrower or its restricted subsidiaries;

 


(iii)           the
aggregate amount of all principal payments of indebtedness of the
Borrower and its restricted subsidiaries (including (A) the
principal component of capitalized lease obligations and (B) the
amount of amortization payments and any mandatory prepayment of
Term Loans to the extent required due to a disposition that
resulted in an increase to such Consolidated Net Income and not in
excess of the amount of such increase but excluding all other
prepayments of Term Loans), except to the extent financed with the
proceeds of an incurrence or issuance of other indebtedness of the
Borrower or its restricted subsidiaries;

 



 

D-7







 





 


(iv)           an
amount equal to the aggregate net non-cash gain on dispositions by
the Borrower and its restricted subsidiaries during such period
(other than dispositions in the ordinary course of business) to the
extent included in arriving at such Consolidated Net
Income;

 


(v)           increases
in Consolidated Working Capital for such period (other than any
such increases arising from acquisitions by the Borrower and its
restricted subsidiaries completed during such period or the
application of purchase accounting);

 


(vi)           cash
payments by the Borrower and its restricted subsidiaries during
such period in respect of long-term liabilities of the Borrower and
its restricted subsidiaries other than indebtedness (including such
indebtedness specified in clause (b)(iii)
above);

 


(vii)           without
duplication of amounts deducted pursuant to clause (xi) below in prior
periods, the amount of certain investments and acquisitions to be
agreed made during such period pursuant to the Credit Facility
Documentation, except to the extent that such investments and
acquisitions were financed with the proceeds of an incurrence or
issuance of indebtedness of the Borrower or its restricted
subsidiaries;

 


(viii)           the
amount of certain restricted payments to be agreed paid during such
period except to the extent that such restricted payments were
financed with the proceeds of an incurrence or issuance of
indebtedness of the Borrower or its restricted
subsidiaries;

 


(ix)           the
aggregate amount of any premium, make-whole or penalty payments
actually paid in cash by the Borrower and its restricted
subsidiaries during such period that are required to be made in
connection with any prepayment of indebtedness except to the extent
that such amounts (but not the indebtedness so prepaid) were
financed with the proceeds of an incurrence or issuance of
indebtedness of the Borrower or its restricted
subsidiaries;

 


(x)           the
aggregate amount of expenditures actually made by the Borrower and
its restricted subsidiaries in cash during such period (including
expenditures for the payment of financing fees) to the extent that
such expenditures are not expensed during such period and were not
financed with the proceeds of an incurrence or issuance of
indebtedness of the Borrower or its restricted
subsidiaries;

 


(xi)           without
duplication of amounts deducted from Excess Cash Flow in prior
periods, the aggregate consideration required to be paid in cash by
the Borrower or any of its restricted subsidiaries pursuant to
binding contracts (the “Contract
Consideration”) entered into prior to or during such
period relating to Permitted Acquisitions, capital expenditures or
acquisitions to be consummated or made during the period of four
consecutive fiscal quarters of the Borrower following the end of
such period except to the extent intended to be financed with the
proceeds of an incurrence or issuance of other indebtedness of the
Borrower or its Restricted Subsidiaries; provided that to the
extent the aggregate amount utilized to finance such Permitted
Acquisitions, capital expenditures or acquisitions during such
period of four consecutive fiscal quarters is less than the
Contract Consideration, the amount of such shortfall, shall be
added to the calculation of Excess Cash Flow at the end of such
period of four consecutive fiscal quarters;

 


(xii)           the
amount of cash taxes (including penalties and interest) paid or tax
reserves set aside or payable (without duplication) in such period
to the extent they exceed the amount of tax expense deducted in
determining Consolidated Net Income for such period;
and

 



 

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(xiii)           cash
expenditures in respect of swap contracts during such fiscal year
to the extent not deducted in arriving at such Consolidated Net
Income.

 


“Floor Plan
Financing” means financing arrangements pursuant to
which a capital provider agrees to extend credit to Borrower or a
restricted subsidiary to finance Floor Plan Units that are either
held available for sale or as inventory by Borrower or such
subsidiary.

 


“Floor Plan
Debt” means all indebtedness of the Borrower and its
restricted subsidiaries incurred to finance Floor Plan
Units.

 


“Floor Plan Interest
Expense” means that component of the Borrower’s
and its restricted subsidiaries’ aggregate Consolidated
Interest Expense attributable to Floor Plan Debt.

 


“Floor Plan
Units” means inventory of the Borrower and its
restricted subsidiaries consisting of automobiles, motorcycles,
power sports vehicles or any other vehicle sold or leased by the
Borrower or its restricted subsidiaries in the ordinary course of
their business. Floor Plan Units do not include supplies or spare
parts inventory.

 


“Permitted
Holders” shall mean William Coulter, Mark Tkach,
Marshall Chesrown and Steven Berrard and their respective spouses,
children, grandchildren and other immediate family members and
personal representatives of their estates or trusts of which they
or their respective spouses, children, grandchildren, or other
immediate family members are the sole beneficiaries (in each case,
directly or indirectly, including through one or more investment
vehicles).

 



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