Case 2:18-cr-00422-SMB Document 1366-10 Filed 10/26/21 Page 1 of 66
`Case 2:18-cr-00422-SMB Document 1366-10 Filed 10/26/21 Page 1 of 66
`
`
`
`
`
`
`
`
`
`
`
`
`
`EXHIBIT H
`EXHIBIT H
`
`

`

`Case 2:18-cr-00422-SMB Document 1366-10 Filed 10/26/21 Page 2 of 66
`
`EXECUTION VERSION
`
`LOAN AGREEMENT
`(UGC Foreign Operations)
`
`This LOAN AGREEMENT (this "Agreement"), dated on or about April 22, 2015 (this
`"Effective Date"), is entered into by and between UGC TECH GROUP C.V., a Dutch limited
`partnership, ("Borrower"), and VERMILLION HOLDINGS, LLC, a Delaware limited liability
`company (""Original Lender").
`
`RECITALS:
`
`Borrower, as buyer, and Original Lender, as seller, are parties to that certain
`A.
`Purchase Agreement of even date herewith (the "PSA"), pursuant to which Original Lender has
`agreed to sell to Buyer, and Buyer has agreed to purchase from Original Lender, certain business
`operations, which consist of the ownership and operations of an online general classified
`advertising website (the "Acquired Business") for the Purchase Price.
`
`Borrower and its Affiliates (i) have substantial prior and successful experience in
`B.
`operating and managing the Acquired Business on behalf of Original Lender and its Affiliates,
`and (ii) are familiar with all aspects of the Acquired Business.
`
`Borrower desires to obtain the Loan from Original Lender to finance the payment
`C.
`of the Purchase Price, the payment and refinancing of the Cracker Loan, and all of the
`undertakings and obligations in the PSA and the Transaction Documents.
`
`In light of the foregoing, and in particular taking into account the substantial prior
`D.
`and successful experience of Borrower and its Affiliates in operating and managing the Acquired
`Business, Original Lender is willing to extend a loan to Borrower for the Purchase Price on the
`terms and conditions set forth herein.
`
`Immediately upon consummating the Loan, Original Lender will contribute the
`E.
`Loan to its wholly owned Subsidiary, Shearwater Investments, LLC, a Delaware limited liability
`company (the "New Lender") all of Original Lender's right, title and interest in and to the Loan,
`the PSA and the Transaction Documents. Upon such contribution. New Lender shall become the
`lender on the Loan, and from and after the time of such contribution, all references in this
`Agreement to "Lender" shall be deemed to refer to New Lender.
`
`The transactions under the PSA are contemplated to close immediately prior to
`F.
`the transactions under this Agreement. In that regard, the parties contemplate that (i) the closing
`of the PSA transactions will occur (and will be deemed to occur) as of 11 p.m. PST on the
`Effective Date, and (ii) the closing of the transactions under this Agreement will occur (and will
`be deemed to occur) as of 11:01 p.m. PST on the Effective Date..
`
`NOW THEREFORE, in consideration of the premises, and the mutual covenants and
`agreements set forth herein. Borrower agrees to borrow from Lender, and Lender agrees to lend
`to Borrower, subject to and upon the following terms and conditions:
`
`QB\156257.00002\34590879.8
`
`

