exv10w1






Exhibit 10.1




 

 






CREDIT AGREEMENT




among




JCP FUND V BRIDGE PARTNERS LLC,




Borrower




and




JEFFERIES GROUP, INC.,




Lender




Dated as of August 11, 2008




 

 







 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 1.
	 	DEFINITIONS	 	 	1	 
	1.1
	 	Defined Terms	 	 	1	 
	1.2
	 	Other Constructional Provisions	 	 	6	 
	 
	 	 	 	 	 	 
	SECTION 2.
	 	AMOUNT AND TERMS OF LOANS	 	 	6	 
	 
	 	 	 	 	 	 
	2.1
	 	The Loans	 	 	6	 
	2.2
	 	Repayment of Loans	 	 	7	 
	2.3
	 	Prepayments	 	 	7	 
	2.4
	 	Interest Rates and Interest Payment Dates	 	 	7	 
	2.5
	 	Payments	 	 	8	 
	2.6
	 	Taxes	 	 	8	 
	 
	 	 	 	 	 	 
	SECTION 3.
	 	REPRESENTATIONS AND WARRANTIES	 	 	9	 
	 
	 	 	 	 	 	 
	3.1
	 	Existence	 	 	9	 
	3.2
	 	Authorization; Enforceable Obligations	 	 	9	 
	3.3
	 	No Legal Bar	 	 	10	 
	3.4
	 	No Material Litigation	 	 	10	 
	3.5
	 	No Default	 	 	10	 
	3.6
	 	Federal Regulations	 	 	10	 
	3.7
	 	No Material Adverse Effect	 	 	10	 
	3.8
	 	Investment Company Act	 	 	10	 
	3.9
	 	Compliance with Laws	 	 	11	 
	3.10
	 	Compliance with OFAC Rules and Regulations	 	 	11	 
	3.11
	 	Disclosure	 	 	11	 
	3.12
	 	Insolvency	 	 	11	 
	3.13
	 	Permitted Investments	 	 	11	 
	 
	 	 	 	 	 	 
	SECTION 4.
	 	CONDITIONS PRECEDENT TO EFFECTIVENESS	 	 	12	 
	 
	 	 	 	 	 	 
	4.1
	 	Conditions to Effectiveness	 	 	12	 
	4.2
	 	Conditions to Loans Following the Closing Date	 	 	13	 
	 
	 	 	 	 	 	 
	SECTION 5.
	 	AFFIRMATIVE COVENANTS	 	 	14	 
	 
	 	 	 	 	 	 
	5.1
	 	Compliance with Laws. Etc.	 	 	14	 
	5.2
	 	Payment of Taxes Etc	 	 	14	 






-i-









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	5.3
	 	Conduct of Business and Maintenance of Existence	 	 	14	 
	5.4
	 	Maintenance of Books and Records	 	 	15	 
	5.5
	 	Use of Proceeds	 	 	15	 
	5.6
	 	Notices	 	 	15	 
	5.7
	 	Pledged Collateral	 	 	15	 
	5.8
	 	Margin Regulations	 	 	15	 
	5.9
	 	Delivery of Related Agreements	 	 	15	 
	 
	 	 	 	 	 	 
	SECTION 6.
	 	NEGATIVE COVENANTS	 	 	15	 
	 
	 	 	 	 	 	 
	6.1
	 	Limitation on Liens	 	 	15	 
	6.2
	 	Limitation on Fundamental Changes	 	 	15	 
	6.3
	 	Limitation on Dividends	 	 	16	 
	6.4
	 	Limitation on Investments, Loans and Advances	 	 	16	 
	6.5
	 	Limitation on Business Activities	 	 	16	 
	6.6
	 	Limitation on Indebtedness	 	 	16	 
	6.7
	 	Transactions with Affiliates	 	 	16	 
	6.8
	 	Margin Stock	 	 	16	 
	 
	 	 	 	 	 	 
	SECTION 7.
	 	EVENTS OF DEFAULT	 	 	16	 
	 
	 	 	 	 	 	 
	SECTION 8.
	 	MISCELLANEOUS	 	 	18	 
	 
	 	 	 	 	 	 
	8.1
	 	Amendments and Waivers	 	 	18	 
	8.2
	 	Notices	 	 	18	 
	8.3
	 	No Waiver; Cumulative Remedies	 	 	19	 
	8.4
	 	Indemnification and Payment of Expenses	 	 	19	 
	8.5
	 	Successors and Assigns and Assignments	 	 	20	 
	8.6
	 	Set-off	 	 	20	 
	8.7
	 	Counterparts	 	 	21	 
	8.8
	 	Integration	 	 	21	 
	8.9
	 	GOVERNING LAW	 	 	21	 
	8.10
	 	WAIVERS OF JURY TRIAL	 	 	21	 
	8.11
	 	Consent to Jurisdiction and Service of Process	 	 	21	 
	8.12
	 	Confidentiality	 	 	22	 







-ii-









 







EXHIBITS



Exhibit A          Form of Note



Exhibit B          Form of Pledge Agreement



Exhibit C          Borrowers Certificate





 











 





CREDIT AGREEMENT




          CREDIT AGREEMENT (this “Agreement”), dated as of August 11, 2008, among JCP FUND V BRIDGE
PARTNERS LLC, a Delaware limited liability company (the “Borrower”), and JEFFERIES GROUP,
INC., a Delaware corporation (the “Lender”).




RECITALS




          The Borrower has requested that the Lender make interim loans to the Borrower from time to
time in the aggregate principal amount of up to $50,000,000, the proceeds of which would be used to
finance the purchase of Permitted Investments (as such term is defined below). It is anticipated
that the Permitted Investments will be sold to the Fund (as such term is defined below) shortly
after the first closing of the sale of interests in the Fund to third party investors. The Lender
is willing to make such loans available to the Borrower, but only on these terms and subject to the
conditions set forth in this Agreement. The parties hereto hereby agree as follows:




          SECTION 1. DEFINITIONS




          1.1 Defined Terms. As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular and the plural form
of the terms defined):




          “Agreement”: as defined in the heading to this Agreement.




          “Affiliate”: of any Person means (a) any other Person which directly, or indirectly
through one or more intermediaries, controls such Person, (b) any other Person which directly, or
indirectly through one or more intermediaries, is controlled by or is under common control with
such Person, or (c) any other Person of which such Person owns, directly or indirectly, 10% or more
of the common stock or equivalent equity interests. As used herein, the term “control” means
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of a Person, whether through the ownership of voting securities, by contract or
otherwise. Notwithstanding the foregoing, the term “Affiliate” shall not include any Permitted
Investment or the Lender.




          “Borrower”: as defined in the heading to this Agreement.




          “Borrower Certificate”: a certificate of the Borrower substantially in the form
attached hereto as Exhibit C.




          “Business Day”: a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close.




          “Closing Date”: as defined in Section 4.1 hereof.




 









 








          “Commitment”: the Lender’s obligation to make the Loans to the Borrower pursuant to
Section 2.1 hereof in an amount not to exceed $50,000,000.




          “Commitment Termination Date”: the earlier to occur of (a) August 10, 2009 and (b)
the Maturity Date.




          “Default”: any Event of Default or any event or condition that with the giving of
notice or the lapse of time, or both, would constitute an Event of Default.




          “Event of Default”: as defined in Section 7 hereof.




          “Excluded Taxes”: with respect to the Lender or any other recipient of any payment to
be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of America, or by the jurisdiction
under the laws of which such recipient is organized or in which its principal office is located or
any jurisdiction (or political subdivision thereof) in which Taxes are imposed as a result of the
Lender doing business in such jurisdiction or in which its applicable lending office is located,
and (b) any branch profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Lender is located and (c) any withholding tax that is
imposed on amounts payable to the Lender at any time that the Lender designates a new lending
office, other that taxes that have accrued prior to the designation of such lending office that are
otherwise not Excluded Taxes.




          “First Drawdown Date”: three (3) Business Days following the date on which the Fund
receives its first drawdown in cash from its investors pursuant to the terms of its organizational
documents.




          “Fund”: Jefferies Capital Partners V LP, a Delaware limited partnership to be formed
by the Managing Members, and including, where the context so requires, any parallel entities
thereto.




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




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




          “Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (excluding accounts payable in the ordinary course), (c) all
obligations of such Person evidenced by notes; bonds, debentures or other similar instruments or
upon which interest payments are customarily made, (d) all obligations of such




2









 







Person created or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under leases that have been or should be,
in accordance with GAAP, recorded as capital leases, (f) all obligations, contingent or otherwise,
of such Person in respect of acceptances, letters of credit or similar extensions of credit, (g)
all obligations of such Person in respect of hedge agreements, (h) all Indebtedness of others
referred to in clauses (a) through (g) above or clause (i) below guaranteed directly or indirectly
in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through
an agreement (1) to pay or purchase such Indebtedness or to advance or supply funds for the payment
or purchase of such Indebtedness, (2) to purchase, sell or lease (as lessee or lessor) property, or
to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of
such Indebtedness or to assure the holder of such Indebtedness against loss, (3) to supply funds to
or in any other manner invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such services are rendered) or (4)
otherwise to assure a creditor against loss, and (i) all Indebtedness referred to in clauses (a)
through (h) above secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has not assumed or
become liable for the payment of such Indebtedness, or for the deferred purchase price of property
or services.




          “Indemnified Taxes”: Taxes other than Excluded Taxes and Other Taxes.




