Document


UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934


Date of report (Date of earliest event reported): April 30, 2018

http://api.tenkwizard.com/cgi/image?quest=1&rid=23&ipage=12222776&doc=4
Remark Holdings, Inc.

Delaware
 
001-33720
 
33-1135689
(State or other jurisdiction of incorporation)
 
(Commission File Number)
 
(IRS Employer Identification No.)
 
 
 
 
 
3960 Howard Hughes Parkway, Suite 900
Las Vegas, NV
 
89169
 
702-701-9514
(Address of principal executive offices)
 
(Zip Code)
 
(Registrant’s telephone number, including area code)
 
 
 
 
 
 
(Former name or former address, if changed since last report.)


Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

☐ Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange
Act.





Item 1.01
Entry into a Material Definitive Agreement.

On April 30, 2018, Remark Holdings, Inc. (“Remark”, “we”, “us” or “our”) entered into Amendment No. 4 and Waiver to Financing Agreement, dated as of the same date (the “Amendment”), to amend the Financing Agreement, dated as of September 24, 2015 (as amended, the “Financing Agreement”), between certain of our subsidiaries as borrowers (together with us, the “Borrowers”), certain of our subsidiaries as guarantors (the “Guarantors”), the lenders from time to time party thereto (the “Lenders”) and MGG Investment Group LP, in its capacity as collateral agent and administrative agent for the Lenders. The Amendment provides for, among other things, (i) reduction in the interest rate on the remaining amount outstanding under the Financing Agreement to three month LIBOR plus 8.5% per annum, (ii) extension of the maturity date under the Financing Agreement to September 30, 2020, (iii) modification of certain of our covenants under the Financing Agreement, including covenants regarding capital expenditures, minimum value of certain of our assets, and consolidated EBITDA of Vegas.com and its subsidiaries, (iv) increase in the amount we are permitted to invest in our non-U.S. subsidiaries operating our KanKan business (v) waiver by the Lenders of certain events of default under the Financing Agreement and (vi) prepayment by the Borrowers of $8.0 million principal amount outstanding and $3.5 million of exit fees under the Financing Agreement within 60 days following the date of the Amendment. In consideration for the Lenders’ entry into the Amendment, we also paid a closing fee of $412,500. The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, which is filed herewith as Exhibit 10.1 and incorporated herein by reference.


Item 8.01
Other Events.

On May 1, 2018, we issued a press release announcing the amendment of our financing agreement. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference


Item 9.01
Financial Statements and Exhibits.

(d)
Exhibits

Exhibit Number
 
Description
     
 






Signature

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
    
 
 
 
 
Remark Holdings, Inc.
 
 
 
 
 
Date:
May 2, 2018
 
By:
/s/ Douglas Osrow
 
 
 
Name:
Douglas Osrow
 
 
 
Title:
Chief Financial Officer




Exhibit

EXHIBIT 10.1


AMENDMENT NO. 4 AND WAIVER TO FINANCING AGREEMENT
AMENDMENT NO. 4 AND WAIVER TO FINANCING AGREEMENT, dated as of April 30, 2018 (this "Amendment"), to the Financing Agreement, dated as of September 24, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the "Financing Agreement"), by and among Remark Holdings, Inc., a Delaware corporation (the "Parent"), each subsidiary of the Parent listed as a "U.S. Borrower" on the signature pages thereto (together with the Parent and each other Person that executes a Joinder Agreement (as defined therein) and becomes a "U.S. Borrower" thereunder, each a "U.S. Borrower" and, collectively, jointly and severally, the "U.S. Borrowers"), KanKan Limited, a company organized under the laws of the British Virgin Islands (the "BVI Borrower" and together with the U.S. Borrowers, each, a "Borrower" and, collectively, the "Borrowers"), each subsidiary of the Parent listed as a "Guarantor" on the signature pages thereto (together with each other Person that executes a joinder agreement and becomes a "Guarantor" thereunder or otherwise guaranties all or any part of the Obligations (as defined therein), each a "Guarantor" and, collectively, the "Guarantors"), the lenders from time to time party thereto (each a "Lender" and, collectively, the "Lenders"), MGG Investment Group LP ("MGG"), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the "Collateral Agent"), and MGG, as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the "Administrative Agent" and together with the Collateral Agent, each an "Agent" and, collectively, the "Agents").
WHEREAS, the Loan Parties have requested that the Lenders amend certain terms and conditions and waive certain provisions of the Financing Agreement as more fully set forth herein, and the Lenders are willing to amend certain terms and conditions and waive such provisions of the Financing Agreement on the terms set forth herein;
NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All terms used herein that are defined in the Financing Agreement and not otherwise defined herein shall have the meanings assigned to them in the Financing Agreement.

2. Amendments. The Financing Agreement is hereby amended to delete the red or green stricken text (indicated textually in the same manner as the following examples: stricken text and stricken text); and (ii) to add the blue or green double-underlined text (indicated textually in the same manner as the following examples: double-underlined text and double-underlined text), in each case, as set forth in the marked copy of the Financing Agreement attached as Exhibit A hereto and made a part hereof for all purposes.

3. Waivers.

(a) Pursuant to the Quitclaim Agreement, dated as of October 24, 2017, by and among the Parent, Banks.com, Inc. ("Banks.com") and InterSearch Tax Solutions, Inc.



("Buyer"), the Parent and Banks.com sold to Buyer certain assets relating to e-file tax extension filing services (the "Tax Extension Services Sale"). The Loan Parties did not (i) obtain the prior written consent of the Required Lenders to consummate the Tax Extension Services Sale, (ii) apply the Net Cash Proceeds thereof in accordance with Section 2.05(c)(ii) or Section 2.05(c)(v) of the Financing Agreement, as applicable, and (iii) provide written notice of any mandatory prepayment in accordance with Section 2.05(e). The Loan Parties have requested the Agents and the Lenders to waive any Event of Default under any Loan Document that arose solely from the Tax Extension Services Sale and the applications of the Net Cash Proceeds thereof, including but not limited to any breach of Sections 2.05(c)(ii), 2.05(c)(v), 2.05(e) or 7.02(c)(ii) of the Financing Agreement, and the Agents and the Lenders hereby consent to such request so long as, within 10 Business Days of the Fourth Amendment Effective Date (or such later date as agreed to in writing by the Collateral Agent in its sole discretion), the Collateral Agent receives the promissory note received by the Loan Parties in connection with the Tax Extension Services Sale, accompanied by proper instrument of transfer.

(b) FileLater.com LLC and Tax Extension LLC were dissolved in March 2018. The Loan Parties did not obtain the written consent of the Required Lenders prior to such dissolutions. The Loan Parties have requested the Agents and the Lenders to waive any Event of Default under any Loan Document that arose solely from the dissolutions of FileLater.com LLC and Tax Extension LLC, including but not limited to any breach of Section 7.02(c)(i) of the Financing Agreement, and the Agents and the Lenders hereby consent to such request.

(c) RAAD Productions, LLC ("RAAD Productions") did not comply with Section 7.01(b) of the Financing Agreement with respect to its direct Subsidiary, RAAD Promotions, LLC, a California limited liability ("RAAD Promotions"), and Parent did not comply with Section 7.01(b) of the Financing Agreement with respect to the Specified Foreign Subsidiaries (as defined below). The Loan Parties have requested the Agents and the Lenders to waive any Event of Default under any Loan Document that arose solely from such noncompliance with Section 7.01(b) of the Financing Agreement with respect to RAAD Promotions and the Specified Foreign Subsidiaries, and the Agents and the Lenders hereby consent to such request so long as within 10 Business Days of the Fourth Amendment Effective Date (or such later date as agreed to in writing by the Collateral Agent in its sole discretion), the Collateral Agent receives (i) a pledge amendment, duly executed by RAAD Productions, in form and substance reasonably satisfactory to the Collateral Agent, pursuant to which 100% of the Equity Interests of RAAD Promotions is pledged to secure the Obligations and (ii) a pledge amendment, duly executed by the Parent, in form and substance reasonably satisfactory to the Collateral Agent, pursuant to which (A) 65% of the voting Equity Interests of HSW (HK) Inc. and KanKan Holdings Ltd. (together, the "Specified Foreign Subsidiaries") and 100% of the non-voting Equity Interests of the Specified Foreign Subsidiaries are pledged to secure the U.S. Obligations and (B) 100% of the Equity Interests of the Specified Foreign Subsidiaries are pledged to secure the BVI Obligations.

(d) The Loan Parties have executed the Material Contracts attached to the Material Contracts Certificate. The Administrative Borrower has failed to furnish to each Agent and each Lender within 5 days after execution thereof, copies of such Material Contracts as required under Section 4(d)(i) of the Side Letter. The Loan Parties have requested the Agents and the Lenders

- 2 -



to waive any Event of Default under any Loan Document that arose solely from the Administrative Borrower's failure to comply with Section 4(d)(i) of the Side Letter with respect to such Material Contracts, and the Agents and the Lenders hereby consent to such request.

(e) The waivers in this Section 3 shall be effective only in this specific instance and for the specific purpose set forth herein and does not allow for any other or further departure from the terms and conditions of the Financing Agreement or any other Loan Document, which terms and conditions shall continue in full force and effect.

4. Representations and Warranties. Each Loan Party hereby represents and warrants to the Agents and the Lenders as follows:

(a) Representations and Warranties; No Event of Default. After giving effect to the waivers set forth in Section 3 above, the representations and warranties herein, in Article VI of the Financing Agreement (other than Section 6.01(z) solely relating to the CBG Acquisition and the CBG Acquisition Documents) and in each other Loan Document, certificate or other writing delivered by or on behalf of the Loan Parties to any Agent or any Lender pursuant to the Financing Agreement or any other Loan Document on or immediately prior to the Fourth Amendment Effective Date are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to "materiality" or "Material Adverse Effect" in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to "materiality" or "Material Adverse Effect" in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date), and no Default or Event of Default has occurred and is continuing as of the Fourth Amendment Effective Date or would result from this Amendment becoming effective in accordance with its terms.

(b) Organization, Good Standing, Etc. Each Loan Party (i) is a corporation, limited liability company or limited partnership duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated, and to execute and deliver this Amendment, the Fee Letter (as amended and restated on the Fourth Amendment Effective Date) and the Side Letter (as amended and restated on the Fourth Amendment Effective Date) and to consummate the transactions contemplated hereby, by the Fee Letter (as amended and restated on the Fourth Amendment Effective Date), by the Side Letter (as amended and restated on the Fourth Amendment Effective Date) and by the Financing Agreement, as amended hereby, and (iii) is duly qualified to do business in, and is in good standing in each jurisdiction where the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary except (solely for the purposes of this subclause (iii)) where the failure to be so qualified and be in good standing could not reasonably be expected to have a Material Adverse Effect.

- 3 -




(c) Authorization, Etc. The execution and delivery by each Loan Party of this Amendment, the Fee Letter (as amended and restated on the Fourth Amendment Effective Date), the Side Letter (as amended and restated on the Fourth Amendment Effective Date) and each other Loan Document to which it is or will be a party, and the performance by it of the Fee Letter (as amended and restated on the Fourth Amendment Effective Date), the Side Letter (as amended and restated on the Fourth Amendment Effective Date) and the Financing Agreement, as amended hereby, (i) are within the power and authority of such Loan Party and have been duly authorized by all necessary action, (ii) do not and will not contravene any of its Governing Documents, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties, except (solely for the purposes of this subclause (iv)) to the extent that such default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal could not reasonably be expected to have a Material Adverse Effect and (v) do not contravene any applicable Requirement of Law or any Contractual Obligation binding on or otherwise affecting it or any of its properties, except (solely for the purposes of this subclause (v)) to the extent it could not reasonably be expected to have a Material Adverse Effect.

(d) Enforceability of Loan Documents. Each of this Amendment, the Fee Letter (as amended and restated on the Fourth Amendment Effective Date) and the Side Letter (as amended and restated on the Fourth Amendment Effective Date) is, and each other Loan Document, as amended hereby, to which any Loan Party is or will be a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by principles of equity.

(e) Governmental Approvals. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution and delivery of this Amendment, the Fee Letter (as amended and restated on the Fourth Amendment Effective Date) and the Side Letter (as amended and restated on the Fourth Amendment Effective Date) and performance by any Loan Party of this Amendment, the Fee Letter (as amended and restated on the Fourth Amendment Effective Date), the Side Letter (as amended and restated on the Fourth Amendment Effective Date) and the other Loan Documents, as amended hereby.

5. Conditions to Effectiveness. This Amendment shall become effective as of the date when, and only when, all of the following conditions have been satisfied as determined in Collateral Agent's discretion (such date, the "Fourth Amendment Effective Date"):

(a) Collateral Agent shall have received this Amendment duly executed by the Loan Parties, each Agent and each Lender;


- 4 -



(b) Collateral Agent shall have received the Fee Letter (as amended and restated on the Fourth Amendment Effective Date), duly executed by the Borrowers and the Agents;

(c) Collateral Agent shall have received (i) the Side Letter (as amended and restated on the Fourth Amendment Effective Date), duly executed by the Administrative Borrower and the Collateral Agent, and (ii) the certificate of an Authorized Officer of the Administrative Borrower described in the last paragraph of Section 4(b) of the Side Letter (the "Material Contracts Certificate");

(d) The Borrowers shall have paid on or before the Fourth Amendment Effective Date all fees, costs and expenses then invoiced and payable, if any, pursuant to Section 2.06 (including fees provided for in the Fee Letter (as amended and restated on the Fourth Amendment Effective Date)) and 12.04 of the Financing Agreement;

(e) After giving effect to the waivers set forth in Section 3 above, the representations and warranties contained in this Amendment, in Article VI of the Financing Agreement (other than Section 6.01(z) solely relating to the CBG Acquisition and the CBG Acquisition Documents) and in each other Loan Document, certificate or other writing delivered to any Agent or any Lender pursuant hereto or thereto on or prior to the Fourth Amendment Effective Date are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to "materiality" or "Material Adverse Effect" in the text thereof, which representations and warranties shall be true and correct on and as of such earlier date in all respects subject to such qualification) on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to "materiality" or "Material Adverse Effect" in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date), and no Default or Event of Default has occurred and is continuing as of the Fourth Amendment Effective Date or would result from this Amendment becoming effective in accordance with its terms; and

(f) a certificate of an Authorized Officer of each Loan Party, certifying (A) as to a copy of the resolutions or written consents of such Loan Party authorizing (1) the transactions contemplated by this Amendment, the Fee Letter (as amended and restated on the Fourth Amendment Effective Date), the Side Letter (as amended and restated on the Fourth Amendment Effective Date) and the other Loan Documents, as amended hereby, to which such Loan Party is or will be a party, and (2) the execution and delivery of this Amendment, the Fee Letter (as amended and restated on the Fourth Amendment Effective Date), the Side Letter (as amended and restated on the Fourth Amendment Effective Date) and performance by such Loan Party of this Amendment, the Fee Letter (as amended and restated on the Fourth Amendment Effective Date), the Side Letter (as amended and restated on the Fourth Amendment Effective Date) and each other Loan Document, as amended hereby, to which such Loan Party is or will be a party

- 5 -



and the execution and delivery of the other documents to be delivered by such Person in connection herewith or therewith, and (B) as to the matters set forth in Section 5(e) above.

6. Covenants.

(a) Within 10 Business Days of the Fourth Amendment Effective Date (or such later date as agreed to in writing by the Collateral Agent in its sole discretion), the Collateral Agent shall have received an amendment, in form and substance reasonably satisfactory to the Collateral Agent, to the Deposit Account Control Agreement, dated as of December 18, 2015, by and among LV.com, LLC, the Collateral Agent and Bank of America, N.A. (the "Specified DACA") to provide that the account number of the account subject to the Specified DACA is 501014687772;

(b) Within 30 days of the Fourth Amendment Effective Date (or such later date as agreed to in writing by the Collateral Agent in its sole discretion), the Collateral Agent shall have received a Control Agreement with respect to (i) Casino Travel & Tours, LLC's account (account number 5010 1468 7785) with Bank of America, N.A. and (ii) CT&T Transportation, LLC's Checking account (account number 0049 6833 0753) with Bank of America, N.A.; and

7. Continued Effectiveness of the Financing Agreement and Other Loan Documents. Each Loan Party hereby (a) acknowledges and consents to this Amendment, (b) confirms and agrees that the Financing Agreement and each other Loan Document to which it is a party is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the Fourth Amendment Effective Date, all references in any such Loan Document to "the Financing Agreement", the "Agreement", "thereto", "thereof", "thereunder" or words of like import referring to the Financing Agreement shall mean the Financing Agreement as amended by this Amendment, (c) confirms and agrees that, to the extent that any such Loan Document purports to assign or pledge to the Collateral Agent, for the benefit of the Agents and the Lenders, or to grant to the Collateral Agent, for the benefit of the Agents and the Lenders, a security interest in or Lien on any Collateral as security for the Obligations of the Loan Parties from time to time existing in respect of the Financing Agreement (as amended hereby) and the other Loan Documents, such pledge, assignment and/or grant of the security interest or Lien is hereby ratified and confirmed in all respects and (d) with respect to each Loan Party that is a Guarantor, confirms and agrees that all of the provisions of and obligations under its Guaranty are hereby ratified and confirmed in all respects. This Amendment does not and shall not affect any of the obligations of the Loan Parties, other than as expressly provided herein, including, without limitation, the Loan Parties' obligations to repay the Loans in accordance with the terms of Financing Agreement or the obligations of the Loan Parties under any Loan Document to which they are a party, all of which obligations shall remain in full force and effect, and nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Financing Agreement or instruments securing the same. Nothing expressed or implied in this Amendment shall be construed as a release or other discharge of any Loan Party under the Financing Agreement, or the other Loan Documents, as amended hereby, from any of its obligations and liabilities as a "Borrower", "Guarantor" or "Loan Party" thereunder. Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right,

- 6 -



power or remedy of any Agent or any Lender under the Financing Agreement or any other Loan Document nor constitute a waiver of any provision of the Financing Agreement or any other Loan Document.
 
8. Release. Each Loan Party hereby acknowledges and agrees that: (a) neither it nor any of its Subsidiaries has any claim or cause of action against any Agent or any Lender (or any of the directors, officers, employees, agents, attorneys or consultants of any of the foregoing) and (b) the Agents and the Lenders have heretofore properly performed and satisfied in a timely manner all of their obligations to the Loan Parties, and all of their Subsidiaries and Affiliates. Notwithstanding the foregoing, the Agents and the Lenders wish (and the Loan Parties agree) to eliminate any possibility that any past conditions, acts, omissions, events or circumstances would impair or otherwise adversely affect any of their rights, interests, security and/or remedies. Accordingly, for and in consideration of the agreements contained in this Amendment and other good and valuable consideration, each Loan Party (for itself and its Subsidiaries and Affiliates and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the "Releasors") does hereby fully, finally, unconditionally and irrevocably release, waive and forever discharge the Agents and the Lenders, together with their respective Affiliates and Related Funds, and each of the directors, officers, employees, agents, attorneys and consultants of each of the foregoing (collectively, the "Released Parties"), from any and all debts, claims, allegations, obligations, damages, costs, attorneys' fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done, in each case prior to the Fourth Amendment Effective Date, directly arising out of, connected with or related to the Financing Agreement or any other Loan Document or any act, event or transaction related or attendant thereto (other than this Amendment or the agreements of any Agent or any Lender contained therein) or the possession, use, operation or control of any of the assets of any Loan Party, or the making of any Loans or other advances, or the management of such Loans or other advances or the Collateral. Each Loan Party represents and warrants that it has no knowledge of any claim by any Releasor against any Released Party or of any facts or acts or omissions of any Released Party which on the date hereof would be the basis of a claim by any Releasor against any Released Party which would not be released hereby. The foregoing release does not release or discharge, or operate to waive performance by, the Agents or the Lenders of their express agreements and obligations stated in the Loan Documents on or after the Fourth Amendment Effective Date.

9. Miscellaneous.

(a) This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Amendment by facsimile or electronic mail shall be equally effective as delivery of an original executed counterpart of this Amendment.
 

- 7 -



(b) Section and paragraph headings herein are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

(c) This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.

(d) Each Loan Party hereby acknowledges and agrees that this Amendment constitutes a "Loan Document" under the Financing Agreement. Accordingly, it shall be an immediate Event of Default under the Financing Agreement if (i) any representation or warranty made by any Loan Party under or in connection with this Amendment shall have been incorrect in any respect when made or deemed made, or (ii) any Loan Party shall fail to perform or observe any term, covenant or agreement contained in this Amendment (including, the covenants set forth in Section 6).

(e) Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
[Remainder of page intentionally left blank.]

- 8 -



IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date set forth on the first page hereof.
 
U.S. BORROWERS:
 
 
 
 
REMARK HOLDINGS, INC.
 
BANKS.COM, INC.
 
BIKINI.COM LLC
 
ROOMLIA, INC.
 
VEGAS.COM, LLC
 
By:
/s/ Douglas Osrow
 
 
Name:
Douglas Osrow
 
 
Title:
Chief Financial Officer
 
 
 
 
BVI BORROWER:
 
 
 
 
KANKAN LIMITED
 
By:
/s/ Kai-Shing Tao
 
 
Name:
Kai-Shing Tao
 
 
Title:
Director
 
 
 
 
GUARANTORS:
 
 
 
 
CASINO TRAVEL & TOURS, LLC
 
CTT TOURS, LLC
 
CT&T TRANSPORTATION, LLC
 
INTAC INTERNATIONAL, INC.
 
LV.COM, LLC
 
REMARK TRAVEL, INC.
 
SLAPTV LLC
 
REMARK HOLDINGS SPV, INC.
 
