Exhibit
10.1

 

Execution
Version

 

 

 

 

 

$280,000,0000 CREDIT AGREEMENT,

 

dated as of June 23, 2021,

 

among

 

B. Riley Financial, Inc.,

as Ultimate Parent,

 

BR Financial Holdings, LLC,

as Primary Guarantor,

 

BR Advisory & Investments, LLC,

as Borrower,

 

THE LENDERS PARTY HERETO FROM TIME TO
TIME

 

Nomura Corporate Funding
Americas, LLC,
as Administrative
Agent

 

and

 

WELLS FARGO BANK,
N.A.,
as Collateral
Agent

 

 

 

 

 





 



 


 

TABLE
OF CONTENTS

 

	 	Page
	Article I.
      DEFINITIONS 	1
	 	 
	Section
      1.01	Defined Terms	1
	Section
      1.02	Other Interpretive
      Provisions	45
	Section
      1.03	Accounting Terms.	45
	Section
      1.04	Rounding	47
	Section
      1.05	Times of Day	47
	Section
      1.06	Rates	47
	Section
      1.07	Cashless Rolls	47
	 	 	 
	Article II.
      LOANS 	47
	 	 	 
	Section
      2.01	Term Loan
    Commitments.	47
	Section
      2.02	Procedure for Term Loan
      Borrowing.	48
	Section
      2.03	Repayment of Term
    Loans	48
	Section
      2.04	Revolving
Commitments	48
	Section
      2.05	Procedure for Revolving
      Borrowing.	49
	Section
      2.06	Benchmark Replacement
      Setting	49
	Section
      2.07	Repayment of Loans;
      Evidence of Debt.	50
	Section
      2.08	Fees.	51
	Section
      2.09	Voluntary Prepayments
      and Commitment Reductions.	52
	Section
      2.10	Mandatory Prepayments
      and Commitment Reductions.	53
	Section
      2.11	Application of
      Prepayments/Reductions	54
	Section
      2.12	Conversion and
      Continuation Options	55
	Section
      2.13	Minimum Amounts and
      Maximum Number of Eurodollar Tranches	55
	Section
      2.14	Interest Rates and
      Payment Dates	55
	Section
      2.15	Illegality	56
	Section
      2.16	Inability to Determine
      Interest Rate	56
	Section
      2.17	Payments Generally;
      Administrative Agent’s Clawback.	57
	Section
      2.18	Increased Costs;
      Capital Adequacy.	59
	Section
      2.19	Taxes.	60
	Section
      2.20	Breakage Payments	63
	Section
      2.21	Pro Rata Treatment.	64
	Section
      2.22	Defaulting Lenders.	65
	Section
      2.23	Mitigation Obligations;
      Replacement of Lenders	66
	 	 	 
	Article
      III. REPRESENTATIONS AND WARRANTIES 	67
	 	 	 
	Section
      3.01	Existence,
      Qualification and Power	67
	Section
      3.02	Authorization;
      Enforceability	68
	Section
      3.03	No Conflicts	68
	Section
      3.04	Financial Statements;
      No Material Adverse Effect.	68
	Section
      3.05	Intellectual
Property	69
	Section
      3.06	Properties.	69
	Section
      3.07	Equity Interests and
      Subsidiaries	70
	Section
      3.08	Litigation	70


 





i



 


 

	Section
      3.09	Investment Company
    Act	70
	Section
      3.10	Taxes	70
	Section
      3.11	No Material
      Misstatements.	70
	Section
      3.12	Labor Matters.	71
	Section
      3.13	ERISA	71
	Section
      3.14	Environmental
Matters	72
	Section
      3.15	Insurance	72
	Section
      3.16	Security Documents	73
	Section
      3.17	Material Nonpublic
      Information	73
	Section
      3.18	Solvency	73
	Section
      3.19	PATRIOT Act, etc	73
	Section
      3.20	Anti-Terrorism Laws.	73
	Section
      3.21	Anti-Corruption Laws
      and Sanctions.	74
	Section
      3.22	Use of Proceeds	74
	Section
      3.23	Borrowing Base
      Certificate	74
	Section
      3.24	Deposit Accounts	75
	Section
      3.25	Bona Fide Loan; Full
      Recourse	75
	 	 	 
	Article IV.
      CONDITIONS PRECEDENT 	75
	 	 	 
	Section
      4.01	Conditions to Initial
      Credit Extension	75
	Section
      4.02	Conditions to Each
      Credit Extension	78
	 	 	 
	Article V.
      AFFIRMATIVE COVENANTS 	78
	 	 	 
	Section
      5.01	Financial Statements	78
	Section
      5.02	Certificates; Other
      Information	80
	Section
      5.03	Notices	81
	Section
      5.04	Payment of Taxes	82
	Section
      5.05	Preservation of
      Existence, Etc.	82
	Section
      5.06	Maintenance of
    Property	82
	Section
      5.07	Maintenance of
    Insurance	82
	Section
      5.08	Books and Records;
      Inspection Rights.	83
	Section
      5.09	Compliance with Laws	83
	Section
      5.10	Compliance with
      Environmental Laws; Preparation of Environmental Reports.	84
	Section
      5.11	Use of Proceeds	84
	Section
      5.12	Covenant to Guarantee
      Obligations and Give Security.	84
	Section
      5.13	Further Assurances	85
	Section
      5.14	Borrowing Base
      Certificate	86
	Section
      5.15	Cash Management;
      Registration of Public Equities.	86
	Section
      5.16	Post-Closing
      Undertakings	87
	 	 	 
	Article VI.
      NEGATIVE COVENANTS 	87
	 	 	 
	Section
      6.01	Limitation on
      Indebtedness	87
	Section
      6.02	Limitation on Liens	89
	Section
      6.03	Limitation on
      Fundamental Changes	90
	Section
      6.04	Limitations on
      Dispositions	91
	Section
      6.05	Limitation on
      Restricted Payments	93


 





ii



 


 

	Section
      6.06	Limitation on
      Investments	94
	Section
      6.07	Modifications of
      Organizational Documents	95
	Section
      6.08	Limitation on
      Transactions with Affiliates	95
	Section
      6.09	Limitations in Respect
      of Margin Stock	95
	Section
      6.10	Limitation on Changes
      in Fiscal Periods	95
	Section
      6.11	Limitation on
      Burdensome Agreements	95
	Section
      6.12	Limitation on Lines of
      Business	97
	Section
      6.13	Financial Covenants	97
	Section
      6.14	Limitation on
      Activities of the Primary Guarantor	97
	Section
      6.15	Limitation on
      Activities of Ultimate Parent	98
	Section
      6.16	Limitation on
      Activities of BR Advisory Loan Parties	98
	Section
      6.17	No Impairment of Public
      Equities; Restricted Transactions.	99
	 	 	 
	Article
      VII. EVENTS OF DEFAULT AND REMEDIES 	99
	 	 	 
	Section
      7.01	Events of Default	99
	Section
      7.02	Remedies Upon Event of
      Default	102
	Section
      7.03	Application of Funds	102
	 	 	 
	Article
      VIII. THE AGENTS 	103
	 	 	 
	Section
      8.01	Appointment and
      Authority	103
	Section
      8.02	Rights as a Lender	103
	Section
      8.03	Exculpatory
    Provisions	103
	Section
      8.04	Reliance by Agents	107
	Section
      8.05	Delegation of Duties	107
	Section
      8.06	Resignation of
      Administrative Agent or the Collateral Agent	107
	Section
      8.07	Non-Reliance on
      Administrative Agent and Other Lenders	108
	Section
      8.08	No Other Duties, Etc	108
	Section
      8.09	Administrative Agent
      May File Proofs of Claim	108
	Section
      8.10	Collateral and Guaranty
      Matters	109
	Section
      8.11	Erroneous Payments	111
	Section
      8.12	Certain ERISA
    Matters.	113
	 	 	 
	Article IX.
      MISCELLANEOUS 	114
	 	 	 
	Section
      9.01	Amendments and
    Waivers	114
	Section
      9.02	Notices	116
	Section
      9.03	No Waiver by Course of
      Conduct; Cumulative Remedies	119
	Section
      9.04	Survival of
      Representations, Warranties, Covenants and Agreements	119
	Section
      9.05	Payment of Expenses;
      Indemnity	119
	Section
      9.06	Successors and Assigns;
      Participations and Assignments	121
	Section
      9.07	Sharing of Payments by
      Lenders; Set-off	126
	Section
      9.08	Counterparts	127
	Section
      9.09	Severability	127
	Section
      9.10	Section Headings	127
	Section
      9.11	Integration	127
	Section
      9.12	Governing Law	127
	Section
      9.13	Submission to
      Jurisdiction; Waivers	127
	Section
      9.14	Acknowledgments	128


 





iii



 


 

	Section
      9.15	Confidentiality	128
	Section
      9.16	Waiver of Jury Trial	130
	Section
      9.17	PATRIOT Act Notice; AML
      Laws	131
	Section
      9.18	Usury Savings Clause	131
	Section
      9.19	Payments Set Aside	131
	Section
      9.20	No Advisory or
      Fiduciary Responsibility	132
	Section
      9.21	Judgment Currency	132


 

 

ANNEXES:

 

	Annex
      A-1	Revolving
      Commitments
	Annex
      A-2	Term
      Loan Commitments
	 	 
	 	 
	SCHEDULES:	 
	 	 
	Schedule
      1.01(a)	Approved
      Assets
	Schedule
      1.01(b)	Transfer
      Restrictions
	Schedule 3.07	Equity
      Interests
	Schedule 3.16(a)	UCC
      Filing Jurisdictions
	Schedule 3.24	Deposit
      Accounts and Securities Accounts
	Schedule 4.01(a)	Closing
      Date Security Documents
	Schedule 5.16	Post-Closing
      Undertakings
	Schedule 6.01	Existing
      Indebtedness
	Schedule 6.02	Existing
      Liens
	Schedule 6.06	Existing
      Investments
	Schedule 6.08	Existing
      Affiliate Transactions
	Schedule 6.11	Existing
      Restrictive Agreements
	Schedule 6.11	Restricted
      Transactions
	 	 
	 	 
	EXHIBITS:	 
	 	 
	Exhibit A	Form
      of Compliance Certificate
	Exhibit B	Perfection
      Certificate
	Exhibit C	Form
      of Assignment and Assumption
	Exhibit D-1	Form
      of Term Loan Note
	Exhibit D-2	Form
      of Revolving Note
	Exhibit E-1	Form
      of U.S. Tax Compliance Certificate
	Exhibit E-2	Form
      of U.S. Tax Compliance Certificate
	Exhibit E-3	Form
      of U.S. Tax Compliance Certificate
	Exhibit E-4	Form
      of U.S. Tax Compliance Certificate
	Exhibit F	Form
      of Borrowing Notice
	Exhibit G	Form
      of Solvency Certificate
	Exhibit H	Form
      of Subordinated Intercompany Note
	Exhibit I	Form
      of Valuation Report
	Exhibit J	Form
      of Borrowing Base Certificate
	Exhibit
      K	Form
      of Waterfall Certificate


 





iv



 


 

CREDIT
AGREEMENT, dated as of June 23, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time
to time, this “Agreement”), among B. Riley Financial, Inc., a Delaware corporation ("Ultimate
Parent"), BR Financial Holdings, LLC, a Delaware limited liability company (the “Primary Guarantor”),
BR Advisory & Investments, LLC, a Delaware limited liability company (the “Borrower"), each of the lenders
from time to time parties hereto (the “Lenders”), Nomura Corporate Funding Americas, LLC, as administrative agent for
the Lenders (in such capacity, together with its successors and permitted assigns in such capacity, the “Administrative
Agent”), and Wells Fargo Bank, N.A., as collateral agent for the Secured Parties (in such capacity, together with its
successors and permitted assigns in such capacity, the “Collateral Agent”).

 

W
I T N E S S E T H:

 

WHEREAS,
the Lenders are willing to extend such credit to the Borrower on the terms and
subject to the conditions set forth herein.

 

NOW,
THEREFORE, in consideration of the premises and the agreements hereinafter
set forth, the parties hereto hereby agree as follows:

 

Article
 I.
DEFINITIONS

 

Section
1.01Defined
Terms. As used in this Agreement, the terms listed in this
Section 1.01 shall have the respective meanings set forth
in this Section 1.01.

 

“6
Brands” shall mean BR Brand Holdings, LLC.

 

“Account
Control Agreements” shall mean (a) the Deposit Account Control Agreement
(Springing), dated as of the Closing Date, among B. RILEY REAL ESTATE, LLC, Axos
Bank and the Collateral Agent, (b) the Deposit Account Control Agreement (Access
Restricted After Notice), dated as of the Closing Date, among the Borrower,
Wells Fargo Bank, National Association, and the Collateral Agent, (c) the
Deposit Account Control Agreement (Access Restricted After Notice), dated as of
the Closing Date, among the BRF Finance Co., LLC, Wells Fargo Bank, National
 Association, and the Collateral Agent, (d) the Deposit Account Control
Agreement (Access Restricted After Notice), dated as of the Closing Date, among
GLASSRATNER ADVISORY & CAPITAL GROUP, LLC, Wells Fargo Bank, National
Association, and the Collateral Agent, (e) the Deposit Account Control Agreement
(Access Restricted After Notice), dated as of the Closing Date, among the Great
American Group Advisory & Valuation Services, LLC, Wells Fargo Bank,
National Association, and the Collateral Agent, (f) the Securities Account
Control Agreement, dated as of the Closing Date, among BRF Finance Co., LLC,
Wells Fargo Bank, National Association, and the Collateral Agent, (g) the
Securities Account Control Agreement, dated as of the Closing Date, among BRF
Investments, LLC, Wells Fargo Bank, National Association, and the Collateral
 Agent, (h) the Securities Account Control Agreement, dated as of the Closing
Date, among B. Riley Brand Management, LLC, Wells Fargo Bank, National
Association, and the Collateral Agent and (i) any other deposit account control
agreement or security account control agreement, as applicable, entered into in
connection with this Agreement from time to time in form and substance
reasonably satisfactory to the Administrative Agent.

 

“Accounting
Change” shall mean any change occurring after the Closing Date in GAAP
or in the application thereof.

 

“Administrative
 Agent” shall have the meaning set forth in the preamble hereto.

 





1



 


 

“Administrative
 Questionnaire” shall mean an administrative questionnaire in a form
supplied by the Administrative Agent.

 

“Affiliate”
shall mean, with respect to a specified Person, another Person that directly or
indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified.

 

“Agents”
shall mean each of the Administrative Agent and the Collateral Agent.

 

“Agreement”
shall have the meaning set forth in the preamble hereto.

 

“Anti-Corruption
 Laws” shall mean all laws, rules, and regulations of any jurisdiction
applicable to Ultimate Parent, the Primary Guarantor or any Subsidiaries of
Ultimate Parent from time to time concerning or relating to bribery or
corruption, including without limitation the United States Foreign Corrupt
Practices Act of 1977, as amended, and other similar legislation in any other
jurisdictions.

 

“Anti-Terrorism
 Laws” shall mean any laws relating to terrorism or money laundering,
including Executive Order No. 13224, the PATRIOT Act, the laws comprising or
implementing the Bank Secrecy Act, and the laws administered by the United
States Treasury Department's Office of Foreign Assets Control (as any of the
foregoing laws may from time to time be amended, renewed, extended, or
replaced).

 

“Applicable
Margin” shall mean (a) for Eurodollar Loans, 4.50% and (B) for Base
Rate Loans, 3.50%.

 

“Approved
Assets” shall mean the Private Assets, Public Equities and Credit Assets
set forth on Schedule 1.01(a) and certain criteria set forth in
the definition of “Eligible Credit Assets”, “Eligible Private Assets” and
“Eligible Public Equities”, as applicable, that shall not be applied to such
Private Assets, Public Equities and Credit Assets.

 

“Approved
Electronic Communications” shall mean, collectively, any notice, demand,
communication, information, document or other material provided by or on behalf
of any Loan Party pursuant to any Loan Document or the transactions contemplated
therein which is distributed to any Agent or Lender by means of electronic
communications pursuant to Section 9.02(b) or Section
9.02(d), including through the Platform.

 

“Approved
Fund” shall mean any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.

 

“Approved
Transfer Restrictions” means Transfer Restrictions on any Public
Equities (a) as set forth on Schedule 1.01(b) or (b) on account of
(i) such Public Equities being “restricted securities” within the meaning of
Rule 144, provided that (A) such Public Equities have a holding period for
purposes of Rule 144(d) exceeding one year as of the date such Public Equities
are pledged as Collateral and (B) the Issuer of such Public Equities is not an
“issuer” described in Rule 144(i)(1) or (ii) any Loan Party being an “affiliate”
(as such term is defined in Rule 144) of the Issuer of such Public Equity.

 

“Asset
Portfolio Component” has the meaning set forth in clause (a) of the
definition of “Borrowing Base”.

 

“Asset
Value” shall means, on the relevant date of determination

 





2



 


 

(a)with
respect to any Credit Asset, the least of (i) the aggregate principal amount,
including any capitalized interest of such Credit Asset as of the Closing Date
but excluding any capitalized interest thereafter and (ii) the book value of
such Credit Asset as determined by the Borrower in accordance with GAAP and
(iii) for assets with a value of $30,000,000 or greater, the value set forth in
the most recent Valuation Report preceding the relevant Borrowing Base
Certificate,

 

(b)with
respect to any Public Equities (other than warrants), the closing price per
share of the applicable Public Equity as quoted on the relevant exchange on
which such Public Equity is traded for the trading day immediately prior to such
date of determination,

 

(c)with
respect to any Private Assets, the lesser of (x) the book value of such Private
Assets as determined by the Borrower in accordance with GAAP and (y) for assets
with a value of $30,000,000 or greater, the value set forth in the most recent
Valuation Report preceding the relevant Borrowing Base Certificate, in each
case, multiplied by 100% (or if Operating EBITDA of the Ultimate Parent and its
Subsidiaries is less than $145,000,000 as of the most recently ended Test
Period, 75%), and

 

(d)with
respect to any Public Equity that is a warrant, the lesser of (A) the book value
of such warrant and (B) the difference of (x) the closing price per share of the
corresponding Public Equity for which such warrant is exercisable as quoted on
the relevant exchange on which such Public Equity is traded for the trading day
immediately prior to such date of determination minus (y) the per share
 exercise price of such warrant.

 

“Assignment
and Assumption” shall mean an assignment and assumption entered into by
a Lender and an Eligible Assignee (with the consent of any party whose consent
is required by Section 9.06), and accepted by the
Administrative Agent, in substantially the form of Exhibit C
or any other form approved by the Administrative Agent.

 

“Attributable
 Indebtedness” shall mean, when used with respect of any Sale and
Leaseback, as at the time of determination, the present value (discounted at a
rate equivalent to the Borrower’s then-current weighted average cost of funds
for borrowed money as at the time of determination, compounded on a semi-annual
basis) of the total obligations of the lessee for rental payments during the
remaining term of the lease included in such Sale and Leaseback, including any
period for which such lease has been extended or may, at the option of the
lessor, be extended. Such present value shall be calculated using a discount
rate equal to the rate of interest implicit in such transaction, determined in
accordance with GAAP; provided that, if such Sale and Leaseback results
in a Capital Lease Obligation, the amount of Indebtedness represented thereby
will be determined in accordance with the definition of Capital Lease
Obligation.

 

“Available
Tenor” means, as of any date of determination and with respect to the
then-current Benchmark, as applicable, (x) if the then-current Benchmark is a
term rate, any tenor for such Benchmark that is or may be used for determining
the length of an Interest Period or (y) otherwise, any payment period for
interest calculated with reference to such Benchmark, as applicable, pursuant to
this Agreement as of such date.

 

“Average
Utilization” means, for any Interest Period, the quotient expressed as a
percentage obtained by dividing (a) the average daily Total Revolving
Outstanding Amount by (b) the average daily Total Revolving Commitments for such
Interest Period.

 

“Bankruptcy
Code” shall mean Title 11 of the United States Code entitled
“Bankruptcy”, as now and hereafter in effect, or any successor statute.

 





3



 


 

“Base
Rate” shall mean, for any day, a per annum rate of interest equal
to the greatest of (a) the Prime Rate in effect on such day, (b) the
 Federal Funds Effective Rate in effect on such day plus 0.50%,
(c) the Eurodollar Rate (after giving effect to any Eurodollar Rate
“floor”) that would be payable on such day for a Eurodollar Loan with a
one-month interest period plus 1.00% and (d) 1.00%. Any change in
the Base Rate due to a change in (x) the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective Rate
respectively, and (y) the Eurodollar Rate shall be effective as of the
conclusion of the applicable one-month interest period.

 

“Base
Rate Loan” shall mean a Loan bearing interest at a rate determined by
reference to the Base Rate.

 

“Benchmark”
means, initially, USD LIBOR; provided that if a replacement of the
Benchmark has occurred pursuant to the Section titled “Benchmark Replacement
Setting”, then “Benchmark” means the applicable Benchmark Replacement to the
extent that such Benchmark Replacement has replaced such prior benchmark rate.
Any reference to “Benchmark” shall include, as applicable, the published
 component used in the calculation thereof.

 

“Benchmark
Replacement” means, for any Available Tenor:

 

(a)the
first alternative set forth below that can be determined by the Administrative
Agent:

 

(i)the
sum of:

 

(A)Term
SOFR and

 

(B)0.11448%
(11.448 basis points) for an Available Tenor of one-month's duration, 0.26161%
(26.161 basis points) for an Available Tenor of three-months’ duration, and
0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration,
or

 

(ii)the
 sum of:

 

(A)Daily
Simple SOFR and

 

(B)the
spread adjustment selected or recommended by the Relevant Governmental Body for
the replacement of the tenor of USD LIBOR with a SOFR-based rate having
approximately the same length as the interest payment period specified in clause
(a) of this Section; and

 

(b)the
sum of (i) the alternate benchmark rate and (ii) an adjustment (which may be a
positive or negative value or zero), in each case, that has been selected by the
Administrative Agent and the Borrower as the replacement for such Available
Tenor of such Benchmark giving due consideration to any evolving or
then-prevailing market convention, including any applicable recommendations made
by the Relevant Governmental Body, for U.S. dollar-denominated syndicated credit
facilities at such time;

 

provided
that, if the Benchmark Replacement as determined pursuant to clause
(a) or (b) above would be less than the Floor, the
Benchmark Replacement will be deemed to be the Floor for the purposes of this
Agreement and the other Loan Documents.

 





4



 


 

“Benchmark
Replacement Conforming Changes” means, with respect to any Benchmark
Replacement, any technical, administrative or operational changes (including
changes to the definition of “ABR,” the definition of “Business Day,” the
definition of “Interest Period,” timing and frequency of determining rates and
making payments of interest, timing of borrowing requests or prepayment,
 conversion or continuation notices, the applicability and length of lookback
periods, the applicability of breakage provisions, and other technical,
administrative or operational matters) that the Administrative Agent decides may
be appropriate to reflect the adoption and implementation of such Benchmark
Replacement and to permit the administration thereof by the Administrative Agent
in a manner substantially consistent with market practice (or, if the
Administrative Agent decides that adoption of any portion of such market
practice is not administratively feasible or if the Administrative Agent
determines that no market practice for the administration of such Benchmark
Replacement exists, in such other manner of administration as the Administrative
Agent decides is reasonably necessary in connection with the administration of
this Agreement and the other Loan Documents).

 

“Benchmark
Transition Event” means, with respect to any then-current Benchmark
other than USD LIBOR, the occurrence of a public statement or publication of
information by or on behalf of the administrator of the then-current Benchmark,
the regulatory supervisor for the administrator of such Benchmark, the Board of
Governors of the Federal Reserve System, the Federal Reserve Bank of New York,
an insolvency official with jurisdiction over the administrator for such
Benchmark, a resolution authority with jurisdiction over the administrator for
such Benchmark or a court or an entity with similar insolvency or resolution
authority over the administrator for such Benchmark, announcing or stating that
(a) such administrator has ceased or will cease on a specified date to provide
all Available Tenors of such Benchmark, permanently or indefinitely,
provided that, at the time of such statement or publication, there is no
successor administrator that will continue to provide any Available Tenor of
such Benchmark or (b) all Available Tenors of such Benchmark are or will no
longer be representative of the underlying market and economic reality that such
Benchmark is intended to measure and that representativeness will not be
restored.

 

“Beneficial
Ownership Certification” means a certification regarding beneficial
ownership required by the Beneficial Ownership Regulation.

 

“Beneficial
Ownership Regulation” means 31 C.F.R. § 1010.230.

 

“Benefit
Plan” means any of (a) an “employee benefit plan” (as defined in ERISA)
that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to
Section 4975 of the Code or (c) any Person whose assets include (for purposes of
ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section
4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

 

“Blocked
Person” shall have the meaning set forth in Section
3.20(b).

 

“Board
of Governors” shall mean the Board of Governors of the Federal Reserve
System of the United States of America, or any successor thereto.

 

“Book-Entry
Shares” shall mean, with respect to each Issuer, Public Equities that
are “uncertificated securities” (within the meaning of Article 8 of the UCC)
that are registered in the name of the securities intermediary on the books of
the relevant Issuer and its transfer agent.

 

“Borrower”
shall have the meaning set forth in the preamble hereto.

 

“Borrowing
Base” shall mean, at any time of calculation, in each case, of the
Borrowing Base Loan Parties:

 





5



 


 

(a)the
sum of:

 

(i)60%
 of the Asset Value of Eligible First Lien Credit Assets, plus

 

(ii)
40% of the Asset Value of Eligible Credit Assets (other than Eligible First Lien
Credit Assets and Eligible Subordinated Credit Assets), plus

 

(iii)
40% of the Asset Value of Eligible Public Equities, plus

 

(iv)30%
of the Asset Value of Eligible Private Assets, plus,

 

(v)30%
of the Asset Value of Eligible Subordinated Credit Assets,

 

(the
sum of clauses (i) through (v), the
“Asset Portfolio Component”) plus

 

(b)the
lesser of 100% of (i) Qualified Cash as of such day and (ii) the sum of (x) the
30-day average of Qualified Cash (other than any Qualified Cash referred to in
clause (y)) for the 30-day period ending on such day plus
(y) any Qualified Cash that is the proceeds of any equity contribution
in the form of Qualified Equity to a Borrowing Base Loan Party made since the
previously delivered Borrowing Base Certificate and designated by the Borrower
for purposes of constituting Qualified Cash, minus 

 

(c)the
Excess Concentration Amount, minus

 

(d)any
Reserves then in effect.

 

The
Asset Values used to calculate the “Borrowing Base” shall be those set forth in
the most recent Borrowing Base Certificate. Notwithstanding the foregoing, the
Asset Value included in the calculation of the Borrowing Base of Eligible Public
Equities that are warrants that shall not, in the aggregate, exceed
$50,000,000.

 

“Borrowing
Base Certificate” means a certificate from a Responsible Officer of the
Borrower, in substantially the form of Exhibit J, as such
form, subject to the terms hereof, may from time to time be modified as agreed
by the Borrower and the Administrative Agent or such other form which is
acceptable to the Administrative Agent in its reasonable discretion.

 

“Borrowing
Base Loan Parties” means BRF Finance Co., LLC, BRF Investments, LLC, B.
Riley Brand Management, LLC and any Subsidiaries thereof other than any Excluded
Subsidiaries.

 

“Borrowing
Date” shall mean any Business Day specified by the Borrower in a
Borrowing Notice as a date on which the relevant Lenders are requested to make
 Loans hereunder.

 

“Borrowing
Notice” shall mean, with respect to any request for borrowing of Loans
hereunder, a notice from the Borrower, substantially in the form of, and
 containing the information prescribed by, Exhibit F,
delivered to the Administrative Agent.

 

“BR
Advisory Loan Parties” shall mean the Borrower, the BR Advisory OpCos
and the Borrowing Base Loan Parties.

 

“BR
Advisory OpCos” shall mean B. Riley Advisory Holdings, LLC and B. Riley
Real Estate, LLC and any Subsidiaries thereof other than any Excluded
Subsidiaries.

 





6



 


 

“Business
Day” shall mean (i) any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New York or is a day on
which banking institutions located in such state are authorized or required by
law or other governmental action to close and (ii) with respect to all
notices, determinations, fundings and payments in connection with the Eurodollar
Rate or any Eurodollar Loans, any day which is a Business Day described in
clause (i) and which is also a day for trading by and between
banks in Dollar deposits in the London interbank market.

 

“Canada
Blocked Person” means (i) a “terrorist group” as defined for the
purposes of Part II.1 of the Criminal Code (Canada), as amended or (ii) a Person
identified in or pursuant to (w) Part II.1 of the Criminal Code (Canada), as
amended or (x) the Proceeds of Crime (Money Laundering) and Terrorist Finance
Act, as amended or (y) the Justice for Victims of Corrupt Foreign Officials Act
(Sergei Magnitsky Law), as amended or (z) regulations or orders promulgated
pursuant to the Special Economic Measures Act (Canada), as amended, the United
Nations Act (Canada), as amended, or the Freezing Assets of Corrupt Foreign
Officials Act (Canada), as amended, in any case pursuant to this clause (ii) as
a Person in respect of whose property or benefit a holder of Notes would be
prohibited from entering into or facilitating a related financial
transaction.

 

“Capital
Lease” shall mean, with respect to any Person, any lease of, or other
arrangement conveying the right to use, any property by such Person as lessee
that has been or should be accounted for as a capital lease on a balance sheet
of such person prepared in accordance with GAAP as in effect prior to giving
effect to the adoption of ASU No. 2016-02 “Leases (Topic 842)” and ASU No.
2018-11 “Leases (Topic 842)”.

 

“Capital
Lease Obligations” shall mean, with respect to any Person, the
obligations of such Person to pay rent or other amounts under any Capital Lease,
any lease entered into as part of any Sale and Leaseback or any Synthetic Lease,
or a combination thereof, which obligations are (or would be, if such Synthetic
Lease or other lease were accounted for as a Capital Lease) required to be
classified and accounted for as Capital Leases on a balance sheet of such person
under GAAP as in effect prior to giving effect to the adoption of ASU No.
2016-02 “Leases (Topic 842)” and ASU No. 2018-11 “Leases (Topic 842)”, and the
amount of such obligations shall be the capitalized amount thereof (or the
amount that would be capitalized, if such Synthetic Lease were accounted for as
a Capital Lease) determined in accordance with GAAP.

 

“Cash
Equivalents” shall mean, as at any date of determination, any of the
following:

 

(a)marketable
securities (i) issued or directly and unconditionally guaranteed as to
interest and principal by the government of the United States of America or
(ii) issued by any agency of the United States of America and the
obligations of which are backed by the full faith and credit of the United
States of America, in each case maturing within one year from the date of
acquisition;

 

(b)marketable
direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof,
in each case maturing within one year after the date of acquisition and having a
rating of at least A-1 from S&P or at least P-1 from Moody’s;

 

(c)certificates
of deposit, time deposits, Eurodollar time deposits or overnight bank deposits
having maturities of six months or less from the date of acquisition issued by
any Lender or by any commercial bank organized under the laws of the United
States of America or any state thereof or the District of Columbia that
(i) is at least “adequately capitalized” (as defined in the regulations of
its primary Federal banking regulator), (ii) has Tier 1 capital (as defined
in such regulations) of not less than $1,000,000,000 and (iii) has a rating
of at least AA- from S&P and Aa3 from Moody’s;

 





7



 


 

(d)commercial
paper of an issuer rated at least A-1 by S&P or P-1 by Moody’s, or carrying
an equivalent rating by a nationally recognized rating agency, if both of the
two named rating agencies cease publishing ratings of commercial paper issuers
generally, and maturing within six months from the date of acquisition;

 

(e)securities
with maturities of one year or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States of
America, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of which
state, commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A by
Moody’s;

 

(f)
 securities with maturities of six months or less from the date of acquisition
backed by standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (c) of this definition;
and

 

(g)shares
of money market, mutual or similar funds which (i) invest exclusively in
assets satisfying the requirements of clauses (a) through
(f) of this definition; (ii) has net assets of not less than
$500,000,000 and (iii) has the highest rating obtainable from either
S&P or Moody’s.

 

“Change
in Law” shall mean the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty
or in the administration, interpretation, implementation or application thereof
by any Governmental Authority or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) by any
Governmental Authority; provided that, notwithstanding anything herein to
the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection
Act and all requests, rules, guidelines or directives thereunder or issued in
connection therewith and (y) all requests, rules, guidelines or directives
promulgated by the Bank for International Settlements, the Basel Committee on
Banking Supervision (or any successor or similar authority) or United States or
foreign regulatory authorities, in each case pursuant to Basel III, shall
in each case be deemed to be a “Change in Law”, regardless of the date enacted,
 adopted or issued.

 

“Change
of Control” shall mean the occurrence of any of the following
events:

 

(a)any
Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the
Exchange Act) shall have (x) acquired beneficial ownership or control of
35% or more on a fully diluted basis of the voting and/or economic interest in
the Equity Interests of Ultimate Parent; or (y) obtained the power (whether or
not exercised) to elect a majority of the members of the board of directors (or
similar governing body) of Ultimate Parent;

 

(b)(i)
 Ultimate Parent shall cease to beneficially own and control directly 100% on a
fully diluted basis of each class of outstanding Equity Interests of the Primary
Guarantor;

 

(ii)
the
 Primary Guarantor shall cease to beneficially own and control directly 100% on
a fully diluted basis of each class of outstanding Equity Interests of the
Borrower; or

 

(iii)
 the Borrower shall cease to beneficially own and control directly 100% on a
fully diluted basis of each class of outstanding Equity Interests of each of the
BR Advisory OpCos and each of the Borrowing Base Loan Parties;

 





8



 


 

(c)any
“change of control” or similar event (however denominated) shall occur under any
indenture or other agreement with respect to Material Indebtedness of Ultimate
Parent or any Subsidiary thereof.

 

“Class”
(a) when used with respect to any Lender, refers to whether such Lender has
a Loan or Commitment with respect to a particular Class of Loans or Commitments,
(b) when used with respect to Commitments, refers to whether such
Commitments are Revolving Commitments or Term Loan Commitments and (c) when
used with respect to Loans, refers to whether such Loans are Revolving Loans or
Term Loans.

 

“Closing
Date” shall mean June 23, 2021.

 

“Code”
shall mean the Internal Revenue Code of 1986, as amended.

 

“Collateral”
shall mean (i) all Property of the BR Advisory Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document, but in any event excluding Excluded Assets and (ii) the Equity
Interests in the Borrower.

 

“Collateral
Agent” shall have the meaning set forth in the recitals hereto.

 

“Commitment”
shall mean, with respect to any Lender, such Lender’s Term Loan Commitment or
Revolving Commitment.

 

“Commitment
Fee” shall have the meaning set forth in Section
2.08(a).

 

“Commitment
Fee Rate” shall mean, for any day, 1.00% per annum; provided,
that on and after the first day of each fiscal quarter, commencing with the
first fiscal quarter ending June 30, 2021, the Commitment Fee Rate shall be
determined based on the Average Utilization for the immediately preceding fiscal
quarter (or portion thereof since the Closing Date in the case of the first such
date) in accordance with the following grid (and shall remain in effect until
the next change to be effected pursuant to this definition):

 

	Average
      Utilization	Commitment
      Fee Rate
	<
      33%	1.00%
	>33%
      and < 66%	0.75%
	>
      66%	0.50%


 

“Commodity
Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1
et seq.), as amended from time to time, and any successor statute.

 

“Compliance
Certificate” shall mean a certificate duly executed by a Responsible
Officer of the Borrower, substantially in the form of
Exhibit A.

 

“Contractual
Obligation” shall mean, with respect to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.

 





9



 


 

“Control”
shall mean the 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 or by contract or otherwise.
“Controlling” and “Controlled” have meanings
correlative thereto.

 

“Controlled
Account” shall mean a Deposit Account or Securities Account subject to
an Account Control Agreement pursuant to Section 5.15.

 

“Credit
Extension” shall mean the making of a Loan (but not any
continuation or conversion thereof).

 

“Credit
Asset” shall mean a commercial loan or bonds owned by a Borrowing Base
Loan Party.

 

“Credit
Asset Collections” shall mean all cash collections, distributions,
payments or other amounts received, or to be received, by the Borrowing Base
Loan Party from any Person in respect of any Credit Asset constituting
Collateral, including all principal, interest, fees, distributions, recoveries
and redemption and withdrawal proceeds payable to the Borrowing Base Loan Party
under or in connection with any such Credit Assets and all Proceeds from any
sale or disposition of any such Credit Assets, but excluding:

 

(a)any
amounts received by the Borrowing Base Loan Party from a Credit Asset Obligor or
any other party obligated to make payments in respect of such Credit Asset
following the sale of a Credit Asset by the Borrowing Base Loan Party that the
Borrowing Base Loan Party is required to pay to the purchaser of such Credit
Asset so long as such amounts are not included in the net proceeds reported to
be received by the Borrowing Base Loan Party from such sale; and

 

(b)any
amounts in respect of indemnities received by the Borrowing Base Loan Party but
owing to parties other than such Borrowing Base Loan Party in accordance with
the applicable Credit Asset Documents for any such Credit Asset.

 

“Credit
Asset Collateral” shall mean, with respect to a Credit Asset, any
property or other assets designated and pledged or mortgaged as collateral to
secure repayment of such Credit Asset.

 

“Credit
Asset Document Checklist” means an electronic or hard copy list
delivered by the Borrowing Base Loan Party to the Administrative Agent that
identifies each of the documents that is in the Borrowing Base Loan Party’s
possession (or that may be readily obtained by the Borrowing Base Loan Party)
and contained in each Credit Asset File and whether such document is an original
or a copy and whether a hard copy or electronic copy will be delivered to the
Administrative Agent related to a Credit Asset and includes the name of the
Credit Asset Obligor with respect to such Credit Asset.

 

“Credit
Asset Documents” shall mean, with respect to a Credit Asset, the
document or documents evidencing the commercial loan agreement or facility
pursuant to which such Credit Asset is made; any promissory notes, if any,
executed by a Credit Asset Obligor evidencing such Credit Asset and all other
agreements or documents evidencing, securing, governing or giving rise to such
Credit Asset.

 

“Credit
Asset File” shall mean, with respect to each Credit Asset delivered,
each of the Credit Asset Documents in the applicable Borrowing Base Loan Party’s
possession (or that may be readily obtained by the Borrowing Base Loan Party)
and in original or copy as identified on the related Credit Asset Document
Checklist, and any other document delivered in connection therewith.

 

“Credit
Asset Obligor” shall mean, in respect of any Credit Asset, any Person
obligated to pay Credit Asset Collections in respect of such Credit Asset,
including any applicable guarantors.

 





10



 


 

“Credit
Facilities” shall mean each of (a) the Term Loan Commitments and
the Term Loans made thereunder (the “Term Loan Facility”) and
(b) the Revolving Commitments and the extensions of credit made thereunder
(the “Revolving Facility”).

 

“Daily
Simple SOFR” means, for any day, SOFR, with the conventions for this
rate (which will include a lookback) being established by the Administrative
Agent in accordance with the conventions for this rate recommended by the
Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated
business loans; provided, that if the Administrative Agent decides that
any such convention is not administratively feasible for the Administrative
Agent, then the Administrative Agent may establish another convention in its
reasonable discretion.

 

“Debtor
Relief Laws” shall mean the Bankruptcy Code, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization or similar
debtor relief laws of the United States of America or other applicable
jurisdictions from time to time in effect.

 

“Default”
shall mean any event, occurrence or condition which is, or upon notice, lapse of
time or both would constitute, an Event of Default.

 

“Defaulted
Loan” shall mean any Credit Asset:

 

(a)(i)
with respect to which a default as to the payment of principal and/or interest
has occurred and is continuing or (ii) to the extent such Credit Asset contains
a financial covenant, with respect to which a default as to such financial
covenant has occurred and is continuing, in each case, for more than 30
consecutive days;

 

(b)with
respect to which a default as to the payment of principal and/or interest has
occurred and is continuing for more than 30 consecutive days with respect to
another full recourse debt obligation of the same Underlying Obligor with a
principal amount in excess of the Threshold Amount secured by the same
collateral as such Credit Asset and which is senior to, or pari passu with, such
Credit Asset in security or priority of payment;

 

(c)with
respect to which the Credit Asset Obligor thereunder has become subject to
proceeding under Debtor Relief Laws;

 

(d)with
respect to which there has been effected any distressed exchange or other
distressed debt restructuring where the Credit Asset Obligor of such Credit
Asset has offered the holder or holders thereof a new security or package of
securities that, in the reasonable business judgment of the Administrative
Agent, amounts to a diminished financial obligation; or

 

(e)with
respect to which the administrative agent, collateral agent or other secured
parties in respect thereof have commenced foreclosure proceedings, accelerated
the Credit Asset or otherwise exercised remedies with respect to material
portions of the applicable Credit Asset Collateral.

 

“Defaulting
Lender” shall mean, subject to Section 2.22(b), any Lender
that

 

(a)has
failed to (i) fund all or any portion of its Loans within two Business Days
of the date such Loans were required to be funded hereunder unless such Lender
notifies the Administrative Agent and the Borrower in writing that such failure
is the result of such Lender’s determination that one or more conditions
precedent to funding (each of which conditions precedent, together with any
applicable default, shall be specifically identified in such writing) has not
been satisfied, or (ii) pay to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within two Business Days of
the date when due,

 





11



 


 

(b)has
notified the Borrower and the Administrative Agent in writing that it does not
intend to comply with its funding obligations hereunder, or has made a public
statement to that effect (unless such writing or public statement relates to
such Lender’s obligation to fund a Loan hereunder and states that such position
is based on such Lender’s determination that a condition precedent to funding
 (which condition precedent, together with any applicable default, shall be
specifically identified in such writing or public statement) cannot be
satisfied),

 

(c)has
failed, within three Business Days after written request by the Administrative
Agent or the Borrower, to confirm in writing to the Administrative Agent and the
Borrower that it will comply with its prospective funding obligations hereunder
(provided that such Lender shall cease to be a Defaulting Lender pursuant
to this clause (c) upon receipt of such written confirmation
 by the Administrative Agent and the Borrower) or

 

(d)has,
or has a direct or indirect parent company that has, (i) become the subject
of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a
receiver, custodian, conservator, trustee, administrator, assignee for the
benefit of creditors or similar Person charged with reorganization or
liquidation of its business or assets, including the Federal Deposit Insurance
Corporation or any other state or federal regulatory authority acting in such a
capacity; provided that a Lender shall not be a Defaulting Lender solely
by virtue of the ownership or acquisition of any equity interest in that Lender
or any direct or indirect parent company thereof by a Governmental Authority so
long as such ownership interest does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States of America or
from the enforcement of judgments or writs of attachment on its assets or permit
such Lender (or such Governmental Authority) to reject, repudiate, disavow or
disaffirm any contracts or agreements made with such Lender.

 

Any
determination by the Administrative Agent that a Lender is a Defaulting Lender
under any one or more of clauses (a) through
(d) above shall be conclusive and binding absent manifest error
and such Lender shall be deemed to be a Defaulting Lender (subject to
Section 2.22(b)) upon delivery of written notice of such
determination to the Borrower and each Lender.

 

“Deposit
Account” shall mean a demand, time, savings, passbook or like account
with a bank, savings and loan association, credit union or like organization,
 excluding, for the avoidance of doubt, any investment property (within the
meaning of the UCC) or any account evidenced by an instrument (within the
meaning of the UCC).

 

“Designated
Exchange” shall mean any of The New York Stock Exchange, the NYSE MKT,
The Nasdaq Global Market, The Nasdaq Global Select Market or the Nasdaq Capital
 Market, or (in each case) any successor thereto.

 

“Disposition”
shall mean, with respect to any Property, any sale, lease, sublease, assignment,
conveyance, transfer, exclusive license or other disposition thereof (including
(i) by way of merger or consolidation, (ii) any Sale and Leaseback and
(iii) any Synthetic Lease); and the terms “Dispose” and
“Disposed of” shall have correlative meanings.

 

“Disqualified
 Equity Interests” shall mean any Equity Interests that, by their terms
(or by the terms of any security or other Equity Interests into which they are
convertible or for which they are exchangeable), or upon the happening of any
event or condition,

 





12



 


 

(a)require
the scheduled payment of dividends in cash,

 

(b)mature
or are mandatorily redeemable or subject to mandatory repurchase or redemption
or repurchase at the option of the holders thereof (other than solely for
Qualified Equity Interests and customary cash outs of fractional interests), in
each case in whole or in part and whether upon the occurrence of any event,
pursuant to a sinking fund obligation on a fixed date or otherwise (including as
the result of a failure to maintain or achieve any financial performance
standards) or

 

(c)are
or become convertible into or exchangeable for, automatically or at the option
of any holder thereof, any Indebtedness or any other Equity Interests that would
constitute Disqualified Equity Interests, in the case of each of
clauses (a), (b) and (c), prior
to the date that is 91 days after the Latest Maturity Date at the time of
issuance of such Equity Interests (other than (i) following or conditioned
on the prior Payment in Full or (ii) upon a “change in control”, asset
 sale, casualty event or other event; provided that any payment
required pursuant to this clause (ii) is subject to the prior
Payment in Full; provided, however, that if such
Equity Interests are issued to any employee or to any plan for the benefit of
employees of the Primary Guarantor or its Subsidiaries or by any such plan to
such employees, such Equity Interests shall not constitute Disqualified Equity
Interests solely because they may be required to be repurchased by a Group
 Member in order to satisfy applicable statutory or regulatory obligations or as
a result of such employee’s termination, death or disability.

 

“Dollars”
or “$” shall mean lawful money of the United States of
America.