          “Investments”: any debt or equity (or debt with equity) investment (other than
Temporary Investments) in anticipation of the establishment of the Fund and acquisition thereof by
the Fund.




          “Laws”: collectively, all applicable Federal, state and local statutes, treaties,
rules, regulations, ordinances, codes and binding and current administrative or judicial precedents
or authorities, including the interpretation or administration thereof by any Governmental
Authority with competent jurisdiction charged with the enforcement, interpretation or
administration thereof, and all applicable administrative orders, licenses, authorizations and
permits of, and agreements with, any such Governmental Authority.




          “Lender”: as defined in the heading hereto and includes any other Person becoming a
Lender hereunder pursuant to an assignment as set forth in Section 8.5.




          “Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention agreement and any
financing lease having substantially the same economic effect as any of the foregoing) and, in the
case of securities, any purchase option, call or similar right of a third party with respect to
such securities.




3









 








          “Loans”: as defined in Section 2.1 hereof.




          “Loan Documents”: this Agreement, the Note and the Pledge Agreement.




          “Managing Members”: means Brian P. Friedman and James L. Luikart.




          “Margin Regulations”: means Regulations T, U and X of the Board of Governors of the
Federal Reserve System of the United States.




          “Margin Stock”: means “margin stock” as defined in the Margin Regulations.




          “Material Adverse Effect”: a material adverse effect on (a) the business, condition
(financial or otherwise), operations, performance, properties or prospects of the Borrower (other
than the financial performance of one or more of the Permitted Investments made by the Borrower in
another Person), (b) the rights and remedies of the Lender under this Agreement or any other Loan
Document or (c) the ability of the Borrower to perform its obligations under this Agreement or any
other Loan Document.




          “Maturity Date”: the earliest to occur of (a) August 12, 2009, which date may be
extended to February 11, 2010 at the option of the Borrower by written notice to the Lender not
later than ten (10) Business Days prior to August 11, 2009, (b) the First Drawdown Date and (c) the
date of termination in whole of all of the Commitments pursuant to Section 7 hereof.




          “Note”: as defined in Section 2.1 hereof.




          “Obligations”: the unpaid principal amount of, and interest (including, without
limitation, interest accruing after the maturity of the Loans and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or
similar proceeding relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) on the Loans, and fees, reimbursement
obligations, indemnification payments, costs, expenses and any other obligations and liabilities
owing to the Lender under or in respect of the Loan Documents, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred or arising, under or in
connection with the Loan Documents.




          “OFAC”: U.S. Department of the Treasury’s Office of Foreign Assets Control.




          “Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.




          “Permitted Assignee”: (a) the spouse, a sibling, or a descendant of a Member or spouse
of any such descendant, (b) a trust for any one or more of the Persons referred to in clause




4









 







(a), and (c) upon the death of a Member, the distributees of such Member’s estate whether as
the result of testamentary disposition or the laws of descent and distribution.




          “Permitted Investments” means Investments which are required to be pledged to secure
the Obligations pursuant to the Pledge Agreement; provided, however, that
“Permitted Investments” shall not include Margin Stock to the extent the Borrower purchased or
carried such margin stock in violation of the Margin Regulations or this Agreement.




          “Permitted Liens” means (a) Liens for taxes, assessments and governmental charges or
levies to the extent not otherwise required to be paid under Section 5.3 hereof, (b) Liens created
in the ordinary course of business in favor of banks and other financial institutions over bank
accounts of the Borrower, (c) Liens arising out of judgments or awards in respect of which the
Borrower shall be prosecuting an appeal or proceedings for review in good faith and, pending such
appeal or proceedings, shall have secured within 30 days after the entry thereof a subsisting stay
of execution and for which adequate reserves have been set aside for the payment thereof, and (d)
Liens on the Collateral relating to the applicable Related Agreements (as such term is defined in
the Pledge Agreement).




          “Person”: an individual, partnership, corporation, limited liability company, business
trust, joint stock company, trust, unincorporated association, joint venture, governmental or
regulatory authority or other entity of whatever nature.




          “Pledge Agreement”: as defined in Section 4.1(a)(ii) hereof.




          “Pledged Collateral”: as defined in the Pledge Agreement.




          “Prime Rate”: the rate of interest which is identified as the “Prime Rate” and
normally published in the Money Rates section of The Wall Street Journal (or, if such rate
ceases to be so published, as quoted from such other generally available and recognizable source as
the Lender may select).




          “Register”: as defined in Section 8.5(c) hereof.




          “Requirement of Law”: as to any Person, any law, treaty, rule or regulation, or any
judgment, order, award or determination of an arbitrator or a court or other governmental or
regulatory authority, applicable to or binding upon such Person or any of its property or
businesses.




          “Sanctioned Entity”: (a) an agency of the government of, (b) an organization directly
or indirectly controlled by, or (c) a person resident in a country that is subject to a sanctions
program identified on the list maintained by, OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published
from time to time as such program may be applicable to such agency, organization or person.




5









 








          “Sanctioned Person”: a person named on the list of Specially Designated Nationals or
Blocked Persons maintained by OFAC available at
http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise published from
time to time.




          “Tax Distribution”: any distribution made by an entity in which there is a Permitted
Investment to enable the direct or indirect holders of equity interests in such entity to pay
income taxes on income of such entity.




          “Taxes”: any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any law.




          “Temporary Investments” shall mean investments in (a) cash or cash equivalents, (b)
marketable direct obligations issued or unconditionally guaranteed by the United States of America,
or issued by any agency thereof, maturing within one year from the date of acquisition thereof, (c)
money market instruments or other short-term debt obligations having at the date of purchase by the
Borrower the highest or second highest rating obtainable from either Standard & Poor’s Ratings
Services or Moody’s Investors Services, Inc. or their successors, (d) interest bearing accounts at
a registered broker-dealer, (e) money market mutual funds, (f) certificates of deposit maturing
within one year from the date of acquisition thereof issued by commercial banks incorporated under
the laws of the United States of America or any state thereof or the District of Columbia, each
having at the date of acquisition by the Borrower combined capital and surplus of not less than
$100,000,000, or (g) pooled investment funds or accounts which invest in securities or instruments
of the type described in (a) through (d) and (f).




          1.2 Other Constructional Provisions. As used herein or in any other Loan Document, or
any certificate or other document made or delivered pursuant hereto:





     (a) Accounting terms relating to the Borrower not defined in Section 1.1 hereof and
accounting terms partly defined in Section 1.1 hereof, to the extent not defined, shall have
the respective meanings given to them under GAAP.




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



          SECTION 2. AMOUNT AND TERMS OF LOANS




          2.1 The Loans. (a) Subject to the terms and conditions hereof, the Lender agrees to
make loans (the “Loans”) to the Borrower prior to and on the Commitment Termination Date in
the amounts requested by the Borrower up to an amount equal to the Commitment. Each Loan shall be
evidenced by the promissory note of the Borrower, substantially in the form of Exhibit A hereto (a
“Note”), payable to the order of the Lender and representing the indebtedness of the
Borrower to the Lender resulting from the Loans. Any amount of the Commitment borrowed hereunder
and repaid may not be reborrowed; provided,




6









 







however, that notwithstanding the foregoing, any amount repaid pursuant to Section 2.3(d) may
be reborrowed.





     (b) To request the advance of a Loan hereunder, the Borrower shall notify the Lender in
writing (or by telephone confirmed in writing) prior to 2:00 p.m., New York time, of the
amount of the Loan requested and the account to which such Loan should be credited. Subject
to compliance with the terms and conditions of this Agreement, not later than 4:00 p.m., New
York time, on the date of each Loan request from the Borrower, the Lender shall make the
amount of the Loan available to the borrower in immediately available funds at the account
specified in the Loan request.




     (c) No Loans shall be made hereunder after the Commitment Termination Date.



          2.2 Repayment of Loans. On the Maturity Date, the Borrower shall pay the Lender the
aggregate amount of all unpaid Obligations.




          2.3 Prepayments.





     (a) Optional Prepayments. The Borrower may at any time and from time to time
prepay the Loans, in whole or in part, without premium or penalty, upon notice to the Lender
specifying the date and amount of prepayment. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein, together
with accrued and unpaid interest thereon. Amounts prepaid on account of the Loans may not
be reborrowed.




     (b) Mandatory Prepayments. Within three (3) Business Days after the date on
which the Borrower (i) sells, transfers, assigns or otherwise disposes of a Permitted
Investment (except to the extent that the proceeds of such sale or disposition are used to
make a Tax Distribution), or (ii) receives any cash dividend or distribution relating to a
Permitted Investment (other than a Tax Distribution), the Borrower shall make a prepayment
of the outstanding principal amount of the Loans (together with accrued interest thereon) in
an amount equal to the excess, if any, of the aggregate amount received in cash in
connection with such sale or disposition (other than a Tax Distribution) or dividend or
distribution over (x) the reasonable fees, commissions and other reasonable out-of-pocket
expenses incurred by the Borrower in connection therewith, and (y) any federal, state and
local taxes incurred or estimated to be payable in connection with such sale or dividend or
distribution.




     (c) Application of Prepayments. All prepayments shall be applied, first, to
indemnification payments, fees and expenses of the Lender which are required to be
reimbursed hereunder or under any other Loan Document and, thereafter, first accrued and
unpaid interest on the date of such prepayment and then the outstanding principal amount of
the Loans on such date.