RAAD PRODUCTIONS, LLC
 
By:
/s/ Douglas Osrow
 
 
Name:
Douglas Osrow
 
 
Title:
Chief Financial Officer





 
COLLATERAL AGENT AND ADMINISTRATIVE AGENT:
 
 
 
 
MGG INVESTMENT GROUP LP

By: MGG GP LLC,
its general partner

 
By:
/s/ Kevin F. Griffin
 
 
Name:
Kevin F. Griffin
 
 
Title:
Chief Executive Officer


 
LENDERS:
 
 
 
 
MGG FUNDING II LLC
 
By:
/s/ Kevin Griffin
 
 
Name:
Kevin Griffin
 
 
Title:
Chief Executive Officer and Chief Investment Officer
 
 
 
 
MGG SPECIALTY FINANCE FUND LP
 
By:
/s/ Kevin Griffin
 
 
Name:
Kevin Griffin
 
 
Title:
Chief Executive Officer and Chief Investment Officer
 
 
 
 
MGG SF EVERGREEN FUND LP
 
By:
/s/ Kevin Griffin
 
 
Name:
Kevin Griffin
 
 
Title:
Chief Executive Officer and Chief Investment Officer
 
 
 
 
MGG SF EVERGREEN MASTER FUND (CAYMAN) LP
 
By:
/s/ Kevin Griffin
 
 
Name:
Kevin Griffin
 
 
Title:
Chief Executive Officer and Chief Investment Officer
 
 
 



 
MGG OFFSHORE FUNDING I LLC
 
By:
/s/ Kevin Griffin
 
 
Name:
Kevin Griffin
 
 
Title:
Chief Executive Officer and Chief Investment Officer
 
 
 
 
MGG SF DRAWDOWN UNLEVERED FUND LP
 
By:
/s/ Kevin Griffin
 
 
Name:
Kevin Griffin
 
 
Title:
Chief Executive Officer and Chief Investment Officer
 
 
 
 
MGG SF EVERGREEN UNLEVERED FUND LP
 
By:
/s/ Kevin Griffin
 
 
Name:
Kevin Griffin
 
 
Title:
Chief Executive Officer and Chief Investment Officer
 
 
 
 
MGG CANADA FUND LP
 
By:
/s/ Kevin Griffin
 
 
Name:
Kevin Griffin
 
 
Title:
Chief Executive Officer and Chief Investment Officer
 
 
 
 
MGG SF DRAWDOWN MASTER FUND (CAYMAN) LP
 
By:
/s/ Kevin Griffin
 
 
Name:
Kevin Griffin
 
 
Title:
Chief Executive Officer and Chief Investment Officer




EXHIBIT A

Financing Agreement

[See attached]



EXECUTION VERSIONExecution Version
Conformed Copy through Amendment No. 34


FINANCING AGREEMENT

Dated as of September 24, 2015



by and among



REMARK
MEDIAHOLDINGS, INC.,
AND EACH SUBSIDIARY OF REMARK
MEDIAHOLDINGS, INC.
LISTED AS A BORROWER
ON THE SIGNATURE PAGES HERETO
as Borrowers,



EACH SUBSIDIARY OF REMARK
MEDIAHOLDINGS, INC.
LISTED AS A GUARANTOR ON THE SIGNATURE PAGES HERETO,
as Guarantors,



THE LENDERS FROM TIME TO TIME PARTY HERETO,
as Lenders,



and



MGG INVESTMENT GROUP LP,
as Collateral Agent and as Administrative Agent



DOC ID - 27822767.5
 
 

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




TABLE OF CONTENTS
 
 
Page
ARTICLE I DEFINITIONS; CERTAIN TERMS
5
Section 1.01
Definitions
5
Section 1.02
Terms Generally
4949
Section 1.03
Certain Matters of Construction
4950
Section 1.04
Accounting and Other Terms
5051
Section 1.05
Time References
5051
Section 1.06
Obligation to Make Payments in Dollars
5151
ARTICLE II THE LOANS
5152

Section 2.01
Commitments
5152
Section 2.02
Making the Loans
5152
Section 2.03
Repayment of Loans; Evidence of Debt
5253
Section 2.04
Interest
5354
Section 2.05
Reduction of Commitment; Prepayment of Loans
5455
Section 2.06
Fees
5758
Section 2.07
[Intentionally Omitted]
5859
Section 2.08
Funding Losses; No Match Funding Requirement
5859
Section 2.09
Taxes
5960
Section 2.10
Increased Costs and Reduced Return
6162
Section 2.11
Changes in Law; Impracticability or Illegality
6263
ARTICLE III [INTENTIONALLY OMITTED]
 
ARTICLE IV APPLICATION OF PAYMENTS; DEFAULTING LENDERS; JOINT
 
AND SEVERAL LIABILITY OF BORROWERS
6364
Section 4.01
Payments; Computations and Statements
6364
Section 4.02
Sharing of Payments
6465
Section 4.03
Apportionment of Payments
6566
Section 4.04
Defaulting Lenders
6667
Section 4.05
Administrative Borrower; Joint and Several Liability of the Borrowers
6768
ARTICLE V CONDITIONS TO LOANS
6869
Section 5.01
Conditions Precedent to Effectiveness
6870
ARTICLE VI REPRESENTATIONS AND WARRANTIES
7374
Section 6.01
Representations and Warranties
7374
ARTICLE VII COVENANTS OF THE LOAN PARTIES
8384
Section 7.01
Affirmative Covenants
8384
Section 7.02
Negative Covenants
9697

DOC ID - 27822767.5
i
 

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018



Section 7.03
Financial Covenants
102103
December 31, 2017
 
$2,500,000
102
 
March 31, 2018
102
 
$3,000,000
102
 
$4,000,000"
102
 
ARTICLE VIII CASH MANAGEMENT ARRANGEMENTS AND OTHER
 
COLLATERAL MATTERS
103106
Section 8.01
Cash Management Arrangements
103106
ARTICLE IX EVENTS OF DEFAULT
104107
Section 9.01
Events of Default
104107
ARTICLE X AGENTS
108111
Section 10.01
Appointment
108111
Section 10.02
Nature of Duties; Delegation
109112
Section 10.03
Rights, Exculpation, Etc
110113
Section 10.04
Reliance
110113
Section 10.05
Indemnification
111114
Section 10.06
Agents Individually
111114
Section 10.07
Successor Agent
111114
Section 10.08
Collateral Matters
112115
Section 10.09
Agency for Perfection
114117
Section 10.10
No Reliance on any Agent's Customer Identification Program.
114117
Section 10.11
No Third Party Beneficiaries
114117
Section 10.12
No Fiduciary Relationship
114117
Section 10.13
Reports; Confidentiality; Disclaimers
115118
Section 10.14
Collateral Custodian
115118
Section 10.15
[Intentionally Omitted]
115118
Section 10.16
[Intentionally Omitted]
115119
Section 10.17
Collateral Agent May File Proofs of Claim
116119
ARTICLE XI GUARANTY
116119
Section 11.01
Guaranty
116119
Section 11.02
Guaranty Absolute
117120
Section 11.03
Waiver
117121
Section 11.04
Continuing Guaranty; Assignments
118121
Section 11.05
Subrogation
118121
Section 11.06
Contribution
119122
ARTICLE XII MISCELLANEOUS
120122
Section 12.01
Notices, Etc
120123

DOC ID - 27822767.5
ii
 


ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018



Section 12.02
Amendments, Etc
121124
Section 12.03
No Waiver; Remedies, Etc
123126
Section 12.04
Expenses; Taxes; Attorneys' Fees
123126
Section 12.05
Right of Set-off
124127
Section 12.06
Severability
125128
Section 12.07
Assignments and Participations
125128
Section 12.08
Counterparts
128131
Section 12.09
GOVERNING LAW
128131
Section 12.10
CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE
129132
Section 12.11
WAIVER OF JURY TRIAL, ETC
130133
Section 12.12
Consent by the Agents and Lenders
130133
Section 12.13
No Party Deemed Drafter
130133
Section 12.14
Reinstatement; Certain Payments
130133
Section 12.15
Indemnification; Limitation of Liability for Certain Damages
131134
Section 12.16
Records
132135
Section 12.17
Binding Effect
132135
Section 12.18
Highest Lawful Rate
132135
Section 12.19
Confidentiality
133136
Section 12.20
Public Disclosure
134137
Section 12.21
Integration
134137
Section 12.22
USA PATRIOT Act
134137
Section 12.23
Investment Unit Tax Reporting
135138
Section 12.24
Judgment Currency
135138
Section 12.25
Waiver of Immunity
135138
Section 12.26
English Language
136138

DOC ID - 27822767.5
iii
 


ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018



SCHEDULES AND EXHIBITS
Schedule 1.01(A)
Lenders and Lenders' Commitments
Schedule 6.01(e)
Capitalization; Subsidiaries
Schedule 6.01(l)
Nature of Business
Schedule 6.01(q)
Environmental Matters
Schedule 6.01(r)
Insurance
Schedule 6.01(u)
Intellectual Property
Schedule 6.01(y)
Credit Card Agreements
Schedule 7.02(a)
Existing Liens
Schedule 7.02(b)
Existing Indebtedness
Schedule 7.02(e)
Existing Investments
Schedule 7.02(k)
Limitations on Dividends and Other Payment Restrictions
Schedule 8.01
Cash Management Accounts

Exhibit A    Form of Joinder Agreement
Exhibit B    Form of Assignment and Acceptance
Exhibit C    Form of Notice of Borrowing
Exhibit D    Form of Key Operating Metrics Report
Exhibit E    Form of Modified Reporting Statement
Exhibit F    Form of Modified Aging Report




DOC ID - 27822767.5
iv
 

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




FINANCING AGREEMENT
Financing Agreement, dated as of September 24, 2015, by and among Remark MediaHoldings, Inc., a Delaware corporation (the "Parent"), each subsidiary of the Parent listed as a "U.S. Borrower" on the signature pages hereto (together with the Parent and each other Person that executes a joinder agreement and becomes a "U.S. Borrower" hereunder, each a "U.S. Borrower" and, collectively, the "U.S. Borrowers"), KanKan Limited, a company organized under the laws of the British Virgin Islands (the "BVI Borrower", and together with the U.S. Borrowers, each a "Borrower" and, collectively, the "Borrowers"), each subsidiary of the Parent listed as a "Guarantor" on the signature pages hereto (together with each other Person that executes a joinder agreement and becomes a "Guarantor" hereunder or otherwise guaranties all or any part of the Obligations (as hereinafter defined), each a "Guarantor" and, collectively, the "Guarantors"), the lenders from time to time party hereto (each a "Lender" and collectively, the "Lenders"), MGG Investment Group LP ("MGG"), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the "Collateral Agent"), and MGG, as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the "Administrative Agent" and together with the Collateral Agent, each an "Agent" and, collectively, the "Agents").
RECITALS
On the Effective Date (as hereinafter defined), the Lenders extended credit to the U.S. Borrowers consisting of (a) an Initial Loan (as hereinafter defined) in the aggregate principal amount of $27,500,000, the proceeds of which were used to finance a portion of the cash consideration for the Vegas.com Acquisition (as hereinafter defined), for general working capital purposes of the U.S. Borrowers and to pay fees and expenses related to this Agreement and the Vegas.com Acquisition.
On the First Amendment Effective Date (as hereinafter defined), the BVI Borrower has asked the Lenders to make an Additional Loan (as hereinafter defined) to the BVI Borrower in the aggregate principal amount of $8,000,000, the proceeds of which shall be used to finance a portion of the cash consideration for the CBG Acquisition (as hereinafter defined), for general working capital purposes of the BVI Borrower and the CBG Subsidiaries (as hereinafter defined) and to pay fees and expenses related to the First Amendment (as hereinafter defined) and the CBG Acquisition.
The Lenders are severally, and not jointly, willing to extend such credit to the applicable Borrowers subject to the terms and conditions hereinafter set forth.
In consideration of the premises and the covenants and agreements contained herein, the parties hereto agree as follows:

DOC ID - 27822767.5
 
 

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018



ARTICLE I

DEFINITIONS; CERTAIN TERMS

Section 1.01    Definitions. As used in this Agreement, the following terms shall have the respective meanings indicated below:
"Account Debtor" means, with respect to any Person, each debtor, customer or obligor in any way obligated on or in connection with any Account of such Person, including any Credit Card Issuer or Credit Card Processor.
"Acquisition" means the acquisition (whether by means of a merger, consolidation or otherwise) of all of the Equity Interests of any Person or all or substantially all of the assets of (or any division or business line of) any Person.
"Action" has the meaning specified therefor in Section 12.12.
"Additional Amount" has the meaning specified therefor in Section 2.09(a).
"Additional Loan" means the loans made by the Lenders to the BVI Borrower on the First Amendment Effective Date pursuant to Article II hereof.
"Additional Loan Commitment" means, with respect to each Lender, the commitment of such Lender to make the Additional Loan to the BVI Borrower on the First Amendment Effective Date in the amount set forth opposite such Lender's name under the heading "Additional Loan Commitment" on Schedule 1.01(A) hereto, or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement.
"Additional Loan Make-Whole Amount" means, as of any date of determination, an amount equal to (i) the difference between (A) the aggregate amount of interest (including, without limitation, interest payable in cash, in kind or deferred) which would have otherwise been payable on the principal amount of the Additional Loan paid on such date (or in the case of an Applicable Premium Trigger Event specified in clauses (b), (c) or (d) of the definition thereof, the principal amount of the Additional Loan outstanding on such date) from the date of the occurrence of the Applicable Premium Trigger Event until the twenty-fourtwelve (2412) month anniversary of the FirstFourth Amendment Effective Date, minus (B) the aggregate amount of interest the Lenders would earn if the principal amount of the Additional Loan paid on such date (or in the case of an Applicable Premium Trigger Event specified in clauses (b), (c) or (d) of the definition thereof, the principal amount of the Additional Loan outstanding on such date) were reinvested for the period from the date of the occurrence of the Applicable Premium Trigger Event until the twenty-fourtwelve (2412) month anniversary of the FirstFourth Amendment Effective Date at the Treasury Rate plus (ii) an amount equal to 3% times the aggregate amount of all Obligations in respect of the Additional Loan paid on such date (or, in the case of an Applicable Premium Trigger Event specified in clauses (b), (c) or (d) of the definition thereof, the aggregate amount of all Obligations in respect of the Additional Loan outstanding on such date); provided, that, notwithstanding any of the foregoing,

DOCID - 27822767.5
 
 
- 5 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




the Additional Loan Make-Whole Amount shall mean zero if the Specified Condition has been satisfied on or prior to the occurrence of the Applicable Premium Trigger Event.
"Administrative Agent" has the meaning specified therefor in the preamble hereto.
"Administrative Agent's Account" means an account at a bank designated by the Administrative Agent from time to time as the account into which the Loan Parties shall make all payments to the Administrative Agent for the benefit of the Agents and the Lenders under this Agreement and the other Loan Documents.
"Administrative Borrower" has the meaning specified therefor in Section 4.05.
"Affiliate" means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, "control" of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the Equity Interests having ordinary voting power for the election of members of the Board of Directors of such Person or (b) direct or cause the direction of the management and policies of such Person whether by contract or otherwise. Notwithstanding anything herein to the contrary, in no event shall any Agent or any Lender be considered an "Affiliate" of any Loan Party.
"Agent" has the meaning specified therefor in the preamble hereto.
"Agreement" means this Financing Agreement, including all amendments, modifications and supplements and any exhibits or schedules to any of the foregoing, and shall refer to the Agreement as the same may be in effect at the time such reference becomes operative.
"Annualized Basis" shall mean, for purposes of calculating the Consolidated EBITDA of the Parent and its Subsidiaries (or Vegas.com and its Subsidiaries, as applicable), (a) for the period ending December 31, 2015, an amount equal to Consolidated EBITDA for the three-month period ending December 31, 2015 times four (4), (b) for the period ending March 31, 2016, an amount equal to Consolidated EBITDA for the six-month period ending March 31, 2016 times two (2), and (c) for the period ending June 30, 2016, an amount equal to Consolidated EBITDA for the nine-month period ending June 30, 2016 times four-thirds (4/3).
"Anti-Corruption Laws" has the meaning specified therefor in Section 6.01(bb).
"Anti-Money Laundering and Anti-Terrorism Laws" means any Requirement of Law relating to terrorism, economic sanctions or money laundering, including, without limitation, (a) the Money Laundering Control Act of 1986 (i.e., 18 U.S.C. §§ 1956 and 1957), (b) the Bank Secrecy Act of 1970 (31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959), and the implementing regulations promulgated thereunder, (c) the USA PATRIOT Act and the implementing regulations promulgated thereunder, (d) the laws, regulations and Executive Orders administered by the United States Department of the Treasury's Office of Foreign Assets Control ("OFAC"), (e) any law prohibiting or directed against terrorist activities or the financing or support of terrorist activities (e.g., 18 U.S.C. §§ 2339A and 2339B), and (f) any similar laws enacted in the United

DOCID - 27822767.5
 
 
- 6 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




States or any other jurisdictions in which the parties to this Agreement operate, as any of the foregoing laws have been, or shall hereafter be, amended, renewed, extended, or replaced and all other present and future legal requirements of any Governmental Authority governing, addressing, relating to, or attempting to eliminate, terrorist acts and acts of war and any regulations promulgated pursuant thereto.
"Applicable Margin" means, as of any date of determination, with respect to the interest rate of (a) any LIBOR Rate Loan, 10.008.50%, and (b) any Reference Rate Loan, 8.757.25%.
"Applicable Premium" means, as of the date of the occurrence of an Applicable Premium Trigger Event:
(a)    during the period of time from and after the Fourth Amendment Effective Date up to and including the Firstdate that is the first anniversary of the Fourth Amendment Effective Date (the "First Period"), an amount equal to the Initial Loan Make-Whole Amount,
(a)    (b)    during the period of time after the First Period up to and including September 24, 2017 (the "Second Period"), an amount equal to the sum of (Ai) the Initial Loan Make-Whole Amount, plus (Bii) the Additional Loan Make-Whole Amount, and
(c)    during the period of time after the Second Period up to and including March 24, 2018 (the "Third Period"), an amount equal to the sum of (A) 3.00% times the aggregate amount of all Obligations in respect of the Initial Loan outstanding on (or, in the case of an Applicable Premium Trigger Event described in clause (a) of the definition thereof, paid on) the date of such Applicable Premium Trigger Event (other than the Applicable Premium), plus (B) the Additional Loan Make-Whole Amount,
(d)    during the period of time after the Third Period up to and including the second anniversary of the First Amendment Effective Date (the "Fourth Period"), an amount equal to the Additional Loan Make-Whole Amount, and
(b)    (e)    after the FourthFirst Period, zero.
"Applicable Premium Trigger Event" means
(a)    any payment by any Loan Party of all, or any part, of the principal balance of the Loan for any reason (including, but not limited to, any optional prepayment or mandatory prepayment) whether before or after (i) the occurrence of an Event of Default, or (ii) the commencement of any Insolvency Proceeding, and notwithstanding any acceleration (for any reason) of the Obligations; provided, however, that no mandatory prepayment made pursuant to Section 2.05(c)(i) or, Section 2.05(c)(iv) or Section 2.05(c)(vi) shall constitute an Applicable Premium Trigger Event.;

DOCID - 27822767.5
 
 
- 7 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




(b)    the acceleration of the Obligations for any reason, including, but not limited to, acceleration in accordance with Section 9.01, including as a result of the commencement of an Insolvency Proceeding;
(c)    the satisfaction, release, payment, restructuring, reorganization, replacement, reinstatement, defeasance or compromise of any of the Obligations in any Insolvency Proceeding, foreclosure (whether by power of judicial proceeding or otherwise) or deed in lieu of foreclosure or the making of a distribution of any kind in any Insolvency Proceeding to any Agent, for the account of the Lenders in full or partial satisfaction of the Obligations; or
(d)    the termination of this Agreement for any reason.
"Ashford" means Ashford Capital Partners, L.P., a Delaware limited liability company.
"Asset Value" means, at any time, the fair market value (net of estimated expenses of sale) of (a) the assets of the Parent and its Subsidiaries taken as a whole, (b) any Specified Asset, or (c) the Sharecare Equity, in each case, as determined from time to time (but not more frequently than once per calendar month) by the Collateral Agent in good faith (as defined in the UCC) and notified to the Administrative Borrower in writing. Each determination by the Collateral Agent of Asset Value shall be conclusive and binding for all purposes in the absence of manifest error and the Loan Parties irrevocably waive the right to object to any determination made by the Collateral Agent in the absence of manifest error.
"Assignment and Acceptance" means an assignment and acceptance entered into by an assigning Lender and an assignee, and accepted by the Collateral Agent (and the Administrative Agent, if applicable), in accordance with Section 12.07 hereof and substantially in the form of Exhibit B hereto or such other form acceptable to the Collateral Agent.
"Authorized Officer" means, with respect to any Person, the chief executive officer, chief operating officer, chief financial officer, treasurer or other financial officer performing similar functions, president or executive vice president of such Person.
"Bank of America Loan Agreement" means the Loan Agreement, dated as of July 30, 2010 between Bank of America, N.A. and Vegas.com, as amended and restated on the Effective Date.
"Bank of America Loan Documents" means each of the documents executed and delivered in connection with the Bank of America Loan Agreement.
"Bankruptcy Code" means Title 11 of the United States Code, as amended from time to time and any successor statute or any similar federal or state law for the relief of debtors.
"Blocked Person" means any Person:
(a)    that (i) is identified on the list of "Specially Designated Nationals and Blocked Persons" published by OFAC; (ii) resides, is organized or chartered, or has a place of business in a

DOCID - 27822767.5
 
 
- 8 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




country or territory that is the subject of an OFAC Sanctions Program; or (iii) a United States Person is prohibited from dealing or engaging in a transaction with under any of the Anti-Money Laundering and Anti-Terrorism Laws; and
(b)    that is owned or controlled by, or that owns or controls, or that is acting for or on behalf of, any Person described in clause (a) above.
"Bloomberg" means Bloomberg Financial Markets.
"Board" means the Board of Governors of the Federal Reserve System of the United States (or any successor).
"Board Observer" has the meaning specified therefor in Section 7.01(r).
"Board of Directors" means with respect to (a) any corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board, (b) a partnership, the board of directors of the general partner of the partnership, (c) a limited liability company, the managing member or members or any controlling committee or board of directors of such company or the sole member or the managing member thereof, and (d) any other Person, the board or committee of such Person serving a similar function.
"BOD Meeting" has the meaning specified therefor in Section 7.01(r).
"Borrowers" has the meaning specified therefor in the preamble hereto.
"Business Day" means (a) for all purposes other than as described in clause (b) below, any day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required to close, and (b) with respect to the borrowing, payment or continuation of, or determination of interest rate on, LIBOR Rate Loans, any day that is a Business Day described in clause (a) above and on which dealings in Dollars may be carried on in the interbank eurodollar markets in New York City and London.
"BVI Borrower" has the meaning specified therefor in the preamble hereto.
"BVI Collateral" means all of the property and assets and all interests therein and proceeds thereof now owned or hereafter acquired by the BVI Borrower or any of its Subsidiaries upon which a Lien is granted or purported to be granted by the BVI Borrower or any of its Subsidiaries as security for all or any part of the BVI Obligations.
"BVI Loan Party" means the BVI Borrower.
"BVI Obligations" means (a) the Obligations of the BVI Borrower with respect to the Additional Loan and all other amounts from time to time owing by any BVI Loan Party with respect to the Additional Loan under any of the Loan Documents, and (b) all Obligations to the extent incurred by or related to the BVI Borrower and/or its Subsidiaries; provided that for the avoidance of doubt, the term "BVI Obligations" shall not include any U.S. Obligations.