 

“Domestic
Subsidiary” shall mean (i) any Subsidiary that is organized under the
laws of the United States, any state thereof or the District of Columbia or (ii)
any direct wholly-owned Subsidiary of Ultimate Parent or of any Subsidiary
described in clause (i) above that is disregarded for U.S. tax purposes.

 

“DTC”
shall mean The Depository Trust Company or its successor.

 

“DTC
Shares” shall mean Public Equities that are registered in the name of
DTC or its nominee, maintained in the form of book entries on the books of DTC,
and are allowed to be settled through DTC’s regular book-entry settlement
services.

 

“Early
 Opt-in Effective Date” means, with respect to any Early Opt-in
Election, the sixth (6th)
 Business Day after the date notice of such Early Opt-in Election is provided to
the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m.
(New York City time) on the fifth (5th) Business Day after the date notice of
such Early Opt-in Election is provided to the Lenders, written notice of
objection to such Early Opt-in Election from Lenders comprising the Required
Lenders.

 

“Early
Opt-in Election” means the occurrence of:

 

(a)a
notification by the Administrative Agent to (or the request by the Borrower to
the Administrative Agent to notify) each of the other parties hereto that at
least five currently outstanding U.S. dollar-denominated syndicated credit
facilities at such time contain (as a result of amendment or as originally
executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based
upon SOFR) as a benchmark rate (and such syndicated credit facilities are
identified in such notice and are publicly available for review), and

 

(b)the
joint election by the Administrative Agent and the Borrower to trigger a
fallback from Eurodollar and the provision by the Administrative Agent of
written notice of such election to the Lenders.

 





13



 


 

“Eligible
Assignee” shall mean any Person that meets the requirements to be an
assignee under Section 9.06(b)(iii), Section
9.06(b)(v) and Section 9.06(b)(vi) (subject
to such consents, if any, as may be required under Section
9.06(b)(iii)).

 

“Eligible
Credit Assets” shall mean all Credit Assets of a Borrowing Base Loan
Party reflected in the most recently delivered Borrowing Base Certificate,
except Credit Assets with respect to which any of the exclusionary criteria set
forth below applies (except in the case of an applicable Approved Asset). No
Credit Asset shall be an Eligible Credit Asset if (except in the case of an
applicable Approved Asset):

 

(a)the
applicable Borrowing Base Loan Party does not have good and valid title to such
Credit Asset, free and clear of any Lien (other than non-consensual Permitted
Liens, Liens securing the Obligations hereunder and Liens in favor of a bank,
intermediary or custodian or similar entity arising in connection with any
Deposit Account or Securities Account);

 

(b)the
Collateral Agent’s Lien on such Credit Asset, for the benefit of itself and the
other Secured Parties, is not a valid first priority perfected Lien (subject to
non-consensual Permitted Liens and Liens in favor of a bank, intermediary or
custodian or similar entity arising in connection with any Deposit Account or
Securities Account, in each case, as to which the Administrative Agent shall
 establish a Reserve);

 

(c)any
of the representations or warranties in the Loan Documents with respect to such
Credit Asset are untrue or inaccurate in any material respect (or, with respect
to representations or warranties that are qualified by materiality, any of such
representations and warranties are untrue or inaccurate);

 

(d)such
Credit Asset, (i) is a Structured Finance Obligation, a revolving loan, a letter
of credit or bank guarantee, a construction loan, a project finance loan or a
participation or a commitment to provide a Credit Asset (or otherwise results in
the imposition of an obligation to fund future advances or payments to the
Credit Asset Obligor by the Borrowing Base Loan Party (or otherwise imposes
present or future, actual or contingent, monetary liabilities or obligations
upon the Borrowing Base Loan Party)) or (ii) the Credit Asset Collateral in
respect of such Credit Asset is principally real property or Margin Stock;

 

(e)such
Credit Asset, had an original term to maturity of more than five years and has a
current term to maturity of more than three years;

 

(f)such
 Credit Asset, (i) is a Defaulted Loan, (ii) permits the capitalization of
periodic interest as principal (unless such Credit Asset also requires cash-pay
interest of at least 4.00% per annum) or does not require interest payments at
least semi-annually, (iii) without the consent of the Administrative Agent in
its Reasonable Credit Judgment, has been amended pursuant to an amendment
 intended to waive or avoid a default or event of default, that delays or
reduces payments of interest or principal or modifies any financial covenant or
any other amendment entered into in contemplation of the exclusionary criteria
set forth in this definition of “Eligible Credit Assets”, (iv) is subject to any
pending or threatened litigation or right or claim of rescission, set-off,
netting, counterclaim or defense on the part of the related Credit Asset Obligor
or (v) is unsecured and subordinated;

 

(g)such
Credit Asset, is not in “registered” form or does not constitute indebtedness
for U.S. federal income tax purposes;

 





14



 


 

(h)such
Credit Asset is not capable of being transferred pursuant to customary
documentation to and owned by the Borrowing Base Loan Party (whether directly or
by means of a security entitlement) and of being pledged, assigned or novated by
the owner thereof or of an interest therein, subject to customary restrictions
for assets of the type constituting the Credit Assets (1) to the Collateral
Agent, (2) to any assignee of the Collateral Agent permitted or contemplated
under this Agreement, (3) to any Person at any foreclosure or strict foreclosure
sale or other disposition initiated by a secured creditor in furtherance of its
security interest and (4) to commercial banks, financial institutions, offshore
and other funds (in each case, including transfer permitted by operation of the
UCC);

 

(i)
the
 Credit Asset Documents in respect of such Credit Asset (i) are not governed by
the laws of the United States (or the states thereof), (ii) do not constitute
the legal, valid and binding obligations of the related Credit Asset Obligor
thereunder and each guarantor thereof, enforceable against such Person in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors’ rights generally or general principles of
equity, regardless of whether considered in a proceeding in equity or at law,
(iii) are illegal or unenforceable (or the Credit Asset Obligor, a Governmental
Authority or any other party, has alleged such illegality or unenforceability),
(iv) contain restrictions on transfer which materially limit potential
transferees (other than any such restrictions customary for assets of the type
constituting Credit Assets), (v) contain confidentiality provisions that would
 prohibit the Administrative Agent, the Collateral Agent or the Lenders from
accessing or receiving all material obligor information with regards to such
Credit Asset (subject to customary confidentiality provisions) or (vi) subjects
the Borrowing Base Loan Party to withholding tax, fee or governmental charge
unless the Credit Asset Obligor is required to make “gross-up” payments
 constituting 100% of such withholding tax, fee or governmental charge on an
after-tax basis;

 

(j)
if a
Credit Asset Obligor in respect of such Credit Asset (i) is not a business
entity (and not a natural person) duly organized and validly existing under the
laws of its jurisdiction of organization (and in the case of the primary
borrower in respect of such Credit Asset, such jurisdiction of organization is
not the United States), (ii) is not a legal operating entity or holding company,
 (iii) is a Governmental Authority or (iv) unless approved by the Administrative
Agent in its Reasonable Credit Judgment, is an Affiliate of the Ultimate
Parent;

 

(k)such
Credit Asset Collateral in respect of such Credit Asset, to the actual knowledge
of the Borrowing Base Loan Party, has been used by the related Credit Asset
Obligor (or any parent entity, subsidiary or Affiliate thereof) in any manner or
for any purpose that would result in any material risk of liability being
imposed upon the Administrative Agent, the Borrowing Base Loan Party or any
Secured Party under any applicable law (as determined by such party in its
reasonable discretion);

 

(l)
the
 acquisition thereof (i) would (A) violate any Applicable Law on the date of
acquisition by the Borrowing Base Loan Party, (B) violate any Applicable Law in
any manner which would reasonably be expected to materially and adversely impact
the value thereof on any date after the date of acquisition by the Borrowing
Base Loan Party or (C) to the actual knowledge of a Responsible Officer of the
Borrowing Base Loan Party or the Administrative Agent, cause the Administrative
Agent or any Lender to fail to comply with any request or directive from any
banking authority or governmental entity having jurisdiction over the
Administrative Agent or such Lender or (ii) would cause the Borrowing Base Loan
Party to be required to register as an “investment company” under Section 8
of the Investment Company Act;

 

(m)the
Borrowing Base Loan Party does not have all necessary all franchises, permits,
licenses, approvals, consents and other authorizations of all Governmental
Authorities or otherwise necessary to acquire and own such Credit Asset and
enter into the Credit Asset Documents with respect to such Credit Asset;

 





15



 


 

(n)the
Administrative Agent has not received the Credit Asset File in respect of such
Credit Asset;

 

(o)any
information provided by the Borrowing Base Loan Party (or its behalf) to the
Administrative Agent in writing with respect to such Credit Asset is not true,
complete and correct in all material respects as of the date such information is
provided; or

 

(p)such
Credit Asset is subject to a Restricted Transaction.

 

“Eligible
First Lien Credit Assets” shall mean any Eligible Credit Asset that is
secured by all or substantially all of the personal and other property (subject
to customary exceptions) of the obligors and guarantors in respect of such
Eligible Credit Asset on a valid, perfected first-priority basis (and is not
subject to an intercreditor agreement whereby the Lien on the collateral
securing such Eligible Credit Asset is subordinated to another Lien).

 

“Eligible
Private Assets” shall mean all Private Assets of a Borrowing Base Loan
Party reflected in the most recently delivered Borrowing Base Certificate,
except Private Assets with respect to which any of the exclusionary criteria set
forth below applies (except in the case of an applicable Approved Asset). No
Private Asset shall be an Eligible Private Asset if (except in the case of an
applicable Approved Asset):

 

(a)the
applicable Borrowing Base Loan Party does not have good and valid title to such
Private Asset, free and clear of any Lien (other than non-consensual Permitted
Liens, Liens securing the Obligations hereunder and Liens in favor of a bank,
intermediary or custodian or similar entity arising in connection with any
Deposit Account or Securities Account);

 

(b)the
Collateral Agent’s Lien on such Private Asset, for the benefit of itself and the
other Secured Parties, is not a valid first priority perfected Lien (subject to
non-consensual Permitted Liens and Liens in favor of a bank, intermediary or
custodian or similar entity arising in connection with any Deposit Account or
Securities Account, in each case, as to which the Administrative Agent shall
 establish a Reserve);

 

(c)any
of the representations or warranties in the Loan Documents with respect to such
Private Asset are untrue or inaccurate in any material respect (or, with respect
to representations or warranties that are qualified by materiality, any of such
representations and warranties are untrue or inaccurate);

 

(d)such
Private Asset, when combined with all other Equity Interests in the applicable
Issuer, does not constitute the majority voting or economic interests of the
Equity Interests in the applicable Issuer;

 

(e)such
Private Asset is subject to any Restricted Transaction;

 

(f)
 the Issuer of such Private Asset is an obligor under any debt obligation with a
principal amount in excess of the Threshold Amount (i) with respect to which a
default as to the payment of principal and/or interest has occurred and is
continuing or (ii) to the extent such debt obligation contains a financial
covenant, with respect to which a default as to such financial covenant has
 occurred and is continuing, in each chase for more than 30 days; or

 

(g)the
Issuer (or any material subsidiary thereof) has become subject to a proceeding
under Debtor Relief Laws.

 





16



 


 

“Eligible
Public Equities” shall mean all Public Equities of a Borrowing Base Loan
Party reflected in the most recently delivered Borrowing Base Certificate,
except Public Equities with respect to which any of the exclusionary criteria
set forth below applies (except in the case of an applicable Approved Asset). No
Public Equity shall be an Eligible Public Equity if (except in the case of an
applicable Approved Asset):

 

(a)the
applicable Borrowing Base Loan Party does not have good and valid title to such
Public Equity, free and clear of any Lien (other than non-consensual Permitted
Liens, Liens securing the Obligations hereunder and Liens in favor of a bank,
intermediary or custodian or similar entity arising in connection with any
Deposit Account or Securities Account);

 

(b)such
Public Equity is not held by the Borrower in a Controlled Account or the
Collateral Agent’s Lien on such Public Equity, for the benefit of itself and the
other Secured Parties, is not a valid first priority perfected Lien (subject to
non-consensual Permitted Liens and Liens in favor of a bank, intermediary or
custodian or similar entity arising in connection with any Deposit Account or
Securities Account, in each case, as to which the Administrative Agent shall
establish a Reserve);

 

(c)any
of the representations or warranties in the Loan Documents with respect to such
Public Equity are untrue or inaccurate in any material respect (or, with respect
to representations or warranties that are qualified by materiality, any of such
representations and warranties are untrue or inaccurate);

 

(d)the
Market Capitalization of the Issuer is less than $150,000,000;

 

(e)such
Public Equity is not listed a Designated Exchange;

 

(f)such
 Public Equity is not any of (i) a Book-Entry Share, (ii) a DTC Share with an
unrestrictive CUSIP or (iii) a warrant (x) where the corresponding Public Equity
for which such warrant is exercisable would otherwise qualify as an Eligible
Public Equity (without giving effect to clauses (a), (b) or (c) of this
definition) and (y) the exercise of which is not subject to any contingency or
 condition;

 

(g)such
Public Equity is subject to (A) any Transfer Restriction, except Approved
Transfer Restrictions or otherwise approved by the Administrative Agent, (B) any
Lien (other than Permitted Liens) or (C) any Restricted Transaction; or

 

(h)such
Public Equity is not duly authorized, validly issued, fully paid and
non-assessable.

 

“Eligible
Subordinated Credit Assets” shall mean any Credit Asset that would be an
“Eligible Credit Asset” but for the application of clauses (e),
(f)(ii) and (f)(v) thereof.

 

“Environmental
 Laws” shall mean any and all laws, rules, orders, regulations,
statutes, ordinances, binding guidelines, codes, decrees, or other legally
binding requirements (including, without limitation, principles of common law)
of any Governmental Authority, regulating, relating to or imposing liability or
standards of conduct concerning pollution, the preservation or protection of the
environment, natural resources or human health (including employee health and
safety) as it relates to exposure to Materials of Environmental Concern, or the
 generation, manufacture, use, labeling, treatment, storage, handling,
transportation or release of, or exposure to, Materials of Environmental
 Concern, as has been, is now, or may at any time hereafter be, in effect.

 





17



 


 

“Environmental
 Liability” shall mean any liability, contingent or otherwise (including
any liability for damages, costs of environmental remediation, fines, penalties,
reasonable attorney or consultant fees or indemnities) resulting from or based
upon (a) non-compliance with any Environmental Law or any Environmental
Permit, (b) exposure to any Materials of Environmental Concern,
(c) Release or threatened Release of any Materials of Environmental
Concern, (d) any investigation, remediation, removal, clean-up or
monitoring required under Environmental Laws or required by a Governmental
Authority (including without limitation Governmental Authority oversight costs
that the party conducting the investigation, remediation, removal, clean-up or
monitoring is required to reimburse) or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.

 

“Environmental
 Permits” shall mean any and all Permits required under any
Environmental Law.

 

“Equity
Interest” shall mean, with respect to any Person, any and all shares,
interests, rights to purchase, warrants, options, participations or other
 equivalents, including membership interests (however designated, whether voting
or nonvoting), of equity of such Person, including, if such Person is a
partnership, partnership interests (whether general or limited), if such Person
is a limited liability company, membership interests, and any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of property of, such partnership,
whether outstanding on the date hereof or issued on or after the Closing Date,
but excluding debt securities convertible or exchangeable into such equity
interests.

 

“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended from
time to time, the regulations promulgated thereunder and any successor
thereto.

 

“ERISA
Affiliate” shall mean any trade or business (whether or not
incorporated) that, together with any Group Member, is treated as a single
employer under Section 414(b) or (c) of the Code, or solely for purposes of
Section 302 or 303 of ERISA or Section 412 or 430 of the Code, is
treated as a single employer under Section 414 of the Code. Any former
ERISA Affiliate of the Group Members shall continue to be considered an ERISA
Affiliate of the Group Members within the meaning of this definition with
respect to the period such entity was an ERISA Affiliate of any Group Member and
with respect to liabilities arising after such period for which any Group Member
could be liable under the Code or ERISA.

 

“ERISA
Event” shall mean

 

(a)a
“reportable event” within the meaning of Section 4043 of ERISA and the
regulations issued thereunder with respect to any Single Employer Plan
(excluding those for which the provision for 30 day notice to the PBGC has been
waived by regulation in effect on the date hereof);

 

(b)the
failure to meet the minimum funding standard of Sections 412 or 430 of the
Code or Sections 302 or 303 of ERISA with respect to any Single Employer
Plan, whether or not waived;

 

(c)the
filing pursuant to Section 412(c) of the Code or Section 302(c) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Single Employer Plan;

 

(d)the
termination of any Single Employer Plan or the withdrawal or partial withdrawal
of any Group Member from any Single Employer Plan or Multiemployer Plan;

 

(e)a
determination that any Single Employer Plan is, or is expected to be, in “at
risk” status (as defined in Section 430 of the Code or Section 303 of
ERISA);

 





18



 


 

(f)
 a determination that any Multiemployer Plan is, or is expected to be, in
“critical” or “endangered” status under Section 432 of the Code or
Section 305 of ERISA;

 

(g)the
receipt by any Group Member or any of their respective ERISA Affiliates from the
PBGC or a plan administrator of any notice relating to an intention to terminate
any Single Employer Plan or to appoint a trustee to administer any Single
Employer Plan;

 

(h)the
adoption of any amendment to a Single Employer Plan that would require the
provision of security pursuant to Section 436(f) of the Code;

 

(i)the
receipt by any Group Member or any of their respective ERISA Affiliates of any
notice, or the receipt by any Multiemployer Plan from any Group Member or any of
their respective ERISA Affiliates of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent, within the meaning of Title IV of ERISA;

 

(j)
 the failure by any Group Member or any of their respective ERISA Affiliates to
make a required contribution to a Multiemployer Plan;

 

(k)the
occurrence of a nonexempt prohibited transaction (within the meaning of
Section 4975 of the Code or Section 406 of ERISA) which would
reasonably be expected to result in material liability to any Group Member;

 

(l)the
 receipt from the IRS of notice of disqualification of any Plan intended to
qualify under Section 401(a) of the Code, or the disqualification of any
trust forming part of any Plan intended to qualify for exemption from taxation
under Section 501(a) of the Code;

 

(m)the
imposition of a lien pursuant to Section 430(k) of the Code or
Section 303(k) of ERISA or a violation of Section 436 of the Code with
respect to any Single Employer Plan;

 

(n)the
assertion of a material claim (other than routine claims for benefits) against
any Plan other than a Multiemployer Plan or the assets thereof, or against any
Group Member or any of their respective ERISA Affiliates in connection with any
Plan; or

 

(o)the
occurrence of an act or omission which could give rise to the imposition on any
Group Member or any of their respective ERISA Affiliates of any fine, penalty,
tax or related charge under Chapter 43 of the Code or under Section 409, Section
502(c), (i) or (l), or Section 4071 of ERISA in respect of any Plan.

 

“Erroneous
Payment” has the meaning assigned to it in Section
8.11(a).

 

“Erroneous
Payment Deficiency Assignment” has the meaning assigned to it in
Section 8.11(d).

 

“Erroneous
Payment Impacted Class” has the meaning assigned to it in Section
8.11(d).

 

“Erroneous
Payment Return Deficiency” has the meaning assigned to it in
Section 8.11(d).

 

“Erroneous
Payment Subrogation Rights” has the meaning assigned to it in
Section 8.11(d).

 





19



 


 

“Eurodollar
Base Rate” shall mean, with respect to any Eurodollar Loan for any
Interest Period, the London interbank offered rate as administered by ICE
Benchmark Administration (or any other Person that takes over the administration
of such rate for U.S. Dollars for a period equal in length to such Interest
Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that
displays such rate (or, in the event such rate does not appear on a Reuters page
or screen, on any successor or substitute page on such screen that displays such
rate, or on the appropriate page of such other information service that
publishes such rate from time to time as selected by the Administrative Agent in
its reasonable discretion) (in each case, the “LIBO Screen Rate”)
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period; provided that, if the LIBO Screen
Rate shall be less than zero, such rate shall be deemed to be zero for the
purposes of this Agreement; provided, further, that, if the LIBO
 Screen Rate shall not be available at such time for such Interest Period (an
“Impacted Interest Period”) then the Eurodollar Base Rate shall be
the Interpolated Rate; provided that, if any Interpolated Rate shall be
less than zero, such rate shall be deemed to be zero for purposes of this
Agreement.

 

“Eurodollar
Loan” shall mean a Loan bearing interest at a rate determined by
reference to the Eurodollar Rate.

 

“Eurodollar
Rate” shall mean, with respect to any Eurodollar Loan for any Interest
Period, a per annum rate of interest (rounded upward, if necessary, to
the next 1/100th of 1.00%) equal to the greater of
(a) (i) the Eurodollar Base Rate for such Interest Period
multiplied by (ii) the Statutory Reserve Rate and
(b) 0.00%.

 

“Eurodollar
Tranche” shall mean the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on the same
 date and end on the same later date (whether or not such Loans shall originally
have been made on the same day).

 

“Event
of Default” shall mean any of the events specified in
Section 7.01; provided that any requirement for the
giving of notice, the lapse of time, or both, has been satisfied.

 

“Excess
Concentration Amount” shall mean the amount by which before giving
effect to such deduction, the contribution of each Underlying Obligor to the
Asset Portfolio Component of the Borrowing Base exceeds:

 

(a)in
the case of the Underlying Obligor whose contribution to the Asset Portfolio
Component is the largest, 20% of the Asset Portfolio Component,

 

(b)in
the case of the Underlying Obligors whose contributions to the Asset Portfolio
Component are the second and third largest, 15% of the Asset Portfolio
Component,

 

(c)in
the case of the Underlying Obligors whose contributions to the Underlying
Obligor Borrowing Base Component are the fourth and fifth largest, 12.5% of the
Asset Portfolio Component and

 

(d)in
the case of any other Underlying Obligor, 10% of the Asset Portfolio
Component.

 

“Excess
Operating Cash” shall mean, as to any Person, internally generated cash
in excess of operating expenses of such Person as determined in accordance with
GAAP (excluding any Non-Ordinary Course Proceeds) and calculated in a manner
consistent with the calculation provided by the Borrower to the Administrative
Agent prior to the Closing Date.

 

“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.

 

“Excluded
Account” shall mean any Deposit Account or Securities Account owned by a
BR Advisory OpCo or BRF Finance Co.

 





20



 


 

(a)exclusively
used for payroll, payroll taxes, or other employee wage and benefit payments for
the benefit of any BR Advisory OpCo’s or Borrowing Base Loan Party’s employees
or that is a zero balance account,

 

(b)exclusively
used for the making of disbursements in satisfaction of accounts payable as such
accounts payable become due in the ordinary course of business and not for
purposes of maintaining a balance,

 

(c)accounts
in which the funds consist solely of funds held in trust or pursuant to
customary escrow or agency arrangements or

 

(d)containing
an average daily balance for any 30 day period equal to or less than
$500,000.

 

“Excluded
Assets” shall mean:

 

(a)any
fee owned Real Property, any leasehold rights and interests in Real Property and
any fixtures affixed to any Real Property to the extent a security interest in
such fixtures may not be perfected by the filing of a UCC financing statement in
the jurisdiction of organization (or other location of a grantor under Section
9-307 of the UCC) of the applicable grantor (other than proceeds of enforcement
 of a Credit Asset);

 

(b)commercial
tort claims where the amount of damages claimed by the applicable Loan Party is
less than $500,000;

 

(c)governmental
licenses, state or local franchises, charters and authorizations and any other
property and assets to the extent that the Administrative Agent may not validly
possess a security interest therein under applicable Requirements of Law or the
pledge or creation of a security interest in which would require governmental
consent, approval, license or authorization that has not been obtained or
consent of a third party that has not been obtained pursuant to any contract or
agreement binding on such asset at the time of its acquisition and not entered
into in contemplation of such acquisition, other than to the extent such
prohibition or limitation on possessing a security interest therein is rendered
ineffective under the UCC or other applicable Requirements of Law
notwithstanding such prohibition or limitation;

 

(d)any
lease, license, Permit or agreement to the extent that a grant of a security
interest therein (i) is prohibited by applicable Requirements of Law other
than to the extent such prohibition is rendered ineffective under the UCC or
other applicable Requirements of Law notwithstanding such prohibition or
(ii) to the extent and for so long as it would violate or invalidate the
terms thereof (in each case, after giving effect to the relevant provisions of
the UCC or other applicable Requirements of Law) or would give rise to a
 termination right of an unaffiliated third party thereunder or require consent
of an unaffiliated third party thereunder (except to the extent such provision
is overridden by the UCC or other Requirements of Law);

 

(e)any
intent-to-use trademark application prior to the filing of a “Statement of Use”
or “Amendment to Allege Use” with respect thereto and acceptance thereof by the
United States Patent and Trademark Office, to the extent, if any, that, and
solely during the period, if any, in which the grant of a security interest
therein would impair the validity or enforceability of or render void or
voidable, or result in the cancellation of, such intent-to-use trademark
application or any registration that may issue therefrom under applicable
federal law;

 

(f)
 (i) as-extracted collateral, (ii) timber to be cut, (iii) farm products, (iv)
manufactured homes and (v) healthcare insurance receivables;

 





21



 


 

(g)any
particular asset, if the pledge thereof or the security interest therein would
result in material adverse tax consequences to any grantor as reasonably
determined by the Borrower in good faith in consultation with the Administrative
Agent;

 

(h)letter-of-credit
rights not in excess of $500,000 or to the extent a security interest therein
cannot be perfected by the filing of UCC-1 financing statements;

 

(i)Excluded
 Equity Interests (as defined in the Guarantee and Collateral Agreement);
and

 

(j)
 particular assets if and for so long as, if reasonably agreed by the
Administrative Agent and the Borrower in writing, the cost of creating a pledge
or security interest in such assets exceed the fair market value thereof (as
determined by the Borrower in its reasonable judgement) or the practical
benefits to be obtained by the Lenders therefrom;

 

provided,
however, that Excluded Assets shall not include any proceeds,
substitutions or replacements of any Excluded Assets referred to in
clauses (a) through (i) (unless such Proceeds,
substitutions or replacements would independently constitute Excluded Assets
 referred to in clauses (a) through (i)) and no
Excluded Assets shall be included in the calculation of the Borrowing Base.

 

“Excluded
Perfection Assets” shall mean:

 

(a)motor
vehicles, airplanes and other assets subject to certificates of title or
ownership;

 

(b)letter
of credit rights, except to the extent constituting support obligations for
other Collateral as to which perfection of the security interest in such other
Collateral is accomplished solely by the filing of a UCC financing statement or
another method that is required by the Security Documents for such other
Collateral;

 

(c)particular
assets if and for so long as, if reasonably agreed by the Administrative Agent
and the Borrower, the cost of perfecting a pledge or security interest in such
assets exceed the practical benefits to be obtained by the Lenders
therefrom.

 

“Excluded
Subsidiaries”
shall mean 6 Brands, TreePeach Management LLC, B. Riley Advisory
Services de Mexico, S de RL and any Subsidiary of an Excluded Subsidiary.

 

“Excluded
Taxes” shall mean any of the following Taxes imposed on or with respect
to a Recipient or required to be withheld or deducted from a payment to a
Recipient: (a) Taxes imposed on or measured by net income (however
denominated), franchise Taxes and branch profits Taxes, in each case,
(i) imposed as a result of such Recipient being organized under the laws
of, or having its principal office or, in the case of any Lender, its applicable
lending office located in, the jurisdiction imposing such Tax (or any political
subdivision thereof) or (ii) that are Other Connection Taxes, (b) in
the case of a Lender, U.S. federal withholding Taxes imposed on amounts
 payable to or for the account of such Lender with respect to an applicable
interest in a Loan or Commitment pursuant to a law in effect on the date on
which (i) such Lender acquires such interest in the Loan or Commitment or
in this Agreement (other than pursuant to an assignment request by the Borrower
under Section 2.23) or (ii) such Lender changes its lending
office, except in each case to the extent that, pursuant to Section
2.19, amounts with respect to such Taxes were payable either to such
Lender’s assignor immediately before such Lender became a party hereto or to
such Lender immediately before it changed its lending office, (c) Taxes
 attributable to such Recipient’s failure to comply with Section
2.19(g) and (d) any U.S. federal withholding Taxes imposed
under FATCA.

 





22



 


 

“Executive
Order No. 13224” shall mean the Executive Order No. 13224 on Terrorist
Financing, effective September 24, 2001, as the same as been, or shall
hereafter be, renewed, extended, amended or replaced.

 

“FASB
ASC” shall mean the Accounting Standards Codification of the Financial
Accounting Standards Board.

 

“FATCA”
shall mean Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is substantively comparable
and not materially more onerous to comply with), any current or future
regulations or official interpretations thereof, any agreements entered into
pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory
legislation, rules or practices adopted pursuant to any intergovernmental
agreement, treaty or convention among Governmental Authorities and implementing
such Sections of the Code.

 

“Federal
Funds Effective Rate” shall mean, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided that (i) if
such day is not a Business Day, the Federal Funds Effective Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (ii) if no such rate is
so published on such next succeeding Business Day, the Federal Funds Effective
Rate for such day shall be the average rate charged to the Administrative Agent
on such day on such transactions as determined by the Administrative Agent.

 

“Fee
Letters” shall mean (a) the fee letter, dated as of the date hereof,
between the Borrower and the Administrative Agent and (b) the schedule of fees
of the Collateral Agent, accepted by the Borrower on June 8, 2021.

 

“Floor”
means the benchmark rate floor, if any, provided in this Agreement initially (as
of the execution of this Agreement, the modification, amendment or renewal of
this Agreement or otherwise) with respect to USD LIBOR.

 

“Foreign
Lender” shall mean a Lender that is not a U.S. Person.

 

“Foreign
Subsidiary” shall mean any direct or indirect Subsidiary of Ultimate
Parent that is not a Domestic Subsidiary.

 

“GAAP”
shall mean generally accepted accounting principles in the United States, as in
effect from time to time.

 

“Governmental
 Authority” shall mean the government of the United States of America 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 (including any supra-national bodies such as the European Union or
the European Central Bank).

 

“Governmental
 Authorization” shall mean any permit, license, authorization,
certification, registration, approval, clearance, plan, directive, marking,
consent order or consent decree of or from any Governmental Authority.

 

“Granting
Lender” shall have the meaning set forth in Section
9.06(f).

 





23



 


 

“Group
Member” shall mean each of Ultimate Parent and its Subsidiaries and
“Group Members” shall refer to each such Person, collectively.

 

“Guarantee
and Collateral Agreement” shall mean the Guarantee and Collateral
Agreement, dated as of the date hereof and executed and delivered by Ultimate
Parent, the Borrower, the Primary Guarantor, each other Guarantor, the
Administrative Agent and the Collateral Agent, as the same may be amended,
restated, amended and restated, supplemented or otherwise modified from time to
time.

 

“Guarantee
Obligation” shall mean, with respect to any Person (the
“guaranteeing person”), any obligation of (x) the
guaranteeing person or (y) another Person (including any bank under any
letter of credit), if to induce the creation of which the guaranteeing person
has issued a reimbursement, counterindemnity or similar obligation, in either
case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the “primary obligations”) of any other
third Person (the “primary obligor”) in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent,

 

(a)to
purchase any such primary obligation or any Property constituting direct or
indirect security therefor,

 

(b)to
advance or supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor,

 

(c)to
purchase Property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or

 

(d)otherwise
to assure or hold harmless the owner of any such primary obligation against loss
in respect thereof;

 

provided,
however, that the term “Guarantee Obligation” shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business, or customary and reasonable indemnity obligations in effect on the
Closing Date or entered into in connection with any acquisition or disposition
of assets permitted under this Agreement (other than such obligations with
respect to Indebtedness).

 

The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed to
be the lower of (1) an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Guarantee Obligation is made and
(2) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person’s
maximum reasonably anticipated liability in respect thereof as determined by the
 Borrower in good faith.

 

“Guarantors”
shall mean the collective reference to Ultimate Parent, Primary Guarantor, the
BR Advisory Loan Parties and each other Person who guarantees the Obligations or
is required to guarantee the Obligations pursuant to Section
5.12.

 

“Highest
Lawful Rate” shall mean the maximum lawful interest rate, if any, that
at any time or from time to time may be contracted for, charged, or received
under the laws applicable to any Lender which are presently in effect or, to the
extent allowed by law, under such applicable laws which may hereafter be in
effect and which allow a higher maximum non-usurious interest rate than
applicable laws now allow.

 





24



 


 

“Historical
Audited Financial Statements” shall mean the audited consolidated
balance sheets of Ultimate Parent and its Subsidiaries as at the end of the
fiscal years ended December 31, 2018, December 31, 2019 and December 31, 2020
and the related consolidated statements of income or operations, changes in
stockholders’ equity and cash flows for such fiscal years, including the notes
thereto.

 

“IFRS”
shall mean international accounting standards within the meaning of IAS
Regulation 1606/2002 to the extent applicable to the relevant financial
statements delivered under or referred to herein.

 

“Impacted
Interest Period” shall have the meaning set forth in the definition of
“Eurodollar Base Rate”.

 

“Indebtedness”
shall mean, 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, including seller notes or earn out obligations appearing as a
liability on such Person’s balance sheet in accordance with GAAP (other than
trade payables incurred in the ordinary course of such Person’s business),

 

(c)all
obligations of such Person evidenced by notes, bonds, debentures, loan
agreements or other similar instruments,

 

(d)all
indebtedness 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),
other than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business,

 

(e)all
Capital Lease Obligations, Purchase Money Obligations or Attributable
Indebtedness of such Person,

 

(f)all
 obligations of such Person, contingent or otherwise, as an account party or
applicant under bankers’ acceptance, letter of credit or similar facilities,

 

(g)all
obligations of such Person in respect of Disqualified Equity Interests of such
Person,

 

(h)all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g)
above,

 

(i)
 all obligations of the kind referred to in clauses (a)
through (h) above secured by (or for which the holder of such
obligation 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, whether or not such Person has assumed or become liable
for the payment of such obligation and

 

(j)for
 the purposes of Section 6.01 and Section
7.01(e) only, all obligations of such Person in respect of Swap
Contracts;

 





25



 


 

provided,
that Indebtedness shall not include (i) trade payables and accrued expenses
arising in the ordinary course of business, (ii) prepaid or deferred revenue
arising in the ordinary course of business, and (iii) Indebtedness of any direct
or indirect parent entity appearing on the balance sheet of such Person solely
by reason of push down accounting under GAAP.

 

“Indemnified
Liabilities” shall have the meaning set forth in Section
9.05(b).

 

“Indemnified
Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on
or with respect to any payment made by or on account of any obligation of any
Loan Party under any Loan Document and (b) to the extent not otherwise
described in clause (a), Other Taxes.

 

“Indemnitee”
shall have the meaning set forth in Section 9.05(b).

 

“Intellectual
 Property” shall mean the collective reference to all intellectual
property, whether arising under United States of America, state, multinational
or foreign laws or otherwise, including, without limitation, copyrights,
copyright licenses, patents, patent licenses, trademarks, trademark licenses,
service-marks, know-how, trade secrets, and all rights to sue at law or in
equity for any infringement or other violations thereof, including the right to
receive all proceeds and damages therefrom.

 

“Intellectual
 Property Security Agreements” shall have the meaning set forth in the
Guarantee and Collateral Agreement.

 

“Interest
Payment Date” shall mean:

 

(a)as
to any Eurodollar Loan, the last day of each Interest Period applicable to such
Eurodollar Loan and the final maturity date of such Eurodollar Loan;
provided, however, that, if any Interest Period for a Eurodollar
Loan is longer than three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and

 

(b)as
to any Base Rate Loan, the last Business Day of each March, June, September and
December to occur while such Loan is outstanding and the applicable Maturity
Date of such Loan.

 

“Interest
Period” shall mean, with respect to any Eurodollar Loan, the period
commencing on the date such Eurodollar Loan is disbursed or converted to or
 continued as a Eurodollar Loan and ending on the date that is three months
thereafter; provided that:

 

(a)any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such next
succeeding Business Day falls in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day,

 

(b)any
Interest Period pertaining to a Eurodollar Loan that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period
and

 

(c)no
Interest Period shall extend beyond the applicable Maturity Date.

 





26



 


 

“Interpolated
 Rate” shall mean, at any time, for any Interest Period, the rate per
annum (rounded to the same number of decimal places as the LIBO Screen Rate)
determined by the Administrative Agent (which determination shall be conclusive
and binding absent manifest error) to be equal to the rate that results from
interpolating on a linear basis between: (a) the LIBO Screen Rate for the
longest period (for which the LIBO Screen Rate is available) that is shorter
than the Impacted Interest Period and (b) the LIBO Screen Rate for the
shortest period (for which the LIBO Screen Rate is available) that exceeds the
Impacted Interest Period, in each case, at such time.

 

“Investment”
shall mean, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of:

 

(a)the
purchase or other acquisition of Equity Interests or debt or other securities of
another Person,

 

(b)a
loan, advance or capital contribution to, guarantee or assumption of
Indebtedness of, or purchase or other acquisition of any other debt or equity
participation or interest in, another Person, including any partnership or joint
venture interest in such other Person, or

 

(c)the
purchase or other acquisition (in one transaction or a series of transactions)
of all or substantially all of the property and assets or business of another
Person or assets constituting a business unit, line of business or division of
such Person;

 

provided
that the following shall not constitute an Investment: intercompany advances
between and among Group Members relating to their cash management, tax and
accounting operations in the ordinary course of business.

 

For
purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment but reduced by cash returns actually
received on such Investment.

 

“IRS”
shall mean the United States Internal Revenue Service.

 

“Issuer”
shall mean, with respect to any Private Asset or Public Equity, the issuer
thereof.

 

“Latest
Maturity Date” shall mean, at any date of determination, the latest
Maturity Date applicable to any Loan or Commitment hereunder at such time,
including the latest maturity date of any Term Loan, Term Loan Commitment, or
Revolving Commitment.

 

“Lenders”
shall have the meaning set forth in the preamble hereto.

 

“LIBO
Screen Rate” shall have the meaning set forth in the definition of
“Eurodollar Base Rate”.

 

“Lien”
shall mean, with respect to any property:

 

(a)any
mortgage, deed of trust, lien (statutory or other), judgment liens, pledge,
encumbrance, claim, charge, assignment, hypothecation, deposit arrangement,
security interest or encumbrance of any kind or any arrangement to provide
priority or preference in the nature of a security interest, including any
easement, servitude, right-of-way or other encumbrance on title to real
property, in each of the foregoing cases whether voluntary or imposed or arising
by operation of law,

 





27



 


 

(b)the
interest of a vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement (or any financing lease having substantially
the same economic effect as any of the foregoing) and

 

(c)in
the case of securities, any purchase option, call or similar right of a third
party with respect to such securities.

 

“Loan”
shall mean any extension of credit by a Lender to the Borrower under this
Agreement in the form of a Term Loan or Revolving Loan.

 

“Loan
Documents” shall mean, collectively, (i) this Agreement,
(ii) the Notes, (iii) the Security Documents, (iv) the Fee Letters,
and (v) all other documents, certificates, instruments or agreements executed
and delivered by or on behalf of a Loan Party for the benefit of any Agent or
Lender in connection herewith on or after the date hereof.

 

“Loan
Parties” shall mean, collectively, the Borrower and each Guarantor.

 

“Make
Whole Premium” shall mean, except as provided in Section
2.09(c)(iii), with respect to any prepayment of Term Loans or any
termination or reduction of the Total Revolving Commitments made prior to the
first anniversary of the Closing Date pursuant to Section
2.09(a), or with respect to Term Loans the principal of which has
become or has been declared to be immediately due and payable or Revolving
Commitments terminated, in each case, prior to the first anniversary of the
Closing Date pursuant to Section 7.02, an amount equal to
the present value (on a quarterly basis assuming a 360-day year and actual days
elapsed at a rate equal to the sum of the Three Month Eurodollar Rate
plus 0.50%), as determined by the Administrative Agent in accordance with
accepted financial practice at the date of such prepayment or acceleration,
of

 

(a)all
required interest payable on (i) the aggregate principal amount of the Term
Loans subject to such prepayment or acceleration and (ii) the aggregate amount
of the Total Revolving Commitments terminated or reduced (assuming such
Revolving Commitments were fully drawn for the relevant period), in each case,
from the date of such prepayment or acceleration through and including the first
anniversary of the Closing Date calculated using an interest rate equal to
(x) the Eurodollar Rate for an Interest Period of three months in effect on
the third Business Day prior to such prepayment or acceleration (the
“Three Month Eurodollar Rate”) plus (y) the Applicable
Margin for Eurodollar Rate Loans in effect as of such prepayment date,
plus

 

(b)any
prepayment premium that would be payable on the aggregate principal amount of
the Term Loans subject to such prepayment or acceleration and such Revolving
Commitments subject to such termination or reduction under Section
2.09(c) if such prepayment or acceleration were to be made on the
day immediately following the first anniversary of the Closing Date.

 

“Margin
Stock” shall have the meaning assigned to the term “margin stock” under
Section 222.1 of Regulation U of the Board of Governors of the United States
Federal Reserve System, or any successor thereto.

 

“Market
Capitalization” shall mean an amount equal to:

 

(a)the
total number of issued and outstanding shares of common Equity Interests of the
Issuer as of the date of determination multiplied by

 





28



 


 

(b)the
arithmetic mean of the closing prices per share of such common Equity Interests
on the principal securities exchange on which such common Equity Interests is
traded for the thirty (30) consecutive trading days immediately
preceding the date of determination.

 

“Master
Agreement” shall have the meaning set forth in the definition of “Swap
Contract.”

 

“Material
Adverse Effect” shall mean a material adverse effect on and/or material
adverse developments with respect to (a) the business, operations,
properties, assets or financial condition of the Group Members taken as a whole;
(b) the ability of the Loan Parties taken as whole to perform their payment
obligation under the Loan Documents; (c) the legality, validity, binding
effect or enforceability against any Loan Party of this Agreement or any other
Loan Document to which it is a party; or (d) the rights and remedies of any
 Agent, any Lender or any other Secured Party under any Loan Document.

 

“Material
Indebtedness” shall mean Indebtedness (other than the Obligations) of
any Group Member in an individual principal amount greater than the Threshold
 Amount.

 

“Material
Nonpublic Information” means information regarding an Issuer and its
Subsidiaries that is not generally available to the public that a reasonable
investor would likely consider important in deciding whether to buy, sell or
hold any of such Issuer’s shares.

 

“Materials
of Environmental Concern” shall mean any material, substance or waste
that is listed, regulated, or otherwise defined as hazardous, toxic,
radioactive, a pollutant or a contaminant (or words of similar regulatory intent
or meaning) under applicable Environmental Law, or which could give rise to
liability under any Environmental Law.

 

“Maturity
Date” shall mean the Term Loan Maturity Date or the Revolving
Termination Date, as applicable.

 

“Maximum
Loan Value” shall mean, the sum of, without duplication, the following
and, in each case, to the extent constituting Collateral:

 

(a)60%
of the Asset Value of all Eligible First Lien Credit Assets and all other Credit
Assets that would constitute Eligible First Lien Credit Assets if owned by a
Borrowing Base Loan Party, plus

 

(b)40%
of the Asset Value of all Eligible Credit Assets (other than Eligible First Lien
Credit Assets and Eligible Subordinated Credit Assets) and all other Credit
Assets that would constitute Eligible Credit Assets (but not Eligible First Lien
Credit Assets and Eligible Subordinated Credit Assets) if owned by a Borrowing
Base Loan Party, plus

 

(c)40%
of the Asset Value of all Eligible Public Equities and all other Public Equities
that would constitute Eligible Public Equities if owned by a Borrowing Base Loan
Party, plus

 

(d)30%
of the Asset Value of all Eligible Private Assets and all other Private Assets
that would constitute Eligible Private Assets if owned by a Borrowing Base Loan
Party, plus

 

(e)30%
of the Asset Value of all Eligible Subordinated Credit Assets and all other
Private Assets that would constitute Eligible Subordinated Credit Assets if
owned by a Borrowing Base Loan Party, plus

 

(f)
 100% of Qualified Cash, plus

 





29



 


 

(g)in
the case of all other Collateral (excluding puts, calls or combinations thereof
that do not qualify as Margin Stock), an amount equal to the Good Faith Loan
Value (as defined in Section 221.2 of Regulation U) of such Collateral.

 

provided,
that, notwithstanding anything to the contrary, the Maximum Loan Value
attributed to Margin Stock shall not exceed 50% of the Current Market Value (as
defined in Section 221.2 of Regulation U) of such Margin Stock.

 

“Moody’s”
shall mean Moody’s Investor Service, Inc. and any successor thereto.

 

“Multiemployer
 Plan” shall mean a Plan that is a “multiemployer plan” as defined in
Section 3(37) or Section 4001(a)(3) of ERISA.

 

“Net
Asset Value” shall mean, as of any date of determination with respect to
any Person,

 

(a)the
total assets of such Person minus

 

(b)the
total liabilities of such Person

 

in
each case, as such amount would, in conformity with GAAP, be set forth on the
balance sheet of such Person.

