Blueprint






Exhibit 4.3

 










 



NOTE PURCHASE AGREEMENT


 


DATED
AS OF MARCH 12, 2019


 


AMONG


 


NOVUME
SOLUTIONS, INC.,


as the
Borrower,


 


THE
GUARANTORS FROM TIME TO TIME PARTY HERETO,


 


U.S.
BANK NATIONAL ASSOCIATION


as
Agent,


 

 



THE PURCHASERS

 


FROM
TIME TO TIME PARTY HERETO

 



and

 



CEDARVIEW CAPITAL MANAGEMENT, LP

 


as Sole
Lead Arranger and

 


Bookrunner

 


 

 


 





























 







TABLE OF CONTENTS

 






 


	





	
 

	
 PAGE


	

Article 1
DEFINITIONS 



	
 


	

Section
1.1

	

Certain
Defined Terms

	
 8


	

Section
1.2

	

Accounting
Terms and Determinations

	
 8


	

Section
1.3

	

Other
Definitional Provisions and References

	
 9


	

Article
2 THE NOTES

	




	
 


	

Section
2.1

	

Purchase
and Sale of Purchased Securities

	
 9


	

Section
2.2

	

Premium
Percentage

	
 10


	

Section
2.3

	

Mandatory
Prepayments

	
 10


	

Section
2.4

	

Interest,
Fees and Calculations

	
 11


	

Section
2.5

	

Notes

	
 12


	

Section
2.6

	

Provisions
Regarding Payment

	
 13


	

Section
2.7

	

Purchaser
Representations

	
 13


	

Article 3
REPRESENTATIONS AND WARRANTIES 



	
 


	

Section
3.1

	

Existence
and Power

	
 15


	

Section
3.2

	

Organizational
Authority and Governmental Authorization; No
Contravention

	
 15


	

Section
3.3

	

Binding
Effect

	
 16


	

Section
3.4

	

Capitalization

	
 16


	

Section
3.5

	

Financial
Information

	
 16


	

Section
3.6

	

Litigation

	
 17


	

Section
3.7

	

Ownership
of Property

	
 17


	

Section
3.8

	

No
Default

	
 17


	

Section
3.9

	

Labor
Matters

	
 17


	

Section
3.10

	

Investment
Company

	
 18






 



 










 





 

 


	

Section
3.11

	

Margin
Regulations

	

18




	

Section
3.12

	

Compliance
With Laws; Anti‐Terrorism Laws

	

18


	

Section
3.13

	

Taxes

	
19



	

Section
3.14

	

Compliance
with ERISA; Foreign Benefit Plans

	
19



	

Section
3.15

	

Related
Transactions

	
20


	

Section
3.16

	

Environmental
Compliance

	
20



	

Section
3.17

	

Intellectual
Property21

	
21



	

Section
3.18

	

Real
Property Interests

	
21



	

Section
3.19

	

Insurance

	
21



	

Section
3.20

	

Bank
Accounts

	
21



	

Section
3.21

	

Solvency

	
22



	

Section
3.22

	

Full
Disclosure

	
22



	

Section
3.23

	

Debt

	
22



	

Section
3.24

	

Treatment
of Obligations

	
23


	

Section
3.25

	

Borrower
Activities

	
23



	

Section
3.26

	

Closing
Date Acquisition Documents

	
23



	

Section
3.27

	

Sanctions;
Anti-Corruption

	
23



	

Section
3.28

	

Offer
of Purchased Securities; Private Offering

	
24



	

Article 4
AFFIRMATIVE COVENANTS 



	
 


	

Section
4.1

	

Financial
Statements and Other Reports

	
25



	

Section
4.2

	

Payment
and Performance of Obligations

	
29



	

Section
4.3

	

Maintenance
of Existence

	
29



	

Section
4.4

	

Maintenance
of Property; Insurance

	
29



	

Section
4.5

	

Compliance
with Laws

	
30



	

Section
4.6

	

Inspection
of Property, Books and Records, Appraisals; Account
Verifications

	
31



	

Section
4.7

	

Use of
Proceeds

	
31



	

Section
4.8

	

Purchasers’
Meetings

	
31



	

Section
4.9

	

Sanctions;
Anti-Corruption Laws

	
31


	

Section
4.10

	

Board
Observation Rights

	
32



	

Section
4.11

	

Further
Assurances

	
32



	

Section
4.12

	

Post-Closing
Covenants

	
33







 



 










 





 

 


	

Article 5 NEGATIVE
COVENANTS 



	
 


	

Section
5.1

	

Debt

	
34



	

Section
5.2

	

Liens

	
35



	

Section
5.3

	

Contingent
Obligations

	
36



	

Section
5.4

	

Restricted
Distributions

	
37



	

Section
5.5

	

Restrictive
Agreements

	
37



	

Section
5.6

	

Payments
and Modifications of Subordinated Debt

	
38



	

Section
5.7

	

Consolidations,
Mergers and Sales of Assets

	
38



	

Section
5.8

	

Purchase
of Assets, Investments

	
39



	

Section
5.9

	

Transactions
with Affiliates

	
41



	

Section
5.10

	

Modification
of Organizational Documents

	
41



	

Section
5.11

	

Modification
of Certain Agreements

	
41



	

Section
5.12

	

Bank
Accounts

	
42


	

Section
5.13

	

Subsidiaries

	
42



	

Section
5.14

	

Accounting
Treatment, Fiscal Year

	
42


	

Section
5.15

	

Conduct
of Business

	
42



	

Section
5.16

	

Limitation
on Sale and Leaseback Transactions

	
42



	

Section
5.17

	

Compliance
with Anti‐Terrorism Laws

	
43



	

Section
5.18

	

Hazardous
Materials.

	
43


	

Article 6
FINANCIAL COVENANTS 



	
43



	

Section
6.1

	

Fixed
Charge Coverage Ratio

	
43



	

Section
6.2

	

Minimum
Liquidity

	
43



	

Section
6.3

	

Maximum
Capital Expenditures

	
44



	

Article 7
CONDITIONS 



	
 



	

Section
7.1

	

Conditions
to Closing

	
44



	

Article 8 EVENTS
OF DEFAULT 



	
 


	

Section
8.1

	

Events
of Default

	
46



	

Section
8.2

	

Acceleration
of Notes

	
48



	

Section
8.3

	

Setoff
Rights

	
48



	

Section
8.4

	

Application
of Proceeds

	
48



	

Section
8.5

	

Power
of Attorney

	
49







 



 










 





 

 


	

Article 9 EXPENSES
AND INDEMNITY 



	
 


	

Section
9.1

	

Expenses

	
49



	

Section
9.2

	

Indemnity

	
50



	

Article 10 TAXES;
YIELD PROTECTION 



	
 


	

Section
10.1

	

Taxes

	
51



	

Section
10.2

	

Capital
Adequacy

	
52



	

Section
10.3

	

Increased
Costs

	
52



	

Section
10.4

	

Mitigation
Obligations

	
53



	

Section
10.5

	

Conclusiveness
of Statements; Survival

	
53



	

Section
10.6

	

Dodd-Frank

	
53



	

Article 11
AGENT 



	
 


	

Section
11.1

	

Appointment
and Authorization

	
53



	

Section
11.2

	

Agent
and Affiliates

	
54



	

Section
11.3

	

Delegation
of Duties

	
54



	

Section
11.4

	

Action
by Agent; Action by Secured Parties

	
54



	

Section
11.5

	

Consultation
with Experts

	
55



	

Section
11.6

	

Liability
of Agent

	
55



	

Section
11.7

	

Indemnification

	
55



	

Section
11.8

	

Right
to Request and Act on Instructions

	
55



	

Section
11.9

	

Credit
Decision

	
56



	

Section
11.10

	

Collateral
Matters

	
56



	

Section
11.11

	

Agency
for Perfection

	
56



	

Section
11.12

	

Notice
of Default

	
56



	

Section
11.13

	

Successor
Agent

	
57



	

Section
11.14

	

Right
to Perform, Preserve and Protect

	
57



	

Section
11.15

	

Additional
Titled Agents

	
57



	

Section
11.16

	

Subordinated
Debt and Existing WF Debt

	
58



	

Section
11.17

	

Third
Party Beneficiaries

	
58







 



 










 





 

 


	

Article 12
MISCELLANEOUS 



	
 


	

Section
12.1

	

Survival

	

59


	

Section
12.2

	

No
Waivers; Remedies Cumulative

	

59


	

Section
12.3

	

Notices

	

59


	

Section
12.4

	

Severability

	
60



	

Section
12.5

	

Amendments
and Waivers

	
60



	

Section
12.6

	

Assignments;
Participations

	
61



	

Section
12.7

	

Headings

	
62


	

Section
12.8

	

Confidentiality

	
62



	

Section
12.9

	

Waiver
of Consequential and Other Damages

	
63



	

Section
12.10

	

Marshaling;
Payments Set Aside

	
63



	

Section
12.11

	

GOVERNING
LAW; SUBMISSION TO JURISDICTION

	
63



	

Section
12.12

	

WAIVER
OF JURY TRIAL

	
64



	

Section
12.13

	

Publication;
Advertisement

	
64



	

Section
12.14

	

Counterparts;
Signatures; Integration

	
64



	

Section
12.15

	

No
Strict Construction

	
65



	

Section
12.16

	

USA
PATRIOT Act Notification

	
65



	

Section
12.17

	

Joint
and Several Liabilities

	
65



	

Section
12.18

	

WF
Intercreditor Agreement

	
65







 


 




 











 







ANNEXES, EXHIBITS AND SCHEDULES

 



ANNEXES

 


	

Annex A
- Definitions








 

 



EXHIBITS

 


	

Exhibit
A - Form of Note


	

Exhibit
B - Form of
Warrant


	

Exhibit
C - Assignment
Agreement


	

Exhibit
D - Compliance
Certificate


	

Exhibit
E - Payment
Notification







 

  




 











 







NOTE PURCHASE AGREEMENT

 


This
NOTE PURCHASE AGREEMENT dated as of March 12, 2019, is by and
among, Novume Solutions,
Inc., a Delaware corporation (“Borrower”), the financial
institutions or other entities from time to time parties hereto,
each as a “Purchaser,” and U.S. Bank National Association, as
paying agent and collateral agent (in such capacity, the
“Agent”).

 



RECITALS:

 


WHEREAS, Borrower
has requested, and the Purchasers have agreed to purchase senior
secured notes and warrants from the Borrower upon and subject to
the terms and conditions set forth in this Agreement to (a) fund a
portion of the cash consideration paid in connection with the
acquisition by Borrower of substantially all of the assets of
OpenALPR Technology, Inc. (the “Closing Date Target”) on the
Closing Date (the “Closing
Date Acquisition”) pursuant to the terms of that
certain Asset Purchase Agreement dated as of November 14, 2018, as
amended on February 15, 2019, by and among Borrower, the Sellers
and the other Persons party thereto (the “Closing Date Acquisition
Agreement”), (b) refinance certain existing Debt of
the Borrower, (c) provide for working capital, capital expenditures
and other general corporate purposes of the Borrower and (d) fund
certain fees and expenses associated with the funding of the Notes
and consummation of the Closing Date Acquisition;

 


WHEREAS, each
subsidiary of Borrower is willing to guaranty all of the
Obligations; and

 


WHEREAS, the
Borrower and each Guarantor are willing to secure all of the
Obligations by granting to Agent, for the benefit of the Secured
Parties, a first priority perfected Lien upon substantially all of
its personal and real property, including without limitation all
outstanding Capital Stock of each of its Subsidiaries, subject to
any limitations set forth herein, including relating to Foreign
Subsidiaries that are CFCs.

 


NOW,
THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrower, Guarantors,
Purchasers, and Agent agree as follows:

 



ARTICLE 1

 


DEFINITIONS

 


Section
1.1 Certain Defined
Terms.

 


Capitalized terms
used herein and not otherwise defined herein shall have the
meanings ascribed to such terms on Annex A to this
Agreement.

 


Section
1.2 Accounting Terms and
Determinations.

 




 

8







 





 


Unless
otherwise specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder (including
without limitation determinations made pursuant to the exhibits
hereto) shall be made, and all financial statements required to be
delivered hereunder shall be prepared on a consolidated basis in
accordance with GAAP consistently applied. If at any time any
change in GAAP would affect the computation of any financial ratio
or financial requirement set forth in any Financing Document, and
either the Borrower or Required Purchasers shall so request,
Purchasers and Borrower shall negotiate in good faith to amend such
ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of Required
Purchasers); provided that, until so
amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and
(ii) Borrower shall provide to Agent and Purchasers financial
statements and other documents required under this Agreement which
include a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in
GAAP. For the avoidance of doubt, notwithstanding any change in
GAAP after the Closing Date that would require lease obligations
that would be treated as operating leases as of the Closing Date to
be classified and accounted for as capital leases, such obligations
shall be treated in the same manner as operating leases are treated
as of the Closing Date.

 


Section
1.3 Other Definitional Provisions and
References.

 


References in this
Agreement to “Articles”, “Sections”,
“Annexes”, or “Exhibits” shall be to
Articles, Sections, Annexes or Exhibits of or to this Agreement
unless otherwise specifically provided. Any term defined herein may
be used in the singular or plural. “Include”,
“includes” and “including” shall be deemed
to be followed by “without limitation”. Except as
otherwise specified or limited herein, references to any Person
include the successors and assigns of such Person. References
“from” or “through” any date mean, unless
otherwise specified, “from and including” or
“through and including”, respectively. Unless otherwise
specified herein, the settlement of all payments and fundings
hereunder between or among the parties hereto shall be made in
lawful money of the United States and in immediately available
funds. Time is of the essence for each performance obligation of
each Credit Party under this Agreement and each Financing Document.
All amounts used for purposes of financial calculations required to
be made herein shall be without duplication. References to any
statute or act shall include all related current regulations and
all amendments and any successor statutes, acts and regulations.
References to any statute or act, without additional reference,
shall be deemed to refer to federal statutes and acts of the United
States. References to any agreement, instrument or document shall
include all schedules, exhibits, annexes and other attachments
thereto. Unless otherwise expressly provided herein or in any other
Financing Document, references to agreements and other contractual
instruments, including this Agreement and the other Financing
Documents, shall be deemed to include all subsequent amendments,
thereto, restatements and substitutions thereof and other
modifications and supplements thereto which are in effect from time
to time, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Financing
Document. References to any statute or regulation may be made by
using either the common or public name thereof or a specific cite
reference and, except as otherwise provided with respect to FATCA,
are to be construed as including all statutory and regulatory
provisions related thereto or consolidating, amending, replacing,
supplementing or interpreting the statute or
regulation.

 



ARTICLE 2

 


THE NOTES

 


Section
2.1 Purchase and Sale of Purchased
Securities.

 


(a) Commitments. On the terms and
subject to the conditions set forth herein, Borrower agrees to
sell, and the Purchasers severally agree to purchase from the
Borrower, (i) senior secured promissory notes on the Closing Date
in an aggregate original principal amount equal to $20,000,000,
substantially in the form attached hereto as Exhibit A (the
“Notes”) and
(ii) warrants exercisable into 2,500,000 shares of Borrower’s
common stock, substantially in the form attached hereto as
Exhibit B (the
“Warrants”, and
together with the Notes, the “Purchased Securities”). Each
Purchaser’s obligation to purchase the Purchased Securities
shall be limited to such Purchaser’s Note Commitment
Percentage, and no Purchaser shall have any obligation to purchase
any Purchased Securities required to be purchased by any other
Purchaser, but not so purchased. Borrower shall not have any right
to reborrow any portion of the Notes which is repaid or prepaid
from time to time.

 


(b) [reserved].

 


(c) Optional
Prepayments of Notes. Borrower may from
time to time with advance written notice and with delivery to Agent
and Purchasers of an appropriately completed Payment Notification,
prepay any Notes in whole or in part (plus any Premium Percentage,
as applicable).

 

 




 

9







 





 

Section
2.2 Premium
Percentage.

 


In the
event that (a) any Note is prepaid, repaid, reduced, refinanced, or
replaced in whole or in part before the Maturity Date, (b) the
Obligations are accelerated (whether pursuant to the terms of this
Agreement, by operation of law, or otherwise), (c) the Notes are
satisfied as a result of a foreclosure sale or by any other means,
or (d) an Event of Default occurs under Section 8.1(f) or 8.1(g),
then, on the effective date of such prepayment, repayment,
reduction, refinancing, replacement, acceleration, sale or such
Event of Default, the Borrower shall pay to the Purchasers, in
addition to all other Obligations, a percentage (the
“Premium
Percentage”) of the principal amount of the Notes
being prepaid, repaid, refinanced, replaced, accelerated, or
subject to a sale through foreclosure or otherwise or an Event of
Default under Section 8.1(f) or 8.1(g) (or required or deemed to be
prepaid, repaid, refinanced, replaced, or subject to an
acceleration, sale or such Event of Default), determined in
accordance with the following chart:

 


	
Date
of Redemption

	
 
Premium
Percentage

 


	
Closing Date to
March 11, 2020

	
 
 
20%


	
From and after
March 11, 2020

	
 
 
10%







 


Any
Premium Percentage payable in accordance with this Section 2.2
shall be presumed to be equal to the liquidated damages sustained
by the Purchasers as the result of the occurrence of any event
triggering the prepayment of such Premium Percentage and Borrower
agrees that it is reasonable under the circumstances currently
existing. The parties hereto acknowledge that the Premium
Percentage shall survive acceleration of the Obligations and/or the
occurrence of any insolvency proceeding, and shall automatically
accrue to the principal amount of the Notes and shall constitute
part of the Obligations for all purposes herein. If the Notes are
accelerated for any reason pursuant to the terms herein, the
Premium Percentage shall be calculated as if the date of
acceleration of the Notes was the date of prepayment of the Notes.
THE BORROWER EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR
FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION
OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY
ACCELERATION. The Borrower expressly agrees that: (A) the Premium
Percentage is reasonable and is the product of an arm's length
transaction between sophisticated business people, ably represented
by counsel; (B) the Premium Percentage shall be payable
notwithstanding the then prevailing market rates at the time
payment is made; (C) there has been a course of conduct between
Purchasers and Borrower giving specific consideration in this
transaction for such agreement to pay the Premium Percentage; (D)
Borrower shall be estopped hereafter from claiming differently than
as agreed to in this paragraph; (E) their agreement to pay the
Premium Percentage is a material inducement to Purchasers to
purchase the Notes; and (F) the Premium Percentage represents a
good faith, reasonable estimate and calculation of the lost profits
or damages of Purchasers and that it would be impractical and
extremely difficult to ascertain the actual amount of damages to
Purchasers or profits lost by Purchasers as a result of such event
triggering payment of the Premium Percentage.

 


Section
2.3 Mandatory
Prepayments.There
shall become due and payable and Borrower shall prepay the Notes in
the following amounts and at the following times, and, in each
case, subject to Section
2.3(i) (and including any Premium Percentage, as
applicable):

 


(a) [reserved].

 


(b) Casualty and Other Insurance
Proceeds. Within five (5) Business Days after any Credit
Party or any Subsidiary (or Agent as loss payee or assignee)
receives any Major Casualty Proceeds, an amount equal to one
hundred percent (100%) of such Major Casualty
Proceeds.

 


(c) Debt and Equity Proceeds.
Within five (5) Business Days after any Credit Party or any
Subsidiary receives the proceeds from the incurrence of Debt (other
than proceeds from the incurrence of Debt permitted pursuant to
Section 5.1),
Borrower shall prepay the Notes in an amount equal to one hundred
percent (100%) of the Net Cash Proceeds of such
incurrence.


 




  








10







 





 

 


(d) Asset Disposition Proceeds.
Within five (5) Business Days after any Credit Party or any
Subsidiary receives the proceeds of any Asset Disposition
(including, without limitation, any sale of substantially all of
the assets used in the Closing Date Target’s business or any
Capital Stock of any Subsidiary holding assets used in the Closing
Date Target’s business), Borrower shall prepay the Notes in
an amount equal to one hundred percent (100%) of the Net Cash
Proceeds of such Asset Disposition; provided, that no such
prepayment shall be required unless and until the aggregate Net
Cash Proceeds received during any Fiscal Year from Asset
Dispositions exceeds $250,000 (in which case all Net Cash Proceeds
in excess of such amount shall be used to make prepayments pursuant
to this Section 2.3(d)).

 


(e) Extraordinary Receipts. Within
five (5) Business Days of the receipt by any Credit Party or any
Subsidiary of any Extraordinary Receipt, in an amount equal to the
Net Cash Proceeds of such Extraordinary Receipt.

 


(f) [reserved]

 


(g) Change of Control. Concurrently
upon occurrence of a Change of Control, an amount equal to all of
the outstanding Obligations.

 


(h) Maturity Date. On the Maturity
Date, an amount equal to all of the outstanding
Obligations.

 


(i) General Provisions. The
Borrower shall deliver to Agent and each Purchaser an appropriately
completed Payment Notification at least two (2) Business Days prior
to each mandatory prepayment (other than with respect to a
mandatory prepayment event occurring under Section 2.3(h)).

 


Section
2.4 Interest, Fees and
Calculations.

 


(a) Interest. From and following
the Closing Date, subject to the terms hereof, the principal amount
of the Notes (including any previously compounded PIK Interest
relating thereto) shall bear interest at a rate per annum equal to
sixteen percent (16%) per annum (the “Interest Rate”), of which at least
ten percent (10%) per annum shall be paid in cash (the
“Cash
Interest”). The full remaining portion of all
interest, if any, accruing on each Note, to the extent not paid in
cash, shall be paid in kind as set forth herein (the
“PIK Interest”).
On the first Interest Payment Date following each anniversary of
the Closing Date, all theretofore accrued and unpaid interest shall
be added to the principal amount of the applicable Note and shall
thereafter bear interest as set forth herein and shall be payable
in full with the first payment of the principal amount of the
applicable Note if not otherwise paid prior to such date;
provided that all
accrued PIK Interest may be paid in cash at the Borrower’s
option at any time and shall accrue cumulatively whether or not the
Borrower shall have capital, surplus, earnings or other amounts
sufficient to lawfully pay such amounts. To the extent that any
interest is paid as PIK Interest, the amount of Cash Interest to be
paid and the amount of PIK Interest to be accrued shall be in each
case apportioned to each outstanding Note pro rata based upon the
principal amount of each Note (including previously accrued PIK
Interest) outstanding as of the applicable Interest Payment
Date.

 


(b) Default Rate of Interest. With
respect to any or all of the following, at the election of the
Required Purchasers, after the occurrence of an Event of Default
(and automatically in the case of an Event of Default under
Sections 8.1(f) or
(g)) and for so
long as it continues, (i) the Notes shall bear interest at rates
that are three percent (3.0%) in excess of the rates otherwise
payable under this Agreement, and (ii) any other Obligations
outstanding shall increase by a rate that is two percent (2.0%) in
excess of the rate otherwise payable. Any election made pursuant to
clause (i) or (ii) above may be made retroactive to the date of the
occurrence of the applicable Event of Default.

 




 

11







 





 


(c) Computation of Interest and Related
Fees; Payment of Interest. All interest and fees under each
Financing Document shall be calculated by Agent on the basis of a
360-day year for the actual number of days elapsed in the period
during which it accrues. Cash Interest on all Notes is due and
payable in arrears on the last day of each Fiscal Quarter
(commencing on June 30, 2019) and on the Maturity Date, whether by
acceleration or otherwise (each, an “Interest Payment
Date”).

 


(d) Maximum Lawful Rate. In no
event shall the interest charged with respect to any Note or any
other Obligation exceed the maximum amount permitted under the laws
of the State of New York or of any other applicable jurisdiction.
Notwithstanding anything to the contrary herein or elsewhere, if at
any time the rate of interest payable hereunder or under any Note
or other Financing Document (the “Stated Rate”) would exceed the
highest rate of interest permitted under any applicable Law to be
charged (the “Maximum Lawful
Rate”), then for so long as the Maximum Lawful Rate
would be so exceeded, the rate of interest payable shall be equal
to the Maximum Lawful Rate; provided, that if at any time
thereafter the Stated Rate is less than the Maximum Lawful Rate,
Borrower shall, to the extent permitted by Law, continue to pay
interest at the Maximum Lawful Rate until such time as the total
interest received is equal to the total interest which would have
been received had the Stated Rate been (but for the operation of
this provision) the interest rate payable. Thereafter, the interest
rate payable shall be the Stated Rate unless and until the Stated
Rate again would exceed the Maximum Lawful Rate, in which event
this provision shall again apply. In no event shall the total
interest received by any Purchaser exceed the amount which it could
lawfully have received had the interest been calculated for the
full term hereof at the Maximum Lawful Rate. If, notwithstanding
the prior sentence, any Purchaser has received interest hereunder
in excess of the Maximum Lawful Rate, such excess amount shall be
applied to the reduction of the principal balance of the Notes or
to other amounts (other than interest) payable hereunder. If no
such principal or other amounts are then outstanding, such excess
or part thereof remaining shall be paid to Borrower. In computing
interest payable with reference to the Maximum Lawful Rate
applicable to any Purchaser, such interest shall be calculated at a
daily rate equal to the Maximum Lawful Rate divided by the number
of days in the year in which such calculation is made.

 


(e) Fees.

 


(i) Closing Fee. Contemporaneously with the
execution of this Agreement, unless earlier paid by the Borrower,
the Borrower shall pay to the Agent, for the benefit of the
Purchasers, a closing fee in the amount of $200,000, allocated pro
rata among the Purchasers on the basis of the respective initial
principal amount of their notes set forth on Annex B in the
Disclosure Letter.

 


(ii) Work
Fee. Contemporaneously with the execution of this Agreement,
Cedarview shall be entitled to a work fee in an amount equal to
four hundred three thousand two hundred fifty dollars ($403,250),
which shall be fully earned on the Closing Date and payable to the
Agent, for the benefit of Cedarview, in an initial installment of
$43,250 on the Closing Date, and then equal installments of $40,000
on the first day of each month thereafter until such fee has been
paid in full.

 


(iii) Exit
Fee. Upon the earlier of the Maturity Date or payment in
full of the Obligations, the Borrower shall pay to Agent, for the
benefit of the Purchasers, a fee in the amount of one million
dollars ($1,000,000), allocated pro rata among the Purchasers on
the basis of the respective initial principal amount of their notes
set forth on Annex B in the Disclosure Letter.

 


Section
2.5 Notes.

 


The
portion of the Notes purchased by each Purchaser shall be evidenced
by a promissory note, substantially in the form of Exhibit A hereto, executed by
Borrower in an original principal amount equal to such
Purchaser’s applicable share of the Notes.

 




 

12







 





 

 

Section
2.6 Provisions Regarding
Payment.

 


(a) General. All payments to be
made by Credit Parties under any Financing Document, including
payments of principal and interest made hereunder and pursuant to
any other Financing Document, and all fees, expenses, Premium
Percentage, indemnities and reimbursements, shall be made without
setoff or counterclaim. Except as otherwise provided herein, all
payments by the Borrower hereunder shall be made to Agent, for the
benefit of the Purchasers, for the account of the respective
Purchasers to which such payment is owed, to an account designated
by Agent in writing from time to time to the Borrower, in dollars
and in immediately available funds. Agent will promptly distribute
to each Purchaser its pro rata share of such payment in like funds
as received by wire transfer to an account designated by such
Purchaser in writing from time to time to Agent. If any payment
hereunder becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business
Day and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate during such extension
(it being understood and agreed that, solely for purposes of
calculating financial covenants and computations contained herein
and determining compliance therewith, if payment is made, in full,
on any such extended due date, such payment shall be deemed to have
been paid on the original due date without giving effect to any
extension thereto). Any payments received before noon (Eastern
time) on any date shall be deemed received by Agent or such
Purchaser on such date, and any payments received after noon (Eastern time) on any date
shall be deemed received on the next succeeding Business
Day.

 


(b) Note Account. Agent shall
maintain a note account on its books to record the Notes and other
extensions of credit made by each Purchaser hereunder or under any
other Financing Document, and all payments thereon made by Credit
Parties. All entries in each such note account shall be made in
accordance with Agent’s customary practices as in effect from
time to time. The balance in each such loan account, as recorded on
Agent’s most recent printout or other written statement,
shall be, absent demonstrable error, evidence of the amounts due
and owing to the applicable Purchasers by Borrower; provided that any failure to so
record or any error in so recording shall not limit or otherwise
affect Credit Parties’ duty to pay all amounts owing
hereunder or under any other Financing Document. Unless the
Borrower notifies the Agent of any objection to any such printout
or statement (specifically describing the basis for such objection)
within thirty (30) days after the date of receipt thereof, it shall
be deemed final, binding and conclusive upon Credit Parties in all
respects as to all matters reflected therein.

 


(c) All Prepayments. All
prepayments of the Notes, whether voluntary or mandatory, shall be
applied pro rata among the Notes of each Purchaser according to the
outstanding principal amounts thereof.

 


(d) Application of Payments. All
payments made by any Credit Party (including, without limitation, a
prepayment under Section
2.3 above) upon the Obligations relating to the Notes and
all net proceeds from the enforcement of the Obligations shall be
applied (i) first, to that
portion of the Obligations constituting fees (including all fees
payable pursuant to Section 2.4(e)), indemnities
and expenses (including attorney fees) payable to Agent, (ii)
second, to that portion of
the Obligations constituting fees (including all fees payable
pursuant to Section
2.4(e)), indemnities and expenses (including attorney fees)
payable to the Purchasers, (iii) third, to the payment of that portion
of the Obligations constituting accrued and unpaid interest on the
Notes, (iv) fourth, to any
Premium Percentage, (v) fifth, to the payment of that portion
of the Obligations constituting unpaid principal of the Notes and
(vi) last, the balance, if
any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by applicable law as
directed by a court of competent jurisdiction.

 


Section
2.7 Purchaser
Representations. Each Purchaser
hereby represents and warrants, as to itself only, as
follows:

 


(a) The Notes and the
Warrants are being or will be acquired by such Purchaser hereunder
for the purpose of investment for their own account, not as a
nominee or agent, and not with the view to, or for resale in
connection with, any distribution thereof in any transaction which
would be in violation of the Securities Act or state securities
laws or which would require the issuance and sale of the Notes and
the Warrants hereunder to be registered under the Securities Act,
subject, however, to the disposition of such Purchaser’s
property being at all times within its control. Such Purchaser has
no present intention of selling, granting any participation in, or
otherwise distributing the Notes or the Warrants in violation of
the Securities Act. Such Purchaser does not have any agreement or
understanding, whether or not legally binding, direct or indirect,
with any other Person to sell or otherwise distribute the
securities to be issued to it hereunder.