DOCID - 27822767.5
 
 
- 9 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




"Capital Expenditures" means, with respect to any Person for any period, the sum of (a) the aggregate of all expenditures by such Person and its Subsidiaries during such period that in accordance with GAAP are or should be included in "property, plant and equipment" or in a similar fixed asset account on its balance sheet, whether such expenditures are paid in cash or financed, including all Capitalized Lease Obligations that are paid or due and payable during such period and (b) to the extent not covered by clause (a) above, (i) all amounts paid or payable by the Parent or any of its Subsidiaries during such period pursuant to the LasVegas.com License Agreement, and (ii) the aggregate of all expenditures by such Person and its Subsidiaries during such period to acquire by purchase or otherwise the business or fixed assets of, or the Equity Interests of, any other Person; provided that the term "Capital Expenditures" shall not include any such expenditures which constitute (x) a Permitted Acquisition or (y) expenditures that are accounted for as capital expenditures of such Person and that actually are paid for by a third party (excluding any Loan Party) and for which no Loan Party has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other person (whether before, during or after such period).
"Capitalized Lease" means, with respect to any Person, any lease of (or other arrangement conveying the right to use) real or personal property by such Person as lessee that is required under GAAP to be capitalized on the balance sheet of such Person.
"Capitalized Lease Obligations" means, with respect to any Person, obligations of such Person and its Subsidiaries under Capitalized Leases, and, for purposes hereof, the amount of any such obligation shall be the capitalized amount thereof determined in accordance with GAAP.
"Cash Collateral Account" means a Deposit Account in the name of the Parent that is subject to a Control Agreement in favor of the Collateral Agent (in form and substance reasonably satisfactory to the Collateral Agent), pursuant to which the Collateral Agent has exclusive control and dominion over such Deposit Account.
"Cash Equivalents" means (a) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case, maturing within six months from the date of acquisition thereof; (b) commercial paper, maturing not more than 270 days after the date of issue rated P‑1 by Moody's or A‑1 by Standard & Poor's; (c) certificates of deposit maturing not more than 270 days after the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000; (d) repurchase agreements having maturities of not more than 90 days from the date of acquisition which are entered into with major money center banks included in the commercial banking institutions described in clause (c) above and which are secured by readily marketable direct obligations of the United States Government or any agency thereof; (e) money market accounts maintained with mutual funds having assets in excess of $2,500,000,000, which assets are primarily comprised of Cash Equivalents described in another clause of this definition; (f) marketable tax exempt securities rated A or higher by Moody's or A+ or higher by Standard & Poor's, in each case, maturing within 270 days from the date of acquisition

DOCID - 27822767.5
 
 
- 10 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




thereof; and (g) in the case of any Foreign Subsidiary, cash and cash equivalents that are substantially equivalent in such jurisdiction to those described in clauses (a) through (f) above in respect of each country that is a member of the Organization for Economic Co-operation and Development.
"Cash Management Accounts" means the bank accounts of each Loan Party maintained at one or more Cash Management Banks listed on Schedule 8.01.
"Cash Management Bank" has the meaning specified therefor in Section 8.01(a).
"CBG" means China Branding Group Ltd, an exempted company incorporated under the laws of the Cayman Islands.
"CBG Acquisition" means the acquisition by the BVI Borrower of 100% of the Equity Interests of the CBG Subsidiaries pursuant to the CBG Acquisition Documents.
"CBG Acquisition Agreement" means the Second Amended and Restated Asset and Securities Purchase Agreement, dated as of September 20, 2016, by and among CBG, the Joint Official Liquidators, Seller Management, the CBG Subsidiaries, the BVI Borrower and the Parent.
"CBG Acquisition Documents" means the CBG Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith.
"CBG Registration Rights Agreement" means the Registration Rights Agreement, dated as of the First Amendment Effective Date, in form and substance satisfactory to the Agents, by and between the Parent and the CBG Warrant Recipients, with respect to the registration rights of the CBG Warrant Recipients with respect to the CBG Warrant Stock that the CBG Warrant Recipients may acquire and the anti-dilution and tag-along provisions applicable thereto.
"CBG Subsidiaries" means (a) Fanstang (Shanghai) Entertainment Information Consulting Co. Ltd., a company incorporated under the laws of Hong Kong and (b) China SNS Group Limited, a company incorporated under the laws of Hong Kong.
"CBG Warrant Recipients" means, collectively, MGG Specialty Finance Fund LP, MGG SF Evergreen Fund LP and MGG SF Evergreen Master Fund (Cayman) LP.
"CBG Warrants" means the warrants issued to the CBG Warrant Recipients on the First Amendment Effective Date to purchase Equity Interests of the Parent, which warrants shall be in form and substance satisfactory to the CBG Warrant Recipients.
"CBG Warrant Stock" has the meaning assigned to the term "Warrant Stock" in the CBG Warrants.
"Change in Law" means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any

DOCID - 27822767.5
 
 
- 11 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (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 or foreign regulatory authorities shall, in each case, be deemed to be a "Change in Law", regardless of the date enacted, adopted or issued.
"Change of Control" means each occurrence of any of the following:
i.the Permitted Holders cease to beneficially and of record own and control, directly or indirectly, at least 20% of the aggregate outstanding voting or economic power of the Equity Interests of the Parent;
ii.during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of the Parent (or its direct or indirect ultimate parent holding company) (together with any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Parent (or its direct or indirect ultimate parent holding company) was approved by a vote of at least a majority of the directors of the Parent (or its direct or indirect ultimate parent holding company) then still in office who were either directors at the beginning of such period, or whose election or nomination for election was previously approved) cease for any reason to constitute a majority of the Board of Directors of the Parent (or its direct or indirect ultimate parent holding company);
iii.the Parent shall cease to have beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of 100% of the aggregate voting or economic power of the Equity Interests of each other Loan Party and each of its Subsidiaries (other than in connection with any transaction permitted pursuant to Section 7.02(c) that results in the disposition of 100% of the Equity Interests in such Loan Party or Subsidiary), free and clear of all Liens (other than Permitted Specified Liens); or
iv.Kai-Shing Tao shall cease to be involved in the day to day operations and management of the business of the Loan Parties, and a successor reasonably acceptable to the Collateral Agent and the Lenders is not appointed on terms reasonably acceptable to the Collateral Agent and the Required Lenders within 45 days of such cessation of involvement; or
v.a "Change of Control" (or any comparable term or provision) under or with respect to (i) any of the Equity Interests of the Parent or (ii) any Indebtedness of the Parent or any of its Subsidiaries having a principal amount in excess of $100,000.
"Closing Sale Price" means, for any security as of any date, the last closing bid price for such security on the Principal Market, as reported by Bloomberg; provided, that, Closing Sale Price shall mean (i) if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, (ii), if the Principal Market is not the principal securities exchange or trading market for such security, the last trade price

DOCID - 27822767.5
 
 
- 12 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, (iii) if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, and (iv) if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the OTC Link or "pink sheets" by OTC Markets Group Inc. (formerly Pink OTC Markets Inc.). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Administrative Borrower and the Administrative Agent. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
"Collateral" means all of the property and assets and all interests therein and proceeds thereof now owned or hereafter acquired by any Person upon which a Lien is granted or purported to be granted by such Person as security for all or any part of the Obligations.
"Collateral Agent" has the meaning specified therefor in the preamble hereto.
"Collateral Agent Advances" has the meaning specified therefor in Section 10.08(a).
"Collections" means all cash, checks, notes, instruments, and other items of payment (including insurance proceeds, proceeds of cash sales, rental proceeds, and tax refunds).
"Commitment" means with respect to each Lender, collectively, (a) the Initial Loan Commitment of such Lender, and (b) the Additional Loan Commitment of such Lender.
"Commodity Exchange Act" means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
"Common Stock" means (a) the Parent's shares of common stock, par value $0.001 per share, and (b) any stock capital into which such Common Stock shall have been changed or any share capital resulting from a reclassification of such Common Stock.
"Compliance Certificate" has the meaning assigned to such term in Section 7.01(a)(iv).
"Consolidated EBITDA" means, with respect to any Person for any period:
(a)    the Consolidated Net Income of such Person for such period,
plus
(b)    without duplication, the sum of the following amounts for such period to the extent deducted in the calculation of Consolidated Net Income for such period:
(i)    any provision for United States federal income taxes or other taxes measured by net income,

DOCID - 27822767.5
 
 
- 13 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




(ii)    Consolidated Net Interest Expense,
(iii)    any loss from extraordinary items in an aggregate amount not to exceed the amount approved in writing by the Collateral Agent prior to the date on which the financial statements for such period are required to be delivered to the Agents and the Lenders pursuant to Section 7.01(a)(i), (ii) or (iii) hereof, as applicable,
(iv)    any depreciation and amortization expense,
(v)    any aggregate net loss on the Disposition of property (other than accounts and Inventory) outside the ordinary course of business,
(vi)    any fees or expenses paid in connection with the Vegas.com Acquisition, and/or in connection with the execution and delivery of the Loan Documents on the Effective Date, in each case, to the extent paid in cash during such period, in an aggregate amount not to exceed the amount approved in writing by the Collateral Agent prior to the date on which the financial statements for such period are required to be delivered to the Agents and the Lenders pursuant to Section 7.01(a)(i), (ii) or (iii) hereof, as applicable,
(vii)    any other non-cash expenditure, charge or loss for such period (other than any non-cash expenditure, charge or loss relating to write-offs, write-downs or reserves with respect to accounts and Inventory),
(viii)    amounts paid pursuant to the terms of the LasVegas.com License Agreement during such period, and
(ix)    any fees or expenses incurred in connection with the CBG Acquisition, and/or in connection with the First Amendment, in each case, to the extent accrued during such period, in an aggregate amount not to exceed the amount approved in writing by the Collateral Agent prior to the date on which the financial statements for such period are required to be delivered to the Agents and the Lenders pursuant to Section 7.01(a)(i), (ii) or (iii) hereof, as applicable,
minus
(c)    without duplication, the sum of the following amounts for such period to the extent included in the calculation of such Consolidated Net Income for such period:
(i)    any credit for United States federal income taxes or other taxes measured by net income,
(ii)    any gain from extraordinary items,
(iii)    any aggregate net gain from the Disposition of property (other than accounts and Inventory) outside the ordinary course of business, and

DOCID - 27822767.5
 
 
- 14 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




(iv)    any other non-cash gain, including any reversal of a charge referred to in clause (b)(vii) above by reason of a decrease in the value of any Equity Interest;
in each case, determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person, for any period, the consolidated net income (or loss) of such Person and its Subsidiaries for such period; provided, however, that the following shall be excluded: (a) the net income of any other Person in which such Person or one of its Subsidiaries has a joint interest with a third-party (which interest does not cause the net income of such other Person to be consolidated into the net income of such Person), except to the extent of the amount of dividends or distributions paid to such Person or Subsidiary, (b) the net income of any Subsidiary of such Person that is, on the last day of such period, subject to any restriction or limitation on the payment of dividends or the making of other distributions, to the extent of such restriction or limitation, and (c) the net income of any other Person arising prior to such other Person becoming a Subsidiary of such Person or merging or consolidating into such Person or its Subsidiaries.
"Consolidated Net Interest Expense" means, with respect to any Person for any period, (a) gross interest expense of such Person and its Subsidiaries for such period determined on a consolidated basis and in accordance with GAAP (including, without limitation, interest expense paid to Affiliates of such Person), less (b) the sum of (i) interest income for such period and (ii) gains for such period on Hedging Agreements (to the extent not included in interest income above and to the extent not deducted in the calculation of gross interest expense), plus (c) the sum of (i) losses for such period on Hedging Agreements (to the extent not included in gross interest expense) and (ii) the upfront costs or fees for such period associated with Hedging Agreements (to the extent not included in gross interest expense), in each case, determined on a consolidated basis and in accordance with GAAP.
"Contingent Indemnity Obligations" means any Obligation constituting a contingent, unliquidated indemnification obligation of any Loan Party, in each case, to the extent (a) such obligation has not accrued and is not yet due and payable and (b) no claim has been made or is reasonably anticipated to be made with respect thereto.
"Contingent Obligation" means, with respect to any Person, any obligation of such Person guaranteeing or intending to guarantee any Indebtedness, leases, dividends or other obligations ("primary obligations") of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement, (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such

DOCID - 27822767.5
 
 
- 15 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term "Contingent Obligation" shall not include any product warranties extended in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto (assuming such Person is required to perform thereunder), as determined by such Person in good faith.
"Contractual Obligation" means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
"Control Agreement" means, with respect to any deposit account, any securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance reasonably satisfactory to the Collateral Agent, among the Collateral Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, effective to grant "control" (as defined under the applicable UCC) over such account to the Collateral Agent.
"Controlled Investment Affiliate" means, as to any Person, any other Person that (a) is controlled by such Person and (b) is organized by such Person primarily for the purpose of making equity or debt investments in one or more companies. For purposes of this definition, "control" of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
"Credit Card Acknowledgments" means, with respect to the Loan Parties, individually and collectively, the agreements by Credit Card Issuers or Credit Card Processors who are parties to Credit Card Agreements in favor of the Collateral Agent acknowledging the Collateral Agent's first priority lien on and security interest in the monies due and to become due to the Loan Parties (including credits and reserves) under the Credit Card Agreements of such Loan Parties, and agreeing to transfer all such amounts to a Cash Management Account subject to a Control Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
"Credit Card Agreements" means, with respect to the Loan Parties, all agreements (other than Credit Card Acknowledgments) now or hereafter entered into by any Loan Party with any Credit Card Issuer or any Credit Card Processor, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, including, but not limited to, the agreements set forth on Schedule 6.01(y).
"Credit Card Issuer" means any Person (other than any Loan Party) who issues or whose members issue credit or debit cards, including, MasterCard or VISA bank credit or debit cards or other bank credit or debit cards issued through MasterCard International, Inc., VISA,

DOCID - 27822767.5
 
 
- 16 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




U.S.A., Inc. or Visa International and American Express, Discover, Diners Club, Carte Blanche and other non-bank credit or debit cards, including, credit or debit cards issued by or through American Express Travel Related Services Company, Inc. and Novus Services, Inc.
"Credit Card Processor" means, with respect to each Loan Party, any servicing or processing agent or any factor or financial intermediary who facilitates, services, processes or manages the credit authorization, billing transfer and/or payment procedures with respect to any of such Loan Party's sales transactions involving credit card or debit card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer.
"Credit Card Receivables" means, with respect to each Loan Party, collectively, (a) all present and future rights of such Loan Party to payment from any Credit Card Issuer, Credit Card Processor or other third party arising from sales of goods or rendition of services to customers who have purchased such goods or services using a credit or debit card and (b) all present and future rights of such Loan Party to payment from any Credit Card Issuer, Credit Card Processor or other third party in connection with the sale or transfer of Accounts arising pursuant to the sale of goods or rendition of services to customers who have purchased such goods or services using a credit card or a debit card, including, but not limited to, all amounts at any time due or to become due from any Credit Card Issuer or Credit Card Processor under the Credit Card Agreements or otherwise.
"Current Value" has the meaning specified therefor in Section 7.01(m).
"Debtor Relief Law" means (a) the Bankruptcy Code, (b) with respect to the BVI Borrower, the Insolvency Act, 2003 (British Virgin Islands) and the Insolvency Rules, 2005 (British Virgin Islands) and (c) any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United States or other applicable jurisdiction from time to time in effect.
"Default" means an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
"Defaulting Lender" means any Lender that (a) has failed to (i) fund all or any portion of its Loans within 2 Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Administrative Borrower in writing that such failure is the result of such Lender's determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within 2 Business Days of the date when due, (b) has notified the Administrative Borrower, or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender's obligation to fund a Loan hereunder and states that such position is based on such Lender's determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within 3 Business Days after written request by the Administrative Agent or the Administrative Borrower, to confirm in writing to the Administrative Agent and the Administrative

DOCID - 27822767.5
 
 
- 17 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Administrative Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity. Notwithstanding anything to the contrary herein, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permits such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Administrative Borrower and each Lender.
"DigiPac" means DigiPac, LLC, a Delaware limited liability company.
"Disbursement Letter" means a disbursement letter, in form and substance satisfactory to the Collateral Agent, by and among the Loan Parties, the Agents, the Lenders and the other Persons party thereto, and the related funds flow memorandum describing the sources and uses of all cash payments in connection with the transactions contemplated to occur on the Effective Date.
"Disposition" means any transaction, or series of related transactions, pursuant to which any Person or any of its Subsidiaries sells, assigns, transfers, leases, licenses (as licensor) or otherwise disposes of any property or assets (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of cash, securities or other assets owned by the acquiring Person. For purposes of clarification, "Disposition" shall include (a) the sale or other disposition for value of any contracts, (b) the early termination or modification of any contract resulting in the receipt by any Loan Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course for accrued and unpaid amounts due through the date of termination or modification and the return of any deposits or pledges required to be returned upon the termination of such contract) and (c) any sale of merchant accounts (or any rights thereto (including, without limitation, any rights to any residual payment stream with respect thereto)) by any Loan Party.
"Disqualified Equity Interests" means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of

DOCID - 27822767.5
 
 
- 18 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations), (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends or distributions in cash, or (d) is convertible into or exchangeable for (i) Indebtedness or (ii) any other Equity Interests that would constitute Disqualified Equity Interests, in each case of clauses (a) through (d), prior to the date that is six months after the Final Maturity Date.
"Dollar," "Dollars" and the symbol "$" each means lawful money of the United States of America.
"Domain Assets" means internet domain names, internet protocol addresses and related rights, assets and agreements.
"Domain Name Control Agreement" means a Domain Name Control Agreement, by and among a Loan Party that is the owner of Domain Assets, the Collateral Agent and the applicable domain name registrar, in each case, in form and substance reasonably satisfactory to the Collateral Agent.
"Domestic Subsidiary" means any Subsidiary that is organized and existing under the laws of the United States or any state or commonwealth thereof or under the laws of the District of Columbia.
"Effective Date" has the meaning specified therefor in Section 5.01.
"Employee Plan" means an employee benefit plan (other than a Multiemployer Plan) covered by Title IV of ERISA and maintained (or that was maintained at any time during the 6 calendar years preceding the date of any borrowing hereunder) for employees of any Loan Party or any of its ERISA Affiliates.
"Environmental Actions" means any complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter or other communication from any Person or Governmental Authority involving violations of Environmental Laws or Releases of Hazardous Materials (a) from any assets, properties or businesses owned or operated by any Loan Party or any of its Subsidiaries or any predecessor in interest; (b) from adjoining properties or businesses; or (c) onto any facilities which received Hazardous Materials generated by any Loan Party or any of its Subsidiaries or any predecessor in interest.
"Environmental Laws" means the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601, et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq.), the Federal Clean Water Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.) and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), as such laws may be amended or otherwise modified from time to time, and any other Requirement of Law, permit, license or other binding determination of any Governmental Authority imposing liability or establishing standards of conduct for protection

DOCID - 27822767.5
 
 
- 19 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




of the environment or other government restrictions relating to the protection of the environment or the Release, deposit or migration of any Hazardous Materials into the environment.
"Environmental Liabilities and Costs" means all liabilities, monetary obligations, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigations and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim or demand by any Governmental Authority or any third party, and which relate to any environmental condition or a Release of Hazardous Materials from or onto (a) any property presently or formerly owned by any Loan Party or any of its Subsidiaries or (b) any facility which received Hazardous Materials generated by any Loan Party or any of its Subsidiaries.
"Environmental Lien" means any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs.
"Equity Documents" means each of the following:
(a)    the Registration Rights Agreement, duly executed by the Parent;
(b)    the Warrants, duly executed by the Parent;
(c)    the CBG Registration Rights Agreement, duly executed by the Parent; and
(d)    the CBG Warrants, duly executed by the Parent.
"Equity Interests" means (a) all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting and (b) all securities convertible into or exchangeable for any of the foregoing and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any of the foregoing, whether or not presently convertible, exchangeable or exercisable.
"Equity Issuance" means either (a) the sale or issuance by any Loan Party or any of its Subsidiaries of any shares of its Equity Interests or (b) the receipt by the Parent of any cash capital contributions.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, and regulations thereunder, in each case, as in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.
"ERISA Affiliate" means, with respect to any Person, any trade or business (whether or not incorporated) which is a member of a group of which such Person is a member and which

DOCID - 27822767.5
 
 
- 20 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




would be deemed to be a "controlled group" within the meaning of Sections 414(b), (c), (m) and (o) of the Internal Revenue Code.
"Event of Default" has the meaning specified therefor in Section 9.01.
"Excess Cash Flow" means, with respect to any Person for any period, (a) Consolidated EBITDA of such Person and its Subsidiaries for such period, less (b) the sum of, without duplication, (i) all cash principal payments (excluding any principal payments made pursuant to Section 2.05(c)) on the Loans made during such period, and all cash principal payments on Indebtedness (other than Indebtedness incurred under this Agreement) of such Person or any of its Subsidiaries during such period to the extent such other Indebtedness is permitted to be incurred, and such payments are permitted to be made, under this Agreement (but, in the case of revolving loans, only to the extent that the revolving credit commitment in respect thereof is permanently reduced by the amount of such payments), (ii) all Consolidated Net Interest Expense to the extent paid or payable in cash during such period, (iii) the cash portion of Capital Expenditures made by such Person and its Subsidiaries during such period to the extent permitted to be made under this Agreement (excluding Capital Expenditures to the extent financed through the incurrence of Indebtedness or through an Equity Issuance), (iv) all scheduled loan servicing fees and other similar fees in respect of Indebtedness of such Person or any of its Subsidiaries paid in cash during such period, to the extent such Indebtedness is permitted to be incurred, and such payments are permitted to be made, under this Agreement, (v) income taxes paid in cash by such Person and its Subsidiaries for such period and (vi) the excess, if any, of Working Capital at the end of such period over Working Capital at the beginning of such period (or minus the excess, if any, of Working Capital at the beginning of such period over Working Capital at the end of such period).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Account" means (a) any deposit account specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Loan Party's employees and (b) any Petty Cash Accounts.
"Excluded Taxes" means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.12(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.09, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient's failure to comply with Section 2.09(e) and (d) any U.S. federal withholding Taxes imposed under FATCA.