`

`Case 2:18-cr-00422-SMB Document 1366-10 Filed 10/26/21 Page 3 of 66
`
`1.
`
`DEFINITIONS.
`
`AGREEMENTS:
`
`Defined Terms. For the purposes of this Agreement, the following capitalized
`1.1
`words and phrases shall have the meanings set forth below.
`
`"Amstel" shall mean Amstel River Holdings, LLC, a Delaware limited liability
`
`company.
`
`"Amstel Member Documents" shall mean (i) that Limited Liability Company
`Agreement of Amstel River Holdings, LLC, dated as of April 14, 2015, and (ii) that Limited
`Liability Company Membership Interest Restriction Agreement, dated on or about the date
`hereof.
`
`"Affiliate" of any Person shall mean (a) any other Person which, directly or
`indirectly, controls or is controlled by or is under common control with such Person, (b) any
`officer or director of such Person. A Person shall be deemed to be "controlled by" any other
`Person if such Person possesses, directly or indirectly, power to direct or cause the direction of
`the management and policies of such Person whether by contract, ownership of voting securities,
`membership interests or otherwise.
`
`"Additional Consideration Agreement" shall have the meaning set forth in Section
`
`3.1 hereof.
`
`"Atlantic" shall mean Atlantische Bedrijven, C.V., a Dutch limited partnership
`(English translation is Atlantic Holdings C.V.).
`
`"Atlantic Loan" shall have the meaning given to that term in the Atlantic Loan
`
`Agreement.
`
`"Atlantic Loan Agreement" shall mean that Loan Agreement (Backpage US
`Operations) of on or about even date between Lender and Atlantic.
`
`"Bankruptcy Code" shall mean the United States Bankruptcy Code, as now
`existing or hereafter amended.
`
`"Business Day" shall mean any day other than a Saturday, Sunday or a U.S.
`federal holiday.
`
`"Capital Expenditures" shall mean any expenditure or commitment to expend
`money for any purchase or other acquisition of any asset that has a useful life of more than one
`(1) year and that, in accordance with GAAP, would be classified as a fixed or capital asset on a
`consolidated balance sheet of Borrower and the Subsidiary Guarantors.
`
`"Capital Securities" shall mean, with respect to any Person, all shares, interests,
`units, participations or other equivalents (however designated, whether voting or non-voting) of
`such Person's capital, whether now outstanding or issued or acquired after the date hereof.
`
`QB\156257.00002\34590879.8
`
`2
`
`

`

`Case 2:18-cr-00422-SMB Document 1366-10 Filed 10/26/21 Page 4 of 66
`
`including common shares, preferred shares, membership interests in a limited liability company,
`limited or general partnership interests in a partnership or any other equivalent of such ownership
`interest.
`
`"Change in Control" shall mean the occurrence of any of the following events: (a)
`the Ferrer Parties shall cease to own and control, directly or indirectly, 100% of the outstanding
`Capital Securities of Borrower; (b) Borrower shall cease to own and control, directly or
`indirectly, 100% of each class of the outstanding Capital Securities of each Subsidiary Guarantor
`in existence as of the Effective Date and each Subsidiary of Borrower created after the Effective
`Date; (c) at any time following the creation of the Ferrer Trusts, Ferrer shall cease to be the sole
`trustee of each of the Ferrer Trusts, or (d) the granting by any of the Ferrer Parties or by April
`Ferrer, directly or indirectly, of a security interest in any ownership interest in Borrower, which
`could result in a change in the identity of the individuals or entities in control of Borrower. For
`the purpose hereof, the terms "control" or "controlling" shall mean the possession of the power to
`direct, or cause the direction of, the management and policies of Borrower by contract or voting
`of securities or ownership interests.
`
`"Change in Law": The occurrence, after the date of this Agreement, of any of the
`following: (a) the adoption or taking effect of any law, rule, regulation or treaty (including any
`rules or regulations issued under or implementing any existing law); (b) any change in any law,
`rule, regulation or treaty or in the administration, interpretation or application thereof by any
`Governmental Authority; or (c) the making or issuance of any request, guideline or directive
`(whether or not having the force of law) by any Governmental Authority.
`
`"Closing" and "Closing Date" shall have the meanings give to those terms in
`Section 2.2 hereof.
`
`"Closing Note" shall mean that promissory note of even date herewith for the
`stated principal amount of $77,005,592.50, maturing on the Maturity Date, duly executed by
`Borrower and payable to the order of Lender, together with any and all amendments,
`restatements, renewals, extensions, modifications and/or replacement notes with respect thereto,
`including without limitation any modification, amendment and/or restatement of the Closing
`Note to evidence the Post-Closing Adjustment.
`
`"Code": The Internal Revenue Code of 1986, as it may be amended or
`supplemented from time to time and the rules and regulations thereunder, as from time to time in
`effect.
`
`"Collateral" shall mean, severally and collectively, as the context requires, the
`Borrower Collateral and the Subsidiary Collateral, as those terms are defined in Section 5.1
`hereof.
`
`"Control Agreement(s)" shall mean, severally and collectively, as the context
`requires, each of the control agreements listed in Section 3.1 hereof and any other control
`agreement hereafter provided in connection with the Loan. Each Control Agreement shall be a
`tri-party deposit account, securities account or commodities account control agreement by and
`among the applicable Obligor, Lender and
`the depository, securities intermediary or
`
`QB\156257.00002\34590879.8
`
`3
`
`