 

“Net
Cash Proceeds” shall mean

 

(a)in
connection with any Disposition or any Recovery Event, the proceeds thereof in
the form of cash and Cash Equivalents (including any such proceeds received by
way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as and
when received) actually received by any Group Member, net of

 

(i)
 attorneys’ fees, accountants’ fees, investment banking fees, consulting fees,
amounts required to be applied to the repayment of Indebtedness secured by a
Lien expressly permitted hereunder on any asset which is the subject of such
Disposition or Recovery Event (other than any Lien pursuant to a Security
Document or any Lien on all or any part of the Collateral), and other customary
fees and expenses actually incurred by any Group Member in connection
therewith;

 

(ii)
taxes paid or reasonably estimated to be payable by any Group Member as a result
thereof (after taking into account any available tax credits or deductions and
any tax sharing arrangements);

 

(iii)
the amount of any reasonable reserve established in accordance with GAAP against
any liabilities (other than any taxes deducted pursuant to
clause (ii) above) (A) associated with the assets that
are the subject of such event and (B) retained by any Group Member,
provided that the amount of any subsequent reduction of such reserve
(other than in connection with a payment in respect of any such liability) shall
be deemed to be Net Cash Proceeds of such event occurring on the date of such
reduction and

 

(iv)the
pro rata portion of the Net Cash Proceeds thereof (calculated without regard to
this clause (iv)) attributable to minority interests and not
available for distribution to or for the account of any Group Member as a result
thereof; provided further that in the case of a Recovery Event,
such amounts shall be excluded to the extent that (1) no Default or Event of
Default shall have occurred and be continuing and (2) the Subsidiary whose
property was the subject of such Recovery Event shall invest such Net Cash
Proceeds within 360 days of receipt thereof in repair, restoration or
replacement of the affected assets, and

 





30



 


 

(b)in
the case of any principal payments in respect of a Credit Asset or special
dividends in respect of Public Equities, the amount thereof.

 

“Non-Consenting
 Lender” shall mean any Lender that does not approve any consent, waiver
or amendment that (i) requires the approval of each Lender, each affected
Lender or each Lender or each affected Lender with respect to a particular Class
of Loans, in each case, in accordance with the terms of Section
9.01 and (ii) has been approved by the Required Lenders (or, in the
 case of any consent, waiver or amendment that requires the approval of each
Revolving Lender or each affected Revolving Lender with, the Required Revolving
Lenders).

 

“Non-Defaulting
 Lender” shall mean, at any time, each Lender that is not a Defaulting
Lender at such time.

 

“Non-Guarantor
 Subsidiary” shall mean any Subsidiary of the Primary Guarantor other
than the BR Advisory Loan Parties or any Subsidiary of the BR Advisory Loan
Parties.

 

“Non-Ordinary
 Course Proceeds” means the Net Cash Proceeds from

 

(a)a
Disposition of (i) Property outside of the ordinary course or (ii) Credit
Assets, Public Equities or Private Assets,

 

(b)any
principal payments in respect of a Credit Asset,

 

(c)any
special dividends in respect of Public Equities or Private Assets, or

 

(d)a
Recovery Event.

 

“Non-Public
Information” shall mean information which has not been disseminated in a
manner making it available to investors generally, within the meaning of
Regulation FD promulgated by the SEC under the Securities Act and the Exchange
Act.

 

“Note”
shall mean any promissory note evidencing any Loan.

 

“Obligations”
shall mean the unpaid principal of and interest on (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 proceeding under any Debtor Relief Law, relating to any Group Member,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans, Erroneous Payment Subrogation Rights and all other
obligations and liabilities owed by any Group Member to any Agent or any Lender,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Loan Document or any other document made,
delivered or given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees, charges and disbursements of
counsel to the Agents or any Lender that are required to be paid by the Borrower
pursuant hereto) or otherwise.

 





31



 


 

“Operating
EBITDA” shall mean, for any period, with respect to Ultimate Parent and
its Subsidiaries (but excluding the Borrowing Base Loan Parties and their
 Subsidiaries and 6 Brands and any of its Subsidiaries):

 

(a)net
income (or net loss) plus

 

(b)the
sum (without duplication of):

 

(i)interest
 expense,

 

(ii)
income tax expense,

 

(iii)
 depreciation expense,

 

(iv)amortization
expense,

 

(v)to
the extent deducted from net income, non-cash charges, non-cash expense or
non-cash loss (or non-cash gain reflected as a negative number) for such period
excluding any such charge, expense, loss or gain incurred in the ordinary course
of business that constitutes an accrual of, or a reserve for, or a reduction in
a reserve for, cash charges for any period,

 

(vi)trading
loss (or gain reflected as a negative number) and fair value adjustments (with
losses represented as a positive number and gains represented as a negative
number) on loans,

 

(vii)
stock based compensation and other non-cash compensation expense,

 

(viii)charges,
costs, losses, expenses or reserves related to: (A) restructuring (including
restructuring charges or reserves, whether or not classified as such under
GAAP), severance, relocation, consolidation, integration or other similar items,
(B) strategic initiatives, business optimization and new systems design and
implementation, (C) signing, retention and completion bonuses, (D) severance,
relocation or recruiting, (E) charges and expenses incurred in connection with
litigation (including threatened litigation), any investigation or proceeding
(or any threatened investigation or proceeding) by a regulatory, governmental or
law enforcement body (including any attorney general), and (F) expenses incurred
in connection with casualty events or asset sales outside the ordinary course of
business, in an amount not to exceed $20,000,000 for any such period in the
aggregate pursuant to this clause (viii) and clauses
(ix) and (x),

 

(ix)all
(A) costs, fees and expenses relating to the Transactions and (B) costs, fees
and expenses (including diligence and integration costs) incurred in connection
with (x) investments in any Person, acquisitions of the Equity Interests of any
Person, acquisitions of all or a material portion of the assets of any Person or
constituting a line of business of any Person, and financings related to any of
the foregoing or to the capitalization of any Group Member or (y) other
transactions that are out of the ordinary course of business of such Person and
its Subsidiaries (in each case of clauses (x) and
(y), including transactions considered or proposed but not
consummated), including equity issuances, Investments, acquisitions,
dispositions, recapitalizations, mergers, option buyouts and the incurrence,
modification or repayment of Indebtedness (including all consent fees, premium
and other amounts payable in connection therewith) in an amount not to exceed
$20,000,000 for any such period in the aggregate pursuant to this clause
(ix) and clauses (viii) and (x);

 





32



 


 

(x)all
amounts paid during such period in respect of settlements of litigation against
any Subsidiary of Ultimate Parent pending at the time such Person became a
Subsidiary of Ultimate Parent (net of insurance proceeds received during such
period in respect of such litigation) and all costs and expenses related
thereto, in an amount not to exceed $20,000,000 for any such period in the
aggregate pursuant to this clause (x) and clauses
(viii) and (ix), and

 

(xi)investment
performance advisory fee related to Vintage Management Capital, LLC portfolio
gain or loss

 

in
each case, determined in accordance with GAAP for such period.

 

“Organizational
 Documents” shall mean, collectively, with respect to any Person,
(i) in the case of any corporation, the certificate of incorporation or
articles of incorporation and by-laws (or similar constitutive documents) of
such Person, (ii) in the case of any limited liability company, the
certificate or articles of formation or organization and operating agreement or
memorandum and articles of association (or similar constitutive documents) of
such Person, (iii) in the case of any limited partnership, the certificate
 of formation and limited partnership agreement (or similar constitutive
documents) of such Person (and, where applicable, the equity holders or
shareholders registry of such Person), (iv) in the case of any general
partnership, the partnership agreement (or similar constitutive document) of
such Person, (v) in any other case, the functional equivalent of the
foregoing, and (vi) any shareholder, voting trust or similar agreement
between or among any holders of Equity Interests of such Person.

 

“Other
Connection Taxes” shall mean, with respect to any Recipient, Taxes
imposed as a result of a present or former connection between such Recipient and
the jurisdiction imposing such Tax (other than connections arising from such
Recipient having executed, delivered, become a party to, performed its
obligations under, received payments under, received or perfected a security
interest under, engaged in any other transaction pursuant to or enforced any
Loan Document, or sold or assigned an interest in any Loan or Loan
Document).

 

“Other
Taxes” shall mean all present or future stamp, court or documentary,
intangible, recording, filing or similar Taxes that arise from any payment made
under, from the execution, delivery, performance, enforcement or registration
of, from the receipt or perfection of a security interest under, or otherwise
with respect to, any Loan Document, except any such Taxes that are Other
Connection Taxes imposed with respect to an assignment (other than an assignment
made pursuant to Section 2.23).

 

“Participant”
shall have the meaning set forth in Section 9.06(d).

 

“Participant
Register” shall have the meaning set forth in Section
9.06(d).

 

“PATRIOT
Act” shall mean the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), as the same has been,
or shall hereafter be, renewed, extended, amended or replaced.

 

“Payment
in Full” shall mean (a) the termination of all Commitments and
(b) the payment in full in cash of all Loans and other amounts owing to the
Lenders and the Agents in respect of the Obligations (other than contingent or
indemnification obligations not then due).

 

“Payment
Office” shall mean the office specified from time to time by the
Administrative Agent as its payment office by notice to the Borrower and the
 Lenders.

 

“Payment
Recipient” has the meaning assigned to it in Section
8.11(a).

 





33



 


 

“PBGC”
shall mean the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA (or any successor).

 

“Perfection
Certificate” shall mean a certificate substantially in the form of
Exhibit B.

 

“Permits”
shall mean any and all franchises, licenses, leases, permits, approvals,
notifications, certifications, registrations, authorizations, exemptions,
qualifications, easements, and rights of way.

 

“Permitted
Equity Liens” shall mean Liens permitted under
Section 6.02(c).

 

“Permitted
 Liens” shall mean the collective reference to Liens permitted by
Section 6.02.

 

“Permitted
Prior Liens” shall mean Liens permitted pursuant to
Section 6.02(c).

 

“Permitted
Refinancing Debt” shall mean any modification, refinancing, refunding,
renewal or extension of any Indebtedness; provided that

 

(a)the
principal amount (or accreted value, if applicable) thereof does not exceed the
principal amount (or accreted value, if applicable) of the Indebtedness being
modified, refinanced, refunded, renewed or extended except by an amount equal to
unpaid accrued interest and premium thereon plus other reasonable amounts
paid, and fees and expenses reasonably incurred, in connection with such
modification, refinancing, refunding, renewal or extension and by an amount
equal to any existing commitments unutilized thereunder;

 

(b)such
modification, refinancing, refunding, renewal or extension has a maturity no
earlier and a Weighted Average Life to Maturity no shorter than the Indebtedness
being modified, refinanced, refunded, renewed or extended;

 

(c)at
the time thereof, no Default or Event of Default shall have occurred and be
continuing;

 

(d)if
the Indebtedness being modified, refinanced, refunded, renewed or extended is
unsecured, such modification, refinancing, refunding, renewal or extension is
unsecured;

 

(e)if
the Indebtedness being modified, refinanced, refunded, renewed or extended is
secured, such modification, refinancing, refunding, renewal or extension is
secured by no more collateral than the Indebtedness being modified, refinanced,
refunded, renewed or extended; and

 

(f)the
 primary obligors and guarantors in respect of such Indebtedness being modified,
refinanced, refunded, renewed or extended remain the same (or constitute a
subset thereof).

 

“Person”
shall mean any natural Person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or
other entity.

 

“Plan”
shall mean any “employee benefit plan” as defined in Section 3(3) of ERISA
which is sponsored, maintained or contributed to by, or required to be
contributed to by Ultimate Parent or any of its ERISA Affiliates or with respect
to which Ultimate Parent or any of its ERISA Affiliates has or would reasonably
be expected to have liability, contingent or otherwise, under ERISA.

 

“Platform”
shall mean Debt Domain, IntraLinks, SyndTrak or a substantially similar
electronic transmission system.

 





34



 


 

“Pledged
Equity Interests” shall have the meaning set forth in the Guarantee and
Collateral Agreement.

 

“Prime
Rate” shall mean the rate of interest quoted in the print edition of
The Wall Street Journal, Money Rates Section as the Prime Rate
 (currently defined as the base rate on corporate loans posted by at least 75%
of the nation’s 30 largest banks), as in effect from time to time. The Prime
Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. The Administrative Agent or any other
Lender may make commercial loans or other loans at rates of interest at, above
or below the Prime Rate.

 

“Primary
Guarantor” shall have the meaning set forth in the preamble hereto.

 

“Private
Assets” shall mean equity interests in private operating companies.

 

“Proceeds”
has, with reference to any asset or property, the meaning assigned to it under
Section 9-102(a)(64) of the UCC and, in any event, shall include, but not
be limited to, any and all amounts from time to time paid or payable under or in
connection with such asset or property.

 

“Pro
Forma Basis” shall mean, with respect to the calculation of any
financial ratio or test (including Net Asset Value, Operating EBITDA and, in
each case, any financial calculations or components required to be made or
included therein), as of any date, that pro forma effect will be given to the
Transactions, any permitted acquisition or Investment, any issuance, incurrence,
assumption or permanent repayment of Indebtedness for borrowed money (including
Indebtedness issued, incurred or assumed as a result of, or to finance, any
relevant transaction and for which any such financial ratio is being calculated)
and all sales, transfers and other dispositions or discontinuance of any
subsidiary, line of business or division, in each case that have occurred during
the four consecutive fiscal quarter period of the Borrower being used to
calculate such financial ratio (the “Reference Period”), or
subsequent to the end of the Reference Period but prior to such date or prior to
or simultaneously with the event for which a determination under this definition
is made (including any such event occurring at a person who became a Subsidiary
after the commencement of the Reference Period), as if each such event occurred
 on the first day of the Reference Period.

 

“Property”
shall mean any right or interest in or to property of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible, including,
without limitation, Equity Interests.

 

“PTE”
means a prohibited transaction class exemption issued by the U.S. Department of
Labor, as any such exemption may be amended from time to time.

 

“Public
Equities” shall mean any equity interests that are listed or traded on a
Designated Exchange or warrants exercisable for such equity interests.

 

“Public
Lender” shall mean any Lender that does not wish to receive Non-Public
Information with respect to Ultimate Parent, the Primary Guarantor or its
 Subsidiaries or their respective securities.

 

“Purchase
Money Obligation” shall mean, for any Person, the obligations of such
Person in respect of Indebtedness (including Capital Lease Obligations) incurred
for the purpose of financing all or any part of the purchase price of any fixed
or capital assets or the cost of installation, construction or improvement of
any fixed or capital assets; provided, however, that (i) such
Indebtedness is incurred within 30 days after such acquisition, installation,
construction or improvement of such fixed or capital assets by such Person and
(ii) the amount of such Indebtedness does not exceed the lesser of 100% of
the fair market value of such fixed or capital asset or the cost of the
acquisition, installation, construction or improvement thereof, as the case may
be.

 





35



 


 

“Qualified
Cash” shall mean unrestricted cash and Cash Equivalents of any Borrowing
Base Loan Party that are on deposit in Deposit Accounts and Securities Accounts,
in each case, located in the United States that are subject to an Account
Control Agreement.

 

“Qualified
Cash Deposit Account” means a Deposit Account or Securities Account that
holds Qualified Cash.

 

“Qualified
Equity Interests” shall mean Equity Interests that are not Disqualified
Equity Interests.

 

“Real
Property” shall mean all real property held or used by any Group Member,
which relevant Group Member owns in fee or in which it holds a leasehold
 interest as a tenant, including as of the Closing Date.

 

“Recipient”
shall mean (a) each Agent and (b) any Lender, as applicable.

 

“Recovery
Event” shall mean the receipt by any Group Member of any cash payments
or proceeds under any casualty insurance policy in respect of a covered loss
thereunder or as a result of the taking of any assets of any Group Member by any
Person pursuant to the power of eminent domain, condemnation or otherwise, or
pursuant to a sale of any such assets to a purchaser with such power under
threat of such a taking.

 

“Register”
shall have the meaning set forth in Section 9.06(c).

 

“Regulation
D” shall mean Regulation D of the Board of Governors as in effect from
time to time.

 

“Regulation
H” shall mean Regulation H of the Board of Governors as in effect from
time to time.

 

“Regulation
T” shall mean Regulation T of the Board of Governors as in effect from
time to time.

 

“Regulation
U” shall mean Regulation U of the Board of Governors as in effect from
time to time.

 

“Regulation
X” shall mean Regulation X of the Board of Governors as in effect from
time to time.

 

“Relevant
Governmental Body” means the Board of Governors of the Federal Reserve
System or the Federal Reserve Bank of New York, or a committee officially
endorsed or convened by the Board of Governors of the Federal Reserve System or
the Federal Reserve Bank of New York, or any successor thereto.

 

“Reasonable
Credit Judgment” shall mean, the Administrative Agent’s commercially
reasonable credit judgment (from the perspective of a secured asset-based
lender), in accordance with customary business practices for comparable
asset-based lending transactions exercised in good faith; provided, that
as it relates to the establishment of Reserves or the adjustment or imposition
of exclusionary criteria, Reasonable Credit Judgment will require that:

 





36



 


 

(a)such
establishment, adjustment or imposition after the Closing Date be based on the
analysis of facts, events, conditions or contingencies first occurring or first
discovered by the Administrative Agent after the Closing Date or that are
materially different from facts, events, conditions or contingencies known to
the Administrative Agent on the Closing Date,

 

(b)the
imposition or increase of any Reserve shall not duplicate any Reserves deducted
in computing book value, and

 

(c)the
amount of any such Reserve so established or the effect of any adjustment or
imposition of exclusionary criteria shall bear a reasonable relationship to the
effects that form the basis thereunder.

 

“Related
Parties” shall mean, with respect to any Person, such Person’s
Affiliates and the partners, directors, officers, employees, agents, trustees,
 administrators, managers, advisors and representatives of such Person and of
such Person’s Affiliates.

 

“Release”
shall mean, with respect to Materials of Environmental Concern, any release,
spill, emission, leaking, pumping, pouring, injection, escaping, deposit,
disposal, discharge, dispersal, dumping, leaching or migration into or through
the indoor or outdoor environment (including the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Materials of
Environmental Concern).

 

“Required
Lenders” shall mean, at any time, Lenders having Total Credit Exposures
representing more than 50% of the Total Credit Exposures of all Lenders;
provided that the Required Lenders shall include at least two
Lenders that are not Affiliates. The Total Credit Exposure of any Defaulting
Lender shall be disregarded in determining Required Lenders at any time.

 

“Required
Revolving Lenders” shall mean, at any time, Revolving Lenders having
Revolving Outstanding Amounts representing more than 50% of the Total Revolving
Outstanding Amount of all Revolving Lenders; provided that the
Required Revolving Lenders shall include at least two Lenders that are not
Affiliates. The Revolving Outstanding Amount of any Defaulting Lender shall be
disregarded in determining Required Revolving Lenders at any time.

 

“Requirement
of Law” shall mean, as to any Person, any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
Property or to which such Person or any of its Property is subject.

 

“Reserves”
shall mean reserves established or maintained by the Administrative Agent in its
Reasonable Credit Judgment to the extent such reserves relate to facts, events,
conditions or contingencies first occurring or first discovered by the
Administrative Agent after the Closing Date (or that are materially different
from facts, events, conditions or contingencies known to the Administrative
Agent on the Closing Date), and for which no reserves were imposed on the
Closing Date, and which have, or could reasonably be expected to have, an
adverse effect on the value of the Collateral included in the Borrowing Base or
the Liens of the Administrative Agent thereon.

 

“Responsible
Officer” shall mean, as to any Person, the chief executive officer,
president or chief financial officer of such Person, but in any event, with
 respect to financial matters, the chief financial officer of such Person.
Unless otherwise qualified, all references to a “Responsible Officer” shall
refer to a Responsible Officer of the Borrower.

 





37



 


 

“Restricted
Payment” shall mean any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity
Interest of any Person, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, defeasance, acquisition, cancellation or
termination of any such capital stock or other Equity Interest, or on account of
any return of capital to any Person’s stockholders, partners or members (or the
equivalent of any thereof), or any option, warrant or other right to acquire any
such dividend or other distribution or payment through capital stock or other
Equity Interest.

 

“Restricted
Transaction” shall mean, (i) any financing transaction secured by any
Private Asset, Public Equity or Credit Asset, (ii) any grant, occurrence or
existence of any Lien or other encumbrance on any Private Asset, Public Equity
or Credit Asset (other than any Permitted Lien) or (iii) any sale,
 participation, swap, hedge (including by means of a physically- or cash-settled
derivative or otherwise) or other transfer of, or where the underlying asset is,
any Private Asset, Public Equity or Credit Asset; provided that
Restricted Transaction shall not include any transactions under the Loan
Documents.

 

“Revolving
Commitment” shall mean, as to each Revolving Lender, its obligation to
make Revolving Loans to the Borrower pursuant to Section
2.04(a).

 

“Revolving
Commitment Period” shall mean the period beginning on the Closing Date
and ending on the Revolving Termination Date.

 

“Revolving
Lender” shall mean each Lender that has a Revolving Commitment or holds
a Revolving Outstanding Amount.

 

“Revolving
Loan” shall mean any Revolving Loan made pursuant to Section
2.04(a).

 

“Revolving
Note” shall have the meaning set forth in Section
2.07(d).

 

“Revolving
Outstanding Amount” shall mean, with respect to any Revolving Lender as
of any date of determination, an amount equal to the sum of the aggregate
outstanding principal amount of all outstanding Revolving Loans of such
Revolving Lender.

 

“Revolving
Percentage” shall mean, as to any Revolving Lender at any time, the
percentage which such Lender’s Revolving Commitment then constitutes of the
Total Revolving Commitments (or, at any time after the Revolving Commitments
shall have expired or terminated, the percentage which the aggregate amount of
such Lender’s Revolving Outstanding Amount then outstanding constitutes of the
amount of the Total Revolving Outstanding Amount then outstanding);
provided that, in the case of Section 2.22 (but not the
definition of Fronting Exposure used therein), when a Defaulting Lender shall
exist, “Revolving Percentage” shall mean the percentage which such Lender’s
Revolving Commitment then constitutes of the Total Revolving Commitments
(disregarding any Defaulting Lender’s Revolving Commitment).

 

“Revolving
Termination Date” shall mean the earliest to occur of

 

(a)with
respect to the Revolving Commitments and Revolving Loans, the 4th
anniversary of the Closing Date, which date is June 23, 2025,

 





38



 


 

(b)the
date that the applicable Revolving Commitments are permanently reduced to zero
pursuant to Section 2.09 or Section 2.10 and

 

(c)the
date of the termination of the applicable Revolving Commitments pursuant to
Section 7.01.

 

“Rule
144” shall mean Rule 144 under the Securities Act, as amended.

 

“S&P”
shall mean Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.,
and any successor thereto.

 

“Sale
and Leaseback” shall mean any arrangement, directly or indirectly, with
any Person whereby Ultimate Parent, the Primary Guarantor, the Borrower or any
 Subsidiary shall Dispose of any Property used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
Property or other Property which it intends to use for substantially the same
purpose or purposes as the Property being sold or transferred.

 

“Sanctioned
Country” shall mean, at any time, a country or territory that is subject
to comprehensive Sanctions. For the avoidance of doubt, as of the Closing Date,
Sanctioned Countries are the Crimea region of Ukraine, Cuba, Iran, North Korea
and Syria.

 

“Sanctioned
Person” shall mean, at any time, (a) any Person listed in any
Sanctions-related list of designated Persons maintained by the Office of Foreign
 Assets Control of the U.S. Department of the Treasury or the U.S. Department of
State, by the United Nations Security Council, Canada, the European Union or any
EU member state, Her Majesty’s Treasury of the United Kingdom or the government
of Japan, (b) any Person operating, organized or resident in a Sanctioned
Country or (c) any Person owned or controlled by any such Person.

 

“Sanctions”
shall mean economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to time by (a) the U.S. government,
including those administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury or the U.S. Department of State, or (b) the
United Nations Security Council, Canada, the European Union or any EU member
state, Her Majesty’s Treasury of the United Kingdom or the government of
Japan.

 

“SEC”
shall mean the Securities and Exchange Commission or any Governmental Authority
succeeding to any of its principal functions.

 

“Secured
Parties” shall have the meaning set forth in the Guarantee and
Collateral Agreement.

 

“Securities
Act” shall mean the Securities Act of 1933, as amended from time to
time, and any successor statute.

 

“Securities
Account” shall have the meaning provided to such term in the UCC.

 

“Security
Documents” shall mean the collective reference to the Guarantee and
Collateral Agreement and any agreements executed and delivered pursuant thereto,
 the Perfection Certificate, the Intellectual Property Security Agreements, the
Account Control Agreements, the Uncertificated Securities Control Agreement, any
other control agreements required to be delivered pursuant to the Guarantee and
Collateral Agreement or any other Loan Document and all other security documents
hereafter delivered to any Agent for the purpose of granting or perfecting a
Lien on any Property of any Loan Party to secure the Obligations.

 





39



 


 

“Single
Employer Plan” shall mean any Plan that is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.

 

“SOFR”
means a rate per annum equal to the secured overnight financing rate for such
Business Day published by the Federal Reserve Bank of New York (or a successor
administrator of the secured overnight financing rate) on the website of the
Federal Reserve Bank of New York, currently at http://www.newyorkfed.org
(or any successor source for the secured overnight financing rate identified as
such by the administrator of the secured overnight financing rate from time to
time).

 

“Solvent”
shall mean, with respect to any Person, as of any date of determination:

 

(a)the
amount of the “present fair saleable value” of the assets of such Person will,
as of such date, exceed the amount of all “liabilities of such Person,
contingent or otherwise,” as of such date,

 

(b)the
“present fair saleable value” of the assets of such Person will, as of such
date, be greater than the amount that will be required to pay the probable
liability of such Person on its debts as such debts become absolute and
matured,

 

(c)such
Person will not have, as of such date, an unreasonably small amount of capital
with which to conduct its business, and

 

(d)such
Person will be able to pay its debts as they mature.

 

For
purposes of this definition:

 

(i)“debt”
shall mean liability on a “claim,”

 

(ii)“claim”
shall mean any (A) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (B) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
 or unsecured,

 

(iii)
 the amount of any contingent liability at any time shall be computed as the
amount that would reasonably be expected to become an actual and matured
liability, and

 

(iv)such
other quoted terms used in this definition shall be determined in accordance
with applicable federal and state laws governing determinations of the
insolvency of debtors.

 

“SPC”
shall have the meaning set forth in Section 9.06(f).

 

“Statutory
Reserve Rate” shall mean a fraction (expressed as a decimal),
(a) the numerator of which is the number one and (b) the denominator
of which is the number one minus the aggregate of the maximum reserve
percentage (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board of Governors to which the
Administrative Agent is subject with respect to the Eurodollar Rate for
eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board of Governors). Such reserve
percentage shall include those imposed pursuant to such Regulation D. Eurodollar
 Loans shall be deemed to constitute eurocurrency funding and to be subject to
such reserve requirements without benefit of, or credit for, proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.

 





40



 


 

“Structured
Finance Obligation” shall mean any debt obligation owing by a special
purpose finance vehicle that is secured directly and primarily by, primarily
referenced to, and/or primarily representing ownership of, a pool of receivables
or a pool of other assets, including collateralized debt obligations,
residential mortgage-backed securities, commercial mortgage-backed securities,
other asset-backed securities, “future flow” receivable transactions and other
similar obligations.

 

“Subordinated
 Intercompany Note” shall mean the Subordinated Intercompany Note,
substantially in the form of Exhibit H.

 

“Subsidiary”
shall mean, as to any Person, a corporation, partnership, limited liability
company or other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries,
 or both, by such Person. Unless otherwise qualified, all references to a
“Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Primary Guarantor.

 

“Swap
Contract” shall mean:

 

(a)any
and all rate swap transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond
index swaps or options or forward bond or forward bond price or forward bond
index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions,
currency swap transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any combination of
any of the foregoing (including any options to enter into any of the foregoing),
 whether or not any such transaction is governed by or subject to any master
agreement, and

 

(b)any
and all transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a
“Master Agreement”), including any such obligations or liabilities
under any Master Agreement, in each case for the purpose of hedging the foreign
currency, interest rate or commodity risk associated with the operations of the
Group Members.

 

“Swap
Termination Value” shall mean, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
 netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s) have
been determined in accordance therewith, such termination value(s), and (b) for
any date prior to the date referenced in clause (a), the amount(s)
determined as the mark-to-market value(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available quotations provided
by any recognized dealer in such Swap Contracts (which may include a Lender or
any Affiliate of a Lender).

 

“Synthetic
Lease” shall mean, as to any Person:

 





41



 


 

(a)any
lease (including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) (i) that is accounted for as an
operating lease under GAAP and (ii) in respect of which the lessee retains
or obtains ownership of the property so leased for U.S. federal income tax
purposes; or

 

(b)(i) a
synthetic, off-balance sheet or tax retention lease or (ii) an agreement
for the use or possession of property (including a Sale and Leaseback), in each
case under this clause (b), creating obligations that do not
appear on the balance sheet of such person but which, upon the application of
any Debtor Relief Laws to such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).

 

“Taxes”
shall mean all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges
imposed by any Governmental Authority, including any interest, additions to tax
or penalties applicable thereto.

 

“Term
Loan” shall mean a Term Loan made by a Lender pursuant to Section
2.01(a).

 

“Term
Loan Commitment” shall mean, as to each Term Lender, any commitment of
such Term Lender. obligation of such Lender, if any, to make a Term Loan to the
 Borrower hereunder in a principal amount not to exceed the amount set forth
under the heading “Term Loan Commitment” opposite such Lender’s name on
Annex A-2 or, as the case may be, in the Assignment and Assumption
pursuant to which such Lender became a party hereto, as the same may be changed
from time to time pursuant to the terms hereof. The aggregate principal amount
of the Term Loan Commitments on the Closing Date is $200,000,000.

 

“Term
Loan Maturity Date” shall mean the earlier of:

 

(a)the
4th anniversary of the Closing Date, which date is June 23, 2025
and

 

(b)the
date on which all Term Loans shall become due and payable in full hereunder,
whether by acceleration or otherwise; provided that, if any such day is
not a Business Day, the Term Loan Maturity Date shall be the Business Day
immediately succeeding such day.

 

“Term
Loan Notes” shall have the meaning set forth in Section
2.07(d).

 

“Term
SOFR” means, for the applicable corresponding tenor, the forward-looking
term rate based on SOFR that has been selected or recommended by the Relevant
Governmental Body.

 

“Test
Period” shall mean, as of any date of determination, the period of four
consecutive fiscal quarters of Ultimate Parent or the Primary Guarantor (taken
as one accounting period)

 

(a)most
recently ended on or prior to such date for which financial statements have been
or are required to be delivered pursuant to Section 5.01(a)
or Section 5.01(b) or

 

(b)in
the case of any calculation pursuant to Section 6.13, ended on the
last date of the fiscal quarter in question.

 

“Three
Month Eurodollar Rate” shall have the meaning set forth in the
definition of “Make Whole Premium”.

 

“Threshold
Amount” shall mean $10,000,000.

 





42



 


 

“Total
Credit Exposure” shall mean, as to any Lender at any time, the unused
Commitments, Revolving Outstanding Amount and outstanding Term Loans of such
Lender at such time.

 

“Total
Outstanding Amount” shall mean the sum of (x) the Total Revolving
Outstanding Amount plus (y) the aggregate principal amount of the Term
Loans.

 

“Total
Revolving Commitments” shall mean, at any time, the aggregate amount of
the Revolving Commitments then in effect. The aggregate principal amount of the
Total Revolving Commitments on the Closing Date is $80,000,000.

 

“Total
Revolving Outstanding Amount” shall mean, at any time, the aggregate
amount of the Revolving Outstanding Amounts of the Revolving Lenders outstanding
at such time.

 

“Term
Lender” shall mean each Lender that has a Term Loan Commitment or is the
holder of a Term Loan.

 

“Transactions”
shall mean the execution, delivery and performance of the Loan Documents, the
initial borrowings hereunder and the use of proceeds thereof.

 

“Transfer
Restrictions” shall mean, with respect to any Public Equity, any
condition to, requirement or restriction (whether or not under any law, rule,
regulation, regulatory order or the Issuer’s organization documents or
contracts) on the ability of the owner or any pledgee thereof to pledge, sell,
assign or otherwise transfer such Public Equity (including any beneficial
interest therein) or enforce the provisions thereof or of any document related
thereto whether set forth in such Public Equity itself or in any document
related thereto, including, without limitation,

 

(a)any
requirement that any sale, assignment or other transfer or enforcement for such
item of Public Equity be consented to or approved by any Person, including,
without limitation, the Issuer or any other obligor thereon,

 

(b)any
limitation on the type or status, financial or otherwise, of any purchaser,
pledgee, assignee or transferee of such Public Equity,

 

(c)any
requirement for the delivery of any certificate, consent, opinion of counsel or
any other document of any Person to the Issuer of, any other obligor on or any
registrar or transfer agent for, such Public Equity, prior to the sale, pledge,
assignment or other transfer of such Public Equity,

 

(d)any
registration or qualification requirement or prospectus delivery requirement for
such item of Collateral pursuant to any federal, state, local or foreign
securities law (including, without limitation, any such requirement arising
under Section 5 of the Securities Act as a result of such Public Equity being a
“restricted security” or any Loan Party being an “affiliate” of the Issuer of
such Public Equity, as such terms are defined in Rule 144),

 

(e)any
shareholders’ agreement, voting agreement, investor rights agreement, lock-up
agreement or any similar agreement relating to any Public Equity, and

 

(f)
 any mandatory redemption or transfer; provided that the required
delivery of any assignment, instruction or entitlement order from the seller,
assignor or transferor of such Public Equity, together with evidence of the
corporate or other authority of such Person, shall not constitute a “Transfer
Restriction”.

 





43



 


 

“Type”
shall mean, as to any Loan, its nature as a Base Rate Loan or a Eurodollar
Loan.

 

“Ultimate
Parent” shall have the meaning set forth in the preamble hereto.

 

“Uncertificated
 Securities Control Agreement” shall mean that certain Uncertificated
Securities Control Agreement, dated as of the Closing Date, among GLASSRATNER
ADVISORY & CAPITAL GROUP, LLC, a Delaware limited liability company, the
Collateral Agent, GlassRatner Brokerage Services, Inc., a Georgia corporation
and GlassRatner International, Inc., a Delaware corporation.

 

“Underlying
Obligor” shall mean:

 

(a)with
respect to any Credit Asset, any borrower, guarantor or other obligor
thereunder,

 

(b)with
respect to any Private Asset, any Person designated as such by the
Administrative Agent and the Borrower; and

 

(c)with
respect to any Public Equity, the Issuer;

 

provided,
that to the extent that any such entities are Affiliates, such entities shall be
deemed to be a single Underlying Obligor.

 

“Uniform
Commercial Code” or “UCC” shall mean the Uniform
Commercial Code, as in effect from time to time in any applicable
 jurisdiction.

 

“USD
LIBOR” means the London interbank offered rate for U.S. dollars.

 

“U.S.
Person” shall mean any Person that is a “United States person” as
defined in Section 7701(a)(30) of the Code.

 

“U.S.
Tax Compliance Certificate” shall have the meaning set forth in
Section 2.19(g).

 

“Valuation
Report” shall mean the valuation reports substantially in the form of
Exhibit I related to the Credit Assets and Private Assets provided
by Stout Risius and Ross, LLC or such other appraisal firm reasonably acceptable
to the Administrative Agent.

 

“Waterfall
Certificate” shall mean a certificate of a Responsible Officer
substantially in the form of Exhibit K.

 

“Weighted
Average Life to Maturity” shall mean, when applied to any Indebtedness
at any date, the number of years obtained by dividing:

 

(a)the
sum of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof, by
(ii) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment; by

 

(b)the
then outstanding principal amount of such Indebtedness.

 

“Withdrawal
Liability” shall mean any liability to a Multiemployer Plan as a result
of a “complete withdrawal” or “partial withdrawal” from such Multiemployer Plan,
as such terms are defined in Section 4201(b) of ERISA.

 





44



 


 

“Withholding
Agent” shall mean any Loan Party and the Administrative Agent.

 

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

 

(a)The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
“include,” “includes” and “including” shall be deemed to be followed by the
phrase “without limitation.” The word “will” shall be construed to have the same
meaning and effect as the word “shall.” Unless the context requires
otherwise,

 

(i)
any definition of or reference to any agreement, instrument or other document
(including any Organizational Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document),

 

(ii)any
reference herein to any Person shall be construed to include such Person’s
permitted successors and assigns,

 

(iii)
the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar
import when used in any Loan Document, shall be construed to refer to such Loan
Document in its entirety and not to any particular provision thereof,

 

(iv)all
references in a Loan Document to Articles, Sections, recitals, Annexes,
Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and recitals, Annexes, Exhibits and Schedules to, the
Loan Document in which such references appear,

 

(v)any
reference to any law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any reference to
any law or regulation shall, unless otherwise specified, refer to such law or
regulation as amended, modified or supplemented from time to time and

 

(vi)the
words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.

 

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

 

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

 

Section
1.03Accounting
Terms.

 

(a)Generally.
All accounting terms not specifically defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis and in
good faith, as in effect from time to time, applied in a manner consistent with
that used in preparing the Historical Audited Financial Statements, except as
otherwise specifically prescribed herein. Notwithstanding the foregoing, for
purposes of determining compliance with any covenant (including the computation
of any financial covenant) contained herein, Indebtedness of the Primary
Guarantor and its Subsidiaries shall be deemed to be carried at 100% of the
outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB
ASC 470-20 on financial liabilities shall be disregarded.

 





45



 


 

(b)Accounting
Change. If at any time any Accounting Change (including the adoption of
IFRS) shall occur and such change results in a change in the method of
calculation of any financial covenant, standard or term in this Agreement, then
upon the written request of the Borrower or the Administrative Agent (acting
upon the request of the Required Lenders), the Borrower, the Administrative
Agent and the Lenders shall negotiate in good faith in order to amend such
provisions so as to equitably reflect such Accounting Change with the desired
result that the criteria for evaluating Ultimate Parent’s, Primary Guarantor’s
and the Borrower’s financial condition shall be the same after such Accounting
Change as if such Accounting Change had not occurred (subject to the approval of
the Required Lenders, not to be unreasonably withheld, conditioned or delayed);
provided that, until such time as an amendment shall have been executed
and delivered by Ultimate Parent, Primary Guarantor, the Borrower, the
Administrative Agent and the Required Lenders, (A) all such financial
covenants, standards and terms in this Agreement shall continue to be calculated
or construed as if such Accounting Change had not occurred and (B) the
Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
 financial covenants, standards and terms made before and after giving effect to
such Accounting Change. Without limiting the foregoing, leases shall continue to
be classified and accounted for on a basis consistent with that reflected in the
Historical Audited Financial Statements for all purposes of this Agreement,
notwithstanding any Accounting Change relating thereto, unless the parties
hereto shall enter into a mutually acceptable amendment addressing such changes,
as provided for above.

 

(c)Pro
Form Calculations. The parties hereto acknowledge and agree that, for
purposes of all calculations made in determining compliance for any applicable
period with any test or covenant hereunder,

 

(i)all
financial ratios and tests (including Net Asset Value, Operating EBITDA and, in
each case, any financial calculations or components required to be made or
included therein) shall be calculated on a Pro Forma Basis for the most recent
four consecutive fiscal quarters for which financial statements with respect to
the Primary Guarantor and Ultimate Parent, as applicable, have been or are
required to be delivered pursuant to Section 5.01 prior to the
relevant date of determination,

 

(ii)after
consummation of any permitted acquisition or other Investment,

 

(A)income
statement items, cash flow items and balance sheet items (whether positive or
negative) attributable to the target acquired in such transaction shall be
included in such calculations to the extent relating to such applicable period,
subject to adjustments mutually acceptable to the Borrower and the
Administrative Agent and

 

(B)Indebtedness
which is retired in connection with a permitted acquisition shall be excluded
from such calculations and deemed to have been retired as of the first day of
such applicable period and

 





46



 


 

(iii)
after any Disposition permitted by Section 6.04 to a third party
of Equity Interests in a Subsidiary, a division or line of business, or any
assets constituting discontinued operations,

 

(A)income
statement items, cash flow statement items and balance sheet items (whether
positive or negative) attributable to the property or assets disposed of shall
be excluded in such calculations to the extent relating to such applicable
period, subject to adjustments mutually acceptable to the Borrower and the
Administrative Agent and

 

(B)Indebtedness
that is repaid with the proceeds of such Disposition shall be excluded from such
calculations and deemed to have been repaid as of the first day of such
applicable period.

 

Section
1.04Rounding.
Any financial ratios required to be maintained by the Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by
which such ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number).

 

Section
1.05Times
of Day. Unless otherwise specified, all references herein to times of
day shall be references to Eastern time (daylight or standard, as
applicable).

 

Section
1.06Rates.
The Administrative Agent does not warrant, nor accept responsibility, nor shall
the Administrative Agent have any liability with respect to the administration,
submission or any other matter related to the rates in the definition of
“Eurodollar Rate” or with respect to any comparable or successor rate
thereto.

 

Section
1.07Cashless
Rolls. Notwithstanding anything to the contrary contained in this
Agreement or in any other Loan Document, any Lender may exchange, continue or
roll over all or a portion of its Loans in connection with any refinancing,
extension, loan modification or similar transaction permitted by the terms of
this Agreement, pursuant to a cashless settlement mechanism approved by the
Borrower, the Administrative Agent and such Lender.

 

Article
 II.
LOANS

 

Section
2.01Term
Loan Commitments.

 

(a)Subject
to the terms and conditions set forth herein each Term Lender agrees, severally
and not jointly, to make a Term Loan in Dollars to the Borrower on the Closing
Date in an amount equal to the Term Loan Commitment of such Term Lender;
provided, however, that after giving effect to any Term Borrowing,
the Total Outstanding Amount of all Lenders shall not exceed the Borrowing
Base.

 

(b)The
Borrower may make only one borrowing under the Term Loan Commitment, which in
each case shall be on the Closing Date. Any amount borrowed under this
Section 2.01 and subsequently repaid or prepaid may not be
reborrowed. Subject to Section 2.10 and Section
2.11, all amounts owed hereunder with respect to the Term Loans shall be
paid in full no later than the Term Loan Maturity Date. Each Lender’s Term Loan
Commitment shall terminate immediately and without further action on the Closing
Date after giving effect to the funding of such Lender’s Term Loan Commitment on
the Closing Date.

 





47



 


 

Section
2.02Procedure
for Term Loan Borrowing.

 

(a)The
Borrower shall deliver to the Administrative Agent (for delivery to the Lenders)
a fully executed Borrowing Notice no later than three Business Days in advance
of the proposed Borrowing Date (or such shorter period as may be acceptable to
the Administrative Agent). Each Borrowing of Term Loans shall be a Eurodollar
Borrowing with an Interest Period of three months’ duration. The Administrative
 Agent shall promptly advise the applicable Lenders of any notice given pursuant
to this Section 2.02 (and the contents thereof), and of each
Lender’s portion of the requested borrowing.

 

(b)Upon
satisfaction or waiver of the conditions precedent specified herein, each Term
Lender shall make its Term Loan available to (x) the Administrative Agent by
wire transfer of same day funds in Dollars, to the account designated by the
Administrative Agent or (y) at such Term Lender’s election, the Borrower by wire
transfer of same day funds in Dollars to be credited to the account designated
 in writing by the Borrower, in each case not later than 12:00 p.m. (New York
City time) on the applicable Borrowing Date. The Administrative Agent shall make
the proceeds of the Term Loans available to the Borrower on the applicable
Borrowing Date by causing an amount of same day funds in Dollars equal to the
proceeds of all such Term Loans received by Administrative Agent from the Term
Lenders to be credited to such account as may be designated in writing to the
Administrative Agent by the Borrower.

 

Section
2.03Repayment
of Term Loans. The Borrower shall repay to the Term Lenders on the last
Business Day of each March, June, September and December (commencing on
September 30, 2022), in an amount equal to 1.25% of the sum of the
aggregate principal amount of the Term Loans as of the Closing Date (which
amounts shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.11);
provided, however, that the final principal repayment installment
 of the Term Loans shall be repaid on the Term Loan Maturity Date and in any
event shall be in an amount equal to the aggregate principal amount of all Term
Loans outstanding on such date.

 

Section
2.04Revolving
Commitments.

 

(a)Subject
to the terms and conditions set forth herein, each Revolving Lender agrees,
severally and not jointly, to make Revolving Loans in Dollars to the Borrower
from time to time on the 15th day of any calendar month (or if
such day is not a Business Day, the first Business Day after the
15th of such calendar month), last Business Day of each calendar
month or, twice per calendar year, any other Business Day during the applicable
Revolving Commitment Period in an aggregate amount not to exceed at any one time
outstanding the Revolving Commitment of such Revolving Lender; provided,
however, that after giving effect to any Revolving Credit Borrowing,

 

(i)the
Total Revolving Outstanding Amount shall not exceed the Total Revolving
Commitments,

 

(ii)the
Revolving Outstanding Amount of any Revolving Lender shall not exceed the
Revolving Commitment of such Revolving Lender and

 

(iii)the
Total Outstanding Amount of all Lenders shall not exceed the Borrowing Base.

 

Amounts
borrowed pursuant to this Section 2.04 may be repaid and
reborrowed during the applicable Revolving Commitment Period.

 





48



 


 

(b)The
Borrower shall repay to the applicable Revolving Lenders on the applicable
Revolving Termination Date the aggregate principal amount of the applicable
Revolving Loans outstanding on such date.

 

Section
2.05Procedure
for Revolving Borrowing.

 

(a)Revolving
Loans shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount.

 

(b)Whenever
the Borrower desires that Lenders make Revolving Loans, the Borrower shall
deliver to the Administrative Agent a fully executed Borrowing Notice no later
than 12:00 p.m. (New York City time) at least three Business Days in advance of
the proposed Borrowing Date (or, if such Borrowing Date is the Closing Date,
such shorter period as may be acceptable to the Administrative Agent). Each
Borrowing of Revolving Loans shall be a Eurodollar Borrowing with an Interest
Period of three month’s duration.

 

(c)Notice
of receipt of each Borrowing Notice in respect of Revolving Loans, together with
the amount of each Lender’s Revolving Percentage thereof, if any, together with
the applicable interest rate, shall be provided by the Administrative Agent to
each applicable Lender in writing with reasonable promptness.