DOCID - 27822767.5
 
 
- 21 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




"Executive Order No. 13224" means the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.
"Existing Indebtedness" means, collectively, the Indebtedness established or evidenced by the following documents:
(a)    the Demand Promissory Note, dated as of September 11, 2014, made by the Parent to the order of DigiPac, in the original face amount of $350,000;
(b)    the Senior Secured Convertible Term Note, dated as of January 29, 2014, made by the Parent to the order of DigiPac, in the original face amount of $3,500,000;
(c)    the Senior Secured Convertible Term Note, dated as of November 14, 2013, made by the Parent to the order of DigiPac, in the original face amount of $2,500,000;
(d)    the Convertible Promissory Note, dated as of December 17, 2014, made by the Parent to the order of Ashford in the original face amount of $3,000,000;
(e)    the Convertible Promissory Note, dated as of March 13, 2015, made by the Parent to the order of Ashford in the original face amount of $300,000; and
(f)    the Term Note, dated as of August 31, 2015, made by the Parent to the order of Ashford in the original face amount of $1,000,000.
"Extraordinary Receipts" means any cash received by the Parent or any of its Subsidiaries not in the ordinary course of business (and not consisting of proceeds described in Section 2.05(c)(ii) or (iii) hereof), including, without limitation, (a) foreign, United States, state or local tax refunds, (b) pension plan reversions, (c) judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action, (d) indemnity payments (other than to the extent such indemnity payments are (i) immediately payable to a Person that is not an Affiliate of the Parent or any of its Subsidiaries or (ii) received by the Parent or any of its Subsidiaries as reimbursement for any costs previously incurred or any payment previously made by such Person) and (e) any purchase price adjustment received in connection with any purchase agreement including, without limitation, the Vegas.com Acquisition Agreement.
"Facility" means any New Facility hereafter acquired by the Parent or any of its Subsidiaries, including, without limitation, the land on which each such facility is located, all buildings and other improvements thereon, and all fixtures located thereat or used in connection therewith.
"FASB ASC" means the Accounting Standards Codification of the Financial Accounting Standards Board.
"FATCA" means Sections 1471 through 1474 of the Internal Revenue 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) and any current or future regulations or official

DOCID - 27822767.5
 
 
- 22 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code.
"FCPA" has the meaning specified therefor in Section 6.01(bb).
"Federal Funds Rate" means, for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
"Fee Letter" means the fourth amended and restated fee letter, dated as of the Effective Date, as amended and restated as of the ThirdFourth Amendment Effective Date, among the Borrowers and the Agents.
"Final Maturity Date" means September 2430, 20182020.
"Financial Statements" means (a) the audited consolidated balance sheet of the Parent and its Subsidiaries for the Fiscal Year ended December 31, 2014, and the related consolidated statement of operations, shareholders' equity and cash flows for the Fiscal Year then ended, (b) the unaudited consolidated balance sheet of the Parent and its Subsidiaries for the six months ended June 30, 2015, and the related consolidated statement of operations and cash flows for the six months then ended, (c) the audited consolidated balance sheet of Vegas.com and its Subsidiaries for the Fiscal Year ended December 31, 2014, and the related consolidated statement of operations, shareholders' equity and cash flows for the Fiscal Year then ended, and (d) the unaudited consolidated balance sheet of Vegas.com and its Subsidiaries for the six months ended June 30, 2015, and the related consolidated statement of operations for the six months then ended.
"First Amendment" means Amendment No. 1 to Financing Agreement, dated as of September 20, 2016, among the Borrowers, the Guarantors, the Lenders, and the Agents.
"First Amendment Disbursement Agreement" shall mean the Disbursement Agreement, dated as of the First Amendment Effective Date, by and among the Loan Parties, the Agents and the Lenders, and the related funds flow memorandum describing the sources and uses of all cash payments in connection with the making of the Additional Loan on the First Amendment Effective Date.
"First Amendment Effective Date" shall have the meaning specified therefor in Section 5 of the First Amendment.
"Fiscal Year" means the fiscal year of the Parent and its Subsidiaries ending on December 31st of each year.
"Foreign Official" has the meaning specified therefor in Section 6.01(bb).

DOCID - 27822767.5
 
 
- 23 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




"Foreign Sovereign Immunities Act" means the US Foreign Sovereign Immunities Act of 1976 (28 U.S.C. Sections 1602-1611), as amended.
"Foreign Subsidiary" means any Subsidiary of the Parent that is not a Domestic Subsidiary.
"Fourth Amendment" means Amendment No. 4 and Waiver to Financing Agreement, dated as of April 30, 2018, among the Borrowers, the Guarantors, the Lenders, and the Agents.
"Fourth Amendment Effective Date" has the meaning specified therefor in Section 4 of the Fourth Amendment.
"Funding Losses" has the meaning specified therefor in Section 2.08(a).
"GAAP" means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis, provided that for the purpose of Section 7.03 hereof and the definitions used therein, "GAAP" shall mean generally accepted accounting principles in effect on the date hereof and consistent with those used in the preparation of the Financial Statements, provided further that if there occurs after the date of this Agreement any change in GAAP that affects in any respect the calculation of any covenant contained in Section 7.03 hereof, the Collateral Agent and the Administrative Borrower shall negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant with the intent of having the respective positions of the Lenders and the Borrowers after such change in GAAP conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, the covenants in Section 7.03 hereof shall be calculated as if no such change in GAAP has occurred.
"Governing Documents" means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization, and the operating agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture, declaration or other applicable agreement or documentation evidencing or otherwise relating to its formation or organization, governance and capitalization; and (d) with respect to any of the entities described above, any other agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization.
"Governmental Authority" means any nation or government, any foreign, Federal, state, territory, provincial, city, town, municipality, county, local or other political subdivision thereof or thereto and any department, commission, board, bureau, instrumentality, agency or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

DOCID - 27822767.5
 
 
- 24 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




"Guaranteed Obligations" has the meaning specified therefor in Section 11.01.
"Guarantor" means (a) each Subsidiary of the Parent listed as a "Guarantor" on the signature pages hereto, and (b) each other Person which guarantees, pursuant to Section 7.01(b) or otherwise, all or any part of the Obligations.
"Guaranty" means (a) the guaranty of each Guarantor party hereto contained in Article XI hereof and (b) each other guaranty, in form and substance satisfactory to the Collateral Agent, made by any other Guarantor in favor of the Collateral Agent for the benefit of the Agents and the Lenders guaranteeing all or part of the Obligations.
"Hazardous Material" means (a) any element, compound or chemical that is defined, listed or otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or hazardous substance, extremely hazardous substance or chemical, hazardous waste, special waste, or solid waste under Environmental Laws or that is likely to cause immediately, or at some future time, harm to or have an adverse effect on, the environment or risk to human health or safety, including, without limitation, any pollutant, contaminant, waste, hazardous waste, toxic substance or dangerous good which is defined or identified in any Environmental Law and which is present in the environment in such quantity or state that it contravenes any Environmental Law; (b) petroleum and its refined products; (c) polychlorinated biphenyls; (d) any substance exhibiting a hazardous waste characteristic, including, without limitation, corrosivity, ignitability, toxicity or reactivity as well as any radioactive or explosive materials; and (e) any raw materials, building components (including, without limitation, asbestos-containing materials) and manufactured products containing hazardous substances listed or classified as such under Environmental Laws.
"Hedging Agreement" means any interest rate, foreign currency, commodity or equity swap, collar, cap, floor or forward rate agreement, or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity or equity values (including, without limitation, any option with respect to any of the foregoing and any combination of the foregoing agreements or arrangements), and any confirmation executed in connection with any such agreement or arrangement.
"Highest Lawful Rate" means, with respect to any Agent or any Lender, the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Obligations under laws applicable to such Agent or such Lender which are currently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.
"Holdout Lender" has the meaning specified therefor in Section 12.02(b).
"Indebtedness" means, with respect to any Person, without duplication, (a) all indebtedness of such Person for borrowed money; (a) all obligations of such Person for the deferred purchase price of property or services (other than trade payables or other accounts payable incurred in the ordinary course of such Person's business and not outstanding for more than 90 days after the date such payable was created and any earn-out, purchase price adjustment or similar obligation

DOCID - 27822767.5
 
 
- 25 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




until such obligation appears in the liabilities section of the balance sheet of such Person); (a) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or upon which interest payments are customarily made; (a) all reimbursement, payment or other obligations and liabilities of such Person created or arising under any conditional sales or other title retention agreement with respect to property used and/or acquired by such Person, even though the rights and remedies of the lessor, seller and/or lender thereunder may be limited to repossession or sale of such property; (a) all Capitalized Lease Obligations of such Person; (a) all obligations and liabilities, contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar facilities; (a) all obligations and liabilities, calculated on a basis satisfactory to the Collateral Agent and in accordance with accepted practice, of such Person under Hedging Agreements; (a) all monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar financing; (a) all Contingent Obligations; (a) all Disqualified Equity Interests; and (a) all obligations referred to in clauses (a) through (j) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness. The Indebtedness of any Person shall include the Indebtedness of any partnership of or joint venture in which such Person is a general partner or a joint venturer.
"Indemnified Matters" has the meaning specified therefor in Section 12.15.
"Indemnified Taxes" means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
"Indemnitees" has the meaning specified therefor in Section 12.15.
"Initial Loan" means the loans made by the Lenders to the U.S. Borrowers on the Effective Date pursuant to Article II hereof.
"Initial Loan Commitment" means, with respect to each Lender, the commitment of such Lender to make the Initial Loan on the Effective Date in the amount set forth opposite such Lender's name under the heading "Initial Loan Commitment" on Schedule 1.01(A) hereto, or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement.
"Initial Loan Make-Whole Amount" means, as of any date of determination, an amount equal to (i) the difference between (A) the aggregate amount of interest (including, without limitation, interest payable in cash, in kind or deferred) which would have otherwise been payable on the principal amount of the Initial Loan paid on such date (or in the case of an Applicable Premium Trigger Event specified in clauses (b), (c) or (d) of the definition thereof, the principal amount of the Initial Loan outstanding on such date) from the date of the occurrence of the Applicable Premium Trigger Event until the twenty-fourtwelve (2412) month anniversary of the Fourth Amendment Effective Date, minus (B) the aggregate amount of interest the Lenders would earn if the principal

DOCID - 27822767.5
 
 
- 26 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




amount of the Initial Loan paid on such date (or in the case of an Applicable Premium Trigger Event specified in clauses (b), (c) or (d) of the definition thereof, the principal amount of the Initial Loan outstanding on such date) were reinvested for the period from the date of the occurrence of the Applicable Premium Trigger Event until the twenty-fourtwelve (2412) month anniversary of the Fourth Amendment Effective Date at the Treasury Rate plus (ii) an amount equal to 3% times the aggregate amount of all Obligations in respect of the Initial Loan paid on such date (or, in the case of an Applicable Premium Trigger Event specified in clauses (b), (c) or (d) of the definition thereof, the aggregate amount of all Obligations in respect of the Initial Loan outstanding on such date); provided, that, notwithstanding any of the foregoing, the Initial Loan Make-Whole Amount shall mean zero if the Specified Condition has been satisfied on or prior to the occurrence of the Applicable Premium Trigger Event.
"Insolvency Proceeding" means any proceeding commenced by or against any Person under any provision of any Debtor Relief Law.
"Insurance Receipts" means any cash received by the Parent or any of its Subsidiaries consisting of (a) proceeds of insurance (other than to the extent such insurance proceeds are (i) immediately payable to a Person that is not the Parent or any of its Subsidiaries in accordance with applicable Requirements of Law or with Contractual Obligations entered into in the ordinary course of business or (ii) received by the Parent or any of its Subsidiaries as reimbursement for any out-of-pocket costs incurred or made by such Person prior to the receipt thereof directly related to the event resulting from the payment of such proceeds), and (b) condemnation awards (and payments in lieu thereof).
"Intellectual Property" has the meaning specified therefor in the Security Agreement.
"Intellectual Property Contracts" means all agreements concerning Intellectual Property, including without limitation license agreements, technology consulting agreements, confidentiality agreements, co-existence agreements, consent agreements and non-assertion agreements.
"Intercompany Subordination Agreement" means an Intercompany Subordination Agreement made by the Parent and its Subsidiaries in favor of the Collateral Agent for the benefit of the Agents and the Lenders, in form and substance reasonably satisfactory to the Collateral Agent.
"Interest Period" means, with respect to each LIBOR Rate Loan, a period commencing on the date of the making of such LIBOR Rate Loan (or the automatic continuation of a LIBOR Rate Loan) and ending 3 months thereafter; provided, however, that (a) if any Interest Period would end on a day that is not a Business Day, such Interest Period shall be extended (subject to clauses (c)-(d) below) to the next succeeding Business Day, (b) interest shall accrue at the applicable rate based upon the LIBOR Rate from and including the first day of each Interest Period to, but excluding, the day on which any Interest Period expires, (c) any Interest Period that would end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day, (d) with respect to an Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding

DOCID - 27822767.5
 
 
- 27 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




day in the calendar month at the end of such Interest Period), the Interest Period shall end on the last Business Day of the calendar month that is 3 months after the date on which the Interest Period began.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended (or any successor statute thereto) and the regulations thereunder.
"Inventory" means, with respect to any Person, all goods and merchandise of such Person leased or held for sale or lease by such Person, including, without limitation, all raw materials, work-in-process and finished goods, and all packaging, supplies and materials of every nature used or usable in connection with the shipping, storing, advertising or sale of such goods and merchandise, whether now owned or hereafter acquired, and all such other property the sale or other disposition of which would give rise to an Account or cash.
"Investment" means, with respect to any Person, (a) any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances or other extensions of credit (excluding Accounts arising in the ordinary course of business), capital contributions or acquisitions of Indebtedness (including, any bonds, notes, debentures or other debt securities), Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), (b) the purchase or ownership of any futures contract or liability for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or (c) any investment in any other items that are or would be classified as investments on a balance sheet of such Person prepared in accordance with GAAP.
"Joinder Agreement" means a Joinder Agreement, substantially in the form of Exhibit A, duly executed by a Subsidiary of a Loan Party made a party hereto pursuant to Section 7.01(b).
"LasVegas.com License Agreement" means the Mark and Domain Name License Agreement, dated as of June 10, 2005, by and between Stephens Media Intellectual Property, LLC, a Delaware limited liability company, and, as to Sections 9.5 and 14.8 thereof only, DR Partners, a Nevada General Partnership, d/b/a Stephens Media Group, and Vegas.com, LLC, a Nevada limited liability company and Greenspun Media Group, a Nevada corporation, and as to Sections 9.5, 10 and 14.7 thereof only, Las Vegas Sun, Inc., a Nevada corporation.
"Lease" means any lease of real property to which any Loan Party or any of its Subsidiaries is a party as lessor or lessee.
"Lender" has the meaning specified therefor in the preamble hereto.
"Letter of Credit Facility Agreement" means the Bank of America Loan Agreement or any substitute agreement therefor that is reasonably acceptable to the Collateral Agent, providing for the issuance of letters of credit, surety bonds and/or other similar instruments thereunder.
"LIBOR" means, with respect to any LIBOR Rate Loan for any Interest Period, the London interbank offered rate as administered by the ICE Benchmark Administration (or any other

DOCID - 27822767.5
 
 
- 28 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




Person that takes over the administration of such rate) for Dollars for a period equal in length to such Interest Period as displayed on page LIBOR01 or LIBOR02 of the Reuters Screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; in each case, the "Screen Rate"), at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided, that, if the Screen Rate shall not be available at such time for such Interest Period (an "Impacted Interest Period") with respect to Dollars, then the LIBOR Rate shall be the Interpolated Rate at such time. "Interpolated Rate" means, at any time, the rate per annum determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the Screen Rate for the longest period (for which that Screen Rate is available in Dollars) that is shorter than the Impacted Interest Period and (b) the Screen Rate for the shortest period (for which that Screen Rate is available for Dollars) that exceeds the Impacted Interest Period, in each case, at such time. Notwithstanding anything herein to the contrary, if "LIBOR" shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
"LIBOR Rate" means, for each Interest Period for each LIBOR Rate Loan, the greater of (a) the rate per annum determined by the Administrative Agent (rounded upwards if necessary, to the next 1/100%) by dividing (i) LIBOR for such Interest Period by (ii) 100% minus the Reserve Percentage and (b) 1.00%. The LIBOR Rate shall be adjusted on and as of the effective day of any change in the Reserve Percentage.
"LIBOR Rate Loan" means each portion of a Loan that bears interest at a rate determined by reference to the LIBOR Rate.
"Lien" means any mortgage, deed of trust, pledge, lien (statutory or otherwise), security interest, charge or other encumbrance or security or preferential arrangement of any nature, including, without limitation, any conditional sale or title retention arrangement, any Capitalized Lease and any assignment, deposit arrangement or financing lease intended as, or having the effect of, security.
"Loan" means the Initial Loan made by the Lenders to the U.S. Borrowers on the Effective Date and the Additional Loan made by the Lenders to the BVI Borrower on the First Amendment Effective Date, in each case pursuant to Article II hereof.
"Loan Account" means an account maintained hereunder by the Administrative Agent on its books of account at the Payment Office, and with respect to the U.S. Borrowers, in which the U.S. Borrowers will be charged with all U.S. Initial Loans made to, and all other Obligations incurred by, the U.S. Borrowers, and with respect to the BVI Borrower, in which the BVI Borrower will be charged with all BVIAdditional Loans made to, and all other Obligations incurred by, the BVI Borrower.
"Loan Document" means this Agreement, any Control Agreement, any Credit Card Acknowledgment, the Disbursement Letter, any Domain Name Control Agreement, the Fee Letter,

DOCID - 27822767.5
 
 
- 29 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




any Guaranty, the Intercompany Subordination Agreement, any Joinder Agreement, any Mortgage, any Security Agreement, the Shareholder Letter, the Side Letter, any UCC Filing Authorization Letter, the Vegas.com Acquisition Collateral Assignment, any VCOC Management Rights Agreement, any landlord waiver, any collateral access agreement, any Perfection Certificate and any other agreement, instrument, certificate, report and other document executed and delivered pursuant hereto or thereto or otherwise evidencing or securing any Loan or any other Obligation, but excluding, for the avoidance of doubt, the Equity Documents.
"Loan Party" means any Borrower and any Guarantor.
"Make-Whole Amount" means the Initial Loan Make-Whole Amount and/or the Additional Loan Make-Whole Amount, as applicable.
"Material Adverse Effect" means a material adverse effect on any of (a) the operations, assets, liabilities or financial condition of the Loan Parties taken as a whole, (b) the ability of the Loan Parties taken as a whole to perform any of their obligations under any Loan Document, (c) the legality, validity or enforceability of this Agreement or any other Loan Document, (d) the rights and remedies of any Agent or any Lender under any Loan Document, or (e) the validity, perfection or priority of a Lien in favor of the Collateral Agent for the benefit of the Agents and the Lenders on Collateral having a fair market value in excess of $375,000.
"MGG" has the meaning specified therefor in the preamble hereto.
"Moody's" means Moody's Investors Service, Inc. and any successor thereto.
"Mortgage" means a mortgage, deed of trust or deed to secure debt, in form and substance satisfactory to the Collateral Agent, made by a Loan Party in favor of the Collateral Agent for the benefit of the Agents and the Lenders, securing the Obligations and delivered to the Collateral Agent.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA to which any Loan Party or any of its ERISA Affiliates has contributed, or has been obligated to contribute, to at any time during the preceding 6 years.
"Net Cash Proceeds" means, with respect to, any issuance or incurrence of any Indebtedness, any Disposition or the receipt of any Extraordinary Receipts or Insurance Receipts by any Person or any of its Subsidiaries, the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Person or such Subsidiary, in connection therewith after deducting therefrom only (a) in the case of any Disposition or the receipt of any Insurance Receipts, the amount of any Indebtedness secured by any Permitted Lien on any asset (other than Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid in connection therewith (other than Indebtedness under this Agreement), (b) reasonable expenses related thereto incurred by such Person or such Subsidiary in connection therewith, (c) transfer taxes paid to any taxing authorities by such Person or such Subsidiary in connection therewith, and (d) net income taxes to be paid in connection therewith (after taking into account any tax credits or deductions and any tax

DOCID - 27822767.5
 
 
- 30 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




sharing arrangements), in each case, to the extent, but only to the extent, that the amounts so deducted are (i) actually paid to a Person that, except in the case of reasonable out-of-pocket expenses, is not an Affiliate of such Person or any of its Subsidiaries and (ii) properly attributable to such transaction or to the asset that is the subject thereof.
"New Facility" has the meaning specified therefor in Section 7.01(m).
"New Lending Office" has the meaning specified therefor in Section 2.09(e)
"Non-U.S. Lender" has the meaning specified therefor in Section 2.09(e).
"Notice of Borrowing" has the meaning specified therefor in Section 2.02(a).
"Obligations" means all present and future indebtedness, obligations, and liabilities of each Loan Party to the Agents and the Lenders arising under or in connection with this Agreement or any other Loan Document, whether or not the right of payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured, unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 9.01. Without limiting the generality of the foregoing, the Obligations of each Loan Party under the Loan Documents include (a) the obligation (irrespective of whether a claim therefor is allowed in an Insolvency Proceeding) to pay principal, interest, charges, expenses, fees, premiums (including the Applicable Premium), attorneys' fees and disbursements, indemnities and other amounts payable by such Person under the Loan Documents, and (b) the obligation of such Person to reimburse any amount in respect of any of the foregoing that any Agent or any Lender (in its sole discretion) may elect to pay or advance on behalf of such Person. For the avoidance of doubt, (i) except to the extent otherwise provided in any other Loan Document, "Obligations" shall not include any obligations under the Equity Documents, and (ii) with respect to the obligation of any BVI Loan Party to pay the Obligations, the term "Obligations" shall not include the U.S. Obligations.
"OFAC Sanctions Programs" means (a) the Requirements of Law and Executive Orders administered by OFAC, including, without limitation, Executive Order No. 13224, and (b) the list of Specially Designated Nationals and Blocked Persons administered by OFAC, in each case, as renewed, extended, amended, or replaced.
"Other Connection Taxes" means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
"Other Taxes" means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document.