`

`Case 2:18-cr-00422-SMB Document 1366-10 Filed 10/26/21 Page 5 of 66
`
`commodities intermediary, in form and substance satisfactory to Lender and in each instance
`providing to Lender both (a) "control" of such deposit account or securities or commodities
`account within the meaning of Articles 8 and 9 of the UCC, and (b) the right and ability to access
`electronically such deposit account or securities or commodities account for the sole purpose of
`monitoring electronically all account activity.
`
`"Cracker Loan" shall mean that loan from Remnant Corp. LLC to Borrower, as
`evidenced by a Promissory Note dated January 14, 2015 for the stated principal amount of (US)
`$2,655,000, and with a payoff amount as of the Effective Date, inclusive of interest of
`$50,592.50, of $2,705,592.50.
`
`"Debt" shall mean, as to any Person, without duplication, (a) all indebtedness of
`such Person; (b) all borrowed money of such Person (including principal, interest, fees and
`charges), whether or not evidenced by bonds, debentures, notes or similar instruments; (c) all
`obligations to pay the deferred purchase price of property or services; (d) all obligations,
`contingent or otherwise, with respect to the maximum face amount of all letters of credit
`(whether or not drawn), bankers' acceptances and similar obligations issued for the account of
`such Person, and all unpaid drawings in respect of such letters of credit, bankers' acceptances and
`similar obligations; (e) all indebtedness secured by any Lien on any property owned by such
`Person, whether or not such indebtedness has been assumed by such Person (provided, however,
`if such Person has not assumed or otherwise become liable in respect of such indebtedness, such
`indebtedness shall be deemed to be in an amount equal to the fair market value of the property
`subject to such Lien at the time of determination); (f) the aggregate amount of all capitalized
`lease obligations of such Person; (g) all contingent liabilities of such Person, whether or not
`reflected on its balance sheet; (h) [reserved]; (i) all Debt of any partnership of which such Person
`is a general partner; and (j) all monetary obligations of such Person under (i) a so-called
`synthetic, off-balance sheet or tax retention lease, or (ii) an agreement for the use or possession
`of property creating obligations that do not appear on the balance sheet of such Person but
`which, upon the insolvency or bankruptcy of such Person, would be characterized as the
`indebtedness of such Person (without regard to accounting treatment). Notwithstanding the
`foregoing. Debt shall not include trade payables and accrued expenses incurred by such Person
`in accordance with customary practices and in the ordinary course of business of such Person not
`to exceed, in the aggregate, $500,000.
`
`"Default Rate" shall have the meaning set forth in the Note.
`
`"Depreciation" shall mean the total amounts added to depreciation, amortization,
`obsolescence, valuation and other proper reserves, as reflected on a Person's financial statements
`and determined in accordance with GAAP, consistently applied.
`
`"Disability" shall mean, with respect to Ferrer, any Disability as that term is
`defined in the Employment Agreement.
`
`"Earn-out Agreement" shall have the meaning given to that term in the PSA.
`
`"EBITDA" shall mean, for any period with respect to Borrower on a consolidated
`basis, the sum for such period of: (i) Net Income, plus (ii) Interest Charges, plus (iii) all charges
`
`QB\ 156257.00002\34590879.8
`
`4
`
`