7









 





          (d) Return of Proceeds of Loan. If within two Business Days of the making of any Loan
the Borrower does not use the proceeds of such Loan to consummate a Permitted Investment (an
“Unutilized Loan”), the Borrower shall promptly make a prepayment of the outstanding principal
amount of the Loans in an amount equal to the principal amount of the Unutilized Loan.




          2.4 Interest Rates and Interest Payment Dates.





     (a) Each Loan shall bear interest at a rate per annum equal to the Prime Rate plus
2.00%. Interest shall be payable in arrears on the date of payments of all or a portion of
the Loans (but only on the principal amount so paid) and on the Maturity Date.




     (b) Interest shall be calculated on the basis of year of 365 or 366 days, as the case
may be, in each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest is payable. Each
determination by the Lender of an interest rate hereunder shall be conclusive and binding
for all purposes, absent manifest error.



          2.5 Payments. All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall be made without
set-off or counterclaim on the due date thereof to the Lender at the Lender’s office specified in
Section 9.2 hereof, in U.S. dollars and in immediately available funds. If any payment hereunder
becomes due and payable on a day other than a Business Day, such payment shall be extended to the
next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.




          2.6 Taxes.





     (a) Any and all payments by or on account of any obligation of the Borrower hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if the Borrower shall be required to deduct any Indemnified Taxes or
Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including, without limitation, deductions
applicable to additional sums payable under this Section) the Lender receives an amount
equal to the sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.




     (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.




     (c) The Borrower shall indemnify the Lender within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Lender on
or with respect to any payment by or on account of any obligation of the



8









 







Borrower hereunder (including, without limitation, Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. If the Borrower has been advised in
writing by its legal or tax advisers that any Indemnified Tax or Other Tax paid by the
Borrower hereunder was not correctly or legally imposed or asserted, then, after payment by
the Borrower to the Lender of such Indemnified Taxes or Other Taxes, the Borrower may seek a
refund of part or all of the amount paid, and the Lender agrees to cooperate in any
reasonable respect, at the Borrower’s request and the Borrower’s sole cost and expense, in
the Borrower’s efforts to obtain a refund. A certificate as to the amount of such payment
or liability delivered to the Borrower by the Lender on its own behalf or on behalf of the
Lender shall be conclusive absent manifest error.




     (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Lender the original
or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Lender.




     (e) To the extent that the Lender has actual knowledge that it shall be entitled to a
refund or credit (such credit to include any increase in any foreign tax credit) in respect
of any Taxes as to which it has been indemnified under this Section 2.6 or with respect to
which any sum payable hereunder has been increased and paid by the Borrower under Section
2.6 to take such Taxes into account, the Lender shall promptly notify the Borrower of the
availability of such refund or credit and shall within thirty (30) days after receipt of a
request by the Borrower or, if later, such earliest time permitted under applicable law,
apply for such refund or credit at the cost and expense of the Borrower. Within thirty (30)
days following receipt of any such refund or benefit of such credit (such benefit to include
any reduction of the taxes for which the Lender would otherwise be liable due to any
increase in any foreign tax credit available to the Lender), the Lender, as applicable,
shall repay the amount of such refund or credit to the Borrower, plus all interest received
with respect thereto, net of all reasonable out-of-pocket expenses incurred by the Lender in
securing the refund; provided that the Borrower, upon the request of the Lender, agrees to
return the amount of such refund or benefit of such credit to the Lender in the event the
Lender is required to repay the amount of such refund or benefit of such credit to the
relevant Governmental Authority.



          SECTION 3. REPRESENTATIONS AND WARRANTIES




          The Borrower hereby represents and warrants to the Lender that:




          3.1 Existence. The Borrower (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has all requisite power and
authority, and the legal right, to own and operate its property and to conduct the business in




9









 







which it is currently engaged and (c) is duly qualified as a foreign company and in good
standing under the laws of each jurisdiction where its ownership or operation of property or the
conduct of its business requires such qualification, except to the extent that the failure to be
qualified could not reasonably be expected to have a Material Adverse Effect.




          3.2 Authorization; Enforceable Obligations. No consent or authorization of, filing
with, notice to or other act by or in respect of, any governmental or regulatory authority or any
other Person is required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Loan Documents to which the Borrower is a
party. This Agreement has been, and each other Loan Document to which it is a party will be, duly
executed and delivered on behalf of the Borrower. This Agreement constitutes, and each other Loan
Document to which it is a party when executed and delivered will constitute, a legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors’ rights generally and general equitable
principles.




          3.3 No Legal Bar. The execution, delivery and performance of the Loan Documents and
the consummation of the transactions contemplated hereby and thereby, are within the Borrower’s
powers, have been duly authorized by all necessary action, and (a) do not contravene the Borrower’s
organizational documents, any Requirement of Law or any contractual restriction binding on or
affecting the Borrower and (b) will not result in, or require, the creation or imposition of any
Lien on any of its properties pursuant to any such Requirement of Law or contractual restriction
(other than Liens created by the Pledge Agreement in favor of the Lender). The Borrower is not
subject to regulation under any Federal or State statute or regulation (other than Regulation X of
the Board of Governors of the Federal Reserve System) which limits its ability to incur
Indebtedness.




          3.4 No Material Litigation. No litigation, investigation or proceeding of or before
any arbitrator, court or other governmental or regulatory authority is pending or, to the knowledge
of the Borrower, threatened by or against the Borrower or against any of its properties (a) that
relates to the Loan Documents or any of the transactions contemplated hereby or thereby or (b)
which could reasonably be expected to have a Material Adverse Effect.




          3.5 No Default. The Borrower is not in default under or with respect to any of its
agreements, instruments or other documents in any respect which could reasonably be expected to
have a Material Adverse Effect.




          3.6 Federal Regulations. No part of the proceeds of any Loans made on the Closing
Date will be used for purchasing any Margin Stock. No proceeds of any Loans made after the Closing
Date have been or will be used for the purpose of “purchasing” or carrying any Margin Stock in
violation of, or in a manner inconsistent with, the provisions of the Margin Regulations and in no
event have or will the proceeds of any Loans be secured by more than 25% of the “current market
value” (within the meaning of the Margin Regulations) of any such Margin Stock.




10









 








          3.7 No Material Adverse Effect. Since August 5, 2008, there has been no event, act,
condition or occurrence which has had or could reasonably be expected to have a Material Adverse
Effect.




          3.8 Investment Company Act. The Borrower is not required to be registered as an
“investment company,” and is not a company “controlled” by an “investment company,” in each case,
within the meaning of the Investment Company Act of 1940, as amended.




          3.9 Compliance with Laws. The Borrower is in compliance with the requirements of all
Laws and all orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a) such requirement of Law or order, writ, injunction
or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.




          3.10 Compliance with OFAC Rules and Regulations. The Borrower is not a Sanctioned
Person, nor does it derive any of its operating income from investments in, or transactions with,
Sanctioned Persons or Sanctioned Entities. The proceeds of any Loan will not be used and have not
been used to fund any operations in, finance any investments or activities in or make any payments
to, a Sanctioned Person or a Sanctioned Entity.




          3.11 Disclosure. None of the factual information, data and certificates regarding the
Borrower (taken as a whole) heretofore or contemporaneously furnished by or on behalf of the
Borrower in writing to the Lender for purposes of or in connection with this Agreement or any
transaction contemplated herein contained any untrue statement or omitted to state any material
fact necessary to make such information and data (taken as a whole) not misleading when made in
light of the circumstances under which such information or data was furnished, it being understood
and agreed that for purposes of this Section 3.11, such factual information and data shall not
include projections and pro forma financial information or any information of a general economic or
industry nature.




          3.12 Insolvency. The Borrower is not and, after giving effect to the execution and
delivery of the Loan Documents and the making of the Loans under this Agreement, the Borrower will
not be, “insolvent,” within the meaning of such term as defined in the Bankruptcy Code or Section 2
of the Uniform Fraudulent Transfer Act, or any other applicable state law pertaining to fraudulent
transfers, as each may be amended from time to time, or be unable to pay its debts generally as
such debts become due, or have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated




          3.13 Permitted Investments. With respect to each Permitted Investment, as of the
closing of the acquisition of such Permitted Investment:





     (a) The Borrower has adequate power and authority and has full legal right to enter
into the agreements to which it is a party with respect to such Permitted Investment, to
perform, observe and comply in all material respects with all of such agreements.



11









 






     (b) The execution and delivery by the Borrower of the agreements to which it is a party
with respect to such Permitted Investment, the performance by it of all of its obligations
under such agreements, and the acquisition of such Permitted Investment pursuant to such
agreements have been duly authorized by all necessary action on the part of the Borrower and
do not: (i) contravene any provision of the Borrower’s certificate of formation or operating
agreement; (ii) conflict with, or result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in the creation of any Lien (other than a
Permitted Lien) upon any of the property of the Borrower under, any agreement or instrument
to which it is a party or by which any of its assets are bound, except, in each case, such
conflict, breach, default or Lien as would not reasonably be expected to have a Material
Adverse Effect; or (iii) violate or contravene any provision of any law, rule or regulation
or any order or ruling thereunder or any decree, order or judgment of any governmental
authority except such violation or contravention as would not reasonably be expected to have
a Material Adverse Effect.




     (c) All consents and approvals of, and filings and permits with, and all other actions
in respect of, all Governmental Authorities required in order for the Borrower to acquire
such Permitted Investment in accordance with the terms and conditions of the agreements to
which it is a party with respect to such Permitted Investment and all applicable laws have
been, or prior to the time required, will have been, obtained, given, filed, taken or
waived, and are in full force and effect as of the closing date of the acquisition of such
Permitted Investment (other than such consents, approvals, filings, permits and actions
which the failure to obtain or make would not reasonably be expected to result in a Material
Adverse Effect).