 




 

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(b) Such Purchaser is
an “accredited investor” as defined in Rule 501(a) of
Regulation D promulgated under the Securities Act with such
knowledge and experience in financial and business matters as are
necessary in order to evaluate the merits and risks of an
investment in the Notes and the Warrants.

 


(c) Such
Purchaser hereby acknowledges that the
Notes and each Warrant (and any shares of common stock issued upon
exercise of a Warrant) shall bear a legend substantially in the
following form (in addition to any other legend required by any of
the Financing Documents or by the securities laws of any
state):

 


THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
SOLD OR TRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION OR
QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES
LAWS OR APPLICABLE EXEMPTIONS THEREFROM.

 


(d) Such Purchaser and
its advisors (i) have been furnished with or have had access to all
material books and records of the Credit Parties and all of its
material contracts, agreements and documents and (ii) have had an
opportunity to ask questions of, and receive answers, and to obtain
any additional information to verify the accuracy of any
information previously furnished, from management and
representatives of the Credit Parties and which representatives
have made available to them such information regarding the Credit
Parties and their current respective businesses, operations,
assets, finances, financial results, financial condition and
prospects in order to make a fully informed decision to purchase
and acquire the Notes and the Warrants. Such Purchaser has
generally such knowledge and experience in business and financial
matters, and with respect to investments in securities of
companies, as to enable it to understand and evaluate the risks of
an investment in the Notes and the Warrants and form an investment
decision with respect thereto. The foregoing, however, does not
limit or modify the representations and warranties set forth in
Article 3 of this
Agreement or in any other Financing Document or the right of such
Purchaser to rely thereon.

 


(e) Such Purchaser
understands that the Purchased Securities and the shares of common
stock issuable upon exercise of the Warrants have not been, and
will not be, registered under the Securities Act and that the
exemption from registration of resales of such securities afforded
by Rule 144 (the provisions of which are known to such Purchaser)
promulgated pursuant to the Securities Act depends on the
satisfaction of various conditions, including the requirement that
the Credit Parties have been subject to the reporting requirements
of Section 13 or Section 15 of the Exchange Act for at least ninety
(90) days and that, if applicable, Rule 144 affords the basis for
such sales only in limited amounts and that the Credit Parties do
not now qualify under Rule 144 and may not ever. Such Purchaser
understands that nothing in this Agreement shall require the Credit
Parties or any of their Subsidiaries to make any filing under the
Securities Act or Exchange Act which the Credit Parties or their
Subsidiaries are not otherwise obligated to make.

 


(f) Such Purchaser has
full power and authority to enter into the applicable Financing
Documents. The Financing Documents to which such Purchaser is a
party, when executed and delivered by such Purchaser, will
constitute a valid and binding agreement or instrument of such
Purchaser, enforceable against such Purchaser in accordance with
its respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency or other similar laws relating to
the enforcement of creditors’ rights generally and by general
equitable principles.

 




 

14







 





 

 


(g) If such Purchaser
is not a United States person (as defined by
Section 7701(a)(30) of the Code), such Purchaser hereby
represents that it has satisfied itself as to the full observance
of the laws of its jurisdiction in connection with any invitation
to subscribe for the Purchased Securities, including (i) the
legal requirements within its jurisdiction for the purchase of the
Purchased Securities, (ii) any foreign exchange restrictions
applicable to such purchase, (iii) any governmental or other
consents that may need to be obtained, and (iv) the income tax
and other tax consequences, if any, that may be relevant to the
purchase, holding, redemption, sale, or transfer of the Purchased
Securities. Such Purchaser’s subscription and payment for and
continued beneficial ownership of the Purchased Securities will not
violate any applicable securities or other laws of the
Purchaser’s jurisdiction.

 



ARTICLE 3

 


REPRESENTATIONS AND
WARRANTIES

 


To
induce Agent and Purchasers to enter into this Agreement and to
purchase the Notes, Borrower and Guarantors hereby represent and
warrant to Agent and each Purchaser that the following are, and
after giving effect to the consummation of the Related Transactions
will be, true, correct and complete:

 


Section
3.1 Existence and
Power.

 


Each
Credit Party and each Subsidiary (a) is an entity duly organized,
validly existing and in good standing (to the extent applicable in
the relevant jurisdiction) under the laws of its jurisdiction of
incorporation, organization, or formation (except, solely in the
case of any Subsidiary that is not a Credit Party, where the
failure to be in good standing could not reasonably be expected to
have a Material Adverse Effect) which, with respect to each Credit
Party and each Subsidiary in existence as of the Closing Date, is
specified on Schedule 3.1 in the
Disclosure Letter, has the same legal name as it appears in such
Person’s Organizational Documents and an organizational
identification number (if any) and federal employer identification
number (if any), in each case as of the Closing Date as specified
on Schedule 3.1 in the Disclosure
Letter, and (b) has all powers and all governmental
licenses, authorizations, registrations, permits, consents and
approvals required under all applicable Laws and required in order
to carry on its business as now conducted (collectively,
“Permits”),
except where the failure to have such Permits could not reasonably
be expected to have a Material Adverse Effect. Each Credit Party
and each Subsidiary is qualified to do business as a foreign entity
in each jurisdiction in which it is required to be so qualified,
which jurisdictions as of the Closing Date are specified on
Schedule 3.1
in the
Disclosure Letter, except where the failure to be so
qualified could not reasonably be expected to have a Material
Adverse Effect. Except as set forth on Schedule 3.1 in the Disclosure
Letter, no Credit Party and no Subsidiary has had, over the
five (5) year period preceding the Closing Date, any name other
than its current name or was incorporated or organized under the
laws of any jurisdiction other than its current jurisdiction of
incorporation or organization. As of the Closing Date, except for
the Subsidiaries set forth on Schedule 3.1 in the Disclosure
Letter, no Subsidiary exists.

 


Section
3.2 Organizational Authority and
Governmental Authorization; No
Contravention.

 


The
execution, delivery and performance by each Credit Party and each
Subsidiary of the Financing Documents to which it is a party are
within its powers, have been duly authorized by all necessary
action pursuant to its Organizational Documents, except for actions
required to perfect Liens granted to Agent under the Financing
Documents, require no further approval, consent, exemption,
authorization or other action by or in respect of, or filing with,
or notice to, any Governmental Authority not already obtained and
do not violate, conflict with or cause a breach or a default under
or a right of termination under (i) any of the Organizational
Documents of any Credit Party or (ii) any Law or any contract,
agreement, lease or other instrument binding upon it or its
properties, except for such violations, conflicts, breaches or
defaults or rights of termination as could not, with respect to
this clause (ii), reasonably be expected to have a Material Adverse
Effect.


 




 

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Section
3.3 Binding
Effect.

 


Each of
the Financing Documents to which any Credit Party or any Subsidiary
is a party constitutes a valid and binding agreement or instrument
of such Person, enforceable against such Person in accordance with
its respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency or other similar laws relating to
the enforcement of creditors’ rights generally and by general
equitable principles.

 


Section
3.4 Capitalization.

 


The
authorized Capital Stock of each of the Credit Parties and each
Subsidiary as of the Closing Date is as set forth on Schedule 3.4 in the Disclosure
Letter. All issued and outstanding Capital Stock of each
such Person is duly authorized and validly issued, fully paid,
non-assessable, free and clear of all Liens other than Permitted
Liens arising under applicable Law and those in favor of Agent for
the benefit of the Secured Parties and such Capital Stock was
issued in compliance with all applicable Laws. The identity of the
holders of (i) at least five percent (5%) of the Capital Stock of
the Borrower and (ii) the Capital Stock of each of the Credit
Parties (other than the Borrower) and each Subsidiary of any Credit
Party, and the percentage of the fully diluted ownership of the
Capital Stock of each such Person as of the Closing Date is set
forth on Schedule 3.4 in the Disclosure
Letter. Except as set forth on Schedule 3.4 in the Disclosure
Letter, as of the Closing Date there are no preemptive or
other outstanding rights, options, warrants, conversion rights or
similar agreements or understandings for the purchase or
acquisition from any Credit Party or any Subsidiary of any Capital
Stock of any such Person.

 


Section
3.5 Financial
Information.

 


(a) The Borrower has
filed in a timely manner all documents that the Borrower was
required to file with the Securities and Exchange Commission under
Sections 13 and 15(d) of the Exchange Act, since becoming subject
to the requirements of the Exchange Act. As of their respective
filing dates (or, if amended prior to the date of this Agreement,
when amended), all documents filed by the Borrower with the
Securities and Exchange Commission (the “SEC Documents”) complied in all
material respects with the requirements of the Exchange Act and the
rules and regulations of the Securities and Exchange Commission
promulgated thereunder. None of the SEC Documents as of their
respective dates contained any untrue statement of material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The
financial statements of the Borrower included in the SEC Documents
present fairly the financial condition, results of operations and
cash flows of the Borrower as of the dates and for the periods
indicated, comply as to form with the applicable accounting
requirements of the Exchange Act and have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as
otherwise noted therein).

 


(b) Pro Forma Balance Sheet. The
pro forma balance sheet of Borrower and its Subsidiaries as of
December 31, 2018, a copy of which has been delivered to each
Purchaser, fairly presents in all material respects the
Borrower’s current estimates of the consolidated financial
position of such Persons as of such date, adjusted to give effect
(as if such events had occurred on such date) to (i) the Related
Transactions, (ii) the purchase and sale of the Purchased
Securities, (iii) the application of the proceeds therefrom as
contemplated by the Operative Documents and (iv) the payment of all
legal, accounting and other fees related thereto to the extent
known at the time of the preparation of such balance
sheet.

 




 

16







 





 


(c) No Material Adverse Effect.
Since December 31, 2017, there has been no Material Adverse
Effect.

 


(d) Projections. The Borrower has
prepared, and has heretofore furnished to the Purchasers a copy of,
projected statements of income of the Borrower and its Subsidiaries
(consisting of statements of income prepared by the Borrower on a
quarterly basis) through the end of Fiscal Year 2020 on a pro forma
basis giving effect to the consummation of the Closing Date
Acquisition (the “Projections”). In the good faith
opinion of management of the Borrower, the assumptions used in the
preparation of the Projections were fair, complete and reasonable
when made and continue to be fair, complete and reasonable. The
Projections have been prepared in good faith by the executive and
financial personnel of the Borrower, are complete and represent a
reasonable estimate of the future performance and financial
condition of the Borrower and its Subsidiaries, subject to the
uncertainties and approximations inherent in any
projections.

 


Section
3.6 Litigation.

 


Except
as set forth on Schedule 3.6 in the Disclosure
Letter, there is no Litigation pending against, threatened
against or affecting, any Credit Party or any Subsidiary or any of
their respective properties. There is no Litigation pending in
which an adverse decision could reasonably be expected to have a
Material Adverse Effect.

 


Section
3.7 Ownership of
Property.

 


Each
Credit Party and each Subsidiary is the lawful owner of, has good
and marketable title to and is in lawful possession of, or has
valid leasehold interests in, all properties and other assets
(except for Intellectual Property, which is covered in Section 3.17) reported (by any
Credit Party) to be owned or leased (as the case may be) by such
Person, except (i) for any such properties which are immaterial to
the operations of such Credit Party’s or such
Subsidiary’s respective business or (ii) as may have been
disposed of in the Ordinary Course of Business or otherwise in
compliance with the terms hereof. No property of any Credit Party
is subject to any Liens other than Permitted Liens.

 


Section
3.8 No Default.

 


No
Default or Event of Default has occurred and is continuing. No
Credit Party and no Subsidiary is in breach or default under or
with respect to any material contract, agreement, lease or other
instrument to which it is a party or by which its property is bound
or affected.

 


Section
3.9 Labor Matters.




 

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There
are no strikes or other labor disputes pending or threatened
against any Credit Party or any Subsidiary, which could reasonably
be expected to have a Material Adverse Effect. Hours worked and
payments made to the employees of the Credit Parties and their
Subsidiaries have not been in violation, in any material respect,
of the Fair Labor Standards Act or any other applicable Law dealing
with such matters. All payments due from the Credit Parties and
their Subsidiaries, or for which any claim may be made against any
of them, on account of wages and employee and retiree health and
welfare insurance and other benefits have been paid or accrued as a
liability on their books, as the case may be, except as could not
reasonably be expected to have a Material Adverse Effect. The
consummation of the transactions contemplated by the Financing
Documents and the other Operative Documents will not give rise to a
right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which it is a
party or by which it is bound. As of the Closing Date, all
collective bargaining agreements to which any Credit Party or any
Subsidiary is a party and all pending strikes and material labor
disputes are set forth on Schedule 3.9 in the Disclosure
Letter.

 


Section
3.10 Investment
Company.

 


No
Credit Party and no Subsidiary is an “investment
company” or a company “controlled” by an
“investment company” or a “subsidiary” of
an “investment company,” all within the meaning of the
Investment Company Act of 1940. None of any Credit Party, any
Person controlling any Credit Party, or any Subsidiary of any
Credit Party, is subject to regulation under the Federal Power Act,
the Interstate Commerce Act, any state public utilities code, or
any other federal or state statute, rule or regulation limiting its
ability to incur Debt, pledge its assets or perform its obligations
under the Financing Documents.

 


Section
3.11 Margin
Regulations.

 


None of
the proceeds from the Purchased Securities have been or will be
used, directly or indirectly, for the purpose of purchasing or
carrying any Margin Stock, for the purpose of reducing or retiring
any indebtedness which was originally incurred to purchase or carry
any Margin Stock or for any other purpose which might cause any of
the Purchased Securities to be considered a “purpose
credit” within the meaning of Regulation T, U or X of the
Federal Reserve Board.

 


Section
3.12 Compliance With Laws; Anti-Terrorism
Laws.

 


(a) Laws Generally. Each Credit
Party and each Subsidiary is in compliance in all material respects
with the requirements of all applicable Laws.

 


(b) Anti-Terrorism Laws. No Credit
Party and no Subsidiary, and none of their Affiliates (i) is in
violation of any Anti-Terrorism Law, or (ii) is a Blocked Person,
or is controlled by a Blocked Person. No Credit Party and no
Subsidiary, and none of their Affiliates, (A) 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 (B)
deals in any property or interest in property blocked pursuant to
Executive Order No. 13224, any similar executive order or other
Anti-Terrorism Law. No part of the proceeds of any Purchased
Security will be used directly or indirectly for any payments to
any government 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
the United States Foreign Corrupt Practices Act of
1977.




  








18







 





 


Section
3.13 Taxes.

 


Except
as set forth on Schedule 3.13 in the Disclosure
Letter, all material federal, state, local and foreign tax
returns, reports and statements required to be filed by or on
behalf of any Credit Party or any Subsidiary have been timely filed
with the appropriate Governmental Authorities in each jurisdiction
in which such returns, reports and statements are required to be
filed and, except to the extent subject to a Permitted Contest, all
taxes (including sales, employment and real property taxes) and
other charges shown to be due and payable in respect thereof or
otherwise due from any Credit Party or any Subsidiary have been
timely paid prior to the date on which any fine, penalty, interest,
late charge or loss may be added thereto for nonpayment
thereof.

 


Section
3.14 Compliance with ERISA; Foreign Benefit
Plans.

 


(a) ERISA Plans. Schedule 3.14 in the Disclosure
Letter lists all Pension Plans and Multiemployer Plans.
Except as could not reasonably be expected to have a Material
Adverse Effect, each ERISA Plan (and the related trusts and funding
agreements) complies in form and in operation with, has been
administered in compliance with, and the terms of each ERISA Plan
satisfies, the applicable requirements of ERISA and the Code. Each
ERISA Plan which is intended to be qualified under Section 401(a)
of the Code is so qualified, and the United States Internal Revenue
Service has issued a favorable determination letter with respect to
each such ERISA Plan which may be relied on currently. No Credit
Party and no Subsidiary has incurred liability for any material
excise tax under any of Sections 4971 through 5000 of the
Code.

 


(b) Pension Plans and Multiemployer
Plans. During the thirty-six (36) month period prior to
purchase and sale of the Notes, (i) no steps have been taken to
terminate any Pension Plan and (ii) no failure to make
contributions with respect to any Pension Plan sufficient to give
rise to a Lien under the Code has occurred. All amounts required by
Code Sections 412 and 430 to be funded by any Credit Party or any
member of a Controlled Group with respect to a Pension Plan have
been made in compliance therewith. No condition exists or event or
transaction has occurred with respect to any Pension Plan which
could result in the incurrence by Credit Parties and Subsidiaries,
taken as a whole, of any liabilities, fines and penalties exceeding
$250,000 (excluding,
for the avoidance of doubt, current PBGC premiums or other
contributions required by ERISA or other applicable Law in the
ordinary course). Credit Parties and Subsidiaries, taken as a
whole, have not incurred liabilities exceeding $250,000 to the PBGC
(other than for current premiums) with respect to any Pension Plan.
All contributions (if any) have been made on a timely basis to any
Multiemployer Plan that are required to be made by any Credit
Party, Subsidiary or any member of the Controlled Group under the
terms of such plan, any collective bargaining agreement, or by
applicable Law. No Credit Party, Subsidiary, nor member of the
Controlled Group (A) has withdrawn or partially withdrawn from any
Multiemployer Plan, (B) has incurred any withdrawal liability with
respect to any such plan, or (C) has received notice of any claim
or demand for withdrawal liability or partial withdrawal liability
from any such plan (in each case with respect to which there is any
unsatisfied withdrawal liability). No member of the Controlled
Group has received any written notice that a Multiemployer Plan is
in reorganization or termination, that increased contributions may
be required to avoid a reduction in plan benefits or the imposition
of any excise tax, that any such plan is or has been funded at a
rate less than that required under Section 412 or
Section 431 of the Code, that any such plan is or may be
terminated, or that any such plan is or is expected to become
insolvent.

 


(c) With respect to
each program, plan or arrangement mandated by a government other
than the United States providing for post-employment benefits (each
a “Foreign Government Benefit
Plan”) and with respect to each employee benefit plan
maintained or contributed to by any Credit Party or any Subsidiary
that is not subject to Laws of the United States providing for
post-employment benefits (each, a “Foreign Plan”) to each Credit
Party’s knowledge: (i) all employee and employee
contributions required by Law or by the terms of any Foreign
Government Benefit Plan or any Foreign Plan have been made, or, if
applicable, accrued, in accordance with normal accounting
practices, (ii) the liability of any Credit Party or any Subsidiary
with respect to a Foreign Plan is reflected in accordance with
normal accounting practices or the financial statements of such
Credit Party or such Subsidiary, as the case may be and (iii) each
Foreign Plan required to be registered has been registered and has
been maintained in good standing with applicable regulatory
authorities unless in each case under the foregoing clauses (i),
(ii) and (iii), the failure to do so could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect.




 

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Section
3.15 Related
Transactions.

 


The
Closing Date Acquisition has been consummated in all material
respects pursuant to the provisions of the Closing Date Acquisition
Documents, true and complete copies of which have been delivered to
Purchasers, and in compliance with all applicable Law.

 


Section
3.16 Environmental
Compliance.

 


(a) Hazardous Materials. No
Hazardous Materials (i) are currently located on any properties
owned, leased or operated by any Credit Party or any Subsidiary in
violation of any Environmental Law, except for violations which
could not reasonably be expected to have a Material Adverse Effect,
or (ii) have been released into the environment, or deposited,
discharged, placed or disposed of at, on, under or near any of such
properties in a manner that would require the taking of any action
under any Environmental Law and have given rise to, or could
reasonably be expected to give rise to, remediation costs and
expenses on the part of the Credit Parties and Subsidiaries in
excess of $250,000. No portion of any such property is being used,
or to the Credit Parties’ knowledge, has been used at any
previous time, for the disposal, storage, treatment, processing or
other handling of Hazardous Materials in material violation of any
Environmental Law nor to the Credit Parties’ knowledge is any
such property affected by any Hazardous Materials Contamination,
which in each case, would reasonably be expected to result in a
Material Adverse Effect. All written notifications of a release of
Hazardous Materials required to be filed by or on behalf of any
Credit Party or any Subsidiary under any applicable Environmental
Law have been filed or are in the process of being timely filed by
or on behalf of the applicable Credit Party or
Subsidiary.

 


(b) Notices Regarding Environmental
Compliance. No notice, notification, demand, request for
information, citation, summons, complaint or order has been issued,
no complaint has been filed, no penalty has been assessed and no
investigation or review is pending, or to Borrower’s
knowledge, threatened by any Governmental Authority or other Person
with respect to any (i) alleged violation by any Credit Party or
any Subsidiary of any Environmental Law, (ii) alleged failure by
any Credit Party or any such Subsidiary to have any Permits
required in connection with the conduct of its business or to
comply with the terms and conditions thereof, (iii) any generation,
treatment, storage, recycling, transportation or disposal of any
Hazardous Materials or (iv) release of Hazardous Materials, except
in each case of the foregoing to the extent as would not reasonably
be expected to have a Material Adverse Effect.

 


(c) Properties Requiring
Remediation. No property now owned or leased by any Credit
Party or any Subsidiary and, to Borrower’s knowledge, no such
property previously owned or leased by any Credit Party or any such
Subsidiary, to which any Credit Party or any such Subsidiary has,
directly or indirectly, transported or arranged for the
transportation of any Hazardous Materials, is listed or, to
Borrower’s knowledge, proposed for listing, on the National
Priorities List promulgated pursuant to CERCLA, or CERCLIS (as
defined in CERCLA) or any state list or is the subject of federal,
state or local enforcement actions or other investigations which
may lead to claims against any Credit Party or any such Subsidiary
for clean-up costs, remedial work, damage to natural resources or
personal injury claims, including, but not limited to, claims under
CERCLA or RCRA, except, in each case of the foregoing, to the
extent as would not reasonably be expected to have a Material
Adverse Effect.

 


(d) Underground Storage Tanks.
Except in each case as set forth on Schedule 3.16 in the Disclosure
Letter, no Credit Party or Subsidiary operates any
underground storage tanks on any property owned or leased by any
Credit Party or any Subsidiary that are not registered or permitted
in accordance with applicable Environmental Laws or that a Credit
Party or Subsidiary is required to monitor, maintain, retrofit,
upgrade, investigate, abate, remediate or remove under
Environmental Law.

 


(e) Environmental Liens. Except in
each case as set forth on Schedule 3.16 in the Disclosure
Letter, there are no Liens under or pursuant to any
applicable Environmental Laws on any real property or other assets
owned by any Credit Party or any Subsidiary, and to Credit
Parties’ knowledge no actions by any Governmental Authority
have been taken or are in process which could subject any of such
properties or assets to such Liens.

 




 

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For
purposes of this Section 3.16, each Credit
Party and each Subsidiary shall be deemed to include any business
or business entity (including a corporation) which is, in whole or
in part, a predecessor of such Person for whose conduct such Credit
Party or such Subsidiary bears liability by contract or by
operation of law.

 


Section
3.17 Intellectual
Property.

 


Each
Credit Party and each Subsidiary owns, is licensed to use or
otherwise has the right to use, all Intellectual Property that is
material to the business or operations of such Credit Party or
Subsidiary as currently conducted (“Business Intellectual Property”),
except for such Business Intellectual Property, the failure to own
or license which individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect. All such
Intellectual Property existing as of the Closing Date is set forth
on Schedule 3.17 in the Disclosure
Letter.

 


Section
3.18 Real Property
Interests.

 


Except
as set forth on Schedule 3.18 in the Disclosure
Letter, no Credit Party or any Subsidiary has any ownership,
leasehold or other interest in real property. Schedule 3.18 in the Disclosure
Letter sets forth, with respect to each parcel of
real estate owned by any Credit Party or any Subsidiary, the
address of such parcel and a complete legal description
thereof.

 


Section
3.19 Insurance.

 


. The
properties of each Credit Parties and its Subsidiaries are insured
with financially sound and reputable insurance companies not
Affiliates of any Credit Party or Affiliate thereof, in such
amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and
owning similar properties in locations where each Credit Party and
its Subsidiaries operate.

 





 




 

21







 





 

 



Section
3.20 Bank Accounts.

 


Set
forth on Schedule
3.20 in the Disclosure
Letter is a listing of all of the deposit accounts,
securities accounts, commodities accounts or other similar accounts
of the Credit Parties maintained by the Credit Parties as of the
Closing Date.

 


Section
3.21 Solvency.

 


The
Credit Parties, taken as a whole, are Solvent.

 


Section
3.22 Full
Disclosure.

 


None of
the information (financial or otherwise, and, for the avoidance of
doubt, including financial forecasts and projections) furnished by
or on behalf of any Credit Party or any Subsidiary to Agent or any
Purchaser in connection with the consummation of the Related
Transactions, contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
contained herein or therein not misleading in light of the
circumstances under which such statements were made. All financial
forecasts and projections delivered to Agent and/or Purchasers have
been prepared on the basis of the assumptions stated therein. Such
forecasts and projections represent Borrower’s good faith
estimate of future financial performance and such assumptions were
believed by Borrower to be fair and reasonable in light of
then-current business conditions as of the date made (or, with
respect to forecasts and projections made before the Closing Date,
as of the Closing Date) (it being understood and agreed by
Purchasers that projections are not to be viewed as facts or a
guarantee of financial performance, are subject to significant
uncertainties and contingencies many of which are beyond the
Borrower’s control, that the actual results during the period
or periods covered by such projections may differ from the
projected results and that such differences may be
material).

 


Section
3.23 Debt.

 


Set
forth on Schedule
3.23 in the Disclosure
Letter is a true and complete list of all Debt of each
Credit Party outstanding immediately prior to the Closing Date that
is to remain outstanding immediately after giving effect to the
closing of the Related Transactions on the Closing Date and such
schedule in the Disclosure Letter accurately sets forth the
aggregate principal amount of such Debt as of the Closing
Date.


 




 

22







 






 

 


Section
3.24 Treatment of
Obligations.

 


All
Obligations including those to pay principal of and interest
(including post-petition interest, whether or not allowed as a
claim under bankruptcy or similar laws) on the Notes and other
Obligations, and fees and expenses in connection therewith, shall
constitute “Senior Indebtedness” or similar term
relating to the Obligations and all such Obligations shall be
entitled to the benefits of the subordination provisions created by
any subordination agreement subordinating any Debt permitted
hereunder to the Obligations in accordance with the terms
hereof.

 


Section
3.25 Borrower
Activities.

 


Borrower does not
engage in any material business activity other than the activities
permitted under Section
8.1(o).

 


Section
3.26 Closing Date Acquisition
Documents.

 


Borrower has
provided to the Purchasers true, correct and complete copies of the
Closing Date Acquisition Agreement and the other Closing Date
Acquisition Documents, including true, correct and complete copies
of the final disclosure schedules referenced in and/or attached
thereto. To Borrower’s knowledge, all of the representations
and warranties set forth in the Closing Date Acquisition Documents
are true and correct. All of the conditions precedent to closing
under the Closing Date Acquisition Agreement have been fulfilled
(or waived to the satisfaction of Purchasers) other than the
payment of the purchase price due at such Closing. Immediately upon
the purchase and sale of the Notes, the “Closing” under
the Closing Date Acquisition Agreement shall be consummated in
accordance with the terms and conditions thereof and all applicable
Laws, without material waiver of any term or condition thereof
which has not been consented to by Purchasers.

 


Section
3.27 Sanctions;
Anti-Corruption.

 


(a) None of the Credit
Parties, any of their Subsidiaries or any director, officer,
employee, agent, or affiliate of any Credit Party or any of its
Subsidiaries is an individual or entity (“person”) that is, or is owned or
controlled by persons that are: (i) the subject of any
sanctions administered or enforced by OFAC, the U.S. Department of
State, the United Nations Security Council, the European Union, Her
Majesty’s Treasury, or other relevant sanctions authority
(collectively, “Sanctions”), or (ii) located,
organized or resident in a country or territory that is, or whose
government is, the subject of Sanctions (including Crimea, Cuba,
Iran, North Korea and Syria).

 




 

23







 





 

 


(b) The Credit Parties,
their Subsidiaries and their respective directors, officers and
employees, and the agents of the Credit Parties and their
Subsidiaries, are in compliance with all applicable Sanctions and
with the FCPA and any other applicable anti-corruption law. The
Credit Parties and their Subsidiaries have instituted and maintain
policies and procedures designed to ensure continued compliance
with applicable Sanctions, the FCPA and any other applicable
anti-corruption laws.

 


Section
3.28 Offer of Purchased Securities; Private
Offering.


 


Subject
to the accuracy of each Purchaser’s several (and not joint)
representations and warranties in Section 2.7:

 


(a) None of the Credit
Parties, their respective Rule 501 Affiliates or any Person acting
on its or any of their behalf, directly or indirectly, offered any
securities that would adversely affect reliance by the Borrower on
Section 4(a)(2) of the Securities Act, require registration of any
of the Purchased Securities under the Securities Act or cause this
offering of Purchased Securities to be integrated with prior
offerings by the Borrower for purposes of the Securities
Act;

 


(b) no form of general
solicitation or general advertising was used by Borrower or any
Subsidiary or any of their representatives in connection with the
offer or sale of such Purchased Securities to the applicable
Purchaser;

 


(c) no registration of
such Note pursuant to the provisions of the Securities Act or the
state securities “blue sky” laws will be required for
the offer, sale or issuance of such Note by Issuers to such
Purchaser pursuant to this Agreement and Issuers have not taken and
will not take any action which would bring the issuance and sale of
such Note within the provisions of Section 5 of the Securities Act
or the registration or qualification provisions of any such
Law;

 


(d) such Purchased
Securities are being offered and sold only to “accredited
investors” (as defined in Rule 501 under the Securities Act)
and to persons pursuant to Rule 701 under the Securities
Act.

 




 

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ARTICLE 4

 


AFFIRMATIVE
COVENANTS

 


Each
Credit Party agrees that, until the Obligations are Paid in
Full:

 


Section
4.1 Financial Statements and Other
Reports.

 


To
maintain and to cause each of its Subsidiaries to maintain, a
system of accounting sufficient to provide the information required
to be delivered to Agent and Purchasers hereunder, and cause the
Borrower to deliver to Agent and each Purchaser:

 


(a) Quarterly Financial Statements.
Within forty-five (45) days after the end of each Fiscal Quarter a
consolidated balance sheet of Borrower and its Subsidiaries as at
the end of such Fiscal Quarter, and the related consolidated
statements of operations and cash flows for the portion of the
Fiscal Year then ended together with, in comparative form, the
figures for the corresponding periods of the previous Fiscal Year
and the figures for such portion of the Fiscal Year then ended set
forth in the annual plans, forecasts and projections delivered
pursuant to Section 4.1(e), all in
reasonable detail and in the case of such financial statements
certified by a Responsible Officer of the Borrower as fairly
presenting in all material respects the financial condition and
results of operations of Borrower and its Subsidiaries and as
having been prepared in accordance with GAAP applied on a basis
consistent with the audited financial statements of Borrower,
subject to changes resulting from audit and normal year-end
adjustments and the absence of footnote disclosures.