`

`Case 2:18-cr-00422-SMB Document 1366-10 Filed 10/26/21 Page 6 of 66
`
`against income for foreign, federal and state income Taxes, plus (iv) Depreciation, plus (iv) non­
`cash extraordinary losses and other non-cash expenses (including any impairment charges in
`accordance with Federal Accounting Standard Board (FASB) Rules 141 and 142 and any other
`non-cash charges in accordance with any FASB promulgation), minus (b) the sum for such
`period of: (i) extraordinary gains, (ii) interest income, and (iii) income or loss attributable to
`equity in any Affiliate or Subsidiary, in each case to the extent included in determining Net
`Income for such period.
`
`"Employee Plan" includes any pension, stock bonus, employee stock ownership
`plan, retirement, profit sharing, deferred compensation, stock option, bonus or other incentive
`plan, whether qualified or nonqualified, or any disability, medical, dental or other health plan,
`life insurance or other death benefit plan, vacation benefit plan, severance plan or other
`employee benefit plan or arrangement, including those pension, profit-sharing and retirement
`plans of such Person described from time to time in the financial statements of such Person and
`any pension plan, welfare plan. Defined Benefit Pension Plans (as defined in ERISA) or any
`multi-employer plan, maintained or administered by such Person or to which such Person is a
`party or may have any liability or by which such Person is bound.
`
`"Employment Agreement" shall mean that Employment Agreement between
`Ferrer, as employee, and Website Technologies LLC, as employer, of on or about even date
`herewith.
`
`"Environmental Laws" shall mean all present or future foreign, federal, state or
`local laws, statutes, common law duties, rules, regulations, ordinances and codes, together with
`all administrative or judicial orders, consent agreements, directed duties, requests, licenses,
`authorizations and permits of, and agreements with, any Governmental Authority, in each case
`relating to any matter arising out of or relating to public health and safety, or pollution or
`protection of the environment or workplace, including any of the foregoing relating to the
`presence, use, production, generation, handling, transport, treatment, storage, disposal,
`distribution, discharge, emission, release, threatened release, control or cleanup of any
`Hazardous Substance.
`
`"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
`amended from time to time, and the rules and regulations thereunder, as from time to time in
`effect.
`
`"Event of Default" shall mean any of the events or conditions which are set forth
`in Section 9 hereof.
`
`"Excess Cash Flow" shall mean, for any applicable period, measured as of the end
`of such period, the following sum:
`
`[all of the
`[EBITDA] for the applicable period minus
`following, to the extent paid in cash during such period: (i)
`Interest Charges paid during the period, (ii) Capital
`Expenditures paid during the period, (iii) income Taxes
`paid during the period by any Obligor, the holders of the
`
`QB\156257.00002\34590879.8
`
`5
`
`

`

`Case 2:18-cr-00422-SMB Document 1366-10 Filed 10/26/21 Page 7 of 66
`
`Capital Securities of any Obligor or by the beneficiaries of
`the Ferrer Primary Trust, which are the direct or indirect
`result of its ownership in Borrower, and (iv) principal
`payments on the Loan].
`
`"FCPA" shall mean the Foreign Corrupt Practices Act of 1977, as amended from
`time to time, and the rules and regulations thereunder, as from time to time in effect.
`
`"Ferrer" shall mean Carl A. Ferrer.
`
`"Ferrer Parties" shall mean, severally and collectively, Ferrer, Amstel, Kickapoo
`River Investments LLC, a Delaware limited liability company. Lupine Holdings, LLC, a
`Delaware limited liability company, CF Acquisitions LLC, a Delaware limited liability company,
`CF Holdings GP LLC, a Delaware limited liability company, and any Affiliates of any of the
`foregoing individuals or entities that at any time own any interest, direct or indirect, in Borrower;
`provided, however, that the Ferrer Parties shall not include April Ferrer. Further, from and after
`the creation of the Ferrer Trusts, the "Ferrer Parties" shall include the Ferrer Trusts.
`
`"Ferrer Primary Trust" shall mean the Primary Trust, as defined in and established
`pursuant to The Vicky Ferrer Family Trust Agreement or such trust that serves as the primary
`trust pursuant to the documentation hereafter created to establish the Ferrer Trust.
`
`"Ferrer Trusts" shall mean, collectively, the following trusts to be created after the
`date hereof, together with any other or different trusts to which Ferrer intends to convey any
`membership interest in Amstel, subject to the requirements of this Agreement: The Vicky Ferrer
`Family Trust Agreement, and the Primary Trust, the Divorce Trusts and the GST Exempt Trusts,
`all as to be defined in the The Vicky Ferrer Family Trust Agreement.
`
`"Fixed Charge Coverage Ratio" shall mean, for Borrower, together with the
`Subsidiary Guarantors, on a consolidated basis for the applicable measurement period, the ratio
`of (a) EBITDA for such period to (b) the sum of the Fixed Charges for such period.
`
`"Fixed Charges" shall mean, for Borrower, together with the Subsidiary
`Guarantors, on a consolidated basis for the applicable measurement period, the sum of (a) all
`regularly scheduled payments of principal on outstanding Debt, (b) Capital Expenditures, (c)
`Interest Charges, and (d) Taxes, in each case, actually paid in cash during such period.
`
`"GAAP" shall mean generally accepted accounting principles in the United States
`of America 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 U.S. accounting profession), which are
`applicable to the circumstances as of the date of determination; provided, however, that interim
`financial statements or reports shall be deemed in compliance with GAAP despite the absence of
`footnotes and fiscal year-end adjustments as required by GAAP.
`
`"Governmental Authority" shall mean any court, board, agency, commission,
`office, department, bureau, instrumentality or authority of any nature whatsoever or any
`
`QB\I56257.00002\34590879.8
`
`6
`
`

