Exhibit 10.4


 


June
17, 2018


 


Vintage
Rodeo, L.P. 


C/O
Vintage Rodeo GP, LLC, General Partner 


4705
South Apopka Vineland Road, Suite 206 


Orlando,
Florida 32819


 


Project
Rodeo

Side Letter re Subscription


 


Ladies
and Gentlemen:


 


B.
Riley Financial Inc., a Delaware corporation (the “BRF”), has entered into a Subscription Agreement
dated of even date herewith (the “Subscription Agreement”) between BRF and Vintage Rodeo, L.P. (the
“Partnership”), pursuant to which BRF has agreed to subscribe for common limited partnership interests
of the Partnership in the amount of up to $315,000,000 (such amount, the “BRF Common Contribution Amount”)
in the Partnership’s offering of its common limited partnership interests (“Common Interests”)
and up to $170,000,000 of 13% preferred limited partnership interests (the “Preferred Interests”) in
an aggregate amount of up to $710,000,000 (the “Offering”), consisting of: (i) an aggregate minimum
offering of $610,000,000 of limited partnership interests to be purchased for cash, including up to $170,000,000 of Preferred
Interests, and (ii) an additional $100,000,000 to be contributed in kind to the Partnership. Capitalized terms used herein and
not otherwise defined shall have the respective meanings as set forth in the Subscription Agreement.


 


This
letter agreement constitutes an amendment to the Subscription Agreement as contemplated by Section 10(c) thereof. The Partnership
and General Partner hereby confirm the following agreements for the benefit of BRF, that:


 


		(a)	BRF
                                         hereby agrees to subscribe for up to an additional $114,000,000 of Preferred Interests
                                         to be purchased for cash in said amount (the “BRF Preferred Contribution
                                         Amount”). Dividends will accumulate quarterly on the Preferred Interests
                                         at the annual rate of 13% per annum and added to the amount of Preferred Interests then
                                         outstanding. The Preferred Interests (including accumulated dividends thereon) will be
                                         fully redeemable after the latest maturity date of those term loans entered into at the
                                         Closing of the Merger contemplated by that certain Debt Commitment Letter, dated as of
                                         June 17, 2018, by and among the BRF, Vintage Rodeo Parent, LLC and Guggenheim Corporate
                                         Funding, LLC.



 


		(b)	The
                                         additional subscription for the Preferred Interests shall otherwise be the subject to
                                         the same representations, warranties and other terms and conditions to funding as set
                                         forth in the Subscription Agreement for the Common Interests.



 


		(c)	Any
                                         subscriptions payable in cash accepted by the Partnership by subscribers (i) referred
                                         by BRF or an Affiliate thereof or (ii) in excess of $610,000,000, shall reduce, at the
                                         election of BRF, the BRF Common Contribution Amount, the BRF Preferred Contribution Amount,
                                         or a combination of the BRF Common Contribution Amount and the BRF Preferred Contribution
                                         Amount on a dollar-for-dollar basis.



 


		(d)	BRF
                                         may assign portions of the BRF Common Contribution Amount or the BRF Preferred Contribution
                                         Amount obligations prior to Closing and/or may transfer Common Interests or Preferred
                                         Interests to Affiliates and controlled funds that would have been qualified to subscribe
                                         initially under the terms of the Offering for a period of 90 days following the Offering.



 






    


     


    

 


		(e)	BRF
                                         and affiliated assignees pursuant to the preceding clause (d) shall not be required to
                                         fund the BRF Common Contribution Amount or the BRF Preferred Contribution Amount unless
                                         the Partnership shall have received contemporaneously therewith payment(s), cash contributions
                                         for Common Interests and up to $170,000,000 of Preferred Interests pursuant to other
                                         subscriptions of an amount equal to $610,000,000 less the BRF Common Contribution Amount
                                         and the BRF Preferred Contribution Amount.