 


(b) Annual Financial Statements.
Within ninety (90) days after the end of each Fiscal Year
(commencing with the Fiscal Year ending December 31, 2018), a
consolidated balance sheet of Borrower and its Subsidiaries as of
the end of such Fiscal Year and the related consolidated statements
of operations, owners’ equity and cash flows for such Fiscal
Year, setting forth in each case in comparative form the figures
for the previous Fiscal Year and the figures for such Fiscal Year
set forth in the annual plans, forecasts and projections delivered
pursuant to Section
4.1(e), certified (solely with respect to such financial
statements, but not comparisons) as fairly presenting in all
material respects the financial condition and results of operations
of Borrower and its Subsidiaries and as having been prepared in
accordance with GAAP, without qualification or exception (including
with respect to the scope of audit), by an independent public
accountant of nationally recognized standing or other independent
public accountants and reasonably acceptable to the Required
Purchasers (it being agreed BD & Co, Inc. is
acceptable).

 




 

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(c) Certificates. Together with
each delivery of quarterly financial statements pursuant to
Section 4.1(a) and
annual financial statements pursuant to Section 4.1(b), (i) a
Compliance Certificate and (ii) a management report describing the
operations and financial condition of Borrower and its Subsidiaries
for the fiscal period covered by such financial statements and the
portion of the current Fiscal Year then elapsed (or for the Fiscal
Year then ended in the case of year-end financials), all such
information to be presented in reasonable detail and to be
certified by a Responsible Officer of the Borrower to the effect
that such information fairly presents, in all material respects,
the results of operations and financial condition of Borrower and
its Subsidiaries as at the dates and for the periods
indicated.

 


(d) [reserved].

 


(e) Projections. Within thirty (30)
days following the beginning of each Fiscal Year commencing with
the Fiscal Year ending December 31, 2019, Borrower’s annual
budget, financial forecasts and cash flow projections (including an
income statement and cash flow projection on a monthly basis), each
for such Fiscal Year presented on a monthly basis, all of which
shall be for Borrower and its Subsidiaries and shall be in a format
reasonably consistent with plans, forecasts and projections
theretofore provided to Purchasers and otherwise in a form
reasonably acceptable to Required Purchasers, and promptly
following the preparation thereof, updates to any of the foregoing
from time to time prepared by management of Credit
Parties.

 


(f) Accountant’s Letters.
Promptly upon receipt thereof, copies of all reports submitted to
any Credit Party or any Subsidiary by independent public
accountants in connection with each annual, interim or special
audit of the financial statements of any such Person made by such
accountants, including any comment letter that may be submitted by
such accountants to management in connection with any
audit.

 


(g) Regulatory Filing Information.
Promptly upon their becoming available, copies of (i) all financial
statements, material reports, material notices and proxy statements
sent or made available generally by any Credit Party or any
Subsidiary of any Credit Party to its security holders, (ii) all
regular and periodic reports and all registration statements and
prospectuses publicly filed by any Credit Party or any Subsidiary
with any securities exchange or with the Securities and Exchange
Commission or any successor, and (iii) all press releases and other
statements made available generally by any Credit Party or any
Subsidiary concerning material developments in the business of any
Credit Party or Subsidiary. Notwithstanding anything to the
contrary contained herein, until the date that the Purchasers (or
any transferee that is an Affiliate of any Purchaser) ceases to own
any Purchased Securities (or any Capital Stock issuable upon
exercise of the Warrants), the Borrower shall (a) timely file (or
obtain extensions in respect thereof and file within the applicable
grace period) all reports required to be filed by the Borrower
after the date hereof pursuant to the Securities Act and the
Exchange Act, (b) comply with the requirements of Rule 144(c) under
the Securities Act with respect to current public information about
the Borrower, and (c) furnish to any Purchaser promptly upon
request therefor (i) a written statement by the Borrower as to its
compliance with the requirements of Rule 144(c) under the
Securities Act, and the reporting requirements under the Securities
Act and the Exchange Act, and (ii) such reports and documents of
the Borrower as such Purchaser may reasonably request to avail
itself (or its Affiliates) of any similar rule or regulation of the
Securities and Exchange Commission allowing it (or its Affiliates)
to sell any such securities without registration. While the
Purchased Securities remain outstanding and are “restricted
securities” within the meaning of Rule 144(a)(3) under the
Securities Act, the Borrower will, during any period in which the
Borrower is not subject to and in compliance with Section 13 or
15(d) of the Exchange Act, furnish to holders of the Purchased
Securities, prospective purchasers of the Securities designated by
such holders and securities analysts, in each case upon request,
the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.

 




 

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(h) Material Notices Related to Real
Property Leases. Promptly upon receipt or delivery thereof,
as applicable, copies of default notices, amendments and other
material deliverables which any Credit Party delivers to or
receives from any landlord or rental agency with respect to any
real property leased or used by any Credit Party.

 


(i) Notices of Material Events.
Promptly upon any officer of any Credit Party obtaining knowledge,
(i) of the existence of any Event of Default or Default, or
becoming aware that the holder of any Debt of any Credit Party or
any Subsidiary in excess of $250,000 has given any notice or taken any
other action with respect to a claimed default thereunder, (ii) of
any change in any Credit Party’s or Subsidiary’s
certified accountant, (iii) that any Person has given any notice to
any Credit Party or any Subsidiary of, or taken any other action
with respect to a claimed breach or default under, any contract,
agreement, lease or other instrument to which any Credit Party or
any Subsidiary is a party or by which its property is bound or
affected, which breach or default could reasonably be expected to
have a Material Adverse Effect, (iv) of the institution of any
Litigation seeking equitable relief or involving an alleged
liability of any Credit Party or Subsidiary equal to or greater
than $250,000 or any
adverse determination in any Litigation involving equitable relief
or a potential liability of any Credit Party or any Subsidiary
equal to or greater than $250,000 or (v) any loss, damage or
destruction of any Collateral having a fair market value in excess
of $250,000, whether or not covered by insurance, a certificate of
a Responsible Officer of the Borrower specifying the nature and
period of existence of any such condition or event, or specifying
the notice given or action taken by such holder or Person and the
nature of such claimed default (including any Event of Default or
Default), event or condition, and what action the applicable Credit
Party or Subsidiary has taken, is taking or proposes to take with
respect thereto.

 


(j) ERISA Notices. Promptly upon
any officer of any Credit Party obtaining knowledge of (i) the
institution of any steps by any member of the Controlled Group or
any other Person to terminate any Pension Plan, (ii) the failure of
any member of the Controlled Group to make a required contribution
on a timely basis to any Pension Plan or to any Multiemployer Plan,
(iii) the taking of any action with respect to a Pension Plan which
would reasonably be expected to result in the requirement that a
Credit Party or any Subsidiary furnish a bond or other security to
the PBGC or such Pension Plan, (iv) the occurrence of a reportable
event under Section 4043 of ERISA (for which a reporting
requirement is not waived) with respect to any Pension Plan, (v)
the occurrence of any event with respect to any ERISA Plan, Pension
Plan or Multiemployer Plan which would reasonably be expected to
result in the incurrence by any member of the Controlled Group of
any liability, fine or penalty (including any claim or demand for
withdrawal liability or partial withdrawal from any Multiemployer
Plan) that could reasonably be expected to have a Material Adverse
Effect, (vi) any material increase in the liability or contingent
liability of a Credit Party or any Subsidiary with respect to any
post-retirement welfare plan benefit or (vii) the receipt by a
Credit Party or any Subsidiary of any notice that any Multiemployer
Plan is in reorganization, that increased contributions may be
required to avoid a reduction in plan benefits or the imposition of
an excise tax, that any such plan is or has been funded at a rate
less than that required under Section 412 or Section 431
of the Code, that any such plan is or may be terminated, or that
any such plan is or may become insolvent, a certificate of a
Responsible Officer of the Borrower specifying the nature and
period of existence of any such condition or event, or specifying
the notice given or action taken by such holder or Person, and what
action the applicable Credit Party or Subsidiary has taken, is
taking or proposed to take with respect thereto.

 


(k) Environmental Notices. Promptly
upon any officer of any Credit Party obtaining knowledge of any of
the following which could reasonably be expected to result in the
payment by any Credit Party or any Subsidiary of an amount in
excess of $250,000 or
which could otherwise reasonably be expected to have a Material
Adverse Effect, (i) any complaint, order, citation, notice or other
written communication, alleging violation of or liability under any
Environmental Law, from any Person delivered to any Credit Party or
any Subsidiary, (ii) the existence or alleged existence of a
violation of any applicable Environmental Law, (iii) any release of
any Hazardous Materials into the environment by any Credit Party or
any Subsidiary, (iv) the commencement of any cleanup of any
Hazardous Materials by any Credit Party or any Subsidiary, (v) any
pending legislative or threatened proceeding for the termination,
suspension or non-renewal of any Permit required under any
applicable Environmental Law, or (vi) any property of any Credit
Party or any Subsidiary that is or will be subject to a Lien
imposed pursuant to any Environmental Law, a certificate of a
Responsible Officer of the Borrower specifying the nature and
period of existence of any such condition or event, or specifying
the notice given or action taken by such holder or Person, and what
action the applicable Credit Party or Subsidiary has taken, is
taking or proposes to take with respect thereto.


 




 

27







 





 

 


(l) New Intellectual Property, Real
Property and Swap Contracts. Together with each delivery of
financial statements pursuant to Section 4.1(a) for the last
fiscal month of each Fiscal Quarter, written notice of any
Intellectual Property that has been registered by any Credit Party
or any Subsidiary of any Credit Party or any applications for the
registration of Intellectual Property that have been filed by any
Credit Party or any Subsidiary of and Credit Party, in each such
case, with any Governmental Authority during the Fiscal Quarter
then ended. Promptly upon any officer of any Credit Party obtaining
knowledge that any Credit Party has either (i) leased any new real
property, (ii) acquired any fee-owned real property or (iii)
entered into any Swap Contract, a certificate of a Responsible
Officer of the Borrower describing such real property and/or such
Swap Contract in such detail as Agent shall reasonably
require.

 


(m) Governmental Reports and
Notices. Promptly upon receipt or filing thereof, copies of
any reports or notices related to any matter which could reasonably
be expected to have a Material Adverse Effect which are received by
any Credit Party or any Subsidiary from, or filed by any Credit
Party or any Subsidiary with, any Governmental
Authority.

 


(n) Tax Information. Promptly upon
preparation and receipt thereof, copies of any income or other tax
returns and schedules (or equivalent), plus any reports, forms or
schedules relating thereto, for any Credit Party or any Subsidiary
of any Credit Party.

 


(o) Notices with Respect to Other
Debt. Promptly upon receipt or delivery thereof, as
applicable, copies of default notices, amendments and other
material deliverables (other than in the ordinary course of
business) which any Credit Party delivers to or receives from any
Purchaser or credit provider under any material Debt of any Credit
Party.

 


(p) Credit Party Information. With
reasonable promptness, such other information and data with respect
to any Credit Party or Subsidiary as from time to time may be
reasonably requested by (i) with respect to information reasonably
required in connection with Agent or Such Purchaser’s tax or
regulatory reporting, Agent or any Purchaser and (ii) with respect
to all other matters, Agent or any Purchaser or Purchasers holding
in the aggregate more than $250,000 in principal amount of the
Notes.

 




 

28







 





 

 


Section
4.2 Payment and Performance of
Obligations.

 


Each
Credit Party (a) will pay and discharge, and cause each Subsidiary
to pay and discharge, at or before maturity, all of their
respective Tax liabilities and similar governmental obligations,
except for such obligations and/or liabilities (i) that may be the
subject of a Permitted Contest and (ii) the nonpayment or
nondischarge of which could not reasonably be expected to have a
Material Adverse Effect, and (b) will not breach or permit any
Subsidiary to breach, or permit to exist any default under, the
terms of any lease, license, commitment, contract or instrument to
which it is a party, or by which its properties or assets are
bound, except for such breaches or defaults which could not
reasonably be expected to have a Material Adverse
Effect.

 


Section
4.3 Maintenance of
Existence.

 


Each
Credit Party will preserve, renew and keep in full force and
effect, and will cause each Subsidiary to preserve, renew and keep
in full force and effect, (a) its legal existence (other than in
connection with a transaction expressly permitted pursuant to
Section 5.7) and
(b) all rights, privileges and franchises necessary in the normal
conduct of business, other than, in the case of this clause (b),
(i) in connection with a transaction expressly permitted pursuant
to Section 5.7 or
(ii) where a failure to do so would not reasonably be expected to
result in a Material Adverse Effect.

 


Section
4.4 Maintenance of Property;
Insurance.

 


(a) Maintenance of Property. Each
Credit Party will keep, and will cause each Subsidiary to keep, all
property necessary in its business in good working order and
condition, ordinary wear and tear, casualty and condemnation
excepted.

 


(b) Required Insurance Coverage.
Each Credit Party will
maintain, and will cause each Subsidiary to maintain,
(i) casualty insurance on
all real and personal property on an all risks basis (including the
perils of flood and quake), covering the repair and replacement
cost of all such property and coverage for business interruption
and public liability insurance (including products/completed
operations liability coverage) in each case of the kinds customarily carried or
maintained by Persons of established reputation engaged in similar
businesses and in amounts reasonably acceptable to
Required Purchasers (but
not less than the amounts in place as of the Closing Date) and (ii)
such other insurance coverage in such amounts and with respect to
such risks as Agent may reasonably request if Required Purchasers
determine in good faith that there has been a material increase in
Credit Parties’ risk profile from that in effect on the
Closing Date. All
such insurance shall be provided by insurers having an A.M. Best
policyholders rating reasonably acceptable to Required Purchasers (it being agreed
that the insurers of the Credit Parties on the Closing Date are
acceptable).

 




 

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(c) Evidence of Insurance Coverage.
Credit Parties will cause Agent to be named as an additional
insured, assignee and loss payee (which shall include, as
applicable, identification as mortgagee), as applicable, on each
insurance policy required to be maintained by a Credit Party
pursuant to this Section 4.4 pursuant to
customary endorsements in form and substance reasonably acceptable
to Agent. Credit Parties will deliver to Agent and Purchasers (i)
on or prior to the Closing Date (and prior to each anniversary
thereof), a current certificate from Borrower’s insurance
broker dated such date showing the amount of coverage as of such
date, and that such policies include effective waivers (whether
under the terms of any such policy or otherwise) by the insurer of
all claims for insurance premiums against all loss payees and
additional insureds and all rights of subrogation against all loss
payees and additional insureds, and that if all or any part of such
policy is canceled, terminated or expires, the insurer will
forthwith give notice thereof to each additional insured, assignee
and loss payee and that no cancellation, reduction in amount or
material change in coverage thereof shall be effective until at
least thirty (30) days after receipt by each additional insured,
assignee and loss payee of written notice thereof, (ii) on an
annual basis, and upon the request of any Purchaser through Agent
from time to time, full information as to the insurance carried,
(iii) within five (5) Business Days of receipt of notice from any
insurer, a copy of any notice of cancellation, nonrenewal or
material change in coverage from that existing on the date of this
Agreement, and (iv) forthwith, notice of any cancellation or
nonrenewal of coverage by any Credit Party or
Subsidiary.

 


(d) [reserved]

 


(e) Right to Purchase Insurance. In
the event any Credit Party fails to provide Agent with evidence of
the insurance coverage required by this Agreement within five (5)
Business Days of receiving a written request thereof from Agent,
Agent may purchase insurance at Borrower’s expense to protect
the Secured Parties’ interests in the Collateral. This
insurance may, but need not, protect any Credit Party’s
interests. The coverage purchased by Agent may not pay any claim
made by a Credit Party or any claim that is made against a Credit
Party in connection with the Collateral. Borrower may later cancel
any insurance purchased by Agent, but only after providing Agent
with evidence that Credit Parties have obtained insurance as
required by this Agreement. If Agent purchases insurance for the
Collateral, Credit Parties will be responsible for the costs of
that insurance to the fullest extent provided by Law including
interest and other charges imposed by Agent in connection with the
placement of the insurance, until the effective date of the
cancellation or expiration of the insurance. The costs of the
insurance may be added to the Obligations. The costs of the
insurance may be more than the cost of insurance that Credit
Parties are able to obtain on their own.

 


Section
4.5 Compliance with
Laws.

 


Each
Credit Party will comply, and cause each Subsidiary to comply, with
the requirements of all applicable Laws, except to the extent that
failure to so comply could not reasonably be expected to have a
Material Adverse Effect or result in any Lien (other than a
Permitted Lien) upon a material portion of the assets of any such
Person in favor of any Governmental Authority. Without limiting the
foregoing, if any release or disposal of Hazardous Materials shall
have occurred on any real property owned or operated by any Credit
Party or Subsidiary, Credit Parties will cause, or direct the
applicable Person to cause, the prompt containment and removal of
such Hazardous Materials and the remediation of such real property
or other assets as is necessary to comply in all material respects
with all Environmental Laws. Without limiting the foregoing, each
Credit Party will, and will cause each Subsidiary (i) to ensure
that no Affiliate of any Credit Party is or becomes a Blocked
Person, (ii) not to conduct any business or engage in making or
receiving any contribution of funds, goods or services to or for
the benefit of any Blocked Person and (iii) to comply with all
applicable Bank Secrecy Act and other Anti-Terrorism
Laws.

 




 

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Section
4.6 Inspection of Property, Books and
Records, Appraisals; Account
Verifications.

 


Each
Credit Party will keep, and will cause each Subsidiary to keep,
proper books of record and account in accordance, in all material
respects, with GAAP in which full, true and correct entries shall
be made of all dealings and transactions in relation to its
business and activities. Each Credit Party will permit, and will
cause each Subsidiary to permit during normal business hours
following reasonable advance notice (during the continuance of an
Event of Default, no such notice shall be required and
representatives of Agent and each Purchaser shall have access at
all times), at the sole cost of Credit Parties, representatives of
Agent and each Purchaser to visit and inspect any of their
respective properties, to examine and make abstracts or copies from
any of their respective books and records, to conduct collateral
audits, physical inspections and analyses of their respective
assets and to discuss their respective affairs, finances and
accounts with their respective officers, employees and independent
public accountants. Agent and each Purchaser shall only be entitled
to one (1) such inspection of each property per calendar year,
unless an Event of Default is continuing in which case there shall
be no such limit (and, in connection therewith, the Credit Parties
shall not be obligated to pay the costs for more than one (1)
inspection by Agent and each Purchaser per calendar year of each
property, unless an Event of Default is continuing in which case
there shall be no such limit). In addition to the foregoing, from
time to time, if Agent reasonably determines in good faith that
obtaining appraisals is necessary in order for Agent or any
Purchaser to comply with applicable Laws or regulations, and at any
time if an Event of Default shall have occurred and be continuing,
Agent may, at the sole cost of Credit Parties, require the Borrower
to obtain and deliver to Agent appraisal reports in form and
substance and from appraisers reasonably satisfactory to Agent
stating the then current market values of all or any portion of the
real estate and personal property owned by the Credit Parties and
Subsidiaries.

 


Section
4.7 Use of
Proceeds.

 


Borrower will use
the proceeds of the Purchased Securities solely for payment of
amounts due under the Closing Date Acquisition Documents,
transaction fees and expenses incurred in connection with the
herewith and the Closing Date Acquisition, the repayment on the
Closing Date of Debt and general purposes of the Credit Parties.
No portion of the proceeds of the
Purchased Securities shall be used in any manner that causes or
might cause such application of such proceeds to violate Regulation
T, Regulation U or Regulation X of the Board of Governors or any
other regulation thereof or to violate the Exchange
Act.

 


Section
4.8 Purchasers’
Meetings.

 


Not
more than once each year (provided that, if an Event of
Default exists, the Required Purchasers may request such meetings
more frequently in their sole discretion), if requested by Required
Purchasers, upon the reasonable request of the Required Purchasers,
Borrower will conduct a meeting of Purchasers (by telephone
conference call or in-person as reasonably agreed by the Borrower
and the Purchasers) to discuss the most recently reported financial
results and the financial condition of Credit Parties and their
Subsidiaries, at which there shall be present a Responsible Officer
and such other officers of the Credit Parties as may be reasonably
requested to attend by Required Purchasers, such request or
requests to be made at a reasonable time prior to the scheduled
date of such meeting. Such meetings shall be held at a time and
place convenient to Purchasers and to Borrower and all costs
incurred for the holding of such meeting, including costs incurred
in relation to the attendance of the Purchasers, shall be borne by
the Borrower.

 

 




 

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Section
4.9 Sanctions; Anti-Corruption
Laws.

 


The
Borrower will maintain in effect policies and procedures designed
to promote compliance by the Credit Parties and their Subsidiaries,
and their respective directors, officers, employees, and agents
with applicable Sanctions and with the FCPA and any other
applicable anti-corruption laws.

 


Section
4.10 Board Observation
Rights.

 


Each
Credit Party and any Subsidiary thereof shall allow one individual
designated by Required Purchasers, to attend and participate in all
meetings and other activities of the Governing Body of each Credit
Party and Subsidiary thereof (whether in person or by telephone),
including all committees and sub committees thereof (collectively
the “Board
Observer”). Required Purchasers shall have the right
to change the identity of the Board Observer at any time and from
time to time by notice to Borrower. The Board Observer so appointed
shall serve in that capacity until he or she resigns or is removed,
and no other Person shall be entitled to remove such Board Observer
except Required Purchasers. Each Credit Party and Subsidiary
thereof shall (a) give the Purchasers notice of all such meetings,
at the same time as furnished to the members of the applicable
Governing Body of such Credit Party or Subsidiary thereof and such
meetings shall occur at least four times per calendar year (with at
least one of such meetings being held in person), (b) provide the
Board Observer all notices, documents and information furnished to
the members of the Governing Body of such Credit Party or
Subsidiary thereof, whether at or in anticipation of a meeting, an
action by written consent or otherwise, at the same time furnished
to the members of such Governing Body, (c) notify the Board
Observer, and permit the Board Observer to participate by telephone
or in person in, emergency meetings of such Governing Body, and (d)
provide the Board Observer copies of the minutes of all such
meetings at the time such minutes are furnished to the members of
the Governing Body; provided that the Board
Observer shall not be entitled to receive materials relating to, or
be in attendance for any discussions relating to, topics to the
extent such Governing Body determines in good faith that receipt of
such materials, or such attendance, by the Purchasers would
jeopardize the attorney-client privilege applicable to such
materials or discussions or to the extent the information being
discussed at such meeting or disclosed in such materials directly
relates to any of any Credit Party’s strategy, negotiating
positions or similar matters directly relating to Purchasers or
directly relating to any refinancing or replacement of the Notes.
The Credit Parties shall reimburse the Board Observer for
reasonable and customary out of pocket expenses incurred by the
Board Observer in attending any in-person Governing Board meetings
or committee meetings.

 


Section
4.11 Further
Assurances.

 


(a) General. Each Credit Party
will, and will cause each Subsidiary, at their own cost and
expense, to promptly and duly take, execute, acknowledge and
deliver all such further acts, documents and assurances as may from
time to time be necessary or as Agent or Required Purchasers may
from time to time reasonably request in order to carry out the
intent and purposes of the Financing Documents and the transactions
contemplated thereby, including all such actions to establish,
create, preserve, protect and perfect a first priority Lien
(subject only to Permitted Liens) in favor of Agent for the benefit
the Secured Parties on the Collateral (including Collateral
acquired after the date hereof) in accordance with the terms of
this Agreement, the Guarantee and Collateral Agreement and the
other Financing Documents. Without limiting the foregoing, absent
written agreement of Agent to the contrary, each Credit Party will,
and will cause each Subsidiary that is a Credit Party to, (i)
obtain control agreements with respect to all deposit accounts
(excluding Exempt Accounts), securities accounts and commodities
accounts, in each case in form and substance reasonably
satisfactory to Agent, and (ii) obtain Lien waivers and collateral
access agreements from landlords of the headquarters of each Credit
Party and use commercially reasonable efforts to obtain Lien
waivers and collateral access agreements for any other facilities
leased or used by the Credit Parties, in such form as may be
reasonably satisfactory to Agent.

 




 

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(b) New Subsidiaries. Without
limiting the generality of the foregoing, in the event a Credit
Party shall acquire or form any new Subsidiary after the date
hereof, or if any Immaterial Subsidiary shall cease to be an
Immaterial Subsidiary, such Credit Party will cause such new
Subsidiary (or such former Immaterial Subsidiary), except as
otherwise agreed to by Agent (at the direction of Required
Purchasers) concurrently with such acquisition, cessation to be an
Immaterial Subsidiary or formation (or, if such new Subsidiary is a
shell entity holding no assets, within ten (10) days of such
formation), or such longer period as may be agreed to by Agent, in
its sole discretion, (i) (1) with respect to a Subsidiary that is
not an Excluded Subsidiary, to execute a joinder to this Agreement
and to the Guarantee and Collateral Agreement (in form and
substance reasonably acceptable to Agent), guaranteeing payment and
performance of all of the Obligations and to take such action as
shall be necessary or reasonably appropriate to establish, create,
preserve, protect and perfect a first priority Lien (subject only
to Permitted Liens) in favor of Agent for the benefit of the
Secured Parties on substantially all assets, both real and
personal, in which such new Subsidiary has or may thereafter
acquire any interest, to the extent required by this Agreement, the
Guarantee and Collateral Agreement and/or the other Financing
Documents and (2) with respect to an Excluded Subsidiary, the
Credit Party that is the holder of the Capital Stock of such
Excluded Subsidiary shall pledge sixty five percent (65%) (or such
greater percentage that could not reasonably be expected to cause
any material adverse consequences on a Credit Party) of the
outstanding voting Capital Stock and one hundred percent (100%) of
outstanding non-voting Capital Stock of such Excluded Subsidiary
owned directly by a Credit Party pursuant to documents reasonably
acceptable to Agent, (ii) to execute such other Security Documents,
in form and substance reasonably acceptable to Agent, as may be
required by this Agreement, the Guarantee and Collateral Agreement
and the other Financing Documents and (iii) to deliver such proof
of corporate (or comparable) action, incumbency of officers,
opinions of counsel and other documents as Agent shall have
reasonably required or requested. Until such time that any
Subsidiary (excluding Excluded Subsidiaries) shall have become a
Guarantor in accordance with clause (i) above, and without
limitation of any rights and remedies available to Agent and
Purchasers as a result thereof, the positive operating results of
such Subsidiary shall be disregarded in the calculation of EBITDA
for any measurement period.

 


(c) Capital Stock. Each Credit
Party will, and will cause each Subsidiary, to take such action
from time to time as shall be necessary to ensure that Agent shall
have, for the benefit of the Secured Parties, a first priority Lien
(subject only to Permitted Liens) on all Capital Stock of each
Subsidiary directly owned by such Credit Party, provided that no Credit Party
shall be required to pledge more than 65% of the voting Capital
Stock and 100% of the non-voting Capital Stock of any Excluded
Subsidiary owned directly by a Credit Party, or to pledge any
Capital Stock of any other Excluded Subsidiary. In the event that
any additional Capital Stock shall be issued by any Subsidiary to
any Credit Party, such Credit Party shall or shall cause each such
Subsidiary to, within ten (10) days (or such longer period as may
be agreed to by Agent acting in its sole discretion) of such
issuance, deliver to Agent any certificates evidencing such Capital
Stock (to the extent required to be pledged pursuant to the
preceding sentence), accompanied by undated powers executed in
blank and to take such other action as Agent shall reasonably
request to perfect the security interest created therein pursuant
to such Financing Documents.

 


(d) Real Property. Within sixty
(60) days (or such longer period as may be agreed to by Agent
acting in its sole discretion) of the acquisition by any Credit
Party following the Closing Date of any fee interest in real estate
with a fair market value in excess of $250,000, such Credit Party
will deliver or cause to be delivered to Agent, with respect to
such real estate, in each case in form and substance reasonably
satisfactory to Agent, a mortgage or deed of trust, as applicable,
and an opinion of Borrower’s counsel with respect thereto, an
ALTA Purchaser’s title insurance policy insuring
Agent’s first priority Lien on such real estate (subject to
Permitted Liens), a current ALTA survey, certified to Agent by a
licensed surveyor, a certificate from a national certification
agency indicating whether such real estate is located in a special
flood hazard area, and an environmental site
assessment.

 


Section
4.12 Post-Closing
Covenants

 


(a) Capital Stock. On or prior to
March 26, 2019 (or such later date as may be agreed to by Agent (at
the direction of Required Purchasers, acting in their sole
discretion)), the Credit Parties shall deliver to Agent any
certificates evidencing Capital Stock (to the extent required to be
pledged pursuant to the Guarantee and Collateral
Agreement), accompanied by undated powers executed in blank
and to take such other action as Agent shall reasonably request to
perfect the security interest created therein.

 


(b) Control Agreements. On or prior
to the date that is one hundred twenty (120) days following the
Closing Date (or such later date as may be agreed to by Agent (at
the direction of Required Purchasers, acting in their sole
discretion)), the Credit Parties shall deliver to Agent, in form
and substance reasonably satisfactory to Agent, control agreements
regarding the bank accounts set forth on Schedule 4.9 to the
Guarantee and Collateral Agreement, among Agent, the applicable
Credit Party that holds the account and the bank or other financial
institution at which the account is held.




 

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(c) Lien Waivers and Collateral Access
Agreements. The Credit Parties shall use commercially
reasonable efforts to deliver to Agent, in form and substance
reasonably satisfactory to Agent, a landlord waiver agreement from
the owners or lessors of the premises leased by such Credit Party
listed on Schedule 4.2 to the Guarantee and Collateral Agreement at
which any Collateral in an aggregate amount in excess of $250,000
is located, on or prior to the date that is sixty (60) days
following the Closing Date (or such later date as may be agreed to
by Agent (at the direction of Required Purchasers, acting in their
sole discretion)).

 


(d) Insurance Endorsements. On or
prior to the date that is thirty (30) days following the Closing
Date (or such later date as may be agreed to by Agent (at the
direction of Required Purchasers, acting in their sole
discretion)), the Credit Parties shall deliver to Agent insurance
endorsements required pursuant to Section 4.4(c).

 



ARTICLE 5

 


NEGATIVE COVENANTS

 


Each
Credit Party agrees that, until the Obligations have been Paid in
Full:

 


Section
5.1 Debt.