`

`Case 2:18-cr-00422-SMB Document 1366-10 Filed 10/26/21 Page 8 of 66
`
`governmental unit (foreign, federal, state, commonwealth, county, district, municipality, city or
`otherwise) whether now or hereafter in existence.
`
`"GuarantorCsV' shall mean, severally and collectively, as the context requires, the
`Ferrer Parties with respect to the Ferrer Guaranty, as defined in Section 3.1 hereof, the
`Subsidiary Guarantors with respect to the Subsidiary Guaranty, as defined in Section 3.1 hereof,
`the other Affiliates of Borrower that are party to the Other Affiliate Guaranty, as defined in
`Section 3.1 hereof, with respect to that Guaranty, and any other guarantor that hereafter provides
`a guaranty in connection with the Loan.
`
`"Guarantvfies)" shall mean, severally and collectively, as the context requires, the
`Ferrer Guaranty, the Subsidiary Guaranty, and the Other Affiliate Guaranty, as those terms are
`defined in Section 3.1 hereof, and any other guaranty hereafter provided in connection with the
`Loan.
`
`"Hazardous Substances" shall mean (a) any petroleum or petroleum products,
`radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde
`foam insulation, dielectric fluid containing levels of polychlorinated biphenyls, radon gas and
`mold; (b) any chemicals, materials, pollutant or substances defined as or included in the
`definition of "hazardous substances", "hazardous waste", "hazardous materials", "extremely
`hazardous substances", "restricted hazardous waste", "toxic substances", "toxic pollutants",
`"contaminants", "pollutants" or words of similar import, under any applicable Environmental
`Law; and (c) any other chemical, material or substance, the exposure to, or release of which is
`prohibited, limited or regulated by any Governmental Authority or for which any duty or
`standard of care is imposed pursuant to, any Environmental Law.
`
`"Indemnified PartvCies)" shall mean, severally and collectively, as the context
`requires, each of Lender and any parent corporation, Affiliate or Subsidiary of Lender, and each
`of their respective officers, directors, employees, attorneys and agents, and all of such parties and
`entities.
`
`"Intellectual Property" shall mean the collective reference to all rights, priorities
`and privileges relating to intellectual property, whether arising under United States, multinational
`or foreign laws or otherwise, including copyrights, patents, trade names, domain names, service
`marks and trademarks, and all registrations and applications for registration for any of the
`foregoing and all licensees thereof, technology, know-how and processes, and all rights to sue at
`law or in equity for any infringement or other impairment thereof, including the right to receive
`all proceeds and damages therefrom.
`
`"Interest Charges" shall mean, for any period, the sum of: (a) all interest, charges
`and related expenses payable with respect to that fiscal period to a lender (including Lender) in
`connection with borrowed money or the deferred purchase price of assets that are treated as
`interest in accordance with GAAP, consistently applied, plus (b) the portion of capitalized lease
`obligations with respect to that fiscal period that should be treated as interest in accordance with
`GAAP.
`
`QB\156257.00002\34590879.8
`
`7
`
`