          SECTION 4. CONDITIONS PRECEDENT TO EFFECTIVENESS




          4.1 Conditions to Effectiveness. This Agreement shall become effective on and as of
the first date (the “Closing Date”) on which the following conditions precedent have been
or are deemed to have been satisfied:





     (a) The Lender shall have received the following, each dated the Closing Date, in form
and substance satisfactory to the Lender:




     (i) The Note payable to the order of the Lender;




     (ii) The pledge agreement, in substantially the form of Exhibit B hereto (as
amended, supplemented or otherwise modified from time to time in accordance with the
terms hereof and thereof, the “Pledge Agreement”), duly executed by the
Borrower, together with proper Form UCC-1 financing statements under the Uniform
Commercial Code to be filed with the Secretary of State of Delaware, covering the
Pledged Collateral, in each case completed in a manner satisfactory to the Lender
and in the case of the Pledge Agreement, duly executed by the Borrower;



12









 






     (iii) A certificate of an authorized officer of the managing member of the
Borrower certifying the names and true signatures of the officers of the managing
member of the Borrower authorized to sign on behalf of the Borrower this Agreement
and the other Loan Documents and the other documents to be delivered hereunder and
thereunder;




     (iv) A favorable opinion of Dechert, counsel for the Borrower, addressing such
matters as Lender may reasonably request;




     (v) Evidence reasonably satisfactory to the Lender that (A) the Borrower has
received capital contributions concurrently with the making of the Loan to enable it
to purchase the applicable Permitted Investment within two Business Days of the
Closing Date, in an amount equal to not less than 12.5% of the amount of such
Permitted Investment (it being agreed that a duly executed and delivered Borrower’s
Certificate with respect to such Permitted Investment shall constitute “reasonably
satisfactory evidence” of the receipt of such capital contributions) or (B)
documentation for any expenses to be paid with such Loan as permitted by Section
5.5;




     (vi) An executed Borrower’s Certificate;




     (vii) All fees and expenses owing to Lender pursuant to Section 8.4 for which
invoices have been presented to the Borrower;




     (viii) The results of recent lien searches with respect to the Borrower and
such searches shall not reveal any liens other than Permitted Liens;




     (ix) All documentation and other information required by bank regulatory
authorities under applicable “know your customer” and Anti-Money Laundering rules
and regulations, including the USA Patriot Act; and




     (x) Such other agreements, instruments certificates or other information as the
Lender may reasonably request.




     (b) Each of the representations and warranties made by the Borrower under or pursuant
to the Loan Documents shall be true and correct in all material respects on and as of the
Closing Date, as if made on and as of such date.




     (c) No event shall have occurred and be continuing, or shall result from the borrowing
of the Loans or from the application of proceeds therefrom, that shall constitute a Default
or Event of Default.



          4.2 Conditions to Loans Following the Closing Date. The obligation of the Lender to
make a Loan on each date a request for a Loan is made following the Closing Date (a




13









 







“Drawdown Date”), is further subject to the satisfaction of the following additional
conditions precedent:





     (a) Each of the representations and warranties of Borrower contained in the Loan
Documents shall be true in all material respects as of the applicable Drawdown Date.




     (b) No Default or Event of Default shall have occurred and be continuing.




     (c) The Lender shall have received substantially concurrently with the making of the
Loan (or within five Business Days of the closing date of the acquisition of the Permitted
Investment that was purchased with the proceeds of such Loan), certificates representing the
Pledged Stock, if any, to be purchased with the proceeds of such Loan, accompanied by
undated stock powers or other appropriate powers, duly executed in blank (if such Pledged
Collateral is represented by certificates) and all Pledged Notes, if any, accompanied by
undated note powers or other appropriate powers.




     (d) The Lender shall have received (i) reasonably satisfactory evidence that the
Borrower has received capital contributions concurrently with the making of the Loan to
enable it to purchase the applicable Permitted Investment within two Business Days of the
making of such Loan in an amount equal to not less than 12.5% of the amount of the Permitted
Investment (it being agreed that a duly executed and delivered Borrower’s Certificate with
respect to such Permitted Investment shall constitute “reasonably satisfactory evidence” of
the receipt of such capital contributions) or (ii) documentation for any expenses to be paid
with such Loan as permitted by Section 5.5.




     (e) The Lender shall have received an executed Borrower’s Certificate dated as of the
applicable Drawdown Date.




     (f) In the event the proceeds of any Loan will be used to purchase any Margin Stock,
(a) the Borrower shall have (i) provided the Lender 3 Business Day’s prior written notice of
its intention to so purchase such Margin Stock and (ii) provided the Lender prior to the
applicable Drawdown Date such filings, documents, instruments and information necessary or
reasonably requested by Lender to permit the Borrower and the Lender to comply with the
Margin Regulations in respect of such Loan, and (b) certified to the Lender that not more
than 25% of the “current market value” (within the meaning of the Margin Regulations) of
such Margin Stock will secure the Loans.



          SECTION 5. AFFIRMATIVE COVENANTS




          The Borrower hereby agrees that, so long as any Obligation is outstanding hereunder or under
any other Loan Document, the Borrower shall:




14









 








          5.1 Compliance with Laws. Etc. Comply, and cause each of its subsidiaries to comply
with all applicable Requirements of Law, if failure to so comply could reasonably be expected to
have a Material Adverse Effect.




          5.2 Payment of Taxes Etc. Pay and discharge, before the same shall be delinquent, (a)
all taxes, assessments and governmental charges or levies imposed upon it or upon its property and
(b) all material obligations that, if unpaid, might by law become a Lien upon the Pledged
Collateral; provided, however, that the Borrower shall not be required to pay or
discharge any such tax, assessment, charge, claim or obligation that is being contested in good
faith and by proper proceedings and as to which appropriate reserves are being maintained, unless
and until any Lien resulting therefrom attaches to its property and becomes enforceable against its
other creditors.




          5.3 Conduct of Business and Maintenance of Existence. (a) Continue to engage in
business of the same general type as now conducted by it (or contemplated to be conducted by it),
(b) preserve, renew and keep in full force and effect its corporate existence and (c) take all
reasonable action to maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could not be reasonably
expected to have a Material Adverse Effect.




          5.4 Maintenance of Books and Records. The Borrower shall maintain proper books of
record and account in conformity with GAAP.




          5.5 Use of Proceeds. The Borrower shall use the proceeds of the Loans solely to make
Permitted Investments and to pay expenses of Lender and the Borrower with respect to the
negotiation and preparation of the Loan Documents and of the Borrower with respect to its
organization and administration.




          5.6 Notices. Promptly after the Borrower becomes aware thereof, the Borrower shall
give written notice to the Lender of the occurrence of any Event of Default, and promptly (but in
no event later than five Business Days after the Borrower obtains actual knowledge thereof) give
written notice to the Lender of any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.




          5.7 Pledged Collateral. The Borrower shall execute or re-execute such documents as
the Lender shall reasonably request in order for the Lender to maintain or create a first priority
lien in the Pledged Collateral (subject only to Permitted Liens), including any Pledged Collateral
acquired by the Borrower after the Closing Date.




          5.8 Margin Regulations. The Borrower shall make all filings, and shall deliver to the
Lender all documents, instruments and information necessary or reasonably requested by the Lender,
to permit the Borrower and the Lender to at all times comply with the Margin Regulations.




15









 








          5.9 Delivery of Related Agreements. Within five Business Days after the closing of
the acquisition of a Permitted Investment, the Borrower shall provide the Lender with a copy of the
Related Agreements with respect to such Permitted Investment.




          SECTION 6. NEGATIVE COVENANTS




          The Borrower hereby agrees that, so long as any Obligation is outstanding hereunder or under
any other Loan Document, the Borrower shall not directly or indirectly:




          6.1 Limitation on Liens. Create, incur, assume or suffer to exist any Lien upon any
assets of the Borrower, except for (a) Liens created under the Pledge Agreement and (b) Permitted
Liens.




          6.2 Limitation on Fundamental Changes. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution),
or convey, sell, lease, assign, transfer or otherwise dispose of, all or substantially all of its
property, business or assets (except, subject to Section 2.3(b), the sale of the Pledged Collateral
to the Fund), or make any material change in its intended method of conducting business. The
Borrower will not amend, supplement or otherwise modify its Certificate Formation or Limited
Liability Company Agreement or any of the respective provisions thereof, in each case, in a manner
materially adverse to the Lender.




          6.3 Limitation on Dividends. Declare or pay any dividend (other than Tax
Distributions) on, or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any
class of equity interests in the Borrower, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash or property or in
obligations of the Borrower.




          6.4 Limitation on Investments, Loans and Advances. Make any advance, loan, extension
of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting a business unit of, or make any other investment in, any
Person except Permitted Investments.




          6.5 Limitation on Business Activities. The Borrower shall not engage in any business
activities other than making Permitted Investments and any administrative, managerial and other
activities incidental thereto and any activities required hereunder.




          6.6 Limitation on Indebtedness. The Borrower shall not create, incur, assume or
permit to exist any Indebtedness (other than the Obligations).




          6.7 Transactions with Affiliates. The Borrower shall not enter into, or be a party
to, any transaction with any Affiliate, except pursuant to terms which are no less favorable to the
Borrower than would be obtained in a comparable arm’s length transaction with a Person which is not
an Affiliate (other than the sale of Permitted Investments to the Fund in accordance




16









 







with Section 1.3 of the Limited Liability Company Agreement of the Borrower as in effect as of
the date hereof).