 


No
Credit Party will, or will permit any Subsidiary to, directly or
indirectly, create, incur, assume, guarantee or otherwise become or
remain directly or indirectly liable with respect to, any Debt,
except for:

 


(a) Debt constituting
Obligations;

 


(b) Debt outstanding on
the date of this Agreement and set forth on Schedule 3.23 in the Disclosure
Letter;

 


(c) Debt consisting of
capitalized lease obligations and purchase money Debt to finance
the acquisition, repair, improvement or construction of fixed or
capital assets of such person, provided that the aggregate
outstanding principal amount of all such Debt does not exceed
$250,000;

 


(d) Debt constituting
Contingent Obligations permitted by Section 5.3;

 


(e) Debt owing to
insurance carriers and incurred to finance insurance premiums of
any Credit Party in the Ordinary Course of Business in a principal
amount not to exceed at any time the amount of insurance premiums
to be paid by such Credit Party;

 


(f) Contingent
Obligations with respect to bank guarantees, workers’
compensation claims, employee benefits or property, casualty or
liability insurance but excluding obligations for the payment of
borrowed money;

 


(g) Debt of any
Borrower or any of its Subsidiaries arising from (i) customary cash
management services, netting arrangements, overdraft protection and
automated clearing house transfers, (ii) the honoring by a bank or
other financial institution of a check, draft or similar instrument
drawn against insufficient funds in the ordinary course of business
so long as such Debt under this clause (ii) is extinguished within
five (5) Business Days of its incurrence, and (iii) the endorsement
of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business;

 




 

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(h) Up to $5,000,000 of
Existing WF Debt at any one time outstanding;

 


(i) To the extent
constituting Debt, Investments permitted under Section 5.8;

 


(j) Debt under
corporate credit cards incurred in the Ordinary Course of Business
in an aggregate amount at any one time outstanding not to exceed
$300,000;

 


(k) Additional
unsecured Debt not to exceed $250,000 at any one time outstanding;
and

 


(l) Extensions,
refinancings, modifications, amendments and restatements of any of
the foregoing, provided that the principal amount thereof is not
increased or the terms thereof are not modified to impose
materially more burdensome terms upon the applicable Credit Party
(and in the case of any refinancing, amendment or restatement of
the Existing WF Debt, is in the form of a receivables financing or
factoring arrangement).

 


Section
5.2 Liens.

 


No
Credit Party will, or will permit any Subsidiary to, directly or
indirectly, create, assume or suffer to exist any Lien on any asset
now owned or hereafter acquired by it, except:

 


(a) Liens securing the
Obligations;

 


(b) Liens existing on
the date of this Agreement and set forth on Schedule 5.2 in the Disclosure
Letter, and the replacement, extension or renewal thereof
(provided that such
Lien is upon or in the same property subject thereto);

 



(c)   
any Lien on any asset securing Debt permitted under Section 5.1(c),
provided that such
Lien attaches only to the assets financed by such Debt, and such
Lien attaches concurrently with or within ninety (90) days after
the incurrence thereof (or such later date as Agent (at the
direction of Required Purchasers) may agree);

 


(d) Liens for taxes or
other governmental charges (i) which are not past due or remain
payable without penalty, or (ii) the non-payment or non-discharge
of which is permitted by Section 4.2;

 


(e) Liens arising in
the Ordinary Course of Business and not securing Debt for borrowed
money (such as those in favor of carriers, warehousemen, landlords,
mechanics and materialmen) and other similar Liens imposed by Law
for sums not overdue or the subject of a Permitted Contest and, in
each case, for which it maintains adequate reserves in accordance
with GAAP (if applicable);

 


(f) Liens securing
appeal bonds and judgments, with respect to judgments that do not
otherwise result in or cause an Event of Default under Section 8.1(i);
provided that the
execution or other enforcement of such Liens is effectively stayed
and the claims secured thereby are the subject of a Permitted
Contest;

 


(g) easements, rights
of way, restrictions (including zoning restrictions), covenants,
licenses, encroachments, protrusions, minor defects or
irregularities in title and other similar Liens not interfering in
any material respect with the ordinary conduct of the business of
any Credit Party or any Subsidiary;

 




 

35







 





 


(h) any interest or
title of a lessor or sublessor under any lease or sublease
permitted by this Agreement;

 


(i) Liens arising from
precautionary uniform commercial code financing statements filed
under any lease, license, sublease or sublicense permitted by this
Agreement or any consignment of goods permitted by this
Agreement;

 


(j) (x) non-exclusive
licenses, non-exclusive sublicenses, leases or subleases granted to
third parties in the Ordinary Course of Business not interfering
with the business of the Credit Parties or any of their
Subsidiaries and (y) exclusive licenses entered into in the
Ordinary Course of Business limited (i) in territory with respect
to a specific geographic country or region outside of the United
States or (ii) to field of use;

 


(k) Liens in favor of
collecting banks arising under Section 4-210 of the
UCC;

 


(l) Liens (including
the right of setoff) in favor of a bank or other depository
institution arising as a matter of law encumbering
deposits;

 


(m) Liens on insurance
premiums securing Debt incurred by any Credit Party pursuant to
Section 5.1(e);

 


(n) Liens consisting of
an agreement to sell, transfer or otherwise dispose of any property
in a disposition permitted by Section 5.7, solely to the
extent such disposition would have been permitted under this
Agreement on the date of the creation of such Lien;

 


(o) Liens that are
contractual rights of set-off relating to purchase orders and other
agreements entered into with customers of a Borrower or any
Subsidiary of a Borrower in the Ordinary Course of Business;
and

 


(p) Liens granted by
the WF Borrowers to secure the Existing WF Debt.

 




 

36







 





 


 



Section
5.3 Contingent
Obligations.



 


No
Credit Party will, or will permit any Subsidiary to, directly or
indirectly, create, assume, incur or suffer to exist any Contingent
Obligations, except for:

 


(a) Contingent
Obligations arising in respect of the Obligations;

 


(b) Contingent
Obligations resulting from endorsements for collection or deposit
in the Ordinary Course of Business;

 


(c) Contingent
Obligations outstanding on the date of this Agreement and set forth
on Schedule 5.3 in the Disclosure
Letter;

 


(d) Contingent
Obligations arising under Guarantees issued by any Credit Party for
the benefit of any other Credit Party (other than Borrower), so
long as the underlying Debt so Guaranteed, if any, is permitted
hereunder; provided, that no Subsidiary of
Borrower may Guarantee the Existing WF Debt unless such Subsidiary
Guaranteed such Debt as of the Closing Date;

 


(e) Contingent
Obligations arising under indemnity agreements with title insurers
to cause such title insurers to issue to Agent mortgagee title
insurance policies;

 


(f) Contingent
Obligations arising with respect to customary indemnification
obligations in favor of purchasers in connection with dispositions
permitted under Section 5.7;
and

 


(g) to the extent
constituting Contingent Obligations, Investments permitted under
Section
5.8.

 


Section
5.4 Restricted
Distributions.

 


No
Credit Party will, or will permit any Subsidiary to, directly or
indirectly, declare, order, pay, make or set apart any sum for any
Restricted Distribution; provided that the foregoing
shall not restrict or prohibit (a) any Subsidiary from making
dividends or distributions, directly or indirectly, to Borrower or
another Credit Party or any Wholly-Owned Subsidiary of Borrower,
(b) dividends or distributions, directly or indirectly, to Borrower
or from Borrower at such times and in such amounts as are necessary
to permit payment of Taxes by Borrower with respect to itself or
the consolidated or combined group of which the Credit Parties are
members, provided the amount of such payments shall not be greater
than the amount of such Taxes that would have been due and payable
by the Credit Parties and their relevant Subsidiaries had they not
filed a consolidated or combined return with such consolidated or
combined group, (c) repurchases of the Capital Stock of former
employees, directors, officers pursuant to stock purchase
agreements in an aggregate amount not to exceed $250,000 in any
Fiscal Year, (d) purchases of Capital Stock in connection with the
exercise of stock options or stock appreciation by way of a
cashless exercise and (e) purchases of fractional shares of Capital
Stock arising out of stock dividends, splits or combinations or
business combinations.

 

 




 

37







 






 



Section
5.5 Restrictive
Agreements.



 


No
Credit Party will, or will permit any Subsidiary to, directly or
indirectly (a) enter into or assume any agreement (other than
the Financing Documents, Capital Leases, the Existing WF Debt and
purchase money debt documents which contain prohibitions only upon
the subject property leased, financed, or purchased thereunder)
prohibiting the creation or assumption of any Lien upon the
properties or assets owned by any Credit Party or any Subsidiary of
any Credit Party, whether now owned or hereafter acquired, in favor
of any Secured Party, or (b) create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction
of any kind (other than (i) as provided in the Financing Documents
(including, without limitation, Liens permitted in Section 5.2), (ii) contractual
obligations (including licenses of Intellectual Property)
containing customary provisions restricting the assignment of such
agreements, (iii) restrictions contained in contracts for the sale
of assets permitted by this Agreement solely in respect of the
assets to be sold pursuant to such agreement and proceeds related
thereto and (iv) any prohibition or limitation that exists pursuant
to applicable Law) on the ability of any such Person to pay or make
Restricted Distributions, to pay any Debt owed by such Person, to
make loans or advances or to transfer any of its property or
assets.

 


Section
5.6 Payments and Modifications of
Subordinated Debt.

 


(a) With respect to any
Subordinated Debt, no Credit Party will, or will permit any
Subsidiary to, directly or indirectly, (i) declare, pay, make or
set aside any amount for payment in respect of such Debt, except
for payments in respect of such Debt made in full compliance with
the applicable underlying subordination agreement or terms or (ii)
amend or otherwise modify the terms of any such Debt in a manner
adverse to Agent or Purchasers (as determined by Agent and
Purchasers as applicable in their discretion), except for
amendments or modifications made in full compliance with the
applicable underlying subordination agreement or terms, any
Borrower and any applicable Subsidiary may make payments with
respect thereof so long as (A) no Default or Event of Default
exists or would result therefrom and (B) after giving effect to
such payment Borrower shall be in compliance on a pro forma basis
with the covenants set forth in Article 6 recomputed for the
most recently-ended period for which financial statements are
available.

 


(b) With respect to the
Existing WF Debt, no Credit Party will, or will permit any
Subsidiary to, directly or indirectly, amend or otherwise modify
the terms of any such Debt in a manner adverse to Agent or
Purchasers (as determined by Agent and Purchasers as applicable in
their sole discretion).

 


Section
5.7 Consolidations, Mergers and Sales of
Assets.

 


(a) No Credit Party
will, or will permit any Subsidiary to, directly or
indirectly consolidate or merge with or into any other Person,
or divide into more than one Person or series, other than (i)
mergers consummated to effect the consummation of a Permitted
Acquisition or other Investments permitted hereunder, and (ii) in
each case with not less than ten (10) Business Days’ prior
written notice to Agent (or such shorter period as Agent may agree
in its sole discretion), mergers of (A) any Credit Party (other
than Borrower) with and into another Credit Party (other than
Borrower) (other than a merger of a non-WF Borrower into a WF
Borrower), (B) any Credit Party with and into any non-Credit Party,
so long as such Credit Party is the surviving entity, and (C) any
Foreign Subsidiary that is not a Credit Party with and into another
Foreign Subsidiary that is not a Credit Party;

 




 

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(b) No Credit Party
will, or will permit any Subsidiary to, directly or indirectly,
consummate any Asset Dispositions other than:

 


(i) Investments made in
compliance with Section
5.8;

 


(ii) mergers
and consolidations made in compliance with the preceding clause
(a);

 


(iii) Restricted
Distributions made in compliance with Section 5.4;

 


(iv) Permitted
Liens;

 


(v) dispositions of
assets (other than Capital Stock of any Credit Party or Subsidiary)
for fair value (as reasonably determined by the Borrower in good
faith) if all of the following conditions are met:  (A)
the aggregate market value of assets sold or otherwise disposed by
all Credit Parties and Subsidiaries in respect of Asset
Dispositions permitted pursuant to this clause (v) in any Fiscal
Year does not exceed $250,000, (B) not less than seventy-five
percent (75%) of the sales price is paid in cash, (C) after giving
effect to any such disposition and the repayment of Debt with the
proceeds thereof, Credit Parties are in compliance on a pro forma
basis with the covenants set forth in Article 6 recomputed for the
most recently ended quarter for which information is available and
are in compliance with all other terms and conditions of this
Agreement, and (D) no Default or Event of Default then exists or
would result from any such disposition;

 


(vi) dispositions
resulting from any casualty events, provided the proceeds thereof
are applied in accordance with the terms of this Agreement, as
applicable; and

 


(vii) asset
transfers by (A) a Credit Party to another Credit Party (other than
Borrower), (B) any Subsidiary that is not a Credit Party to any
Credit Party or another Subsidiary that is not a Credit Party and
(C) by a Credit Party to Novume Media, Inc., in an aggregate amount
not to exceed $200,000.

 


Section
5.8 Purchase of Assets,
Investments. No Credit Party
will, or will permit any Subsidiary to, directly or
indirectly:


 




 

39







 






 

 


(a) acquire all or
substantially all of the assets or Capital Stock of any Person or
acquire all or substantially all of the assets of any operating
division of any Person other than Permitted
Acquisitions;

 


(b) create or acquire
any Subsidiary other than Wholly-Owned Domestic Subsidiaries for
which the requirements set forth in Section 4.11 have been
satisfied (subject to the time periods for compliance set forth in
such section);

 


(c) engage in any joint
venture or partnership with any other Person other than Investments
in joint ventures, corporate collaborations or strategic alliances
in the Ordinary Course of Business (i) consisting of the
non-exclusive licensing of technology, the development of
technology, the providing of technical support or the developing
and marketing of the Credit Parties’ products, (ii) that
involve cash payments or obligations by the Credit Parties in an
amount not to exceed $250,000 in the aggregate and (iii) do not
involve or require the permanent transfer or assignment of any
assets by any Credit Party to such joint venture or partnership
(other than cash payments permitted in clause (ii) or as otherwise
permitted under Section
5.7); or

 


(d) acquire or own any
Investment in any Person, in each case other than:

 


(i) Investments
existing on the date of this Agreement and set forth on
Schedule 5.8
in the
Disclosure Letter;

 


(ii) cash
and Cash Equivalents;

 


(iii) Investments
(including capital contributions) in the Capital Stock of any
Credit Party (other than Borrower) by any other
Subsidiary;

 


(iv) Investments
constituting (A) the consummation of Permitted Acquisitions and (B)
Contingent Obligations permitted by Section 5.3;

 


(v) non-cash
consideration received pursuant to the consummation of an Asset
Disposition permitted hereunder;

 


(vi) bank
deposits established in accordance with the Financing
Documents;

 




 

40







 





 

 


(vii) Investments
in securities of customers, suppliers or other Account Debtors
received pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such Account
Debtors or in connection with the settlement or resolution of
delinquent obligations of, and other disputes with any such Account
Debtor;

 


(viii) to
the extent constituting Investments, Capital Expenditures permitted
under Section 6.3
and Asset Dispositions permitted in Section 5.7;

 


(ix) Investments
in prepaid expenses, utility and workers’ compensation,
performance and other similar deposits and other pledges and
deposits to the extent expressly permitted pursuant to Section 5.2;

 


(x) deposits of cash
made in the Ordinary Course of Business to secure performance of
(A) operating leases and (B) other contractual obligations that do
not constitute Debt

 


(xi) Investments
consisting of travel advances and employee relocation loans and
other employee loans and advances in the Ordinary Course of
Business, and loans to employees, officers or directors relating to
the purchase of Capital Stock of any Credit Party pursuant to
employee stock purchase plans or agreements approved by the
applicable Credit Party’s board of directors; not to exceed
$250,000.00 in the aggregate in any fiscal year;

 


(xii) Investments
(including debt obligations) received in connection with the
bankruptcy or reorganization of customers or suppliers and in
settlement of delinquent obligations;

 


(xiii) Investments
made pursuant to a Credit Party’s board-approved investment
policy; and

 


(xiv) Other
Investments not to exceed $250,000 in the aggregate in any fiscal
year.

 


Section
5.9 Transactions with
Affiliates.

 


No
Credit Party will, or will permit any Subsidiary to, enter into, or
cause, suffer or permit to exist any transaction, arrangement or
contract with any of its Affiliates, which is on terms which are
less favorable than are obtainable from any Person which is not one
of their respective Affiliates, except: (a) transactions expressly
permitted by this Agreement; (b) consummation of the Related
Transactions; (c) the making of Restricted Payments expressly
permitted pursuant to Section 5.4; (d) the making by
any Credit Party of employment agreements as approved by such
Person’s board of directors and which are upon fair and
reasonable terms no less favorable to such Credit Party than would
be obtained in a comparable arm’s length transaction with a
Person not an Affiliate of such Credit Party; (e) [reserved] and
(f) transactions existing on the Closing Date and described on
Schedule 5.9
in the
Disclosure Letter.

 


Section
5.10 Modification of Organizational
Documents.

 


No
Credit Party will, or will permit any Subsidiary to, directly or
indirectly, amend or otherwise modify any Organizational Documents
of such Person, except for such amendments or other modifications
required by law or which are not adverse to the interests of Agent
or any Purchaser; provided, however, that no Credit Party
will, or will permit any of its Subsidiaries to, without at least
twenty (20) days’ prior written notice to Agent and each
Purchaser and the acknowledgement of Agent that all actions
required by Agent, including those to continue the perfection of
its Liens, have been completed, (a) change its name as it appears
in official filings in its jurisdiction of organization or (b)
change its jurisdiction of organization.

 




 

41







 





 

 



Section
5.11 Modification of Certain
Agreements.


 





No
Credit Party will, or will permit any Subsidiary to, directly or
indirectly, amend or otherwise modify any Closing Date Acquisition
Document which in any case: (a) is contrary to the terms of this
Agreement or any other Financing Document; or (b) could reasonably
be expected to have a Material Adverse Effect or otherwise be
adverse to the rights, interests or privileges of Agent or
Purchasers or their ability to enforce the same. The Borrower
shall, prior to entering into any amendment or other modification
of any of the foregoing documents (or such later time as Agent may
agree from time to time in their sole discretion), deliver to Agent
and each Purchaser reasonably in advance of the execution thereof,
any final or execution form copy of amendments or other
modifications to such documents.

 


Section
5.12 Bank
Accounts.

 


No
Credit Party will, or permit any Subsidiary to, maintain or
establish any new bank accounts other than the bank accounts set
forth on Schedule
3.20 in the Disclosure
Letter without prior written notice to Agent and unless
Agent, such Credit Party or Subsidiary and the bank or other
financial institution at which the account (other than an Exempt
Account) is to be opened enter into a Control Agreement, regarding
such bank account. Notwithstanding anything to the contrary
contained in this Section
5.12, it is hereby acknowledged and agreed by Agent that the
Credit Parties shall have thirty (30) days (or such longer time
period as agreed to by Agent in its sole discretion) from the
closing date of any Permitted Acquisition to enter into a Control
Agreement with respect to any bank accounts of a Target acquired,
or otherwise established, by a Credit Party in connection with a
Permitted Acquisition.

 


Section
5.13 Subsidiaries.

 


No
Credit Party will, or will permit any Subsidiary to, establish or
acquire any Subsidiary except a Subsidiary of a Credit Party that
is a Target in a Permitted Acquisition unless the Credit Parties
have complied with Section
4.11. No Credit Party shall permit any Immaterial Subsidiary
to have any significant assets or operations without the prior
written consent of the Required Holders and compliance with the
actions set forth in the following sentence as if such Immaterial
Subsidiary was a newly created Subsidiary (and from and after such
date, such party shall cease to be an Immaterial Subsidiary
hereunder). Subject to the first sentence of this Section 5.13, if
any Credit Party creates, forms or acquires any Subsidiary on or
after the Closing Date, such Credit Party shall notify the Agent
and the Purchasers of the creation or acquisition of such
Subsidiary and shall take such actions as required by Section 4.11(b).

 


Section
5.14 Accounting Treatment, Fiscal
Year.

 


No
Credit Party will, or will permit any Subsidiary to, (a) make any
significant change in accounting treatment or reporting practices,
except as required by GAAP, (b) change its Fiscal Year, or (c)
change the method of determining the end of its Fiscal Quarters or
month ends.

 


Section
5.15 Conduct of
Business.

 


No
Credit Party will, or will permit any Subsidiary to, directly or
indirectly, engage in any line of business other than those
businesses engaged in on the Closing Date and businesses reasonably
related thereto.

 


Section
5.16 Limitation on Sale and Leaseback
Transactions




 

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Section
5.16 Limitation on Sale and Leaseback
Transactions.


 




No
Credit Party will, or will permit any Subsidiary to, directly or
indirectly, enter into any arrangement with any Person whereby in a
substantially contemporaneous transaction such Credit Party or such
Subsidiary sells or transfers all or substantially all of its
right, title and interest in an asset and, in connection therewith,
acquires or leases back the right to use such asset.

 


Section
5.17 Compliance with Anti-Terrorism
Laws.

 


The
Borrower will not, directly or indirectly, use the proceeds of the
Purchased Securities, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other Person, (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 the FCPA or
any other applicable anti-corruption law, or (b) (i) to
fund any activities or business of or with any Person, or in any
country or territory, that, at the time of such funding, is, or
whose government is, the subject of Sanctions, or (ii) in any
other manner that would result in a violation of Sanctions by any
Person (including any Person participating in the Purchased
Securities whether as Agent, Purchaser, underwriter, advisor,
investor, or otherwise).

 


Section
5.18 Hazardous
Materials.

 


No
Credit Party will, or will permit any Subsidiary to, cause or
suffer to exist any release or discharge of any Hazardous Material
at, to or from any real property owned or operated by a Credit
Party or a Subsidiary that would violate any Environmental Law,
other than such violations that would not, in the aggregate,
reasonably be expected to have a Material Adverse
Effect.

 



ARTICLE 6

 


FINANCIAL COVENANTS

 


Credit
Parties agree that, until the Obligations are Paid in
Full:

 


Section
6.1 Fixed Charge Coverage
Ratio.

 


Credit
Parties will not permit the Fixed Charge Coverage Ratio for any
Computation Period as of the end each Fiscal Quarter beginning with
the Computation Period ending on September 30, 2019, to be less
than 2:00 to 1.00.

 







 

43







 





 


 



Section
6.2 Minimum
Liquidity.



 


Credit
Parties will maintain at all times Liquidity of not less than
$1,000,000.


 


Section
6.3 Maximum Capital
Expenditures.

 


Credit
Parties will not permit the aggregate amount spent on Capital
Expenditures for any Fiscal Year to exceed $6,500,000.

 


	
 

	
 








ARTICLE 7

 


CONDITIONS

 


Section
7.1 Conditions to
Closing.

 


Subject
to Section 4.12,
the obligation of each Purchaser to purchase the Notes on the
Closing Date shall be subject to the receipt by Agent and each
Purchaser of each Financing Document to be entered into on the
Closing Date and each other agreement, document and instrument set
forth on the Closing Checklist to be entered into or delivered on
the Closing Date, each in form and substance reasonably
satisfactory to Agent and Required Purchasers, and to the
satisfaction of the following conditions precedent, each in form
and substance reasonably satisfactory to, and to the satisfaction
of, Agent and Required Purchaser in their sole
discretion:

 


(a) receipt by Agent
and Purchasers of executed copies of the Closing Date Acquisition
Documents and evidence of the consummation of the Closing Date
Acquisition in accordance with applicable Law and in accordance
with the terms of the Closing Date Acquisition
Agreement;

 


(b) Purchasers shall
have received a certification from a Responsible Officer of
Borrower that Credit Parties and their Subsidiaries on a
consolidated basis after giving effect to the purchase and sale of
the Purchased Securities and the consummation of the Related
Transactions are Solvent;




 

44







 





 


(c) Purchasers shall
have received the financial statements referenced in Sections 3.5(a), (b) and (c);

 


(d) Agent shall have
received evidence (i) that appropriate financing statements and
other filings or instruments have been, or will be, substantially
concurrently with the consummation of the Closing Date Acquisition,
duly executed, delivered, and/or filed, as applicable, in such
office or offices as may be necessary or, in the opinion of Agent
or the Required Purchasers, desirable to perfect Agent’s
Liens in and to the Collateral, and (ii) that all recording fees
and taxes have been, or will be, substantially concurrently with
the consummation of the Closing Date Acquisition, duly
paid;

 


(e) Agent shall have
received customary intellectual property security agreements that
are required to perfect Agent’s Liens on Intellectual
Property constituting Collateral;

 


(f) Agent shall have
received all share certificates representing outstanding Capital
Stock of all Subsidiaries of Borrower required to be pledged
pursuant to the Financing Documents, accompanied by instruments of
transfer and undated stock powers endorsed in blank;

 


(g) the payment of all
fees, expenses and other amounts due and payable on the Closing
Date under each Financing Document;

 


(h) [reserved];

 


(i) the receipt by the
Purchasers of evidence demonstrating that the trailing twelve month
Pro Forma EBITDA, calculated as of December 31, 2018, is at least
$1,500,000.

 


(j) the representations
and warranties contained in the Financing Documents are true and
correct in all material respects (without duplication of any
materiality qualifier) as of the Closing Date, both before and
after giving effect to Related Transactions;

 


(k) Agent and
Purchasers shall have received, not later than five (5) days prior
to the Closing Date, all documentation and other information
required pursuant to their respective policies and by bank
regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations,
including without limitation, the Patriot Act, to the extent such
information has been requested prior to the Closing Date, and in
each case, the results of the applicable Patriot Act and OFAC
searches with respect to the Seller and Credit Parties and their
Subsidiaries shall be satisfactory to Agent and
Purchasers;

 


(l) there shall be no
Litigation, pending or threatened, in any court or before any
Governmental Authority that relates to the Credit Parties in
respect of the Closing Date Acquisition, the Notes or the
transactions contemplated hereby, or that is reasonably likely of
having a material adverse effect on the business, operations,
properties, prospects or condition (financial or otherwise) of the
Credit Parties;

 


(m) no
Default or Event of Default shall have occurred and is continuing
or would occur as the result of consummation of the Related
Transactions; and

 


(n) Agent
shall have received all items required to be delivered to Agent
under the Custodial Agreement prior to Closing Disbursement (as
defined in the Custodial Agreement).

 




 

45







 





 

 



ARTICLE 8

 


EVENTS OF DEFAULT

 


Section
8.1 Events of
Default.

 


The
occurrence of any of the following conditions and/or events,
whether voluntary or involuntary, by operation of Law or otherwise,
shall constitute an “Event of
Default”:

 


(a) any Credit Party
shall fail to pay when due any principal, interest, fee, Premium
Percentage, other premium or other amount under any Financing
Document and in the case of any such amount other than principal,
such failure continues for three (3) consecutive days;

 


(b) any Credit Party
shall fail to observe or perform any covenant contained in
Section 4.1,
Section 4.3,
Section 4.4,
Section 4.6,
Section 4.7,
Section 4.9,
Section 4.10,
Section 4.11,
Section 4.12,
Article 5, or
Article
6;

 


(c) any Credit Party
shall fail to observe or perform any covenant contained in this
Agreement or in any other Financing Document (other than
occurrences described in other provisions of this Section 8.1 for which a
different grace or cure period is specified or for which no grace
or cure period is specified) and such failure is not remedied or
waived within thirty (30) days after the earlier of (i) receipt by
the Borrower of notice from Agent or Required Purchasers of such
failure or (ii) actual knowledge of a Credit Party of such
failure;

 


(d) any representation,
warranty, certification or statement made by any Credit Party or
any Subsidiary in any Financing Document or in any certificate,
financial statement or other document delivered pursuant to any
Financing Document is incorrect in any material respect (or in any
material respect if such representation, warranty, certification or
statement is not by its terms already qualified as to materiality)
when made (or deemed made);

 


(e) any Credit Party or
any Subsidiary fails to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of one or more items of Debt (other than the
Obligations) having an aggregate principal amount (including
undrawn committed or available amounts) of more than $250,000;
(ii) any Credit Party or any Subsidiary fails to observe or
perform any other agreement or condition relating to any such Debt
or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or
holders of such Debt (or a trustee or agent on behalf of such
holder or holders) to cause, with the giving of notice if required,
such Debt to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Debt to be
made, prior to its stated maturity;

 


(f) any Credit Party or
any Subsidiary fails to be Solvent or generally fails to pay, or
admits in writing its inability or refusal to pay, debts as they
become due; or any Credit Party or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar Law or seeking
the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its
property, or shall consent or acquiesce to any such relief or to
the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall
take any action to authorize any of the foregoing;

 


(g) an involuntary case
or other proceeding shall be commenced against any Credit Party or
any Subsidiary seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or
other similar Law or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period
of sixty (60) days; or an order for relief shall be entered against
any Credit Party or any Subsidiary with respect to the
foregoing;

 




 

46







 





 

 


(h) (i) institution of
any steps by any Person to terminate a Pension Plan if as a result
of such termination any Credit Party or any member of the
Controlled Group could reasonably be expected to be required to
make a contribution to such Pension Plan, or could reasonably be
expected to incur a liability or obligation to such Pension Plan,
in either case in excess of $250,000, (ii) a contribution failure
occurs with respect to any Pension Plan sufficient to give rise to
a Lien under ERISA or the Code, or (iii) there shall occur any
withdrawal or partial withdrawal from a Multiemployer Plan and the
withdrawal liability (without unaccrued interest) to Multiemployer
Plans as a result of such withdrawal (including any outstanding
withdrawal liability that any Credit Party or any member of the
Controlled Group have incurred on the date of such withdrawal)
exceeds $250,000;

 


(i) one or more
judgments, orders, decrees or arbitration awards for (i) the
payment of money (not paid or fully covered by insurance or as to
which the relevant insurance company has denied coverage)
aggregating in excess of $250,000 or (ii) which are non-monetary in
nature shall be rendered against any one or more of the Credit
Parties and Subsidiaries and in either case (A) enforcement
proceedings shall have been commenced by any creditor upon any such
judgments or orders or (B) there shall be any period of thirty (30)
consecutive days during which a stay of enforcement of any such
judgments, or orders, decrees or awards, by reason of a pending
appeal, bond or otherwise, shall not be in effect and such
judgments, or orders, decrees or awards shall remain
undischarged;

 


(j) the consummation of
a transaction in which any “person” or
“group” (within the meaning of Section 13(d) and
14(d)(2) of the Exchange Act) becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of a sufficient number of shares of all
classes of stock then outstanding of Borrower ordinarily entitled
to vote in the election of directors, empowering such
“person” or “group” to elect a majority of
the board of directors of Borrower, who did not have such power
before such transaction, (except as permitted by Section 5.7), or (v) any Credit
Party shall have effected a sale of all or substantially all of its
assets that is not expressly permitted pursuant to the terms of
this Agreement (the occurrence of any event described in this
Section 8.1(j)
shall be deemed a “Change of
Control”);

 


(k) [reserved]

 


(l) any material
provision of any Security Document shall for any reason (except
pursuant to a valid, binding and enforceable termination or release
permitted under the Security Documents and executed by Agent or as
otherwise expressly permitted under any Security Document) cease to
be valid and binding on or enforceable against any Credit Party or
any Subsidiary of any Credit Party party thereto or any Credit
Party or any Subsidiary of any Credit Party party thereto shall so
state in writing or bring an action to limit its obligations or
liabilities thereunder; or any Security Document shall for any
reason (other than pursuant to the terms thereof) cease to create a
valid security interest in a material portion of the Collateral or
such security interest shall for any reason cease to be a perfected
and first priority security interest subject only to Permitted
Liens with respect to a material portion of the
Collateral;

 


(m) any of the
Financing Documents (or any material provision thereof) shall for
any reason fail to constitute the valid and binding agreement of
any party thereto (other than pursuant to the terms thereof), or
any Credit Party or Subsidiary shall so assert;

 


(n) the subordination
provisions of any agreement or instrument governing any Debt that
is Subordinated Debt shall for any reason be revoked or
invalidated, or otherwise cease to be in full force and effect, or
any Person shall contest in any manner the validity or
enforceability thereof or deny that it has any further liability or
obligation thereunder, or any Credit Party or any Subsidiary makes
any payment on account of any Subordinated Debt except as otherwise
permitted herein and under the subordination provisions to which
such Subordinated Debt is subject;

 


(o) Borrower engages in
any material business activity other than (i) the ownership of the
Capital Stock of its Subsidiaries, (ii) the taking of actions
expressly permitted by the Operative Documents to which it is a
party, (iii) performance of its obligations under Operative
Documents to which it is a party, (iv) activities and contractual
rights incidental to the maintenance of its legal existence
(including, without limitation, the ability to incur fees, costs
and expenses necessary to such maintenance), (v) participating in
tax, accounting and other administrative matters as a member of a
consolidated group of companies, (vi) holding any cash or property
received in connection with Restricted Distributions permitted
under Section 5.4
pending application thereof, (vii) providing indemnification to
officers, directors and employees and (viii) activities incidental
to the businesses or activities described in the foregoing clauses
(i) through (vii);

 




 

47







 





 

 


(p)  any order,
judgment or decree is entered decreeing the dissolution of any
Credit Party;

 


(q) The Borrower shall
fail to hire an interim or permanent chief financial officer
acceptable to the Board, in its sole discretion, within ninety (90)
days following the Closing Date, or if such chief financial officer
shall thereafter fail to remain in such capacity and an interim or
permanent replacement acceptable to the Board, in its sole
discretion, has not been hired within ninety (90) days
thereafter.