`

`Case 2:18-cr-00422-SMB Document 1366-10 Filed 10/26/21 Page 9 of 66
`
`"Investment" shall mean, with respect to any Person, any investment in another
`Person, whether by acquisition of any debt or equity security, by making any loan or advance, or
`by becoming obligated with respect to a contingent liability in respect of obligations of such
`other Person.
`
`"IP License" shall mean that Intellectual Property License, dated of on or about
`even date herewith, between Backpage.com, LLC and Lender, pursuant to which Backpage.com,
`LLC has licensed certain software, trademarks, URL's and trade secrets, together with the
`sublicense issued thereunder from Lender to Borrower, and also together with any further
`sublicenses expressly allowed thereunder and granted in accordance therewith issued by
`Borrower to any Affiliates of Borrower.
`
`"Lender" shall mean New Lender and Original Lender, severally or collectively,
`as the context requires.
`
`"Liabilities" shall mean at all times all liabilities of such Person that would be
`shown as such on a balance sheet of such Person prepared in accordance with GAAP.
`
`"Lien" shall mean, with respect to any Person, any interest granted by such Person
`in any real or personal property, asset or other right owned or being purchased or acquired by
`such Person (including an interest in respect of a capital lease) which secures payment or
`performance of any obligation and shall include any mortgage, lien, encumbrance, title retention
`lien, charge or other security interest of any kind, whether arising by contract, as a matter of law,
`by judicial process or otherwise.
`
`"Loan" shall mean all amounts that may be advanced at any time, and from time
`to time, by Lender for the payment of any Obligations, as evidenced in any Note.
`
`"Loan Documents" shall mean each of the agreements, documents, instruments
`and certificates set forth in Section 3.1 hereof, and any and all such other instruments,
`documents, certificates and agreements from time to time executed and delivered by Borrower,
`the Guarantors or any of their Subsidiaries for the benefit of Lender in connection with the Loan
`or pursuant to any of the foregoing, and all amendments, restatements, supplements and other
`modifications thereto.
`
`"Material Adverse Effect" shall mean (a) a material adverse change in, or a
`material adverse effect upon, the assets, business, properties, prospects, condition (financial or
`otherwise) or results of operations of Borrower, Guarantors or any of their respective
`Subsidiaries, (b) a material impairment of the ability of any Obligor to perform any of the
`Obligations under any of the Loan Documents, or (c) a material adverse effect on (i) any
`substantial portion of the Collateral, (ii) the legality, validity, binding effect or enforceability
`against any Obligor of any of the Loan Documents, (iii) the perfection or priority of any Lien
`granted to Lender under any Loan Document, or (iv) the rights or remedies of Lender under any
`Loan Document.
`
`"Maturity Date" shall mean the earlier of (a) March 31, 2021, or (b) acceleration
`by Lender upon an Event of Default.
`
`QB\156257.00002\34590879.8
`
`8
`
`

`

`Case 2:18-cr-00422-SMB Document 1366-10 Filed 10/26/21 Page 10 of 66
`
`"Net Cash Proceeds" means, with respect to any event, (a) the cash proceeds
`actually received in respect of such event including (i) any cash received in respect of any non­
`cash proceeds (including any cash payments received by way of deferred payment of principal
`pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise,
`but excluding any interest payments), but only as and when received, (ii) any reduction in (or
`refund of) the amount of any applicable reserves, (iii) in the case of a casualty, insurance
`proceeds, and (iv) in the case of a condemnation or similar event, condemnation awards and
`similar payments, net of (b) the sum of (i) all fees and out-of-pocket expenses paid to third
`parties (other than Affiliates) in connection with such event, and (ii) in the case of a sale, transfer
`or other disposition of an asset (including pursuant to a sale and leaseback transaction or a
`casualty or a condemnation or similar proceeding), the amount of all payments made from such
`proceeds to repay Debt secured by such assets and required to be paid in connection with the
`sale, transfer or other disposition, in each case during the year that such event occurred or the
`next succeeding year and that are directly attributable to such event (as determined reasonably
`and in good faith by Lender). Further, with respect to an event of the nature described in item
`(b) of the definition of "Prepayment Event", the Net Cash Proceeds shall be further adjusted to
`exclude the portion of any proceeds, if any, that Lender, in its sole discretion, allows to be used
`for restoration or replacement of the subject property or asset.
`
`"Net Income" shall mean, with respect to a Person for any period, the net income
`(or loss) of such Person for such period as determined in accordance with GAAP, consistently
`applied, excluding any extraordinary gains and any gains from discontinued operations.
`
`"Non-Excluded Taxes" shall have the meaning set forth in Section 2A(a) hereof.
`
`"Note" shall mean, severally and collectively, as the context requires, each and
`every promissory note and other written evidence of indebtedness evidencing Borrower's
`obligation to repay the Loan, including, without limitation, (i) the Closing Note (including any
`modification, amendment and/or restatement of the Closing Note to evidence the Post-Closing
`Adjustment), (ii) any additional note to evidence the Post-Closing Adjustment, and (iii) any note
`or other documentation evidencing the additional Purchase Price required to be paid pursuant to
`the Earn-out Agreement, including without limitation, if applicable, the Additional Promissory
`Note (as defined in the Earn-out Agreement); together with any and all renewals, extensions,
`modifications or replacement notes with respect to any of the foregoing.
`
`"Obligations" shall mean the Loan, all indebtedness evidenced by the Note, all
`interest accrued thereon (including interest which would be payable as post-petition in
`connection with any bankruptcy or similar proceeding, whether or not permitted as a claim
`thereunder), any fees due Lender hereunder, any expenses incurred by Lender hereunder,
`including without limitation, all liabilities and obligations under this Agreement, under any other
`Transaction Document, and any and all other liabilities and obligations owed by the Obligors to
`Lender from time to time, howsoever created, arising or evidenced, whether direct or indirect,
`joint or several, absolute or contingent, now or hereafter existing, or due or to become due,
`together with any and all renewals, extensions, restatements or replacements of any of the
`foregoing.
`
`QB\I56257.00002\34590879.8
`
`9
`
`