DOCID - 27822767.5
 
 
- 31 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




"Parent" has the meaning specified therefor in the preamble hereto.
"Participant Register" has the meaning specified therefor in Section 12.07(i).
"Payment Office" means the Administrative Agent's office located at 888 7th Avenue, New York, New York 10106, or at such other office or offices of the Administrative Agent as may be designated in writing from time to time by the Administrative Agent to the Collateral Agent and the Administrative Borrower.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor thereto.
"Perfection Certificate" means a certificate in form and substance satisfactory to the Collateral Agent providing information with respect to the property of each Loan Party.
"Permitted Acquisition" means any Acquisition by a Loan Party to the extent that each of the following conditions shall have been satisfied:
(a)    no Default or Event of Default shall have occurred and be continuing or would result from the consummation of the proposed Acquisition;
(b)    the Borrowers shall have furnished to the Agents at least 10 Business Days prior to the consummation of such Acquisition (i) an executed term sheet and/or commitment letter (setting forth in reasonable detail the terms and conditions of such Acquisition) and, at the request of any Agent, such other information and documents that any Agent may reasonably request, including, without limitation, executed counterparts of the respective agreements, instruments or other documents pursuant to which such Acquisition is to be consummated (including, without limitation, any related management, non-compete, employment, option or other material agreements), any schedules to such agreements, instruments or other documents and all other material ancillary agreements, instruments or other documents to be executed or delivered in connection therewith, (ii) pro forma financial statements of the Parent and its Subsidiaries after the consummation of such Acquisition, (iii) a certificate of the chief financial officer of the Parent, demonstrating on a pro forma basis compliance, as at the end of the most recently ended fiscal quarter for which internally prepared financial statements are available, with all covenants set forth in Section 7.03 hereof after the consummation of such Acquisition, and (iv) copies of such other agreements, instruments or other documents as any Agent shall reasonably request;
(c)    the agreements, instruments and other documents referred to in paragraph (c) above shall provide that (i) neither the Loan Parties nor any of their Subsidiaries shall, in connection with such Acquisition, assume or remain liable in respect of any Indebtedness of the Seller or Sellers, or other obligation of the Seller or Sellers (except for obligations incurred in the ordinary course of business in operating the property so acquired and necessary or desirable to the continued operation of such property and except for Permitted Indebtedness), and (ii) all property to be so acquired in connection with such Acquisition shall be free and clear of any and all Liens, except for Permitted Liens (and if any such property is subject to any Lien not permitted by this clause (ii) then concurrently with such Acquisition such Lien shall be released);

DOCID - 27822767.5
 
 
- 32 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




(d)    such Acquisition shall be effected in such a manner so that the acquired assets or Equity Interests are owned by a Loan Party and, if effected by merger or consolidation involving a Loan Party, such Loan Party shall be the continuing or surviving Person;
(e)    the assets being acquired or the Person whose Equity Interests are being acquired did not have negative Consolidated EBITDA during the 12 consecutive month period most recently concluded prior to the date of the proposed Acquisition (except to the extent otherwise approved in writing by the Agents);
(f)    the assets being acquired (other than a de minimis amount of assets in relation to the Loan Parties' and their Subsidiaries' total assets), or the Person whose Equity Interests are being acquired, are engaged in a Permitted Business;
(g)    the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States;
(h)    such Acquisition shall be consensual and shall have been approved by the board of directors of the Person whose Equity Interests or assets are proposed to be acquired and shall not have been preceded by an unsolicited tender offer for such Equity Interests by, or proxy contest initiated by, the Parent or any of its Subsidiaries or an Affiliate thereof;
(i)    any such Subsidiary (and its equityholders) shall execute and deliver the agreements, instruments and other documents required by Section 7.01(b) on or prior to the date of the consummation of such Acquisition; and
(j)    the Purchase Price payable in respect of (i) any single Acquisition or series of related Acquisitions shall not exceed $7,500,000 in the aggregate and (ii) all Acquisitions (including the proposed Acquisition) shall not exceed $15,000,000 in the aggregate during the term of this Agreement.
"Permitted Business" means the ownership and/or operation of digital media properties.
"Permitted Disposition" means:
(a)    sale of Inventory in the ordinary course of business;
(b)    licensing, on a non-exclusive basis, Intellectual Property rights in the ordinary course of business;
(c)    leasing or subleasing assets in the ordinary course of business;
(d)    (i) the lapse of Registered Intellectual Property of the Parent and its Subsidiaries to the extent not economically desirable in the conduct of their business or (ii) the abandonment of Intellectual Property rights in the ordinary course of business so long as (in each case under clauses (i) and (ii)), (A) with respect to copyrights, such copyrights are not material

DOCID - 27822767.5
 
 
- 33 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




revenue generating copyrights, and (B) such lapse is not materially adverse to the interests of the Secured Parties;
(e)    any involuntary loss, damage or destruction of property;
(f)    any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property;
(g)    so long as no Event of Default has occurred and is continuing or would result therefrom, transfers of assets (i) from a Loan Party to another Loan Party, and (ii) from any Subsidiary of the Parent that is not a Loan Party to the Parent or any other Subsidiary of the Parent;
(h)    Disposition of the Sharecare Equity, provided that:
(i)    (A) both before and after giving effect to such Disposition, no Default or Event of Default exists, (B) the Parent receives, at the time of such Disposition, cash consideration in respect of such Disposition in an aggregate amount not less than the Release Price for the Sharecare Equity, and (C) the documentation in respect of such Disposition is reasonably satisfactory to the Collateral Agent, or
(ii) (A) the Disposition is required to be made pursuant to Section 6 of the Right of First Refusal, Co-Sale and Change of Control Agreement, dated as of October 30, 2009, among Sharecare and the holders of its Equity Interests party thereto, (B) the Sharecare SPV did not vote any of its Sharecare Equity in favor of the transaction giving rise to the requirement for such Disposition (except as required pursuant to Section 6 of the agreement described in subclause (A)), and (C) the Sharecare SPV receives consideration in respect of such Disposition at the time of such Disposition, consisting of cash in an amount not less than the Release Price, or, if the only consideration being offered is Equity Interests of another Person, such Equity Interests ("Received Equity"), but only if:
(1) (w) the Received Equity is traded on a national securities exchange, (x) the fair market value of the Received Equity (as determined by reference to the trading price thereof) is not less than the Release Price for the Sharecare Equity, (y) the Sharecare SPV Disposes of the Received Equity as soon as the Disposition of such Received Equity is not prohibited by applicable securities laws, and receives cash consideration therefor at the time of such Disposition in an amount not less than the fair market value of the Received Equity (as determined by reference to the trading price thereof) and (z) the Net Cash Proceeds of each such Disposition of Received Equity are applied in accordance with Section 2.05(c)(ii) as if clause (h) of the definition of Permitted Dispositions were not excluded from the provisions of Section 2.05(c)(ii), or
(2) (v) the Parent provides written notice to the Collateral Agent within three Business Days of the date on which it or any of its Subsidiaries is advised of, or otherwise becomes aware of, the transaction giving rise to the requirement for such Disposition, (w) the Sharecare SPV uses its commercially reasonable best efforts

DOCID - 27822767.5
 
 
- 34 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




(and takes all actions reasonably requested by the Collateral Agent) to promptly sell the Sharecare Equity to a third party for cash in an amount not less than the Release Price prior to the date on which the transaction giving rise to the requirement for such Disposition is consummated, (x) the fair market value of the Received Equity (as determined in good faith by the Parent and the Collateral Agent, or if the Parent and the Collateral Agent cannot agree, by a Qualified Appraiser) is not less than the Release Price, (y) the Sharecare SPV uses its best efforts (and takes all actions requested by the Collateral Agent) to promptly sell the Received Equity to a third party for cash in an amount not less than the Release Price within 60 days following the date of receipt thereof; and (z) the Net Cash Proceeds of each such Disposition of Received Equity are applied in accordance with Section 2.05(c)(ii) as if clause (h) of the definition of Permitted Dispositions were not excluded from the provisions of Section 2.05(c)(ii);
(i)    Disposition of any Specified Asset, provided that (i) both before and after giving effect to such Disposition, no Default or Event of Default exists, (ii) the Parent receives, at the time of such Disposition, cash consideration in respect of such Disposition in an aggregate amount not less than the Release Price for such Specified Asset, and (iii) the documentation in respect of such Disposition is reasonably satisfactory to the Collateral Agent;
(j)    Disposition of obsolete or worn-out equipment in the ordinary course of business; and
(k)    Disposition of property or assets (other than the Sharecare Equity or any Specified Asset) not otherwise permitted in clauses (a) through (j) above for cash in an aggregate amount not less than the fair market value of such property or assets;
provided that the Net Cash Proceeds of such Dispositions (including the proposed Disposition) (1) in the case of clauses (j) and (k) above, do not exceed $500,000 in the aggregate in any Fiscal Year, (2) in the case of clause (h), are delivered to the Administrative Agent for deposit into the Cash Collateral Account in accordance with Section 7.01(q), and (3) in all cases (other than clause (h)), are paid to the Administrative Agent for the benefit of the Agents and the Lenders pursuant to the terms of Section 2.05(c)(ii) or applied as provided in Section 2.05(c)(v).
"Permitted Holder" means Kai-Shing Tao or any Controlled Investment Affiliate thereof.
"Permitted Indebtedness" means:
(a)    any Indebtedness owing to any Agent or any Lender under this Agreement and the other Loan Documents;
(b)    any Indebtedness listed on Schedule 7.02(b), and any Permitted Refinancing Indebtedness in respect of such Indebtedness;

DOCID - 27822767.5
 
 
- 35 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




(c)    Permitted Purchase Money Indebtedness and any Permitted Refinancing Indebtedness in respect of such Indebtedness;
(d)    Permitted Intercompany Investments;
(e)    Indebtedness incurred in the ordinary course of business under performance, surety, statutory, and appeal bonds;
(f)    Indebtedness owed to any Person providing property, casualty, liability, or other insurance to the Loan Parties, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the period in which such Indebtedness is incurred and such Indebtedness is outstanding only during such period;
(g)    the incurrence by any Loan Party of Indebtedness under Hedging Agreements that are incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency risks associated with such Loan Party's operations and not for speculative purposes;
(h)    Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called "procurement cards" or "P-cards") or other similar cash management services, in each case, incurred in the ordinary course of business;
(i)    contingent liabilities in respect of any indemnification obligation, adjustment of purchase price, non-compete, or similar obligation of any Loan Party incurred in connection with the consummation of one or more Permitted Acquisitions;
(j)    the Vegas.com Earnout Payments in an aggregate principal amount not exceeding $3,000,000; provided that such amounts are paid in accordance with the terms of the Vegas.com Acquisition Agreement, as in effect on the Effective Date;
(k)    (i) any amount of Subordinated Indebtedness issued to DigiPac pursuant to the terms of the Shareholder Letter, and (ii) other Subordinated Indebtedness in an aggregate principal amount not exceeding $500,000 at any time outstanding; and
(l)    Indebtedness outstanding under a Letter of Credit Facility Agreement; provided that (i) such Indebtedness consists entirely of reimbursement obligations in respect of letters of credit, surety bonds and/or other similar instruments issued thereunder (and related fees and expenses); (ii) the aggregate principal amount of such Indebtedness (which shall be equal to the face amount of the letters of credit, surety bonds and/or other similar instruments issued thereunder) does not exceed $11,000,000; and (iii) such Indebtedness is unsecured, other than with respect to Liens on cash collateral to the extent permitted by clause (p) of the definition of "Permitted Liens".
"Permitted Intercompany Investments" means Investments made by (a) a U.S. Loan Party to or in another U.S. Loan Party, (b) a Subsidiary that is not a U.S. Loan Party to or in another

DOCID - 27822767.5
 
 
- 36 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




Subsidiary that is not a Loan Party, (c) a Subsidiary that is not a U.S. Loan Party to or in a Loan Party, so long as, in the case of a loan or advance, the parties thereto are party to the Intercompany Subordination Agreement and (d) a U.S. Loan Party to or in a Subsidiary that is not a U.S. Loan Party so long as (i) the aggregate amount of all such Investments outstanding at any time made by the U.S. Loan Parties to or in Subsidiaries that are not U.S. Loan Parties does not exceed (A) the aggregate amount of $15,000,00030,000,000 in the case of Subsidiaries of the Parent that are not U.S. Loan Parties, and whose primary business is the operation of the KanKan social media channelartificial intelligence data platform; provided, that both before and after giving effect to such Investment, (x) the Loan Parties shall be in compliance with Section 7.03(d) and (y) all Second Future Equity Raise Amounts (as defined in the Side Letter and without giving effect to the "best efforts" qualifier in Section 6 of the Side Letter) shall have been deposited in an account subject to a Control Agreement and (B) $350,000 in the case of all other Subsidiaries of the Parent that are not U.S. Loan Parties (not including any Subsidiary covered by subclause (A)), and (ii) no Default or Event of Default has occurred and is continuing either before or after giving effect to such Investment.
"Permitted Investments" means:
(a)    Investments in cash and Cash Equivalents;
(b)    Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business;
(c)    advances made in connection with purchases of goods or services in the ordinary course of business;
(d)    Investments received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries;
(e)    Investments existing on the date hereof, as set forth on Schedule 7.02(e) hereto, but not any increase in the amount thereof as set forth in such Schedule or any other modification of the terms thereof;
(f)    Permitted Intercompany Investments; and
(g)    Permitted Acquisitions.
"Permitted Liens" means:
(a)    Liens securing the Obligations;
(b)    Liens for taxes, assessments and governmental charges the payment of which is not required under Section 7.01(c)(ii);

DOCID - 27822767.5
 
 
- 37 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




(c)    Liens imposed by law, such as carriers', warehousemen's, mechanics', materialmen's and other similar Liens arising in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money) that are not overdue by more than 30 days or are being contested in good faith and by appropriate proceedings promptly initiated and diligently conducted, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor;
(d)    Liens described on Schedule 7.02(a), provided that any such Lien shall only secure the Indebtedness that it secures on the Effective Date and any Permitted Refinancing Indebtedness in respect thereof;
(e)    purchase money Liens on equipment acquired or held by any Loan Party or any of its Subsidiaries in the ordinary course of its business to secure Permitted Purchase Money Indebtedness so long as such Lien only (i) attaches to such property and (ii) secures the Indebtedness that was incurred to acquire such property or any Permitted Refinancing Indebtedness in respect thereof;
(f)    deposits and pledges of cash securing (i) obligations incurred in respect of workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, (ii) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations or (iii) obligations on surety or appeal bonds, but only to the extent such deposits or pledges are made or otherwise arise in the ordinary course of business and secure obligations not past due;
(g)    with respect to any Facility, easements, zoning restrictions and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money or (ii) materially impair the value of such property or its use by any Loan Party or any of its Subsidiaries in the normal conduct of such Person's business;
(h)    Liens of landlords and mortgagees of landlords (i) arising by statute or under any lease or related Contractual Obligation entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, or (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP;
(i)    the title and interest of a lessor or sublessor in and to personal property leased or subleased (other than through a Capitalized Lease), in each case extending only to such personal property;
(j)    non-exclusive licenses of Intellectual Property rights in the ordinary course of business;
(k)    judgment liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings not constituting an Event of Default under Section 9.01(j);

DOCID - 27822767.5
 
 
- 38 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




(l)    rights of set-off or bankers' liens upon deposits of cash in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of such deposit accounts in the ordinary course of business;
(m)    Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness;
(n)    Liens solely on any cash earnest money deposits made by any Loan Party in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition;
(p)    Liens on cash collateral securing Indebtedness outstanding under the Letter of Credit Facility Agreement; provided, that the aggregate amount of such cash collateral does not exceed, at any time, 105% of the face amount of the letters of credit, surety bonds and/or other similar instruments outstanding under the Letter of Credit Facility Agreement at such time; and
(q)    other Liens which do not secure Indebtedness for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $250,000.
"Permitted Purchase Money Indebtedness" means, as of any date of determination, Indebtedness (other than the Obligations, but including Capitalized Lease Obligations) incurred to finance the acquisition of any fixed assets secured by a Lien permitted under clause (e) of the definition of "Permitted Liens"; provided that (a) such Indebtedness is incurred within 20 days after such acquisition, (b) such Indebtedness when incurred shall not exceed the purchase price of the asset financed and (c) the aggregate principal amount of all such Indebtedness shall not exceed $250,000 at any time outstanding.
"Permitted Refinancing Indebtedness" means the extension of maturity, refinancing or modification of the terms of Indebtedness so long as:
(a)    after giving effect to such extension, refinancing or modification, the amount of such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification (other than by the amount of premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto);
(b)    such extension, refinancing or modification does not result in a shortening of the average weighted maturity (measured as of the extension, refinancing or modification) of the Indebtedness so extended, refinanced or modified;
(c)    such extension, refinancing or modification is pursuant to terms that are not less favorable to the Loan Parties and the Lenders than the terms of the Indebtedness (including, without limitation, terms relating to the collateral (if any) and subordination (if any)) being extended, refinanced or modified; and

DOCID - 27822767.5
 
 
- 39 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




(d)    the Indebtedness that is extended, refinanced or modified is not recourse to any Loan Party or any of its Subsidiaries that is liable on account of the obligations other than those Persons which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended.
"Permitted Restricted Payments" means any of the following Restricted Payments made by:
(a)    any Subsidiary of any Loan Party to such Loan Party,
(b)    the Parent to pay dividends in the form of common Equity Interests; and
(c)    any Loan Party or any of its Subsidiaries with any Affiliate thereof to the extent expressly permitted pursuant to Section 7.02(j) (other than clause (iii) thereof).
"Permitted Specified Liens" means Permitted Liens described in clauses (a), (b) and (c) of the definition of Permitted Liens, and, solely in the case of Section 7.01(b)(i), including clauses (g), (h) and (i) of the definition of Permitted Liens.
"Person" means an individual, corporation, limited liability company, partnership, association, joint-stock company, trust, unincorporated organization, joint venture or other enterprise or entity or Governmental Authority.
"Petty Cash Accounts" means Cash Management Accounts with deposits at any time in an aggregate amount not in excess of $50,000 for any one account and $500,000 in the aggregate for all such accounts.
"Plan" means any Employee Plan or Multiemployer Plan.
"Post-Default Rate" means a rate of interest per annum equal to the rate of interest otherwise in effect from time to time pursuant to the terms of this Agreement plus 2.50%, or, if a rate of interest is not otherwise in effect, interest at the highest rate specified herein for any Loan then outstanding prior to an Event of Default plus 2.50%.
"Principal Market" means the Nasdaq Capital Market.
"Pro Rata Share" means, with respect to:
(a) a Lender's obligation to make the Initial Loan and the right to receive original issue discount amounts and/or Applicable Premium payments in respect thereof, the percentage obtained by dividing (i) such Lender's Initial Loan Commitment, by (ii) the Total Initial Loan Commitment, provided that, if the Total Initial Loan Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender's portion of the Initial Loan and the denominator shall be the aggregate unpaid principal amount of the Initial Loan,

DOCID - 27822767.5
 
 
- 40 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




(b) a Lender's obligation to make the Additional Loan and the right to receive original issue discount amounts and/or Applicable Premium payments, the percentage obtained by dividing (i) such Lender's Additional Loan Commitment, by (ii) the Total Additional Loan Commitment, provided that if the Total Additional Loan Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender's portion of the Additional Loan and the denominator shall be the aggregate unpaid principal amount of the Additional Loan, and
(c) a Lender's right to receive payments of interest, fees (other than original issue discount amounts and Applicable Premium payments) and principal with respect to the Loan, and, except as set forth in clauses (a) and (b) above, all other matters (including, without limitation, the indemnification obligations arising under Section 10.05), the percentage obtained by dividing (i) the aggregate unpaid principal amount of such Lender's portion of the Loan by (ii) the aggregate unpaid principal amount of the Loan.
"Process Agent" has the meaning specified therefor in Section 12.10(b).
"Projections" means financial projections of the Parent and its Subsidiaries delivered pursuant to Section 6.01(g)(ii), as updated from time to time pursuant to Section 7.01(a)(v).
"Purchase Price" means, with respect to any Acquisition, an amount equal to the sum of (a) the aggregate consideration, whether cash, property or securities (including, without limitation, the fair market value of any Equity Interests of any Loan Party or any of its Subsidiaries issued in connection with such Acquisition), paid or delivered by a Loan Party or any of its Subsidiaries (whether as initial consideration or through the payment or disposition of deferred consideration, including, without limitation, in the form of seller financing, royalty payments, payments allocated towards non-compete covenants, payments to principals for consulting services or other similar payments) in connection with such Acquisition, plus (b) the aggregate amount of liabilities of the acquired business (net of current assets of the acquired business) that would be reflected on a balance sheet (if such were to be prepared) of the Parent and its Subsidiaries after giving effect to such Acquisition, plus (c) the aggregate amount of all transaction fees, costs and expenses incurred by the Parent or any of its Subsidiaries in connection with such Acquisition.
"Qualified Appraisal" means an appraisal that is conducted (a) by a Qualified Appraiser, and (b) in such a manner and of such a scope as is reasonably acceptable to the Collateral Agent and the Administrative Borrower.
"Qualified Appraiser" means a qualified independent appraiser that is satisfactory to the Collateral Agent and the Administrative Borrower. For the avoidance of doubt, each of Houlihan Lokey and Lincoln International is deemed to be a Qualified Appraiser for purposes of this Agreement.
"Qualified Equity Interests" means, with respect to any Person, all Equity Interests of such Person that are not Disqualified Equity Interests.