 


Section
8.2 Acceleration of
Notes.

 


Upon
the occurrence and during the continuance of an Event of Default,
the Required Purchasers may declare all or any portion of the
Obligations to be, and such Obligations shall thereupon become,
immediately due and payable, with accrued interest and any Premium
Percentage thereon, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by Borrower and
Borrower will pay the same; provided that in the case of
any of the Events of Default specified in Section 8.1(f) or
8.1(g) above,
without any notice to Borrower or the Borrower or any other act by
any Purchasers, all of the Obligations shall become immediately due
and payable, with accrued interest and any Premium Percentage
thereon, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by Borrower and Borrower
will pay the same.

 


Section
8.3 Setoff
Rights.

 


During
the continuance of any Event of Default, each Purchaser is hereby
authorized by Credit Parties at any time or from time to time,
without notice or demand, to set off and to appropriate and to
apply any and all (a) balances held by such Purchaser or any of
such Purchaser’s Affiliates at any of its offices for the
account of a Credit Party or any Subsidiary (regardless of whether
such balances are then due to a Credit Party or any Subsidiary),
and (b) other property at any time held or owing by such Purchaser
to or for the credit or for the account of such Credit Party or any
Subsidiary, against and on account of any of the Obligations;
except that no Purchaser shall exercise any such right without the
prior written consent of Agent. Any Purchaser exercising a right to
set off shall purchase for cash (and the other Purchasers shall
sell) interests in each of such other Purchaser’s ratable
share of the Obligations or make such other adjustments as would be
necessary to cause all Purchasers to share the amount so set off
with each other Purchaser in accordance with their respective
ratable share of the Obligations. Credit Parties agree that any
Purchaser or any of such Purchaser’s Affiliates may, to the
fullest extent permitted by law, exercise its right to set off with
respect to the Obligations as provided in this Section 8.3. The rights of
each Purchaser, and their respective Affiliates under this Section
are in addition to other rights and remedies (including other
rights of setoff) that such Purchaser or their respective
Affiliates may have at law or in equity. Each Purchaser agrees to
notify Borrower and the other Purchasers promptly after any such
setoff and application; provided that the failure to
give such notice shall not affect the validity of such setoff and
application.

 




 




 

48







 






 



Section
8.4 Application of
Proceeds.


 




(a) As to Borrower. Notwithstanding
anything to the contrary contained in this Agreement, upon the
occurrence and during the continuance of an Event of Default,
Credit Parties irrevocably waive the right to direct the
application of any and all payments at any time or times thereafter
received by Agent or any Purchaser from or on behalf of Borrower or
any guarantor of all or any part of the Obligations, and, as
between Credit Parties on the one hand and Agent and Purchasers on
the other, Agent shall have the continuing and exclusive right to
apply any and all payments received against the Obligations in such
manner as Agent may deem advisable notwithstanding any previous
application by Agent.

 


(b) After Event of Default.
Following the occurrence and during the continuance of an Event of
Default, unless otherwise directed or agreed in writing by Required
Purchasers, Agent may apply any and all payments received by Agent
or any Purchaser in respect of the Obligations, and any and all
proceeds of Collateral received by Agent, to the Obligations as
required by Section
2.6(d).

 


Section
8.5 Power of
Attorney. Each Credit Party
hereby appoints Agent (and all Persons designated by Agent) as such
Credit Party’s true and lawful attorney (and agent-in-fact)
for the purposes provided in this section. Agent, or Agent’s
designee, may, without notice and in either its or such Credit
Party’s name, but at the cost and expense of
Borrower:

 


(a) endorse such Credit
Party's name on any payment item or other proceeds of Collateral
(including proceeds of insurance) that come into Agent’s
possession or control; and

 


(b) during the
continuance of an Event of Default, (i) notify any Account Debtors
of the assignment of their Accounts, demand and enforce payment of
Accounts by legal proceedings or otherwise, and generally exercise
any rights and remedies with respect to Accounts; (ii) settle,
adjust, modify, compromise, discharge or release any Accounts or
other Collateral, or any legal proceedings brought to collect
Accounts or Collateral; (iii) sell or assign any Accounts and other
Collateral upon such terms, for such amounts and at such times as
Agent deems advisable; (iv) collect, liquidate and receive balances
in deposit accounts or investment accounts, and take control, in
any manner, of proceeds of Collateral; (v) prepare, file and sign
such Credit Party's name to a proof of claim or other document in a
bankruptcy of an Account Debtor, or to any notice, assignment or
satisfaction of Lien or similar document; (vi) receive, open and
dispose of mail addressed to such Credit Party, and notify postal
authorities to deliver any such mail to an address designated by
Agent; (vii) endorse any Chattel Paper, Document, Instrument, bill
of lading, or other document or agreement relating to any Accounts,
Inventory or other Collateral; (viii) use such Credit Party's
stationery and sign its name to verifications of Accounts and
notices to Account Debtors; (ix) use information contained in any
data processing, electronic or information systems relating to
Collateral; (x) make and adjust claims under insurance policies;
(xi) take any action as may be necessary or appropriate to obtain
payment under any letter of credit, banker's acceptance or other
instrument for which such Borrower is a beneficiary; and (xii) take
all other actions as Agent reasonably deems appropriate to fulfill
such Credit Party's obligations under this Agreement and the
Financing Documents.

 



ARTICLE 9

 


EXPENSES AND
INDEMNITY

 


Section
9.1 Expenses.

 


Each
Credit Party hereby agrees to promptly pay (a) all reasonable costs
and expenses of Agent and Purchasers (including without limitation
the reasonable fees, costs and expenses of (i) counsel to Agent and
Purchasers in each relevant jurisdiction that Agent and Required
Purchasers reasonably deem necessary, and (ii) independent
appraisers and consultants retained by Agent or Purchasers) in
connection with loan proposals and commitments, in connection with
the examination, review, due diligence investigation,
documentation, negotiation, closing and syndication of the
transactions contemplated by the Financing Documents, in connection
with the creation, perfection and maintenance of Liens pursuant to
the Financing Documents, in connection with the performance by
Agent and Purchasers of their respective rights and remedies under
the Financing Documents and in connection with the continued
administration of the Financing Documents including (A) any
amendments, modifications, consents and waivers to and/or under any
and all Financing Documents and (B) any public record searches
conducted by or at the request of Agent or the Purchasers from time
to time (including, without limitation, title investigations and
public records searches, pending litigation and tax lien searches
and searches of applicable corporate, limited liability,
partnership and related records concerning the continued existence,
organization and good standing of certain Persons), (b) without
limitation of the preceding clause (a), all costs and expenses of
Agent and its Affiliates (and each Purchaser and its Affiliates, as
applicable) in connection with (i) protecting, storing, insuring,
handling, maintaining, auditing, examining, valuing or selling any
Collateral, (ii) any litigation, dispute, suit or proceeding
relating to any Financing Document, and (iii) any workout,
collection, bankruptcy, insolvency and other enforcement
proceedings under any and all of the Financing Documents (it being
agreed that such costs and expenses may include the costs and
expenses of workout consultants, investment bankers, financial
consultants, appraisers, valuation firms and other advisors), and
(c) all reasonable fees, costs and expenses incurred by Purchasers
(or Board Observers, as applicable) in connection with (i) any
Purchaser meetings held in accordance with Section 4.8, any inspections or
visits in accordance with Section 4.6, and any meetings
in accordance with Section
4.10, and (ii) any litigation, dispute, suit or proceeding
relating to any Financing Document or in connection with any
workout, collection, bankruptcy, insolvency and other enforcement
proceedings under any and all Financing Documents. Without limiting
the foregoing, if any Credit Party or any Subsidiary is required to
take any action under any Financing Document, such action shall be
taken at the expense of such Credit Party or
Subsidiary.


 




 

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Section
9.2 Indemnity.

 


In
consideration for the execution and delivery of this Agreement by
Agent and Purchasers and the agreement to purchase the Purchased
Securities provided hereunder, each Credit Party hereby agrees to
indemnify, pay and hold harmless Agent, Purchasers and their
respective Affiliates and the officers, directors, employees,
trustees, agents, investment advisors, collateral managers,
servicers, and counsel of Agent, Purchasers and their respective
Affiliates (collectively called the “Indemnitees”) from and against any
and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including the
reasonable fees and disbursements of counsel for such Indemnitee)
in connection with any investigative, remedial, administrative,
judicial or other like matter or proceeding (whether initiated or
threatened) (including those in connection with the enforcement of
this Section 9.2), whether or not such Indemnitee shall be
designated a party thereto and including any such proceeding
initiated by or on behalf of a Credit Party or Subsidiary, and the
reasonable expenses of investigation by engineers, environmental
consultants and similar technical personnel and any commission, fee
or compensation claimed by any broker (other than any broker
retained by Agent or Purchasers) asserting any right to payment for
the transactions contemplated hereby, which may be imposed on,
incurred by or asserted against such Indemnitee as a result of or
in connection with the transactions contemplated hereby or by the
other Operative Documents (including (a)(i) as a direct or indirect
result of the presence on or under, or escape, seepage, leakage,
spillage, discharge, emission or release from, any property now or
previously owned, leased or operated by any Credit Party or any
Subsidiary thereof of any Hazardous Materials or any Hazardous
Materials Contamination, (ii) arising out of or relating to the
offsite disposal of any materials generated or present on any such
property or (iii) arising out of or resulting from the
environmental condition of any such property or the applicability
of any governmental requirements relating to Hazardous Materials,
whether or not occasioned wholly or in part by any condition,
accident or event caused by any act or omission of a Credit Party
or Subsidiary, and (b) proposed and actual extensions of credit
under this Agreement) and the use or intended use of the proceeds
of the Purchased Securities, except that Credit Parties shall have
no obligation hereunder to an Indemnitee with respect to any
liability resulting from (A) the gross negligence or willful
misconduct of such Indemnitee, as determined by a final
non-appealable judgment of a court of competent jurisdiction, (B)
disputes solely among Indemnitees (other than a dispute against the
Agent in its capacity as such) not arising from the conduct of any
Credit Party or their Affiliates or (C) solely with respect to the
Indemnitees other than the Agent (and its respective Affiliates and
the officers, directors, employees, trustees, agents, investment
advisors, collateral managers, servicers, and counsel of Agent),
obligations, claims or causes of action incurred by Seller or its
Affiliates arising out of the Closing Date Acquisition Documents.
To the extent that the undertaking set forth in the immediately
preceding sentence may be unenforceable, Credit Parties shall
contribute the maximum portion which they are permitted to pay and
satisfy under applicable Law to the payment and satisfaction of all
such indemnified liabilities incurred by the Indemnitees or any of
them. All Obligations provided for in this Section 9.2 shall survive
repayment and/or cancellation of the Notes, cancellation or
exercise of the Warrants, any foreclosure under, or any
modification, release or discharge of, any or all of the Security
Documents, termination of this Agreement and resignation of the
Agent.

 




 

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ARTICLE
10


 


TAXES; YIELD
PROTECTION

 


Section
10.1 Taxes.

 


(a) Gross Up for Taxes. All
payments of principal and interest on the Notes and all other
amounts payable hereunder or under any Financing Document shall be
made free and clear of and without deduction for any present or
future income, excise, stamp, documentary, property or franchise
taxes, and other taxes, fees, duties, levies, assessments,
withholdings or other charges (including interest, additions to tax
and penalties thereon) imposed by any taxing authority
(“Taxes”),
excluding (A) Taxes imposed on or measured by Agent’s or any
Purchaser’s net income, franchise taxes, branch profits taxes
and alternative minimum taxes, in each case imposed by the
jurisdiction (or any political subdivision thereof) under which
Agent or such Purchaser (i) is organized, has its principal office
in or, in the case of any Purchaser, its applicable lending office
located in, or (ii) has a present or former connection (other than
a connection resulting from entering into any of the Financing
Documents, receiving any payment thereunder, or taking any action
thereunder) (“Other
Connection Taxes”), (B) any United States federal
withholding Taxes to the extent imposed on the amounts payable to
such Purchaser or Agent at the time such Purchaser or Agent becomes
a party to this Agreement or changes its lending office, unless in
the case of an assignee, the applicable assigning person would have
been entitled to receive additional amounts with respect to such
Taxes at the time of such assignment or, in the case of a change in
lending office, such Purchaser would have been entitled to receive
additional amounts with respect to such Taxes immediately before it
changed its lending office, (C) any United States federal
withholding Taxes or deductions imposed under FATCA, or (D) any
United States federal withholding Taxes that would not have been
imposed but for such Purchaser’s failure to comply with
Sections 10.1(d) or
(e) (all excluded
items being called “Excluded
Taxes”). If any withholding or deduction from any
payment to be made by Credit Parties hereunder is required in
respect of any Taxes pursuant to any applicable Law, then Credit
Parties will (1) pay directly to the relevant authority the full
amount required to be so withheld or deducted, (2) promptly forward
to such Purchaser an official receipt or other documentation
satisfactory to such Purchaser evidencing such payment to such
authority, and (3) if such Tax is an Indemnified Tax, pay to
Purchasers such additional amount or amounts as is necessary to
ensure that the net amount actually received by each Purchaser will
equal the full amount it would have received had no such
withholding or deduction been required. If any Taxes are directly
asserted against Agent or any Purchaser with respect to any payment
made hereunder, Agent or such Purchaser may pay such Taxes and if
such Tax is an Indemnified Tax, Credit Parties will promptly pay
such additional amounts (including any penalty, interest or
reasonable expense) as is necessary in order that the net amount
received by such Person after the payment of such Taxes (including
any Indemnified Taxes on such additional amount) shall equal the
amount such Person would have received had such Taxes not been
asserted so long as such amounts have accrued on or after the day
which is one hundred eighty (180) days prior to Agent or such
Purchaser first made demand therefor; provided that if the event
giving rise to such amount has retroactive effect, such one hundred
eighty (180) day period shall be extended to include the period of
retroactive effect.

 


(b) Other Taxes. Each Credit Party
agrees to timely pay to the applicable Governmental Authority any
present or future stamp, intangible, transfer, recording or
documentary Taxes or any other similar Taxes that arise from any
payment made hereunder or from the execution, delivery,
performance, recordation, or filing of, or otherwise with respect
to this Agreement or any other Financing Document, except any such
Taxes that are Other Connection Taxes imposed with respect to an
assignment (“Other
Taxes”).

 


(c) Interest and Penalties. The
Credit Parties shall jointly and severally indemnify Agent and
Purchasers, within ten (10) days after 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) payable or paid by Agent or Purchasers or required to
be withheld or deducted from a payment to Agent or Purchasers 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 Purchaser shall be conclusive absent manifest
error.

 




 

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(d) Foreign Purchasers. Each
Foreign Purchaser that is a party hereto on the Closing Date or
purports to become an assignee of an interest pursuant to
Section 12.6(a) after the
Closing Date (unless such Purchaser was already a Purchaser
hereunder immediately prior to such assignment) shall execute and
deliver to the Borrower United States Internal Revenue Service
Forms W-8ECI, W-8BEN, W-8BEN-E, or W-8IMY (as applicable) and other
applicable forms, certificates or documents prescribed by the
United States Internal Revenue Service or reasonably requested as
to such Purchaser’s entitlement to a complete exemption from
withholding or deduction of Taxes, if any. Any Foreign Purchaser
that is relying on the portfolio interest exception of
Section 871(h) or Section 881(c) of the Code, shall also
provide each Borrower along with IRS Form W-8BEN or W-8BEN-E, as
applicable, a certificate representing to each Borrower that such
Foreign Purchaser is not a “bank” for purposes of
Section 881(c) of the Code, is not a 10% holder of any
Borrower described in Section 871(h)(3)(B) of the Code, is not
a controlled foreign corporation receiving interest from a related
person (within the meaning of Sections 881(c)(3)(C) and 864(d)(4)
of the Code) and is not a conduit entity participating in a conduit
financing arrangement as defined in Treasury Regulation
Section 1.881-3. Each Purchaser shall provide new forms (or
successor forms) or certificates upon the expiration or
obsolescence of any previously delivered forms, to the extent
legally entitled to do so, and to promptly notify each Borrower of
any change in circumstances which would modify or render invalid
any claimed exemption or reduction. If a payment made to a
Purchaser under any Financing Document or any payment would be
subject to U.S. federal withholding Tax imposed by FATCA if such
Purchaser or Agent 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
Purchaser or Agent shall deliver to Borrower and Agent, at the time
or times prescribed by law and at such time or times reasonably
requested by the Borrower, 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 as may be
necessary for Borrower to comply with their obligations under
FATCA, to determine that such Purchaser has complied with such
Purchaser’s obligations under FATCA, or to determine the
amount to deduct and withhold from such payment. Solely for
purposes of the preceding sentence, “FATCA” shall
include any amendments made to FATCA after the date of this
Agreement. Furthermore, any Foreign Purchaser shall, to the extent
it is legally entitled to do so and to the extent in any
Purchaser’s reasonable judgment such completion, execution or
submission would not subject such Purchaser to any material
unreimbursed cost or expense and would not materially prejudice the
legal or commercial position of such Purchaser, deliver to the
Borrower on or prior to the date on which such Foreign Purchaser
becomes a Purchaser under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower), executed
originals 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 to determine the withholding or deduction required to be
made.

 


(e) United States Purchasers. Any
Purchaser other than a Foreign Purchaser that is a party hereto on
the Closing Date or purports to become an assignee of an interest
pursuant to Section
12.6(a) after the Closing Date (unless such Purchaser was
already a Purchaser hereunder immediately prior to such assignment)
shall execute and deliver to the Borrower one or more (as the
Borrower may reasonably request) United States Internal Revenue
Service Form W-9, certifying to such Purchaser’s U.S.
Taxpayer Identification Number and that it is not subject to United
States federal backup withholding taxes. Each Purchaser shall
provide new forms (or successor forms) upon the expiration or
obsolescence of any previously delivered forms pursuant to this
paragraph (e) and to promptly notify Borrower of any change in
circumstances which would modify or render invalid any claimed
exemption or reduction.

 


Section
10.2 Capital
Adequacy.

 


If any
Purchaser shall reasonably determine that the adoption or taking
effect of, or any change in, any applicable Law regarding capital
adequacy, in each instance, after the Closing Date, or any change
after the Closing Date in the interpretation, administration or
application thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation, administration
or application thereof, or the compliance by any Purchaser or any
Person controlling such Purchaser with any request, guideline or
directive regarding capital adequacy (whether or not having the
force of Law) of any such Governmental Authority, central bank or
comparable agency, has or would have the effect of reducing the
rate of return on such Purchaser’s or such controlling
Person’s capital as a consequence of such Purchaser’s
obligations hereunder to a level below that which such Purchaser or
such controlling Person could have achieved but for such adoption,
phase-in, phase-opt, change, interpretation, administration,
application or compliance (taking into consideration such
Purchaser’s or such controlling Person’s policies with
respect to capital adequacy) then from time to time, upon demand by
such Purchaser (which demand shall be accompanied by a statement
setting forth the basis for such demand and a calculation of the
amount thereof in reasonable detail, a copy of which shall be
furnished to Agent), Credit Parties shall promptly pay to such
Purchaser such additional amount as will compensate such Purchaser
or such controlling Person for such reduction, so long as such
amounts have accrued on or after the day which is one hundred
eighty (180) days prior to the date on which such Purchaser first
made demand therefor; provided that if the event
giving rise to such amount has retroactive effect, such one hundred
eighty (180) day period shall be extended to include the period of
retroactive effect.

 




 

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Section
10.3 Increased
Costs.



 


If any
Purchaser shall reasonably determine that the adoption or taking
effect of, or any change in, any applicable Law, in each instance,
after the Closing Date, or any change after the Closing Date in the
interpretation, administration or application of any Law by any
Governmental Authority, central bank or comparable agency charged
with the interpretation, administration or application thereof, or
the compliance by any Purchaser or any Person controlling such
Purchaser with any request, guideline or directive of any such
authority, central bank or comparable agency: (a) shall impose,
modify or deem applicable any reserve (including any reserve
imposed by the Board of Governors of the Federal Reserve System, or
any successor thereto), 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
Purchaser, or (b) shall impose on any Purchaser any other condition
affecting its Purchased Securities, any of its Notes (if any) or
its obligation to purchase any Purchased Securities; and the result
of anything described in clauses (a) and (b) above is to increase
the cost to (or to impose a cost on) such Purchaser of making or
maintaining any Purchased Securities, or to reduce the amount of
any sum received or receivable by such Purchaser under this
Agreement or under any of its Notes (if any) with respect thereto,
then upon demand by such Purchaser (which demand shall be
accompanied by a statement setting forth the basis for such demand
and a calculation of the amount thereof in reasonable detail),
Credit Parties shall promptly, and in any event within twenty (20)
days of demand therefor, pay directly to such Purchaser such
additional amount as will compensate such Purchaser or controlling
Person for such increased cost or such reduction, so long as such
amounts have accrued on or after the day which is one hundred
eighty (180) days prior to the date on which such Purchaser first
made demand therefor; provided that if the event
giving rise to such amount has retroactive effect, such one hundred
eighty (180) day period shall be extended to include the period of
retroactive effect.

 


Section
10.4 Mitigation
Obligations.

 


If any
Purchaser requests compensation under either Section 10.2 or
Section 10.3,
or requires any Credit Party to pay any additional amount to any
Purchaser or any Governmental Authority for the account of any
Purchaser pursuant to Section 10.1, then, upon
the written request of the Borrower, such Purchaser shall use
reasonable efforts to designate a different lending office for
funding or booking its Purchased Securities hereunder or to assign
its rights and obligations hereunder (subject to the provisions of
Section 12.6)
to another of its offices, branches or affiliates, if, in the
judgment of such Purchaser, such designation or assignment (a)
would eliminate or materially reduce amounts payable pursuant to
any such Section, as the case may be, in the future, (b) would not
subject such Purchaser to any unreimbursed cost or expense and (c)
would not otherwise be disadvantageous to such Purchaser (as
determined in its sole discretion). Without limitation of the
provisions of Section 9.1, Borrower
hereby agrees to pay all reasonable out-of-pocket costs and
expenses incurred by any Purchaser in connection with any such
designation or assignment.

 


Section
10.5 Conclusiveness of Statements;
Survival.

 


Determinations and
statements of any Purchaser pursuant to Sections 10.1, 10.2 and 10.3 shall be conclusive and
binding absent manifest error. Purchasers may use reasonable
averaging and attribution methods in determining compensation under
Sections 10.1,
10.2 and
10.3, and the
provisions of such Sections shall survive repayment of the Notes,
cancellation or exercise of the Warrants and termination of this
Agreement.

 


Section
10.6 Dodd-Frank.

 


Notwithstanding
anything herein to the contrary, (i) the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all rules, regulations,
guidelines and directives thereunder or issued in connection
therewith (ii) all requests, rules, guidelines or directives
concerning capital adequacy promulgated by the Bank for
International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United
States regulatory authorities, shall be deemed, in each case, for
all purposes of this Agreement, to be adopted after the date of
this Agreement, regardless of the date actually enacted, adopted or
issued.

 



ARTICLE 11

 


AGENT

 


Section
11.1 Appointment and
Authorization.





 

53







 





 


(a) General. Each Purchaser hereby
irrevocably appoints and authorizes Agent to enter into each of the
Financing Documents to which it is a party on its behalf and to
take such actions as Agent on its behalf and to exercise such
powers under the Financing Documents as are delegated to Agent by
the terms thereof, together with all such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Financing
Document, Agent shall not have any duty or responsibility except
those expressly set forth herein, nor shall Agent have or be deemed
to have any fiduciary relationship with any Purchaser or any other
Person, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this
Agreement or any other Financing Document or otherwise exist
against Agent. It is understood and agreed that the use of the term
“agent” herein or in any other Financing Document with
reference to the Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency
doctrine of any applicable 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.

 


(b) Specific Rights Regarding
Collateral. Without limiting the generality of the powers of
Agent, as set forth above, Agent is hereby authorized to act
as “collateral agent” and “paying agent”
for each Purchaser and each other Secured Party pursuant to each of
the Financing Documents. In its capacity as collateral agent, Agent
has the right to exercise all rights and remedies available under
the Financing Documents, the UCC and other applicable law, as
further described in Section 11.3.

 


Section
11.2 Agent and
Affiliates.

 


Agent
and its Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with any Credit Party and
any Affiliate of any Credit Party as though Agent were not agent
hereunder and without notice to or consent of any Purchaser. Each
Purchaser acknowledges that, pursuant to such activities, Agent or
its Affiliates may receive information regarding Credit Parties or
their Affiliates (including information that may be subject to
confidentiality obligations in favor of any such Credit Party or
such Affiliate) and acknowledge that Agent shall be under no
obligation to provide such information to them. To the extent that
Agent becomes a Purchaser, Agent shall have the same rights and
powers under the Financing Documents as any other Purchaser and may
exercise or refrain from exercising the same as though it were not
Agent, and Agent and its Affiliates may lend money to, invest in
and generally engage in any kind of business with each Credit Party
or Affiliate of any Credit Party as if it were not agent
hereunder.

 


Section
11.3 Delegation of
Duties.

 


Agent
may execute any of its duties under this Agreement or any other
Financing Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Agent shall not
be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects absent its gross negligence or
willful misconduct as determined by a final non-appealable judgment
of a court of competent jurisdiction. In its capacity as collateral
agent, Agent has the right to exercise all rights and remedies
available under the Financing Documents, the Uniform Commercial
Code and other applicable law, as directed by the Required
Purchasers, which rights and remedies shall include, in the event
of a foreclosure by Agent on any portion of the Collateral, whether
pursuant to a public or private sale, the right of Agent, as agent
for all of the Purchasers, to be, or form an acquisition entity to
be, the purchaser of any or all of such Collateral at any such
sale. Agent, as agent for all of the Purchasers, shall be entitled
at any such sale to offset any of the Obligations against the
purchase price payable by Agent (or such acquisition entity) at
such sale or to otherwise consent to a reduction of the Obligations
as consideration to the applicable Credit Party in connection with
such sale. Agent shall have the authority to take such other
actions as it may deem necessary or desirable, and as may be
approved by the Required Purchasers, to consummate a sale of the
type described in the immediately preceding sentences. Without
limiting the generality of the powers of Agent, as set forth above,
in the context of any bankruptcy or other insolvency proceeding
involving any Credit Party, Agent is hereby authorized to, at the
direction of the Required Purchasers: (a) file proofs of claim
and other documents on behalf of the Purchasers, (b) object or
consent to the use of cash collateral, (c) object or consent
to any proposed debtor-in-possession financing, whether provided by
one or more of the Purchasers or any other Person and whether
secured by Liens with priority over the Liens securing the
Obligations or otherwise, (d) object or consent to any sale of
Collateral, including sales for non-cash consideration in
satisfaction of a portion of the Obligations, as may be agreed to
by the Required Purchasers on behalf of all of the Purchasers,
(e) to be, or form an acquisition entity to be, the purchaser
of any or all of such Collateral at any such sale under clause (d)
and to offset any of the Obligations against the purchase price
payable by Agent (or such acquisition entity) at such sale or to
otherwise consent to a reduction of the Obligations as
consideration to the applicable Credit Party in connection with
such sale, and (f) seek, object or consent to any Credit
Party’s provision of adequate protection of the interests of
Agent and/or the Purchasers in the Collateral.

 


Section
11.4 Action by Agent; Action by Secured
Parties.

 


(a) Agent. Agent shall not have, by
reason of this Agreement, a fiduciary relationship in respect of
any Purchaser or any other Person. Nothing in this Agreement or any
of the Financing Documents is intended to or shall be construed to
impose upon Agent any obligations in respect of this Agreement or
any of the Financing Documents except as expressly set forth herein
or therein. Actions taken by Agent hereunder, under the other
Financing Documents or upon the instructions of Required Purchasers
or such other portion of the Purchasers (as required hereunder),
shall be binding upon each Purchaser and each of the other Secured
Parties.