 

(d)Upon
satisfaction or waiver of the conditions precedent specified herein, each
Revolving Lender shall make the amount of its Revolving Loan available to
Administrative Agent not later than 12:00 p.m. (New York City time) on the
applicable Borrowing Date by wire transfer of same day funds in Dollars, to the
account designated by the Administrative Agent. The Administrative Agent shall
make the proceeds of such Revolving Loans available to the Borrower on the
applicable Borrowing Date by causing an amount of same day funds in Dollars
equal to the proceeds of all such Revolving Loans received by the Administrative
Agent from the Lenders to be credited to such account as may be designated in
writing to the Administrative Agent by the Borrower.

 

Section
2.06Benchmark
Replacement Setting

 

Notwithstanding
anything to the contrary herein or in any other Loan Document (and any Swap
Contract shall be deemed not to be a “Loan Document” for purposes of this
Section):

 

(a)On
March 5, 2021 the Financial Conduct Authority (“FCA”), the
regulatory supervisor of USD LIBOR administrator (“IBA”),
announced in a public statement the future cessation or loss of
representativeness of overnight/Spot Next, 1-month, 3-month, 6-month and 12-
month USD LIBOR tenor settings. On the earlier of (i) the date that all
Available Tenors of USD LIBOR have either permanently or indefinitely ceased to
be provided by IBA or have been announced by the FCA pursuant to public
statement or publication of information to be no longer representative and (ii)
the Early Opt-in Effective Date, if the then-current Benchmark is USD LIBOR, the
Benchmark Replacement will replace such Benchmark for all purposes hereunder and
under any Loan Document in respect of any setting of such Benchmark on such day
and all subsequent settings without any amendment to, or further action or
consent of any other party to this Agreement or any other Loan Document. If the
Benchmark Replacement is Daily Simple SOFR, all interest payments will be
payable on a quarterly basis.

 





49



 


 

(b)Upon
the occurrence of a Benchmark Transition Event, the Benchmark Replacement will
replace the then-current Benchmark for all purposes hereunder and under any Loan
Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth
(5th) Business Day after the date notice
of such Benchmark Replacement is provided to the Lenders without any amendment
to, or further action or consent of any other party to, this Agreement or any
other Loan Document so long as the Administrative Agent has not received, by
such time, written notice of objection to such Benchmark Replacement from
Lenders comprising the Required Lenders of each Class. At any time that the
administrator of the then-current Benchmark has permanently or indefinitely
ceased to provide such Benchmark or such Benchmark has been announced by the
regulatory supervisor for the administrator of such Benchmark pursuant to public
statement or publication of information to be no longer representative of the
underlying market and economic reality that such Benchmark is intended to
measure and that representativeness will not be restored, the Borrower may
revoke any request for a borrowing of, conversion to or continuation of Loans to
be made, converted or continued that would bear interest by reference to such
Benchmark until the Borrower’s receipt of notice from the Administrative Agent
that a Benchmark Replacement has replaced such Benchmark, and, failing that, the
Borrower will be deemed to have converted any such request into a request for a
borrowing of or conversion to Base Rate Loans. During the period referenced in
the foregoing sentence, the component of Base Rate based upon the Benchmark will
not be used in any determination of Base Rate.

 

(c)In
connection with the implementation and administration of a Benchmark
Replacement, the Administrative Agent will have the right to make Benchmark
Replacement Conforming Changes from time to time and, notwithstanding anything
to the contrary herein or in any other Loan Document, any amendments
implementing such Benchmark Replacement Conforming Changes will become effective
without any further action or consent of any other party to this Agreement.

 

(d)The
Administrative Agent will promptly notify the Borrower and the Lenders of (i)
the implementation of any Benchmark Replacement and (ii) the effectiveness of
any Benchmark Replacement Conforming Changes. Any determination, decision or
election that may be made by the Administrative Agent or, if applicable, any
Lender (or group of Lenders) pursuant to this Section, including any
determination with respect to a tenor, rate or adjustment or of the occurrence
or non-occurrence of an event, circumstance or date and any decision to take or
refrain from taking any action, will be conclusive and binding absent manifest
error and may be made in its or their sole discretion and without consent from
any other party hereto, except, in each case, as expressly required pursuant to
this Section 2.06.

 

(e)At
any time (including in connection with the implementation of a Benchmark
Replacement), (i) if the then-current Benchmark is a term rate (including Term
SOFR or USD LIBOR), then the Administrative Agent may remove any tenor of such
Benchmark that is unavailable or non-representative for Benchmark (including
Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate
any such previously removed tenor for Benchmark (including Benchmark
Replacement) settings.

 

Section
2.07Repayment
of Loans; Evidence of Debt.

 

(a)The
Borrower hereby unconditionally promises to pay to the Administrative Agent, for
the account of the appropriate Revolving Lender or the appropriate Term Lender,
as the case may be,

 

(i)the
then unpaid principal amount of the applicable Revolving Loans of such Revolving
Lender on the applicable Revolving Termination Date (or on such earlier date on
which the Loans become due and payable pursuant to Section
7.02) or

 

(ii)the
principal amount of each Term Loan of such Term Lender in installments according
to the amortization schedule set forth in Section 2.03 (or
on such earlier date on which the Loans become due and payable pursuant to
Section 7.02).

 





50



 


 

(b)Lenders’
Evidence of Debt. Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the Obligations of the Borrower to
such Lender, including the amounts of the Loans made by it and each repayment
and prepayment in respect thereof. Any such recordation shall be conclusive and
binding on the Borrower, absent manifest error; provided that the failure
to make any such recordation, or any error in such recordation, shall not affect
any Lender’s Commitments or the Borrower’s Obligations in respect of any
applicable Loans; provided, further, in the event of any
inconsistency between the Register and any Lender’s records, the recordations in
the Register shall govern.

 

(c)Register.
The Administrative Agent (or its agent or sub-agent appointed by it) shall
maintain the Register pursuant to Section 9.06(c), in which
shall be recorded

 

(i)the
amount of each Loan made hereunder, the Type of such Loan and each Interest
Period applicable thereto,

 

(ii)the
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and

 

(iii)the
amount of any sum received by the Administrative Agent hereunder from the
Borrower and each Lender’s share thereof.

 

The
entries made in the Register shall be conclusive and binding on the Borrower and
each Lender, absent manifest error; provided that failure to make any
such recordation, or any error in such recordation, shall not affect any
Lender’s Revolving Commitments or the Borrower’s Obligations in respect of any
Loans. The Borrower hereby designates the Administrative Agent to serve as the
Borrower’s non-fiduciary agent solely for purposes of maintaining the Register
as provided in this Section 2.07(c), and the Borrower hereby
agrees that, to the extent the Administrative Agent serves in such capacity, the
Administrative Agent and its officers, directors, employees, agents, sub-agents
and affiliates shall constitute “Indemnitees.”

 

(d)Notes.
The Borrower agrees that, upon the request by any Lender, the Borrower will
promptly execute and deliver to such Lender a promissory note of the Borrower
evidencing any Term Loans or Revolving Loans, as the case may be, of such
Lender, substantially in the forms of Exhibit D-1 or
Exhibit D-2, respectively (a “Term Loan Note”
or “Revolving Note”, respectively), with appropriate insertions as
to date and principal amount; provided that the obligations of the
Borrower in respect of each Loan shall be enforceable in accordance with the
Loan Documents whether or not evidenced by any Note. Any Notes, or other
evidence of indebtedness issued under the Loan Documents, need not be presented
or surrendered for any payment made by the Agents.

 

Section
2.08Fees.

 

(a)The
Borrower agrees to pay to the Administrative Agent, for the account of each
Revolving Lender holding a Revolving Commitment of a given Class, a commitment
fee (the “Commitment Fee”) for the period from and including the
date on which such Class of Revolving Commitments was established hereunder to
the last day of the Revolving Commitment Period in respect of such Class of
Revolving Commitments, computed at the Commitment Fee Rate on the average daily
unused amount of the Revolving Commitment of such Revolving Lender during the
period for which payment is made. The Commitment Fee shall be payable quarterly
in arrears on the last Business Day of each March, June, September and December
and on the Revolving Termination Date, commencing on the first of such dates to
occur after the Closing Date.

 





51



 


 

(b)The
Borrower agrees to pay to the Administrative Agent the fees in the amounts and
on the dates from time to time agreed to in writing by the Borrower and the
Administrative Agent.

 

(c)The
Borrower agrees to pay to the Collateral Agent for its own account the fees in
the amounts and on the dates from time to time agreed to in writing by the
Borrower and the Collateral Agent.

 

Section
2.09Voluntary
Prepayments and Commitment Reductions.

 

(a)Voluntary
Prepayments.

 

(i)
Any time and from time to time (subject to the payment of any prepayment premium
set forth in Section 2.09 (c)) the Borrower may prepay Loans on
any Business Day in whole or in part in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount.

 

(ii)All
such prepayments shall be made by 12:00 p.m. (New York City time) on a
prepayment date upon not less than three Business Days’ prior written notice
given to the Administrative Agent (and the Administrative Agent will promptly
deliver such notice for Term Loans or Revolving Loans, as the case may be, to
each applicable Lender). Upon the giving of any such notice, the principal
amount of the Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment shall be
 applied as specified in Section 2.11(a).

 

(b)Voluntary
Commitment Reductions.

 

(i)The
Borrower may, upon not less than three Business Days’ prior written notice
thereof to the Administrative Agent (which notice the Administrative Agent will
promptly deliver to each applicable Lender), at any time and from time to time,
terminate in whole or permanently reduce in part, without premium or penalty,
the Revolving Commitments on a pro rata basis as among the various Classes
 thereof (in accordance with the respective amounts thereof) in an aggregate
amount not to exceed the amount by which the Total Revolving Commitments exceed
the Total Revolving Outstanding Amount at the time of such proposed termination
or reduction; provided that any such partial reduction of the Revolving
Commitments shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount.

 

(ii)The
Borrower’s notice to the Administrative Agent shall designate the date (which
shall be a Business Day) of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of the Revolving
Commitments shall be effective on the date specified in the Borrower’s notice
and shall reduce the Revolving Commitment of each Lender proportionately to its
Revolving Percentage thereof.

 

(c)Call
Protection. In the event all or any portion of the Term Loans are repaid or
prepaid or the Total Revolving Commitments are terminated or reduced (including
pursuant to Section 2.23(b) as a result of, or in connection with,
any Lender not agreeing or otherwise consenting to any waiver, consent or
amendment in connection with a Repricing Event), repriced or effectively
refinanced through any amendment of the Term Loans or the Revolving Commitments
or accelerated for any reason (including following an Event of Default) prior to
the second anniversary of the Closing Date, such repayment, prepayment,
repricing, acceleration, termination or reduction:

 





52



 


 

(i)except
as provided in clause (iii) below, if such repayment, prepayment,
repricing, acceleration, termination or reduction occurs on or prior to the
first anniversary of the Closing Date, will be made in an amount equal to the
sum of (A) 100.0% of the principal amount of the Term Loans repaid,
prepaid, repriced or accelerated, plus accrued and unpaid interest, if
any, thereon to the date fixed for prepayment plus (B) the Make
Whole Premium applicable to the principal amount of the Term Loans repaid,
 prepaid, repriced or accelerated and the amount of the Total Revolving
Commitments terminated or reduced on such date and,

 

(ii)if
such repayment, prepayment, repricing, acceleration, termination or reduction
occurs after the first anniversary of the Closing Date, but on or prior to the
second anniversary of the Closing Date, 102.0% of the amount of Term Loans
repaid, prepaid, repriced or accelerated and 2.0% of the amount of the Total
Revolving Commitments terminated or reduced,

 

(iii)if
such voluntary repayment or voluntary prepayment occurs on or prior to the
second anniversary of the Closing Date and within 60 days following consummation
of a Disposition with a fair market value of greater than $25,000,000 pursuant
to Section 6.04(m) with respect to which the Borrower requested a
waiver of the requirement that at least 80% of the consideration for such
Disposition consist of Cash or Cash Equivalents which waiver request was not
granted by the Administrative Agent and the Required Lenders, 102.0% of the
amount of Term Loans voluntarily repaid or voluntarily prepaid (and for the
avoidance of doubt, no Make Whole Premium shall be due with respect to such
voluntary repayment or voluntary prepayment).

 

Section
2.10Mandatory
Prepayments and Commitment Reductions.

 

(a)Mandatory
Revolver Commitment Reductions. Any voluntary or mandatory prepayment of
Term Loans and any repayment of Term Loans pursuant to Section
2.03 shall be accompanied by a proportional mandatory reduction in the
Total Revolving Commitments in an amount equal to the product of (x) 0.4
multiplied by (y) the amount of the principal of the Term Loans repaid or
prepaid.

 

(b)Issuance
of Debt. No later than the first Business Day following the date of receipt
by any Group Member of any Net Cash Proceeds from the incurrence of any
Indebtedness of any Group Member (other than with respect to any Indebtedness
permitted to be incurred pursuant to Section 6.01) the
Borrower shall prepay (subject to the payment of any prepayment premium set
forth in Section 2.09(c)) the Term Loans and/or the Revolving
Commitments shall be permanently reduced as set forth in Section
 2.11(b) in an aggregate amount equal to 100% of such Net Cash
Proceeds.

 

(c)Revolving
Loans. The Borrower shall from time to time prepay the Revolving Loans to
the extent necessary so that the Total Revolving Exposure shall not at any time
exceed the Total Revolving Commitments then in effect.

 

(d)Prepayment
Certificate. Concurrently with any prepayment of the Term Loans pursuant to
Section 2.10(b), the Borrower shall deliver to the
Administrative Agent a certificate of a Responsible Officer demonstrating the
calculation of the amount of the applicable net proceeds. In the event that the
Borrower shall subsequently determine that the actual amount received exceeded
the amount set forth in such certificate, the Borrower shall promptly make an
additional prepayment of the Term Loans in an amount equal to such excess, and
the Borrower shall concurrently therewith deliver to the Administrative Agent a
certificate of a Responsible Officer demonstrating the derivation of such
excess.

 





53



 


 

(e)Borrowing
Base Overadvance. In the event that the Total Outstanding Amount exceeds the
Borrowing Base then in effect, the Borrower shall

 

(i)promptly
(and no later than three Business Days after such event) prepay the Loans in an
aggregate principal amount equal such excess; and/or

 

(ii)promptly
(and no later than three Business Days after such event) deposit Cash in a
Qualified Cash Deposit Account in an amount sufficient to cause the aggregate
principal amount of the Loans to no longer exceed the Borrowing Base.

 

(f)Margin
Regulation. In the event that the aggregate principal amount of the Loans
exceeds the Maximum Loan Value of the Collateral, the Borrower shall promptly
(and no later than one Business Day after such event) deposit Cash in a
Qualified Cash Deposit Account in an amount sufficient to cause the aggregate
principal amount of the Loans no longer to exceed the Maximum Loan Value of the
Collateral.

 

Section
2.11Application
of Prepayments/Reductions.

 

(a)Application
of Voluntary Prepayments and Overadvance Prepayments. Any prepayment of any
Class of Loan pursuant to Section 2.09(a), 2.10(c) and
2.10(e) shall be applied as specified by the Borrower in the
applicable notice of prepayment; provided, that any payment of Revolving
Loans shall be made on a pro rata basis as among the various Classes thereof (in
accordance with the respective outstanding principal amounts thereof);
provided, further, in the event the Borrower fails to specify the
Class of Loans to which any such prepayment shall be applied, such prepayment
shall be applied as follows:

 

first,
to repay outstanding Revolving Loans on a pro rata basis as among the various
Classes thereof (in accordance with the respective outstanding principal amounts
thereof) to the full extent thereof; and

 

second,
to prepay the Term Loans on a pro rata basis as among the various Classes
thereof (in accordance with the respective outstanding principal amounts
thereof), applied to each such Class to reduce the scheduled remaining
installments of principal in direct order of maturity.

 

(b)Application
of Mandatory Prepayments. Any amount required to be paid pursuant to
Section 2.10(b) shall be applied as follows:

 

first,
ratably in accordance with the principal amount of the Term Loans and the Total
Revolving Commitments to (i) prepay the Term Loans on a pro rata basis as among
the various Classes thereof (in accordance with the respective outstanding
principal amounts thereof), applied to each such Class to reduce the scheduled
remaining installments of principal in direct order of maturity and (ii) prepay
the Revolving Loans; and

 

second,
to prepay the Term Loans on a pro rata basis as among the various Classes
thereof (in accordance with the respective outstanding principal amounts
thereof), applied to each such Class to reduce the scheduled remaining
installments of principal in direct order of maturity.

 

(c)Application
of Prepayments of Loans to Base Rate Loans and Eurodollar Loans. Considering
each Class of Loans being prepaid separately, any prepayment thereof shall be
applied first to Base Rate Loans to the full extent thereof before application
to Eurodollar Loans, in each case in a manner which minimizes the amount of any
payments required to be made by Borrower pursuant to Section
2.20.

 





54



 


 

Section
2.12Conversion
and Continuation Options. Upon the expiration of the then-current
Interest Period with respect to any Loan, such Loan shall automatically be
continued as a Eurodollar Loan with an Interest Period of three months’
duration; provided that when any Event of Default has occurred and is
continuing for a period of 30 days or more or during the continuance of an Event
of Default described in Section 7.01(f) or Section
7.01(g), (x) no Base Rate Loan may be converted to a Eurodollar Loan and
(y) all Loans shall be immediately converted automatically to Base Rate Loans at
such time.

 

Section
2.13Minimum
Amounts and Maximum Number of Eurodollar Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions,
continuations and optional prepayments of Eurodollar Loans and all selections of
Interest Periods shall be in such amounts and be made pursuant to such elections
so that, (a) after giving effect thereto, the aggregate principal amount of
 the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no
more than 10 Eurodollar Tranches shall be outstanding at any one time.

 

Section
2.14Interest
Rates and Payment Dates.

 

(a)Each
Eurodollar Loan shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurodollar Rate
determined for such day plus the Applicable Margin in effect for such
day.

 

(b)Each
Base Rate Loan shall bear interest for each day on which it is outstanding at a
rate per annum equal to the Base Rate in effect for such day plus
the Applicable Margin in effect for such day.

 

(c)(i)
 Automatically, after the occurrence and during the continuance of an Event of
Default described in Section 7.01(a), Section
 7.01(f) or Section 7.01(g) and

 

(ii)after
notice to the Borrower from the Administrative Agent acting at the direction of
the Required Lenders, after the occurrence and during the continuance of any
other Event of Default,

 

the
Borrower shall pay interest on all amounts (whether or not past due) owing by it
hereunder at a rate per annum at all times, after as well as before
judgment, equal to

 

(x)
in the case of principal, at the rate otherwise applicable to such Loan pursuant
to Section 2.14(a) or Section 2.14(b), as
applicable, plus 2.00% per annum; and

 

(y)
in all other cases, at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the rate that
would be applicable to Base Rate Loans under the Revolving Facility plus
2.00% per annum,

 

in
each case, from the date of such Event of Default or if later, the date
specified in any such notice until such Event of Default is cured or waived.

 

(d)Interest
shall be due and payable by the Borrower in arrears on each Interest Payment
Date; provided that interest accruing pursuant to Section
2.14(c) shall be due and payable upon demand. Interest hereunder shall
be due and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law.

 





55



 


 

(e)All
computations of interest for Base Rate Loans determined by reference to the
“Prime Rate” shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year). Interest shall accrue on each Loan for
the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid;
provided that any Loan that is repaid on the same day on which it is made
shall bear interest for one day. Each determination by the Administrative Agent
of an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.

 

Section
2.15Illegality.
If any Lender determines that any law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable lending office to perform any of its obligations hereunder or to
make, maintain or fund or charge interest with respect to any Credit Extension
or to determine or charge interest rates based upon the Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, (i) any obligation of such Lender to issue, make,
maintain, fund or charge interest with respect to any such Credit Extension or
continue Eurodollar Loans or to convert Base Rate Loans to Eurodollar Loans
shall be suspended and (ii) if such notice asserts the illegality of such
 Lender making or maintaining Base Rate Loans the interest rate on which is
determined by reference to the Eurodollar Rate component of the Base Rate, the
interest rate on such Base Rate Loans of such Lender shall, if necessary to
avoid such illegality, be determined by the Administrative Agent without
reference to the Eurodollar Rate component of the Base Rate, in each case until
such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, (x) the Borrower shall, upon demand from such Lender (with a
copy to the Administrative Agent), prepay or, if applicable, convert all
Eurodollar Loans of such Lender to Base Rate Loans (the interest rate on which
Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be
determined by the Administrative Agent without reference to the Eurodollar Rate
component of the Base Rate), either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurodollar Loans
to such day, or immediately, if such Lender may not lawfully continue to
maintain such Eurodollar Loans and (y) if such notice asserts the
 illegality of such Lender determining or charging interest rates based upon the
Eurodollar Rate, the Administrative Agent shall during the period of such
suspension compute the Base Rate applicable to such Lender without reference to
the Eurodollar Rate component thereof until the Administrative Agent is advised
in writing by such Lender that it is no longer illegal for such Lender to
determine or charge interest rates based upon the Eurodollar Rate. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.

 

Section
2.16Inability
to Determine Interest Rate. If, in connection with any request for a
Eurodollar Loan or a conversion to or continuation thereof, (a) the
Administrative Agent determines that (i) Dollar deposits are not being
offered to banks in the London interbank Eurodollar market for the applicable
amount and Interest Period of such Eurodollar Loan, or (ii) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Loan or in
connection with an existing or proposed Base Rate Loan (in each case,
“Impacted Loans”), or (b) the Administrative Agent or the
affected Lenders determine that for any reason the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Loan does not
adequately and fairly reflect the cost to such Lenders of funding such
Eurodollar Loan, the Administrative Agent will promptly so notify the Borrower
and each Lender. Thereafter, (x) the obligation of the Lenders to make or
maintain Eurodollar Loans shall be suspended (to the extent of the affected
Eurodollar Loans or Interest Periods) and (y) in the event of a
determination described in the preceding sentence with respect to the Eurodollar
Rate component of the Base Rate, the utilization of the Eurodollar Rate
component in determining the Base Rate shall be suspended, in each case until
the Administrative Agent upon the instruction of the affected Lenders revokes
such notice. Upon receipt of such notice, the Borrower may revoke any pending
request for a borrowing of, conversion to or continuation of Eurodollar Loans
(to the extent of the affected Eurodollar Loans or Interest Periods) or, failing
that, will be deemed to have converted such request into a request for Base Rate
Loans in the amount specified therein.

 





56



 


 

Notwithstanding
the foregoing, if the Administrative Agent has made the determination described
in clause (a) above, the Administrative Agent, in
 consultation with the Borrower and the affected Lenders, may establish an
alternative interest rate for the Impacted Loans, in which case, such
alternative rate of interest shall apply with respect to the Impacted Loans
until (1) the Administrative Agent revokes the notice delivered with
respect to the Impacted Loans under clause (a) above,
(2) the Administrative Agent notifies or the affected Lenders notify the
Administrative Agent and the Borrower that such alternative interest rate does
not adequately and fairly reflect the cost to such Lenders of funding the
Impacted Loans or (3) any Lender determines that any law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for such Lender or its applicable lending office to make, maintain or fund Loans
whose interest is determined by reference to such alternative rate of interest
or to determine or charge interest rates based upon such rate or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to do any of the foregoing and provides the Administrative Agent and
the Borrower written notice thereof.

 

Section
2.17Payments
Generally; Administrative Agent’s Clawback.

 

(a)General.
All payments to be made by the Borrower hereunder, whether on account of
principal, interest, fees or otherwise, shall be made free and clear of and
without condition or deduction for any counterclaim, defense, recoupment or
setoff. All payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the Payment Office, in Dollars and in immediately available
funds prior to 12:00 p.m. (New York City time) on the date specified herein. Any
payment made by the Borrower hereunder that is received by the Administrative
Agent after 12:00 p.m. (New York City time) on any Business Day shall be deemed
to have been received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. The Administrative Agent shall
distribute such payments to the Lenders by wire transfer promptly upon receipt
in like funds as received. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day, and such
extension of time shall be reflected in computing interest or fees, as the case
may be. If any payment on a Eurodollar Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension of
any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.

 





57



 


 

(b)Funding
by Lenders; Presumption by Administrative Agent. Unless the Administrative
Agent shall have received written notice from a Lender prior to the proposed
date of such borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.02 or Section
2.05, as applicable, and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (i) in the case of a payment to be made by
such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation, and (ii) in the case of a payment to be made by
the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower
and such Lender shall pay such interest to the Administrative Agent for the same
or an overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender’s Loan included in
such borrowing. Any payment by the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.

 

(c)Payments
by Borrower; Presumptions by Administrative Agent. Unless the Administrative
Agent shall have received written notice from the Borrower prior to the date on
which any payment is due to the Administrative Agent for the account of the
Lenders hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders, as the case may be, the amount due. In such event, if
the Borrower has not in fact made such payment, then each of the Lenders, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender, with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.

 

(d)Obligations
of Lenders Several. The obligations of the Lenders hereunder to make Term
Loans and Revolving Loans and to make payments pursuant to Section
9.05(c) are several and not joint. The failure of any Lender to
make any Loan, to fund any such participation or to make any payment under
Section 9.05(c) on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so
make its Loan, to purchase its participation or to make its payment under
Section 9.05(c).

 

(e)Funding
Source. Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.

 

(f)Insufficient
Funds. Except in the case of any funds to be applied pursuant to Section
7.03, if at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i) first, toward
payment of interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, toward payment of principal then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.

 





58



 


 

Section
2.18Increased
Costs; Capital Adequacy.

 

(a)If
any Change in Law shall:

 

(i)impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except any
reserve requirement reflected in the Eurodollar Rate);

 

(ii)subject
any Recipient to any Taxes (other than (A) Indemnified Taxes and
(B) Excluded Taxes) on its Loans, Loan principal, Commitments or other
Obligations, or its deposits, reserves, other liabilities or capital
attributable thereto; or

 

(iii)impose
on any Lender or the London interbank market any other condition, cost or
expense (other than Taxes) affecting this Agreement or Loans made by such
Lender;

 

and
the result of any of the foregoing shall be to increase the cost to such Lender
or such other Recipient of making, converting to, continuing or maintaining any
 Loan, or to reduce the amount of any sum received or receivable by such Lender
or other Recipient hereunder (whether of principal, interest or any other
amount) then, upon the request of such Lender or other Recipient, the Borrower
will promptly pay to such Lender or other Recipient, as the case may be, such
additional amount or amounts as will compensate such Lender or other Recipient,
as the case may be, for such additional costs incurred or reduction
suffered.

 

(b)If
any Lender determines that any Change in Law affecting such Lender or any
lending office of such Lender or such Lender’s holding company, if any,
regarding capital or liquidity requirements, has or would have the effect of
reducing the rate of return on such Lender’s capital or on the capital of such
Lender’s holding company, if any, as a consequence of this Agreement, the
Commitments of such Lender or the Loans made by such Lender, to a level below
that which such Lender or such Lender’s holding company could have achieved but
for such Change in Law (taking into consideration such Lender’s policies and the
policies of such Lender’s holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender, as the case may be,
such additional amount or amounts as will compensate such Lender or such
Lender’s holding company for any such reduction suffered.

 

(c)A
certificate of a Lender setting forth the amount or amounts necessary to
compensate such Lender or its holding company, as the case may be, as specified
in Section 2.18(a) or Section 2.18(b) and delivered
to the Borrower (with a copy to the Administrative Agent), shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown as
due on any such certificate within 10 days after receipt thereof.

 

(d)Failure
or delay on the part of any Lender to demand compensation pursuant to this
Section 2.18 shall not constitute a waiver of such Lender’s right
to demand such compensation; provided that the Borrower shall not be
required to compensate a Lender pursuant to this Section 2.18 for
any increased costs incurred or reductions suffered more than twelve months
prior to the date that such Lender, as the case may be, notifies the Borrower of
the Change in Law giving rise to such increased costs or reductions, and of such
Lender’s intention to claim compensation therefor (except that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the
twelve-month period referred to above shall be extended to include the period of
retroactive effect thereof).

 





59



 


 

(e)The
obligations of the Borrower pursuant to this Section 2.18 shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.

 

Section
2.19Taxes.

 

(a)Defined
Terms. For purposes of this Section 2.19, the term “applicable
law” includes FATCA.

 

(b)Payments
Free of Taxes. Any and all payments by or on account of any obligation of
any Loan Party under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by applicable law. If any
applicable law (as determined in the good faith discretion of an applicable
Withholding Agent) requires the deduction or withholding of any Tax from any
such payment by a Withholding Agent, then the applicable Withholding Agent shall
be entitled to make such deduction or withholding and shall timely pay the full
amount deducted or withheld to the relevant Governmental Authority in accordance
with applicable law and, if such Tax is an Indemnified Tax, then the sum payable
by the applicable Loan Party shall be increased as necessary so that after such
deduction or withholding has been made (including such deductions and
withholdings applicable to additional sums payable under this Section
2.19) the applicable Recipient receives an amount equal to the sum it
would have received had no such deduction or withholding been made.

 

(c)Payment
of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to the
relevant Governmental Authority in accordance with applicable law, or at the
option of the Administrative Agent timely reimburse it for the payment of, any
Other Taxes.

 

(d)Indemnification
by the Loan Parties. The Loan Parties shall jointly and severally indemnify
each Recipient, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted
on or attributable to amounts payable under this Section 2.19)
payable or paid by such Recipient or required to be withheld or deducted from a
payment to such Recipient and any reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
Agent (with a copy to the Administrative Agent), or by the Administrative Agent
on its own behalf or on behalf of a Lender or Agent, shall be conclusive absent
manifest error.

 

(e)Indemnification
by the Lenders. Each Lender shall severally indemnify the Administrative
Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes
attributable to such Lender (but only to the extent that any Loan Party has not
already indemnified the Administrative Agent for such Indemnified Taxes and
without limiting the obligation of the Loan Parties to do so), (ii) any
Taxes attributable to such Lender’s failure to comply with the provisions of
Section 9.06(d) relating to the maintenance of a
Participant Register and (iii) any Excluded Taxes attributable to such
Lender, in each case, that are payable or paid by the Administrative Agent in
connection with any Loan Document, and any reasonable expenses arising therefrom
or with respect thereto, whether or not such Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to any Lender by the
Administrative Agent shall be conclusive absent manifest error. Each Lender
 hereby authorizes the Administrative Agent to set off and apply any and all
amounts at any time owing to such Lender under any Loan Document or otherwise
payable by the Administrative Agent to the Lender from any other source against
any amount due to the Administrative Agent under this Section
2.19(e).

 





60



 


 

(f)Evidence
of Payments. As soon as practicable after any payment of Taxes by any Loan
Party to a Governmental Authority pursuant to this Section 2.19,
such Loan Party shall deliver to the Administrative Agent 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 Administrative Agent.

 

(g)Status
of Lenders.

 

(i)Any
Lender that is entitled to an exemption from or reduction of withholding Tax
with respect to payments made under any Loan Document shall deliver to the
Borrower and the Administrative Agent, at the time or times reasonably requested
by the Borrower or the Administrative Agent, such properly completed and
executed documentation reasonably requested by the Borrower or the
Administrative Agent as will permit such payments to be made without withholding
or at a reduced rate of withholding. In addition, any Lender, if reasonably
requested by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion,
execution and submission of such documentation (other than such documentation
set forth in Section 2.19(g)(ii)(A), Section
2.19(g)(ii)(B) and Section 2.19(g)(ii)(D) below) shall not
be required if in the Lender’s reasonable judgment such completion, execution or
submission would subject such Lender to any material unreimbursed cost or
expense or would materially prejudice the legal or commercial position of such
Lender.

 

(ii)Without
limiting the generality of the foregoing,

 

(A)any
Lender that is a U.S. Person shall deliver to the Borrower and the
Administrative Agent on or prior to the date on which such Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), executed copies
of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup
withholding tax;

 

(B)any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to
the Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), whichever of
 the following is applicable:

 

(1)in
the case of a Foreign Lender claiming the benefits of an income tax treaty to
which the United States is a party (x) with respect to payments of interest
under any Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E
establishing an exemption from, or reduction of, U.S. federal withholding Tax
pursuant to the “interest” article of such tax treaty and (y) with respect
 to any other applicable payments under any Loan Document, executed copies of
IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of,
U.S. federal withholding Tax pursuant to the “business profits” or “other
income” article of such tax treaty;

 

(2)executed
copies of IRS Form W-8ECI or W-8EXP;

 





61



 


 

(3)in
the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of Exhibit E-1 to the effect that
such Foreign Lender is not a “bank” within the meaning of
Section 881(c)(3)(A) of the Code, a “10-percent shareholder” of the
 Borrower within the meaning of Section 881(c)(3)(B) of the Code or a
“controlled foreign corporation” described in Section 881(c)(3)(C) of the
Code (a “U.S. Tax Compliance Certificate”) and (y) executed
copies of IRS Form W-8BEN or W-8BEN-E; or

 

(4)to
the extent a Foreign Lender is not the beneficial owner, executed copies of IRS
Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S.
Tax Compliance Certificate substantially in the form of
Exhibit E-2 or Exhibit E-3, IRS Form W-9
and/or other certification documents from each beneficial owner, as applicable;
provided that, if the Foreign Lender is a partnership and one or more
direct or indirect partners of such Foreign Lender are claiming the portfolio
 interest exemption, such Foreign Lender may provide a U.S. Tax Compliance
Certificate substantially in the form of Exhibit E-4 on
behalf of each such direct and indirect partner;

 

(C)any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to
the Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), executed copies
 of any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in U.S. federal withholding Tax, duly completed,
together with such supplementary documentation as may be prescribed by
applicable law to permit the Borrower or the Administrative Agent to determine
the withholding or deduction required to be made; and

 

(D)if a
payment made to a Lender under any Loan Document would be subject to U.S.
federal withholding Tax imposed by FATCA if such Lender were to fail to comply
with the applicable reporting requirements of FATCA (including those contained
in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender
shall deliver to the Borrower and the Administrative Agent at the time or times
prescribed by law and at such time or times reasonably requested by the Borrower
or the Administrative Agent such documentation prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such
additional documentation reasonably requested by the Borrower or the
Administrative Agent as may be necessary for the Borrower and the Administrative
Agent to comply with their obligations under FATCA and to determine that such
Lender has complied with such Lender’s obligations under FATCA or to determine
the amount to deduct and withhold from such payment. Solely for purposes of this
Section 2.19(g)(ii)(D), “FATCA” shall include any amendments made
to FATCA after the date of this Agreement.

 

(h)Any
successor or supplemental Administrative Agent that is not a “United States
person” within the meaning of Section 7701(a)(30) of the Code, shall
deliver to the Borrower, on or prior to the date on which it becomes a party to
this Agreement, two duly completed copies of IRS Form W-8IMY, with the effect
that the Borrower may make payments to the Administrative Agent, to the extent
such payments are received by the Administrative Agent as an intermediary,
without deduction or withholding of any Taxes imposed by the United States.

 





62



 


 

Each
Lender agrees that if any form or certification it previously delivered expires
or becomes obsolete or inaccurate in any respect, it shall update such form or
certification or promptly notify the Borrower and the Administrative Agent in
writing of its legal inability to do so. The Lenders and any transferees or
assignees after the Closing Date will be required to provide to the
Administrative Agent or its agents all information, documentation or
certifications reasonably requested by the Administrative Agent to permit the
Administrative Agent to comply with its tax reporting obligations under
 applicable laws, including any applicable cost basis reporting obligations.

 

(i)Treatment
of Certain Refunds. If any party determines, in its sole discretion
exercised in good faith, that it has received a refund of any Taxes as to which
it has been indemnified pursuant to this Section 2.19 (including
by the payment of additional amounts pursuant to this Section
2.19), it shall pay to the indemnifying party an amount equal to such
refund (but only to the extent of indemnity payments made under this
Section 2.19 with respect to the Taxes giving rise to such
refund), net of all out-of-pocket expenses (including Taxes) of such indemnified
party and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund). Such indemnifying party,
upon the request of such indemnified party, shall repay to such indemnified
party the amount paid over pursuant to this Section 2.19 (i) (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) in the event that such indemnified party is required to repay such
refund to such Governmental Authority. Notwithstanding anything to the contrary
in this Section 2.19 (i) in no event will the indemnified party be
required to pay any amount to an indemnifying party pursuant to this
Section 2.19 (i) the payment of which would place the indemnified
party in a less favorable net after-Tax position than the indemnified party
would have been in if the Tax subject to indemnification and giving rise to such
refund had not been deducted, withheld or otherwise imposed and the
indemnification payments or additional amounts with respect to such Tax had
never been paid. This Section 2.19 (i) shall not be construed to
require any indemnified party to make available its Tax returns (or any other
information relating to its Taxes that it deems confidential) to the
indemnifying party or any other Person.

 

(j)Borrower
shall provide to Administrative Agent, upon reasonable request, an applicable
IRS Tax Form W-9 indicating its “US person” tax status and any other Tax form or
other documentation that will avoid or minimize any withholding Tax upon receipt
of payments of upon a foreclosure sale or other disposition of, or otherwise
with respect to, any Public Equities, Credit Assets, or other Collateral. The
Administrative Agent and Lenders shall be entitled to calculate any amounts or
valuation with respect to Public Equities, Credit Assets, or other Collateral
under the Loan Documents net of (and shall, without duplication, be entitled to
adjust one or more of the terms of provisions of the facility as necessary in
its good faith discretion to account for the effect of) any withholding Tax or
other Tax that may be imposed upon the holding or any prospective sale or
transfer of any Public Equities, Credit Assets, or other Collateral (including
upon an exercise of remedies by the Administrative Agent or Lenders).

 

(k)Survival.
Each party’s obligations under this Section 2.19 shall survive the
resignation or replacement of the Administrative Agent or any assignment of
rights by, or the replacement of, a Lender, the termination of the Commitments
and the repayment, satisfaction or discharge of all obligations under any Loan
Document.

 





63



 


 

Section
2.20Breakage
Payments. In the event of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement, (c) the making of a prepayment or conversion
of Eurodollar Loans on a day that is not the last day of an Interest Period with
respect thereto or (d) the assignment of any Eurodollar Loan on a day that
is not the last day of an Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section 2.23, then, in any
such event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined by
such Lender to be the excess, if any, of (i) the amount of interest that
 would have accrued on the principal amount of such Loan had such event not
occurred, at the Eurodollar Rate that would have been applicable to such Loan,
for the period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Loan), over (ii) the amount of interest that would accrue on such principal
amount for such period at the interest rate which such Lender would bid were it
 to bid, at the commencement of such period, for Dollar deposits of a comparable
amount and period from other banks in the Eurodollar market. A certificate as to
any amounts payable pursuant to this Section 2.20 submitted to the
Borrower (with a copy to the Administrative Agent) by any Lender shall be
conclusive in the absence of manifest error. The Borrower shall pay such Lender
the amount shown as due on any such certificate within three Business Days after
receipt thereof. This Section 2.20 shall survive the termination
 of this Agreement and the payment of the Loans and all other amounts payable
hereunder.

 

Section
2.21Pro
Rata Treatment.

 

(a)Each
borrowing of Term Loans of a given Class by the Borrower and any reduction of
the Term Loan Commitments of a given Class shall be allocated pro rata as among
the Lenders of such Class in accordance with their respective Term Loan
Commitments with respect to such Class. Each borrowing of Revolving Loans by the
Borrower, each payment by the Borrower on account of any Commitment Fee and any
reduction of the Revolving Commitments of the Lenders shall be allocated pro
rata as among the various Classes of Revolving Commitments and as among the
Lenders of each Class of Revolving Commitments in accordance with their
respective Revolving Commitments with respect to such Class (or, if such
Revolving Commitments shall have expired or been terminated, in accordance with
the Revolving Commitments as in effect immediately prior to such expiration or
termination).

 

(b)Each
repayment by the Borrower in respect of principal or interest on the Term Loans
and each payment in respect of fees or expenses payable hereunder shall be
applied to the amounts of such obligations owing to the Lenders entitled thereto
pro rata in accordance with the respective amounts then due and owing to such
Lenders. Each voluntary prepayment by the Borrower of a Class of Term Loans
shall be applied to the amounts of such obligations owing to the Term Lenders of
such Class pro rata in accordance with the respective amounts then due and owing
to the Term Lenders of such Class. Each mandatory prepayment by the Borrower of
the Term Loans shall be applied pro rata in accordance with the respective
principal amounts of the outstanding Term Loans of all Classes then held by the
Term Lenders (unless a given Class of Term Loans has elected to receive a lesser
allocation). Each payment (including each prepayment) by the Borrower in respect
 of principal or interest on the Revolving Loans shall be made pro rata in
accordance with the respective principal amounts of the outstanding Revolving
Loans then held by the Revolving Lenders.

 

(c)The
application of any payment of Loans under any Credit Facility shall be made,
first, to Base Rate Loans under such Credit Facility and, second,
to Eurodollar Loans under such Credit Facility. Each payment of the Loans
(except for any Revolving Loans that are Base Rate Loans that does not result in
Payment in Full) shall be accompanied by accrued interest to the date of such
payment on the amount paid.

 





64



 


 

Section
2.22Defaulting
Lenders.

 

(a)Defaulting
Lender Adjustments. Notwithstanding anything to the contrary contained in
this Agreement, if any Lender becomes a Defaulting Lender, then, until such time
as such Lender is no longer a Defaulting Lender, to the extent permitted by
applicable law:

 

(i)Waivers
and Amendments. Such Defaulting Lender’s right to approve or disapprove any
amendment, waiver or consent with respect to this Agreement shall be restricted
as set forth in Section 9.01(a) and the definitions of “Required
Lenders” and “Required Revolving Lenders”.

 

(ii)Defaulting
Lender Waterfall. Any payment of principal, interest, fees or other amounts
received by the Administrative Agent for the account of such Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Section
7.02 or otherwise) or received by the Administrative Agent from a
Defaulting Lender pursuant to Section 9.07 shall be applied at
such time or times as may be determined by the Administrative Agent as
follows:

 

first,
to the payment of any amounts owing by such Defaulting Lender to the
Administrative Agent hereunder;

 

second,
as the Borrower may request (so long as no Default or Event of Default exists),
to the funding of any Loan in respect of which such Defaulting Lender has failed
to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent;

 

third,
if so determined by the Administrative Agent and the Borrower, to be held in a
deposit account and released pro rata in order to satisfy such Defaulting
Lender’s potential future funding obligations with respect to Loans under this
Agreement;

 

fourth,
to the payment of any amounts owing to the Lenders as a result of any judgment
of a court of competent jurisdiction obtained by any Lender against such
Defaulting Lender as a result of such Defaulting Lender’s breach of its
obligations under this Agreement;

 

fifth,
so long as no Default or Event of Default exists, to the payment of any amounts
owing to the Borrower as a result of any judgment of a court of competent
jurisdiction obtained by the Borrower against such Defaulting Lender as a result
of such Defaulting Lender’s breach of its obligations under this Agreement;
and

 

sixth,
to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction;

 

provided
that if (x) such payment is a payment of the principal amount of any Loans
in respect of which such Defaulting Lender has not fully funded its appropriate
 share, and (y) such Loans were made at a time when the conditions set
forth in Section 4.02 were satisfied or waived, such
payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders
of the same Class as such Defaulting Lender on a pro rata basis prior to being
applied to the payment of any Loans of such Defaulting Lender until such time as
all Loans are held by the Lenders pro rata in accordance with the Commitments
under the applicable Credit Facility. Any payments, prepayments or other amounts
 paid or payable to a Defaulting Lender that are applied (or held) to pay
amounts owed by a Defaulting Lender pursuant to this Section
 2.22(a)(ii) shall be deemed paid to and redirected by such Defaulting
Lender, and each Lender irrevocably consents hereto.

 





65



 


 

(iii)Certain
Fees. No Defaulting Lender shall be entitled to receive any Commitment Fee
for any period during which that Lender is a Defaulting Lender (and the Borrower
shall not be required to pay any such fee that otherwise would have been
required to have been paid to that Defaulting Lender).

 

(b)Defaulting
Lender Cure. If the Borrower and the Administrative Agent agree in writing
that a Lender is no longer a Defaulting Lender, the Administrative Agent will so
notify the parties hereto, whereupon as of the effective date specified in such
notice and subject to any conditions set forth therein, that Lender will, to the
extent applicable, purchase at par that portion of outstanding Loans of the
other Lenders or take such other actions as the Administrative Agent may
determine to be necessary to cause the Loans to be held pro rata by the Lenders
in accordance with the Commitments under the applicable Credit Facility,
whereupon such Lender will cease to be a Defaulting Lender; provided that
no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of the Borrower while that Lender was a Defaulting
Lender; provided, further, that except to the extent otherwise
 expressly agreed by the affected parties, no change hereunder from Defaulting
Lender to Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender’s having been a Defaulting Lender.

 

Section
2.23Mitigation
Obligations; Replacement of Lenders.

 

(a)Designation
of a Different Lending Office. If any Lender requests compensation under
Section 2.18, or requires the Borrower to pay any Indemnified
Taxes or additional amounts to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.19, then such Lender
shall (at the request of the Borrower) use reasonable efforts (subject to
overall policy considerations of such Lender) to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the sole judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.18 or
Section 2.19, as the case may be, in the future, and
(ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.