          6.8 Margin Stock. The Borrower will not use any part of the proceeds of any Loans in
violation of Section 3.6 of this Agreement.




          SECTION 7. EVENTS OF DEFAULT




          If any of the following events (each an “Event of Default”) shall occur and be
continuing:




     (a) The Borrower shall fail to pay any principal of any Loan when due or any interest
on any Loan or any other amount payable hereunder within three (3) Business Days after
coming due in accordance with the terms hereof; or




     (b) Any representation or warranty made or deemed made by the Borrower herein or in any
other Loan Document or which is contained in any certificate, document or other statement
furnished by it at any time under or in connection with this Agreement or any such other
Loan Document shall prove to have been incorrect in any material respect on or as of the
date made or deemed made; or




     (c) The Borrower shall default in the observance or performance of any material
agreement contained in Section 5.3(b), 5.5 or 6 hereof; or




     (d) The Borrower shall default in the observance or performance of any other material
agreement contained in this Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section 7), and such default shall continue unremedied
for a period of 30 days; or




     (e) (i) The Borrower shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the Borrower any case,
proceeding or other action of a nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Borrower any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or bonded pending appeal


17









 







within 60 days from the entry thereof; or (iv) the Borrower shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower shall generally not,
or shall be unable to, or shall admit in writing its inability to, pay its debts as they
become due; or





     (f) One or more judgments or orders for the payment of money in excess of $1,000,000
shall be rendered against the Borrower and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or (ii) there shall be any period
of 30 consecutive days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; provided,
however, that any such judgment or order shall not be an Event of Default under this
Section 7(f) if and for so long as (i) the amount of such judgment or order is covered by a
valid and binding policy of insurance between the defendant and the insurer covering payment
thereof and (ii) such insurer has been notified of, and has not disputed the claim made for
payment of, the amount of such judgment or order; or




     (g) Any non-monetary judgment or order shall be rendered against the Borrower that
could be reasonably expected to have a Material Adverse Effect, and there shall be any
period of 30 consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or




     (h) (i) Any Loan Document shall cease, for any reason, to be in full force and effect
or the Borrower shall so assert or (ii) the security interest created in the Pledged
Collateral under the Pledge Agreement shall cease to be enforceable and of the same effect
and priority purported to be created thereby;




     (i) Neither Managing Member shall be a managing member of the Borrower, or any Managing
Member sells, transfers, assigns or pledges all or substantially all of his interests in the
Borrower (other than to a Permitted Assignee);


then, (A) if such event is an Event of Default specified in clause (i) or (ii) of Section 7(e)
hereof, automatically the Commitment shall immediately terminate and the Loans hereunder (and all
accrued interest thereon) and all other Obligations owing under this Agreement and the Note shall
immediately become due and payable, and (B) if such event is any other Event of Default, the Lender
may take any or all of the following actions: (i) by notice to the Borrower declare the Commitment
to be terminated forthwith, whereupon the Commitment shall immediately terminate; (ii) by notice to
the Borrower, declare the Loans hereunder (and all accrued interest thereon) and all other
Obligations owing under this Agreement and the Note to be due and payable forthwith, whereupon the
same shall immediately become due and payable, and/or (iii) exercise all of its other rights and
remedies under this Agreement, the other Loan Documents and applicable law. Except as expressly
provided above in this Section 7, presentment, demand, protest and all other notices of any kind
are hereby expressly waived by the Borrower.




18









 








          SECTION 8. MISCELLANEOUS




          8.1 Amendments and Waivers. Neither this Agreement nor any other Loan Document, nor
any terms hereof or thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 8.1. The Lender may, from time to time, enter into with the Borrower
written amendments, supplements or modifications hereto and to the other Loan Documents for the
purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any
manner the rights of the Lender or of the Borrower hereunder or thereunder or waive, on such terms
and conditions as the Lender, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default and its consequences.




          8.2 Notices. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by facsimile transmission) and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or made (a) in the
case of delivery by hand, when delivered, (b) in the case of delivery by mail, three days after
being deposited in the mails, postage prepaid, or (c) in the case of delivery by facsimile
transmission, when sent and receipt has been electronically confirmed, addressed as follows, or to
such other address as may be hereafter notified by the respective parties hereto:




	 	 	 	 	 
	 

	 	The Borrower:
	 	JCP Fund V Bridge Partners LLC
	 

	 	 	 	520 Madison Avenue, 12th Floor
	 

	 	 	 	New York, New York 10022
	 

	 	 	 	Attention: Brian P. Friedman
	 
	 

	 	The Lender:
	 	Jefferies & Company, Inc.
	 

	 	 	 	520 Madison Avenue, 12th Floor
	 

	 	 	 	New York, New York 10022
	 

	 	 	 	Attention: Lloyd Feller, General Counsel






          8.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Lender, any right, remedy, power or privilege hereunder or under the
other Loan Documents shall operate as a waiver thereof; nor shall the making of a Loan after a
Default or an Event of Default be deemed a waiver thereof; nor shall any single or partial exercise
of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.




          8.4 Indemnification and Payment of Expenses. The Borrower agrees (a) to pay or
reimburse the Lender for all reasonable and documented out-of-pocket costs and expenses incurred by
the Lender (including the reasonable fees and disbursements of up to one outside counsel to the
Lender) in connection with the preparation, negotiation, execution and delivery of this Agreement
and the other Loan Documents or any amendments, modifications or waivers of




19









 







the provisions hereof or thereof (whether or not the transactions contemplated hereby or
thereby are consummated), (b) to pay or reimburse the Lender for all its reasonable and documented
out-of-pocket costs and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other documents, including,
without limitation, the reasonable fees and disbursements of counsel to the Lender, (c) to pay,
indemnify, and hold the Lender harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes,
if any, which may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents, and (d) to pay, indemnify, and
hold the Lender and each of its affiliates and its officers, directors, employees, agents and
advisors (each, an “Indemnified Party”) harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan Documents and any
such other documents collectively, the “indemnified liabilities”); provided, that
the Borrower shall have no obligation hereunder to the Lender with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of the Lender as determined by
a binding nonappealable judgment of a court of competent jurisdiction. The agreements in this
Section shall survive repayment of the Loans and all other Obligations payable hereunder.




          8.5 Successors and Assigns and Assignments.





     (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lender, and their respective successors and assigns, except that neither of the Lender nor
the Borrower may assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the other party hereto, provided that the consent of
the Borrower shall not be required during the existence an Event of Default. In the event
that there should be more than one Lender hereunder, then Jefferies shall be the agent for
all such Lenders (and all such Lenders by acceptance of any such assignment hereby appoint
Jefferies to take any and all actions on behalf of such Lenders as agent under the Loan
Documents), and, at the request of Jefferies, the Borrower shall take all actions reasonably
necessary to confirm such other Lenders’ security interest in the Pledged Collateral.




     (b) Any assignee organized under the laws of a jurisdiction outside of the United
States shall deliver to the Borrower a properly completed and executed IRS Form W-8ECI or
Form W-8BEN or other applicable form acceptable to Borrower certifying that payments to be
made to it under this Agreement are exempt from applicable withholding tax under an
applicable statute or tax treaty. In the event that any assignee fails to comply with the
preceding sentence, such assignee shall not be entitled to the benefits of Section 2.6.



20









 






     (c) The Lender, acting solely for this purpose as an agent of Borrower, shall maintain
at its offices a copy of each assignment delivered to it and a register for the recordation
of the names and addresses of each lender, and the commitments of, and principal amount of
the Loans owing to, each lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, and the Borrower and
the Lender may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of the Agreement, notwithstanding notice
to the contrary. An assignment will not be valid unless it is recorded in the Register.
The Register shall be available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.



          8.6 Set-off. In addition to any rights and remedies of the Lender provided by law
(including, without limitation, other rights of set-off), the Lender shall have the right, without
prior notice to the Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon the occurrence and during the continuance of any Event of
Default, to set-off and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), and any other credits, indebtedness or claims, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time held by or owing to
the Lender to or for the credit or the account of the Borrower, or any part thereof in such amounts
as the Lender may elect, against and on account of the Loans and other Obligations of the Borrower
to the Lender hereunder and claims of every nature and description of the Lender against the
Borrower, whether arising hereunder or under any other Loan Document, whether or not the Lender has
made any demand for payment and although such obligations, liabilities and claims may be contingent
or unmatured. The aforesaid right of set-off may be exercised by the Lender against the Borrower
or against any trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver or execution, judgment or attachment creditor of the Borrower, or against anyone else
claiming through or against the Borrower, or any such trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, receiver or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been exercised by the Lender
prior to the occurrence of any Event of Default. The Lender agrees to promptly notify the Borrower
after any such set-off and application made by the Lender; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and application.




          8.7 Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts (including by facsimile transmission of
signature pages hereto), and all of said counterparts taken together shall be deemed to constitute
one and the same instrument.




          8.8 Integration. This Agreement and the other Loan Documents represent the entire
agreement of the Borrower and the Lender with respect to the subject matter hereof, and there are
no promises, undertakings, representations or warranties by the Lender relative to




21









 







subject matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.