 




 

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(b) Secured Parties. Anything in
this Agreement or any other Financing Document to the contrary
notwithstanding, each Secured Party hereby agrees with each other
Secured Party and with Agent that no Secured Party shall take any
action to protect or enforce its rights against any Credit Party
arising out of this Agreement or any other Financing Document
(including exercising any rights of set-off) without first
obtaining the prior written consent of Agent (acting at the
direction of the Required Purchasers), it being the intent of
Purchasers and the other Secured Parties that any such action to
protect or enforce rights against any Credit Party under this
Agreement and the other Financing Documents shall be taken in
concert and at the direction or with the consent of Agent (acting
at the direction of the Required Purchasers).

 


Section
11.5 Consultation with
Experts.

 


Agent
may consult with legal counsel, independent public accountants and
other experts selected by it and shall not be liable for any action
taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.

 


Section
11.6 Liability of
Agent.

 


Neither
Agent nor any of its directors, officers, agents or employees shall
be liable to any Secured Party or any other Person for any action
taken or not taken by it in connection with the Financing
Documents, except that Agent shall be liable with respect to its
specific duties set forth hereunder, but only to the extent of its
own gross negligence or willful misconduct in the discharge thereof
as determined by a final non-appealable judgment of a court of
competent jurisdiction. Neither Agent nor any of its directors,
officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (a) any statement,
warranty or representation made in connection with any Financing
Document or any borrowing hereunder, (b) the performance or
observance of any of the covenants or agreements specified in any
Financing Document, (c) the satisfaction of any condition specified
in any Financing Document, (d) the validity, effectiveness,
sufficiency or genuineness of any Financing Document, any Lien
purported to be created or perfected thereby or any other
instrument or writing furnished in connection therewith, (e) the
existence or non-existence of any Default or Event of Default; or
(f) the financial condition of any Credit Party or Subsidiary.
Agent shall not incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing (which
may be a bank wire, telex, facsimile or electronic transmission or
similar writing) believed by it to be genuine or to be signed by
the proper party or parties. Agent shall not be liable for any
apportionment or distribution of payments made by it in good faith
and if any such apportionment or distribution is subsequently
determined to have been made in error the sole recourse of any
Secured Party to whom payment was due but not made, shall be to
recover from other Secured Parties any payment in excess of the
amount to which it is determined to be entitled (and such other
Secured Parties hereby agree to return to such Secured Party any
such erroneous payments received by them). Agent shall in no event
be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including,
without limitation strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and
hardware) services. In executing and delivering any Financing
Document or other document or instrument in connection with any
Financing Document and in performing its obligations or exercising
its rights under any such document, Agent shall enjoy all the
rights, protections, immunities and indemnities afforded to it
hereunder. No provision of this Agreement or any other Financing
Document shall require Agent to expend or risk its own funds or
otherwise incur financial liability in the performance of any of
its duties hereunder or thereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds to believe
that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.

 


Section
11.7 Indemnification.

 


Purchasers shall,
on a ratable basis, indemnify Agent (to the extent not reimbursed
by Credit Parties) upon demand against any cost, expense (including
counsel fees and disbursements), withholding Tax liability, claim,
demand, action, loss or liability (except such as result from such
Agent’s gross negligence or willful misconduct as determined
by a final non-appealable judgment of a court of competent
jurisdiction) that Agent may suffer or incur in connection with the
Financing Documents or any action taken or omitted by Agent
hereunder or thereunder. If any indemnity furnished to Agent for
any purpose shall, in the opinion of Agent, be insufficient or
become impaired, Agent may call for additional indemnity and cease,
or not commence, to do the acts indemnified against even if so
directed by Required Purchasers until such additional indemnity is
furnished.

 







 

55







 





 


 



Section
11.8 Right to Request and Act on
Instructions.



 


Agent
may at any time request written instructions from Purchasers (or
any subset thereof as required pursuant to the Financing Documents)
with respect to any actions or approvals which by the terms of this
Agreement or of any of the Financing Documents Agent is permitted
or desires to take or to grant, and if such written instructions
are requested, Agent shall be absolutely entitled to refrain from
taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from
any action or withholding any approval under any of the Financing
Documents until it shall have received such written instructions
from Required Purchasers or all or such other portion of Purchasers
as shall be prescribed by this Agreement. Without limiting the
foregoing, no Secured Party shall have any right of action
whatsoever against Agent as a result of Agent acting or refraining
from acting under this Agreement or any of the other Financing
Documents in accordance with the instructions of Required
Purchasers (or all or such other portion of Purchasers as shall be
prescribed by this Agreement) and, notwithstanding the instructions
of Required Purchasers (or such other applicable portion of
Purchasers), Agent shall have no obligation to take any action if
it believes, in good faith, that such action would violate
applicable Law or exposes it to any liability for which it has not
received satisfactory indemnification in accordance with the
provisions of Section 11.7.
Notwithstanding anything else to the contrary herein, whenever
reference is made in this Agreement, or any other Financing
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 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 Agent, it is
understood that in all cases Agent shall be fully justified in
failing or refusing to take any such action if it shall not have
received written instruction, advice or concurrence from the
Required Purchasers (or all or such other portion of Purchasers as
shall be prescribed by this Agreement) in respect of such
action.

 


Section
11.9 Credit Decision.

 


Each
Purchaser acknowledges that it has, independently and without
reliance upon Agent or any other Purchaser, 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
Purchaser also acknowledges that it will, independently and without
reliance upon Agent or any other Purchaser, and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
any action under the Financing Documents.

 


Section
11.10 Collateral
Matters.

 


Secured
Parties irrevocably authorize Agent to (a) release any Lien granted
to or held by Agent under any Security Document (i) upon Payment in
Full of the Obligations, or (ii) constituting property sold or
disposed of as part of or in connection with any disposition
permitted under any Financing Document (it being understood and
agreed that Agent may conclusively rely without further inquiry on
a certificate of a Responsible Officer as to the sale or other
disposition of property being made in full compliance with the
provisions of the Financing Documents), (b) release or subordinate
any Lien granted to or held by Agent under any Security Document
constituting property described in Section 5.2(c) (it being
understood and agreed that Agent may conclusively rely without
further inquiry on a certificate of a Responsible Officer as to the
identification of any property described in Section 5.2(c)), and (c)
release any Guarantor of all or any portion of the Obligations if
all of the Capital Stock of such Guarantor is sold or otherwise
ceases to be a Subsidiary in a transaction permitted hereunder to
the extent that after giving effect to such transaction such Credit
Party would not be required to guarantee any Obligation pursuant to
Section 4.11.
Upon request by Agent at any time, Secured Parties will confirm
Agent’s authority to release and/or subordinate particular
types or items of Collateral pursuant to this Section 11.10. Agent shall
not have any obligation hereunder or under any other Financing
Document to file any financing statements or continuation
statements with respect to the Collateral.

 


Section
11.11 Agency for
Perfection.

 


Agent
and each Secured Party hereby appoint each other Secured Party as
agent for the purpose of perfecting Agent’s security interest
in assets which, in accordance with the UCC in any applicable
jurisdiction, can be perfected by possession or control. Should any
Secured Party (other than Agent) obtain possession or control of
any such assets, such Secured Party shall notify Agent thereof,
and, promptly upon Agent’s request therefor, shall deliver
such assets to Agent or in accordance with Agent’s
instructions or transfer control to Agent in accordance with
Agent’s instructions. Without limiting the provisions of
Section 11.4(b), each
Secured Party agrees that it will not have any right individually
to enforce or seek to enforce any Security Document or to realize
upon any Collateral for the Obligations unless instructed to do so
by Agent (or consented to by Agent, as provided in Section 8.3), it being
understood and agreed that such rights and remedies may be
exercised only by Agent.

 




 

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Section
11.12 Notice of Default.

 


Agent
shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default unless Agent shall have received
written notice from a Purchaser or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating
that such notice is a “notice of default”. Agent shall
take such action with respect to such Default or Event of Default
as may be requested by Required Purchasers (or all or such other
portion of Purchasers as shall be prescribed by this Agreement) in
accordance with the terms hereof. Unless and until Agent has
received any such request, Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem
advisable or in the best interests of Purchasers.

 


Section
11.13 Successor Agent.

 


Agent
may at any time give notice of its resignation to Purchasers and
the Borrower. Upon receipt of any such notice of resignation,
Required Purchasers shall have the right to appoint a successor
Agent. Upon the acceptance of a successor’s appointment as
Agent hereunder and notice of such acceptance to the resigning
Agent, such successor shall succeed to and become vested with all
of the rights (other than rights to indemnities, fees or other
amounts owing to the resigning Agent), powers, privileges and
duties of the resigning (or resigned) Agent, the resigning
Agent’s resignation shall become immediately effective and
the resigning Agent shall be discharged from all of its duties and
obligations hereunder and under the other Financing Documents (if
such resignation was not already effective and such duties and
obligations not already discharged, as provided below in this
paragraph). The fees payable by Borrower to a successor Agent shall
be the same as those payable to its predecessor unless otherwise
agreed between Borrower and such successor. If no such successor
shall have been so appointed by Required Purchasers and shall have
accepted such appointment within thirty (30) days after the
resigning Agent gives notice of its resignation, then the resigning
Agent, from and following the expiration of such thirty (30) day
period, (a) shall have the exclusive right, upon one (1) Business
Day’s notice to the Borrower and Purchasers, to make its
resignation effective immediately, and (b) may (but shall not be
obligated to), on behalf of the Purchasers, appoint, or petition a
court to appoint and the Borrower’s expense, a successor
Agent. From and following the effectiveness of its resignation, (i)
the resigning Agent shall be discharged from its duties and
obligations hereunder and under the other Financing Documents and
(ii) all payments, communications and determinations provided to be
made by, to or through the resigning Agent shall instead be made by
or to each Purchaser directly, until such time as Required
Purchasers appoint a successor Agent as provided for above in this
paragraph. The provisions of this Agreement shall continue in
effect for the benefit of any resigning Agent and its sub-agents
after the effectiveness of its resignation hereunder and under the
other Financing Documents in respect of any actions taken or
omitted to be taken by any of them while the resigning Agent was
acting or was continuing to act as Agent.

 


Section
11.14 Right to Perform, Preserve and
Protect.

 


If any
Credit Party fails to perform any obligation hereunder or under any
other Financing Document, Agent itself may, but shall not be
obligated to, cause such obligation to be performed at Credit
Parties’ expense. Agent is further authorized by Credit
Parties and Secured Parties to make expenditures from time to time
which Agent, in its reasonable business judgment, deems necessary
or desirable to (a) preserve or protect the business conducted by
Credit Parties, the Collateral, or any portion thereof and/or (b)
enhance the likelihood of, or maximize the amount of, repayment of
the Notes and other Obligations. Each Credit Party hereby agrees to
reimburse Agent on demand for any and all costs, liabilities and
obligations incurred by Agent pursuant to this Section 11.14. Each
Purchaser hereby agrees to indemnify Agent upon demand for any and
all costs, liabilities and obligations incurred by Agent pursuant
to this Section 11.14, in
accordance with the provisions of Section 11.7.

 




 

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Section
11.15 Additional Titled
Agents.


 




Except
for rights and powers, if any, expressly reserved under this
Agreement to any bookrunner, arranger or to any titled agent named
on the cover page of this Agreement, other than Agent
(collectively, the “Additional Titled Agents”), and
except for obligations, liabilities, duties and responsibilities,
if any, expressly assumed under this Agreement by any Additional
Titled Agent, no Additional Titled Agent, in such capacity, has any
rights, powers, liabilities, duties or responsibilities hereunder
or under any of the other Financing Documents. Without limiting the
foregoing, no Additional Titled Agent shall have nor be deemed to
have a fiduciary relationship with any Secured Party.

 


Section
11.16 Subordinated Debt and Existing WF
Debt.

 


Each
Purchaser hereby irrevocably appoints, designates, authorizes and
instructs Agent to enter into any subordination or intercreditor
agreement (including the WF Intercreditor Agreement) pertaining to
any Subordinated Debt and the Existing WF Debt, on its behalf and
to take such action on its behalf under the provisions of any such
agreement (subject to the last sentence of this Section 11.16). Each Purchaser
further agrees to be bound by the terms and conditions of any
subordination or intercreditor agreement pertaining to any
Subordinated Debt and the Existing WF Debt. Each Purchaser hereby
authorizes and instructs Agent to issue (and receive, as
applicable) blockage notices in connection with any Subordinated
Debt and the Existing WF Debt, as applicable, at the direction of
the Required Purchasers (it being agreed and understood that Agent
will not act unilaterally to issue such blockage
notices).

 


Section
11.17 Third Party
Beneficiaries.

 


The
provisions of this Article
11 are solely for the benefit of the Secured Parties. No
Credit Party or any Subsidiary shall have any rights as a third
party beneficiary of any of the provisions of this Article 11. The provisions of
this Article 11 and
the other Financing Documents relating to Collateral shall benefit
each Secured Party if, by accepting such benefits, such Secured
Party agrees to be bound by the provisions of this Article 11 and all other
provisions of the Financing Documents running to the benefit of
Agent from any Purchaser, as if each other Secured Party was a
Purchaser hereunder. In furtherance of the foregoing, and as a
condition to its acceptance of the benefits set forth above, each
other Secured Party agrees that Agent and each of the other Secured
Parties shall be entitled to act in its sole discretion without
regard to the interests of the Secured Party seeking the benefit
hereof, without any duty or liability to such Secured Party and
without having any duty to notify or seek the consent of such
Secured Party prior to taking any action or omitting to take any
action.

 









 

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 ARTICLE
12





 


MISCELLANEOUS

 


Section
12.1 Survival.

 


All
agreements, representations and warranties made herein and in every
other Financing Document shall survive the execution and delivery
of this Agreement and the other Financing Documents. The provisions
of Articles 9,
10, 11 and 12 shall survive the Payment in
Full of the Obligations and cancellation or exercise of the
Warrants (both with respect to any Purchaser and all Purchasers
collectively), any termination of this Agreement and the
resignation of the Agent.

 


Section
12.2 No Waivers; Remedies
Cumulative.

 


No
failure or delay by Agent or any Purchaser in exercising any right,
power or privilege under any Financing Document shall operate as a
waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies herein
and therein provided shall be cumulative and not exclusive of any
rights or remedies provided by Law. Any reference in any Financing
Document to the “continuing” nature of any Event of
Default shall not be construed as establishing or otherwise
indicating that any Credit Party has the independent right to cure
any such Event of Default, but is rather presented merely for
convenience should such Event of Default be waived in accordance
with the terms of the applicable Financing Documents.

 


Section
12.3 Notices.

 


(a) All notices,
requests and other communications to any party hereunder shall be
in writing (including prepaid overnight courier, facsimile
transmission, e-mail, electronic submissions or similar writing,
but in no event by text message) and shall be given to such party
at its address, facsimile number or e-mail address set forth on the
signature pages hereof (or, in the case of any such Purchaser who
becomes a Purchaser after the date hereof, in an Assignment
Agreement or in a notice delivered to the Borrower and Agent and
each other Purchaser by the assignee Purchaser forthwith upon such
assignment) or by electronic submissions, as provided below, or at
such other address, facsimile number or e-mail address as such
party may hereafter specify for the purpose by notice to Agent,
each other Purchaser and the Borrower; provided, that notices,
requests or other communications shall be permitted by e-mail or
other electronic submissions (but in no event by text message) only
in accordance with the provisions of Section 12.3(b). Each such
notice, request or other communication shall be effective (i) if
given by facsimile, when such notice is transmitted to the
facsimile number specified by this Section and the sender
receives a confirmation of transmission from the sending facsimile
machine, (ii) if given by e-mail or other electronic submissions,
as set forth in Section 12.3(c) or (iii)
if given by mail, prepaid overnight courier or any other means,
when received at the applicable address specified by this
Section.

 


(b) Notices and other
communications to the parties hereto may be delivered or furnished
by electronic communication (including e-mail and Internet or
intranet websites, but in no event by text message) provided, that the foregoing
shall not apply to notices sent directly to any party hereto if
such party has notified the other parties in writing that it has
elected not to receive notices by electronic communication (which
election may be limited to particular notices).


 




 

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(c) (i) Notices and
other communications sent to an e-mail address shall be deemed
received upon the sender’s receipt of an acknowledgment from
the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other
written acknowledgment), 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 e-mail 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 if any such
notice or other communication is not sent or posted during normal
business hours, such notice or communication shall be deemed to
have been sent at the opening of business on the next Business
Day.

 


Section
12.4 Severability.

 


In case
any provision of or obligation under this Agreement or any other
Financing Document shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.

 


Section
12.5 Amendments and
Waivers.

 


(a) General Provisions. No
provision of this Agreement or any other Financing Document may be
amended, waived or otherwise modified unless such amendment, waiver
or other modification is in writing and is signed or otherwise
approved by Borrower (other than with respect to any subordination
or intercreditor agreement (including the WF Intercreditor
Agreement) with respect to the Existing WF Debt or any
subordination or intercreditor agreement or terms pursuant to which
any Debt and/or any Liens securing such Debt is Subordinated Debt
and the Liens securing the Obligations, none of which shall require
the signature or approval of any Borrower) and Required Purchasers (or by
Agent with the prior written approval of Required Purchasers);
provided that
Borrower shall not be subject to the terms of any amendments to
such subordination or intercreditor agreements (including the WF
Intercreditor Agreement) unless Borrower approves of same in
writing), and, if (i) any amendment, waiver or other modification
would either increase a Purchaser’s obligations to purchase
any Notes, by such Purchaser, and (ii) the rights or duties of
Agent are affected thereby, by Agent; provided that no such
amendment, waiver or other modification shall, unless signed or
otherwise approved in writing by all Purchasers directly affected
thereby (or by Agent with the prior written approval of each such
Purchaser), (A) reduce the principal of, rate of interest on, or
any fees with respect to the Purchased Securities or forgive any
principal, interest, or fees, other than (i) as a result of a
waiver of an Event of Default and/or the default rate of interest
pursuant to Section 2.4(b), or (ii) as
a result of the implementation of any pricing grid with respect to
interest rate margins and fees, (B) defer, extend or postpone the
date fixed for, or waive or forgive, any payment (other than a
payment pursuant to Section 2.3) of principal
of the Notes, or of interest (other than the default rate of
interest pursuant to Section 2.4(b)) on the Notes or
fees hereunder or defer, extend or postpone the date of termination
of the commitment of any Purchaser hereunder, (C) change the
definition of the term Required Purchasers, (D) release all or
substantially all of the Collateral, except as otherwise may be
provided in this Agreement or the other Financing Documents
(including in connection with any disposition permitted hereunder),
or (E) amend, waive or otherwise modify this Section 12.5(a) or the
definitions of the terms used in this Section 12.5(a) insofar as
the definitions affect the substance of this Section 12.5(a). It is
hereby understood and agreed that all Purchasers shall be deemed
directly affected by an amendment, waiver or other modification of
the type described in the preceding clauses (C), (D) or (E) of the
preceding sentence. Any waiver of any provision of this Agreement
or any other Financing Document shall be effective only in the
specific instance and for the specific purpose for which it is
given. No delay on the part of Agent or any Purchaser in the
exercise of any right, power or remedy shall operate as a waiver
thereof, nor shall any single or partial exercise by any of them of
any right, power or remedy preclude other or further exercise
thereof, or the exercise of any other right, power or
remedy.

 


(b) Agent. No amendment, waiver,
modification, or consent shall amend, modify, waive, or waive any
provision of Article
11 pertaining to Agent, or any other rights or duties of
Agent under this Agreement or the other Financing Documents,
without the written consent of Agent, Borrower, and Required
Purchasers.

 


(c) Miscellaneous. Anything in this
Section 12.5 to the
contrary notwithstanding, any amendment, modification, elimination,
waiver, consent, termination, or release of, or with respect to,
any provision of this Agreement or any other Financing Document
that relates only to the relationship of Purchasers and Agent among
themselves, and that does not affect the rights or obligations of
Credit Parties, shall not require consent by or the agreement of
any Credit Party.

 




 

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Section
12.6 Assignments;
Participations.

 


(a) Assignments.

 


(i) Any Purchaser may
at any time assign to one or more Eligible Assignees all or any
portion of such Purchaser’s Notes, together with all related
rights and obligations of such Purchaser hereunder. Borrower, Agent
and Purchasers shall be entitled to continue to deal solely and
directly with such Purchaser in connection with the interests so
assigned to an Eligible Assignee until Purchasers and Agent shall
have received and accepted an effective Assignment Agreement
executed, delivered and fully completed by the applicable parties
thereto.

 


(ii) From
and after the date on which the conditions described above have
been met and recordation in the register described in paragraph
(iii) below, (A) such Eligible Assignee shall be deemed
automatically to have become a party hereto and, to the extent of
the interests assigned to such Eligible Assignee pursuant to such
Assignment Agreement, shall have the rights and obligations of a
Purchaser hereunder and (B) the assigning Purchaser, to the extent
that rights and obligations hereunder have been assigned by it
pursuant to such Assignment Agreement, shall be released from its
rights and obligations hereunder (other than those that survive
termination pursuant to Section 12.1). Upon the
request of the Eligible Assignee (and, as applicable, the assigning
Purchaser) pursuant to an effective Assignment Agreement, each
Borrower shall execute and deliver to such Eligible Assignee (and,
as applicable, the assigning Purchaser) Notes in the aggregate
principal amount so assigned (and, as applicable, Notes in the
principal amount retained by the assigning Purchaser). Upon receipt
by the assigning Purchaser of such Note, the assigning Purchaser
shall return to the Borrower any prior Note held by
it.

 


(iii) Agent
shall maintain at its offices a copy of each Assignment Agreement
delivered to it and a register for the recordation of the names and
addresses of each Purchaser, and the commitments of, and principal
amount and interest of the Notes held by, such Purchaser pursuant
to the terms hereof. The entries in such register shall be
conclusive, absent manifest error, and Borrower, Agent and
Purchasers may treat each Person whose name is recorded therein
pursuant to the terms hereof as a Purchaser hereunder for all
purposes of this Agreement. Such register shall be available for
inspection by Agent and any Purchaser (provided that each
Purchaser’s right of inspection shall be limited to
information about such Purchaser), at any reasonable time upon
reasonable prior notice to Borrower. Any assignment may be effected
only upon the registration thereof as provided in this paragraph
(iii).

 


(iv) Notwithstanding
the foregoing provisions of this Section 12.6(a) or any
other provision of this Agreement, any Purchaser may at any time
pledge or grant a security interest in all or any portion of its
rights under this Agreement to secure obligations of such
Purchaser, including any pledge or grant to secure obligations to a
Federal Reserve Bank or to a trustee as security for the benefit of
its noteholders, other security holders or creditors of a
Purchaser; provided
that no such pledge or grant shall release such Purchaser from any
of its obligations hereunder or substitute any such pledgee or
grantee for such Purchaser as a party hereto.

 


(b) Participations.

 


Any
Purchaser may at any time, without the consent of, or notice to,
Borrower or Agent, sell to one or more Persons participating
interests in its Notes, commitments or other interests hereunder
(any such Person, a “Participant”), provided, no participation
shall be made to any Credit Party or any Affiliate thereof (to the
extent such Affiliate was not a Purchaser as of the Closing Date)
or any direct competitor of a Credit Party. In the event of a sale
by a Purchaser of a participating interest to a Participant, (i)
such Purchaser’s obligations hereunder shall remain unchanged
for all purposes, (ii) Borrower and Agent shall continue to deal
solely and directly with such Purchaser in connection with such
Purchaser’s rights and obligations hereunder and (iii) all
amounts payable by Borrower shall be determined as if such
Purchaser had not sold such participation and shall be paid
directly to such Purchaser. Notwithstanding the foregoing, however,
Borrower agrees that each Participant shall be entitled to the
benefits of Section 10.1 as if it were
a Purchaser (provided that such Participant
complies with the requirements of Section 10.1(d) and
(e) as if it were a
Purchaser; provided
further, that no
Participant shall receive any greater compensation pursuant to
Section 10.1
than would have been paid to the participating Purchaser if no
participation had been sold). No Participant shall have any direct
or indirect voting rights hereunder except with respect to any
event described in Section 12.5 expressly
requiring the unanimous vote of all Purchasers or, as applicable,
all affected Purchasers. Borrower agrees that if amounts
outstanding under this Agreement are due and payable (as a result
of acceleration or otherwise), each Participant shall be deemed to
have the right of setoff in respect of its participating interest
in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a
Purchaser under this Agreement; provided that such right of
setoff shall be subject to the obligation of each Participant to
share with Purchasers, as provided in Section 8.3. In the event
that a Purchaser sells a participation, the Purchaser, as a
non-fiduciary agent on behalf of the Borrower, shall maintain (or
cause to be maintained) in the United States a register (the
“Participant
Register”) on which it enters the name and addresses
of all participants in the Obligations held by it and the rights of
such participants in the Obligations (including principal amount,
interest thereon, and fees of the portion of such Obligations that
is subject to such participations). No Purchaser shall have an
obligation to disclose all or any portion of the Participant
Register to any Person (including the identity of any Participant
or any information relating to a Participant’s interest in
any Note or any Obligation), except as otherwise required by
applicable law and to the Borrower at its reasonable request and
then, solely to the extent that such disclosure is required to
establish that such participation, Note or Obligation is in
registered form under Sections 5f.103-1(c) and 1.871-14(c) of the
Treasury Regulations. Any participation or transfer thereof may be
effected only by the registration of such participation on the
Participant Register.


 




 

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(c) Credit Party
Assignments.

 


No
Credit Party may assign, delegate or otherwise transfer any of its
rights or other obligations hereunder or under any other Financing
Document without the prior written consent of Agent and each
Purchaser.

 


Section
12.7 Headings.

 


Headings and
captions used in the Financing Documents (including the Exhibits
and Annexes hereto and thereto) are included for convenience of
reference only and shall not be given any substantive
effect.

 


Section
12.8 Confidentiality.

 


Agent and each
Purchaser shall hold all non-public information regarding the
Credit Parties, their Subsidiaries and their respective businesses
in accordance with such Person’s customary procedures for
handling information of such nature, except that disclosure of such
information may be made (i) to their respective agents, employees,
Subsidiaries, Affiliates, attorneys, auditors, Purchasers,
custodians, trustees, professional consultants, and portfolio
management services, (ii) to the extent required or requested by,
or required to be disclosed to, any regulatory or similar authority
purporting to have jurisdiction over such Person or its Affiliates
(including any self-regulatory authority, such as the National
Association of Insurance Commissioners) or in accordance with
Agent’s or any Purchaser’s regulatory compliance policy
if Agent or such Purchaser, as applicable, deems such disclosure to
be necessary for the mitigation of claims by those authorities
against Agent or such Purchaser, as applicable, or any of its
Affiliates, (iii) to any other party hereto, (iv) to prospective
transferees or purchasers of any interest in the Notes, and to
prospective contractual counterparties (or the professional
advisors thereto) in Swap Contracts permitted hereby, provided that any such
prospective transferee, purchaser or counterparty shall have agreed
to be bound by the provisions of this Section 12.8, (v) as
required by Law (including, without limitation, filing with the
United States Securities and Exchange Commission), subpoena,
judicial order or similar order, (vi) in connection with any
litigation or in connection with the exercise of any right or
remedy under any Financing Document, (vii) as may be required in
connection with the examination, audit or similar investigation of
such Person or as required in connection with any examination,
audit or similar investigation by any regulatory authority, (viii)
on a confidential basis to (a) any rating agency in connection with
rating the Credit Parties or their Subsidiaries or the Purchased
Securities or (b) CUSIP Service Bureau or any similar agency in
connection with the issuance and monitoring of CUSIP numbers with
respect to the Purchased Securities, (ix) with the consent of the
Credit Parties, (x) deal terms and other information customarily
reported to Thomson Reuters, other bank market data collectors and
similar service providers to the lending industry and service
providers to Agent and the Purchasers in connection with the
administration of the Financing Documents, (xi) to the extent
necessary or customary for inclusion in league table measurements,
(xii) to a Person that is a trustee, investment advisor, collateral
manager, servicer, noteholder or secured party in a Securitization
(as hereinafter defined) in connection with the administration,
servicing and reporting on the assets serving as collateral for
such Securitization, (xiii) to the extent that such information is
independently developed by such Person, (xiv) for purposes of
establishing a “due diligence” defense, and (xv)
pursuant to routine securities filings required to be filed by any
Purchaser or any of its Affiliates. Agent or any of its respective
Affiliates may place customary “tombstone”
advertisements (which may include the Borrower’s and/or their
Subsidiaries’ trade names or corporate logos) in publications
of such Person’s choice (including, without limitation,
“e-tombstones” published or otherwise circulated in
electronic form and related hyperlinks to any Borrower’s or
any Subsidiary’s corporate websites). For the purposes of
this Section, “Securitization” shall mean a public or
private offering by a Purchaser or any of its Affiliates or their
respective successors and assigns, of Capital Stock which represent
an interest in, or which are collateralized, in whole or in part,
by the Notes. Confidential information shall not include
information that either (A) is in the public domain, or becomes
part of the public domain after disclosure to such Person through
no fault of such Person, or (B) is disclosed to such Person by a
Person other than a Credit Party or Subsidiary, provided Agent does not have
actual knowledge that such Person is prohibited from disclosing
such information. The obligations of Agent and Purchasers under
this Section 12.8 shall
supersede and replace the obligations of Agent and Purchasers under
any confidentiality agreement in respect of this financing executed
and delivered by Agent or any Purchaser prior to the date
hereof.


 




 

62







 






 

 


Section
12.9 Waiver of Consequential and Other
Damages.

 


To the
fullest extent permitted by applicable Law, no Credit Party shall
assert, and each hereby waives, 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 Financing Document or any agreement or instrument
contemplated hereby or thereby, the transactions contemplated
hereby or thereby, any Purchased Security or the use of the
proceeds thereof. No Indemnitee shall be liable for any damages
arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection
with this Agreement or the other Financing Documents or the
transactions contemplated hereby or thereby.

 


Section
12.10 Marshaling; Payments Set
Aside.

 


Neither
Agent nor any other Secured Party shall be under any obligation to
marshal any assets in payment of any or all of the Obligations. To
the extent that any Borrower or any other Credit Party makes any
payment or Agent enforces its Liens or Agent or any Purchaser
exercises its right of setoff, and such payment or the proceeds of
such enforcement or setoff is subsequently invalidated, declared to
be fraudulent or preferential, set aside, or required to be repaid
by anyone, then to the extent of such recovery, the Obligations or
part thereof originally intended to be satisfied, and all Liens,
rights and remedies therefor, shall be revived and continued in
full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.

 


Section
12.11 GOVERNING LAW; SUBMISSION TO
JURISDICTION.