 


		(f)	BRF’s
                                         Subscription Agreement shall terminate and BRF shall not be obligated to make the BRF
                                         Common Contribution Amount payment or the BRF Preferred Contribution Amount in the event
                                         that any claim is brought by the Target Company under, or any legal action, suit or proceeding
                                         is brought by the Target Company or any of its Affiliates with respect to the Guarantee
                                         or the Guarantors (as defined in the Guarantee). From and after any such termination,
                                         none of BRF, its Affiliates or controlled funds shall have any further liability or obligation
                                         to the Partnership or its Affiliates under the Subscription Agreement, this letter or
                                         with respect to the BRF Common Contribution Amount or the BRF Preferred Contribution
                                         Amount.



 


		(g)	Notwithstanding
                                         anything to the contrary herein or in the Subscription Agreement, BRF shall be entitled
                                         to increase the BRF Common Contribution Amount, in BRF’s sole and absolute discretion
                                         and without any obligation to do so, to provide such funds as may be required to assure
                                         that the Partnership has sufficient funds to close the transactions contemplated by the
                                         Subscription Agreement, including, without limitation, the offering described in the
                                         Subscription Agreement and the merger contemplated by the Merger Agreement (as defined
                                         in the Subscription Agreement).



 


		(h)	Any
                                         amounts funded by BRF pursuant to the Equity Commitment Letter among BFR, the Company
                                         and Vintage Rodeo Parent, LLC, or otherwise to the Partnership, shall be without duplication
                                         to the amounts required to be funded under the Subscription Agreement as modified by
                                         this letter agreement.



 


If
any term or other provision of this letter agreement is invalid, illegal or incapable of being enforced by any rule or Law, or
public policy, (1) such term or other provision shall be fully separable, (2) this letter agreement shall be construed and enforced
as if such invalid, illegal or unenforceable provision had never comprised a part hereof, and (3) all other conditions and provisions
of this letter agreement shall nevertheless remain in full force and effect so long as either the economic or legal substance
of the transactions contemplated by this letter agreement is not affected in any manner materially adverse to any party or such
party expressly waives its rights in writing under this letter agreement with respect thereto. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this letter agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner
to the end that the transactions contemplated by this letter agreement are fulfilled to the fullest extent possible.


 


The
parties further hereby acknowledge and agree that this letter has been executed simultaneously with the Subscription Agreement
as an inducement to execute and deliver the Subscription Agreement, and that the terms and conditions of this letter shall be
deemed incorporated by reference in the Subscription Agreement as if fully set forth therein. In the event of any inconsistency
between this letter agreement and the terms and conditions of the Subscription Agreement, the terms and conditions of this letter
shall control.


 






    


     


    

 


This
letter agreement, together with the Subscription Agreement, and any associated fee or flex letters executed in connection therewith,
represent the entire agreements of the parties with respect to the subject matter thereof. This letter agreement may not be amended
except in writing by a subsequent written agreement executed by all parties hereto that expressly references this letter. This
letter agreement may be signed in multiple counterparts.


 


THIS
LETTER AGREEMENT SHALL BE GOVERNED BY THE LAWS OF DELAWARE APPLICABLE TO CONTRACTS ENTERED INTO AND PERFORMED EXCLUSIVELY WITHIN
SAID STATE. THE PARTIES (A) HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
IN ORANGE COUNTY, FLORIDA FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF OR BASED UPON THIS LETTER AGREEMENT,
(B) AGREE NOT TO COMMENCE ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF OR BASED UPON THIS LETTER AGREEMENT EXCEPT IN ANY
STATE OR FEDERAL COURT LOCATED IN ORANGE COUNTY, FLORIDA AND (C) HEREBY WAIVE, AND AGREE NOT TO ASSERT, BY WAY OF MOTION, AS A
DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION
OF THE ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING
IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS LETTER AGREEMENT
OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT.


 


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


 





	 	Very truly yours,
	 	 	 
	 	B. Riley Financial, Inc.
	 	 	 
	 	By:	/s/ Bryant
    Riley
	 	 	Name: Bryant Riley
	 	 	Title: CEO






 


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Accepted
and agreed to as of

the date first above written:


 


VINTAGE
RODEO, L.P.


 





	By:	Vintage
Rodeo GP, LLC, General Partner	 
	 	 	 	 
	 	By:	/s/ Brian R. Kahn	 
	 	Name:  Brian R. Kahn	 
	 	Title:  Manager	 


 





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