 

(b)Replacement
of Lenders. If any Lender requests compensation under Section
2.18, or if the Borrower is required to pay any Indemnified Taxes or
additional amounts to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.19 and, in each case, such
Lender has declined or is unable to designate a different lending office in
accordance with Section 2.23(a), or if any Lender is a Defaulting
Lender and failed to cure the circumstances as a result of which it has become a
Defaulting Lender within five Business Days after the Borrower’s request that it
cure such circumstances or a Non-Consenting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 9.06), all of its interests, rights
(other than its existing rights to payments pursuant to Section
2.18 or Section 2.19) and obligations under this Agreement
and the related Loan Documents to an Eligible Assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that any Non-Consenting Lender shall be deemed to
have consented to the assignment and delegation of its interests, rights and
obligations if it does not execute and deliver an Assignment and Assumption to
the Administrative Agent within one Business Day after having received a request
therefor; provided, further, that:

 





66



 


 

(i)the
Borrower shall have paid to the Administrative Agent the assignment fee (if any)
specified in Section 9.06;

 

(ii)such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including
any amounts under Section 2.09(c) and Section 2.20)
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts);

 

(iii)in
the case of any such assignment resulting from a claim for compensation under
Section 2.18 or payments required to be made pursuant to
Section 2.19, such assignment will result in a reduction in such
compensation or payments thereafter;

 

(iv)such
assignment does not conflict with applicable law; and

 

(v)in
the case of any assignment resulting from a Lender becoming a Non-Consenting
Lender, the applicable assignee shall have consented to the applicable
amendment, waiver or consent.

 

A
Lender shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to
apply.

 

(c)Termination
of Defaulting Lenders. The Borrower may terminate the unused amount of the
Commitment of any Revolving Lender that is a Defaulting Lender upon not less
than five Business Days’ prior notice to the Administrative Agent (which shall
promptly notify the Lenders thereof), and in such event the provisions of
Section 2.22(a)(ii) will apply to all amounts thereafter paid by
the Borrower for the account of such Defaulting Lender under this Agreement
(whether on account of principal, interest, fees, indemnity or other amounts);
provided that (i) no Event of Default shall have occurred and be
continuing and (ii) such termination shall not be deemed to be a waiver or
release of any claim the Borrower, the Administrative Agent or any Lender may
have against such Defaulting Lender.

 

Article
 III.
REPRESENTATIONS AND WARRANTIES

 

To
induce the Agents and the Lenders to enter into this Agreement and the Lenders
to make the Loans, each of Ultimate Parent, the Primary Guarantor and the
Borrower hereby jointly and severally represents and warrants to each Agent and
each Lender on the Closing Date and upon each Credit Extension thereafter
that:

 

Section
3.01Existence,
Qualification and Power. Each Group Member (a) is duly incorporated or
organized, validly existing and, as applicable, in good standing under the laws
of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to own or lease its assets and carry on
 its business as now conducted and (c) is duly qualified and licensed and,
as applicable, in good standing under the laws of each jurisdiction where such
qualification or license or, if applicable, good standing is required; except,
in the case of clauses (a) (other than with respect to
Ultimate Parent, Primary Guarantor and any BR Advisory Loan Party),
(b) and (c) above, where such failure could not
reasonably be expected to have a Material Adverse Effect.

 





67



 


 

Section
3.02Authorization;
Enforceability. The Transactions to be entered into by each Loan Party
are within such Loan Party’s powers and have been duly authorized by all
necessary corporate or other organizational action on the part of each such Loan
Party. This Agreement has been duly executed and delivered by each Loan Party
party hereto and constitutes, and each other Loan Document to which any Loan
Party is to be a party, when executed and delivered by such Loan Party, will
constitute, a legal, valid and binding obligation of such Loan Party,
enforceable against such Loan Party in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors’ rights generally, regardless of whether considered in
a proceeding in equity or at law.

 

Section
3.03No
Conflicts. The Transactions (i) do not require any consent,
exemption, authorization or approval of, registration or filing with, or any
other action by, any Governmental Authority, except (A) such as have been
obtained or made and are in full force and effect, (B) filings necessary to
perfect or maintain the perfection or priority of the Liens created by the
Security Documents and (C) consents, approvals, exemptions, authorizations,
registrations, filings, permits or actions the failure of which to obtain or
perform could not reasonably be expected to have a Material Adverse Effect,
(ii) will not violate the Organizational Documents of any Group Member,
(iii) will not violate or result in a default or require any consent or
approval under any indenture, instrument, agreement, or other document binding
upon any Group Member or its property or to which any Group Member or its
property is subject, or give rise to a right thereunder to require any payment
to be made by any Group Member, except for violations, defaults or the creation
 of such rights that could not reasonably be expected to have a Material Adverse
Effect, (iv) will not violate any Requirement of Law in any material
respect and (v) will not result in the creation or imposition of any Lien
on any property of any Group Member, except Liens created by the Security
Documents.

 

Section
3.04Financial
Statements; No Material Adverse Effect.

 

(a)The
Borrower has heretofore delivered to the Administrative Agent and the Lenders
(i) the Historical Audited Financial Statements, audited by and accompanied
by the unqualified opinion of Marcum LLP, independent public accountants, and
(ii) the consolidated balance sheets of Ultimate Parent and its
Subsidiaries and the related consolidated statements of income or operations,
changes in stockholders’ equity and cash flows as of and for the three-month
period ended March 31, 2021 and for the comparable period of the preceding
fiscal year, in each case, certified by the chief financial officer of Ultimate
Parent. Such financial statements, and all financial statements delivered
pursuant to Section 5.01(a) and Section
5.01(b), have been prepared in accordance with GAAP consistently
applied throughout the applicable period covered thereby and present fairly and
accurately the consolidated financial condition and results of operations and
cash flows of Ultimate Parent as of the dates and for the periods to which they
relate (subject to normal year-end audit adjustments and the absence of
footnotes). Except as set forth in such financial statements, there are no
material liabilities of Ultimate Parent or any of its Subsidiaries of any kind,
whether accrued, contingent, absolute, determined, determinable or otherwise,
and there is no existing condition, situation or set of circumstances which
would reasonably be expected to result in such a liability.

 

(b)Since
the Closing Date, there has been no event, change, circumstance, condition,
development or occurrence that has had, or would reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.

 





68



 


 

Section
3.05Intellectual
Property. Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect:

 

(a)Each
Group Member owns or is licensed to use, free and clear of all Liens (other than
Permitted Liens), all Intellectual Property, necessary for the conduct of its
business as currently conducted.

 

(b)No
claim has been asserted and is pending by any person challenging the validity,
enforceability, registration or ownership of any Intellectual Property owned by
any of the Group Members. Neither any Group Member nor the conduct of the
respective businesses of such Group Member infringes, misappropriates, dilutes
or otherwise violates the Intellectual Property of any third party. No
proceedings have been instituted or are pending against any Group Member or, to
the knowledge of the Primary Guarantor, are threatened, alleging any such
infringement. Each Group Member has taken commercially reasonable actions to
protect the confidentiality of all trade secrets used in such Group Member’s
business.

 

(c)No
third party is infringing, misappropriating, diluting or otherwise violating any
Intellectual Property owned by any of the Group Members.

 

(d)No
Impairment. Neither the execution, delivery or performance of this Agreement
and the other Loan Documents, nor the consummation of the Transactions and the
other transactions contemplated hereby and thereby, will negatively alter,
impair or otherwise affect or require the consent, approval or other
authorization of any other person in respect of any right of any Group Member in
any Intellectual Property.

 

(e)No
Agreement or Order Materially Affecting Intellectual Property. No Group
Member is subject to any settlement, covenant not to sue or other instrument,
agreement or other document, or any outstanding order, which may affect the
validity or enforceability of any Intellectual Property owned by any of the
Group Members.

 

Section
3.06Properties.

 

(a)Each
Group Member has good and marketable title to, or valid leasehold interests in,
all its property material to its business, free and clear of all Liens and
irregularities, deficiencies and defects in title, except for Permitted Liens
and minor irregularities, deficiencies and defects in title that, individually
or in the aggregate, do not, and would not reasonably be expected to, interfere
with its ability to conduct its business as currently conducted or to utilize
such property for its intended purpose.

 

(b)Each
Group Member owns or has rights to use all of its property and all rights with
respect to any of the foregoing which are required for the business and
operations of the Group Members as presently conducted, except where the failure
to have such ownership or rights would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The use by each Group
Member of its property and all such rights with respect to the foregoing do not
infringe on the rights or other interests of any person, other than any
infringement that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. No claim has been made and remains
outstanding that any Group Member’s use of any of its property does or may
violate the rights of any third party that, individually or in the aggregate,
has had, or would reasonably be expected to result in, a Material Adverse
Effect.

 





69



 


 

Section
3.07Equity
Interests and Subsidiaries. Schedule 3.07 sets forth
(i) each Loan Party and its jurisdiction of incorporation or organization
as of the Closing Date and (ii) the number of each class of its Equity
Interests authorized, and the number outstanding, on the Closing Date and the
number of Equity Interests covered by all outstanding options, warrants, rights
of conversion or purchase and similar rights on the Closing Date. All Equity
Interests of each Loan Party are duly and validly issued and are fully paid and
non-assessable (to the extent such concepts are applicable) and are owned by the
Primary Guarantor, directly or indirectly, through Wholly Owned Subsidiaries.
All Equity Interests of the Primary Guarantor are owned directly by Ultimate
Parent. Each Loan Party is the record and beneficial owner of, and has good and
marketable title to, the Equity Interests pledged by (or purported to be pledged
 by) it under the Security Documents, free of any and all Liens, rights or
claims of other persons (other than Permitted Equity Liens), and, as of the
Closing Date, there are no outstanding warrants, options or other rights
(including derivatives) to purchase, or shareholder, voting trust or similar
agreements outstanding with respect to, or property that is convertible into, or
that requires the issuance or sale of, any such Equity Interests (or any
economic or voting interests therein).

 

Section
3.08Litigation.
There are no actions, suits, claims, disputes or proceedings at law or in equity
by or before any Governmental Authority now pending or, to the best of the
knowledge of the Primary Guarantor, threatened in writing against or affecting
any Group Member or any business, property or rights of any Group Member
(i) that purport to affect or involve any Loan Document or any of the
Transactions or (ii) that have resulted, or that have a reasonable
probability of being determined adversely and if so determined would,
individually or in the aggregate, reasonably be expected to result, in a
Material Adverse Effect.

 

Section
3.09Investment
Company Act. No Group Member is an “investment company” or a company
“controlled” by an “investment company,” as defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended.

 

Section
3.10Taxes.
Each Group Member has (a) filed or caused to be filed all material Tax
returns that are required to be filed by it and (b) paid or caused to be
paid all material Taxes required to be paid by it, except Taxes that are being
contested in good faith by appropriate proceedings and for which such Group
Member has set aside on its books adequate reserves in accordance with GAAP, so
long as such Taxes would not reasonably be expected to subject the Collateral to
forfeiture or loss. Each Group Member has made adequate provisions in accordance
with GAAP for all Taxes not yet due and payable. No Group Member has knowledge
(or could reasonably have knowledge upon due inquiry) of any proposed or pending
tax assessments, deficiencies, audits or other proceedings and no proposed or
pending tax assessments, deficiencies, audits or other proceedings have had, or
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. No Group Member has ever “participated” in a
“reportable transaction” within the meaning of Treasury Regulation
Section 1.6011-4. No Group Member is party to any tax sharing or similar
agreement. No transaction, stamp, capital, issuance, registration, transfer,
withholding or other Taxes are required to be paid by Administrative Agent or
any Lender in connection with any transfer of Public Equities, Credit Assets, or
other Collateral to Administrative Agent or such Lender exercising its rights
with respect thereto under the Loan Documents (including a foreclosure sale or
other disposition).

 

Section
3.11No
Material Misstatements.

 

(a)On
the Closing Date, all reports, financial statements, certificates or other
information furnished in writing (other than forward-looking information,
budgets, estimates and information of a general economic or industry-specific
nature) by or on behalf of the Primary Guarantor or the Borrower to the
Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder
or under any other Loan Document (as modified or supplemented by other
information so furnished), when taken as a whole, do not contain any material
misstatement of fact or omit to state any material fact necessary to make the
statements therein when taken as a whole, in light of the circumstances under
which they were made, not materially misleading.

 





70



 


 

(b)The
forward-looking information, budgets, estimates and information of a general
economic or industry-specific nature that have been furnished to the
Administrative Agent prior to the Closing Date, when taken as a whole, have been
prepared in good faith based upon assumptions believed by the Borrower to be
reasonable at the time made and at the time furnished (it being recognized that
such information is not to be viewed as facts and that no assurance can be given
that any particular financial projections will be realized, that actual results
may differ significantly from projected results and that such projections are
not a guarantee of performance).

 

Section
3.12Labor
Matters.

 

(a)There
are no strikes, lockouts, stoppages or slowdowns or other labor disputes
affecting any Group Member pending or, to the knowledge of the Loan Parties,
threatened in writing that have had, or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.

 

(b)All
payments due from any Group Member, or for which any claim may be made against
any Group Member, on account of wages and employee health and welfare insurance
and other benefits, have been paid or accrued as a liability on the books of
such Group Member except to the extent that the failure to do so has not had,
and would not reasonably be expected to have, a Material Adverse Effect.

 

(c)The
hours worked by and payments made to employees of any Group Member have not been
in violation of the Fair Labor Standards Act of 1938, as amended.

 

Section
3.13ERISA.
Each Plan and, with respect to each Plan, each Group Member and their respective
ERISA Affiliates are in compliance in all material respects with the applicable
provisions of ERISA and the Code. Each Plan which is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter
from the IRS indicating that such Plan is so qualified and nothing has occurred
 subsequent to the issuance of such determination letter which would cause such
Plan to lose its qualified status. No liability to the PBGC (other than required
premium payments), the IRS, any Plan (other than in the ordinary course) or any
trust established under Title IV of ERISA has been or is expected to be
incurred by any Group Member or any of their respective ERISA Affiliates with
respect to any Plan. No ERISA Event has occurred or is reasonably expected to
occur that, individually or together with any other ERISA Events, has had or
 could reasonably be expected to have a Material Adverse Effect. The present
value of all accrued benefit obligations under each Single Employer Plan (based
on those assumptions used to fund such Single Employer Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Single Employer Plan
allocable to such accrued benefit obligations by a material amount. As of the
most recent valuation date for each Multiemployer Plan, the potential liability
of the Group Members and each of their respective ERISA Affiliates for a
complete withdrawal from such Multiemployer Plan (within the meaning of
Section 4203 or Section 4205 of ERISA), when aggregated with such
potential liability for a complete withdrawal from all Multiemployer Plans, is
zero. The Group Members and each of their respective ERISA Affiliates have
complied with the requirements of Section 515 of ERISA with respect to each
Multiemployer Plan and are not in material “default” (as defined in
Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer
Plan. No Group Member or any of their respective ERISA Affiliates contributes
to, or has any liability with respect to, any Multiemployer Plan or has any
contingent liability with respect to any post-retirement welfare benefit under a
Plan that is subject to ERISA, other than liability for continuation coverage
described in Part 6 of Title I of ERISA. No Group Member or any of their
respective ERISA Affiliates maintains or contributes to any employee benefit
plan that is subject to the laws of any jurisdiction outside the United States
of America.

 





71



 


 

Section
3.14Environmental
Matters. Other than exceptions to any of the following that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect:

 

(a)the
Group Members: (i) are, and have been, in compliance with all applicable
Environmental Laws including obtaining, maintaining and complying with all
Environmental Permits required for their current or intended operations or for
any property owned, leased, or otherwise operated by any of them; and
(ii) reasonably believe that compliance with any Environmental Law that is
or is expected to become applicable to any of them will be timely attained and
maintained, without material expense;

 

(b)Materials
of Environmental Concern have not been Released and are not present at, on,
under, in, or about any real property currently owned, leased or operated by any
Group Member in violation of, or as would result in liability under, any
Environmental Law, or to the knowledge of the Primary Guarantor at any real
property formerly owned, leased or operated by any Group Member, or at any other
location (including, without limitation, any location to which Materials of
Environmental Concern have been sent for re-use, recycling, treatment, storage,
or disposal);

 

(c)there
are no pending or, to the knowledge of the Primary Guarantor threatened actions,
suits, claims, disputes or proceedings at law or in equity, administrative or
judicial, by or before any Governmental Authority (including any notice of
violation or alleged violation or seeking to revoke, cancel, or amend any
Environmental Permit) under or relating to any Environmental Law to which any
Group Member is, or to the knowledge of the Primary Guarantor, will be, named as
a party or affecting any Group Member or any business, property or rights of any
Group Member;

 

(d)no
Group Member has received any written request for information, or been otherwise
notified that it is a potentially responsible party under or relating to the
federal Comprehensive Environmental Response, Compensation, and Liability Act or
any similar Environmental Law, or with respect to any Release of Materials of
Environmental Concern;

 

(e)no
Group Member has entered into or agreed to any consent decree, order, or
settlement or other agreement, or is subject to any judgment, decree, or order
or other agreement, in any judicial, administrative, arbitral, or other forum
for dispute resolution, relating to compliance with Environmental Law or any
Environmental Liability; and

 

(f)no
Group Member has assumed or retained, by contract or, to the knowledge of the
Primary Guarantor, by operation of law, any Environmental Liabilities of any
kind, whether fixed or contingent, known or unknown.

 

Section
3.15Insurance.
Each Group Member is insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are customarily maintained
by similarly situated companies engaged in the same or similar businesses
operating in the same or similar locations (after giving effect to any
self-insurance).

 





72



 


 

Section
3.16Security
Documents. The Guarantee and Collateral Agreement is effective to create
in favor of the Collateral Agent, for the benefit of the Secured Parties, a
legal, valid, binding and enforceable security interest in the Collateral
described therein and proceeds and products thereof as required thereby. In the
case of (i) Pledged Equity Interests represented by certificates,
(x) when such certificates are delivered to the Collateral Agent or
(y) when financing statements in appropriate form are filed in the offices
 specified on Schedule 3.16(a), (ii) the other
Collateral described in the Guarantee and Collateral Agreement, when financing
statements in appropriate form are filed in the offices specified on
Schedule 3.16(a) and such other filings as are specified on
Schedule 3 to the Guarantee and Collateral Agreement have
been completed and (iii) the Deposit Accounts and Securities Accounts, when
Account Control Agreements have been executed by the parties contemplated
thereby, the Lien created by the Guarantee and Collateral Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Collateral and the proceeds and
products thereof, as security for the Secured Obligations (as defined in the
Guarantee and Collateral Agreement), in each case, prior and superior in right
to any other Person (except, with respect to priority only, Permitted Prior
Liens and, in the case of collateral constituting Equity Interests, Permitted
Equity Liens), in each case, to the extent such Lien can be perfected by
delivery of such collateral, the filing of any UCC financing statements or
execution and delivery of any account control agreements.

 

Section
3.17Material
Nonpublic Information. At the time of delivery of any Clear Period
Notice (as defined in the Guaranty and Collateral Agreement) with respect to any
Public Equity, no Loan Party or any Affiliate thereof shall be in possession of
any Material Nonpublic Information with respect to such Public Equity or the
Issuer thereof.

 

Section
3.18Solvency.
Ultimate Parent and its Subsidiaries, on a consolidated basis, both immediately
before and immediately after the consummation of the Transactions to occur on
the Closing Date and immediately following the making of each Credit Extension
are Solvent.

 

Section
3.19PATRIOT
Act, etc. To the extent applicable, each Group Member is in compliance,
in all material respects, with (i) the Trading with the Enemy Act, as
amended, and each of the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other
enabling legislation or executive order relating thereto, and (ii) the
PATRIOT Act. No part of the proceeds of the Loans will be used, directly or
indirectly, for any corrupt payment to any Person (including any governmental
 official or employee, political party, official of a political party, candidate
for political office, or anyone else acting in an official capacity), in order
to obtain, retain or direct business or obtain any improper advantage, in
violation of Anti-Corruption Laws.

 

Section
3.20Anti-Terrorism
Laws.

 

(a)None
of the Loan Parties or any of their respective Affiliates is in violation of any
Anti-Terrorism Law or engages in or conspires to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law.

 

(b)None
of the Loan Parties or any of their respective Affiliates or their respective
agents acting or benefiting in any capacity in connection with the Loans, the
Transactions or the other transactions hereunder, is any of the following (each
a “Blocked Person”):

 

(i)a
Person that is listed in the annex to, or is otherwise subject to the provisions
of, Executive Order No. 13224;

 

(ii)a
Person owned or controlled by, or acting for or on behalf of, any Person that is
listed in the annex to, or is otherwise subject to the provisions of, Executive
Order No. 13224;

 

(iii)a
Person with which any Agent or Lender is prohibited from dealing or otherwise
engaging in any transaction by any Anti-Terrorism Law;

 





73



 


 

(iv)a
Person that commits, threatens or conspires to commit or supports “terrorism”
(as defined in Executive Order No. 13224);

 

(v)a
Person that is named as a “specially designated national” on the most current
list published by the U.S. Treasury Department Office of Foreign Assets Control
at its official website or any replacement website or other replacement official
publication of such list; or

 

(vi)a
Person owned or controlled by with any Person described in Section
3.20(b)(i) through Section 3.20(b)(v) above.

 

(c)No
Group Member or, to the knowledge of any Group Member, any of its agents acting
in any capacity in connection with the Loans, the Transactions or the other
transactions hereunder (i) conducts any business or engages in making or
receiving any contribution of funds, goods or services to or for the benefit of
any Blocked Person or a Canada Blocked Person or (ii) deals in, or
otherwise engages in any transaction relating to, any property or interests in
property blocked pursuant to Executive Order No. 13224.

 

Section
3.21Anti-Corruption
Laws and Sanctions.

 

(a)Ultimate
Parent has implemented and maintains in effect policies and procedures
reasonably designed to ensure compliance by Ultimate Parent and its Subsidiaries
and their respective directors, officers, employees and agents with
Anti-Corruption Laws and applicable Sanctions.

 

(b)Ultimate
Parent and its Subsidiaries, and to the knowledge of the Ultimate Parent, the
respective officers, directors, employees and agents of the Ultimate Parent and
its Subsidiaries, are in material compliance, and have complied for the past
five years in all material respects, with Anti-Corruption Laws and applicable
Sanctions.

 

(c)
(i) No Group Member and none of its directors, officers or employees, and
(ii) to the knowledge of any Group Member, no agent of such Group Member
that will act in any capacity in connection with or benefit from the credit
facility established hereby, is a Sanctioned Person.

 

Section
3.22Use
of Proceeds. The Borrower will use the proceeds of the Loans only as set
forth in Section 5.11. The proceeds of the Loans will not be used
directly or indirectly in violation of Anti-Corruption Laws or applicable
Sanctions.

 

Section
3.23Borrowing
Base Certificate. The information set forth in each Borrowing Base
Certificate, at the time of submission, is true and correct in all material
respects and has been prepared in all material respects in the accordance with
the requirements of this Agreement. The Credit Assets, Private Assets and Public
Equities that are identified by the Primary Guarantor as Eligible Credit Assets
(or Eligible Subordinated Credit Assets or Eligible First Lien Credit Assets),
Eligible Private Assets and Eligible Public Equities in each Borrowing Base
Certificate submitted to the Administrative Agent, at the time of submission,
comply in all material respects with the criteria set forth in the definitions
of Eligible Credit Assets (or Eligible Subordinated Credit Assets or Eligible
First Lien Credit Assets), Eligible Private Assets and Eligible Public Equities,
respectively, or are otherwise Approved Assets.

 

The
Administrative Agent may rely, in determining which Credit Assets are Eligible
Credit Assets (or Eligible Subordinated Credit Assets or Eligible First Lien
Credit Assets), Private Assets are Eligible Private Assets and Public Equities
are Eligible Public Equities on all statements and representations made by the
Loan Parties in respect of such Credit Assets, Private Assets and Public
Equities.

 





74



 


 

Section
3.24Deposit
Accounts. Attached hereto as Schedule 3.24 is a
schedule of all Deposit Accounts and Securities Accounts maintained by the Loan
Parties as of the Closing Date.

 

Section
3.25Bona
Fide Loan; Full Recourse. The Transactions contemplated hereunder are
collectively intended to constitute a bona fide loan and are not intended
to be an offer or sale of Public Equities within the meaning of the Securities
Act. The Loans are “full recourse” (as such term is used in clause (d)(2)(i) of
Rule 144) to the Loan Parties.

 

Article
 IV.
CONDITIONS PRECEDENT

 

Section
4.01Conditions
to Initial Credit Extension. The obligation of each Lender to make the
initial Credit Extension requested to be made by it hereunder is subject to the
satisfaction (or waiver), prior to or concurrently with the making of such
Credit Extension on the Closing Date, of each of the following conditions
precedent:

 

(a)Loan
Documents. The Administrative Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of Ultimate
Parent, the Primary Guarantor, the Borrower, each Agent and each Lender,
(ii) a Note, executed and delivered by the Borrower in favor of each Lender
that has requested a Note at least two Business Days prior to the Closing Date
and (iii) each Security Document set forth on
Schedule 4.01(a), executed and delivered by a duly authorized
officer of each party thereto.

 

(b)Personal
Property Collateral.

 

(i)Each
Loan Party shall have delivered to the Administrative Agent and the Collateral
Agent, a completed Perfection Certificate, dated as of the Closing Date,
executed by a duly authorized officer of such Loan Party, together with all
attachments contemplated thereby;

 

(ii)each
Loan Party shall have delivered to the Administrative Agent, evidence that such
Loan Party shall have taken or caused to be taken any other action, executed and
delivered or caused to be executed and delivered any other agreement, document
and instrument (including any amendments to the articles of incorporation or
other constitutional documents of agreements of such Loan Party pursuant to
which any restrictions or inhibitions relating to the enforcement of any Lien
created by the Security Documents are removed) and authorized, made or caused to
be made any other filing and recording required under the Security Documents,
and each UCC financing statement required to perfect the Liens granted under the
Security Documents shall have been delivered to the Administrative Agent and
shall be in proper form for filing, registration or recordation;

 

(iii)the
Collateral Agent shall have received (1) the certificates representing the
shares of certificated Equity Interests pledged pursuant to the Guarantee and
Collateral Agreement, together with an undated stock power or other instrument
of transfer for each such certificate and, with respect to uncertificated
securities, the Uncertificated Securities Control Agreement, executed by a duly
authorized officer of each Loan Party party thereto, (2) to the extent required
under the Guarantee and Collateral Agreement, each promissory note pledged
pursuant to the Guarantee and Collateral Agreement duly executed (without
recourse) in blank (or accompanied by an undated instrument of transfer executed
in blank and satisfactory to the Administrative Agent) by the pledgor thereof
and (3) the Subordinated Intercompany Note executed by the parties thereto
accompanied by an undated instrument of transfer duly executed in blank and
satisfactory to the Administrative Agent; and

 





75



 


 

(iv)each
BR Advisory Loan Party shall have delivered to the Administrative Agent and the
Collateral Agent, Account Control Agreements with respect to each Deposit
Account and each Securities Account maintained by such BR Advisory Loan Party,
other than any Excluded Account, executed by such party and the relevant account
institution.

 

(c)Fees
and Expenses. The Lenders and the Agents shall have received all fees and
other amounts due and payable on or prior to the Closing Date, including, to the
extent invoiced at least two Business Days prior to the Closing Date,
reimbursement or payment of all reasonable and documented out-of-pocket expenses
(including reasonable and documented fees, disbursements and other charges of
 Latham & Watkins LLP) required to be reimbursed or paid under the
Commitment Letter or any Loan Document.

 

(d)Solvency
Certificate. The Administrative Agent shall have received a solvency
certificate (a “Solvency Certificate”) substantially in the form
attached hereto as Exhibit G, dated the Closing Date and
signed by the chief financial officer, chief accounting officer or other
authorized officer with equivalent duties of Ultimate Parent reasonably
acceptable to the Administrative Agent.

 

(e)Searches.
The Administrative Agent shall have received the results of a recent lien, tax
lien, judgment and litigation search in each of the jurisdictions or offices
(including, without limitation, in the United States Patent and Trademark Office
and the United States Copyright Office) in which UCC financing statement or
other filings or recordations should be made to evidence or perfect security
 interests in all assets of the Loan Parties (or would have been made at any
time during the five years immediately preceding the Closing Date to evidence or
perfect Liens on any assets of the Loan Parties), and such search shall reveal
no Liens or judgments on any of the assets of the Loan Parties, except for
Permitted Liens or Liens and judgments to be terminated on the Closing Date
pursuant to documentation reasonably satisfactory to the Administrative
Agent.

 

(f)Closing
Certificate. The Administrative Agent shall have received a certificate of
the Borrower, dated the Closing Date, confirming satisfaction of the conditions
set forth in Section 4.02(a) and Section
4.02(b).

 

(g)Secretary’s
Certificates. The Administrative Agent shall have received with respect to
the Borrower and each other Loan Party:

 

(i)copies
of the Organizational Documents of such Loan Party (including each amendment
thereto) certified as of a date reasonably near the Closing Date as being a true
and complete copy thereof by the Secretary of State or other applicable
Governmental Authority of the jurisdiction in which each such Loan Party is
organized;

 

(ii)a
certificate of the secretary or assistant secretary of each Loan Party dated the
Closing Date and certifying (A) that attached thereto is a true and
complete copy of the Organizational Documents of such Loan Party as in effect on
the Closing Date, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the board of directors or similar governing body of
such Loan Party (and, if applicable, any parent company of such Loan Party)
approving and authorizing the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party and the
consummation of the Transactions, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C) that
the certificate or articles of incorporation, formation or organization, as
applicable, of such Loan Party have not been amended since the date of the last
amendment thereto shown on the certificate of good standing furnished pursuant
to clause (iv) below and (D) as to the incumbency and
specimen signature of each Person authorized to execute any Loan Document or any
other document delivered in connection herewith on behalf of such Loan
Party;

 





76



 


 

(iii)a
certificate of another officer as to the incumbency and specimen signature of
the secretary or assistant secretary executing the certificate pursuant to
clause (ii) above; and

 

(iv)a
copy of the certificate of good standing of such Loan Party from the Secretary
of State or other applicable Governmental Authority of the jurisdiction in which
each such Loan Party is organized (dated as of a date reasonably near the
Closing Date).

 

(h)Legal
Opinions. The Administrative Agent shall have received the following
customary executed legal opinions:

 

(i)the
legal opinion of Sullivan and Cromwell LLP, special counsel to the Loan Parties;
and

 

(ii)the
legal opinion of local counsel in each jurisdiction in which a Loan Party is
organized, to the extent such Loan Party is not covered by the opinion
referenced in Section 4.01(h)(i), as may be required by the
Administrative Agent.

 

Each
such legal opinion shall (a) be dated as of the Closing Date, (b) be
addressed to the Agents and the Lenders and (c) cover such matters relating
to the Loan Documents and the Transactions as the Administrative Agent may
reasonably require. Each Loan Party hereby instructs such counsel to deliver
such opinions to the Agents and the Lenders.

 

(i)Bank
Regulatory Information. At least three Business Days prior to the Closing
Date, the Agents and the Lenders shall have received all documentation and other
information required by bank regulatory authorities and requested by any Agent
or any Lender under or in respect of applicable “know-your-customer” and
anti-money laundering rules and regulations, including the PATRIOT Act that was
requested at least 10 Business Days prior to the Closing Date and a Beneficial
Ownership Certification in relation to the Borrower.

 

(j)No
Material Adverse Effect. Since December 31, 2020, no event, change or
circumstance shall have occurred that has had, or would reasonably be expected
to result in, a Material Adverse Effect.

 

(k)Insurance.
The Administrative Agent shall have received a copy of, or a certificate as to
coverage under, the insurance policies required by Section
5.07.

 

(l)No
Litigation. There shall not exist any action, suit, investigation,
litigation, proceeding, injunction, hearing or other legal or regulatory
developments, pending or threatened in any court or before any arbitrator or
Governmental Authority that individually or in the aggregate materially impairs
the Transactions, the financing thereof or any of the other transactions
contemplated by the Loan Documents.

 

(m)Governmental
Authorizations and Consents. Each Loan Party shall have obtained
all Governmental Authorizations and all consents of other Persons, in each
case that are necessary in connection with the financing contemplated by the
Loan Documents, and each of the foregoing shall be in full force and effect and
in form and substance reasonably satisfactory to the Administrative Agent.

 

(n)Borrowing
Base Certificate. The Primary Guarantor shall have delivered a Borrowing
Base Certificate dated as of the Closing Date.

 





77



 


 

Each
Lender, by delivering its signature page to this Agreement and funding a Loan on
the Closing Date, shall be deemed to have consented to, approved or accepted or
to be satisfied with, each Loan Document and each other document required
thereunder to be consented to, approved by or acceptable or satisfactory to a
Lender, unless the Administrative Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.

 

Section
4.02Conditions
to Each Credit Extension. The obligation of each Lender to make any
Credit Extension requested to be made by it hereunder on any date is subject to
the satisfaction or waiver of the following conditions precedent:

 

(a)Representations
and Warranties. Each of the representations and warranties made by any Loan
Party in or pursuant to the Loan Documents shall be true and correct in all
material respects on and as of the date of such Credit Extension with the same
effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date); provided that any
representation and warranty that is qualified by “materiality”, “Material
Adverse Effect” or similar language shall be true and correct (after giving
effect to any qualification therein) in all respects.

 

(b)No
Default. No Default or Event of Default shall exist or would result from
such Credit Extension or from the application of the proceeds thereof.

 

(c)Borrowing
Notice. The Administrative Agent shall have received a fully executed
Borrowing Notice in accordance with Section 2.02(a) or
Section 2.05(b), as applicable.

 

(d)Revolving
Commitments. After making the Credit Extensions requested on such date, (x)
the Total Revolving Outstanding Amount shall not exceed the Revolving
Commitments then in effect and (y) the Total Outstanding Amount shall not exceed
the Borrowing Base.

 

Each
delivery of a Borrowing Notice or notice requesting the issuance, amendment,
extension and the acceptance by the Borrower of the proceeds of such Credit
Extension shall constitute a representation and warranty by the Primary
Guarantor that on the date of such Credit Extension (both immediately before and
after giving effect to such Credit Extension and the application of the proceeds
thereof) the conditions contained in this Section 4.02 have
been satisfied. The Primary Guarantor shall provide such information as the
Administrative Agent may reasonably request to confirm that the conditions in
this Section 4.02 have been satisfied.

 

Article
 V.
AFFIRMATIVE COVENANTS

 

Each
of Ultimate Parent, the Primary Guarantor and the Borrower hereby jointly and
severally agrees that, until Payment in Full, each of Ultimate Parent, the
Primary Guarantor and the Borrower shall, and shall (except in the case of the
covenants set forth in Section 5.01,
Section 5.02 and Section 5.03) cause
each of the Loan Parties to:

 

Section
5.01Financial
Statements. Deliver to the Administrative Agent:

 

(a)within
90 days after the end of each fiscal year of Ultimate Parent (commencing with
the fiscal year ended December 31, 2021),

 





78



 


 

(i)a
copy of the consolidated balance sheet of Ultimate Parent and its Subsidiaries
as at the end of such fiscal year and the related consolidated statements of
income or operations, changes in stockholders’ equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, prepared in accordance with GAAP, audited and accompanied
by a report and opinion of Marcum LLP or any other independent certified public
accounting firm of nationally recognized standing reasonably acceptable to the
Administrative Agent, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and shall not be subject to any
“going concern” or like qualification or exception or any qualification or
exception as to the scope of such audit (excluding any “emphasis of matter”
paragraph or any explanatory statement), other than any such qualification or
exception resulting from or relating to (x) an actual or anticipated breach of a
financial covenant contained in Section 6.13 or (y) an upcoming
maturity date of the Indebtedness hereunder;

 

(ii)within
(x) in the case of the balance sheet, 90 and (y) otherwise, 120 days after the
end of each fiscal year of Primary Guarantor (commencing with the fiscal year
ended December 31, 2021), a copy of the unaudited consolidated balance sheet of
Primary Guarantor and its Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income or operations, changes in
stockholders’ equity and cash flows for such fiscal year, certified by a
Responsible Officer of the Borrower as fairly presenting in all material
respects the financial condition, results of operations, and cash flows of
Primary Guarantor and its Subsidiaries in accordance with GAAP (subject only to
normal year-end audit adjustments and the absence of footnotes);

 

(b)(i)
 within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of Ultimate Parent (commencing with the fiscal quarter ended June
30, 2021), a copy of the consolidated balance sheet of Ultimate Parent and its
Subsidiaries as at the end of such fiscal quarter and the related consolidated
statements of income or operations, changes in stockholders’ equity and cash
flows for such fiscal quarter and the portion of the fiscal year through the end
of such fiscal quarter, setting forth in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, certified by a Responsible Officer of the
Borrower as fairly presenting in all material respects the financial condition,
results of operations, stockholders’ equity and cash flows of Ultimate Parent
and its Subsidiaries in accordance with GAAP (subject only to normal year-end
audit adjustments and the absence of footnotes); and

 

(ii)
within (x) in the case of the balance sheet, 45 and (y) otherwise, 60 days after
the end of each fiscal quarter of each fiscal year of the Primary Guarantor
(commencing with the fiscal quarter ended September 30, 2021), a copy of the
consolidated balance sheet of Primary Guarantor and its Subsidiaries as at the
end of such fiscal quarter and the related consolidated statements of income or
operations, and cash flows for such fiscal quarter and the portion of the fiscal
year through the end of such fiscal quarter, certified by a Responsible Officer
 of the Borrower as fairly presenting in all material respects the financial
condition, results of operations, and cash flows of Primary Guarantor and its
Subsidiaries in accordance with GAAP (subject only to normal year-end audit
adjustments and the absence of footnotes);

 

(c)solely
to the extent prepared in the ordinary course of business, if so available
within 60 days after the commencement of each fiscal year of Ultimate Parent,
budgeted statements of income for each of Ultimate Parent’, the Borrower’s and
the Primary Guarantor’s and its Subsidiaries’ business units;

 





79



 


 

(d)with
respect to any Underlying Obligor for which the aggregate Asset Values of the
related Credit Assets and Private Assets exceed $30,000,000, as soon as
available, but in any event within 10 Business Days of receipt thereof, any
financial statements, compliance certificates, budgets or similar materials
delivered to any Loan Party pursuant to the provisions of the relevant Credit
Asset Loan Documents or as owner of the relevant Private Assets (other than an
Material Nonpublic Information).

 

Any
documents required to be delivered pursuant to this Section 5.01
may be delivered by posting such documents electronically with notice of such
posting to the Administrative Agent and if so posted, shall be deemed to have
been delivered on the date on which such documents are posted on the Borrower’s
behalf on IntraLinks/IntraAgency or another relevant website sponsored by the
Administrative Agent to which each Lender has access.

 

Section
5.02Certificates;
Other Information. Deliver to the Administrative Agent:

 

(a)concurrently
with the delivery of the financial statements pursuant to Section
5.01(a) and Section 5.01(b), a duly completed Compliance
Certificate;

 

(b)promptly
after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of Ultimate
Parent, and copies of all annual, regular, periodic and special reports and
registration statements which Ultimate Parent may file or be required to file
with the SEC under Section 13 or 15(d) of the Exchange Act, or with any
national securities exchange, and in any case not otherwise required to be
delivered to the Administrative Agent pursuant hereto; provided that
notwithstanding the foregoing, the obligations in Section 5.01 and
this Section 5.02(b) may be satisfied if such information is
publicly available on the SEC’s EDGAR website;

 

(c)concurrently
with the pledge of any Public Equities pledged as Collateral, a certificate duly
executed by a Responsible Officer of the Borrower, which shall specify whether
such Public Equities being pledged constitute “restricted securities” within the
meaning of Rule 144, and if so, shall specify (i) whether or not the holding
period for purposes of Rule 144(d) of such Public Equities exceeds one year as
of the date of such pledge and (ii) whether or not the Issuer of such Public
Equities is an “issuer” described in Rule 144(i)(1);

 

(d)promptly,
and in any event within 10 Business Days of the end of each fiscal quarter of
Ultimate Parent, the Valuation Report for the third fiscal month of such fiscal
quarter;

 

(e)[reserved];

 

(f)promptly,
and in any event within five Business Days after receipt thereof by Ultimate
Parent or any of its Subsidiaries, copies of all notices of default or event of
default and amendments, waivers and other modifications received under or
pursuant to any material instrument, indenture, loan or credit or similar
agreement governing Indebtedness in an aggregate principal amount in excess of
Threshold Amendment;

 

(g)as
soon as available, but in any event within 90 days after the end of each fiscal
year of Ultimate Parent,

 

(i)a
report supplementing Schedule II.B of the Perfection
Certificate, setting forth

 

(A)a
list of registration numbers for all patents, trademarks, service marks, trade
names and copyrights awarded to any BR Advisory Loan Party, the Primary
Guarantor or any Subsidiary thereof during such fiscal year and

 





80



 


 

(B)a
list of all patent applications, trademark applications, service mark
applications, trade name applications and copyright applications submitted by
any BR Advisory Loan Party during such fiscal year and the status of each such
application, each such report to be signed by a Responsible Officer of the
Borrower and to be in a form reasonably satisfactory to the Administrative
Agent;

 

(ii)a
report supplementing Schedule I of the Perfection Certificate
and a certificate of a Responsible Officer of the Borrower certifying that all
UCC financing statements (including fixture filings, as applicable) and other
appropriate filings, recordings or registrations, including all re-filings,
re-recordings and re-registrations, have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
necessary to protect and perfect the Liens under the Security Documents for a
period of not less than 12 months after the date of such certificate (except as
noted therein with respect to any continuation statements to be filed within
such period); and

 

(iii)a
report supplementing Schedules II.A.2 and 3 of
the Perfection Certificate, setting forth each Deposit Account and Securities
Account established by any Borrowing Base Loan Party and each BR Advisory OpCo
during such fiscal year; and

 

(h)promptly,
such additional information regarding the business operation, financial, legal
or corporate affairs of Ultimate Parent or any of its Subsidiaries, or
compliance with the terms of the Loan Documents, as the Administrative Agent or
the Required Lenders may from time to time reasonably request.

 

Section
5.03Notices.
Promptly after a Responsible Officer of the Borrower or any Guarantor has
obtained knowledge thereof give written notice to the Administrative Agent
of:

 

(a)the
occurrence of any Default or Event of Default;

 

(b)any
development or event that has had, or would reasonably be expected to have, a
Material Adverse Effect;

 

(c)the
occurrence of any of the following events, as soon as possible and in any event
within ten (10) days after any Group Member knows or has reason to know
thereof:

 

(i)any
ERISA Event,

 

(ii)the
adoption of any new Single Employer Plan by any Group Member or any of their
respective ERISA Affiliates,

 

(iii)the
adoption of an amendment to a Single Employer Plan if such amendment results in
a material increase in benefits or unfunded liabilities or

 

(iv)the
commencement of contributions by any Group Member or any of their respective
ERISA Affiliates to a Multiemployer Plan or Single Employer Plan, which, in the
case of each of the foregoing clauses (i) through
(iv), shall specify the nature thereof, what action such Group
Member or any of their respective ERISA Affiliates has taken, is taking or
proposes to take with respect thereto and, when known (and if applicable), any
action taken or threatened by the IRS, the Department of Labor or the PBGC with
 respect thereto; and

 





81



 


 

(d)any
material change in accounting policies or financial reporting practices by
Ultimate Parent or any of its Subsidiaries;

 

Each
notice pursuant to this Section 5.03 shall be accompanied
by a statement of a Responsible Officer of the Borrower setting forth details of
 the occurrence referred to therein and stating what action the Borrower has
taken or proposes to take with respect thereto. Each notice pursuant to
Section 5.03(a) shall describe with particularity any and
all provisions of this Agreement and any other Loan Document that have been
breached.

 

Section
5.04Payment
of Taxes. Pay, discharge or otherwise satisfy as the same shall become
due and payable all its obligations and liabilities in respect of Taxes imposed
upon it or upon its income or profits or in respect of its property, except, in
each case, (i) to the extent any such Tax is being contested in good faith
and by appropriate proceedings for which appropriate reserves have been
established in accordance with GAAP, or (ii) if such failure to pay or
discharge such obligations and liabilities would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, in either
case, so long as such item would not reasonably be expected to subject the
Collateral to forfeiture or loss, and timely and accurately file all
federal, state and other material Tax returns required to be filed.

 

Section
5.05Preservation
of Existence, Etc.

 

(a)Preserve,
renew and maintain in full force and effect its legal existence and good
standing under the laws of the jurisdiction of its organization, except in a
transaction permitted by Section 6.03 and Section
6.04 or, solely with respect to Loan Parties other than Ultimate Parent,
Primary Guarantor, Borrower and Borrowing Base Loan Parties, where the failure
to do so would not reasonably be expected to have a Material Adverse Effect;

 

(b)take
all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent that failure to do so would not reasonably be expected to have a
Material Adverse Effect; and

 

(c)preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which would reasonably be expected to have a
Material Adverse Effect.

 

Section
5.06Maintenance
of Property. Maintain and preserve all of its material properties and
equipment necessary in the normal operation of its business in good working
order and condition, ordinary wear and tear and any casualty or condemnation
excepted, except where the failure to do so would not reasonably be expected to
have a Material Adverse Effect.

 

Section
5.07Maintenance
of Insurance. Except where the failure to do so would not reasonably be
expected to have a Material Adverse Effect, maintain with financially sound and
reputable insurance companies insurance with respect to its properties and
business in such amounts and against such risks as are customarily maintained by
similarly situated companies engaged in the same or similar businesses operating
in the same or similar locations (after giving effect to any self-insurance).
The Borrower shall cause that each such policy of insurance shall, subject to
Section 5.16, (i) name the Collateral Agent on behalf of the
Secured Parties as a loss payee or an additional insured, as applicable,
thereunder as its interests may appear and (ii) to the extent available from the
relevant insurance carrier, in the case of each casualty insurance policy
(excluding any business interruption insurance policy), contain a loss payable
 clause or endorsement that names the Collateral Agent, on behalf of the Secured
Parties, as the loss payee thereunder and, to the extent available from the
relevant insurance carrier after submission of a request by the applicable Loan
Party to obtain the same, provide for at least 30 days’ prior written notice to
the Administrative Agent of any modification or cancellation of such policy (or
10 days’ prior written notice in the case of the failure to pay any premiums
thereunder).