          8.9 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




          8.10 WAIVERS OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.




          8.11 Consent to Jurisdiction and Service of Process. Any legal action or proceeding
with respect to this Agreement or any other Loan Document shall be brought in the courts of the
State of New York in New York County or of the United States for the Southern District of New York,
and, by execution and delivery of this Agreement, each of the Borrower and the Lender accepts, for
itself and in connection with its properties and assets, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and irrevocably agrees to be bound by any final
judgment rendered thereby in connection with this Agreement from which no appeal has been taken or
is available. Each of the Borrower and the Lender irrevocably agrees that all service of process
in any such proceedings in any such court may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail), postage prepaid and return receipt
requested, to it at its address set forth in Section 8.2, such service being hereby acknowledged by
the Borrower to be effective and binding service in every respect. Each of the Borrower and the
Lender irrevocably waive any objection, including, without limitation, any objection to the laying
of venue or based on the grounds of forum non conveniens, which it may now or hereafter have to the
bringing of any such action or proceeding in any such jurisdiction. Nothing herein shall affect
the right to serve process in any other manner permitted by law or shall limit the right of the
Lender to bring proceedings against the Borrower in the court of any other jurisdiction.




          8.12 Confidentiality. The Lender agrees that, without the prior consent of the
Borrower, it will not disclose any information with respect to the Borrower or any Permitted
Investment which is furnished pursuant to this Agreement, any other Loan Document or any documents
contemplated by or referred to herein or therein and which is designated by the Borrower to the
Lender as confidential or as to which it is otherwise reasonably clear such information is not
public, except that the Lender may disclose any such information (a) to its employees (who
reasonably need to know such information), affiliates (who reasonably need to know such
information), auditors and counsel, (b) as has become generally available to the public other than
by a breach of this Section 8.12, (c) to the extent requested by any municipal, state or federal
regulatory body purporting to have jurisdiction over the Lender, (d) as may be required or
appropriate in response to any summons or subpoena or by any law, order, regulation or ruling
applicable to such Lender, (e) in connection with the exercise of any remedies hereunder or under
any other Loan Document or any action or proceeding relating to this




22









 







Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder or
(f) to any assignee in connection with any contemplated transfer pursuant to Section 8.5; provided
that such prospective assignee shall have been made aware of this Section 8.12 and shall have
agreed to be bound by its provisions as if it were a party to this Agreement.




23









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year first above written.




	 	 	 	 	 
	 	JCP FUND V BRIDGE PARTNERS LLC

 	 
	 	By:  	/s/ Brian P. Friedman
 	 
	 	 	Name:  	Brian P. Friedman 	 
	 	 	Title:  	Managing Member 	 
	 
	 	JEFFERIES GROUP, INC.

as Lender

 	 
	 	By:  	/s/ Peregrine C. Broadbent
 	 
	 	 	Name:  	Peregrine C. Broadbent 	 
	 	 	Title:  	Chief Financial Officer 	 
	 




24











 





NOTE




			
	 	 	 
	$50,000,000
	 	New York, New York

August 11, 2008






          FOR VALUE RECEIVED, the undersigned JCP FUND V BRIDGE PARTNERS LLC, a Delaware limited
liability company (the “Borrower”), hereby unconditionally promises to pay to
the order of JEFFERIES GROUP, INC. (the “Lender”), in lawful money of the United States of
America and in immediately available funds, the principal amount of FIFTY MILLION DOLLARS
($50,000,000) or such lesser amount as has been advanced pursuant to the terms of the Credit
Agreement referred to below. The principal amount of this Note shall be payable in accordance with
the Credit Agreement described below.




          The undersigned further agrees to pay interest in like money on the unpaid principal amount
hereof from time to time from the date hereof at the rates per annum and on the dates as provided
in Section 2.4 of the Credit Agreement referred to below, until paid in full (both before and after
judgment).




          The holder of this Note is authorized to, and so long as it holds this Note shall, record the
date and amount of each Loan made by the Lender pursuant to Section 2.1 of the Credit Agreement and
the date and amount of each payment or prepayment of principal thereof on the schedules annexed
hereto and constituting a part hereof, or on a continuation thereof which shall be annexed hereto
and constitute a part hereof, and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded; provided, that failure of the
Lender to make any such recordation (or any error in such recordation) shall not affect the
obligations of the Borrower under this Note or under the Credit Agreement.




          This Note is the Note referred to in the Credit Agreement, dated as of August 11, 2008 (as
amended, supplemented or otherwise modified from time to time, the “Credit Agreement”),
among the Borrower and the Lender, is entitled to the benefits thereof, is secured as provided
therein and is subject to optional and mandatory prepayment in whole or in part as provided
therein. Terms used herein which are defined in the Credit Agreement shall have such defined
meanings unless otherwise defined herein.




          This Note is secured as provided in the Pledge Agreement.




          Upon the occurrence of any one or more of the Events of Default specified in the Credit
Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided therein.




          The Borrower expressly waives diligence, presentment, protest, demand and other notices of any
kind.




 









 








          This Note shall be governed by and construed in accordance with the laws of the State of New
York.




	 	 	 	 	 
	 	JCP FUND V BRIDGE PARTNERS LLC

 	 
	 	By:  	/s/ Brian J. Friedman
 	 
	 	 	Managing Member 	 
	 	 	 	 













 







SCHEDULE A to

Note




LOANS AND PAYMENTS

OF LOANS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount of	 	Unpaid Principal	 	 
	Date	 	Amount of Loan	 	Principal Repaid	 	Balance of Loans	 	Notation Made by
	 	 	 	 	 	 	 	 	 





 









 






PLEDGE AGREEMENT




          PLEDGE AGREEMENT, dated as of August 11, 2008, made by JCP FUND V BRIDGE PARTNERS LLC, a
Delaware limited liability company (the “Pledgor”), in favor of JEFFRIES GROUP, INC. (the
“Lender”).




RECITALS




          Pursuant to the Credit Agreement, dated as of August 11, 2008 (as amended, supplemented or
otherwise modified from time to time, the “Credit Agreement”), between the Pledgor and the
Lender, the Lender has agreed to make loans to the Pledgor upon the terms and subject to the
conditions set forth therein, such loans to be evidenced by the Note issued by the Pledgor
thereunder. It is a condition precedent to the obligation of the Lender to make its respective
loans to the Pledgor under the Credit Agreement that the Pledgor shall have executed and delivered
this Pledge Agreement to the Lender.




          NOW, THEREFORE, in consideration of the premises and to induce the Lender to enter into the
Credit Agreement and to induce the Lender to make its loans to the Pledgor under the Credit
Agreement, the Pledgor hereby agrees with the Lender, as follows:




     1. Defined Terms.



          (a) Unless otherwise defined herein, terms which are defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.




          (b) The following terms shall have the following meanings:




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




          “Issuer” means any issuer of Pledged Collateral.




          “Pledge Agreement” means this Pledge Agreement, as amended, supplemented or otherwise
modified from time to time.




          “Pledged Collateral” means the Pledged Notes, the Pledged Stock, all Related
Agreements and all Proceeds.




          “Pledged Notes” means all notes and other debt instruments in which the Pledgor has
any right, title or interest, whether now owned or hereafter acquired, including without
limitation, those listed on Schedule I (as the same may be supplemented with respect to additional
Pledged Collateral) or acquired hereafter




          “Pledged Stock” means all shares of capital stock, partnership interests, limited
partnership interests, limited liability company interests and other equity interests, whether or
not represented by a certificate, in which the Pledgor has any right, title or interest, whether
now owned or hereafter acquired, including without limitation, those listed on Schedule I (as the
same may be supplemented with respect to additional Pledged Collateral), together with all stock














 







certificates, interest certificates or other securities evidencing such interests, options or
rights of any nature whatsoever which may be issued or granted by the Issuer to the Pledgor in
respect of the Pledged Stock while this Pledge Agreement is in effect.




          “Proceeds” means all “proceeds” as such term is defined in the Code of any Pledged
Stock and Pledged Notes and, in any event, shall include, without limitation, all dividends,
distributions, property or assets received in exchange or other income with respect to the Pledged
Stock or Pledged Notes, or collections thereon or security therefor.




          “Related Agreements” means all right, title and interest of the Pledgor, insofar as
they relate to the Pledged Stock or the Pledged Notes and to the extent that such rights, title and
interests are assignable pursuant to the terms thereof, in or under all agreements relating to the
Pledged Stock or Pledged Notes, including, without limitation, any stockholders agreement, any
stock purchase agreement, note purchase agreement, any management agreement, partnership agreement,
registration rights agreement, note purchase agreement, loan agreement and any other agreement
relating to any Pledged Stock or Pledged Notes or the purchase or issuance thereof.




          (c) The words “hereof’, “herein” and “hereunder” and words of similar import when used in this
Pledge Agreement shall refer to this Pledge Agreement as a whole and not to any particular
provision of this Pledge Agreement, and Section, Schedule, Annex, and Exhibit references are to
this Pledge Agreement unless otherwise specified. The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of such terms.




     2. Pledge; Grant of Security Interest. The Pledgor hereby delivers, pledges, assigns,
and transfers, to the Lender, for the ratable benefit of the Lender, all the Pledged Collateral and
hereby grants to the Lender, for the ratable benefit of the Lender, a lien on and first priority
security interest in the Pledged Collateral, in each case whether now owned or hereafter acquired,
as collateral security for the prompt and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of the Obligations. It is hereby specifically
understood and agreed that the Pledgor may from time to time hereafter pledge and deliver
additional Pledged Stock or Pledged Notes to the Lender as collateral security for the Obligations.
Upon such pledge and delivery to the Lender, such additional Pledged Stock or Pledged Notes shall
be deemed to be part of the Pledged Collateral of the Pledgor and shall be subject to the terms of
this Pledge Agreement whether or not Schedule I is amended to refer to such additional collateral.