 


THIS
AGREEMENT AND EACH OTHER FINANCING DOCUMENT, AND ALL MATTERS
RELATING HERETO OR THERETO OR ARISING THEREFROM (WHETHER SOUNDING
IN CONTRACT LAW, TORT LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
EACH PARTY HERETO HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE
OR FEDERAL COURT LOCATED WITHIN THE BOROUGH OF MANHATTAN, CITY OF
NEW YORK, STATE OF NEW YORK AND IRREVOCABLY AGREES THAT, SUBJECT TO
AGENTS’ ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE OTHER FINANCING DOCUMENTS
SHALL BE LITIGATED IN SUCH COURTS. EACH PARTY HERETO EXPRESSLY
SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS
AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH PARTY HERETO
HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES
THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON SUCH PARTY BY
CERTIFIED OR REGISTERED MAIL, ADDRESSED TO SUCH PARTY AT THE
ADDRESS SET FORTH IN OR IN ACCORDANCE WITH THIS AGREEMENT AND
SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS
BEEN POSTED.


 




 

63







 






 

 

Section
12.12 WAIVER OF JURY
TRIAL.

 


EACH
CREDIT PARTY, AGENT AND EACH PURCHASER HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THE FINANCING DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED THEREBY AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY. EACH CREDIT PARTY, AGENT AND EACH PURCHASER ACKNOWLEDGES THAT
THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT IT HAS RELIED ON THE WAIVER IN ENTERING INTO
THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS, AND THAT IT WILL
CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS.
EACH CREDIT PARTY, AGENT AND EACH PURCHASER WARRANTS AND REPRESENTS
THAT IT HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH
LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS.

 


Section
12.13 Publication;
Advertisement.

 


(a) Publication. No Credit Party or
Subsidiary will directly or indirectly publish, disclose or
otherwise use in any public disclosure, advertising material,
promotional material, press release or interview, any reference to
the name, logo or any trademark of Agent, any Purchaser or any of
their respective Affiliates or any reference to this Agreement or
the financing evidenced hereby, in any case except (i) as required
by Law, subpoena or judicial or similar order, in which case the
applicable Credit Party or Subsidiary shall give such party prior
written notice of such publication or other disclosure or (ii) with
such party’s prior written consent.

 


(b) Advertisement. Each Purchaser
and each Credit Party hereby authorizes Agent to publish the name
of such Purchaser and Credit Party, the existence of the financing
arrangements referenced under this Agreement, the primary purpose
and/or structure of those arrangements, the amount of credit
extended under each facility, the title and role of each party to
this Agreement, and the total amount of the financing evidenced
hereby in any “tombstone”, comparable advertisement or
press release which Agent elects to submit for publication. In
addition, each Purchaser and each Credit Party agrees that Agent
and Purchasers may provide lending industry trade organizations
with information necessary and customary for inclusion in league
table measurements after the Closing Date.

 


Section
12.14 Counterparts; Signatures;
Integration.

 



This
Agreement and the other Financing Documents may be signed in any
number of counterparts and may be executed by facsimile or
electronic signature, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the
same instrument. Signatures by facsimile, electronic signature or
other electronic communication to any Financing Document shall bind
the parties to the same extent as would a manually executed
counterpart. This Agreement and the other Financing Documents
constitute the entire agreement and understanding among the parties
hereto and supersede any and all prior agreements and
understandings, oral or written, relating to the subject matter
hereof.


 




 

64







 






 

 


Section
12.15 No Strict
Construction.

 



The
parties hereto have participated jointly in the negotiation and
drafting of this Agreement and each of the other Financing
Documents. In the event an ambiguity or question of intent or
interpretation arises, this Agreement and each of the other
Financing Documents shall be construed as if drafted jointly by the
parties hereto and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of
any provisions of this Agreement or any other Financing
Document.

 


Section
12.16 USA PATRIOT Act
Notification.

 



Agent
(for itself and not on behalf of any Purchaser) and each Purchaser
hereby notifies Credit Parties that pursuant to the requirements of
the USA PATRIOT Act, it is required to obtain, verify and record
certain information and documentation that identifies Credit
Parties, which information includes the name and address of each
Credit Party and such other information that will allow Agent or
such Purchaser, as applicable, to identify Credit Parties in
accordance with the USA PATRIOT Act.

 


Section
12.17 Joint and Several
Liabilities.

 



The
obligations of the Credit Parties hereunder and under the other
Financing Documents are joint and several. Without limiting the
foregoing, reference is hereby made to Section 2 of the
Guarantee and Collateral Agreement, to which each of the Credit
Parties is subject.

 


Section
12.18 WF Intercreditor
Agreement.

 


This
Agreement and the Financing Documents are subject to the terms of
the WF Intercreditor Agreement. In the event of any conflict
between this Agreement or any other Financing Document and the WF
Intercreditor Agreement, the terms of the WF Intercreditor
Agreement shall prevail.

 


 

 


 








 

65








 






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

 


	
 

	


BORROWER

	
 


	
 

	
 

	
 


	
 

	


NOVUME SOLUTIONS, INC., a Delaware corporation, the
Borrower

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

By: /s/
Robert A.
Berman                                            



	
 


	
 

	

Name:
Robert A. Berman

	
 


	
 

	

Title:
Chief Executive Officer

	
 


	
 

	
 

	
 


	
 

	

Address:       
   14420 Albemarle Point Place, Suite 200

	
 


	
 

	

Chantilly, VA
20151

	
 


	
 

	

Facsimile:        
(XXX) XXX-XXXX

	
 


	
 

	

Email:              
XXXX@XXXX.com

	
 


	
 

	

Taxpayer
ID No.:       
81-5266334

	
 


	
 

	
 

	
 


	
 

	


Borrower’s Account Designation:

	
 


	
 

	
 

	
 


	
 

	


Name of
Bank:                
XXXXXXX

	
 


	
 

	

ABA
No.:                         
XXXXXXX

	
 


	
 

	

Account
No.:                   
XXXXXXX

	
 


	
 

	

Account
Name:               
Novume Solutions Checking

	
 


	
 

	
 

	
 


	
 

	

With a
copy (which shall not constitute notice) to:


 


Latham
& Watkins LLP


505
Montgomery St., Suite 2000


San
Francisco, CA 94111


Attn:
Daniel Van Fleet


Facsimile:
1.415.395.8095


Email:
daniel.vanfleet@lw.com


 

	
 






 

 




 

66







 





 

 


	
 

	
 

	
 


	
 

	


GUARANTORS

	
 


	
 

	
 

	
 


	
 

	


REKOR RECOGNITION SYSTEMS, INC., a Delaware
corporation

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

By: /s/
Riaz
Latifullah                                            



	
 


	
 

	

Name:
Riaz Latifullah

	
 


	
 

	

Title:
Secretary

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	


KEYSTONE SOLUTIONS, LLC, a Delaware limited liability
company

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

By: /s/
Riaz
Latifullah                           



	
 


	
 

	

Name:
Riaz Latifullah

	
 


	
 

	

Title:
Secretary

	
 


	
 

	
 

	
 


	
 

	


AOC KEY SOLUTIONS, INC., a Delaware corporation

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

By: /s/
Riaz
Latifullah                                     



	
 


	
 

	

Name:
Riaz Latifullah

	
 


	
 

	

Title:
Secretary

	
 


	
 

	
 

	
 






 




 

67







 





 





	
 

	
 

	
 


	
 

	


GLOBAL TECHNICAL SERVICES, INC., a Texas limited liability
company

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

By: /s/
Kenny
Boner                          



	
 


	
 

	

Name:
Kenny Boner

	
 


	
 

	

Title:
President and Chairman

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	


GLOBAL CONTRACT PROFESSIONAL, INC., a Texas
corporation

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

By: /s/
Kenny
Boner                                



	
 


	
 

	

Name:
Kenny Boner

	
 


	
 

	

Title:
President and Chairman

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	


OPENALPR SOFTWARE SOLUTIONS, LLC, a Delaware limited
liability Company

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

By: /s/
Rod
Hillman                          



	
 


	
 

	

Name:
Rod Hillman

	
 


	
 

	

Title:
President

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	


FIRESTORM HOLDINGS, LLC, a Delaware limited liability
company

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

By: /s/
Riaz
Latifullah                                 



	
 


	
 

	

Name:
Riaz Latifullah

	
 


	
 

	

Title:
Secretary

	
 


	
 

	
 

	
 






 




 

68







 





 

 

 


	
 

	
 

	
 


	
 

	


FIRESTORM SOLUTIONS, LLC, a Delaware limited liability
company

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

By: /s/
Riaz
Latifullah                                            



	
 


	
 

	

Name:
Riaz Latifullah

	
 


	
 

	

Title:
Secretary

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	


FIRESTORM FRANCHISING, LLC, a Georgia limited liability
company

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

By: /s/
Riaz
Latifullah                       



	
 


	
 

	

Name:
Riaz Latifullah

	
 


	
 

	

Title:
Secretary

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 







 




 

69








 






 


	
 

	


U.S. BANK, NATIONAL ASSOCIATION, as Agent

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

By: /s/
Allison
Lancaster-Poole             



	
 


	
 

	

Name:
Allison Lancaster-Poole

	
 


	
 

	

Title:
Vice President

	
 


	
 

	
 

	
 


	
 

	

U.S.
Bank National Association


Global
Corporate Trust


214 N.
Tryon St., Suite 2700Charlotte, North Carolina 28202


Attn:
Allison Lancaster-Poole


Phone:
(XXX) XXX-XXXX


Facsimile:
(XXX) XXX-XXXX


Email:
XXXX@XXXX.com

	
 


	
 

	
 

	
 


	
 

	

With a
copy to:


 


Alston
& Bird LLP


101 S.
Tryon St., Suite 4000


Charlotte,
NC 28280-4000


Attn:
Adam Smith, Esq.


Phone:
(704) 444-1127


Facsimile:
(704) 444-1957


Email:
adam.smith@alston.com


 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 







 




 

70








 






 


	
 

	


OPENALPR TECHNOLOGY, INC., as a Purchaser

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

By: /s/
Matthew Hill  


	
 


	
 

	

Name:
Matthew Hill      


	
 


	
 

	

Title:
President                



	
 


	
 

	
 

	
 


	
 

	

OpenALPR
Technology, Inc.


177
Huntington Ave #179700


Boston,
MA 02115


Attn:
Matthew Hill


Phone:
1-XXX-XXX-XXXX


Facsimile:
1-XXX-XXX-XXXX


Email:
XXXX@XXXX.com

	
 


	
 

	
 

	
 


	
 

	
 

	
 







 




 

71








 






 


	
 

	


CEDARVIEW OPPORTUNITIES MASTER FUND, LP, as
Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
Burton
Weinstein                                                                              


	
 

	

Name:
Burton
Weinstein                                                                              


	
 

	

Title:
Managing
Partner                                                                              


	
 

	
 


	
 

	

Cedarview
Opportunities Master Fund,


LPOne
Penn Plaza, 45th Floor


New
York, NY 10119


Facsimile:
(XXX) XXX-XXXX


Attention:
Joe Sheinman; Burton Weinstein; Josh Gottlieb


Email:
XXXX@XXXX.com; XXXX@XXXX.com; XXXX@XXXX.com


	
 

	
 


	
 

	

With a
copy (which shall not constitute notice) to:


 


K&L
Gates LLP


599
Lexington Avenue


New
York, NY 10022


Facsimile:
(212) 536-3901


Attention:
James Lee, Esq., Aaron S. Rothman, Esq.


Email:
James.Lee@klgates.com


Aaron.Rothman@klgates.com


 


	
 

	
 







 


 


 




 

72









 






 


	
 

	

XXXX
XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXX,
XX XXXXX


	
 

	

Attn:
XXXX
XXXXXX


Phone:
XXX-XXX-XXXX


Email:
XXXX@XXXX.net


 


	
 

	
 







 


 


 




 

73








 






 


	
 

	


XXXX XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Email:
XXXX@XXXX.com


Phone:
(XXX)XXX-XXXX


	
 

	
 







 


 


 




 

74








 






 


	
 

	

XXXX
XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Attn:
XXXX
XXXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 


 




 

75








 






 


	
 

	

XXXX
XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Attn:
XXXX
XXXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Fax:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.net







 


 


 


 




 

76








 






 


	
 

	


XXXX XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	

Title:
Managing
Member                                                                              


	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Attn:
XXXX
XXXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 


 




 

77








 






 


	
 

	


XXXX XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	

Title:
Authorized
Signatory                                                                              


	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Attn:
XXXX
XXXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 


 




 

78








 






 


	
 

	


XXXX XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Attn:
XXXX
XXXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 


 




 

79








 






 


	
 

	


XXXX XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Attn:
XXXX
XXXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 


 




 

80








 






 


	
 

	


XXXX XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX



	
 

	

Title:
Authorized
signatory                                                                              


	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Attn:
XXXX
XXXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 


 




 

81








 






 


	
 

	


XXXX XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Attn:
XXXX
XXXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 


 




 

82








 






 


	
 

	


XXXX XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Attn:
XXXX
XXXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 


 




 

83








 






 


	

 

	


XXXX
XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX
XX XXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 




 

84








 






 


	
 

	


XXXX XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	

Title:
Director                                                                              


	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.net







 


 


 




 

85








 






 


	
 

	


XXXX
XXXXXX, as Purchaser


	
 

	
 


	
 

	

By:
XXXX
XXXXXX, general partner


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	

Title:
Manager                                                                              


	
 

	
 


	
 

	

XXXXX


XXXXX,
XX XXXXX


Phone:
(XXX)XXX-XXXX


Facsimile:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 


	
 

	

With a
copy to:


 


XXXXX


XXXXX,
XX XXXXX


Phone:
(XXX)XXX-XXXX


Facsimile:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 







 


 


 




 

86








 






 


	
 

	


XXXX XXXXXX,
as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 




 

87








 






 


	
 

	


XXXX XXXXXX,
as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 




 

88








 






 


	
 

	


XXXX XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 




 

89








 






 


	
 

	


XXXX XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Attn:
XXXX
XXXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 




 

90








 






 


	
 

	

XXXX
XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

XXXXX


	
 

	

XXXXX,
XX XXXXX


	
 

	

Attn:
XXXX
XXXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 




 

91








 






 


	
 

	


XXXX XXXXXX,
as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	
 


	
 

	

Attn:
XXXX
XXXXXX


	
 

	

Phone:
(XXX)XXX-XXXX


	
 

	

Facsimile:
(XXX)XXX-XXXX


	
 

	

Email:
XXXX@XXXX.com







 


 


 




 

92








 






 


	
 

	


XXXX XXXXXX, as Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                 


	
 

	

Name:
XXXX
XXXXXX


	
 

	

Title:
Managing
Member       



	
 

	
 


	
 

	

XXXXX


Phone:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 


	
 

	

With a
copy to:


 


XXXXX


Phone:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 







 


 


 




 

93








 






 


	
 

	


XXXX XXXXXX,
as Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	

XXXXX


Phone:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 


	
 

	

With a
copy to:


 


Email:
XXXX@XXXX.com


	
 

	
 







 


 


 




 

94








 






 


	
 

	


XXXX XXXXXX, as Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	

Title:
Trustee                                                                              


	
 

	
 


	
 

	

XXXXX


Attn:
XXXX
XXXXXX


Phone:
(XXX)XXX-XXXX


Facsimile:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 







 


 


 




 

95








 






 


	
 

	

XXXX
XXXXXX, as Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	

Title:
Authorized
Signatory                                                                              


	
 

	
 


	
 

	

XXXXXXXXXX,
XX XXXXX


Attn:
XXXX
XXXXXX


Phone:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 









 


 


 




 

96








 






 


	
 

	


XXXX XXXXXX, as Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	

Title:
Authorized
Signatory                                                                              


	
 

	
 


	
 

	

XXXXX


XXXXX,
XX XXXXX


Attn:
XXXX
XXXXXX


Phone:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 







 


 


 




 

97








 






 


	
 

	


XXXX XXXXXX, as Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX       



	
 

	

Name:
XXXX
XXXXXX        



	
 

	

Title:
Trustee                                                                  




	
 

	
 


	
 

	

XXXXX


XXXXX,
XX XXXXX


Attn:
XXXX
XXXXXX


Phone:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 







 


 


 




 

98








 






 


	
 

	


XXXX XXXXXX, as Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX             


	
 

	

Name:
XXXX
XXXXXX                         


	
 

	

Title:
Member                                                                              


	
 

	
 


	
 

	

XXXXX


XXXXX,
XX XXXXX


Phone:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 


	
 

	

With a
copy to:


 


XXXXX


XXXXX,
XX XXXXX


Attn:
XXXX
XXXXXX


Email:
XXXX@XXXX.com


	
 

	
 







 


 


 




 

99








 






 


	
 

	


XXXX
XXXXXX, as Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	

Title:
Principal                                                                              


	
 

	
 


	
 

	

XXXXX


XXXXX,
XX XXXXX


Phone:
(XXX)XXX-XXXX


Facsimile:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 







 


 


 




 

100








 






 


	
 

	


XXXX
XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	

Title:
Authorized
signatory                                                                              


	
 

	
 


	
 

	

XXXXX


XXXXX,
XX XXXXX


Attn:
XXXX
XXXXXX


Phone:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 







 


 


 




 

101








 






 


	
 

	


XXXX
XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	

XXXXX


XXXXX,
XX XXXXX


Attn:
XXXX
XXXXXX


Phone:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 







 


 


 




 

102








 






 


	
 

	


XXXX
XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX            


	
 

	

Name:
XXXX
XXXXXX  



	
 

	
 


	
 

	

XXXXXXXXXX,
XX XXXXX


Attn:
XXXX
XXXXXX


Phone:
(XXX)XXX-XXXX


	
 

	
 







 


 


 




 

103








 






 


	
 

	


XXXX
XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	

XXXXX


XXXXX,
XX XXXXX


Attn:
XXXX
XXXXXX


Phone:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 







 


 


 




 

104








 






 


	
 

	


XXXX
XXXXXX, as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	

Phone:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 







 


 


 




 

105








 






 


	
 

	


XXXX XXXXXX,
as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	

Phone:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 







 


 


 




 

106








 






 


	
 

	


XXXX XXXXXX,
as a Purchaser


	
 

	
 


	
 

	
 


	
 

	

By: /s/
XXXX
XXXXXX                                                                             




	
 

	

Name:
XXXX
XXXXXX                                                                             




	
 

	
 


	
 

	

XXXXX


XXXXX,
XX XXXXX


Phone:
(XXX)XXX-XXXX


Email:
XXXX@XXXX.com


	
 

	
 







 


 




 

107








 







ANNEXES


 



ANNEXES


 



Annex A - Definitions








 


 


 


 




 

108








 







Annex A

 


 

 


Definitions

 


“Account Debtor” means
“account debtor”, as defined in Article 9 of the
UCC.

 


“Accounts” means
“accounts”, as defined in Article 9 of the
UCC.

 


“Acquisition” means any transaction
or series of related transactions for the purpose of or resulting,
directly or indirectly, in (a) the acquisition of all or a
substantial portion of the assets of a Person, or of all or a
substantial portion of any business or division of a Person,
(b) the acquisition of in excess of fifty percent (50%) of the
Capital Stock of any Person, or otherwise causing any Person to
become a Subsidiary, or (c) a merger or consolidation or any
other combination with another Person (other than a Person that is
already a Subsidiary).

 


“Additional Titled Agents” has the
meaning set forth in Section 11.15.

 


“Adjusted EBITDA” means, for any
period, the sum of (a) EBITDA for such period, plus (b) to the
extent a Permitted Acquisition has been consummated during such
period, Pro Forma EBITDA attributable to such Permitted Acquisition
(but only that portion of Pro Forma EBITDA attributable to the
portion of such period that occurred prior to the date of
consummation of such Permitted Acquisition), minus (c) with respect
to any sale or other disposition consummated during such period,
EBITDA (which may be a negative number) attributable to the
Subsidiary, profit centers, or other asset which is the subject of
such sale or other disposition from the beginning of such period
until the date of consummation of such sale or other
disposition.

 


“Affiliate” means, with respect to
any Person, (a) any Person that directly or indirectly controls,
through one or more intermediaries, such Person, (b) any Person
which is controlled by or is under common control with such
controlling Person and (c) each of such Person’s (other than,
with respect to any Purchaser, any Purchaser’s) officers or
directors (or Persons functioning in substantially similar roles)
and the spouses, parents, descendants and siblings of such
officers, directors, managers, partners or other Persons. As used
in this definition, the term “control” of a Person means the
possession, directly or indirectly, of the power to vote five
percent (5%) or more of any class of voting Capital Stock of such
Person or to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting
Capital Stock, by contract or otherwise. No Purchaser shall be or
shall be deemed to be an Affiliate solely on account of its
ownership of any Purchased Securities.

 


“Agent” means U.S. Bank National
Association in its capacity as paying agent and collateral agent
for the other Secured Parties hereunder and under the other
Financing Documents, as such capacity is established in, and
subject to the provisions of, Article 11, and its successors
and assigns in such capacity.

 


“Agreement” means this Note
Purchase Agreement, as the same may be amended, supplemented,
restated or otherwise modified from time to time.

 


“Anti-Terrorism Laws” means any
Laws relating to terrorism or money laundering, including Executive
Order No. 13224 (effective September 24, 2001), the
USA PATRIOT Act, the Laws comprising or implementing the Bank
Secrecy Act, and the Laws administered by OFAC.

 


“Approved Fund” means any Person
(other than a natural Person) which (a)(i) is (or will be)
engaged in making, purchasing, holding, or otherwise investing in
commercial loans, mezzanine notes, and similar extensions of credit
in its ordinary course of activities or (ii) temporarily warehouses
loans for any Purchaser and (b) is administered, advised or
managed by a Purchaser, an entity that administers, advises or
manages a Purchaser, or an Affiliate of either.

 


“Asset Disposition” means any sale,
lease, license, transfer, assignment or other consensual
disposition by any Credit Party or any Subsidiary of any asset, but
excluding (a) dispositions of Inventory or used, obsolete,
worn-out or surplus equipment, all in the Ordinary Course of
Business, (b) dispositions of cash and Cash Equivalents, (c) sales,
transfers and other dispositions of accounts receivable in
connection with the compromise, settlement or collection thereof in
the Ordinary Course of Business, (d) the lease, assignment,
license, sub-license or sub-lease of any real or personal property
in the Ordinary Course of Business to the extent the same does not
materially interfere with the business of any Credit Party or any
Subsidiary, (e) any disposition of property or assets or issuance
of Capital Stock by (i) a Credit Party to another Credit Party
(other than Borrower), (ii) a Subsidiary of a Credit Party to a
Borrower or to another Domestic Subsidiary of any Borrower or other
Credit Party or (iii) a Foreign Subsidiary that is not a Credit
Party to any first tier Foreign Subsidiary that is not a Credit
Party, (f) the granting, creation or existence of a Permitted Lien,
(g) the surrender or waiver of contractual rights or the
settlement, release or surrender of contract or tort claims in the
Ordinary Course of Business, (h) the abandonment or other
disposition of Intellectual Property that is, in the reasonable
good faith judgment of a Credit Party, as applicable, no longer
economically practicable or commercially desirable to maintain or
used or useful in the conduct of the business of such Credit Party,
(i) dispositions of assets to the extent that (i) such assets are
substantially contemporaneously exchanged for credit against the
purchase price of similar replacement assets or (ii) the proceeds
of such disposition are substantially contemporaneously applied to
the purchase price of such replacement assets, and (j) dispositions
of Inventory for fair market value.


 




 

109







 






 

 


“Assignment Agreement” means an
agreement substantially in the form of Exhibit C hereto.

 


“Bankruptcy Code” means Title 11 of
the United States Code entitled
“Bankruptcy”.

 


“Blocked Person” means any Person:
(a) listed in the annex to, or is otherwise subject to the
provisions of, Executive Order No. 13224, (b) 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, (c) with which any Purchaser is prohibited from
dealing or otherwise engaging in any transaction by any
Anti-Terrorism Law, (d) that commits, threatens or conspires to
commit or supports “terrorism” as defined in Executive
Order No. 13224; or (e) that is named, or owned or controlled
by, a “specially designated national” or “blocked
person” on the most current list published by OFAC or other
similar list.

 


“Board Observer” has the meaning
set forth in Section 4.10.

 


“Borrower” has the meaning set
forth in the Preamble to this Agreement.

 


“Business Day” means any day except
a Saturday, Sunday or other day on which commercial banks in New
York City are authorized or required by Law to close.

 


“Business Intellectual Property”
has the meaning set forth in Section 3.17.

 


“Capital Expenditures” means
expenditures made or liabilities incurred for the acquisition or
maintenance of any fixed assets or improvements (or of any
replacements or substitutions thereof or additions thereto) which
have a useful life of more than one year and which, in accordance
with GAAP, would be classified as capital expenditures. Capital
Expenditures shall include the total principal portion of Capital
Leases.

 


“Capital Lease” of any Person means
any lease of any property by such Person as lessee which would, in
accordance with GAAP, be required to be accounted for as a capital
lease on the balance sheet of such Person.

 


“Capital Stock” means any and all
shares, units, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person other than a corporation
and any and all warrants, rights or options to purchase any of the
foregoing, in each case whether voting or non-voting.


 




 

110







 






 

 


“Cash Equivalents” means (a) direct
obligations of the United States or any agency thereof, or
obligations guaranteed by the United States or any agency thereof
with a maturity date of no more than six (6) months from the date
of acquisition, (b) commercial paper with a duration of not more
than three (3) months rated at least A 1 by Standard &
Poor’s Ratings Service and P 1 by Moody’s Investors
Services, Inc., which is issued by a Person (other than any Credit
Party or an Affiliate of any Credit Party) organized under the laws
of any state of the United States or of the District of Columbia,
(c) time deposits, certificates of deposit and banker’s
acceptances with a duration of not more than six (6) months issued
by any office located in the United States of any bank or trust
company which is organized under the laws of the United States or
any state thereof, or is licensed to conduct a banking business in
the United States, and has capital, surplus and undivided
profits of at least $500,000,000 and which issues (or the parent of
which issues) certificates of deposit or commercial paper with a
rating described in clause (b) above, (d) repurchase agreements and
reverse repurchase agreements with a duration of not more than 30
days with respect to securities described in clause (a) above
entered into with an office of a bank or trust company meeting the
criteria specified in clause (c) above, (e) any money market
or mutual fund provided that substantially all
of the assets of such fund consist of the foregoing types of
investments, and provided that such fund has
assets in excess of $500,000,000 and has obtained from either
Standard & Poor’s Ratings Service or Moody’s
Investors Services, Inc. the highest rating obtainable for money
market funds in the United States, or (f) other short-term liquid
investments approved in writing by Required
Purchasers.

 


“Cedarview” means Cedarview Capital
Management, LP and its Affiliates.

 


“Cash Taxes” has the meaning set
forth in the definition of Fixed Charge Coverage
Ratio.

 


“CERCLA” means the Comprehensive
Environmental Response, Compensation and Liability Act of
1980.

 


“CFC” means a controlled foreign
corporation within the meaning of Section 957 of the
Code.

 


“Change of Control” has the meaning
set forth in Section
8.1(j).

 


“Closing Checklist” means
Annex C in the
Disclosure Letter.

 


“Closing Date” means the date of
this Agreement.

 


“Closing Date Acquisition” has the meaning set
forth in the Recitals to this Agreement.

 


“Closing Date Acquisition
Agreement” has the meaning set forth in the Recitals
to this Agreement.

 


“Closing Date Acquisition
Documents” means the Closing Date Acquisition
Agreement, and all agreements, documents and instruments executed
and/or delivered pursuant thereto or in connection
therewith.

 


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

 


“Collateral” means all property,
now existing or hereafter acquired, mortgaged or pledged to, or
purported to be subjected to a Lien in favor of, Agent, for the
benefit of the Secured Parties, pursuant to the Security
Documents.

 


“Collateral Access Agreement” means
a landlord waiver, mortgagee waiver, bailee letter, or
acknowledgement agreement of any warehouseman, processor, lessor,
consignee, or other Person in possession of, having a Lien upon, or
having rights or interests in the Collateral, in each case, in form
and substance satisfactory to Agent.

 




 

111







 





 


“Commitment Annex” means
Annex B to this
Agreement.

 


“Compliance Certificate” means a
certificate, duly executed by a Responsible Officer of the
Borrower, appropriately completed and substantially in the form of
Exhibit D
hereto.

 


“Computation Period” means each
period of four consecutive Fiscal Quarters ending on the last day
of a Fiscal Quarter; provided, that the Computation
Period with respect to the Fixed Charge Coverage Ratio shall be (i)
two consecutive Fiscal Quarters for the period ending September 30,
2019, and (ii) three consecutive Fiscal Quarters for the period
ending December 31, 2019.

 


“Consolidated Net Income” means,
with respect to Borrower and its Subsidiaries for any period, the
consolidated net income (or loss) of Borrower and its Subsidiaries
for such period, excluding any gains or non-cash
losses from dispositions, any extraordinary gains or extraordinary
non-cash losses and any gains or non-cash losses from discontinued
operations; provided that, for the
avoidance of doubt, any consolidated net income (or loss)
attributable to any equity interest of third parties in
non-Wholly-Owned Subsidiaries shall be disregarded from the
calculation of Consolidated Net Income.

 


“Contingent Obligation” means, with
respect to any Person, any direct or indirect liability of such
Person: (a) with respect to any debt, lease, dividend or other
obligation of another Person if the purpose or intent of such
Person incurring such liability, or the effect thereof, is to
provide assurance to the obligee of such liability that such
liability will be paid or discharged, or that any agreement
relating thereto will be complied with, or that any holder of such
liability will be protected, in whole or in part, against loss with
respect thereto; (b) with respect to any undrawn portion of any
letter of credit issued for the account of such Person or as to
which such Person is otherwise liable for the reimbursement of any
drawing; (c) under any Swap Contract, to the extent not yet due and
payable; (d) to make take-or-pay or similar payments if required
regardless of nonperformance by any other party or parties to an
agreement; or (e) for any obligations of another Person pursuant to
any agreement to purchase, repurchase or otherwise acquire any
obligation or any property constituting security therefor, to
provide funds for the payment or discharge of such obligation or to
preserve the solvency, financial condition or level of income of
another Person. The amount of any Contingent Obligation shall be
equal to the amount of the obligation so guaranteed or supported or
for which the applicable Person is otherwise contingently liable
and, if not a fixed and determinable amount, the maximum amount so
guaranteed or supported or for which such Person is otherwise
contingently liable.

 


“continuing” means, with respect to
any default or event of default, that it has not been remedied,
cured or waived.

 


“Controlled Group” means all
members of a group of corporations and all members of a group of
trades or businesses (whether or not incorporated) under common
control which, together with a Borrower, are treated as a single
employer under Section 414(b) or (c) of the Code or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code,
under Section 414(m) or (o) of the Code.