 





82



 


 

Section
5.08Books
and Records; Inspection Rights.

 

(a)(i)
 Maintain proper books of record and account, in which full, true and correct
entries in all material respects in conformity with GAAP consistently applied
shall be made of all financial transactions and matters involving the assets and
business of the Primary Guarantor or such Subsidiary, as the case may be (it
being understood and agreed that Foreign Subsidiaries may maintain individual
 books and records in conformity with generally accepted accounting principles
in their respective countries of organization or operations and that such
maintenance shall not constitute a breach of the representations, warranties or
covenants hereunder); and

 

(ii)maintain
such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over
the Primary Guarantor or such Subsidiary, as the case may be.

 

(b)Permit
representatives and independent contractors of the Administrative Agent to visit
and inspect any of its properties, to examine its corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and
independent public accountants, at such reasonable times during normal business
hours at time to be mutually agreed and as often as may be reasonably desired,
upon reasonable advance written notice to the Borrower; provided,
however, that

 

(i)unless
a Default or an Event of Default has occurred and is continuing, only one visit
and inspection shall be permitted per calendar year;

 

(ii)when
a Default or an Event of Default exists, the Administrative Agent or any Lender
(or any of their respective representatives or independent contractors) may do
any of the foregoing at the expense of the Borrower at any time on an unlimited
basis with reasonable advance written notice and during normal business
hours;

 

(iii)no
Group Member will be required to disclose or permit the inspection or discussion
of, any document, information or other matter (x) that constitutes non-financial
trade secrets or non-financial proprietary information, (y) in respect of which
disclosure to the Administrative Agent or any Lender (or their respective
representatives or independent contractors) is prohibited by law or any binding
agreement or (z) that is subject to attorney client or similar privilege or
constitutes attorney work product, in each case so long as the relevant Group
Member uses commercially reasonable efforts to inform the Administrative Agent
of the nature of the information withheld to the extent it may do so in
compliance with Requirements of Law and without waiving any relevant privilege;
and

 

(iv)the
Administrative Agent shall give each applicable Party the opportunity to
participate in any discussions with such Party’s independent public
accountants.

 

Section
5.09Compliance
with Laws. Comply with all Requirements of Law 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 could not
reasonably be expected to have a Material Adverse Effect.

 





83



 


 

Section
5.10Compliance
with Environmental Laws; Preparation of Environmental Reports.

 

(a)(i) Comply,
and cause all lessees and other Persons operating or occupying its properties to
comply, with all applicable Environmental Laws and Environmental Permits;
(ii) obtain and renew all Environmental Permits necessary for its
operations and properties; (iii) conduct any investigation, study, sampling
and testing, and undertake any cleanup, response or other corrective action
necessary to address any Releases of Materials of Environmental Concern at, on,
under or emanating from any property owned, leased or operated by it in
accordance with the requirements of all Environmental Laws, and (iv) make an
appropriate response to any investigation, notice, demand, claim, suit or other
proceeding asserting Environmental Liability against the Primary Guarantor or
any of its Subsidiaries and discharge any obligations it may have to any Person
thereunder, except in the case of each of clauses (i) through
(iv), where the failure to do so would not reasonably be expected
to have a Material Adverse Effect; provided that neither the
Primary Guarantor nor any of its Subsidiaries shall be required to undertake any
such cleanup, removal, remedial or other responsive action to the extent that
its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to such
circumstances in accordance with GAAP.

 

(b)After
the occurrence and during the continuance of an Event of Default, or based upon
a reasonable belief that a material Environmental Liability may exist (described
in writing to Borrower in reasonable detail), or at any other time (but not more
frequently than one time per year) at the request of the Administrative Agent or
the Required Lenders, provide to the Lenders within 60 days after such request,
 at the expense of the Borrower, an environmental assessment report for such
properties owned, leased or operated by it described in such request, prepared
by an environmental consulting firm acceptable to the Administrative Agent,
indicating the presence or absence of Materials of Environmental Concern or
noncompliance with Environmental Law and the estimated cost of any compliance,
response or other corrective action to address any such Materials of
Environmental Concern or noncompliance; without limiting the generality of the
foregoing, if the Administrative Agent determines at any time that a material
risk exists that any such report will not be provided within the time referred
 to above, the Administrative Agent may retain an environmental consulting firm
to prepare such report at the expense of the Borrower, and the Primary Guarantor
hereby grants and agrees to cause any Subsidiary that owns or leases any
property described in such request to grant the Administrative Agent, the
Lenders and their consultants, agents or representatives an irrevocable
non-exclusive license, subject to the rights of tenants or necessary consent of
landlords, to enter onto their respective properties to undertake such an
assessment.

 

Section
5.11Use
of Proceeds. Use the proceeds of the Loans only for general corporate
purposes of Ultimate Parent and any of its Subsidiaries. The Borrower will not
request any Credit Extension, and the Borrower shall not use, and shall procure
that its Affiliates and its or their respective directors, officers, employees
and agents shall not use, directly or indirectly, the proceeds of any Credit
 Extension (a) in furtherance of an offer, payment, promise to pay, or
authorization of the payment or giving of money, or anything else of value, to
any Person in violation of any Anti-Corruption Laws, (b) for the purpose of
funding, financing or facilitating any activities, business or transaction of or
with any Sanctioned Person, or in any Sanctioned Country or (c) in any
manner that would result in the violation of any Sanctions applicable to any
party hereto.

 

Section
5.12Covenant
to Guarantee Obligations and Give Security.

 

(a)Execute
any and all further documents, financing statements, agreements and instruments,
and take all further action (including filing Uniform Commercial Code and other
financing statements, and deeds of trust) that are required under applicable
Requirements of Law, or that the Required Lenders or the Administrative Agent
may reasonably request, in order to effectuate the Transactions contemplated by
the Loan Documents and in order to grant, preserve, protect and perfect the
validity and priority of the security interests created or intended to be
created by the Security Documents.

 





84



 


 

(b)In
the event that any Person becomes a Subsidiary of the Borrower after the Closing
Date (other than any Excluded Subsidiary), the Borrower shall, and shall cause
each other such Person to (a) within 30 days after such event (or such
longer period of time reasonably acceptable to the Administrative Agent), cause
such Person referred to in clause (x) or (y),
 as applicable, to become a Guarantor and a Grantor under (and as defined in)
the Guarantee and Collateral Agreement by executing and delivering to the
Collateral Agent a counterpart agreement or supplement to the Guarantee and
Collateral Agreement in accordance with its terms and (b) take all such
actions and execute and deliver, or cause to be executed and delivered, all such
documents, instruments, agreements, and certificates reasonably requested by
Administrative Agent in order to cause the Collateral Agent, for the benefit of
the Secured Parties, to have a Lien on all assets of such Person (other than
Excluded Assets), which Lien shall (other than with respect to assets
constituting Excluded Perfection Assets) be perfected and shall be of first
priority (subject to (i) in the case of all such assets constituting Equity
Interests, Permitted Equity Liens and (ii) in the case of all such other
assets, Permitted Liens) and shall deliver or cause to be delivered to the
Administrative Agent and the Collateral Agent, items as are similar to those
described in Section 4.01(b), Section 4.01(e),
Section 4.01(g), Section 4.01(h) and Section
4.01(k) hereof, and Section 5.10 of the Guarantee and
Collateral Agreement. With respect to each such Subsidiary of the Borrower that
 is not an Excluded Subsidiary, the Borrower shall, within 30 days of such event
(or such longer period of time reasonably acceptable to the Administrative
Agent), send to Administrative Agent written notice setting forth with respect
to such Person (i) the date on which such Person became a Subsidiary of the
Borrower and (ii) all of the data required to be set forth in
Schedule 3.16(a) with respect to all Subsidiaries of the
Borrower, and such written notice shall be deemed to supplement
Schedule 3.16(a) for all purposes hereof. Notwithstanding
anything to the contrary set forth herein, in no event shall this Section
5.12(b) require the granting of any Lien on any Excluded Assets
or the perfection of any Lien on any Excluded Perfection Assets.

 

Section
5.13Further
Assurances. Promptly upon request by the Administrative Agent, or any
Lender through the Administrative Agent,

 

(a)correct
any material defect or error that may be discovered in any Loan Document or in
the execution, acknowledgment, filing or recordation thereof, and

 

(b)do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and
other instruments as the Administrative Agent, or any Lender through the
Administrative Agent, may reasonably require from time to time in order to

 

(i)to
the fullest extent permitted by applicable law, subject any Loan Party’s
properties, assets, rights or interests to the Liens now or hereafter intended
to be covered by any of the Security Documents,

 

(ii)perfect
and maintain the validity, effectiveness and priority of any of the Security
Documents and any of the Liens intended to be created thereunder and

 

(iii)assure,
convey, grant, assign, transfer, preserve, protect and confirm more effectively
unto the Secured Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Loan Document or under any other
instrument executed in connection with any Loan Document to which any Loan Party
or any of its Subsidiaries is or is to be a party.

 





85



 


 

Section
5.14Borrowing
Base Certificate.

 

(a)The
Borrower will deliver to the Administrative Agent for delivery by the
Administrative Agent to each Lender, on or prior to the 10th day
after the last day of each fiscal month, a Borrowing Base Certificate as of the
close of business on the last day of the applicable preceding fiscal month,
which shall include, among other things, monthly cash flow details for the
Eligible Credit Assets (and Eligible Subordinated Credit Assets and Eligible
First Lien Credit Assets), Eligible Private Assets and Eligible Public Equities;
provided that after the occurrence and during the continuance of an Event
of Default, the Borrower shall deliver a Borrowing Base Certificate (as of the
close of business on the last Business Day of the immediately preceding week) on
or before the close of business of the third Business Day after the end of each
week.

 

(b)No
later than the later of (i) the next scheduled date of delivery of the
Borrowing Base Certificate in accordance with Section 5.14 (a) and
(ii) ten (10) Business Days after the Borrower obtains actual knowledge of
the incurrence of Indebtedness by 6 Brands or any Subsidiary of 6 Brands
pursuant to Section 6.01(p), the Borrower will deliver to the
Administrative Agent for delivery by the Administrative Agent to each Lender a
pro forma Borrowing Base Certificate showing the incurrence of such Indebtedness
 and any assets purchased with the proceeds thereof. Prior to delivery by the
Borrower of the first Borrowing Base Certificate following delivery of financial
statements pursuant to either Section 5.01(a)(i) or
(b)(i) covering the fiscal quarter in which such Indebtedness was
incurred, (i) the Administrative Agent shall be entitled to establish a Reserve
in the amount of 110% of the principal amount of such Indebtedness (and
following delivery of such Borrowing Base Certificate, no such Reserve shall be
taken) and (ii) for the avoidance of doubt, any assets purchased with the
proceeds of Indebtedness referenced in this Section 5.14(b) shall
be considered in determining the Asset Value of the Equity Interests in 6
Brands.

 

Section
5.15Cash
Management; Registration of Public Equities.

 

(a)The
Borrower shall, and shall cause each other BR Advisory Loan Party to, enter into
Account Control Agreements with respect to (i) each Deposit Account and each
Securities Account maintained by such BR Advisory Loan Party as of the Closing
Date, on the Closing Date and (ii) each Deposit Account and each Securities
Account opened by such BR Advisory Loan Party following the Closing Date, within
 30 days thereof, in each case, other than Excluded Accounts. Each such Account
Control Agreement shall provide for “springing control” in favor of the
Collateral Agent. Each BR Advisory Loan Party shall ensure that all payments
made to it are made directly to a Controlled Account and shall deposit any cash
or Cash Equivalents that it otherwise has or receives from time to time into a
Controlled Account.

 

(b)[Reserved].

 

(c)The
Borrower shall, and shall cause each Borrowing Base Loan Party to ensure
that

 

(i)all
of such Borrowing Base Loan parties’ Deposit Accounts and Securities Accounts
are established with Wells Fargo Bank, N.A. (or an Affiliate thereof),

 

(ii)all
payments and distributions made to it (including in respect of any Credit
Assets, Private Assets or Public Equities) are made directly to a Controlled
Account and shall deposit any cash or Cash Equivalents and other proceeds, or
distribution in respect, of any Credit Assets, Private Assets or Public Equities
that it otherwise has or receives from time to time into a Controlled
Account,

 





86



 


 

(iii)all
Public Equities owned by it are maintained in a Securities Account that is a
Controlled Account and

 

(iv)cause
all Public Equities to be (A)(x) transferred through the facilities of DTC to
the name of the securities intermediary with which the relevant Controlled
Account is maintained or (y) registered in the name of the securities
intermediary with which the relevant Controlled Account is maintained on the
share register maintained by the transfer agent of the relevant Issuer, as
applicable, and (B) credited to such Controlled Account.

 

(d)Concurrently
with delivery of the Borrowing Base Certificate, the Borrower shall deliver a
Waterfall Certificate setting forth any proposed distributions of funds from the
Controlled Accounts held by the Borrowing Base Loan Parties and the application
of such funds and certifying that the distribution is permitted under this
Agreement. All withdrawals from any Deposit Account or Security Account of a
Borrowing Base Loan Party shall be in accordance with such Waterfall Certificate
during the period beginning five Business Days and ending ten Business Days
following the delivery of such Waterfall Certificate. The Borrower shall not
make or otherwise permit any withdrawals from such Deposit Accounts or Security
Accounts to the contrary of this Section 5.15(d).

 

Section
5.16Post-Closing
Undertakings. Within the time periods specified on
Schedule 5.16 (or such later date to which the Administrative
Agent consents), comply with the provisions set forth in
Schedule 5.16.

 

Article
 VI.
NEGATIVE COVENANTS

 

Each
of Ultimate Parent, the Primary Guarantor and the Borrower hereby jointly and
severally agrees that, until Payment in Full, each of Ultimate Parent, the
Primary Guarantor and the Borrower shall not, and shall not permit any Group
Member to, directly or indirectly:

 

Section
6.01Limitation
on Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:

 

(a)Indebtedness
of any Loan Party created hereunder and under the other Loan Documents;

 

(b)Indebtedness
outstanding on the Closing Date, which in the case of any Indebtedness for
borrowed money (or guarantees thereof), which is listed on
Schedule 6.01 and Permitted Refinancing Debt in respect
thereof;

 

(c)Indebtedness
of the Primary Guarantor or any of its Subsidiaries (other than the BR Advisory
Loan Parties and 6 Brands and its Subsidiaries) in an aggregate principal amount
not to exceed $150,000,0000 outstanding at any time;

 

(d)unsecured
Indebtedness of Ultimate Parent;

 

(e)Indebtedness
of any Subsidiary of Primary Guarantor (other than Borrowing Base Loan Parties)
other than debt for borrowed money (and guarantees thereof) incurred in the
ordinary course of business and consistent with past practices;

 





87



 


 

(f)Indebtedness
of (i) any BR Advisory OpCo owing to any other BR Advisory OpCo and (ii) any
Non-Guarantor Subsidiary owing to any other Group Member other than Ultimate
Parent;

 

(g)Indebtedness
of Non-Guarantor Subsidiaries in respect of Swap Contracts entered into in the
ordinary course of business and incurred not for speculative purposes, and
Guarantees thereof by Non-Guarantor Subsidiaries;

 

(h)Indebtedness
of BR Advisory OpCos, Non-Guarantor Subsidiaries and Ultimate Parent
representing deferred compensation to employees of any Group Member incurred in
the ordinary course of business;

 

(i)Indebtedness
of BR Advisory OpCos, Non-Guarantor Subsidiaries and Ultimate Parent to current
or former officers, directors, managers, consultants, and employees, their
respective estates, spouses or former spouses to finance the purchase or
redemption of Equity Interests of Ultimate Parent permitted by Section
6.05;

 

(j)Indebtedness
of BR Advisory OpCos, Non-Guarantor Subsidiaries and Ultimate Parent in respect
of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts
or similar instruments issued or created in the ordinary course of business,
including such Indebtedness that is consistent with past practices in respect of
workers compensation claims, health, disability or other employee benefits or
property, casualty or liability insurance or self-insurance or other
Indebtedness with respect to reimbursement-type obligations regarding workers
compensation claims and letters of credit that are cash collateralized;

 

(k)Indebtedness
of BR Advisory OpCos, Non-Guarantor Subsidiaries and Ultimate Parent consisting
of (i) the financing of insurance premiums or (ii) take-or-pay obligations
contained in supply arrangements, in each case, incurred in the ordinary course
of business;

 

(l)obligations
of BR Advisory OpCos, Non-Guarantor Subsidiaries and Ultimate Parent in respect
of performance, bid, appeal and surety bonds and performance and completion
guarantees and similar obligations provided by any Group Member or obligations
in respect of letters of credit, bank guarantees or similar instruments related
thereto, in each case, in the ordinary course of business or consistent with
 past practices;

 

(m)Indebtedness
of BR Advisory OpCos, Non-Guarantor Subsidiaries and Ultimate Parent in respect
of netting services, automatic clearinghouse arrangements, overdraft
protections, employee credit card programs and other cash management and similar
arrangements, incurred in the ordinary course of business or consistent with
past practices and any Guarantees thereof;

 

(n)Guarantees
by (i) Non-Guarantor Subsidiaries in respect of Indebtedness of any Group Member
(other than Ultimate Parent) and (ii) BR Advisory OpCos in respect of
Indebtedness of any BR Advisory OpCo, in each case, otherwise permitted
hereunder and which would have been permitted to be incurred directly by such
guarantor;

 

(o)in
the case of any Non-Guarantor Subsidiary that is a registered broker and/or
dealer under the Securities Exchange Act, liabilities payable to brokers,
dealers, clearing organizations, clients and correspondents, and liabilities in
respect of securities sold but not yet purchased, in each case incurred in the
ordinary course of the “broker-dealer” business of such Non-Guarantor
Subsidiary, including the provision of margin for forward, future, option, swap,
repurchase or similar transactions, the making of advances to customers and the
establishment of performance or surety bonds or guarantees;

 





88



 


 

(p)Indebtedness
of 6 Brands or any of its Subsidiaries; and

 

(q)all
premium (if any), interest (including post-petition interest), fees, expenses,
charges, amortization of original issue discount, interest paid in kind and
additional or contingent interest on obligations described in
Section 6.01(b) through (p) above.

 

Notwithstanding
the foregoing, the Primary Guarantor and its Subsidiaries shall not guarantee
Intendedness of or otherwise provide direct credit support to Ultimate
 Parent.

 

Notwithstanding
the foregoing, the aggregate amount of Indebtedness permitted to be at any time
outstanding pursuant to Sections 6.01(h), (i),
(j), (k), (l) and (m)
shall not exceed $10,000,000.

 

Section
6.02Limitation
on Liens. Create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, except for:

 

(a)Liens
pursuant to any Loan Document;

 

(b)Liens
on property of any Non-Guarantor Subsidiary;

 

(c)non-consensual
Liens arising by operation of law;

 

(d)Liens
routinely imposed on all securities by the facilities of DTC or the relevant
Exchange;

 

(e)Liens
existing on the Closing Date and listed on Schedule
6.02;

 

(f)[reserved];

 

(g)Liens
in favor of any BR Advisory Loan Party (other than on the assets of any
Borrowing Base Loan Party);

 

(h)[reserved];

 

(i)Liens
on property owned by any Excluded Subsidiary;

 

(j)customary
restrictions on transfers of assets contained in agreements related to the sale
by any BR Advisory Loan Party (other than a Borrowing Base Loan Party) of such
assets pending their sale, provided that such restrictions apply
only to the assets to be sold and such sale is permitted hereunder;

 

(k)Liens
on cash advances by Ultimate Parent in favor of the seller of any property to be
acquired in an Investment permitted hereunder to be applied against the purchase
price for such Investment;

 

(l)customary
Liens on Equity Interests of any joint venture (i) securing obligations of such
joint venture or (ii) pursuant to the relevant joint venture agreement or
arrangement;

 

(m)pledges
and deposits by BR Advisory OpCos to secure the performance of bids, trade
contracts and leases (other than debt for borrowed money), statutory or
regulatory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;

 





89



 


 

(n)Liens
securing judgments for the payment of money not constituting an Event of Default
under Section 7.01(i) or securing appeal or other surety bonds
related to such judgments;

 

(o)easements,
rights of way, covenants, zoning, use restrictions and other encumbrances on
title to real property of any BR Advisory OpCo and title defects or
irregularities that do not in, the aggregate, interfere in any material respect
with the ordinary conduct of the business of any BR Advisory OpCo;

 

(p)any
interest or title of a lessor, sublessor, licensee or licensor under any
operating lease or license agreement of any BR Advisory OpCo entered into in the
ordinary course of business and not interfering in any material respect with the
business of any BR Advisory OpCo;

 

(q)banker’s
liens, rights of set off or similar rights and remedies as to deposit accounts
or other funds maintained with depository institutions and securities accounts
and other financial assets maintained with a securities intermediary, in each
case granted in the ordinary course of business;

 

(r)[reserved];

 

(s)Liens
encumbering reasonable and customary initial deposits and margin deposits and
similar Liens attaching to brokerage accounts of Ultimate Parent incurred in the
ordinary course of business and not for speculative purposes;

 

(t)Liens
on premium refunds granted in favor of insurance companies (or their financing
affiliates) in the ordinary course of business in connection with the financing
of insurance premiums;

 

(u)[reserved];

 

(v)non-exclusive
licenses of Intellectual Property entered in the ordinary course of business;
and

 

(w)the
replacement, extension or renewal of any Lien permitted by clauses
(e), (h) and (i) above upon or on the same
property subject thereto arising out of the replacement, extension or renewal of
the Indebtedness secured thereby (to the extent such replacement, extension or
renewal of such Debt is not prohibited under Section 6.01).

 

Section
6.03Limitation
on Fundamental Changes. Merge, acquire, consolidate or amalgamate, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its Property or business (whether now
owned or hereafter acquired), except that:

 

(a)(i)
any Non-Guarantor Subsidiary may be merged, amalgamated or consolidated with or
into (x) any other Subsidiary of Primary Guarantor (so long as, in the case of a
merger, amalgamation or consolidation with a Loan Party, such Loan Party is the
surviving entity) or (y) any other Person in a transaction that is permitted
under Section 6.04(m);

 

(ii)
any Borrowing Base Loan Party may be merged, amalgamated or consolidated with or
into any other Person, so long as a Borrowing Base Loan Party is the surviving
entity; and

 

(iii)
any BR Advisory OpCo may be merged, amalgamated or consolidated with or into any
other Person (other than a Borrowing Base Loan Party), so long as a BR Advisory
OpCo is the surviving entity;

 





90



 


 

(b)(i)
any Non-Guarantor Subsidiary may Dispose of all or substantially all of its
assets or business (upon voluntary liquidation or otherwise) to (x) the Primary
Guarantor or any Subsidiary thereof or (y) any other Person in a transaction
that is permitted under Section 6.04(m);

 

(ii)
 any Borrowing Base Loan Party may Dispose of all or substantially all of its
assets or business (upon voluntary liquidation or otherwise) to any other
Borrowing Base Loan party; and

 

(iii)
 any BR Advisory OpCo may Dispose of all or substantially all of its assets or
business (upon voluntary liquidation or otherwise) to any other BR Advisory
OpCo;

 

(c)any
merger the purpose of which is to reincorporate or reorganize a Group Member in
another jurisdiction shall be permitted; provided that, in the case of
any Loan Party, such reincorporation or reorganization shall be subject to the
prior written consent of the Administrative Agent not to be unreasonably
withheld;

 

(d)any
Subsidiary of the Primary Guarantor (other than the BR Advisory Loan Parties)
may liquidate or dissolve or change its legal form if the Primary Guarantor
determines in good faith that such action is not materially adverse to the
interests of the Lenders, provided

 

(i)no
Event of Default shall result therefrom, and

 

(ii)the
surviving Person (or the Person who receives the assets of such dissolving or
liquidated Subsidiary) shall be a Subsidiary of the Primary Guarantor;

 

(e)[reserved];

 

(f)any
Subsidiary (other than a Loan Party) may merge or consolidate with any other
Person in order to effect an Investment permitted by the Loan Documents; and

 

(g)any
Subsidiary (other than a Loan Party) may conduct a division that produces two or
more surviving or resulting Persons.

 

Section
6.04Limitations
on Dispositions. Dispose of any of its Property (including, without
limitation, receivables and leasehold interests), whether now owned or hereafter
acquired, or, in the case of any Subsidiary, issue or sell any Equity Interests
of such Subsidiary to any Person, except:

 

(a)Dispositions
in the ordinary course of business;

 

(b)with
respect to a Non-Guarantor Subsidiary or a BR Advisory OpCo, Dispositions of
obsolete, damaged, worn out, used or surplus property (including for purposes of
recycling), whether now owned or hereafter acquired and Dispositions of property
that is no longer used or useful in the conduct of the business of the Group
Members or economically practicable or commercially desirable to maintain;

 

(c)with
respect to a Non-Guarantor Subsidiary or a BR Advisory OpCo, Dispositions of
property to the extent that (i) such property is exchanged for credit against
the purchase price of similar replacement property or (ii) the proceeds of such
Disposition are promptly applied to the purchase price of such replacement
property; provided that to the extent the property being transferred
constitutes Collateral such replacement property shall constitute
Collateral;

 



91



 


 



(d)Dispositions
of Cash Equivalents; provided, that such Disposition shall be for no less
than the fair market value of such property at the time of such Disposition;

 

(e)[reserved];

 

(f)with
respect to a Non-Guarantor Subsidiary or a BR Advisory OpCo, subleases, licenses
or sublicenses (including the provision of software under an open source
license), which do not materially interfere with the business of the Group
Members, taken as a whole; provided, that such Disposition shall be for
no less than the fair market value of such property at the time of such
Disposition;

 

(g)with
respect to a Non-Guarantor Subsidiary or a BR Advisory OpCo, Dispositions of
property subject to casualty events;

 

(h)with
respect to a Non-Guarantor Subsidiary or Excluded Subsidiary, Dispositions of
Investments in joint ventures to the extent required by, or made pursuant to
customary buy/sell arrangements between, the joint venture parties set forth in
joint venture arrangements and similar binding arrangements;

 

(i)with
 respect to a Non-Guarantor Subsidiary or a BR Advisory OpCo, Dispositions or
discounts of accounts receivable and related assets in connection with the
collection, compromise or factoring thereof;

 

(j)
 with respect to a Non-Guarantor Subsidiary, Dispositions in connection with the
unwinding of any Swap Contract;

 

(k)with
respect to a Non-Guarantor Subsidiary, the abandonment or discontinuance of the
maintenance of any Intellectual Property that is no longer material to the
conduct of the Borrower or any other Group Member, or otherwise of material
value;

 

(l)Dispositions
 by a Non-Guarantor Subsidiary to any Subsidiary of the Primary Guarantor;

 

(m)Dispositions
by the Primary Guarantor or any Subsidiary of the Primary Guarantor (other than
Borrowing Base Loan Parties) of assets for fair market value;
provided that with respect to any such Disposition (or series of
related Dispositions) with a fair market value of $25,000,000 or more, at least
80% of the consideration shall consist of Cash or Cash Equivalents;
provided further that the Primary Guarantor and any Non-Guarantor
Subsidiary may make such Dispositions (or series of related Dispositions) with a
fair market value of $25,000,000 or more under this clause (m)
where less than 80% of the consideration consists of Cash or Cash Equivalents so
long as (i) the Primary Guarantor or such Non-Guarantor Subsidiary shall have
delivered a prior written request to the Administrative Agent for a waiver of
such requirement at least ten (10) Business Days prior to such Disposition and
(ii) if such request is denied, the Term Loans shall have been prepaid in an
amount equal to the fair market value of such non-Cash consideration (as
determined by the Primary Guarantor in good faith), together with any prepayment
premium due under Section 2.09(c)(iii), within 60 days of
consummation of such Disposition;

 

(n)Any
sale or issuance of:

 

(i)Equity
Interests of any Subsidiary of the Primary Guarantor (other than BR Advisory
Loan Parties);

 



92



 


 



(ii)Equity
Interests of any BR Advisory Loan Party to another BR Advisory Loan Party;
and

 

(iii)Equity
 Interests of the Borrower to the Primary Guarantor; and

 

(o)To
the extent constituting Dispositions, Liens permitted pursuant to
Section 6.02, Restricted Payments pursuant to
Section 6.05 and Investments pursuant to
Section 6.06.

 

Section
6.05Limitation
on Restricted Payments. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that:

 

(a)Primary
Guarantor may declare and make Restricted Payments in the form of Cash, in the
ordinary course of business and consistent with past practice so long as before
and after giving effect to such Restricted Payment, no Default or Event of
Default has occurred and is continuing and Ultimate Parent is pro forma
compliance with Section 6.13; provided that Restricted
Payments with the direct or indirect proceeds of Dispositions by any
Non-Guarantor Subsidiary or the Primary Guarantor, in each case, outside the
 ordinary course of business or of any business line thereof, shall not exceed
$200,000,000 in the aggregate;

 

(b)(i)
Any BR Advisory OpCo may declare and make cash Restricted Payments of Excess
Operating Cash, so long as before and after giving effect to such Restricted
Payment,

 

(A)no
Default or Event of Default has occurred and is continuing;

 

(B)the
aggregate principal amount of the Loans does not exceed the Borrowing Base in
effect at such time; and

 

(C)the
Borrower is in pro forma compliance with Section 6.09;

 

(ii)Any
 Borrowing Base Loan Party may declare and make cash Restricted Payments of
Non-Ordinary Course Proceeds as set forth in a Waterfall Certificate so long as
before and after giving effect to such Restricted Payment,

 

(A)no
Default or Event of Default has occurred and is continuing and

 

(B)the
Borrower has delivered a pro forma Borrowing Base Certificate pursuant to
Section 5.14 calculating the Borrowing Base as of the date of such
Restricted Payment demonstrating that the Borrowing Base is not less than
$400,000,000;

 

(iii)Any
Borrowing Base Loan Party may declare and make cash Restricted Payments of
amounts received in respect of Credit Assets, Public Equities or Private Assets
(excluding Non-Ordinary Course Proceeds) as set forth in a Waterfall
Certificate, so long as before and after giving effect to such Restricted
Payment

 

(A)no
Default or Event of Default has occurred and is continuing;

 

(B)the
aggregate principal amount of the Loans does not exceed the Borrowing Base in
effect at such time; and

 

(C)the
Borrower is in pro forma compliance with Section 6.09;

 



93



 


 



(iv)the
Borrower may declare and make Restricted Payments of the proceeds of any
Restricted Payment made pursuant to Sections 6.05(b)(i) through
(iii), so long as before and after giving effect to such
Restricted Payment,

 

(A)no
Default or Event of Default has occurred and is continuing;

 

(B)the
aggregate principal amount of the Loans does not exceed the Borrowing Base in
effect at such time; and

 

(C)the
Borrower is in pro forma compliance with Section 6.09;

 

(c)Any
Non-Guarantor Subsidiary and any Subsidiary of a Non-Guarantor Subsidiary may
declare and make Restricted Payments to Primary Guarantor or any Subsidiary
thereof;

 

(d)Ultimate
Parent may declare and make Restricted Payments; and

 

(e)Each
of Great American Group Advisory and Valuation Services, LLC and 6 Brands and
its Subsidiaries may, in each case, declare and make Restricted Payments to all
holders of its Equity Interests ratably based on their relative ownership
interests according to their respective holdings of the type of Equity Interest
in respect of which such Restricted Payment is being made, or otherwise as
provided pursuant to such entity’s Organizational Documents, so long as no Event
of Default has occurred and is continuing.

 

Section
6.06Limitation
on Investments. Make or hold, directly or indirectly, any Investments,
except:

 

(a)(i)
Investments in any Borrowing Base Loan Party;

 

(ii)Investments
by Primary Guarantor or any Subsidiary thereof (other than a Borrowing Base Loan
Party) in any BR Advisory Loan Party; and

 

(iii)Investments
by Primary Guarantor or any Non-Guarantor Subsidiary in the Primary Guarantor or
any Subsidiary thereof (other than an Excluded Subsidiary); 

 

(b)(i)
Investments by any Subsidiary of the Primary Guarantor, (ii) Investments by
Ultimate Parent (x) in the Primary Guarantor, (y) in any Person to the extent
such Investment is a guarantee of Indebtedness or other liabilities or
commitments of such Person, and (z) in any Person to the extent such Investment
is contributed by Ultimate Parent to any Group Member substantially concurrently
with the making of such Investment (provided that (A) such contribution
by Ultimate Parent and (B) such Investment, following its contribution to such
Group Member, are, in each case, permitted under Section 6.06
without reference to this clause (b)(ii)(z)), and (iii)
Investments by the Primary Guarantor in Subsidiaries of the Primary Guarantor,
in each case, in the ordinary course of business and consistent with past
practice (which shall in no event include (A) Investments in Ultimate Parent or
(B) investments by any Borrowing Base Loan Party in any other Subsidiary of the
Ultimate Parent); and

 

(c)Investments
existing on the Closing Date and set forth on Schedule 6.06
and any modification, replacement, renewal or extension thereof (but without
increasing the size of such Investment).

 





94



 


 

Section
6.07Modifications
of Organizational Documents. Amend, restate, supplement or otherwise
modify any of its Organizational Documents or any agreement to which it is a
party with respect to its Equity Interests (including any stockholders’
agreement), or enter into any new agreement with respect to its Equity
Interests, other than any such amendments, modifications or changes or such new
agreements which are not, and would not reasonably be expected to be, materially
adverse to the rights of the Lenders.

 

Section
6.08Limitation
on Transactions with Affiliates. Enter into, directly or indirectly, any
transaction or series of related transactions involving aggregate consideration
in excess of $5,000,000, whether or not in the ordinary course of business, with
any Affiliate of the Primary Guarantor, the Borrower or any Subsidiary (other
than between or among BR Advisory Loan Parties or between or among any Group
Members (other than the BR Advisory Loan Parties)), unless such transaction is
(i) otherwise not prohibited under this Agreement and (ii) upon fair
and reasonable terms no less favorable to the Loan Parties than they would
obtain in a comparable arm’s length transaction with a Person that is not an
Affiliate, except that the following shall be permitted:

 

(a)Restricted
Payments permitted under Section 6.05;

 

(b)employment
and severance arrangements between the Primary Guarantor and its Subsidiaries
and their respective officers and employees in the ordinary course of business
and transactions pursuant to stock option plans, stock incentive plans and
employee benefit plans and arrangements in the ordinary course of business;

 

(c)payments
to or from, and transactions with, Subsidiaries to the extent otherwise
permitted under Section 6.06;

 

(d)transactions
pursuant to agreements, instruments or arrangements in existence on the Closing
Date and set forth in Schedule 6.08 or any amendment thereto
to the extent such an amendment is not adverse to the Lenders in any material
respect.

 

Section
6.09Limitations
in Respect of Margin Stock. So long as Margin Stock secures, directly or
indirectly, the Obligations, permit the aggregate principal amount of the Loans
to exceed the Maximum Loan Value of the Collateral, subject to the ability to
cure such deficiency within the time frame provided in Section
2.10(f).

 

Section
6.10Limitation
on Changes in Fiscal Periods. Permit the fiscal year of Ultimate Parent
to end on a day other than December 31 or change Ultimate Parent’s method
of determining fiscal quarters.

 

Section
6.11Limitation
on Burdensome Agreements. Enter into or suffer to exist or become
effective any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of any Loan Party to create,
incur, assume or suffer to exist any Lien upon any of its properties or
revenues, whether now owned or hereafter acquired, to secure the Obligations or
(b) the ability of any Subsidiary to (i) make Restricted Payments in
respect of any Equity Interests of such Subsidiary held by, or pay any
Indebtedness owed to, the Primary Guarantor or any Subsidiary thereof, (ii) make
loans or advances to, or other Investments in, the Borrower or any Subsidiary
thereof or (iii) transfer any of its properties to the Borrower or any
Subsidiary thereof or the Primary Guarantor, except for any such restrictions
that:

 

(a)exist
under this Agreement and the other Loan Documents;

 

(b)exist
on the date hereof and (to the extent not otherwise permitted by this
Section 6.11) are listed on
Schedule 6.11 hereto;

 





95



 


 

(c)are
binding on a Subsidiary at the time such Subsidiary first becomes a Subsidiary,
so long as such restrictions were not entered into solely in contemplation of
such Person becoming a Subsidiary;

 

(d)are
restrictions that are binding on a Subsidiary that is not a Loan Party (provided
that such restrictions are not prohibited by this Agreement);

 

(e)are
customary restrictions and conditions that arise in connection with any
Permitted Lien or that are contained in any agreement relating to any
Disposition permitted by Section 6.04 pending the consummation of
such Disposition; provided that such restrictions and conditions apply
only to the property that is the subject of such Disposition and not to the
proceeds to be received by the Group Members in connection with such
Disposition;

 

(f)with
respect to any Non-Guarantor Subsidiary or Excluded Subsidiary, are customary
provisions in joint venture agreements and other similar agreements applicable
to joint ventures permitted under Section 6.06;

 

(g)are
negative pledges and restrictions on Liens in favor of any holder of
Indebtedness permitted under Section 6.01 but solely to the extent
any negative pledge relates to the property financed by or the subject of or
that secures such Indebtedness and the proceeds and products thereof;

 

(h)are
customary restrictions in leases, subleases, licenses or asset sale agreements
otherwise permitted hereby so long as such restrictions relate solely to the
assets subject thereto;

 

(i)are
restrictions on cash or other deposits imposed by customers or trade
counterparties under contracts entered into in the ordinary course of
business;

 

(j)are
customary provisions restricting subletting or assignment of any lease governing
a leasehold interest;

 

(k)arise
in connection with cash or other deposits permitted under Section
6.02;

 

(l)are
customary provisions restricting assignment or transfer of any agreement entered
into in the ordinary course of business;

 

(m)comprise
restrictions that are, taken as a whole, in the good faith judgment of the
Borrower (i) no more restrictive than the restrictions contained in this
Agreement, and not reasonably anticipated to materially and adversely affect the
Loan Parties’ ability to make any payments required hereunder;

 

(n)apply
by reason of any applicable law, rule, regulation or order or are required by
any Governmental Authority having jurisdiction over the Borrower or any Group
Member;

 

(o)are
subject to the applicable override of provisions of the UCC;

 

(p)are
customary provisions (including provisions limiting the Disposition,
distribution or encumbrance of assets or property) included in Sale and
Leaseback agreements or other similar agreements;

 





96



 


 

(q)are
net worth provisions contained in agreements entered into by the Borrower or any
Group Member, so long as the Borrower has determined in good faith that such net
worth provisions would not reasonably be expected to impair the ability of the
Borrower or any Group Member to meet its ongoing obligations;

 

(r)are
restrictions arising in any agreement relating to any cash management obligation
to the extent such restrictions relate solely to the cash, bank accounts or
other assets or activities subject to the applicable cash management
services;

 

(s)are
customary restrictions and conditions contained in any (x) software license or
(y) agreement relating to the sale of any property permitted under Section
6.04 pending the consummation of such sale; and

 

(t)are
amendments, modifications, restatements, refinancings or renewals of the
agreements, contracts or instruments referred to in Section
6.11(a) through Section 6.11(s) above; provided
that such amendments, modifications, restatements, refinancings or renewals,
taken as a whole, are not materially more restrictive with respect to such
encumbrances and restrictions than those contained in such predecessor
agreements, contracts or instruments.

 

Section
6.12Limitation
on Lines of Business. With respect to any BR Advisory Loan Party, enter
into any material line of business, except for those lines of business in which
the BR Advisory Loan Parties are engaged on the Closing Date or that are
reasonably related thereto or are reasonable extensions thereof.

 

Section
6.13Financial
Covenants.

 

(a)Minimum
Operating EBITDA. Permit Operating EBITDA for the Ultimate Parent and its
Subsidiaries, as of the last day of any Test Period, to be less than
$115,000,000.

 

(b)Minimum
Net Asset Value. Permit the Net Asset Value for the Primary Guarantor, as of
the last day of any Test Period, to be less than $900,000,000.

 

Compliance
with this Section 6.13 shall be tested on the date that the
financial statements for the applicable Test Period have been or are required to
be delivered pursuant to Section 5.01(a)(ii)(x) or
(b)(ii)(x), as applicable, and not prior to such date.

 

Section
6.14Limitation
on Activities of the Primary Guarantor. In the case of the Primary
Guarantor, notwithstanding anything to the contrary in this Agreement or any
other Loan Document, conduct, transact or otherwise engage in, or commit to
conduct, transact or otherwise engage in, any material business or operations or
own any assets other than:

 

(a)its
ownership of the Equity Interests of its Subsidiaries and activities incidental
thereto,

 

(b)activities
incidental to the maintenance of its existence (including the ability to incur
fees, costs and expenses relating to such maintenance) and compliance with
applicable laws and legal, tax and accounting matters related thereto and
activities relating to its employees,

 

(c)activities
relating to the performance of obligations and payments under the Loan Documents
and the documentation governing other Indebtedness to which it is a party that
is permitted to be incurred under Section 6.01,

 

(d)making
contributions to the capital of its Subsidiaries,

 





97



 


 

(e)the
incurrence of Indebtedness permitted under Section 6.01 and
activities required thereunder,

 

(f)the
making of Restricted Payments permitted to be made by the Primary Guarantor
pursuant to Section 6.05,

 

(g)guaranteeing
the obligations of the its Subsidiaries in each case solely to the extent such
obligations of its Subsidiaries are not prohibited hereunder,

 

(h)participating
in tax, accounting and other administrative matters as a member of a
consolidated, combined or unitary group that includes Ultimate Parent and the
Borrower,

 

(i)the
entry into and performance of its obligations with respect to contracts and
other arrangements directly related to any other activity permitted under this
Section 6.14 and providing indemnification to officers, managers,
directors and employees,

 

(j)making
Investments in assets that are Cash Equivalents,

 

(k)the
receipt of Restricted Payments, and

 

(l)the
consummation of the Transactions.

 

Section
6.15Limitation
on Activities of Ultimate Parent. In the case of Ultimate Parent,
notwithstanding anything to the contrary in this Agreement or any other Loan
Document, conduct, transact or otherwise engage in, or commit to conduct,
transact or otherwise engage in, any business or operations or own any assets
other than:

 

(a)subject
to Section 5.16, its ownership of the Equity Interests of the
Primary Guarantor and activities incidental thereto (it being understood that
Ultimate Parent shall own no Equity Interests of any Person other than the
Primary Guarantor),

 

(b)activities
incidental to the maintenance of its existence and compliance with applicable
laws and legal, tax and accounting matters related thereto and activities
relating to its employees,

 

(c)the
performance of obligations under the Loan Documents and the documentation
governing other Indebtedness to which it is a party that is expressly permitted
hereunder,

 

(d)the
making of Restricted Payments permitted to be made by Ultimate Parent pursuant
to Section 6.05,

 

(e)the
receipt of Restricted Payments from the Primary Guarantor, and

 

(f)the
incurrence of Indebtedness permitted pursuant to Section 6.01 and
the performance of its obligations thereunder.

 

Section
6.16Limitation
on Activities of BR Advisory Loan Parties. In the case of each BR
Advisory Loan Party, notwithstanding anything to the contrary in this Agreement
or any other Loan Document,

 

(a)conduct,
transact or otherwise engage in, or commit to conduct, transact or otherwise
engage in, any business or operations or own any assets other than

 





98



 


 

(i)(A)
in the case of the Borrower, the ownership of the Equity Interests of the BR
Advisory OpCos and the Borrowing Base Loan Parties and activities incidental
thereto;

 

(B)in
the case of each BR Advisory OpCo, those lines of business in which the BR
Advisory OpCos are engaged on the Closing Date or that are reasonably related
thereto or are reasonable extensions thereof; and

 

(C)in
the case of each Borrowing Base Loan Party, the ownership of and investment in
Credit Assets, Public Equities, Private Assets and Cash and Cash Equivalents and
activities incidental thereto;

 

(ii)activities
incidental to the maintenance of its existence and compliance with applicable
laws and legal, tax and accounting matters related thereto and, in the case of
BR Advisory OpCos, activities relating to its employees,

 

(iii)activities
relating to the performance of obligations under the Loan Documents,

 

(iv)the
making of Restricted Payments permitted to be made by the BR Advisory OpCos and
the Borrowing Base Loan Parties pursuant to Section 6.05,
and

 

(v)in
the case of BR Holdings Advisory the receipt of Restricted Payments; or

 

(b)incur,
create, assume or suffer to exist any commitment to provide a Credit Asset or
extend credit, advances or other financial accommodation (whether in the form of
a revolving facility or delayed draw term loan commitments) or otherwise results
in the imposition of an obligation to fund future advances or payments other
than commitments for periods not to exceed 60 days to fund term loans that would
be Eligible Credit Assets following origination.

 

Section
6.17No
Impairment of Public Equities; Restricted Transactions. Without the
written consent of the Administrative Agent, Borrower shall not take any action
that would impair any Lender’s security interest in any Public Equities that are
pledged as Collateral or such Lender’s ability to exercise remedies against such
Public Equities (including without limitation by imposing any Transfer
 Restrictions (other than Approved Transfer Restrictions) on any such pledged
Public Equities, or entering into any shareholders’ agreement, a lock-up
agreement). No Borrowing Base Loan Party shall, directly or indirectly enter
into or allow to exist any Restricted Transaction without the written consent
Administrative Agent other than those set forth on Schedule
6.17.