     3. Delivery of Certificates and Instruments. The Pledgor shall deliver as security to
the Lender (a) simultaneously with or prior to the execution and delivery of this Pledge Agreement,
all original shares of stock, certificates, instruments, promissory notes and other documents
evidencing or representing the Pledged Collateral of the Pledgor as of the date hereof and (b)
promptly upon the receipt thereof by or on behalf of the Pledgor, all other original shares of
stock, certificates, instruments, promissory notes and other documents constituting Pledged
Collateral of the Pledgor acquired after the date hereof. Prior to delivery to the Lender, all
such original shares of stock, certificates, instruments, promissory notes and other documents
constituting Pledged Collateral of the Pledgor shall be held in trust by such Pledgor for the
benefit of the Lender pursuant hereto. All such original shares of stock, certificates,
instruments,



2









 







promissory notes and other documents shall be delivered in suitable form for transfer by
delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank,
in form and substance reasonably acceptable to the Lender.



     4. Representations and Warranties. The Pledgor represents and warrants that:



          (a) all the shares included in Pledged Stock have been duly and validly issued and are fully
paid and nonassessable;




          (b) the Pledgor is the sole record and beneficial owner of, and has title to, the Pledged
Collateral, free of any and all Liens or options in favor of, or claims of, any other Person,
except Permitted Liens;




          (c) each Related Agreement has been duly executed and delivered by all parties thereto and
remains in full force and effect;




          (d) the Pledgor has delivered to the Lender a true and complete copy of each Related Agreement
and all amendments, modifications or supplements thereto; and




          (e) upon (i) the delivery of the certificated Pledged Stock and the Pledged Notes held by the
Pledgor to the Lender endorsed to the Lender or accompanied by appropriate instruments of transfer
endorsed to the Lender in blank, and (ii) the filing of UCC financing statements containing a
description of the Pledged Collateral with the appropriate governmental, municipal or other office
of the Pledgor’s jurisdiction of organization, which are all the filing necessary to perfect the
security interest in favor of the Lender in respect of all Pledged Collateral, the Lender will have
a valid and perfected first priority security interest in all of the Pledged Collateral, securing
the payment and performance of the Obligations.




     5. Covenants. The Pledgor covenants and agrees with the Lender that, from and after
the date of this Pledge Agreement until the Obligations are paid in full (other than contingent
indemnification obligations for which no claim has been asserted) and the Commitment terminated:



          (a) The Pledgor shall not change its type of organization, jurisdiction of organization or
other legal structure. 




          (b) Without providing at least 10 days prior written notice to the Lender, the Pledgor shall
not change its name.




          (c) Without providing at least 10 days prior written notice to the Lender, the Pledgor shall
not change its organizational identification number if it has one. If the Pledgor does not have an
organizational identification number and later obtains one, the Pledgor shall promptly notify the
Lender of such organizational identification number. 




          (d) If the Pledgor shall, as a result of its ownership of the Pledged Collateral, become
entitled to receive or shall receive any stock certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate issued in connection with any




3









 











reorganization), option or rights, or any promissory note or other debt instrument whether in
addition to, in substitution for, as a conversion of, or in exchange for any of the Pledged
Collateral, or otherwise in respect thereof, the Pledgor shall accept the same as the Lender’s
agent, hold the same in trust for the Lender and deliver the same forthwith to the Lender in the
exact form received, duly indorsed by the Pledgor to the Lender, if required, together with an
undated transfer power covering such Pledged Collateral duly executed in blank as additional
collateral security for the Obligations. Any sums paid upon or in respect of the Pledged
Collateral upon the liquidation or dissolution of the Issuer shall be paid over to the Lender as
additional collateral security for the Obligations, and in case any distribution of capital shall
be made on or in respect of the Pledged Collateral or any property shall be distributed upon or
with respect to the Pledged Collateral pursuant to the recapitalization or reclassification of the
capital of the Issuer or pursuant to the reorganization thereof, the property so distributed shall
be delivered to the Lender as additional collateral security for the Obligations. If any sums of
money or property so paid or distributed in respect of the Pledged Collateral shall be received by
the Pledgor, the Pledgor shall, until such money or property is paid or delivered to the Lender,
hold such money or property in trust for the Lender segregated from other funds of the Pledgor, as
additional collateral security for the Obligations.




          (e) Without the prior written consent of the Lender, the Pledgor will not (i) sell, assign,
transfer, exchange or otherwise dispose of, or grant any option with respect to, the Pledged
Collateral, other than sales of the Pledged Stock or Pledged Notes in connection with which the net
proceeds of such transaction are immediately applied to prepayment of the Obligations in accordance
with the Credit Agreement, (ii) create, incur or permit to exist any Lien or option (other than
Permitted Liens) in favor of, or any claim of any Person with respect to, any of the Pledged
Collateral, or any interest therein, except for the Lien provided for by this Pledge Agreement or
(iii) enter into or permit to exist any agreement or undertaking restricting the right or ability
of the Pledgor or the Lender to sell, assign or transfer any of the Pledged Collateral, other than
as set forth in a Related Agreement.




          (f) The Pledgor shall maintain the security interest created by this Pledge Agreement as a
perfected first priority security interest (subject only to Permitted Liens) and shall defend such
security interest against the claims and demands of all Persons whomsoever. If any amount payable
under or in connection with any of the Pledged Collateral shall be or become evidenced by any
promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be
immediately delivered to the Lender, duly endorsed in a manner reasonably satisfactory to the
Lender, to be held as Pledged Collateral pursuant to this Pledge Agreement.




          (g) The Pledgor will, from time to time, at its expense, promptly execute and deliver all
further instruments and documents and take all further action that may be necessary, or that the
Lender may reasonably request, in order to perfect and protect and maintain the priority of any
security interest granted or purported to be granted hereby by the Pledgor or to enable the Lender
to exercise and enforce its rights and remedies hereunder with respect to any Pledged Collateral.




     6. Financing Statements. The Pledgor hereby authorizes the Lender to prepare and file
such financing statements (including continuation statements) or amendments thereof or



4









 







supplements thereto or other instruments as the Lender may from time to time deem necessary or
appropriate in order to perfect and maintain the security interests granted hereunder in accordance
with the Code, in each case with any collateral description as the Lender reasonably deems
advisable. The Pledgor shall also execute and deliver to the Lender and/or file such agreements,
assignments or instruments (including affidavits, notices, reaffirmations and amendments and
restatements of existing documents, as the Lender may request) and do all such other things as the
Lender may deem necessary (a) to assure to the Lender its security interests hereunder are
perfected, including such financing statements (including continuation statements) or amendments
thereof or supplements thereto or other instruments as the Lender may from time to time reasonably
request in order to perfect and maintain the security interests granted hereunder and the priority
thereof in accordance with the Code and any other personal property security legislation in the
appropriate jurisdictions, (b) to consummate the transactions contemplated by the Loan Documents
and (c) to otherwise protect and assure the Lender of its rights and interests under the Loan
Documents.



     7. Cash Dividends; Voting Rights. Unless an Event of Default shall have occurred and
be continuing and the Lender shall have given notice to the Pledgor of the Lender’s intent to
exercise its corresponding rights pursuant to Section 7 below, the Pledgor shall be permitted to
receive all cash dividends and interest payments paid in the normal course of business of the
issuer in respect of the Pledged Collateral (subject to application of such amounts to the
Obligations as required by the Credit Agreement) and to exercise all voting, corporate rights with
respect to the Pledged Collateral; provided, however, that no vote shall be cast or corporate right
exercised or other action taken which would materially and adversely affect the rights the Lender
in respect of such Pledged Collateral or which would be inconsistent with or result in any
violation of any provision of the Credit Agreement, the Notes, this Pledge Agreement or the other
Loan Documents.



     8. Remedies.



          (a) If an Event of Default shall occur and be continuing, the Lender may exercise, in addition
to all other rights and remedies granted in this Pledge Agreement or by law and in any other
instrument or agreement securing, evidencing or relating to the Obligations, all rights and
remedies of a secured party under the Code. Without limiting the generality of the foregoing, the
Lender, without demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to or upon the Pledgor,
the Issuer or any other Person (all and each of which demands, defenses, advertisements and notices
are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize
upon the Pledged Collateral, or any part thereof, and/or may forthwith sell, assign, give option or
options to purchase or otherwise dispose of and deliver the Pledged Collateral or any part thereof
(or contract to do any of the foregoing), in one or more parcels at public or private sale or
sales, in the over-the-counter market, at any exchange, broker’s board or office of the Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any credit risk, in each
case, such sale, transfer, assignment or other disposition being free of any right or equity of
redemption of the Pledgor, which right or equity is hereby waived or released. The Lender shall
have the right upon any such public sale and, to the extent permitted by law, upon any such private
sale to purchase the whole or any part of the




5









 







Pledged Collateral so sold, free of any right or equity of redemption in the Pledgor, which
right or equity is hereby waived or released. The Lender shall apply any Proceeds from time to
time held by it and the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every kind incurred
therein or incidental to the care or safekeeping of any of the Pledged Collateral or in any way
relating to the Pledged Collateral or the rights of the Lender hereunder, including, without
limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the
Obligations, in such order as the Lender may elect, and only after such application and after the
payment by the Lender of any other amount required by any provision of law, need the Lender account
for the surplus, if any, to the Pledgor. To the extent permitted by applicable law, the Pledgor
waives all claims, damages and demands it may acquire against the Lender arising out of the
exercise by the Lender of any of its rights hereunder. If any notice of a proposed sale or other
disposition of Pledged Collateral shall be required by law, such notice shall be deemed reasonable
and proper if given at least 10 days before such sale or other disposition.