`

`Case 2:18-cr-00422-SMB Document 1366-10 Filed 10/26/21 Page 11 of 66
`
`"ObligorfsV shall mean, severally and collectively, as the context requires,
`Borrower, Guarantors, any accommodation endorser, any third party pledgor, and any other party
`liable with respect to the Obligations. For purposes of Articles 5. 6 and 7 hereof, the term
`"Obligor" also shall be deemed to include the Subsidiaries of each Obligor.
`
`"OFAC" shall mean the U.S. Department of the Treasury's Office of Foreign
`Assets Control.
`
`"Ordinary Course" means, with respect to any Obligor, the ordinary course of
`such Obligor's business as conducted on the Closing Date and, as may be modified from time to
`time thereafter in the good faith, reasonable business judgment of such Obligor.
`
`"Organizational Identification Number" means, with respect to a Person, the
`organizational identification number assigned to such Person by the applicable Governmental
`Authority of the jurisdiction of organization of such Person.
`
`"Other Taxes" shall mean any present or future stamp or documentary Taxes or
`any other excise or property Taxes, charges or similar levies which arise from the execution,
`delivery, enforcement or registration of, or otherwise with respect to, this Agreement or any of
`the other Transaction Documents.
`
`"Permitted Liens" shall mean only (i) Liens granted to Lender; and (ii) the Lien of
`Taxes and assessments not past due or delinquent.
`
`"Person" shall mean any natural person, partnership, limited liability company,
`corporation, trust, joint venture, joint stock company, association, unincorporated organization,
`government or agency or political subdivision thereof, or other entity, whether acting in an
`individual, fiduciary or other capacity.
`
`"Pledge Agreement(s)" shall mean, severally and collectively, as the context
`requires, the Ferrer Pledge Agreement, the Amstel Pledge Agreement, the Kickapoo/Lupine
`Pledge Agreement, the Atlantic Pledge Agreement and the CF Pledge Agreement, as those terms
`are defined in Section 3.1 hereof, and any other pledge agreement hereafter provided in
`connection with the Loan.
`
`"Post-Closing Adjustment" shall mean the sum of (i) the Post-Closing Adjustment
`as that term is defined in the PSA, plus (ii) the amount of the Closing costs in connection with
`the Obligations that are funded by Lender.
`
`"Prepayment Event" means:
`
`any sale, transfer or other disposition (including pursuant to a sale
`(a)
`and leaseback transaction) of any property or asset of Borrower or any of its Subsidiaries
`outside the Ordinary Course; or
`
`any casualty or other insured damage to, or any taking under power
`(b)
`of eminent domain or by condemnation or similar proceeding of, any property or asset of
`Borrower or any of its Subsidiaries; or
`
`QB\156257.00002\34590879.8
`
`10
`
`

`

`Case 2:18-cr-00422-SMB Document 1366-10 Filed 10/26/21 Page 12 of 66
`
`the incurrence by Borrower or any of its Subsidiaries of any Debt,
`(c)
`other than Debt permitted hereunder; or
`
`any infusion of capital into Borrower or any other Obligor or any
`(d)
`Subsidiary of any Obligor pursuant to the issuance or sale of any Capital Securities
`(provided that the foregoing shall not limit the complete prohibition on the sale or
`issuance of such Capital Securities set forth in Section 7.6 hereof); or
`
`any sale of any of the Capital Securities of Borrow