DOCID - 27822767.5
 
 
- 41 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




"RAAD" means RAAD Productions, LLC, a California limited liability company.
"Real Property Deliverables" means each of the following agreements, instruments and other documents in respect of each Facility:
(a)    a Mortgage duly executed by the applicable Loan Party,
(b)    evidence of the recording of each Mortgage in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the Lien purported to be created thereby or to otherwise protect the rights of the Collateral Agent and the Lenders thereunder;
(c)    a Title Insurance Policy with respect to each Mortgage;
(d)    a current ALTA survey and a surveyor's certificate, in form and substance satisfactory to the Collateral Agent, certified to the Collateral Agent and to the issuer of the Title Insurance Policy with respect thereto by a professional surveyor licensed in the state in which such Facility is located and satisfactory to the Collateral Agent;
(e)    if requested by the Collateral Agent, a copy of each letter issued by the applicable Governmental Authority, evidencing each Facility's compliance with all applicable building codes, fire codes, other health and safety rules and regulations, parking, density and height requirements and other building and zoning laws together with a copy of all certificates of occupancy issued with respect to each Facility;
(f)    if requested by the Collateral Agent, an opinion of counsel, satisfactory to the Collateral Agent, in the state where such Facility is located with respect to the enforceability of the Mortgage to be recorded and such other matters as the Collateral Agent may reasonably request;
(g)    a satisfactory ASTM 1527-00 Phase I Environmental Site Assessment ("Phase I ESA") (and, if requested by the Collateral Agent based upon the results of such Phase I ESA, an ASTM 1527-00 Phase II Environmental Site Assessment) of each Facility, in form and substance and by an independent firm satisfactory to the Collateral Agent; and
(h)    such other agreements, instruments and other documents (including guarantees and opinions of counsel) as the Collateral Agent may reasonably require.
"Recipient" means any Agent and any Lender as applicable.
"Reference Rate" means, for any period, the greatest of (a) 3.25% per annum, (b) the Federal Funds Rate plus 0.50% per annum, and (c) the rate last quoted by The Wall Street Journal as the "Prime Rate" in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the "bank prime loan" rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).

DOCID - 27822767.5
 
 
- 42 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




Each change in the Reference Rate shall be effective from and including the date such change is publicly announced as being effective.
"Reference Rate Loan" means each portion of a Loan that bears interest at a rate determined by reference to the Reference Rate.
"Register" has the meaning specified therefor in Section 12.07(f).
"Registered Intellectual Property" means Intellectual Property that is issued, registered, renewed or the subject of a pending application.
"Registered Loans" has the meaning specified therefor in Section 12.07(f).
"Registration Rights Agreement" means the Registration Rights Agreement, in form and substance satisfactory to the Agents, by and between the Parent and MGG Specialty Finance Fund LP, with respect to the registration rights of MGG Specialty Finance Fund LP with respect to shares of Warrant Stock that MGG Specialty Finance Fund LP may acquire and the anti-dilution and tag-along provisions applicable thereto.
"Regulation T", "Regulation U" and "Regulation X" mean, respectively, Regulations T, U and X of the Board or any successor, as the same may be amended or supplemented from time to time.
"Related Fund" means, with respect to any Person, an Affiliate of such Person, or a fund or account managed by such Person or an Affiliate of such Person.
"Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, seeping, migrating, dumping or disposing of any Hazardous Material (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Material) into the indoor or outdoor environment, including, without limitation, the movement of Hazardous Materials through or in the ambient air, soil, surface or ground water, or property.
"Release Price" means, with respect to the Sharecare Equity or any Specified Asset, the amount specified as the "Release Price" therefor in the Side Letter.
"Remedial Action" means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate or in any other way address Hazardous Materials in the indoor or outdoor environment; (b) prevent or minimize a Release or threatened Release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment; (c) perform pre-remedial studies and investigations and post-remedial operation and maintenance activities; or (d) perform any other actions authorized by 42 U.S.C. § 9601.
"Replacement Lender" has the meaning specified therefor in Section 12.02(b).

DOCID - 27822767.5
 
 
- 43 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




"Reportable Event" means an event described in Section 4043 of ERISA (other than an event not subject to the provision for 30-day notice to the PBGC under the regulations promulgated under such Section).
"Required Asset Value" has the meaning specified therefor in the Side Letter.
"Required Lenders" means Lenders whose Pro Rata Shares (calculated in accordance with clause (c) of the definition thereof, and subject to the last sentence of Section 12.02(a)) aggregate more than 50%.
"Requirements of Law" means, with respect to any Person, collectively, the common law and all federal, state, provincial, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
"Reserve Percentage" means, on any day, for any Lender, the maximum percentage prescribed by the Board (or any successor Governmental Authority) for determining the reserve requirements (including any basic, supplemental, marginal, or emergency reserves) that are in effect on such date with respect to eurocurrency funding (currently referred to as "eurocurrency liabilities") of that Lender, but so long as such Lender is not required or directed under applicable regulations to maintain such reserves, the Reserve Percentage shall be zero.
"Restricted Payment" means (a) the declaration or payment of any dividend or other distribution, direct or indirect, on account of any Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, (b) the making of any repurchase, redemption, retirement, defeasance, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interests of any Loan Party or any direct or indirect parent of any Loan Party, now or hereafter outstanding, (c) the making of any payment to retire, or to obtain the surrender of, any outstanding warrants, options or other rights for the purchase or acquisition of shares of any class of Equity Interests of any Loan Party, now or hereafter outstanding, (d) the return of any Equity Interests to any shareholders or other equity holders of any Loan Party or any of its Subsidiaries, or make any other distribution of property, assets, shares of Equity Interests, warrants, rights, options, obligations or securities thereto as such or (e) the payment of any management, consulting, monitoring or advisory fees or any other fees or expenses (including the reimbursement thereof by any Loan Party or any of its Subsidiaries) pursuant to any management, consulting, monitoring, advisory or other services agreement to (x) any of the shareholders or other equityholders of any Loan Party (other than Parent); (y) any shareholder or other equityholder of the Parent that owns 5% or more of the issued and outstanding Equity Interests of the Parent, (z) any other Subsidiaries or Affiliates of any Loan Party.
"Sale and Leaseback Transaction" means, with respect to the Parent or any of its Subsidiaries, any arrangement, directly or indirectly, with any Person whereby the Parent or any of its Subsidiaries shall sell or transfer any property used or useful in its business, whether now owned

DOCID - 27822767.5
 
 
- 44 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.
"SEC" means the Securities and Exchange Commission or any other similar or successor agency of the Federal government administering the Securities Act.
"Second Amendment" means Amendment No. 2 and Waiver and Consent to Financing Agreement, dated as of October 25November 2, 2017, among the Borrowers, the Guarantors, the Lenders, and the Agents.
"Second Amendment Effective Date" shall have the meaning specified therefor in Section 5 of the Second Amendment.
"Secured Party" means any Agent and any Lender.
"Securities Act" means the Securities Act of 1933, as amended, or any similar Federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time.
"Securitization" has the meaning specified therefor in Section 12.07(l).
"Security Agreement" means a Pledge and Security Agreement, in form and substance satisfactory to the Collateral Agent, made by a Loan Party in favor of the Collateral Agent for the benefit of the Secured Parties securing the Obligations.
"Seller" means any Person that sells Equity Interests or other property or assets to a Loan Party or a Subsidiary of a Loan Party in a Permitted Acquisition.
"Sharecare " means Sharecare, Inc., a Delaware corporation.
"Sharecare Equity" means the Equity Interests of Sharecare that are owned by the Parent or any of its Subsidiaries.
"Sharecare SPV" means Remark Holdings SPV, Inc., a Delaware corporation.
"Shareholder Letter" means the side letter, dated as of the Effective Date, by and between the Collateral Agent, the Administrative Borrower and DigiPac, as amended on the First Amendment Effective Date.
"Side Letter" means the third amended and restated side letter, dated as of the Effective Date and amended and restated as of the ThirdFourth Amendment Effective Date, by and between the Collateral Agent and the Administrative Borrower.
"Solvent" means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is not less than the total amount of the liabilities of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its existing debts as they become

DOCID - 27822767.5
 
 
- 45 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




absolute and matured, (c) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's property would constitute unreasonably small capital.
"Specified Asset" has the meaning specified therefor in the Side Letter.
"Specified Condition" means the Closing Sale Price of the Common Stock on five (5) Trading Days during any period of ten (10) consecutive Trading Days commencing after the Fourth Amendment Effective Date exceeds $18.00 (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction after the Fourth Amendment Effective Date).
"Specified Date" has the meaning specified therefor in Section 2.05(c)(vi).
"Standard & Poor's" means Standard & Poor's Ratings Services, a division of The McGraw‑Hill Companies, Inc. and any successor thereto.
"Subordinated Indebtedness" means Indebtedness of any Loan Party the terms of which (including, without limitation, payment terms, interest rates, covenants, remedies, defaults and other material terms) are satisfactory to the Collateral Agent and the Required Lenders and which has been expressly subordinated in right of payment to all Indebtedness of such Loan Party under the Loan Documents (a) by the execution and delivery of a subordination agreement, in form and substance satisfactory to the Collateral Agent and the Required Lenders, or (b) otherwise on terms and conditions satisfactory to the Collateral Agent and the Required Lenders. For the avoidance of doubt, the term "Subordinated Indebtedness" shall not include the Vegas.com Earnout Payments.
"Subsidiary" means, with respect to any Person at any date, any corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (a) the accounts of which would be consolidated with those of such Person in such Person's consolidated financial statements if such financial statements were prepared in accordance with GAAP or (b) of which more than 50% of (i) the outstanding Equity Interests having (in the absence of contingencies) ordinary voting power to elect a majority of the Board of Directors of such Person, (ii) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (iii) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or controlled directly or indirectly through one or more intermediaries, by such Person. References to a Subsidiary shall mean a Subsidiary of the Parent unless the context expressly provides otherwise.
"Swap Obligation" means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a "swap" within the meaning of section 1a(47) of the Commodity Exchange Act.

DOCID - 27822767.5
 
 
- 46 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




"Taxes" means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
"Termination Date" means the first date on which all of the Obligations are paid in full in cash and the Commitments of the Lenders are terminated.
"Termination Event" means (a) a Reportable Event with respect to any Employee Plan, (b) any event that causes any Loan Party or any of its ERISA Affiliates to incur liability under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of the Internal Revenue Code, (c) the filing of a notice of intent to terminate an Employee Plan or the treatment of an Employee Plan amendment as a termination under Section 4041 of ERISA, (d) the institution of proceedings by the PBGC to terminate an Employee Plan, or (e) any other event or condition that could reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Employee Plan.
"Third Amendment" means Amendment No. 3 to Financing Agreement, dated as of December 5, 2017, among the Borrowers, the Guarantors, the Lenders, and the Agents.
"Third Amendment Effective Date" shall have the meaning specified therefor in Section 4 of the Third Amendment.
"Title Insurance Policy" means a mortgagee's loan policy, in form and substance satisfactory to the Collateral Agent, together with all endorsements made from time to time thereto, issued to the Collateral Agent by or on behalf of a title insurance company selected by or otherwise satisfactory to the Collateral Agent, insuring the Lien created by a Mortgage in an amount and on terms and with such endorsements satisfactory to the Collateral Agent, delivered to the Collateral Agent.
"Total Additional Loan Commitment" means the sum of the amounts of the Lenders' Additional Loan Commitments.
"Total Commitment" means the sum of the Lenders' Commitments.
"Total Initial Loan Commitment" means the sum of the amounts of the Lenders' Initial Loan Commitments.
"Trading Day" means any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded; provided, that "Trading Day" shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in

DOCID - 27822767.5
 
 
- 47 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time).
"Transferee" has the meaning specified therefor in Section 2.09(a).
"Treasury Rate" means, with respect to any prepayment, a rate per annum (computed on the basis of actual days elapsed over a year of 360 days) equal to the rate determined by the Administrative Agent on the date 3 Business Days prior to the date of such prepayment, to be the yield expressed as a rate listed in The Wall Street Journal for United States Treasury securities having a term of not greater than 36 months.
"UCC Filing Authorization Letter" means a letter duly executed by each Loan Party authorizing the Collateral Agent to file appropriate financing statements on Form UCC-1 without the signature of such Loan Party in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Agreement and each Mortgage.
"Uniform Commercial Code" or "UCC" has the meaning specified therefor in Section 1.04.
"USA PATRIOT Act" means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 (Title III of Pub. L. 107-56, Oct. 26, 2001)) as amended by the USA Patriot Improvement and Reauthorization Act of 2005 (Pub. L. 109-177, March 9, 2006) and as the same may have been or may be further renewed, extended, amended, or replaced.
"U.S. Borrower" has the meaning specified therefor in the preamble hereto.
"U.S. Loan Party" means each Loan Party, other than the BVI Loan Parties.
"U.S. Obligations" means (a) the Obligations of any of the U.S. Borrowers with respect to the Initial Loan and all other amounts from time to time owing by any U.S. Loan Party with respect to the Initial Loan under any of the Loan Documents, and (b) all Obligations to the extent incurred by or related to a U.S. Loan Party or any of its Subsidiaries (other than the BVI Borrower and its Subsidiaries).
"U.S. Person" means any Person that is a "United States Person" as defined in Section 7701(a)(30) of the Internal Revenue Code.
"VCOC Management Rights Agreement" has the meaning specified therefor in Section 5.01(d)(ix).
"Vegas.com" means Vegas.com, LLC, a Nevada limited liability company.
"Vegas.com Acquisition" means the acquisition by the Parent of 100% of the Equity Interests of Vegas.com pursuant to the Vegas.com Acquisition Documents.

DOCID - 27822767.5
 
 
- 48 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018




"Vegas.com Acquisition Agreement" means the Unit Purchase Agreement, dated August 18, 2015, by and among the Parent, Vegas.com and the Vegas.com Sellers.
"Vegas.com Acquisition Collateral Assignment" means the Collateral Assignment of the Vegas.com Acquisition Documents, dated as of the date hereof, and in form and substance reasonably satisfactory to the Collateral Agent, made by the Parent in favor of the Collateral Agent.
"Vegas.com Acquisition Documents" means the Vegas.com Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith.
"Vegas.com Earnout Payments" means any "Earnout Payment" as defined in, and required to be paid by the Parent pursuant to, the Vegas.com Acquisition Agreement.
"Vegas.com Sellers" means, collectively, Amy Greenspun Arenson 2010 Legacy Trust, James Adam Greenspun 2010 Legacy Trust, Moira Greenspun Tarmy 2010 Legacy Trust, Jeffrey Aaron Fine 2010 Legacy Trust, Alyson Fine Marmur 201 Legacy Trust, Jonathan M. Fine 2010 Legacy Trust, Kathryn A. Fine 2010 Legacy Trust, DRG Holdings, LP, DRG Legacy Limited Partnership, LLP, GC Investments, LLC, and to the extent applicable, Seller Representative, James B. Gibson.
"WARN" has the meaning specified therefor in Section 6.01(p).
"Warrants" means the warrants issued to MGG Specialty Finance Fund LP to purchase Equity Interests of the Parent, which warrants shall be in form and substance satisfactory to MGG Specialty Finance Fund LP.
"Warrant Stock" has the meaning assigned to such term in the Warrants.
"Withholding Agent" means any Loan Party and the Administrative Agent.
"Working Capital" means, at any date of determination thereof, (a) the sum, for any Person and its Subsidiaries, of (i) the unpaid face amount of all Accounts of such Person and its Subsidiaries as at such date of determination, plus (ii) the aggregate amount of prepaid expenses and other current assets of such Person and its Subsidiaries as at such date of determination (other than cash, Cash Equivalents and any Indebtedness owing to such Person or any of its Subsidiaries by Affiliates of such Person), minus (b) the sum, for such Person and its Subsidiaries, of (i) the unpaid amount of all accounts payable of such Person and its Subsidiaries as at such date of determination, plus (ii) the aggregate amount of all accrued expenses of such Person and its Subsidiaries as at such date of determination (other than the current portion of long-term debt and all accrued interest and taxes).
Section 1.02    Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include", "includes" and "including" shall be deemed to be followed by the phrase "without

DOCID - 27822767.5
 
 
- 49 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





limitation". The word "will" shall be construed to have the same meaning and effect as the word "shall". Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person's successors and assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any right or interest in or to assets and properties of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
Section 1.03    Certain Matters of Construction. References in this Agreement to "determination" by any Agent include good faith estimates by such Agent (in the case of quantitative determinations) and good faith beliefs by such Agent (in the case of qualitative determinations). A Default or Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided for in this Agreement; and an Event of Default shall "continue" or be "continuing" until such Event of Default has been waived in writing by the Required Lenders. Any Lien referred to in this Agreement or any other Loan Document as having been created in favor of any Agent, any agreement entered into by any Agent pursuant to this Agreement or any other Loan Document, any payment made by or to or funds received by any Agent pursuant to or as contemplated by this Agreement or any other Loan Document, or any act taken or omitted to be taken by any Agent, shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted, for the benefit or account of the Agents and the Lenders. Wherever the phrase "to the knowledge of any Loan Party" or words of similar import relating to the knowledge or the awareness of any Loan Party are used in this Agreement or any other Loan Document, such phrase shall mean and refer to (i) the actual knowledge of an Authorized Officer of any Loan Party or (ii) the knowledge that an Authorized Officer would have obtained if such officer had engaged in good faith and diligent performance of such officer's duties, including the making of such reasonably specific inquiries as may be necessary of the employees or agents of such Loan Party and a good faith attempt to ascertain the existence or accuracy of the matter to which such phrase relates. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or otherwise within the limitations of, another covenant shall not avoid the occurrence of a default if such action is taken or condition exists. In addition, all representations and warranties hereunder shall be given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar subject matter is correct or is not breached will not affect the incorrectness of a breach of a representation or warranty hereunder.

DOCID - 27822767.5
 
 
- 50 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





Section 1.04    Accounting and Other Terms.
(a)    Unless otherwise expressly provided herein, each accounting term used herein shall have the meaning given it under GAAP. For purposes of determining compliance with any incurrence or expenditure tests set forth in Section 7.01, Section 7.02 and Section 7.03, any amounts so incurred or expended (to the extent incurred or expended in a currency other than Dollars) shall be converted into Dollars on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or, if the same does not provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Agents or, in the event no such service is selected, on such other basis as is reasonably satisfactory to the Agents) as in effect on the date of such incurrence or expenditure under any provision of any such Section that has an aggregate Dollar limitation provided for therein (and to the extent the respective incurrence or expenditure test regulates the aggregate amount outstanding at any time and it is expressed in terms of Dollars, all outstanding amounts originally incurred or spent in currencies other than Dollars shall be converted into Dollars on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or, if the same does not provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Agents or, in the event no such service is selected, on such other basis as is reasonably satisfactory to the Agents) as in effect on the date of any new incurrence or expenditures made under any provision of any such Section that regulates the Dollar amount outstanding at any time). Notwithstanding the foregoing, (i) with respect to the accounting for leases as either operating leases or capital leases and the impact of such accounting in accordance with FASB ASC 840 on the definitions and covenants herein, GAAP as in effect on the Effective Date shall be applied and (ii) for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Parent and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
(b)    All terms used in this Agreement which are defined in Article 8 or Article 9 of the Uniform Commercial Code as in effect from time to time in the State of New York (the "Uniform Commercial Code" or the "UCC") and which are not otherwise defined herein shall have the same meanings herein as set forth therein, provided that terms used herein which are defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as any Agent may otherwise determine.
Section 1.05    Time References. Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or Eastern daylight saving time, as in effect in New York City on such day. For purposes of the computation of a period of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each means "to but excluding"; provided, however, that with respect to a computation of fees or interest payable to any Secured Party, such period shall in any event consist of at least one full day.
Section 1.06    Obligation to Make Payments in Dollars. All payments to be made by any Loan Party of principal, interest, fees and other Obligations under any Loan Document shall

DOCID - 27822767.5
 
 
- 51 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





be made in Dollars in same day funds, and no obligation of any Loan Party to make any such payment shall be discharged or satisfied by any payment other than payments made in Dollars in same day funds.