          (b) Following the occurrence and during the continuation of an Event of Default:





          (i) the Lender shall have the right to receive any and all cash dividends, interest
payments or other cash distributions paid in respect of the Pledged Collateral and make
application thereof to the Obligations in such order as it may determine; and




          (ii) at the request of the Lender, all shares of the Pledged Stock, shall be registered
in the name of the Lender or its nominee, and the Lender or its nominee may thereafter
exercise (A) all voting, corporate or other rights pertaining to such shares of the Pledged
Stock at any meeting of shareholders of the Issuer or otherwise, (B) any and all rights of
conversion, registration, exchange, subscription and any other rights, privileges or options
pertaining to such shares of the Pledged Collateral as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any and all of the
Pledged Collateral upon the merger, consolidation, reorganization, recapitalization or other
fundamental change in the corporate or company structure of the Issuer, or upon the exercise
by Pledgor or the Lender of any right, privilege or option pertaining to such shares of the
Pledged Collateral, and in connection therewith, the right to deposit and deliver any and
all of the Pledged Collateral with any committee, depository, transfer Lender, registrar or
other designated agency upon such terms and conditions as it may determine) and (C) all
rights of the Pledgor pursuant to the Related Agreements, all without liability except to
account for property actually received by it, but the Lender shall have no duty to exercise
any such right, privilege or option and shall not be responsible for any failure to do so or
delay in so doing.



          (c) The rights of the Lender hereunder shall not be conditioned or contingent upon the pursuit
by the Lender of any right or remedy against the Issuer or against any other Person which may be or
become liable in respect of all or any part of the Obligations or against any other collateral
security therefor, guarantee thereof or right of offset with respect thereto. The Lender shall not
be liable for any failure to demand, collect or realize upon all or any part of the Pledged
Collateral or for any delay in doing so, nor shall it be under any obligation to sell or




6









 







otherwise dispose of any Pledged Collateral upon the request of the Pledgor or any other
Person or to take any other action whatsoever with regard to the Pledged Collateral or any part
thereof.




          (d) Power of Attorney. The Pledgor hereby designates and appoints the Lender, and
each of its designees or agents as attorney-in-fact of such Pledgor, irrevocably and with power of
substitution, with authority to do and perform all such other acts and things as the Lender may
deem to be necessary, proper or convenient in connection with the Pledged Collateral of such
Pledgor, during the continuance of an Event of Default.




          This power of attorney is a power coupled with an interest and shall be irrevocable for so
long as any of the Obligations or the Commitment remains outstanding or any Credit Document is in
effect (other than with respect to contingent indemnification obligations for which no claim has
been asserted), and until the Note shall have been indefeasibly paid in full.




     9. Irrevocable Authorization and Instruction to the Issuer. The Pledgor hereby
authorizes and instructs each Issuer to comply with any instruction received by it from the Lender
in writing that (a) states that an Event of Default has occurred and (b) is otherwise in accordance
with the terms of this Pledge Agreement, without any other or further instructions from the
Pledgor, and the Pledgor agrees that such Issuer shall be fully protected in so complying.



     10. Release of Pledged Collateral.



          (a) Upon payment in full of all Obligations outstanding under the Credit Agreement and the
other Loan Documents (other than with respect to contingent indemnification obligations for which
no claim has been asserted) and termination of the Commitment, the Lender shall release its
security interest and lien upon the Pledged Collateral and shall return all original stock
certificates and stock powers evidencing any Pledged Stock to the Pledgor, at the Pledgor’s sole
cost and expense.




          (b) Upon any sale of all or any portion of the Pledged Collateral, the Lender shall release
its security interest and lien upon such Pledged Collateral and shall return the original stock
certificates and stock powers and notes and other instruments evidencing such Pledged Collateral to
the Pledgor concurrently with the receipt of the net proceeds of such sale in accordance with the
Credit Agreement, in each case at the Pledgor’s sole cost and expense.




     11. Notices. Notices, requests and demands to or upon the Lender or the Pledgor
hereunder shall be effected in the manner set forth in Section 8.2 of the Credit Agreement.



     12. No Waiver; Cumulative Remedies. The Lender shall not by any act (except by a
written instrument pursuant to Section 12 hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event
of Default or in any breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Lender, any right, power or privilege hereunder shall
operate-as a waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise of any other right,
power or privilege. A waiver by the Lender of any right or remedy hereunder on any



7









 







one occasion shall not be construed as a bar to any right or remedy which the Lender would
otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any rights or remedies provided by
law.



     13. Waivers and Amendments. None of the terms or provisions of this Pledge Agreement
may be waived, amended, supplemented or otherwise modified except by a written instrument executed
by the Pledgor and the Lender.



     14. Successors and Assigns. This Pledge Agreement shall be binding upon the
successors and assigns of the Pledgor and shall inure to the benefit of the Lender and their
respective successors and assigns which are permitted pursuant to Section 8.5 of the Credit
Agreement.



     15. Governing Law. This Pledge Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York. The terms of Section 8.10
(“Waivers of Jury Trial”) and Section 8.11 (“Consent to Jurisdiction and Service of Process”) of
the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto
hereby agree to such terms.



[SIGNATURE PAGE FOLLOWS]




8









 








          IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement to be duly executed and
delivered as of the date first above written.




	 	 	 	 	 
	 	JCP FUND V BRIDGE PARTNERS LLC

 	 
	 	By:  	/s/ Brian P. Friedman
 	 
	 	 	Name:  	Brian P. Friedman 	 
	 	 	Title:  	Managing Member 	 



 









 






	 	 	 	 	 



Pledge Agreement




SCHEDULE I to

Pledge Agreement




DESCRIPTION OF PLEDGED STOCK




	 	 	 	 	 	 	 	 	 
	 	 	Type of	 	 	 	 	 	 
	Name of	 	Pledged	 	Certificate Number	 	Number of	 	Percentage of
	Issuer	 	Stock	 	(if any)	 	Shares (if any)	 	Interest
	 	 	 	 	 	 	 	 	 





DESCRIPTION OF PLEDGED NOTES




	 	 	 	 	 
	Name of	 	 	 	 
	Issuer	 	Principal Amount	 	Date
	 	 	 	 	 






 












 





Borrowing Certificate



August 11, 2008



     Reference is made to the Credit Agreement, dated as of August 11, 2008 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), between JCP
Fund V Bridge Partners LLC, a Delaware limited liability company (the “Borrower”), and
Jefferies Group, Inc. Capitalized terms used herein and not defined have the respective meanings
assigned to such terms in the Credit Agreement.



     The undersigned Managing Member of the Borrower hereby certifies as of the date hereof that:




	1.	 	Pursuant to Section 2.1(b) of the Credit Agreement, the Borrower hereby notifies the Lender
of its intent to borrow $31,281,250 under said agreement. In order to effectuate this
Loan, please credit the following account(s) on August 11, 2008, as follows:




Bank Name: JP Morgan Chase



Account Name: 021-000021



Account No.: JCP Fund V Bridge Partners LLC



ABA No.: 796 709145



Reference: Name of Member



Each of the representations and warranties made by the Borrower under or pursuant to the Loan
Documents are true and correct all material respects on and as of the date hereof.





	2.	 	No Default of Event of Default has occurred and is continuing or will result from the
borrowing of the Loan contemplated hereby or from the application of the proceeds thereof.
	 
	3.	 	The Borrower has delivered (or will deliver) substantially concurrently with the making of
the Loan contemplated hereby (or within five Business Days of the closing date of the
acquisition of the Permitted Investment purchased with the proceeds of such Loan),
certificates representing the Pledged Stock, if any, to be purchased with the proceeds of such
Loan, accompanied by undated stock powers or other appropriate powers, duly executed in blank
(if such Pledged Collateral is represented by certificates) and all Pledged Notes, if any,
accompanied by undated note powers or other appropriate powers.
	 
	4.	 	Prior to or concurrently with the making of the Loan contemplated hereby, the Borrower has
received capital contributions to enable it to purchase the applicable Permitted Investment
that will be acquired within two Business Days of the date on which such Loan is made in an
amount equal to not less than 12.5% of the amount of such Permitted Investment.
	 
	5.	 	Richard Handler and/or the Executive Committee of Jefferies Group, Inc. has approved the
Investment that will be acquired with the proceeds of the Loan contemplated hereby.










 









 












	6.	 	No proceeds of any Loans have been or will be used for the purpose of “purchasing” or
carrying any Margin Stock in violation of, or in a manner inconsistent with, the provisions of
the Margin Regulations and in no event have or will the proceeds of any Loans be secured by
more than 25% of the “current market value” (within the meaning of the Margin Regulations) of
any such Margin Stock.





(Signature page follows.)




 









 








     IN WITNESS WHEREOF, the undersigned has executed this Borrowing Certificate as of the date
first set forth above.



	 	 	 	 	 
	 	JCP Fund V Bridge Partners LLC

 	 
	 	By:  	/s/ Brian P. Friedman
 	 
	 	 	Name:  	Brian P. Friedman 	 
	 	 	Title:  	Managing Member