 

Article
 VII.
EVENTS OF DEFAULT AND REMEDIES

 

Section
7.01Events
of Default. Each of the following events shall constitute an Event of
Default:

 

(a)the
Borrower or any Loan Party shall fail to pay (i) any principal of any Loan when
due in accordance with the terms hereof, whether at the due date thereof or at a
fixed date for payment thereof or by acceleration thereof or otherwise or (ii)
any interest on any Loan or any fee or other amount (other than an amount
referred to in clause (i)) payable hereunder or under any
other Loan Document within three (3) Business Days after any such interest or
other amount becomes due in accordance with the terms hereof or thereof; or

 





99



 


 

(b)any
representation, warranty, certification or statement of fact made or deemed made
by or on behalf of Ultimate Parent, the Primary Guarantor or the Borrower
herein, in any other Loan Document or in any document or certificate delivered
in connection herewith or therewith shall be incorrect or misleading in any
material respect when made or deemed made; or

 

(c)(i) any
of Ultimate Parent, the Primary Guarantor or the Borrower shall fail to observe
or perform any covenant, condition or agreement contained in Section
5.03(a) or Section 5.05(a) (with respect to
Ultimate Parent and the Loan Parties only), Section 5.01(a)
or Section 5.01(b), Section 5.11, the
 last sentence of Section 5.15(d), Section 5.16 or
Article VI or in Section 5 of the Guarantee and Collateral
Agreement with respect to any material portion of the Collateral; or

 

(d)any
of Ultimate Parent, the Primary Guarantor or the Borrower shall fail to observe
or perform any other covenant, condition or agreement contained in this
Agreement or any other Loan Document (other than as provided in Section
7.01(a), Section 7.01(b) or Section
7.01(c)), and such failure continues unremedied or unwaived for a
period of 30 days (or in the case of Section 5.14 and
Section 5.15 (other than the last sentence of Section
5.15(d)), five Business Days) after the earlier of (i) the date an
officer of any of Ultimate Parent, the Primary Guarantor or the Borrower becomes
aware of such default and (ii) receipt by the Borrower of notice from the
Administrative Agent or any Lender of such default; or

 

(e)(i)
any Group Member shall (A) fail to pay any principal or interest,
regardless of amount, due in respect of any Material Indebtedness, when and as
the same shall become due and payable beyond any applicable grace period in
respect thereof; or (B) fail to observe or perform any other term,
covenant, agreement or condition relating to any Material Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holders or
beneficiaries of such Material Indebtedness (or a trustee or agent on behalf of
such holders or beneficiaries) to cause, with or without the giving of notice,
the lapse of time or both, such Material Indebtedness to become due prior to its
stated maturity or become subject to a mandatory offer to purchase by the
obligor, or

 

(ii)
there occurs under any Swap Contract an Early Termination Date (as defined, or
as such comparable term may be used and defined, in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which any
Group Member is the “Defaulting Party” (as defined, or as such comparable term
may be used and defined, in such Swap Contract) or (B) any “Termination Event”
(as defined, or as such comparable term may be used and defined, in such Swap
Contract) under such Swap Contract as to which any Group Member is an Affected
Party (as defined, or as such comparable term may be used and defined, in such
Swap Contract) and, in either event, the Swap Termination Value owed by any
Group Member as a result thereof is greater than the Threshold Amount, in each
case pursuant to its terms;

 

provided
that clause (e)(ii) shall not apply

 

(1)
to any secured Indebtedness that becomes due as a result of the sale, transfer
or other disposition (including as a result of a casualty or condemnation event)
of the property or assets securing such Indebtedness;

 

(2)
to the conversion of, or the satisfaction of any condition to the conversion of,
any Indebtedness that is convertible or exchangeable for Qualified Equity
Interests; or

 

(3)
to a customary “change of control” put right in any indenture governing any such
Indebtedness in the form of notes; or

 





100



 


 

(f)(i) a
court of competent jurisdiction shall enter a decree or order for relief in
respect of any Group Member in an involuntary case under any Debtor Relief Law
now or hereafter in effect, which decree or order is not stayed; or any other
similar relief shall be granted under any applicable federal or state law; or
(ii) an involuntary case shall be commenced against any Group Member under
 any Debtor Relief Laws now or hereafter in effect; or a decree or order of a
court having jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having similar
powers over any Group Member, or over all or a substantial part of its property,
shall have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of any Group
Member for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any
substantial part of the property of any Group Member, and any such event
described in this clause (ii) shall continue for 60 days
without having been dismissed, bonded or discharged; or

 

(g)(i) any
Group Member shall have an order for relief entered with respect to it or shall
commence a voluntary case under any Debtor Relief Law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under any
such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
property; or any Group Member shall make any assignment for the benefit of
creditors; or (ii) any Group Member shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay its debts as such
debts become due; or the board of directors (or similar governing body) of any
Group Member (or any committee thereof) shall adopt any resolution or otherwise
authorize any action to approve any of the actions referred to herein or in
Section 7.01(f); or

 

(h)(i) there
exists any fact or circumstance that reasonably would be expected to result in
the imposition of a Lien or security interest on any property or any Group
Member pursuant to Section 430(k) of the Code or Section 303(k) of
ERISA or a violation of Section 436 of the Code; or (ii) there occurs one
or more other ERISA Events which has resulted or would reasonably be expected,
 individually or in the aggregate, to result in liability in excess of the
Threshold Amount; or

 

(i)one
or more judgments shall be rendered against any Group Member and the same shall
remain undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of any Group Member to
enforce any such judgment and such judgment either (i) is for the payment
of money in an aggregate amount in excess of the Threshold Amount or
(ii) is for injunctive relief and would reasonably be expected to result in
a Material Adverse Effect; or

 

(j)at
any time after the execution and delivery thereof, (i) the guarantee
contained in Section 2 of the Guarantee and Collateral Agreement for any
reason other than Payment in Full shall cease to be in full force and effect
(other than in accordance with its terms) or shall be declared to be null and
void or any Guarantor shall repudiate its obligations thereunder, (ii) this
Agreement or any Security Document ceases to be in full force and effect (other
than by reason of a release of Collateral in accordance with the terms hereof or
thereof or Payment in Full) or shall be declared null and void, or the
Collateral Agent shall not have or shall cease to have a valid and perfected
Lien in any Collateral purported to be covered by the Security Documents with
the priority required by the relevant Security Document, in each case, for any
reason other than (x) as a result of the sale or other disposition of the
applicable Collateral in a transaction permitted under the Loan Documents or
(y) as a result of the Collateral Agent’s failure to maintain possession of
any stock certificates or other instruments delivered to it under the Security
Documents, or (iii) any Loan Party shall contest the validity or
enforceability of any Loan Document in writing or deny in writing that it has
any further liability, including with respect to future advances by Lenders,
under any Loan Document to which it is a party or shall contest the validity or
perfection of any Lien on any Collateral (other than, solely with respect to
perfection, any Excluded Perfection Assets) purported to be covered by the
Security Documents; or

 





101



 


 

(k)any
Change of Control shall occur.

 

Section
7.02Remedies
Upon Event of Default. If any Event of Default occurs and is continuing,
the Administrative Agent shall, at the request of, or may, with the consent of,
the Required Lenders take any or all of the following actions:

 

(a)declare
the commitment of each Lender to make Loans to be terminated, whereupon such
commitments and obligation shall be terminated;

 

(b)declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable (including any Make Whole
Premium which shall be due and payable as a result of the acceleration of such
principal amounts within the time periods specified in Section
2.09(c)), without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower; and

 

(c)exercise
on behalf of itself and the Lenders all rights and remedies available to it, the
Lenders under the Loan Documents or at law or in equity;

 

provided,
however, that upon the occurrence of any Event of Default described in
Section 7.01(f) or Section 7.01(g),
the obligation of each Lender to make Loans shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid (including any Make Whole Premium which shall be due and
payable as a result of the acceleration of such principal amounts within the
time periods specified in Section 2.09(c)) shall automatically
become due and payable, in each case without further act of the Administrative
Agent or any Lender.

 

Section
7.03Application
of Funds. After the exercise of remedies provided for in
Section 7.02 (or after the Loans have automatically become
immediately due and payable), any amounts received on account of the Obligations
shall, subject to the provisions of Section 2.22, be applied by
the Administrative Agent in the following order:

 

first,
to payment of that portion of the Obligations constituting fees, indemnities,
expenses, costs, losses and other amounts (including fees, charges and
 disbursements of counsel to the Administrative Agent and Collateral Agent)
payable under the Loan Documents to the Administrative Agent and the Collateral
Agent in their capacities as such;

 

second,
to payment of that portion of the Obligations constituting fees, indemnities and
other amounts payable to the Lenders (including fees, charges and disbursements
of counsel to the respective Lenders arising under the Loan Documents, ratably
among them in proportion to the respective amounts described in this
clause Second payable to them;

 

third,
to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and other Obligations arising under the Loan Documents,
 ratably among the Lenders in proportion to the respective amounts described in
this clause Third payable to them;

 

fourth,
to payment of that portion of the Obligations constituting unpaid principal of
the Loans, ratably among the Lenders in proportion to the respective amounts
described in this clause Fourth payable by them; and

 

last,
the balance, if any, after Payment in Full, to the Borrower or as otherwise
required by Law.

 





102



 


 

Article
 VIII.
THE AGENTS

 

Section
8.01Appointment
and Authority. Each of the Lenders hereby irrevocably appoints Nomura
Corporate Funding Americas, LLC to act on its behalf as the Administrative Agent
and Wells Fargo Bank, N.A. to act on its behalf as the Collateral Agent
hereunder and under the other Loan Documents to which each such Agent is a
party, respectively, and authorizes the Administrative Agent and the Collateral
 Agent to take such actions on its behalf and to exercise such powers as are
expressly delegated to the Administrative Agent and the Collateral Agent,
respectively, by the terms hereof or thereof, together with such actions and
powers as are reasonably incidental thereto. The provisions of this
Article VIII (other than as expressly provided herein) are solely
for the benefit of the Agents and the Lenders and neither the Borrower nor any
Loan Party shall have any rights as a third-party beneficiary of any such
provisions (other than as expressly provided herein). It is understood and
agreed that the use of the term “agent” herein or in any other Loan Documents
(or any other similar term) with reference to the Administrative Agent or any
other Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable
Requirements of Law. Instead such term is used as a matter of market custom, and
is intended to create or reflect only an administrative relationship between
contracting parties.

 

Section
8.02Rights
as a Lender. Any Person serving as the Administrative Agent or the
Collateral Agent hereunder shall have the same rights and powers in its capacity
as a Lender as any other Lender and may exercise the same as though it were not
the Administrative Agent or the Collateral Agent, and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include any Person serving as the Administrative Agent or
the Collateral Agent hereunder in its capacity as a Lender. Such Person and its
Affiliates may accept deposits from, lend money to, own securities of, act as
the financial advisor or in any other advisory capacity for, and generally
engage in any kind of business with, the Primary Guarantor or any Subsidiary or
other Affiliate thereof as if such Person were not the Administrative Agent or
the Collateral Agent hereunder and without any duty to account therefor to the
Lenders.

 

Section
8.03Exculpatory
Provisions.

 

(a)The
Administrative Agent and the Collateral Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan
Documents to which such Agent is a party, as applicable, and its duties
hereunder shall be administrative in nature. Without limiting the generality of
the foregoing, the Administrative Agent and the Collateral Agent:

 

(i)shall
not be subject to any fiduciary or other implied duties, regardless of whether a
Default or Event of Default has occurred and is continuing;

 

(ii)shall
not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent or the Collateral
Agent is required to exercise as directed in writing by the Required Lenders (or
such other number or percentage of the Lenders as shall be expressly provided
 for herein or in the other Loan Documents); provided that neither the
Administrative Agent nor the Collateral Agent shall be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent or the Collateral Agent to liability or that is contrary to
any Loan Document or applicable Requirements of Law, including for the avoidance
of doubt any action that may be in violation of the automatic stay under any
Debtor Relief Law or that may effect a forfeiture, modification or termination
 of property of a Defaulting Lender in violation of any Debtor Relief Law;
and

 





103



 


 

(iii)shall
not, except as expressly set forth herein and in the other Loan Documents to
which such Agent is a party, as applicable, have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to the
Borrower or any of its Affiliates that is communicated to or obtained by any
Person serving as the Administrative Agent or the Collateral Agent or any of its
 Affiliates in any capacity.

 

(b)Notwithstanding
any other provision of the Loan Documents, the Administrative Agent and the
Collateral Agent shall not be liable for any action taken or not taken by it
(i) with the consent or at the request or direction of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the Administrative Agent shall believe in good faith shall be necessary, under
the circumstances as provided herein or under the other Loan Documents) or (in
the case of the Collateral Agent) with the consent or at the request or
direction of the Administrative Agent, or (ii) in the absence of its own
gross negligence or willful misconduct, as determined by a final and
nonappealable judgment of a court of competent jurisdiction. The Administrative
Agent and the Collateral Agent shall not be deemed to have knowledge of, or be
required to act upon, any Default or Event of Default unless and until notice
describing such Default or Event of Default is given to a responsible officer of
the Administrative Agent or the Collateral Agent (in the case of the Collateral
Agent, within Corporate Trust Services) in writing by the Borrower or a Lender,
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default”, and the Administrative Agent
and the Collateral Agent shall have no duty to take any action to determine
whether any such event has occurred.

 

(c)The
Administrative Agent and the Collateral Agent shall not be responsible for or
have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith,
(iii) the actions or omissions of any other party hereto or thereto, the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any Default or Event
of Default, (iv) the validity, enforceability, effectiveness or genuineness
of this Agreement, any other Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent or the
Collateral Agent, as applicable.

 

(d)Each
Lender authorizes and directs the Administrative Agent and the Collateral Agent
to enter into the Loan Documents to which each such Agent is a party,
respectively, on the date hereof on behalf of and for the benefit of the
Lenders.

 

(e)Collateral
Agent Provisions. 

 

(i)The
Collateral Agent shall never be required to use, risk or advance its own funds
or otherwise incur any liability, financial or otherwise, in the performance of
any of its duties or the exercise of any of its rights and powers under the Loan
Documents.

 

(ii)In
no event shall the Collateral Agent be liable for any consequential, indirect,
punitive or special loss or damage of any kind whatsoever (including loss of
profit) relating to its performance of its duties under this Agreement or any
other Loan Document irrespective of whether the Collateral Agent has been
advised of the likelihood of such loss or damage and regardless of the form of
action.

 





104



 


 

(iii)The
Collateral Agent shall not be responsible for delays or failures to perform any
act or fulfill any duty, obligation or responsibility as a result of any
occurrence beyond its control. Such acts shall include, but not be limited to,
any act of God, riots, wars, fires, earthquakes or other natural disasters,
terrorism, provision of any present or future law or regulation or act of any
governmental authority, civil unrest, labor dispute, disease, epidemic or
pandemic, quarantine, national emergency, utility failure, computer hardware or
software failure, malware or ransomware attack, communications system failure,
unavailability of the Federal Reserve Bank wire or telex system or other
applicable wire or funds transfer system, or unavailability of any securities
clearing system.

 

(iv)Delivery
of reports, documents and other information to the Collateral Agent is for
informational purposes only and the Collateral Agent’s receipt of the foregoing
shall not constitute constructive knowledge of any event or circumstance or any
information contained therein or determinable from information contained
therein. Information contained in notices, reports or other documents delivered
to the Collateral Agent and other publicly available information shall not
constitute actual or constructive knowledge.

 

(v)Knowledge
of or notices or other documents delivered to Wells Fargo Bank, N.A. in any
capacity shall not constitute knowledge of or delivery to Wells Fargo Bank, N.A.
in any other capacity under the Loan Documents or to any affiliate or other
division of Wells Fargo Bank, N.A.

 

(vi)Notwithstanding
any provision of this Agreement or the other Loan Documents to the contrary,
before taking or omitting any action to be taken or omitted by the Collateral
Agent under the terms of this Agreement and the other Loan Documents, the
Collateral Agent may seek the written direction of the Administrative Agent
(which written direction may be in the form of an email), and the Collateral
Agent is entitled to rely (and is fully protected in so relying) upon such
direction. The Collateral Agent is not liable with respect to any action taken
or omitted to be taken by it in accordance with such direction. If the
Collateral Agent requests such direction with respect to any action, the
Collateral Agent is entitled to refrain from such action unless and until the
Collateral Agent has received such direction, and the Collateral Agent does not
incur liability to any Person by reason of so refraining. If the Collateral
Agent so requests, it must first be indemnified to its reasonable satisfaction
by the Lenders against any and all fees, losses, liabilities and expenses which
may be incurred by the Collateral Agent by reason of taking or continuing to
take, or omitting, any action directed by the Administrative Agent or any
Lender. Any provision of this Agreement or the other Loan Documents authorizing
the Collateral Agent to take any action does not obligate the Collateral Agent
to take such action.

 

(vii)If
at any time the Collateral Agent is served with any judicial or administrative
order, judgment, decree, writ or other form of judicial or administrative
process (including, but not limited to, orders of attachment or garnishment or
other forms of levies or injunctions or stays relating to the transfer of any
Collateral), the Collateral Agent is authorized to comply therewith in any
manner as it or its legal counsel of its own choosing deems appropriate; and if
the Collateral Agent complies with any such judicial or administrative order,
 judgment, decree, writ or other form of judicial or administrative process, the
Collateral Agent shall not be liable to any of the parties hereto or to any
other Person even though such order, judgment, decree, writ or process may be
subsequently modified or vacated or otherwise determined to have been without
legal force or effect.

 





105



 


 

(viii)
Whether or not so expressly stated therein, in entering into, or taking (or
forbearing from) any action under pursuant to, the Loan Documents, the
Collateral Agent shall have all of the rights, immunities, indemnities and other
protections granted to it under this Agreement (in addition to those that may be
granted to it under the terms of such other agreement or agreements).

 

(ix)Not
less than four (4) Business Days (or such shorter period as may be agreed to by
the Collateral Agent) prior to any payment, distribution or transfer of funds by
the Collateral Agent to any Person under the Loan Documents, the payee shall
provide to the Collateral Agent such documentation and information as may be
reasonably requested by the Collateral Agent (unless such Person has previously
provided the documentation or information, and so long as such documentation or
information remain accurate and true in all material respects). The Collateral
Agent shall have no duty, obligation or liability to make any payment to any
Person unless it has timely received such documentation and information with
respect to such Person, which documentation and information shall be reasonably
satisfactory to the Collateral Agent.

 

(x)The
Collateral Agent shall have no responsibility for interest or income on any
funds held by it under the Loan Documents and any funds so held shall be held
uninvested pending distribution thereof.

 

(xi)Wells
Fargo Bank, N.A. and its Affiliates may make loans to, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the parent entities of
the Borrower and its Affiliates as though Wells Fargo Bank, N.A. were not the
Collateral Agent hereunder and without notice to or consent of the Lenders. The
Lenders acknowledge that, pursuant to such activities, Wells Fargo Bank, N.A. on
or its Affiliates may receive information regarding the Borrower or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrower or such Affiliate) and acknowledge that the
Collateral Agent shall be under no obligation to provide such information to
them.

 

(xii)Notwithstanding
anything else to the contrary herein or in the other Loan Documents, whenever
reference is made in this Agreement or any other Loan Document to any
discretionary action by, consent, designation, specification, requirement or
approval of, notice, request or other communication from, or other direction
given or action to be undertaken or to be (or not to be) suffered or omitted by
the Collateral Agent or to any election, decision, opinion, acceptance, use of
judgment, expression of satisfaction or other exercise of discretion, rights or
remedies to be made (or not to be made) by the Collateral Agent, it is
understood that the Collateral Agent shall be acting at the direction of the
Administrative Agent and shall be fully protected in acting pursuant to such
directions. In all cases the Collateral Agent shall be fully justified in
failing or refusing to take any such action under the Loan Documents if it shall
not have received such direction, instruction, advice or concurrence.
Additionally, under no circumstances shall the Collateral Agent be liable for
any delay in acting, or liability caused by such delay, while it is awaiting
such direction, or if necessary, a satisfactory indemnity.

 

(xiii)
Each party agrees and acknowledges that Wells Fargo Bank, N.A. is acting in
separate and distinct roles and capacities under the Loan Documents. In no event
shall Wells Fargo Bank, N.A. in any role or capacity have any duty or liability
for any other role or capacity.

 





106



 


 

Section
8.04Reliance
by Agents. The Administrative Agent and the Collateral Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed,
 sent or otherwise authenticated by the proper Person. The Administrative Agent
and the Collateral Agent also may rely upon any statement made to it orally or
by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance
with any condition hereunder to the making of a Loan, that by its terms must be
fulfilled to the satisfaction of a Lender, the Administrative Agent may presume
that such condition is satisfactory to such Lender unless the Administrative
Agent shall have received notice to the contrary from such Lender. The
Administrative Agent and the Collateral Agent may consult with legal counsel
 (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.

 

Section
8.05Delegation
of Duties. The Administrative Agent and the Collateral Agent may perform
any and all of its respective duties and exercise its respective rights and
powers hereunder or under any other Loan Document by or through any one or more
sub-agents (including, without limitation, Affiliates) appointed by the
Administrative Agent or the Collateral Agent, as applicable. The Administrative
Agent and the Collateral Agent and any such sub-agent may perform any and all of
its duties and exercise its rights and powers by or through their respective
Related Parties. The exculpatory provisions of this Article VIII
shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and the Collateral Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the
Credit Facilities as well as activities as Administrative Agent and the
Collateral Agent. The Administrative Agent and the Collateral Agent shall not be
responsible for the action or inaction or the supervision, negligence or
misconduct of any sub-agents except to the extent that the Administrative Agent
or the Collateral Agent, as applicable, acted with gross negligence or willful
misconduct in the selection of such sub-agents as determined by a court of
competent jurisdiction in a final and non-appealable judgment.

 

Section
8.06Resignation
of Administrative Agent or the Collateral Agent.

 

(a)The
Administrative Agent or the Collateral Agent may resign as Administrative Agent
or Collateral Agent upon five days’ notice to the Lenders (in the case of the
Administrative Agent), the Administrative Agent (in the case of the Collateral
Agent) and the Borrower. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, in consultation with the Borrower (and in
the case of a resignation of the Collateral Agent, the Administrative Agent), to
appoint a successor. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent or Collateral Agent gives notice of its
resignation (or such earlier day as shall be agreed by the Required Lenders)
(such 30th day or earlier day, as applicable, the “Resignation
Effective Date”), then the retiring Administrative Agent or Collateral
Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a
successor Administrative Agent or Collateral Agent; provided that in no
event shall any such successor Administrative Agent or Collateral Agent be a
Defaulting Lender or an Affiliate of the Borrower. Whether or not a successor
has been appointed, such resignation shall become effective in accordance with
such notice on the Resignation Effective Date.

 





107



 


 

(b)With
effect from the Resignation Effective Date (i) the retiring Administrative Agent
or Collateral Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents and (ii) except for any indemnity
payments owed to the retiring Administrative Agent or Collateral Agent, all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender
directly, until such time, if any, as the Required Lenders appoint a successor
Administrative Agent or Collateral Agent as provided for above. Upon the
acceptance of a successor’s appointment as Administrative Agent or Collateral
 Agent hereunder, such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring Administrative Agent
or Collateral Agent (other than any rights to indemnity payments owed to the
retiring Administrative Agent or Collateral Agent), and the retiring
Administrative Agent or Collateral Agent shall be discharged from all of its
duties and obligations hereunder and under the other Loan Documents (if not
already discharged as set forth in this Section 8.06). The fees payable by the
Borrower to a successor Administrative Agent or Collateral Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s or
Collateral Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article VIII and Section
9.05 shall continue in effect for the benefit of such retiring
Administrative Agent or Collateral Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of
them while the retiring Administrative Agent or Collateral Agent was acting as
Administrative Agent or Collateral Agent, as applicable.

 

(c)The
Collateral Agent may merge or convert into, or consolidate with, another Person
and any Person into which the Collateral Agent may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Collateral Agent shall be a party, or
any Person succeeding to all or substantially all of the corporate trust
business of the Collateral Agent shall be the successor of the Collateral Agent
under the Loan Documents without the execution or filing of any paper or any
further act on the part of any of the parties hereto (except where an instrument
of transfer or assignment is required by law to effect such succession),
anything herein to the contrary notwithstanding.

 

Section
8.07Non-Reliance
on Administrative Agent and Other Lenders. Each Lender acknowledges that
it has, independently and without reliance upon the Administrative Agent, the
Collateral Agent or any other Lender or any of their Related Parties and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
 acknowledges that it will, independently and without reliance upon the
Administrative Agent, the Collateral Agent or any other Lender or any of their
Related Parties and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any other Loan Document or
any related agreement or any document furnished hereunder or thereunder.

 

Section
8.08No
Other Duties, Etc. Anything herein to the contrary notwithstanding, none
of the Agents shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, the Collateral Agent or a Lender
hereunder or thereunder to the extent expressly provided in the Loan
Documents.

 

Section
8.09Administrative
Agent May File Proofs of Claim. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative
to any Loan Party, the Administrative Agent (irrespective of whether the
principal of any Loan shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent
 shall have made any demand on the Borrower) shall be entitled and empowered
(but not obligated) by intervention in such proceeding or otherwise:

 

(a)to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Agents (including any claim for
the reasonable compensation, expenses, disbursements and advances of the Lenders
and the Agents and their respective agents and counsel and all other amounts due
the Lenders and the Agents under the Loan Documents) allowed in such judicial
proceeding; and

 





108



 


 

(b)to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;

 

and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, in the event that
the Administrative Agent shall consent to the making of such payments directly
to the Lenders to pay to the Agents any amount due for the reasonable
compensation, expenses, disbursements and advances of the Agents and their
 respective agents and counsel, and any other amounts due the Agents under the
Loan Documents.

 

Section
8.10Collateral
and Guaranty Matters.

 

(a)Each
of the Lenders irrevocably authorizes the Administrative Agent and the
Collateral Agent to:

 

(i)release
any Lien on any property granted to or held by the Collateral Agent under any
Loan Document (x) upon Payment in Full, (y) that is sold or otherwise
disposed of as part of or in connection with any sale or other Disposition
permitted under the Loan Documents or (z) subject to
Section 9.01, if approved, authorized or ratified in
writing by the Required Lenders or such other number or percentage of Lenders
required hereby; and

 

(ii)release
any Guarantor from its obligations under the Guarantee and Collateral Agreement
upon Payment in Full.

 

In
connection with any release under this Section 8.10, to the extent
that any instrument, notice, document or other writing or any other action by
the Administrative Agent or Collateral Agent is necessary to effect or evidence
such release, the Borrower shall deliver to the Administrative Agent and the
Collateral Agent:

 

(i)an
officer’s certificate of the Borrower (A) stating that such release of the Lien
or the release of the Guarantor, as applicable, complies with and is permitted
by this Agreement and the other Loan Documents and (B) requesting the Collateral
Agent to release the Lien on such property or release such Guarantor and to
execute and deliver instruments or authorize filings in connection therewith;
and

 

(ii)the
proposed instrument or instruments releasing such Lien or releasing such
Guarantor, in each case in form reasonably satisfactory to the Administrative
Agent and the Collateral Agent with respect to its rights, immunities and
obligations.

 

In
connection with any release under Section 8.10(a)(i)(x), at the
request and sole expense of any Guarantor, the Administrative Agent shall
instruct the Collateral Agent, in writing, (i) to promptly deliver to such
Guarantor any Collateral held by the Collateral Agent pursuant to the Guarantee
 and Collateral Agreement and (ii) to promptly execute and deliver to such
Guarantor such documents as such Guarantor shall reasonably request to evidence
such release, in each case, as set forth in Section 9.15 of the Guarantee and
Collateral Agreement.

 





109



 


 

Any
such release of guarantee obligations or security interests shall be deemed
subject to the provision that such guarantee obligations shall be reinstated if
after such release any portion of any payment in respect of the Obligations
shall be rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payment had not been made.

 

Upon
request by the Administrative Agent or the Collateral Agent at any time, the
Required Lenders will confirm in writing the Administrative Agent’s or the
Collateral Agent’s authority to release its interest in particular types or
items of property, or to release any Guarantor from its obligations under the
Guaranty pursuant to this Section 8.10.

 

(b)The
Administrative Agent and the Collateral Agent shall not be responsible for and
shall not have any obligation whatsoever to assure (i) that the Collateral
exists or is owned (whether in fee or by leasehold) by the Person purporting to
own it, or is cared for, protected, or insured or has been encumbered, (ii) the
genuineness or value of any Collateral or the validity or sufficiency of any
agreement contained therein or the validity of the title of any Loan Party to
the Collateral, or (iii) that the Liens granted to the Collateral Agent herein
or pursuant to the Loan Documents have been properly or sufficiently or lawfully
created, perfected, protected, or enforced, or are entitled to any particular
priority. Notwithstanding anything contained in the Loan Documents or otherwise
to the contrary, the Collateral Agent shall not have any duty to (i) file or
prepare any financing or continuation statements or record any documents or
instruments in any public office for purposes of creating, perfecting or
maintaining any Lien or security interest created under the Loan Documents or
otherwise; (ii) take any steps to preserve rights against any Person with
respect to any Collateral; (iii) insure, monitor or maintain the Collateral;
(iv) pay any taxes, charges, assessments or liens upon the Collateral; or (v)
take any action to protect against any diminution in value of the Collateral.
The actions described in items (i) through (v) shall be the sole responsibility
of the Borrower.

 

(c)Anything
contained in any of the Loan Documents to the contrary notwithstanding, the
Borrower, the Administrative Agent, the Collateral Agent and each Lender hereby
agree that (i) no Secured Party shall have any right individually to
realize upon any of the Collateral or to enforce the Guarantee and Collateral
Agreement or any other Security Document, it being understood and agreed that
all powers, rights and remedies under any of the Security Documents may be
exercised solely by the Administrative Agent or the Collateral Agent, as
applicable, for the benefit of the Secured Parties in accordance with the terms
thereof and all powers, rights and remedies under the Security Documents may be
exercised solely by the Collateral Agent for the benefit of the Secured Parties
in accordance with the terms thereof, and (ii) in the event of a
foreclosure or similar enforcement action by the Collateral Agent on any of the
Collateral pursuant to a public or private sale or other Disposition (including,
without limitation, pursuant to Section 363(k),
Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the
Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant
to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the
Bankruptcy Code,) may be the purchaser or licensor of any or all of such
Collateral at any such sale or other Disposition and the Collateral Agent, as
agent for and representative of the Secured Parties (but not any Lender or
Lenders in its or their respective individual capacities) shall be entitled,
upon written direction from the Administrative Agent (acting upon the written
direction of the Required Lenders), for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such sale or Disposition, to use and apply any of the
Obligations as a credit on account of the purchase price for any collateral
payable by the Collateral Agent at such sale or other Disposition.

 





110



 


 

(d)In
the event that the Collateral Agent is required to acquire title to an asset for
any reason, or take any managerial action of any kind in regard thereto, in
order to carry out any obligation for the benefit of another, which in the
Collateral Agent’s sole discretion may cause the Collateral Agent to be
considered an “owner or operator” under any environmental laws or otherwise
 cause the Collateral Agent to incur, or be exposed to, any environmental
liability or any liability under any applicable law, the Collateral Agent
reserves the right, instead of taking such action, either to resign as
Collateral Agent or to arrange for the transfer of the title or control of the
asset to a court appointed receiver (at the expense of the Borrower). The
Collateral Agent will not be liable to any Person for any environmental
liability or any environmental claims or contribution actions under any
Environmental Law by reason of the Collateral Agent’s actions and conduct as
authorized, empowered and directed hereunder or relating to any kind of
discharge or release or threatened discharge or release of any hazardous
materials into the environment.

 

(e)
 The Collateral Agent’s sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral and any other property in its
possession, under the UCC or otherwise, shall be to deal with it in the same
manner as the Collateral Agent deals with similar property for the account of
other customers in similar transactions. The Collateral Agent shall be
accountable only for amounts that it actually receives as a result of the
exercise of its rights and powers. Except for reasonable care and preservation
of the Collateral in its possession (as described above) and the accounting for
moneys actually received by it hereunder, the Collateral Agent shall have no
duty as to the collection or protection of the Collateral or any income thereon,
nor as to the preservation of rights against prior parties, nor as to the
preservation of any rights pertaining thereto. The Collateral Agent shall have
no duty, liability or obligation with respect to any Credit Asset Collections,
Credit Asset, Credit Asset Document Checklist, Credit Asset Documents or Credit
Asset Files other than as expressly set forth in any Loan Document to which the
 Collateral Agent is a party.

 

Section
8.11Erroneous
Payments.

 

(a)If
the Administrative Agent notifies a Lender, Secured Party or any Person who has
received funds on behalf of a Lender or Secured Party (any such Lender, Secured
Party or other recipient, a “Payment Recipient”) that the
Administrative Agent has determined in its sole discretion (whether or not after
receipt of any notice under immediately succeeding clause (b))
 that any funds received by such Payment Recipient from the Administrative Agent
or any of its Affiliates were erroneously transmitted to, or otherwise
erroneously or mistakenly received by, such Payment Recipient (whether or not
known to such Lender, Secured Party or other Payment Recipient on its behalf)
(any such funds, whether received as a payment, prepayment or repayment of
principal, interest, fees, distribution or otherwise, individually and
collectively, an “Erroneous Payment”) and demands the return of
such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at
all times remain the property of the Administrative Agent and shall be
segregated by the Payment Recipient and held in trust for the benefit of the
Administrative Agent, and such Lender or Secured Party shall (or, with respect
to any Payment Recipient who received such funds on its behalf, shall cause such
Payment Recipient to) promptly, but in no event later than two Business Days
thereafter, return to the Administrative Agent the amount of any such Erroneous
 Payment (or portion thereof) as to which such a demand was made, in same day
funds (in the currency so received), together with interest thereon in respect
of each day from and including the date such Erroneous Payment (or portion
thereof) was received by such Payment Recipient to the date such amount is
repaid to the Administrative Agent in same day funds at the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation from time to
time in effect. A notice of the Administrative Agent to any Payment Recipient
under this clause (a) shall be conclusive, absent manifest
error.

 

(b)Without
limiting immediately preceding clause (a), each Lender or Secured
Party, or any Person who has received funds on behalf of a Lender or Secured
Party hereby further agrees that if it receives a payment, prepayment or
repayment (whether received as a payment, prepayment or repayment of principal,
interest, fees, distribution or otherwise) from the Administrative Agent (or any
of its Affiliates) (x) that is in a different amount than, or on a different
date from, that specified in a notice of payment, prepayment or repayment sent
by the Administrative Agent (or any of its Affiliates) with respect to such
payment, prepayment or repayment, (y) that was not preceded or accompanied by a
notice of payment, prepayment or repayment sent by the Administrative Agent (or
any of its Affiliates), or (z) that such Lender or Secured Party, or other such
recipient, otherwise becomes aware was transmitted, or received, in error or by
 mistake (in whole or in part) in each case:

 





111



 


 

(i)(A)
in the case of immediately preceding clauses (x) or
(y), an error shall be presumed to have been made (absent written
confirmation from the Administrative Agent to the contrary) or (B) an error has
been made (in the case of immediately preceding clause (z)), in
each case, with respect to such payment, prepayment or repayment; and

 

(ii)such
Lender or Secured Party shall (and shall cause any other recipient that receives
funds on its respective behalf to) promptly (and, in all events, within one
Business Day of its knowledge of such error) notify the Administrative Agent of
its receipt of such payment, prepayment or repayment, the details thereof (in
reasonable detail) and that it is so notifying the Administrative Agent pursuant
to this Section 8.11(b).

 

Each
Lender or Secured Party hereby authorizes the Administrative Agent to set off,
net and apply any and all amounts at any time owing to such Lender or Secured
Party under any Loan Document, or otherwise payable or distributable by the
Administrative Agent to such Lender or Secured Party from any source, against
any amount due to the Administrative Agent from such Lender or Secured Party
under immediately preceding clause (a) or under the indemnification provisions
of this Agreement.

 

(c)In
the event that an Erroneous Payment (or portion thereof) is not recovered by the
Administrative Agent for any reason, after demand therefor by the Administrative
Agent in accordance with immediately preceding clause (a), from
any Lender that has received such Erroneous Payment (or portion thereof) (and/or
from any Payment Recipient who received such Erroneous Payment (or portion
 thereof) on its respective behalf) (such unrecovered amount, an
“Erroneous Payment Return Deficiency”), upon the Administrative
Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to
have assigned its Loans (but not its Commitments) of the relevant Class with
respect to which such Erroneous Payment was made (the “Erroneous Payment
Impacted Class”) in an amount equal to the Erroneous Payment Return
Deficiency (or such lesser amount as the Administrative Agent may specify) (such
assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted
Class, the “Erroneous Payment Deficiency Assignment”) at par plus
any accrued and unpaid interest (with the assignment fee to be waived by the
Administrative Agent in such instance), and is hereby (together with the
Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the
extent applicable, an agreement incorporating an Assignment and Assumption by
reference pursuant to an electronic platform as to which the Administrative
Agent and such parties are participants) with respect to such Erroneous Payment
Deficiency Assignment, and such Lender shall deliver any Notes evidencing such
Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent
as the assignee Lender shall be deemed to acquire the Erroneous Payment
Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative
 Agent as the assignee Lender shall become a Lender, as applicable, hereunder
with respect to such Erroneous Payment Deficiency Assignment and the assigning
Lender shall cease to be a Lender hereunder with respect to such Erroneous
Payment Deficiency Assignment, excluding, for the avoidance of doubt, its
obligations under the indemnification provisions of this Agreement and its
applicable Commitments which shall survive as to such assigning Lender and (iv)
the Administrative Agent may reflect in the Register its ownership interest in
the Loans subject to the Erroneous Payment Deficiency Assignment. The
Administrative Agent may, in its discretion, sell any Loans acquired pursuant to
an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of
such sale, the Erroneous Payment Return Deficiency owing by the applicable
Lender shall be reduced by the net proceeds of the sale of such Loan (or portion
thereof), and the Administrative Agent shall retain all other rights, remedies
and claims against such Lender (and/or against any recipient that receives funds
on its respective behalf). For the avoidance of doubt, no Erroneous Payment
Deficiency Assignment will reduce the Commitments of any Lender and such
Commitments shall remain available in accordance with the terms of this
Agreement. In addition, each party hereto agrees that, except to the extent that
the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant
to an Erroneous Payment Deficiency Assignment, and irrespective of whether the
Administrative Agent may be equitably subrogated, the Administrative Agent shall
be contractually subrogated to all the rights and interests of the applicable
Lender or Secured Party under the Loan Documents with respect to each Erroneous
 Payment Return Deficiency (the “Erroneous Payment Subrogation
Rights”).

 





112



 


 

(d)The
parties hereto agree that an Erroneous Payment shall not pay, prepay, repay,
discharge or otherwise satisfy any Obligations owed by the Borrower or any other
Loan Party, except, in each case, to the extent such Erroneous Payment is, and
solely with respect to the amount of such Erroneous Payment that is, comprised
of funds received by the Administrative Agent from the Borrower or any other
Loan Party for the purpose of making such Erroneous Payment.

 

(e)To
the extent permitted by applicable law, no Payment Recipient shall assert any
right or claim to an Erroneous Payment, and hereby waives, and is deemed to
waive, any claim, counterclaim, defense or right of set-off or recoupment with
respect to any demand, claim or counterclaim by the Administrative Agent for the
return of any Erroneous Payment received, including without limitation waiver of
any defense based on “discharge for value” or any similar doctrine.

 

(f)Each
party’s obligations, agreements and waivers under this Section
8.11 shall survive the resignation or replacement of the Administrative
Agent, any transfer of rights or obligations by, or the replacement of, a
Lender, the termination of the Commitments and/or the repayment, satisfaction or
discharge of all Obligations (or any portion thereof) under any Loan
Document.

 

Section
8.12Certain
ERISA Matters.

 

(a)Each
Lender (x) represents and warrants, as of the date such Person became a Lender
party hereto, to, and (y) covenants, from the date such Person became a Lender
party hereto to the date such Person ceases being a Lender party hereto, for the
benefit of, the Administrative Agent and its Affiliates and not, for the
avoidance of doubt, to or for the benefit of any Borrower or any other Loan
Party, that at least one of the following is and will be true:

 

(i)such
Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA
or otherwise) of one or more Benefit Plans with respect to such Lender’s
entrance into, participation in, administration of and performance of the Loans,
the Commitments or this Agreement,

 

(ii)the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class
exemption for certain transactions determined by independent qualified
professional asset managers), PTE 95-60 (a class exemption for certain
transactions involving insurance company general accounts), PTE 90-1 (a class
exemption for certain transactions involving insurance company pooled separate
accounts), PTE 91-38 (a class exemption for certain transactions involving bank
collective investment funds) or PTE 96-23 (a class exemption for certain
transactions determined by in-house asset managers), is applicable with respect
to such Lender’s entrance into, participation in, administration of and
performance of the Loans, the Commitments and this Agreement,

 





113



 


 

(iii)(A)
such Lender is an investment fund managed by a “Qualified Professional Asset
Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified
Professional Asset Manager made the investment decision on behalf of such Lender
to enter into, participate in, administer and perform the Loans, the Commitments
and this Agreement, (C) the entrance into, participation in, administration of
and performance of the Loans, the Commitments and this Agreement satisfies the
requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to
the best knowledge of such Lender, the requirements of subsection (a) of Part I
of PTE 84-14 are satisfied with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans, the
Commitments and this Agreement, or

 

(iv)such
other representation, warranty and covenant as may be agreed in writing between
the Administrative Agent, in its sole discretion, and such Lender.

 

(b)In
addition, unless either (1) clause (i) in the immediately preceding clause (a)
is true with respect to a Lender or (2) a Lender has provided another
representation, warranty and covenant in accordance with clause (iv) in the
immediately preceding clause (a), such Lender further (x) represents and
warrants, as of the date such Person became a Lender party hereto, to, and (y)
covenants, from the date such Person became a Lender party hereto to the date
such Person ceases being a Lender party hereto, for the benefit of, the
Administrative Agent and its Affiliates and not, for the avoidance of doubt, to
or for the benefit of any Borrower or any other Loan Party, that none of the
Administrative Agent or any of its Affiliates is a fiduciary with respect to the
assets of such Lender involved in such Lender’s entrance into, participation in,
administration of and performance of the Loans, the Commitments and this
Agreement (including in connection with the reservation or exercise of any
rights by the Administrative Agent under this Agreement, any Loan Document or
any documents related hereto or thereto).

 

Article
 IX.
MISCELLANEOUS

 

Section
9.01Amendments
and Waivers.

 

(a)None
of the terms or provisions of this Agreement or any other Loan Document may be
waived, supplemented or otherwise modified except in accordance with the
provisions of this Section 9.01. The Required Lenders and each Loan Party
party to the relevant Loan Document may, or (with the written consent of the
Required Lenders) the Administrative Agent (or the Collateral Agent as
applicable) and each Loan Party party to the relevant Loan Document may, from
time to time, (x) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents (including amendments and
restatements hereof or thereof) for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (y) waive, on
such terms and conditions as may be specified in the instrument of waiver, any
of the requirements of this Agreement or the other Loan Documents or any Default
or Event of Default and its consequences; provided, however, that, in addition
 to such Required Lender consent (except as otherwise set forth below), no such
waiver, amendment, supplement or modification shall:

 

(i)forgive
the principal amount or extend the final scheduled date of maturity of any Loan,
postpone, extend or delay any scheduled date of any amortization payment, or
reduce or waive any amortization payment in respect of any Term Loan, postpone,
extend or delay any date fixed for, or reduce or waive the stated rate of, any
interest, premium, fee or other amounts (other than principal) due to the
Lenders and payable hereunder or under any other Loan Document (except that, for
the avoidance of doubt, any Default and any mandatory prepayment may, in each
case, be postponed, extended, delayed, reduced, waived or modified solely with
the consent of the Required Lenders), or increase the amount or extend the
expiration date of any Commitment of any Lender, in each case without the
written consent of each Lender directly and adversely affected thereby;
provided that only the consent of the Required Lenders shall be
necessary to reduce the rate of interest due in accordance with Section
2.14(c) or to waive any obligation of the Borrower to pay interest at
such default rate;

 





114



 


 

(ii)amend,
modify or waive any provision of this Section 9.01 or
reduce any percentage specified in the definition of “Required Lenders” or
consent to the assignment or transfer by the Borrower of any its rights or
obligations under the Loan Documents without the consent of all Lenders,

 

(iii)release
or subordinate all or substantially all of the Collateral or release or
subordinate all or substantially all of the Guarantee Obligations of Ultimate
Parent or the Primary Guarantor or the value of the Guarantee Obligations of the
other Guarantors under the Guarantee and Collateral Agreement and the other Loan
Documents, in each case, without the consent of all lenders;

 

(iv)subordinate
the Obligations to any other Indebtedness or subordinate the Liens securing the
Obligations to Liens securing any other Indebtedness (except to the extent
expressly permitted pursuant to the Loan Documents), without the written consent
of each Lender directly and adversely affected thereby, except following any
Event of Default under Section 7.01(f) or (g) if an
opportunity to participate in such other priming Indebtedness is offered to all
existing Lenders hereunder on a pro rata basis;

 

(v)amend,
modify or waive any condition precedent to any Credit Extension under the
Revolving Facility set forth in Section 4.02 (including,
without limitation, the waiver of an existing Default or Event of Default
required to be waived in order for such Credit Extension to be made) without the
consent of the Required Revolving Lenders (but without the necessity of
obtaining the prior written consent of the Required Lenders);

 

(vi)amend,
modify or waive the definition of the term “Borrowing Base” or any
component definition thereof (including “Eligible Credit Assets”,
“Eligible Private Assets” and “Eligible Public
Equities”, “Qualified Cash” and “Excess
Concentration Amount”) without the consent of Lenders having Total
Credit Exposures representing more than 66 2/3% of the Total Credit Exposures of
all Lenders (disregarding the Total Credit Exposure of any Defaulting
Lender);

 

(vii)reduce
the percentage specified in the definition of “Required Class Lenders” with
respect to any Credit Facility without the written consent of all Lenders under
such Credit Facility;

 

(viii)
amend,
 modify or waive any provision of Article VIII or any other
provision of any Loan Document affecting the rights, protections, immunities,
duties and obligations of the Administrative Agent without the consent of the
Administrative Agent;

 

(ix)amend,
modify or waive any provision of Article VIII or any other
provision of any Loan Document affecting the rights, protections, immunities,
duties and obligations of the Collateral Agent without the consent of the
Collateral Agent;

 





115



 


 

(x)amend,
modify or waive the pro rata sharing provisions of Section 2.17,
Section 2.21 or Section 9.07(a) without the
consent of each Lender directly and adversely affected thereby; or

 

(xi)impose
modifications or restrictions on assignments and participations that are more
restrictive than, or additional to, those set forth in Section
9.06 without the consent of each Lender.