ARTICLE II

THE LOANS

Section 2.01    Commitments. (a) Subject to the terms and conditions and relying upon the representations and warranties herein set forth:
(i)    each Lender with an Initial Loan Commitment made an Initial Loan to the U.S. Borrowers on the Effective Date, in an aggregate principal amount equal to such Lender's Initial Loan Commitment; and
(ii)    each Lender with an Additional Loan Commitment severally agrees to make its Pro Rata Share of the Additional Loan to the BVI Borrower on the First Amendment Effective Date, in an aggregate principal amount not to exceed the amount of such Lender's Additional Loan Commitment.
(b)    Notwithstanding the foregoing:
(i)    the aggregate principal amount of the Additional Loans made on the First Amendment Effective Date shall not exceed the Total Additional Loan Commitment;
(ii)    Any principal amount of any Loan which is repaid or prepaid may not be reborrowed;
(iii)    Each of the Initial Loan and the Additional Loan shall be considered part of the Loan for all purposes of this Agreement and the other Loan Documents and upon and following the First Amendment Effective Date, all Loan Documents and any reference to the 'Loan' in this Agreement or in any other Loan Document shall be deemed to include the Initial Loan and the Additional Loan; and
(iv)    Immediately following the funding of the Additional Loan on the First Amendment Effective Date, the aggregate outstanding principal amount of the Loan will be $35,500,000.
Section 2.02    Making the Loans. (a) The Administrative Borrower shall give the Administrative Agent prior telephonic notice (immediately confirmed in writing, in substantially the form of Exhibit C hereto (a "Notice of Borrowing")), not later than 12:00 noon (New York City time) on the date which is 3 Business Days prior to the date of the proposed Loan (or such shorter period as the Administrative Agent is willing to accommodate from time to time, but in no event

DOCID - 27822767.5
 
 
- 52 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





later than 12:00 noon (New York City time) on the borrowing date of the proposed Loan). Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal amount of the proposed Loan, and (ii) the proposed borrowing date, which, in the case of the Initial Loan, must be the Effective Date and, in the case of the Additional Loan, must be the First Amendment Effective Date. The Administrative Agent and the Lenders may act without liability upon the basis of written, telecopied or telephonic notice believed by the Administrative Agent in good faith to be from the Administrative Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Administrative Borrower to the Administrative Agent). Each Borrower hereby waives the right to dispute the Administrative Agent's record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrowers until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing.
(b)    Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the U.S. Borrowers (in the case of the Initial Loan) and the BVI Borrower (in the case of the Additional Loan) shall be bound to make a borrowing in accordance therewith.
(c)    The Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares of (i) the Total Initial Loan Commitment, in the case of the Initial Loan and (y) the Total Additional Loan Commitment, in the case of the Additional Loan, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender.
Section 2.03    Repayment of Loans; Evidence of Debt.(a)
(a)    The outstanding unpaid principal amount of the Loan, and all accrued and unpaid interest thereon, shall be due and payable on the earlier of (i) the Final Maturity Date and (ii) the date on which the Loan is declared due and payable pursuant to the terms of this Agreement.
(b)    Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the U.S. Borrowers, on the one hand, and the BVI Borrower, on the other hand, to such Lender resulting from the Loans made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c)    The Administrative Agent shall maintain accounts in which it shall record (i) the amount of the Initial Loan and the Additional Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from the U.S. Borrowers and the BVI Borrower, respectively, to each Lender hereunder and (iii) the amount of any sum received

DOCID - 27822767.5
 
 
- 53 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





by the Administrative Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d)    The entries made in the accounts maintained pursuant to Section 2.03(b) or Section 2.03(c) shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that (i) the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrowers to repay the Loans in accordance with the terms of this Agreement and (ii) in the event of any conflict between the entries made in the accounts maintained pursuant to Section 2.03(b) and the accounts maintained pursuant to Section 2.03(c), the accounts maintained pursuant to Section 2.03(c) shall govern and control.
(e)    Any Lender may request that any Loan made by it be evidenced by a promissory note. In such event, the U.S. Borrowers and/or the BVI Borrower, as applicable, shall execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) in a form furnished by the Collateral Agent and reasonably acceptable to the Administrative Borrower. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 12.07) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
Section 2.04    Interest.
(a)    Interest Rate.
(i)    The Loans shall be LIBOR Rate Loans, and shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Loan until repaid, at a rate per annum equal to the LIBOR Rate for the Interest Period in effect for the Loan plus the Applicable Margin. For the avoidance of doubt, upon the termination of any Interest Period, a new Interest Period shall automatically commence.
(ii)    Notwithstanding the foregoing, if LIBOR Rate Loans are not permitted to be made under this Agreement pursuant to the provisions of Section 2.11(b), the Loan shall be a Reference Rate Loan, and shall bear interest on the principal amount thereof from time to time outstanding, from the date on which the Loan is required to become a Reference Rate Loan pursuant to the provisions of Section 2.11(b), until the Loan is repaid, at a rate per annum equal to the Reference Rate plus the Applicable Margin.
(b)    Default Interest. To the extent permitted by law and notwithstanding anything to the contrary in this Section, upon the occurrence and during the continuance of an Event of Default, the principal of, and all accrued and unpaid interest on, all Loans, fees, indemnities or any other Obligations of the Loan Parties under this Agreement and the other Loan Documents, shall bear interest, from the date such Event of Default occurred until the date such Event of Default is waived in writing in accordance herewith, at a rate per annum equal at all times to the Post-Default Rate.
(c)    Interest Payment. Interest on the Loan shall be payable (i) monthly, in arrears, on the first day of each month, commencing on the first day of the month following the month in

DOCID - 27822767.5
 
 
- 54 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





which the Loan is made and (ii) at maturity (whether upon demand, by acceleration or otherwise). Interest at the Post-Default Rate shall be payable on demand. Each Borrower hereby authorizes the Administrative Agent to, and the Administrative Agent may, from time to time, charge the Loan Account pursuant to Section 4.01 with the amount of any interest payment due hereunder.
(d)    General. All interest shall be computed on the basis of a year of 360 days for the actual number of days, including the first day but excluding the last day, elapsed.
Section 2.05    Reduction of Commitment; Prepayment of Loans.
(a)    Reduction of Commitments. The Total Initial Loan Commitment terminated on September 24, 2015 upon the making of the Initial Loan. The Total Additional Loan Commitment shall terminate on the earlier to occur of (i) terminated on the First Amendment Effective Date upon the making of the Additional Loan, and (ii) 5:00 p.m. (New York City time) on September 20, 2016..
(b)    Optional Prepayment.
(i)    At any time and from time to time, upon at least 5 Business Days' prior written notice to the Administrative Agent, the U.S. Borrowers may prepay the principal of the Initial Loan, in whole or in part and/or the BVI Borrower may prepay the principal of the Additional Loan, in whole or in part; provided, that no portion of the Additional Loan may be prepaid pursuant to this Section 2.05(b) unless an equivalent percentage of the Initial Loan is simultaneously being prepaid at such time. Each prepayment made pursuant to this Section 2.05(b)(i) shall be accompanied by the payment of (A) accrued interest to the date of such payment on the amount prepaid and (B) the Applicable Premium payable in connection with such prepayment of the Loan.
(ii)    Termination of Agreement. The Borrowers may, upon at least 30 days' prior written notice to the Administrative Agent, terminate this Agreement by paying to the Administrative Agent, in cash, the Obligations in full, plus the Applicable Premium payable in connection with such termination of this Agreement. If the Administrative Borrower has sent a notice of termination pursuant to this Section 2.05(b)(ii), then the Borrowers shall be obligated to repay the Obligations, in full, plus the Applicable Premium payable in connection with such termination of this Agreement on the date set forth as the date of termination of this Agreement in such notice. For the avoidance of doubt, it is understood and agreed that the termination of this Agreement and the repayment of the Obligations shall have no effect on the Equity Documents, which shall remain in full force and effect.
(c)    Mandatory Prepayment.
(i)    Contemporaneously with the delivery to the Agents and the Lenders of audited annual financial statements pursuant to Section 7.01(a)(iii), commencing with the delivery to the Agents and the Lenders of the financial statements for the Fiscal Year ended December 31, 2016 or, if such financial statements are not delivered to the Agents and the Lenders on the date such statements are required to be delivered pursuant to Section 7.01(a)(iii), on the date such

DOCID - 27822767.5
 
 
- 55 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





statements are required to be delivered to the Agents and the Lenders pursuant to Section 7.01(a)(iii), the U.S. Borrowers shall prepay the outstanding principal amount of the Loans in accordance with Section 2.05(d) in an amount equal to the lesser of $5,000,000 and an amount equal to 50% of the Excess Cash Flow of the Parent and its Subsidiaries for such Fiscal Year.
(ii)    Immediately upon any Disposition (excluding Dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), (d), (e), (f), (g) or (h) of the definition of Permitted Disposition) by (A) any U.S. Loan Party or its Subsidiaries (other than BVI Borrower and its Subsidiaries), the U.S. Borrowers shall prepay the outstanding principal amount of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such Disposition, and (B) BVI Borrower or its Subsidiaries, the BVI Borrower shall prepay the outstanding principal amount of the Additional Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such Disposition, to the extent that the aggregate amount of Net Cash Proceeds received by all Loan Parties and their Subsidiaries (and not paid to the Administrative Agent as a prepayment of the Loans) shall exceed for all such Dispositions $250,000 in any Fiscal Year.  Nothing contained in this Section 2.05(c)(ii) shall permit any Loan Party or any of its Subsidiaries to make a Disposition of any property other than in accordance with Section 7.02(c)(ii).
(iii)    Upon the issuance or incurrence by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Permitted Indebtedness), (1) if such issuance or incurrence is made by a U.S. Loan Party or its Subsidiaries (other than the BVI Borrower and its Subsidiaries), the U.S. Borrowers shall prepay the outstanding amount of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith, and (2) if such issuance or incurrence is made by the BVI Borrower or its Subsidiaries, the BVI Borrower shall prepay the outstanding amount of the Additional Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith.  The provisions of this Section 2.05(c)(iii) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.
(iv)    Upon the receipt by (A) any U.S. Loan Party or any of its Subsidiaries (other than the BVI Borrower or any of its Subsidiaries) of any Insurance Receipts, the U.S. Borrowers shall prepay the outstanding principal of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith, and (B) BVI Borrower or any of its Subsidiaries of any Insurance Receipts, the BVI Borrower shall prepay the outstanding principal of the Additional Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith.
(v)    Notwithstanding the foregoing, with respect to Net Cash Proceeds received by any Loan Party or any of its Subsidiaries in connection with a Disposition or the receipt of Insurance Receipts that are required to be used to prepay the Obligations pursuant to Section 2.05(c)(ii) or Section 2.05(c)(iv), as the case may be, up to $500,000 in the aggregate in any Fiscal Year of the Net Cash Proceeds from all such Dispositions and up to $1,500,000 in the aggregate in

DOCID - 27822767.5
 
 
- 56 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





any Fiscal Year of the Net Cash Proceeds from all such Insurance Receipts shall not be required to be so used to prepay the Obligations to the extent that such Net Cash Proceeds are used to replace, repair or restore properties or assets (other than current assets) used in such Person's business, provided that (A) no Default or Event of Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (B) the Administrative Borrower delivers a certificate to the Administrative Agent within 5 days after such Disposition or loss, destruction or taking, as the case may be, stating that such Net Cash Proceeds shall be used to replace, repair or restore properties or assets used in such Person's business within a period specified in such certificate not to exceed 270 days after the date of receipt of such Net Cash Proceeds (which certificate shall set forth estimates of the Net Cash Proceeds to be so expended), (C) such Net Cash Proceeds are deposited in an account subject to a Control Agreement, and (D) upon the earlier of (1) the expiration of the period specified in the relevant certificate furnished to the Administrative Agent pursuant to clause (B) above or (2) the occurrence of a Default or an Event of Default, such Net Cash Proceeds, if not theretofore so used, shall be used to prepay the Obligations in accordance with Section 2.05(c)(ii) or Section 2.05(c)(iv) as applicable.
(vi)    On or prior to the date that is 60 days following the Fourth Amendment Effective Date, the U.S. Borrowers shall prepay the outstanding principal of the Loans in accordance with Section 2.05(d) in an amount equal to $8,000,000 (the earlier of (A) date of such prepayment and (B) the date that is 60 days following the Fourth Amendment Effective Date, the "Specified Date").
(d)    Application of Payments. Each prepayment pursuant to subsections (c)(i), (c)(ii), (c)(iii), (c)(iv) and (c)(vi) above shall be applied (i) in the case of such prepayments made by the U.S. Borrowers, to the outstanding principal amount of the Initial Loan, until paid in full, and then to the outstanding principal amount of the Additional Loan until paid in full, and (ii) in the case of such prepayments made by the BVI Borrower, to the outstanding principal amount of the Additional Loan, until paid in full. Notwithstanding the foregoing, after the occurrence and during the continuance of an Event of Default, if the Administrative Agent has elected, or has been directed by the Collateral Agent or the Required Lenders, to apply payments in respect of any Obligations in accordance with Section 4.03(b), prepayments required under Section 2.05(c) shall be applied in the manner set forth in Section 4.03(b).  For the avoidance of doubt, no prepayments made by the BVI Borrower shall be applied to the Initial Loan or any other U.S. Obligations.
(e)    Waivable Mandatory Prepayments. Anything contained herein to the contrary notwithstanding, in the event the Borrowers are required to make any mandatory prepayment (a "Waivable Mandatory Prepayment") of the Loans, not less than three Business Days prior to the date (the "Required Prepayment Date") on which Borrowers are required to make such Waivable Mandatory Prepayment, the Administrative Borrower shall notify the Administrative Agent of the amount of such prepayment, and the Administrative Agent will promptly thereafter notify each Lender of the amount of such Lender's Pro Rata Share of such Waivable Mandatory Prepayment and such Lender's option to refuse such amount (the "Refusal Option"). Each such Lender may exercise the Refusal Option by giving written notice to the Administrative Borrower and each Agent of its election to do so on or before the first Business Day prior to the Required Prepayment Date (it being understood that any Lender which does not notify the Administrative

DOCID - 27822767.5
 
 
- 57 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





Borrower and each Agent of its election to exercise the Refusal Option on or before the first Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise the Refusal Option). On the Required Prepayment Date, the Borrowers shall pay to Administrative Agent the amount of the Waivable Mandatory Prepayment, which amount shall be applied (i) in an amount equal to that portion of the Waivable Mandatory Prepayment payable to those Lenders that have elected not to exercise the Refusal Option, to prepay the Loans of such Lenders (which prepayment shall be applied in accordance with clause (d) above), and (ii) to the extent of any excess, to the Borrowers for working capital and general corporate purposes.
(f)    Interest and Fees. Any prepayment made pursuant to this Section 2.05 shall be accompanied by (i) accrued interest on the principal amount being prepaid to the date of prepayment, (ii) any Funding Losses payable pursuant to Section 2.08, (iii) the Applicable Premium or any other fee payable in connection with such prepayment of the Loans to the extent required under Section 2.06(a) and (iv) if such prepayment would reduce the amount of the outstanding Loans to zero, such prepayment shall be accompanied by the payment of all fees accrued to such date pursuant to Section 2.06.
(g)    Cumulative Prepayments. Except as otherwise expressly provided in this Section 2.05, payments with respect to any subsection of this Section 2.05 are in addition to payments made or required to be made under any other subsection of this Section 2.05.
Section 2.06    Fees.
(a)    Applicable Premium.
(i)    Upon the occurrence of an Applicable Premium Trigger Event, (A) the U.S. Borrowers shall pay to the Administrative Agent, for the account of the Lenders in accordance with their Pro Rata Shares, the Applicable Premium payable in connection with the Initial Loan, and (B) the BVI Borrower shall pay to the Administrative Agent, for the account of the Lenders in accordance with their Pro Rata Shares, the Applicable Premium payable in connection with the Additional Loan.
(ii)    Any Applicable Premium payable in accordance with this Section 2.06(a) shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event and the Loan Parties agree that it is reasonable under the circumstances currently existing. THE LOAN PARTIES EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING APPLICABLE PREMIUM IN CONNECTION WITH ANY ACCELERATION.
(iii)    The Loan Parties expressly agree that: (A) the Applicable Premium is reasonable and is the product of an arm's length transaction between sophisticated business people, ably represented by counsel; (B) the Applicable Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between the Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Applicable Premium; (D) the Loan Parties shall be estopped hereafter from claiming

DOCID - 27822767.5
 
 
- 58 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





differently than as agreed to in this paragraph; (E) their agreement to pay the Applicable Premium is a material inducement to Lenders to provide the Commitments and make the Loans; and (F) the Applicable Premium represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Agents and the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Agents and the Lenders or profits lost by the Agents and the Lenders as a result of such Applicable Premium Trigger Event.
(iv)    Nothing contained in this Section 2.06(a) shall permit any prepayment of the Loans or reduction of the Commitments not otherwise permitted by the terms of this Agreement or any other Loan Document.
(b)    Audit and Collateral Monitoring Fees. The Borrowers acknowledge that pursuant to Section 7.01(f), representatives of the Agents may visit any or all of the Loan Parties and/or conduct inspections, audits, physical counts, valuations, appraisals, environmental site assessments and/or examinations of any or all of the Loan Parties at any time and from time to time. The Borrowers agree to pay (i) $1,500 per day per examiner plus the examiner's out-of-pocket costs and reasonable expenses incurred in connection with all such visits, inspections, audits, physical counts, valuations, appraisals, environmental site assessments and/or examinations and (ii) the cost of all visits, inspections, audits, physical counts, valuations, appraisals, environmental site assessments and/or examinations conducted by a third party on behalf of the Agents; provided, that the BVI Borrower shall not be required to pay any such costs and expenses to the extent such costs and expenses relate to the U.S. Borrowers and their Subsidiaries (other than the BVI Borrower and its Subsidiaries).
(c)    Fee Letter. As and when due and payable under the terms of the Fee Letter, the U.S. Borrowers shall pay the fees set forth in the Fee Letter required to be paid by the U.S. Borrowers, and the BVI Borrower shall pay the fees set forth in the Fee Letter required to be paid by the BVI Borrower.
Section 2.07    [Intentionally Omitted].
Section 2.08    Funding Losses; No Match Funding Requirement.
(a)    In connection with each LIBOR Rate Loan, the Borrowers shall indemnify, defend, and hold the Agents and the Lenders harmless against any loss, cost, or expense incurred by any Agent or any Lender as a result of (a) the payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of any mandatory prepayment required pursuant to Section 2.05(c), or any application of payments or proceeds of Collateral in accordance with Section 4.03 or Section 4.04 or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof), (b) the conversion of any LIBOR Rate Loan other than on the last day of the Interest Period applicable thereto (including as a result of a Default or an Event of Default), or (c) the failure to borrow any LIBOR Rate Loan on the date specified in the Notice of Borrowing delivered pursuant hereto (such losses, costs, and expenses, collectively, "Funding Losses"). Funding Losses shall, with respect to any Agent or any Lender, be deemed to equal the amount reasonably determined by such Agent or such Lender to be the excess, if any, of

DOCID - 27822767.5
 
 
- 59 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





(i) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, for the period that would have been the Interest Period therefor), minus (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which such Agent or such Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of an Agent or a Lender delivered to the Administrative Borrower setting forth any amount or amounts that such Agent or such Lender is entitled to receive pursuant to this Section 2.08 shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, no BVI Loan Party shall be required to make any payment under this Section to the extent the obligation to make such payment constitutes a U.S. Obligation.
(b)    Anything to the contrary contained herein notwithstanding, neither any Agent nor any Lender, nor any of their participants, is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBOR Rate. The provisions of this Article II shall apply as if each Lender or its participants had match funded any Obligation as to which interest is accruing at the LIBOR Rate by acquiring eurodollar deposits for each Interest Period in the amount of the LIBOR Rate Loans.
Section 2.09    Taxes. (a) Any and all payments by or on account of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction for any and all Taxes, except as required by applicable law. If any Loan Party shall be required (as determined in the good faith discretion of the applicable Withholding Agent) to deduct any Taxes from or in respect of any sum payable hereunder to any Secured Party (or any transferee or assignee thereof, including a participation holder (any such entity, a "Transferee")), (i) the applicable Withholding Agent shall make such deductions and (ii) the applicable Withholding Agent shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law and (iii) if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased by the amount (an "Additional Amount") necessary such that after making all required deductions (including deductions applicable to additions sums payable under this Section 2.09) such Secured Party (or such Transferee receives the amount equal to the sum it would have received had no such deductions been made.
(b)    In addition, each Loan Party agrees to pay to the relevant Governmental Authority in accordance with applicable law any Other Taxes. Each Loan Party shall deliver to each Secured Party official receipts in respect of any Taxes or Other Taxes payable hereunder promptly after payment of such Taxes or Other Taxes.
(c)    The Loan Parties hereby jointly and severally indemnify and agree to hold each Secured Party harmless from and against Indemnified Taxes (including, without limitation, Indemnified Taxes imposed on any amounts payable under this Section 2.09, but excluding Excluded Taxes under all circumstances) paid by such Person, whether or not such Indemnified Taxes were correctly or legally asserted. Such indemnification shall be paid within 30 days from the date on