 


“Credit Party” means each Borrower
and each Guarantor; and “Credit Parties” means all such
Persons, collectively.

 


“Custodial Agreement” means that
certain Disbursement and Custodial Agreement dated as of February
26, 2019, by and between Borrower and U.S. Bank National
Association, as custodian.

 


“Debt” of a Person means at any
date, without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (c) all
obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the
Ordinary Course of Business (excluding “earnouts” or
similar payment obligations of such Person which are addressed in
clause (h) below), (d) all Capital Leases of such Person, (e) all
non-contingent obligations of such Person to reimburse any bank or
other Person in respect of amounts paid under a letter of credit,
banker’s acceptance or similar instrument,
(f) Disqualified Stock, (g) all obligations secured by a Lien
on any asset of such Person, whether or not such obligation is
otherwise an obligation of such Person, (h) “earnouts”
and similar payment obligations of such Person, which shall be
valued in accordance with GAAP, (i) all principal outstanding under
any synthetic lease, off-balance sheet loan or similar financing
product, and (j) all Debt of others Guaranteed by such Person.
Without duplication of any of the foregoing, Debt of Credit Parties
shall include any and all Notes.


 




 

112







 






 

 


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


 


“Disclosure Letter” means that
certain Disclosure Letter, dated as of the date hereof, delivered
by the Credit Parties to the Agent.


 


“Disqualified Stock” means with
respect to any Person, any Capital Stock which by its terms (or by
the terms of any security into which it is convertible or for which
it is exchangeable at the option of the holder) or upon the
happening of any event: (a) matures or is mandatorily redeemable
(other than redeemable only for Capital Stock of such Person which
is not itself Disqualified Stock) pursuant to a sinking fund
obligation or otherwise; (b) is convertible or exchangeable at the
option of the holder for Debt or Disqualified Stock (excluding
Capital Stock which is convertible or exchangeable solely at the
option of a Credit Party); or (c) is mandatorily redeemable or must
be purchased for cash or Cash Equivalents upon the occurrence of
certain events or otherwise, in whole or in part; in each case
prior to the date that is 180 days after the final scheduled
maturity date for the Notes, in each case, valued at, in the case
of redeemable preferred Capital Stock, the greater of the voluntary
liquidation preference and the involuntary liquidation preference
of such Stock plus accrued and unpaid dividends.

 


“Domestic Subsidiary” means a
Subsidiary organized, incorporated or otherwise formed under the
laws of the United States or any state thereof, other than any such
Subsidiary that has no assets (other than de minimis amounts) other
than the Capital Stock or other equity interests of Foreign
Subsidiaries that are CFCs.

 


“EBITDA” means, for any
period:

 


(a)           Consolidated
Net Income for such period, plus

 


(b)           in
each case solely to the extent deducted in determining such
Consolidated Net Income for such period but without
duplication:

 


(i)           Interest
Expense,

 


(ii)           income
tax expense,

 


(iii)           depreciation
and amortization,

 


(iv)           one
time non-recurring expenses approved by Required Purchasers, in
their sole discretion, in an amount not to exceed $250,000 for any
Computation Period,

 


(v)           transaction
expenses incurred in connection with the transactions contemplated
under this Agreement and the Related Transactions consummated on or
prior to the Closing Date,

 


(vi)           transaction
fees and expenses incurred in connection with any amendment,
modification or waiver in respect of this Agreement or any other
Financing Document,

 


(vii)           fees
paid to Agent or any Purchaser pursuant to this
Agreement,

 


(viii)           all
non-cash losses or expenses (or minus non-cash income or gain),
excluding any non-cash loss or expense (A) that is an accrual of a
reserve for a cash expenditure or payment to be made, or
anticipated to be made, in a future period or (B) relating to a
write-down, write off or reserve with respect to accounts and
inventory,

 


(ix)           one-time,
non-recurring fees and expenses incurred in connection with the
consummation of Permitted Acquisitions, to the extent actually
consummated.

 


“Eligible Assignee” means (a) a
Purchaser, (b) an Affiliate of a Purchaser, (c) an Approved Fund,
and (d) any other Person (other than a natural person) approved by
Agent (such approval not to be unreasonably withheld); provided that notwithstanding
the foregoing, “Eligible Assignee” shall not include a
Credit Party or any Affiliate of a Credit Party that was not a
Purchaser on the Closing Date, or any direct competitor of a Credit
Party.

 


“Environmental Laws” means any and
all Laws relating to the environment or the effect of the
environment on human health or to emissions, discharges or releases
of pollutants, contaminants, Hazardous Materials or wastes into the
environment, including ambient air, surface water, ground water or
land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Materials or wastes
or the clean up or other remediation thereof.


 




 

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“ERISA” means the Employee
Retirement Income Security Act of 1974.

 


“ERISA Plan” means any
“employee benefit plan”, as such term is defined in
Section 3(3) of ERISA (other than a Multiemployer Plan), which
a Credit Party or any Subsidiary maintains, sponsors or contributes
to, or, in the case of an employee benefit plan which is subject to
Section 412 of the Code or Title IV of ERISA, to which a
Credit Party or any Subsidiary or any member of the Controlled
Group may have any liability, including any liability by reason of
having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five
years, or by reason of being deemed to be a contributing sponsor
under Section 4069 of ERISA.

 


“Event of Default” has the meaning
set forth in Section 8.1.

 


“Exchange Act” means the Securities
Exchange Act of 1934, as amended, or any similar federal statute,
and the rules and regulations thereunder as the same shall be in
effect at the time.

 


“Excluded Subsidiary” means any
Subsidiary that (a) is a CFC, (b) all or substantially all of the
assets of which consist, directly or indirectly, of stock of or
indebtedness of one or more Subsidiaries, each of which are CFCs,
(c) is a direct or indirect Subsidiary of a CFC or a Subsidiary
described in (b), or (d) if such Subsidiary made a guarantee or
pledge, such guarantee or pledge would constitute an investment in
“United States property” by a CFC within the meaning of
Sections 956 and 957 of the Code (or any similar law or regulation
in any applicable jurisdiction), or otherwise would result in a
material adverse tax consequence to a Credit Party, as reasonably
determined by Borrower (in consultation with Agent).

 


“Excluded Taxes” has the meaning set forth in
Section 10.1(a).

 


“Exempt Accounts” means,
collectively, (a) payroll accounts, (b) tax withholding accounts,
(c) employee benefit accounts and (d) escrow accounts.

 


“Existing WF Debt” means all Debt
at any time outstanding under the Existing WF Debt
Agreements.

 


“Existing WF Debt Agreements” means
that certain (i) Account Purchase Agreement, dated as of December
12, 2017, by and between AOC Key Solutions, Inc. and Wells Fargo
Bank, N.A.; (ii) Bank Products Supplement to Account Purchase
Agreement, dated as of November 30, 2017, by and between AOC Key
Solutions, Inc. and Wells Fargo Bank, N.A.; (iii) Ancillary
Agreements Supplement, dated as of November 30, 2017, by and
between AOC Key Solutions, Inc. and Wells Fargo Bank, N.A.; (iv)
General Continuing Guaranty, dated as of December 4, 2017, by and
among Global Contract Professionals, Inc., Global Technical
Services, Inc., and Wells Fargo Bank, N.A.; (v) Account Purchase
Agreement, dated as of August 22, 2012, by and between Global
Contract Professionals, Inc. and Wells Fargo Bank, N.A.; (vi)
Account Purchase Agreement, dated as of August 22, 2012, by and
between Global Technical Services, Inc. and Wells Fargo Bank, N.A.;
(vii) General Continuing Guaranty, dated as of November 30, 2017,
by and among AOC Key Solutions, Inc., Keystone Solutions, LLC,
Novume Solutions, Inc., and Wells Fargo Bank, N.A.; (viii) General
Security Agreement, dated as of December 6, 2017, by and among
Global Contract Professionals, Inc., Global Technical Services,
Inc., and Wells Fargo Bank, N.A.; and (ix) General Security
Agreement, dated as of November 30, 2017, by and among AOC Key
Solutions, Inc., Keystone Solutions, LLC, Novume Solutions, Inc.,
and Wells Fargo Bank, N.A.; in each case as in effect on the date
hereof or as amended from time to time in accordance with the terms
of this Agreement.

 


“Extraordinary Receipt” means any cash received by or paid
to or for the account of any Credit Party (or paid to or for the
account of any equity holder of any Credit Party in connection with
any tax refund or indemnification claim (including representations
and warranties insurance payments), purchase price adjustment or
working capital adjustment, in each case, pursuant to the Closing
Date Acquisition Agreement) not in the ordinary course of business
(and not consisting of proceeds described in any of Section 2.3(b), (c) or (d), including, but not limited
to, tax refund, purchase price and other monetary adjustments made
in connection with the Operative Documents and/or indemnification
payments (including representations and warranties insurance
payments) made in connection with the Operative
Documents.

 


“FATCA” means 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 and any applicable
agreements entered into pursuant to Section 1471(b)(1) of the Code,
and any applicable intergovernmental agreements with respect to the
foregoing (together with any law implementing such
agreements).


 




 

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“FCPA” means the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and
regulations thereunder.

 


“Financing Documents” means this
Agreement, the Disclosure Letter, any Notes, the Warrants, the
Security Documents, the Custodial Agreement, any subordination or
intercreditor agreement (or terms or provisions, as applicable)
pursuant to which any Debt and/or any Liens securing such Debt is
considered Subordinated Debt and the Liens securing the Obligations
and all other documents, instruments and agreements contemplated
herein or thereby and heretofore executed, executed concurrently
herewith or executed at any time and from time to time hereafter,
as any or all of the same may be amended, supplemented, restated or
otherwise modified from time to time.

 


“Fiscal Quarter” means a fiscal
quarter of Borrower, ending on March 31, June 30, September 30 or
December 31 of each calendar year.

 


“Fiscal Year” means a fiscal year
of Borrower, ending on December 31 of each calendar
year.

 


“Fixed Charge Coverage Ratio”
means, for any Computation Period, the ratio of (a) the total
for such period of Adjusted EBITDA minus the sum, without
duplication, of (i) all income taxes paid or payable in cash and
Permitted Tax Distributions made (without duplication), in each
case, by Borrower and its Subsidiaries, plus (ii) all Unfinanced
Capital Expenditures, plus (iii) [reserved], to (b) the sum for such
period of (i) Interest Expense accrued for such Computation
Period and paid or payable in cash at any time by Borrower and its
Subsidiaries, plus (ii) required payments of principal of Debt
(including the Notes and the Existing WF Debt but excluding any revolving
loans); provided,
however, that in
the case of any Permitted Acquisition, the deductions from Adjusted
EBITDA described in clause (a) above and the items described in
clause (b) above shall, in each case, be excluded from this
calculation to the extent they pertain to the Target of such
Permitted Acquisition prior to the date such Permitted Acquisition
was consummated.

 


“Foreign Government Benefit Plan”
has the meaning set forth in Section 3.14(c).

 


“Foreign Purchaser” means any
Purchaser that is not a “United States person” as
defined in Code Section 7701(a)(30).

 


“Foreign Plan” has the meaning set
forth in Section
3.14(c).

 


“Foreign Subsidiary” means any
Subsidiary other than a Domestic Subsidiary.

 


“GAAP” means generally accepted
accounting principles set forth from time to time in the opinions
and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority
within the United States accounting profession), which are
applicable to the circumstances as of the date of
determination.

 


“Governing Body” shall mean the
board of directors, board of managers, board of representatives,
board of advisors or similar governing or advisory body of any
Credit Party or any of its Subsidiaries or parent
entities.

 


“Governmental Authority” means any
nation or government, any state or other political subdivision
thereof, and any agency, department or Person exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government and any corporation or other Person owned
or controlled (through stock or capital ownership or otherwise) by
any of the foregoing, whether domestic or foreign.


 




 

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“Guarantee” by any Person means any
obligation, contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such
Person (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether
arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take or
pay, or to maintain financial statement conditions or otherwise) or
(b) entered into for the purpose of assuring in any other manner
the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in
whole or in part), provided that the term
Guarantee shall not include endorsements for collection or deposit
in the Ordinary Course of Business. The term
“Guarantee” used as a verb has a corresponding
meaning.

 


“Guarantee and Collateral
Agreement” means the Guarantee and Collateral
Agreement dated as of the Closing Date by and among Credit Parties
and Agent, as the same may be amended, supplemented, restated or
otherwise modified from time to time.

 


“Guarantor” means each Person
designated as a “Guarantor” on the signature pages
hereof (including each Subsidiary of the Borrower), each other
Person joining this Agreement and the Guarantee and Collateral
Agreement as a “Guarantor”, and each Person who
executed any other document as a guarantor of all or any portion of
the Obligations, but excluding, in each instance, any Person that
is an Excluded Subsidiary and any Immaterial Subsidiary; and
“Guarantors” means all of such Persons.

 


“Hazardous Materials” means (a) any
“hazardous substance” as defined in CERCLA, (b) any
“hazardous waste” as defined in RCRA, (c) asbestos, (d)
polychlorinated biphenyls, (e) petroleum, its derivatives, by
products and other hydrocarbons, (f) toxic mold and (g) any other
pollutant, toxic, radioactive, caustic or otherwise hazardous
substance regulated under Environmental Laws.

 


“Hazardous Materials Contamination”
means contamination (whether now existing or hereafter occurring)
of the improvements, buildings, facilities, personalty, soil,
groundwater, air or other elements on or of the relevant property
by Hazardous Materials, or any derivatives thereof, or on or of any
other property as a result of Hazardous Materials, or any
derivatives thereof, generated on, emanating from or disposed of in
connection with the relevant property.

 


“Immaterial Subsidiary” means each
Subsidiary of a Credit Party that is a dormant entity that has no
significant assets or operations. The Immaterial Subsidiaries of
the Credit Parties as of the Closing Date are set forth on
Schedule A-1 in the
Disclosure Letter.

 


“Indemnified Taxes” means Taxes,
other than Excluded Taxes.

 


“Indemnitees” has the meaning set
forth in Section 9.2.

 


“Intellectual Property” means, with
respect to any Person, all patents, trademarks, service marks,
logos and other business identifiers, trade names, trade styles,
trade dress, copyrights, proprietary know-how, processes, computer
software and all registrations, applications and licenses therefor,
used in or necessary for the conduct of business by such
Person.

 


“Interest Expense” means for any
period the consolidated interest expense of Borrower and its
Subsidiaries for such period (including all imputed interest on
Capital Leases).

 


“Inventory” has the meaning given
to such term in the UCC.

 


“Investment” means (a) any
investment in any Person, whether by means of acquiring (whether
for cash, property, services, Capital Stock or otherwise), making
or holding Debt securities, Capital Stock, capital contributions,
loans, time deposits, advances, Guarantees or otherwise and (b) any
other items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP. The amount of any
Investment shall be the original cost of such Investment plus the
cost of all additions thereto, without any adjustments for
increases or decreases in value, or write-ups, write-downs or
write-offs with respect thereto.


 




 

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“Laws” means any and all federal,
state, local and foreign statutes, laws, judicial decisions,
regulations, guidances, guidelines, ordinances, rules, judgments,
orders, decrees, codes, injunctions, permits, concessions, grants,
franchises, governmental agreements and governmental restrictions,
whether now or hereafter in effect.

 


“Purchaser” means each of (a) each
Person party hereto in its capacity as a Purchaser, (b) each
Eligible Assignee that becomes a party hereto pursuant to
Section 12.6,
and (c) the respective successors and assigns of all of the
foregoing, and “Purchasers” means all of the
foregoing.

 


“Lien” means, with respect to any
asset, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, or any other type of preferential
arrangement that has the practical effect of creating a security
interest, in respect of such asset.

 


“Liquidity” means, as of any date
of determination, the sum of (i) cash and Cash Equivalents of the
Borrower and its Subsidiaries and (ii) availability for
“Advances” under the Existing WF Debt
Agreements.

 


“Litigation” means any claim,
investigation, action, suit or proceeding before any court,
mediator, arbitrator or Governmental Authority.

 


“London Banking Day” means any day
on which dealings in Dollar deposits are conducted by and between
banks in the London interbank Eurodollar market.

 


“Major Casualty Proceeds” means (a)
the aggregate insurance proceeds received in cash in connection
with one or more related events under any property insurance policy
or business interruption insurance policy or (b) any award or other
compensation received in cash with respect to any eminent domain,
condemnation of property or similar proceedings (or any transfer or
disposition of property in lieu of condemnation), if the amount of
such aggregate insurance proceeds or award or other compensation
exceeds $250,000, in each case, less (i) any out-of-pocket
fees, costs and expenses reasonably incurred by a Credit Party or
any Subsidiary in connection therewith, (ii) the amount of any Debt
secured by a Lien on the related asset and discharged from the
proceeds of such event, (iii) any taxes paid or reasonably
estimated by the applicable Credit Party or Subsidiary to be
payable by such Person as a consequence of such event (provided, that if the actual
amount of taxes actually paid is less than the estimated amount,
the difference shall immediately constitute Major Casualty
Proceeds) and (iv) the amount of any reserve established in
accordance with GAAP (provided that such reserved
amounts shall be Major Casualty Proceeds to the extent and at the
time of any reversal (without the satisfaction of any applicable
liabilities in a corresponding amount) of any such
reserve).

 


“Management” means each of Robert
Berman, James McCarthy, and Richard Nathan, and their respective
Affiliates (including, with respect to Mr. Berman, Avon Road
Partners, L.P.).

 


“Margin Stock” has the meaning
assigned thereto in Regulation U of the Federal Reserve
Board.

 


“Material Adverse Effect” means,
with respect to any event, act, condition or occurrence of whatever
nature (including any adverse determination in any litigation,
arbitration, or governmental investigation or proceeding), whether
singly or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences, whether
or not related, a material adverse change in, or a material adverse
effect upon, any of (a) the business, operations, properties,
prospects or condition (financial or otherwise) of the Credit
Parties, (b) the rights and remedies of Agent or Purchasers under
any Financing Document, or the ability of any Credit Party or any
Subsidiary to perform any of its obligations under any Financing
Document to which it is a party, (c) the legality, validity or
enforceability of any Financing Document, or (d) the existence,
perfection or priority of any security interest granted to Agent,
for the benefit of the Secured Parties, or to any Purchaser in any
Financing Document.

 


“Maturity Date” means the earlier
of (a) March 11, 2021, or (b) such earlier date that the Notes
become due and payable pursuant to Section 8.2.

 


“Maximum Lawful Rate” has the
meaning set forth in Section 2.4(d).

 


“Multiemployer Plan” means a
multiemployer plan, that is intended to meet the definition set
forth in Section 3(37) or 4001(a)(3) of ERISA, to which a
Credit Party or any member of the Controlled Group may have any
liability.

 


“Net Cash Proceeds” means, with
respect to any transaction or event, an amount equal to the cash
proceeds received by any Credit Party (or any Subsidiary) from or
in respect of such transaction or event (including cash proceeds of
any non-cash proceeds of such transaction), less (a) any
out-of-pocket expenses paid to a Person that are reasonably
incurred by such Credit Party or Subsidiary in connection
therewith, (b) the amount of any reserve established in accordance
with GAAP (provided
that such reserved amounts shall be Net Cash Proceeds to the extent
and at the time of any reversal (without the satisfaction of any
applicable liabilities in a corresponding amount) of any such
reserve), and (c) in the case of an Asset Disposition, the amount
of any Debt secured by a Lien on the related asset and discharged
with the proceeds of such Asset Disposition and any taxes paid or
reasonably estimated by the applicable Credit Party or Subsidiary
to be payable by such Person in respect of such Asset Disposition
(provided, that if
the actual amount of taxes paid is less than the estimated amount,
the difference shall immediately constitute Net Cash
Proceeds).


 




 

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“Note” or “Notes” has the meaning set forth
in Section 2.1(a).

 


“Note Commitment Percentage” means,
as to any Purchaser, the percentage, if any, set forth opposite
such Purchaser’s name on Annex B in the Disclosure Letter
under the column “Note Commitment
Percentage”.

 


“Obligations” means all loans
(including the Notes), debts, principal, interest (including any
interest that accrues after the commencement of any bankruptcy,
insolvency or other enforcement proceeding, regardless of whether
allowed or allowable in whole or in part as a claim in any such
proceeding), premiums (including, without limitation, the Premium
Percentage), obligations (including indemnification obligations),
fees, costs, expenses and other charges (including any costs, fees,
expenses or other charges that accrue after the commencement of any
bankruptcy, insolvency or other enforcement proceeding, regardless
of whether allowed or allowable in whole or in part as a claim in
any such proceeding), guaranties, and all covenants and duties of
any other kind and description owing by any Credit Party arising
out of, under, pursuant to, in connection with, or evidenced by
this Agreement or any of the other Financing Documents and
irrespective of whether for the payment of money, whether direct or
indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, and including all interest not paid
when due and all other expenses or other amounts that any Credit
Party is required to pay or reimburse by the Financing Documents or
by law or otherwise in connection with the Financing Documents.
Without limiting the generality of the foregoing, the Obligations
of Borrower under the Financing Documents include the obligation to
pay (a) the principal of the Notes, (b) interest accrued on the
Notes, (c) costs, fees, Premium Percentage, premiums, expenses and
other charges payable under this Agreement or any of the other
Financing Documents, and (d) indemnities and other amounts payable
by any Credit Party under any Financing Document. Notwithstanding
the foregoing, the Obligations shall not include any obligations
under any Warrant or any other equity instrument. Any reference in
this Agreement or in the Financing Documents to the Obligations
shall include all or any portion thereof and any extensions,
modifications, renewals, or alterations thereof, both prior and
subsequent to any bankruptcy, insolvency or other enforcement
proceeding.

 


“OFAC” means the U.S. Department of
Treasury Office of Foreign Assets Control.

 


“Operative Documents” means the
Financing Documents and the Closing Date Acquisition
Documents.

 


“Ordinary Course of Business”
means, in respect of any action or omission taken or not taken by
any Person, the ordinary course of such Person’s business, as
conducted by such Person in good faith and may include past
practice, industry standards or customs, requirements of law or as
may otherwise be determined from time to time in good faith by the
board of directors (or other governing body) of such
Person.

 


“Organizational Documents” means,
with respect to any Person other than a natural person, the
documents by which such Person was organized (such as a certificate
of incorporation, certificate of limited partnership or articles of
formation or organization, and including, without limitation, any
certificates of designation for preferred stock or other forms of
preferred equity) and the documents which relate to the internal
governance of such Person (such as by-laws, a partnership agreement
or an operating, limited liability company or members
agreement).

 


“Other Taxes” has the meaning set
forth in Section 10.1(b).

 


“Paid in Full” or
“Payment in
Full” means, with respect to any Obligations, (a)
the payment in full in cash of all such Obligations (other
than contingent indemnification obligations to the extent no
claim giving rise thereto has been asserted) and (b) the
termination of all obligations of Purchasers to provide any
additional credit or extensions or credit.

 


“Participant” has the meaning set
forth in Section 12.6(b).

 


“Participant Register” has the
meaning set forth in Section 12.6(b).

 


“Payment Notification” means a
written notification substantially in the form of Exhibit E hereto.

 


“PBGC” means the Pension Benefit
Guaranty Corporation and any Person succeeding to any or all of its
functions under ERISA.

 


“Pension Plan” means any ERISA Plan
that is subject to Section 412 of the Code or Title IV of
ERISA to which a Credit Party or any member of the Controlled Group
may have a liability.


 




 

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“Permits” has the meaning set forth
in Section 3.1.

 


“Permitted Acquisition” means any
Acquisition by (a) a Borrower of all or substantially all of
the assets of a Person, or of all or substantially all of any
business or division of a Person or (b) a Borrower of no less
than 100% of the Capital Stock of any Person, in each case and to
the extent that such Acquisition is approved by Agent and the
Required Purchasers in their sole discretion.

 


“Permitted Contest” means a contest
maintained in good faith by appropriate proceedings promptly
instituted and diligently conducted and with respect to which such
reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made; provided that compliance with
the obligation that is the subject of such contest is effectively
stayed during such challenge.

 


“Permitted Liens” means Liens
permitted pursuant to Section 5.2.

 


“Person” means any natural person,
corporation, limited liability company, professional association,
limited partnership, general partnership, joint stock company,
joint venture, association, trust, bank, trust company, land trust,
business trust or other organization, whether or not a legal
entity, and any Governmental Authority.

 


“Premium Percentage” has the
meaning set forth in Section 2.2.

 


“Pro Forma EBITDA” means, at any
time with respect to any Target acquired in a Permitted
Acquisition, the consolidated net income (loss) of such Target for
the then most recent twelve (12) month period for which financial
statements of such Target have been made available to Agent, plus,
to the extent deducted in determining such consolidated net income
(loss) for such period, and without duplication,
(a) consolidated interest expense of such Target (including
all imputed interest on Capital Leases), (b) consolidated
income tax expense and (c) depreciation and amortization, with
such consolidated net income (loss) adjusted to reflect
extraordinary expenses, increased costs, identifiable and
verifiable expense reductions and excess management compensation,
in each case to the extent applicable as calculated by the
Borrower and approved by Required Purchasers in their reasonable
discretion.

 


“Purchased Securities” has the
meaning set forth in Section 2.1(a).

 


“RCRA” means the Resource
Conservation and Recovery Act of 1976.

 


“Related Transactions” means the
transactions contemplated by the Operative Documents.

 


“Required Purchasers” means at any
time Purchasers holding more than fifty percent (50%) of the
aggregate Notes outstanding under this Agreement; provided that notwithstanding
the foregoing, Required Purchasers shall at all times include at
least one Affiliate of Cedarview; provided further that no Notes held by
Seller or its Affiliates shall be counted in the determination of
Required Purchaser.


 




 

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“Responsible Officer” means, with
respect to each Credit Party (including the Borrower) and Borrower,
any of the President, Chief Executive Officer, Chief Financial
Officer, Treasurer or any other officer of such Credit Party
reasonably acceptable to the Required Purchasers.

 


“Restricted Distribution” means as
to any Person (a) any dividend or other distribution (whether in
cash, Capital Stock or other property, assets) on any Capital Stock
in such Person (except those payable solely in Capital Stock of the
same class or conversion of Capital Stock) or (b) any payment by
such Person on account of the purchase, redemption, retirement,
defeasance, surrender, cancellation, termination or acquisition of
any Capital Stock in such Person or any claim respecting the
purchase or sale of any Capital Stock in such Person.

 


“Sanctions” has the meaning set
forth in Section 3.27.

 


“SEC Documents” has the meaning set
forth in Section
3.5.

 


“Secured Parties” means Agent and
each Purchaser.

 


“Securities Act” means the
Securities Act of 1933, as amended, or any similar federal statute,
and the rules and regulations thereunder as the same shall be in
effect at the time.

 


“Security Documents” means any
agreement, document or instrument executed concurrently herewith or
at any time hereafter pursuant to which one or more Credit Parties
or any other Person either (a) Guarantees payment or performance of
all or any portion of the Obligations and/or (b) provides, as
security for all or any portion of the Obligations, a Lien on any
of its assets in favor of Agent for its own benefit and the benefit
of the Secured Parties, including, without limitation, the
Guarantee and Collateral Agreement, as any or all of the same may
be amended, supplemented, restated or otherwise modified from time
to time.

 


“Seller” means each
“Seller” as such term is defined in the Closing Date
Acquisition Agreement.

 


“Solvent” means, with respect to
any Person, that such Person (a) owns and will own assets the
present fair saleable value of which are (i) greater than the total
amount of its liabilities (including Contingent Obligations) and
(ii) greater than the amount that will be required to pay the
probable liabilities of its then existing debts as they become
absolute and matured considering all financing alternatives and
potential asset sales reasonably available to it, (b) has capital
that is not unreasonably small in relation to its business as
presently conducted or after giving effect to any contemplated
transaction and (c) has not incurred, does not intend to incur and
does not believe that it will incur debts beyond its ability to pay
such debts as they become due.

 


“Stated Rate” has the meaning set
forth in Section 2.4(d).

 


“Subordinated Debt” means any
unsecured Debt of any Credit Party or any Subsidiary of any Credit
Party which is subordinated to the Obligations as to right and time
of payment and as to other rights and remedies thereunder and
having such other terms as are, in each case, satisfactory to the
Required Purchasers.

 







 

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“Subsidiary” means, with respect to
any Person, any other Person of which an aggregate of more than 50%
of the outstanding Capital Stock having ordinary voting power to
elect a majority of the board of directors (or other applicable
governing body) of such other Person is at the time, directly or
indirectly, owned legally or beneficially by such Person or one or
more Subsidiaries of such Person, or a combination thereof, or with
respect to which any such Person has the right to vote or designate
the vote of more than 50% of such Capital Stock whether by proxy,
agreement, operation of Law or otherwise. Unless the context
otherwise requires, each reference to a Subsidiary shall mean a
Subsidiary of any Credit Party.

 


“Swap Contract” means any
“swap agreement”, as defined in Section 101 of the
Bankruptcy Code, which includes, without limitation, rate caps
(including out-of-money caps) and collars.

 


“Target” means the Person, or
business or substantially all of the assets of a Person, acquired
in a Permitted Acquisition.

 


“Taxes” has the meaning set forth
in Section 10.1.

 


“UCC” means the Uniform Commercial
Code of the State of New York or of any other state the Laws of
which are required to be applied in connection with the perfection
of security interests in any Collateral.

 


“Unfinanced Capital Expenditures”
means, with respect to any period, an amount equal to:

 


(a)           Capital
Expenditures for such period, less

 


(b)           the
portion of Capital Expenditures financed during such period under
Capital Leases or other Debt (Debt, for this purpose, does not
include drawings under any revolving credit facility).

 


“United States” means the United
States of America.

 


“Warrants” has the meaning set
forth in Section
2.1(a).

 


“WF Borrowers” means AOC Key
Solutions, Inc., Global Technical Services, Inc. and Global
Contract Professionals, Inc.

 


“WF Intercreditor Agreement” means
that certain Intercreditor Agreement, dated as of the date hereof,
between Wells Fargo Bank, National Association and Agent, as
amended, restated, supplemented or otherwise modified from time to
time.

 


“Wholly-Owned Domestic Subsidiary”
means, a Wholly-Owned Subsidiary which is a Domestic
Subsidiary.

 


“Wholly-Owned Subsidiary” means,
with respect to any Person, any Subsidiary of such Person of which
all of the Capital Stock (other than, in the case of a Foreign
Subsidiary, directors’ qualifying shares, to the extent
legally required) are directly or indirectly owned and controlled
by such Person or one or more Wholly-Owned Subsidiaries of such
Person.

 

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