 

Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Administrative Agent, the Collateral Agent and all future holders
of the Loans. In the case of any waiver, the Loan Parties, the Lenders, the
Administrative Agent and the Collateral Agent shall be restored to their former
position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon. Any such waiver,
amendment, supplement or modification shall be effected by a written instrument
signed by the parties required to sign pursuant to the foregoing provisions of
this Section 9.01. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder (and any amendment, waiver or consent
which by its terms requires the consent of all Lenders or each affected Lender
may be effected with the consent of the applicable Lenders other than Defaulting
Lenders), except that (x) the Commitment of any Defaulting Lender may not
be increased or extended without the consent of such Lender and (y) any
waiver, amendment or modification requiring the consent of all Lenders or each
affected Lender that by its terms affects any Defaulting Lender
disproportionately adversely relative to other affected Lenders shall require
the consent of such Defaulting Lender.

 

(b)Notwithstanding
anything to the contrary contained in this Section 9.01 or
any other provision of this Agreement or any other Loan Document, this Agreement
and any other Loan Document may be amended solely with the consent of the
Administrative Agent and the Borrower without the need to obtain the consent of
any other Lender if such amendment is consummated in order (x) to correct
 or cure any ambiguities, errors, omissions, mistakes, inconsistencies or
defects jointly identified by the Borrower and the Administrative Agent,
(y) to effect administrative changes of a technical or immaterial nature or
(z) to fix incorrect cross-references or similar inaccuracies in this
Agreement or the applicable Loan Document. The Security Documents and related
documents in connection with this Agreement and the other Loan Documents may be
in a form reasonably determined by the Administrative Agent and may be, together
with this Agreement, amended, supplemented and waived with the consent of the
Administrative Agent and the Collateral Agent (acting at the written direction
of the Administrative Agent) at the request of the Borrower without the need to
obtain the consent of any other Lender if such amendment, supplement or waiver
is delivered in order (i) to comply with local Law or advice of local
counsel, or (ii) to cause such Security Documents or other documents to be
consistent with this Agreement and the other Loan Documents.

 

Section
 9.02 Notices.

 

(a)Notices
Generally. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in Section
9.02(b)), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by email as follows:

 

(i)if
to Ultimate Parent, the Primary Guarantor or the Borrower, to B. Riley
Financial, Inc. at 30870 Russell Ranch Road, Suite 250, Westlake Village, CA
91362, Attention of Phil Ahn and Gina Downs (email: pahn@brileyfin.com and
gdowns@brileyfin.com; Telephone No. 818-746-9310);

 





116



 


 

(ii)if
to the Administrative Agent, to Nomura Corporate Funding Americas, LLC at
Worldwide Plaza, 309 West 49th Street, New York, New York, Attention
of US Loan Support (email: USLoansServicing@US.Nomura.com);

 

(iii)if
to the Collateral Agent, to Wells Fargo Bank, N.A. Corporate Trust Services,
9062 Old Annapolis Road, Columbia, Maryland 21045, Attention of Jason Prisco or
Lance Yeagle – BR Advisory & Investments (email:
ctsbankdebtadministrationteam@wellsfargo.com);

 

(iv)if
to a Lender, to it at its address (or facsimile number) set forth in its
Administrative Questionnaire.

 

Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received. Notices sent by
facsimile shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next Business Day for the
recipient). Notices delivered through electronic communications, to the extent
 provided in Section 9.02(b), shall be effective as
provided in Section 9.02(b).

 

(b)Electronic
Communications.

 

(i)Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communication (including email and internet or intranet websites)
pursuant to procedures approved by the Administrative Agent. The Administrative
Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications.

 

(ii)Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an email address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return email or other
written acknowledgement) and (ii) notices or communications posted to an
internet or intranet website shall be deemed received upon the deemed receipt by
the intended recipient, at its email address as described in the foregoing
clause (i), of notification that such notice or communication
is available and identifying the website address therefor; provided that,
in the case of each of the foregoing clauses (i) and
(ii), if such notice or other communication is not sent during the
normal business hours of the recipient, such notice or communication shall be
deemed to have been sent at the opening of business on the next Business Day for
the recipient.

 

(c)Change
of Address, etc. Any party hereto may change its address or facsimile number
for notices and other communications hereunder by notice to the other
parties.

 

(d)Platform.

 

(i)The
Borrower agrees that the Administrative Agent may, but shall not be obligated
to, make any Approved Electronic Communications available to the Lenders by
posting such Approved Electronic Communications on the Platform.

 





117



 


 

(ii)The
Platform and any Approved Electronic Communications are provided “as is” and “as
available.” None of the Agents nor any of their respective Related Parties
warrant the accuracy, adequacy or completeness of the Platform or any Approved
 Electronic Communications and each expressly disclaims liability for errors or
omissions in the Approved Electronic Communications. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of
third-party rights or freedom from viruses or other code defects, is made by any
Agent or any of their respective Related Parties in connection with the Platform
or the Approved Electronic Communications. Each party hereto agrees that no
Agent has any responsibility for maintaining or providing any equipment,
software, services or any testing required in connection with any Approved
 Electronic Communication or otherwise required for the Platform. In no event
shall any Agent or any of its Related Parties have any liability to any Loan
Party, any Lender or any other Person or entity for damages of any kind, whether
or not based on strict liability and including, without limitation,
(A) direct damages, losses or expenses (whether in tort, contract or
otherwise) arising out of any Loan Party’s or any Agent’s transmission of
communications through the Platform or (B) indirect, special, incidental or
consequential damages, losses or expenses (whether in tort, contract or
otherwise) arising out of any Loan Party’s or any Agent’s transmission of
 communications through the Platform. In no event shall any Agent or any of its
Related Parties have any liability for any damages arising from the use by
others of any information or other materials obtained through internet,
electronic, telecommunications or other information transmission systems, except
to the extent the same resulted primarily from the gross negligence or willful
misconduct of such Agent or its Related Parties, in each case as determined by a
court of competent jurisdiction in a final and non-appealable judgment.

 

(iii)Each
Loan Party, each Lender and each Agent agrees that the Administrative Agent may,
but shall not be obligated to, store any Approved Electronic Communications on
the Platform in accordance with the Administrative Agent’s customary document
retention procedures and policies.

 

(iv)All
uses of the Platform shall be governed by and subject to, in addition to this
Section 9.02, separate terms and conditions posted or
referenced in such Platform and related agreements executed by the Lenders and
their Affiliates in connection with the use of such Platform.

 

(v)Each
Loan Party understands that the distribution of material through an electronic
medium is not necessarily secure and that there are confidentiality and other
risks associated with such distribution and agrees and assumes the risks
associated with such electronic distribution, except to the extent caused by the
willful misconduct or gross negligence of the Administrative Agent, in each case
as determined by a court of competent jurisdiction in a final and non-appealable
judgment.

 

(vi)The
Borrower and each Lender acknowledge that certain of the Lenders may be Public
Lenders and, if documents or notices required to be delivered pursuant to
Section 5.02 or otherwise are being distributed through the
Platform, any document or notice that the Borrower has indicated contains
Non-Public Information shall not be posted on that portion of the Platform
designated for Public Lenders. The Borrower agrees to clearly designate all
information provided to the Administrative Agent by or on behalf of the Loan
Parties which is suitable to make available to Public Lenders. If the Borrower
has not indicated whether a document or notice delivered pursuant to
Section 5.02 or otherwise contains Non-Public Information,
the Administrative Agent reserves the right to post such document or notice
solely on that portion of the Platform designated for Lenders who wish to
receive Material Nonpublic Information with respect to Ultimate Parent, the
Primary Guarantor, its Subsidiaries and their respective securities.

 





118



 


 

(e)Public
Side Information Contacts. Each Public Lender agrees to cause at least one
individual at or on behalf of such Public Lender to have selected the “Private
Side Information” or similar designation on the content declaration screen of
the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable
 Requirements of Law, including the U.S. Federal and state securities Laws, to
make reference to Approved Electronic Communications that are not made available
through the “Public Side Information” portion of the Platform and that may
contain Material Nonpublic Information with respect to the Borrower or its
securities for purposes of the U.S. Federal or state securities Laws. In the
event that any Public Lender has elected for itself to not access any
information disclosed through the Platform or otherwise, such Public Lender
 acknowledges that (i) the Agents and other Lenders may have access to such
information and (ii) neither the Borrower nor any Agent or other Lender
with access to such information shall have (x) any responsibility for such
Public Lender’s decision to limit the scope of information it has obtained in
connection with this Agreement and the other Loan Documents or (y) any duty
to disclose such information to such electing Lender or to use such information
on behalf of such electing Lender, and shall not be liable for the failure to so
disclose or use such information.

 

Section
9.03No
Waiver by Course of Conduct; Cumulative Remedies. None of the Agents or
the Lenders shall by any act (except by a written instrument pursuant to
Section 9.01), 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. No failure to exercise, nor any delay in
exercising, on the part of any Agent or 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 any Agent or Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which such Agent
or 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 other rights or remedies provided by law.

 

Section
9.04Survival
of Representations, Warranties, Covenants and Agreements. All
representations, warranties, covenants and agreements made herein, in the other
Loan Documents and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall be considered to have been relied upon by
the other parties hereto and shall survive the execution and delivery hereof and
thereof and the making of the Loans and other extensions of credit hereunder,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default at the time of any Credit Extension
hereunder, and shall continue in full force and effect as long as any Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied. The
provisions of Section 2.18, Section 2.19,
Section 2.20, Section 9.05,
Section 9.19, Section 9.21 and
Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
Payment in Full, the expiration or termination of the Commitments, the
termination of this Agreement or any provision hereof or the resignation or
removal of any Agent.

 

Section
 9.05 Payment of Expenses; Indemnity.

 

(a)Costs
and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
costs and expenses incurred by the Administrative Agent, the Collateral Agent
and their respective Affiliates in connection with the syndication of the Credit
Facilities, the preparation, negotiation, execution, delivery and administration
of this Agreement and the other Loan Documents, or any amendments, modifications
or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), including the reasonable
fees, charges and disbursements of counsel and (ii) all out-of-pocket costs
and expenses incurred by the Administrative Agent, the Collateral Agent and each
Lender (including the fees, charges and disbursements of any counsel for any
Agent or any Lender) in connection with the enforcement or protection of any
rights and remedies under this Agreement and the other Loan Documents, including
 all such costs and expenses incurred during any legal proceeding, including any
proceeding under any Debtor Relief Law, and including in connection with any
workout, restructuring or negotiations in respect of the Credit Facilities and
the Loan Documents, including the reasonable fees, charges and disbursements of
counsel.

 





119



 


 

(b)Indemnification
by the Borrower. The Borrower shall indemnify the Administrative Agent (and
any sub-agent thereof), the Collateral Agent and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any
and all liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs (including settlement costs), disbursements and
out-of-pocket fees and expenses (including the fees, charges and disbursements
of any counsel for any Indemnitee, court costs, and all fees, expenses and costs
incurred by any Indemnitee in connection with any dispute, action, claim or suit
brought to enforce an Indemnitee’s right to indemnification), joint or several,
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted or awarded against any Indemnitee in any way relating to or
arising out of or in connection with or by reason of (i) any actual or
prospective claim, litigation, investigation or proceeding in any way relating
to, arising out of, in connection with or by reason of any of the following,
whether based on contract, tort or any other theory (including any investigation
of, preparation for, or defense of any pending or threatened claim, litigation
or proceeding): (x) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other document delivered in
connection with the transactions contemplated thereby or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) or the
consummation of the transactions contemplated thereby (including, without
limitation, the performance of the Collateral Agent’s obligations under the
Account Control Agreements and any other control agreement, including any
amounts payable by the Collateral Agent to a bank under an Account Control
Agreement or any other control agreement for fees, expenses or indemnification
of the bank) or (y) any Commitment, any Credit Extension or the use or
proposed use of the proceeds thereof; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, fees and expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee, (y) in the case of any
Lender, result from a claim brought by the Borrower or any other Loan Party
 against such Lender for a material breach in bad faith of such Lender’s funding
obligations hereunder, if the Borrower or such Loan Party has obtained a final
and non-appealable judgment in its favor on such claim as determined by a court
of competent jurisdiction or (z) any dispute solely among Indemnitees
(other than any claims by or against the Administrative Agent or the Collateral
Agent in its capacity or in fulfilling its role as Administrative Agent,
Collateral Agent, arranger or any similar role, respectively, hereunder or under
any other Loan Document and other than any claims arising out of any act or
omission of the Primary Guarantor or any of its Affiliates); or (ii) any
actual or alleged presence or Release of Materials of Environmental Concern at,
on, under or from any property currently or formerly owned or operated by the
Primary Guarantor or any of its Subsidiaries, or any Environmental Liability
related in any way to the Primary Guarantor or any of its Subsidiaries
(clauses (i) and (ii), collectively, the
“Indemnified Liabilities”), in all cases, whether or not caused by
or arising, in whole or in part, out of the negligence of such Indemnitee and
regardless of whether such Indemnitee is a party thereto, and whether or not any
such claim, litigation, investigation or proceeding is brought by the Borrower,
its equity holders, its affiliates, its creditors or any other Person. This
Section 9.05(b) shall not apply with respect to Taxes other
than any Taxes that represent losses, claims, damages, etc. arising from any
non-Tax claim.

 





120



 


 

(c)Reimbursement
by the Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under Section 9.05(a)
or Section 9.05(b) to be paid by it to the Administrative
Agent or Collateral Agent (or any sub-agent thereof) or any Related Party of any
of the foregoing (including, without limitation the performance of the
Collateral Agent’s obligations under the Account Control Agreements and any
other control agreement, including any amounts payable by the Collateral Agent
to a bank under an Account Control Agreement or any other control agreements for
fees, expenses or indemnification of the bank), each Lender severally agrees to
pay to the Administrative Agent or Collateral Agent (or any such sub-agent) or
such Related Party, as the case may be, such Lender’s pro rata share (determined
as of the time that the applicable unreimbursed expense or indemnity payment is
sought based on each Lender’s share of the Total Credit Exposure at such time)
of such unpaid amount (including any such unpaid amount in respect of a claim
asserted by such Lender); provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent or Collateral
Agent (or any such sub-agent) in its capacity as such, or against any Related
Party of any of the foregoing acting for the Administrative Agent or Collateral
Agent (or any such sub-agent). The obligations of the Lenders under this
Section 9.05(c) are several and not joint.

 

(d)Waiver
of Consequential Damages, Etc. To the fullest extent permitted by applicable
Requirements of Law, Ultimate Parent, the Primary Guarantor and the other Loan
Parties shall not assert (and each shall cause its Subsidiaries not to assert),
and hereby waives (and agrees to cause its Subsidiaries to waive), any claim
against any Indemnitee, on any theory of liability, for special, indirect,
 consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any other document contemplated hereby, the transactions
contemplated hereby or thereby, any Commitment or any Credit Extension, or the
use of the proceeds thereof or such Indemnitee’s activities in connection
therewith (whether before or after the Closing Date); provided that such
waiver of special, indirect, consequential or punitive damages shall not limit
the indemnification obligations of the Borrower under this
Section 9.05. No Indemnitee shall be liable for any damages
 arising from the use by others of any information or other materials
distributed by such Indemnitee through telecommunications, electronic or other
information transmission systems in connection with this Agreement, the other
Loan Documents or the transactions contemplated hereby or thereby.

 

(e)Payments.
All amounts due under this Section 9.05 shall be payable
not later than 10 days after demand therefor. Without limiting the generality of
the foregoing, if any amount shall be payable by the Collateral Agent to a bank
under an Account Control Agreement or any other control agreement, including
without limitation any amounts for the fees, expenses or indemnities of a bank,
or if a bank shall otherwise make any claim upon the Collateral Agent under such
agreement, the Borrower and the Lenders, as applicable, shall be liable to pay
such amount to the Collateral Agent promptly and in any event within five (5)
days of demand therefor from the Collateral Agent.

 

Section
 9.06 Successors and Assigns; Participations and Assignments.

 

(a)Successors
and Assigns Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of the Administrative Agent and each Lender (and any such
 assignment without such consent shall be null and void), and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except
(i) to an assignee in accordance with the provisions of Section
9.06(b), (ii) by way of participation in accordance with the
provisions of Section 9.06(d), or (iii) by way of
pledge or assignment of a security interest subject to the restrictions of
Section 9.06(e). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in Section 9.06(d) and, to the
extent expressly contemplated hereby, Indemnitees and the Related Parties of
each of the Administrative Agent, the Collateral Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this
Agreement.

 



121



 


 

(b)Assignments
by Lenders. (1) 	Any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it);
provided that (in each case with respect to any Credit Facility) any such
assignment shall be subject to the following conditions:

 

(i)Minimum
Amounts.

 

(A)In
the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and/or the Loans at the time owing to it (in each case with
respect to any Credit Facility) or contemporaneous assignments to related
Approved Funds (determined after giving effect to such assignments) that equal
at least the amount specified in Section 9.06(b)(i)(B) in
the aggregate or in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund, no minimum amount need be assigned.

 

(B)In
any case not described in Section 9.06(b)(i)(A), the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
“trade date” is specified in the Assignment and Assumption, as of such date)
shall not be less than $5,000,000, in the case of any assignment in respect of
any Class of Revolving Loans or Revolving Commitments, or $1,000,000, in the
case of any assignment in respect of any Term Loan Facility, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed).

 

(ii)Proportionate
Amounts. Each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Agreement with respect to the Loan or the Commitment assigned, except that
this Section 9.06(b)(ii) shall not prohibit any Lender from
assigning all or a portion of its rights and obligations among separate Credit
Facilities on a non-pro rata basis.

 

(iii)Required
Consents. No consent shall be required for any assignment except to the
extent required by Section 9.06(b)(i)(B) and, in
addition:

 

(A)the
consent of the Borrower (such consent not to be unreasonably withheld or
delayed) shall be required unless (x) an Event of Default has occurred and
is continuing at the time of such assignment, or (y) such assignment is to
a Lender, an Affiliate of a Lender or an Approved Fund; provided that the
Borrower shall be deemed to have consented to any such assignment unless it
shall object thereto by written notice to the Administrative Agent within ten
Business Days after having received notice thereof; provided,
further, that the Borrower’s consent shall not be required during the
pre- and post-closing primary syndication of the Credit Facilities by the
Administrative Agent within the first 180 days following the Closing Date;
and

 





122



 


 

(B)the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of
(i) any Class of Revolving Loans or Revolving Commitments or any unfunded
Commitments with respect to any Term Loan Facility if such assignment is to a
Person that is not a Lender with a Commitment in respect of such Credit
Facility, an Affiliate of any such Lender or an Approved Fund with respect to
such Lender, or (ii) any Term Loans to a Person who is not a Lender, an
Affiliate of a Lender or an Approved Fund.

 

(iv)Processing
Fee; Administrative Questionnaire. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500; provided that
the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment. The assignee, if
 it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.

 

(v)No
Assignment to Certain Persons. No such assignment shall be made to (A) the
Borrower or any of the Primary Guarantor’s Affiliates or Subsidiaries or (B) to
any Defaulting Lender or any of its Subsidiaries, or any Person who, upon
becoming a Lender hereunder, would constitute a Defaulting Lender or a
Subsidiary thereof.

 

(vi)No
Assignment to Natural Persons. No such assignment shall be made to a natural
Person (or a holding company, investment vehicle or trust for, or owned and
operated for the primary benefit of, a natural Person).

 

(vii)Certain
Additional Payments. In connection with any assignment of rights and
obligations of any Defaulting Lender hereunder, no such assignment shall be
effective unless and until, in addition to the other conditions thereto set
forth herein, the parties to the assignment shall make such additional payments
to the Administrative Agent in an aggregate amount sufficient, upon distribution
thereof as appropriate (which may be outright payment, purchases by the assignee
of participations or subparticipations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the
applicable pro rata share of Loans previously requested but not funded by the
Defaulting Lender, to each of which the applicable assignee and assignor hereby
irrevocably consent), to (x) pay and satisfy in full all payment liabilities
then owed by such Defaulting Lender to the Administrative Agent and each other
 Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as
appropriate) its full pro rata share of all Loans in accordance with its
Revolving Percentage. Notwithstanding the foregoing, in the event that any
assignment of rights and obligations of any Defaulting Lender hereunder shall
become effective under applicable Requirements of Law without compliance with
the provisions of this clause (vii), then the assignee of
such interest shall be deemed to be a Defaulting Lender for all purposes of this
Agreement until such compliance occurs.

 

(2) Subject
 to acceptance and recording thereof by the Administrative Agent pursuant to
Section 9.06(c), from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
 this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Section 2.18,
Section 2.19 and Section 9.05 with respect to
facts and circumstances occurring prior to the effective date of such
assignment; provided that, except to the extent otherwise expressly
agreed by the affected parties, no assignment by a Defaulting Lender will
constitute a waiver or release of any claim of any party hereunder arising from
that Lender’s having been a Defaulting Lender. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
 this Section 9.06 (b) shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Section 9.06(d).

 





123



 


 

(c)Register.
The Administrative Agent, acting solely for this purpose as a non-fiduciary
agent of the Borrower, shall maintain a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Commitments of, and principal amounts (and stated interest)
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 absent manifest error, and the Borrower, the Administrative Agent and
the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by (x) the Borrower
and (y) any Lender solely with respect to any entry relating to such Lender’s
Loans, in each case, at any reasonable time and from time to time upon
reasonable prior notice.

 

(d)Participations.
Any Lender may at any time, without the consent of, or notice to, the Borrower
or the Administrative Agent, sell participations to any Person (other than a
natural Person, or a holding company, investment vehicle or trust for, or owned
and operated for the primary benefit of, a natural Person, a Defaulting Lender
or the Borrower or any of the Primary Guarantor’s Affiliates) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or
obligations under this Agreement (including all or a portion of its Commitment
and/or the Loans owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrower, the Administrative Agent and
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. For
the avoidance of doubt, each Lender shall be responsible for the indemnity under
Section 9.05(c) with respect to any payments made by such
Lender to its Participants.

 

Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in clauses (i),
(ii), (iii), (iv), (ix),
(x) and (xi) of the proviso to Section
9.01(a) that affects such Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Section 2.18,
Section 2.19 and Section 2.20 (subject to the
requirements and limitations therein, including the requirements in
Section 2.19(g) (it being understood that the documentation
 required under Section 2.19(g) shall be delivered to the
participating Lender)) to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to Section
9.06(b); provided that such Participant (A) agrees to
be subject to the provisions of Section 2.23 as if it were an
assignee under Section 9.06(b); and (B) shall not be
entitled to receive any greater payment under Section 2.18 or
Section 2.19 with respect to any participation than its
participating Lender would have been entitled to receive. Each Lender that sells
a participation agrees, at the Borrower’s request and expense, to use reasonable
efforts to cooperate with the Borrower to effectuate the provisions of
Section 2.23(a) with respect to any Participant. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.07(b) as though it were a Lender; provided
that such Participant agrees to be subject to Section
9.07(a) as though it were a Lender. Each Lender that sells a
participation shall, acting solely for this purpose as a non-fiduciary agent of
the Borrower, maintain a register on which it enters the name and address of
each Participant and the principal amounts (and stated interest) of each
Participant’s interest in the Loans or other obligations under the Loan
 Documents (the “Participant Register”); provided that no
Lender shall have any obligation to disclose all or any portion of the
Participant Register (including the identity of any Participant or any
information relating to a Participant’s interest in any commitments, loans,
letters of credit or its other obligations under any Loan Document) to any
Person except to the extent that such disclosure is necessary to establish that
such commitment, loan, letter of credit or other obligation is in registered
form under Section 5f.103-1(c) or Proposed Section 1.163-5(b)of the United
States Treasury Regulations (or, in each case, any amended or successor
version). The entries in the Participant Register shall be conclusive absent
manifest error, and such Lender shall treat each Person whose name is recorded
in the Participant Register as the owner of such participation for all purposes
of this Agreement notwithstanding any notice to the contrary. For the avoidance
of doubt, the Administrative Agent (in its capacity as Administrative Agent)
shall have no responsibility for maintaining a Participant Register.

 





124



 


 

(e)Certain
Pledges. Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank or other central bank having jurisdiction over such Lender;
provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.

 

(f)Special
Purpose Funding Vehicles. Notwithstanding anything to the contrary contained
herein, any Lender (a “Granting Lender”) may grant to a special
purpose funding vehicle (an “SPC”), identified as such in writing
 from time to time by the Granting Lender to the Administrative Agent and the
Borrower, the option to provide to the Borrower all or any part of any Loan that
such Granting Lender would otherwise be obligated to make to the Borrower
pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects
not to exercise such option or otherwise fails to provide all or any part of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant to
the terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan were
made by such Granting Lender. Each party hereto hereby agrees that no SPC shall
be liable for any indemnity or similar payment obligation under this Agreement
(all liability for which shall remain with the Granting Lender). In furtherance
of the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or other
indebtedness of any SPC, it will not institute against, or join any other Person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States of
America or any state thereof. In addition, notwithstanding anything to the
contrary in this Section 9.06(f), any SPC may (A) with
notice to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Lender, or with the
prior written consent of the Borrower and the Administrative Agent (which
consent shall not be unreasonably withheld) to any financial institutions
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans, and (B) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC; provided that non-public information
 with respect to the Borrower may be disclosed only with the Borrower’s consent
which will not be unreasonably withheld. This Section
 9.06(f) may not be amended without the written consent of any
SPC with Loans outstanding at the time of such proposed amendment.

 





125



 


 

Section
 9.07 Sharing of Payments by Lenders; Set-off.

 

(a)If
any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Loans or other obligations hereunder resulting in such Lender receiving
payment of a proportion of the aggregate amount of its Loans and accrued
interest thereon or other such obligations greater than its pro rata share
thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the Loans and such
other obligations of the other Lenders, or make such other adjustments as shall
 be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them;
provided that:

 

(i)if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and

 

(ii)the
provisions of this Section 9.07(a) shall not be construed
to apply to (x) any payment made by the Borrower pursuant to and in accordance
with the express terms of this Agreement or (y) any payment obtained by a Lender
as consideration for the assignment of or sale of a participation in any of its
Loans to any assignee or participant.

 

The
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable Requirements of Law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.

 

(b)Each
of Ultimate Parent, the Primary Guarantor and the Borrower hereby irrevocably
authorizes each Lender at any time and from time to time while an Event of
Default shall have occurred and be continuing, without notice to Ultimate
Parent, the Primary Guarantor or the Borrower, any such notice being expressly
waived by each of Ultimate Parent, the Primary Guarantor and the Borrower, to
set-off and appropriate and apply any and all deposits (general or special, time
or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such party to or for the credit or the account of Ultimate Parent, the
Primary Guarantor and the Borrower, or any part thereof in such amounts as such
Lender may elect, against and on account of the obligations and liabilities of
Ultimate Parent, the Primary Guarantor and the Borrower to such Lender hereunder
and claims of every nature and description of such Lender against Ultimate
 Parent, the Primary Guarantor and the Borrower, in any currency, whether
arising hereunder, under any other Loan Document or otherwise, as such Lender
may elect, whether or not any Lender has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured; provided that such Lender complies with Section
9.07(a). Each Lender exercising any right of set-off shall notify
Ultimate Parent, the Primary Guarantor and the Borrower promptly of any such
set-off and the application made by such Lender of the proceeds thereof;
provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this
Section 9.07 are in addition to other rights and remedies
 (including, without limitation, other rights of set-off) which such Lender may
have.

 





126



 


 

Section
 9.08 Counterparts. This Agreement shall be valid, binding, and
enforceable against a party only when executed and delivered by an authorized
individual on behalf of the party by means of (i) any electronic signature
permitted by the federal Electronic Signatures in Global and National Commerce
Act, state enactments of the Uniform Electronic Transactions Act, and/or any
 other relevant electronic signatures law, including relevant provisions of the
UCC (collectively, “Signature Law”); (ii) an original manual signature; or (iii)
a faxed, scanned, or photocopied manual signature. Each electronic signature or
faxed, scanned, or photocopied manual signature shall for all purposes have the
same validity, legal effect, and admissibility in evidence as an original manual
signature. Each party hereto shall be entitled to conclusively rely upon, and
shall have no liability with respect to, any faxed, scanned, or photocopied
manual signature, or other electronic signature, of any party and shall have no
duty to investigate, confirm or otherwise verify the validity or authenticity
thereof. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but such counterparts shall, together,
constitute one and the same instrument. For avoidance of doubt, original manual
signatures shall be used for execution or indorsement of writings when required
 under the UCC or other Signature Law due to the character or intended character
of the writings.

 

Section
 9.09 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. The parties hereto shall
endeavor in good-faith negotiations to replace any invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.

 

Section
 9.10 Section Headings. The Section headings and Table of
Contents used in this Agreement are for convenience of reference only and are
not to affect the construction hereof or be taken into consideration in the
interpretation hereof.

 

Section
 9.11 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the parties hereto with respect to the subject
matter hereof and thereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof and
thereof. There are no promises, undertakings, representations or warranties by
any Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.

 

Section
 9.12 Governing Law. THIS AGREEMENT AND ANY DISPUTE, CLAIM OR
CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER ARISING IN
CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

Section
 9.13 Submission to Jurisdiction; Waivers.

 

(a)Each
of Ultimate Parent, the Primary Guarantor and the Borrower hereby irrevocably
and unconditionally:

 

(i)submits
for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents (whether arising in contract, tort or
otherwise) to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the exclusive (subject to Section
9.13(a)(iii)) general jurisdiction of the courts of the State of
New York sitting in the Borough of Manhattan, the courts of the United States
for the Southern District of New York sitting in the Borough of Manhattan, and
appellate courts from any thereof;

 





127



 


 

(ii)agrees
that all claims in respect of any such action or proceeding shall be heard and
determined in such New York state court or, to the fullest extent permitted by
applicable Requirements of Law, in such federal court;

 

(iii)agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law and that nothing in this Agreement or any other Loan
Document shall affect any right that the Agents or the Lenders may otherwise
have to bring any action or proceeding relating to this Agreement or any other
 Loan Document against it or any of its assets in the courts of any
jurisdiction;

 

(iv)waives,
to the fullest extent permitted by applicable Requirements of Law, any objection
that it may now or hereafter have to the laying of venue of any action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in Section 9.13(a) (and
irrevocably waives to the fullest extent permitted by applicable Requirements of
Law the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court);

 

(v)consents
to service of process in the manner provided in Section
9.02 (and agrees that nothing in this Agreement will affect the right of any
party hereto to serve process in any other manner permitted by applicable
Requirements of Law);

 

(vi)agrees
that service of process as provided in Section 9.02 is
sufficient to confer personal jurisdiction over the applicable party in any such
proceeding in any such court, and otherwise constitutes effective and binding
service in every respect; and

 

(vii)waives,
to the maximum extent not prohibited by law, any right it may have to claim or
recover any special, exemplary, punitive or consequential damages.

 

(b)Each
Loan Party that is organized under the laws of a jurisdiction outside the United
States of America hereby appoints the Ultimate Parent, as its agent for service
of process in any matter related to this Agreement or the other Loan Documents
and shall provide written evidence of acceptance of such appointment by such
agent on or before the Closing Date.

 

Section
 9.14 Acknowledgments. Each of Ultimate Parent, the Primary Guarantor
and the Borrower hereby acknowledges and agrees that:

 

(a)it
was represented by counsel in connection with the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a party,
that it and its counsel reviewed and participated in the preparation and
negotiation hereof and thereof and that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation hereof or thereof; and

 

(b)no
joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Agents and
the Lenders or among the Group Members, the Agents and the Lenders.

 

Section
 9.15 Confidentiality. Each of the Agents and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed:

 



128



 


 

(a)to
its Related Parties (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential in accordance
with customary practices);

 

(b)to
the extent required or requested by any regulatory or similar authority
(including any self-regulatory authority, such as the National Association of
Insurance Commissioners or any other similar organization) purporting to have
jurisdiction over such Person or its Related Parties (in which case such Person
shall, except with respect to any audit or examination conducted by bank
accountants or any Governmental Authority or regulatory or self-regulatory
authority exercising examination or regulatory authority, notify the Borrower as
soon as practicable in the event of any such disclosure by such Person unless
such notification is prohibited by law, rule or regulation);

 

(c)to
the extent required by applicable Requirements of Law or regulations or by any
subpoena or similar legal process (in which case such Person shall, except with
respect to any audit or examination conducted by bank accountants or any
Governmental Authority or regulatory or self-regulatory authority exercising
examination or regulatory authority, notify the Borrower as soon as practicable
in the event of any such disclosure by such Person unless such notification is
prohibited by law, rule or regulation);

 

(d)to
any other party hereto;

 

(e)in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder;

 

(f)subject
to an agreement containing provisions substantially the same (or at least as
restrictive) as those of this Section 9.15 (or as may
otherwise be reasonably acceptable to the Borrower), to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights and obligations under this Agreement, or (ii) any actual or prospective
party (or its Related Parties) to any swap, derivative other transaction under
which payments are to be made by reference to the Borrower and its obligations,
 this Agreement or payments hereunder;

 

(g)on a
confidential basis to (i) any rating agency in connection with rating Ultimate
Parent, the Primary Guarantor or its Subsidiaries or the Credit Facilities or
(ii) the CUSIP Service Bureau or any similar agency in connection with the
issuance and monitoring of CUSIP numbers with respect to the Credit Facilities;
and

 

(h)with
the consent of the Borrower; or (i) to the extent that such Information (x)
becomes publicly available other than as a result of a breach of this
Section 9.15, or (y) becomes available to any Agent, any
Lender or any of their respective Affiliates on a non-confidential basis from a
source other than the Borrower.

 

In
addition, each of the Agents and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry and service providers to the
Agents and the Lenders in connection with the administration of this Agreement,
 the other Loan Documents and the Credit Extensions. Notwithstanding anything
herein to the contrary, the information subject to this Section
 9.15 shall not include, and each of the Agents and the Lenders may disclose
without limitation of any kind, any information with respect to the “tax
treatment” and “tax structure” (in each case, within the meaning of Treasury
Regulation Section 1.6011-4) of the Loans, the Transactions and the other
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to the Agents or the Lenders
relating to such tax treatment and tax structure; provided that, with
 respect to any document or similar item that in either case contains
information concerning such “tax treatment” or “tax structure” as well as other
information, this sentence shall only apply to such portions of the document or
similar item that relate to such “tax treatment” or “tax structure.”

 





129



 


 

For
purposes of this Section 9.15, “Information”
shall mean all information received from Ultimate Parent, the Primary Guarantor
or any of its Subsidiaries relating to Ultimate Parent, the Primary Guarantor or
any of its Subsidiaries or any of their respective businesses, other than any
such information that is available to any Agent or any Lender on a
non-confidential basis prior to disclosure by Ultimate Parent, the Primary
Guarantor or any of its Subsidiaries; provided that, in the case of
information received from Ultimate Parent, the Borrower or any of its
Subsidiaries after the Closing Date, such information is clearly identified at
the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section
9.15 shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord confidential
information of other customers in similar transactions.

 

Notwithstanding
anything to the contrary in the Loan Documents, the Loan Parties shall not and
shall cause the other Group Members to not, and Loan Parties shall not be
obligated to, provide the Agents or any Lender with any Material Nonpublic
Information with respect to any Issuer, its Subsidiaries or its securities in
any document or notice required to be delivered pursuant to this Agreement, any
other Loan Document or any communication pursuant to, or directly related to,
this Agreement or any other Loan Document (each a “Communication”)
and in delivering, or permitting any other Group Member to deliver, any
Communication, the Loan Parties shall be deemed to have represented that any
such Communication contains no such Material Nonpublic Information.
Notwithstanding anything to the contrary in the Loan Documents, the Loan Parties
acknowledge and agree that if any Lender or any of such Lender’s Affiliates
receives from any Loan Party or any other Group Member any Material Nonpublic
Information at any time in connection with this Agreement or any other Loan
Document, such Lender or such Affiliate may disclose such Material Nonpublic
Information publicly, to any potential purchaser of the Public Equities or to
any other Person.

 

For
the avoidance of doubt, the Loan Parties agree that the obligations of Agents
and Lenders set forth in this Section 9.15 shall not be
interpreted to restrict any such Agent or Lender or any of their Affiliates from
transacting in Public Equities or related securities.

 

Section
 9.16 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT, BREACH OF DUTY, COMMON LAW, STATUTE OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
 ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.16. EACH
PARTY HERETO FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

 





130



 


 

Section
 9.17 PATRIOT Act Notice; AML Laws. Each Lender and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies each Loan Party that (a) pursuant to the requirements of the PATRIOT
Act, it is required to obtain, verify and record information that identifies the
Loan Parties, which information includes the name, address and taxpayer
information number of each Loan Party and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify such Loan Party
in accordance with the PATRIOT Act and (b) pursuant to the Beneficial Ownership
Regulation, it is required to obtain a Beneficial Ownership Certification. The
Borrower shall, promptly following a reasonable request by any Lender (through
the Administrative Agent) or the Administrative Agent, provide all documentation
and other information that such Lender or the Administrative Agent, as
applicable, requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money-laundering rules and regulations,
including the PATRIOT Act and the Beneficial Ownership Regulation.

 

The
parties hereto acknowledge that in accordance with laws, regulations and
executive orders of the United States or any state or political subdivision
thereof as are in effect from time to time applicable to financial institutions
relating to the funding of terrorist activities and money laundering, including
without limitation the USA Patriot Act (Pub. L. 107-56) and regulations
promulgated by the Office of Foreign Asset Control (collectively, “AML Law”),
the Collateral Agent is required to obtain, verify, and record information
relating to individuals and entities that establish a business relationship or
open an account with the Collateral Agent. Each party hereby agrees that it
shall provide the Collateral Agent with such identifying information and
documentation as the Colalteral Agent may request from time to time in order to
 enable the Collateral Agent to comply with all applicable requirements of AML
Law.

 

Section
 9.18 Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged with respect to any of the
Obligations, including all charges or fees in connection therewith deemed in the
nature of interest under applicable Requirements of Law, shall not exceed the
Highest Lawful Rate. If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate, the outstanding amount of the Loans made hereunder shall bear interest at
the Highest Lawful Rate until the total amount of interest due hereunder equals
the amount of interest which would have been due hereunder if the stated rates
of interest set forth in this Agreement had at all times been in effect. In
addition, if when the Loans made hereunder are repaid in full the total interest
due hereunder (taking into account the increase provided for above) is less than
the total amount of interest which would have been due hereunder if the stated
rates of interest set forth in this Agreement had at all times been in effect,
then to the extent permitted by law, the Borrower shall pay to Administrative
Agent an amount equal to the difference between the amount of interest paid and
the amount of interest which would have been paid if the Highest Lawful Rate had
at all times been in effect. Notwithstanding the foregoing, it is the intention
of the Lenders and the Borrower to conform strictly to any applicable usury
laws. Accordingly, if any Lender contracts for, charges, or receives any
 consideration which constitutes interest in excess of the Highest Lawful Rate,
then any such excess shall be cancelled automatically and, if previously paid,
shall at such Lender’s option be applied to the outstanding amount of the Loans
made hereunder or be refunded to the Borrower.

 

Section
 9.19 Payments Set Aside. To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent, the Collateral Agent
or any Lender, or the Administrative Agent, the Collateral Agent or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, the Collateral Agent or such Lender in
its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof
 originally intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been made or such setoff had not
occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent or the Collateral Agent, as applicable, upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by the
 Administrative Agent or the Collateral Agent (as applicable), plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Effective Rate from time to time
in effect.

 





131



 


 

Section
 9.20 No Advisory or Fiduciary Responsibility. In connection with all
aspects of each transaction contemplated hereby (including in connection with
any amendment, waiver or other modification hereof or of any other Loan
Document), each of Ultimate Parent’s, the Primary Guarantor and the Borrower
acknowledges and agrees, and acknowledges its Affiliates’ understanding, that:
(a) (i) no fiduciary, advisory or agency relationship between the Group
Members and any Agent or any other Lender is intended to be or has been created
in respect of the transactions contemplated hereby or by the other Loan
Documents, irrespective of whether any Agent or any other Lender has advised or
is advising the Primary Guarantor or any Subsidiary on other matters,
(ii) the arranging and other services regarding this Agreement provided by
the Agents and the other Lenders are arm’s-length commercial transactions
between the Borrower and its Affiliates, on the one hand, and the Agents and the
other Lenders, on the other hand, (iii) the Borrower has consulted its own
legal, accounting, regulatory and tax advisors to the extent that it has deemed
appropriate and (iv) the Borrower is capable of evaluating, and understands
and accepts, the terms, risks and conditions of the transactions contemplated
hereby and by the other Loan Documents; and (b) (i) the Agents and the
other Lenders each is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and
will not be acting as an advisor, agent or fiduciary for the Borrower or any of
its Affiliates or any other Person; (ii) none of the Agents and the other
Lenders has any obligation to the Borrower or any of its Affiliates with respect
to the transactions contemplated hereby except those obligations expressly set
forth herein and in the other Loan Documents; and (iii) the Agents and the
other Lenders and their respective Affiliates may be engaged, for their own
accounts or the accounts of customers, in a broad range of transactions that
involve interests that differ from those of the Borrower and its Affiliates, and
none of the Agents and the other Lenders has any obligation to disclose any of
such interests to the Borrower or its Affiliates. To the fullest extent
permitted by law, the Borrower hereby waives and releases any claims that it may
have against the Agents and the other Lenders with respect to any breach or
alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.

 

Section
 9.21 Judgment Currency. In respect of any judgment or order given or
made for any amount due under this Agreement or any other Loan Document that is
expressed and paid in a currency (the “judgment currency”) other
than Dollars, the Loan Parties will indemnify Administrative Agent and any
Lender against any loss incurred by them as a result of any variation as between
(i) the rate of exchange at which the Dollar amount is converted into the
judgment currency for the purpose of such judgment or order and (ii) the
rate of exchange, as quoted by the Administrative Agent or by a known dealer in
the judgment currency that is designated by the Administrative Agent, at which
the Administrative Agent or such Lender is able to purchase Dollars with the
amount of the judgment currency actually received by the Administrative Agent or
such Lender. The foregoing indemnity shall constitute a separate and independent
obligation of the Loan Parties and shall survive any termination of this
 Agreement and the other Loan Documents, and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term “rate
of exchange” shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into Dollars.

 

 

[Remainder of page left intentionally
blank.]

 





132



 


 

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.

 

	 	B.
         Riley Financial, Inc.,
      as Ultimate Parent
	 	 
	 	By:	/s/
      Phillip Ahn
	 	Name:	Phillip
      Ahn
	 	Title:	Authorized
      Signatory
	 	 	 
	 	 	 
	 	BR
         FINANCIAL Holdings, LLC,
      as Primary Guarantor
	 	 
	 	By:	/s/
      Phillip Ahn
	 	Name:	Phillip
      Ahn
	 	Title:	Authorized
      Signatory
	 	 	 
	 	 	 
	 	BR
         Advisory & Investments, LLC,
      as Borrower
	 	 
	 	By:	/s/
      Phillip Ahn
	 	Name:	Phillip
      Ahn
	 	Title:	Authorized
      Signatory
	 	 	 
	 	 	 
	 	Nomura
         Corporate Funding Americas, LLC,
      as Administrative    Agent
	 	 
	 	By:	/s/
      Nilesh Parikh
	 	Name:	Nilesh
      Parikh
	 	Title:	Managing
      Director
	 	 	 
	 	 	 
	 	Nomura
         SECURITIES (BERMUDA) LTD.,
      as a Lender
	 	 
	 	By:	/s/
      Donald F. Folkard
	 	Name:	Donald
      F. Folkard
	 	Title:	President
	 	 	 
	 	 	 
	 	WELLS
         FARGO BANK,
      N.A., as Collateral Agent
	 	 
	 	By:	/s/
      Amy Mofsenson
	 	Name:	Amy
      Mofsenson
	 	Title:	Vice
      President


 

 

[Signature
 Page to Credit Agreement]

 





133



 


 

ANNEX
A-1

 

REVOLVING COMMITMENTS

 

	Lender	Revolving
      Commitment	Pro
      Rata Share
	Nomura SECURITIES (BERMUDA)
    LTD.	$80,000,000	100%
	Total	$80,000,000	100%


 





ANNEX
A-1



 


 

ANNEX
A-2

 

TERM LOAN COMMITMENTS

 

	Lender	Term
      Loan Commitment	Pro
      Rata Share
	Nomura SECURITIES (BERMUDA)
    LTD.	$200,000,000	100%
	Total	$200,000,000	100%


 



ANNEX
A-2