DOCID - 27822767.5
 
 
- 60 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





which any such Person makes written demand therefore specifying in reasonable detail the nature and amount of such Indemnified Taxes.
(d)    Each Lender (or Transferee) that is a U.S. Person, as defined in Section 7701(a)(30) of the Internal Revenue Code and is not an exempt recipient within the meaning of Treasury Regulations Section 1.6049-4(c), shall deliver to the Administrative Borrower and the Agents (in such number of properly completed and duly executed originals as shall be requested by the recipients) U.S. Internal Revenue Service Form W-9, or any successor form that such person is entitled to provide, establishing that such Lender (or Transferee) is not subject to U.S. Federal backup withholding tax.
(e)    Each Lender (or Transferee) that is not a U.S. Person (a "Non-U.S. Lender") agrees that it shall, no later than the Effective Date (or, in the case of a Lender which becomes a party hereto pursuant to Section 12.07 hereof after the Effective Date, promptly after the date upon which such Lender becomes a party hereto) deliver to the Agents (in such number of properly completed and duly executed originals as shall be reasonably requested by the recipients) either U.S. Internal Revenue Service Form W-8BEN, W-8BEN-E, W-8ECI or W-8IMY or any subsequent versions thereof or successors thereto, in each case claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments of interest hereunder. In addition, in the case of a Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Internal Revenue Code, such Non-U.S. Lender hereby represents to the Agents and the Borrowers that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Internal Revenue Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of the Parent and is not a controlled foreign corporation related to the Parent (within the meaning of Section 864(d)(4) of the Internal Revenue Code), and such Non-U.S. Lender agrees that it shall promptly notify the Agents in the event any such representation is no longer accurate. Such forms shall be delivered by each Non-U.S. Lender (i) on or before the date it becomes a party to this Agreement (or, in the case of a Transferee that is a participation holder, on or before the date such participation holder becomes a Transferee hereunder) and (ii) on or before the date, if any, such Non-U.S. Lender changes its applicable lending office by designating a different lending office (a "New Lending Office"). In addition, such Lender (or Transferee) or Agent shall deliver such forms within 20 days after receipt of a written request therefor from the Administrative Borrower or any Agent, the assigning Lender or the Lender granting a participation, as applicable. Notwithstanding any other provision of this Section 2.09, a Non-U.S. Lender shall not be required to deliver any form pursuant to this Section 2.09(e) that such Non-U.S. Lender is not legally able to deliver.
(f)    Any Secured Party (or Transferee) claiming any indemnity payment or additional payment amounts payable pursuant to this Section 2.09 shall use reasonable efforts (consistent with legal and regulatory restrictions) to file any certificate or document reasonably requested in writing by the Administrative Borrower or to change the jurisdiction of its applicable lending office if the making of such a filing or change would avoid the need for or reduce the amount of any such indemnity payment or additional amount that may thereafter accrue, would not require such Secured Party (or Transferee) to disclose any information such Secured Party (or Transferee)

DOCID - 27822767.5
 
 
- 61 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





deems confidential and would not, in the sole determination of such Secured Party (or Transferee), be otherwise disadvantageous to such Secured Party (or Transferee).
(g)    If any Secured Party (or a Transferee) shall become aware that it is entitled to claim a refund from a Governmental Authority in respect of Indemnified Taxes with respect to which any Loan Party has made an indemnity payment or paid additional amounts, pursuant to this Section 2.09, it shall promptly notify the Administrative Borrower of the availability of such refund claim and shall, within 30 days after receipt of a request by the Administrative Borrower, make a claim to such Governmental Authority for such refund at the Loan Parties' expense. If any Secured Party (or a Transferee) receives a refund (including pursuant to a claim for refund made pursuant to the preceding sentence) in respect of any Indemnified Taxes with respect to which any Loan Party has made an Indemnity payment or paid additional amounts pursuant to this Section 2.09, it shall within 30 days from the date of such receipt pay over such refund (including any interest paid by the relevant Governmental Authority with respect to such refund) to the Administrative Borrower, net of all out‑of‑pocket expenses of such Secured Party (or Transferee).
(h)    If a payment made to a Lender (or Transferee) or any Agent under any Loan Document would be subject to U.S. Federal withholding tax imposed by FATCA if such Lender (or Transferee) 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 Internal Revenue Code, as applicable), such Lender (or Transferee) or Agent shall deliver to the Administrative Borrower and the Agents at the time or times prescribed by law and at such time or times reasonably requested by the Administrative Borrower or the Agents such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Administrative Borrower or the Agents as may be necessary for the Administrative Borrower and the Agents to comply with their obligations under FATCA and to determine that such Lender (or Transferee) or Agent has complied with its obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (h), "FATCA" shall include any amendments made to FATCA after the date of this Agreement. Any forms, certifications or other documentation under this clause (h) shall be delivered by each Lender (or Transferee) and each Agent.
(i)    The obligations of the Loan Parties under this Section 2.09 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. Notwithstanding anything to the contrary contained herein, no BVI Loan Party shall be required to make any payment under this Section to the extent the obligation to make such payment constitutes a U.S. Obligation.
Section 2.10    Increased Costs and Reduced Return.  (a) If any Secured Party shall have determined that any Change in Law shall (i) subject such Secured Party, or any Person controlling such Secured Party to any tax, duty or other charge with respect to this Agreement or any Loan made by such Agent or such Lender, or change the basis of taxation of payments to such Secured Party or any Person controlling such Secured Party of any amounts payable hereunder (except for taxes on the overall net income of such Secured Party or any Person controlling such Secured Party), (ii) impose, modify or deem applicable any reserve, special deposit or similar

DOCID - 27822767.5
 
 
- 62 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, such Secured Party or any Person controlling such Secured Party or (iii) impose on such Secured Party or any Person controlling such Secured Party any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to such Secured Party of making any Loan, or agreeing to make any Loan, or to reduce any amount received or receivable by such Secured Party hereunder, then, upon demand by such Secured Party, the Borrowers shall pay to such Secured Party such additional amounts as will compensate such Secured Party for such increased costs or reductions in amount.
(b)    If any Secured Party shall have determined that any Change in Law either (i) affects or would affect the amount of capital required or expected to be maintained by such Secured Party or any Person controlling such Secured Party, and such Secured Party determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, such Secured Party's or such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on such Secured Party's or such other controlling Person's capital to a level below that which such Secured Party or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained, or any agreement to make Loans, or such Secured Party's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such Secured Party's or such other controlling Person's policies with respect to capital adequacy), then, upon demand by such Secured Party, the Borrowers shall pay to such Secured Party from time to time such additional amounts as will compensate such Secured Party for such cost of maintaining such increased capital or such reduction in the rate of return on such Secured Party's or such other controlling Person's capital.
(c)    All amounts payable under this Section 2.10 shall bear interest from the date that is 10 days after the date of demand by any Secured Party until payment in full to such Secured Party at the Reference Rate. A certificate of such Secured Party claiming compensation under this Section 2.10, specifying the event herein above described and the nature of such event shall be submitted by such Secured Party to the Administrative Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and such Secured Party's reasons for invoking the provisions of this Section 2.10, and shall be final and conclusive absent manifest error.
(d)    The obligations of the Loan Parties under this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. Notwithstanding anything to the contrary contained herein, no BVI Loan Party shall be required to make any payment under this Section to the extent the obligation to make such payment constitutes a U.S. Obligation.
Section 2.11    Changes in Law; Impracticability or Illegality.
(a)    The LIBOR Rate may be adjusted by the Administrative Agent with respect to any Lender on a prospective basis to take into account any additional or increased costs to such Lender of maintaining or obtaining any eurodollar deposits or increased costs due to changes in applicable law occurring subsequent to the commencement of the then applicable Interest Period, including changes in tax laws (except changes of general applicability in corporate income tax laws)

DOCID - 27822767.5
 
 
- 63 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





and changes in the reserve requirements imposed by the Board, excluding the Reserve Percentage, which additional or increased costs would increase the cost of funding loans bearing interest at the LIBOR Rate. In any such event, the affected Lender shall give the Administrative Borrower and the Administrative Agent notice of such a determination and adjustment and the Administrative Agent promptly shall transmit the notice to each other Lender and, upon its receipt of the notice from the affected Lender, the Administrative Borrower may, by notice to such affected Lender (i) require such Lender to furnish to the Administrative Borrower a statement setting forth the basis for adjusting such LIBOR Rate and the method for determining the amount of such adjustment, or (i) repay the LIBOR Rate Loans with respect to which such adjustment is made (together with any amounts due under Section 2.09).
(b)    In the event that any change in market conditions or any law, regulation, treaty, or directive, or any change therein or in the interpretation of application thereof, shall at any time after the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical for such Lender to fund or maintain LIBOR Rate Loans or to continue such funding or maintaining, or to determine or charge interest rates at the LIBOR Rate, such Lender shall give notice of such changed circumstances to the Administrative Borrower and the Administrative Agent, and the Administrative Agent promptly shall transmit the notice to each other Lender and (i) in the case of any LIBOR Rate Loans of such Lender that are outstanding, the date specified in such Lender's notice shall be deemed to be the last day of the Interest Period of such LIBOR Rate Loans, and interest upon the LIBOR Rate Loans of such Lender thereafter shall accrue interest at the rate then applicable to Reference Rate Loans hereunder, and (ii) after the date specified in such Lender's notice, all Loans shall be Reference Rate Loans until such Lender determines that it would no longer be unlawful or impractical to fund or maintain LIBOR Rate Loans.
(c)    The obligations of the Loan Parties under this Section 2.11 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. Notwithstanding anything to the contrary contained herein, no BVI Loan Party shall be required to make any payment under this Section to the extent the obligation to make such payment constitutes a U.S. Obligation.

ARTICLE III

(INTENTIONALLY OMITTED)


ARTICLE IV

APPLICATION OF PAYMENTS; DEFAULTING LENDERS; JOINT AND SEVERAL LIABILITY OF BORROWERS

Section 4.01    Payments; Computations and Statements. (a) The Borrowers will make each payment under this Agreement not later than 12:00 noon (New York City time) on the

DOCID - 27822767.5
 
 
- 64 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





day when due, in lawful money of the United States of America and in immediately available funds, to the Administrative Agent's Account. All payments received by the Administrative Agent after 12:00 noon (New York City time) on any Business Day will be credited to the Loan Account on the next succeeding Business Day. All payments shall be made by the Borrowers without set-off, counterclaim, recoupment, deduction or other defense to the Agents and the Lenders. After receipt, the Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal ratably to the Lenders in accordance with their Pro Rata Shares and like funds relating to the payment of any other amount payable to any Lender to such Lender, in each case to be applied in accordance with the terms of this Agreement. The Lenders and the Borrowers hereby authorize the Administrative Agent to, and the Administrative Agent may, from time to time, charge the Loan Account of the Borrowers with any amount due and payable by the Borrowers under any Loan Document. Each of the Lenders and the Borrowers agrees that the Administrative Agent shall have the right to make such charges whether or not any Default or Event of Default shall have occurred and be continuing. Any amount charged to the Loan Account of the Borrowers shall be deemed to be Obligations hereunder. Whenever any payment to be made under any such Loan Document shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall in such case be included in the computation of interest or fees, as the case may be. All computations of fees shall be made by the Administrative Agent on the basis of a year of 360 days for the actual number of days. Each determination by the Administrative Agent of an interest rate or fees hereunder shall be conclusive and binding for all purposes in the absence of manifest error.
(b)    The Administrative Agent shall provide the Administrative Borrower, promptly after the end of each calendar month, a summary statement (in the form from time to time used by the Administrative Agent) of the opening and closing daily balances in the Loan Account of the Borrowers during such month, the amounts and dates of all Loans made to the Borrowers during such month, the amounts and dates of all payments on account of the Loans to the Borrowers during such month and the Loans to which such payments were applied, the amount of interest accrued on the Loans to the Borrowers during such month, and the amount and nature of any charges to the Loan Account made during such month on account of fees, commissions, expenses and other Obligations. All entries on any such statement shall be presumed to be correct and, 30 days after the same is sent, shall be final and conclusive absent manifest error.
Section 4.02    Sharing of Payments. If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of any Obligation in excess of its ratable share of payments on account of similar obligations obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in such similar obligations held by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that (a) if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and each Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender's ratable share (according to the proportion of (i) the amount of such Lender's required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid by the purchasing Lender in respect of the total amount so recovered and (b) the provisions of this Section

DOCID - 27822767.5
 
 
- 65 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





shall not be construed to apply to (i) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (ii) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans, other than to any Loan Party or any Subsidiary thereof (as to which the provisions of this Section shall apply). The Borrowers agree that any Lender so purchasing a participation from another Lender pursuant to this Section may, to the fullest extent permitted by law, exercise all of its rights (including the Lender's right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of such participation.
Section 4.03    Apportionment of Payments. Subject to any written agreement among the Agents and/or the Lenders:
(a)    All payments of principal and interest in respect of outstanding Loans, all payments of fees (other than the fees set forth in Section 2.06 hereof) and all other payments in respect of any other Obligations, shall be allocated by the Administrative Agent among such of the Lenders as are entitled thereto, in proportion to their respective Pro Rata Shares or otherwise as provided herein or, in respect of payments not made on account of Loans, as designated by the Person making payment when the payment is made.
(b)    After the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and upon the direction of the Collateral Agent or the Required Lenders shall:
(i)    apply all payments in respect of any U.S. Obligations and all proceeds of the Collateral owned by the U.S. Loan Parties as follows: (A) first, ratably to pay the U.S. Obligations in respect of any fees, expense reimbursements, indemnities and other amounts then due and payable to the Agents until paid in full; (B) second, to pay interest then due and payable in respect of the Collateral Agent Advances (other than Collateral Agent Advances made in respect of the BVI Borrower and its Subsidiaries) until paid in full; (C) third, to pay principal of the Collateral Agent Advances (other than Collateral Agent Advances made in respect of the BVI Borrower and its Subsidiaries) until paid in full; (D) fourth, ratably to pay the U.S. Obligations in respect of any fees, expense reimbursements, indemnities and other amounts then due and payable to the Lenders until paid in full; (E) fifth, ratably to pay interest then due and payable in respect of the Initial Loan until paid in full; (F) sixth, ratably to pay principal of the Initial Loan until paid in full; (G) seventh, to the ratable payment of all other U.S. Obligations then due and payable; and (H) eighth, at the election of the Administrative Agent, to be held as cash collateral and/or applied to the ratable payment of any other Obligations, in such order as the Administrative Agent may elect; and
(ii)    apply all payments in respect of any BVI Obligations and all proceeds of the Collateral owned by the BVI Loan Parties as follows: (A) first, ratably to pay the BVI Obligations in respect of any fees, expense reimbursements, indemnities and other amounts then due and payable to the Agents until paid in full; (B) second, to pay interest then due and payable in respect of the Collateral Agent Advances made in respect of the BVI Borrower and its Subsidiaries until paid in full; (C) third, to pay principal of the Collateral Agent Advances made in respect of the BVI Borrower and its Subsidiaries until paid in full; (D) fourth, ratably to pay the BVI Obligations

DOCID - 27822767.5
 
 
- 66 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





in respect of any fees, expense reimbursements, indemnities and other amounts then due and payable to the Lenders until paid in full; (E) fifth, ratably to pay interest then due and payable in respect of the Additional Loan until paid in full; (F) sixth, ratably to pay principal of the Additional Loan until paid in full; (G) seventh, to the ratable payment of all other BVI Obligations then due and payable; and (H) eighth, to be held as cash collateral.
(iii)    Notwithstanding anything to the contrary set forth in this Section 4.03(b), no payments from or proceeds of BVI Collateral pledged by the BVI Borrower or any of its Subsidiaries shall be applied to pay any U.S. Obligation.
(c)    For purposes of Section 4.03(b), "paid in full" means payment in cash of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(d)    In the event of a direct conflict between the priority provisions of this Section 4.03 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that both such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 4.03 shall control and govern.
Section 4.04    Defaulting Lenders. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(a)    Such Defaulting Lender's right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 12.02.
(b)    The Administrative Agent shall not be obligated to transfer to such Defaulting Lender any payments made by any Borrower to the Administrative Agent for such Defaulting Lender's benefit.
(c)    Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle the Borrowers to replace the Defaulting Lender with one or more substitute Lenders, and the Defaulting Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Defaulting Lender shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given. Prior to the effective date of such replacement, the Defaulting Lender shall execute and deliver an Assignment and Acceptance, subject only to the Defaulting Lender being repaid its share of the outstanding Obligations without any premium (including the Applicable Premium) or penalty of any kind whatsoever. If the Defaulting Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, the Defaulting Lender shall be deemed to have executed and delivered such Assignment and

DOCID - 27822767.5
 
 
- 67 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





Acceptance. The replacement of any Defaulting Lender shall be made in accordance with the terms of Section 12.07.
(d)    The operation of this Section shall not be construed to increase or otherwise affect the Commitments of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to the Administrative Agent or to the Lenders other than such Defaulting Lender.
(e)    This Section 4.04 shall remain effective with respect to such Lender until either (i) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable or (ii) the non-Defaulting Lenders, the Agents and the Borrowers shall have waived such Defaulting Lender's default in writing, and the Defaulting Lender makes its Pro Rata Share of the applicable defaulted Loans and pays to the Agents all amounts owing by such Defaulting Lender in respect thereof; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Lender was a Defaulting Lender; provided further that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender's having been a Defaulting Lender.
Section 4.05    Administrative Borrower; Joint and Several Liability of the Borrowers.
(a)    Each Borrower hereby irrevocably appoints the Parent as the borrowing agent and attorney-in-fact for the Borrowers (the "Administrative Borrower") which appointment shall remain in full force and effect unless and until the Agents shall have received prior written notice signed by all of the Borrowers that such appointment has been revoked and that another Borrower has been appointed Administrative Borrower. Each Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (i) to provide to the Agents and receive from the Agents all notices with respect to Loans obtained for the benefit of any Borrower and all other notices and instructions under this Agreement and (ii) to take such action as the Administrative Borrower deems appropriate on its behalf to obtain Loans and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement. It is understood that the handling of the Loan Account and Collateral of the Borrowers in a combined fashion, as more fully set forth herein, is done solely as an accommodation to the Borrowers in order to utilize the collective borrowing powers of the Borrowers in the most efficient and economical manner and at their request, and that neither the Agents nor the Lenders shall incur liability to the Borrowers as a result hereof. Each Borrower expects to derive benefit, directly or indirectly, from the handling of the Loan Account and the Collateral in a combined fashion since the successful operation of each Borrower is dependent on the continued successful performance of the integrated group.
(b)    Each U.S. Borrower hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Agents and the Lenders under this Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings

DOCID - 27822767.5
 
 
- 68 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





of the other U.S. Borrowers to accept joint and several liability for the Obligations. Each of the U.S. Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other U.S. Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Section 4.05), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the U.S. Borrowers without preferences or distinction among them. If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrowers that are U.S. Borrowers will make such payment with respect to, or perform, such Obligation. Subject to the terms and conditions hereof, the Obligations of each of the U.S. Borrowers under the provisions of this Section 4.05 constitute the absolute and unconditional, full recourse Obligations of each of the U.S. Borrowers, enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever. Notwithstanding anything to the contrary contained herein (i) the BVI Borrower shall not be liable to pay or otherwise be liable, in whole or in part, for any U.S. Obligations and (ii) no Collateral granted by the BVI Borrower as security for all or any part of the BVI Obligations or any other credit enhancement provided by the BVI Borrower hereunder or any Loan Document shall secure any U.S. Obligations.
(c)    The provisions of this Section 4.05 are made for the benefit of the Agents, the Lenders and their successors and assigns, and may be enforced by them from time to time against any or all of the U.S. Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents, the Lenders or such successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Borrowers or to exhaust any remedies available to it or them against any of the other Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 4.05 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied.
(d)    Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Agents or the Lenders with respect to any of the Obligations or any Collateral, until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Agents or the Lenders hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations.

ARTICLE V

CONDITIONS TO LOANS


DOCID - 27822767.5
 
 
- 69 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





Section 5.01    Conditions Precedent to Effectiveness. This Agreement shall become effective as of the Business Day (the "Effective Date") when each of the following conditions precedent shall have been satisfied in a manner satisfactory to the Agents:
(a)    Payment of Fees, Etc. The Borrowers shall have paid on or before the Effective Date all fees, costs, expenses and taxes then payable pursuant to Section 2.06 and Section 12.04.
(b)    Representations and Warranties; No Event of Default. The following statements shall be true and correct: (i) the representations and warranties contained in Article VI and in each other Loan Document, certificate or other writing delivered to any Secured Party pursuant hereto or thereto on or prior to the Effective Date are true and correct on and as of the Effective Date in all material respects as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct on and as of such earlier date) and (ii) no Default or Event of Default shall have occurred and be continuing on the Effective Date or would result from this Agreement or the other Loan Documents becoming effective in accordance with its or their respective terms.
(c)    Legality. The making of the initial Loan shall not contravene any law, rule or regulation applicable to any Secured Party.
(d)    Delivery of Documents. The Collateral Agent shall have received on or before the Effective Date the following, each in form and substance satisfactory to the Collateral Agent and, unless indicated otherwise, dated the Effective Date and, if applicable, duly executed by the Persons party thereto:
(i)    a Security Agreement, together with the original stock certificates representing all of the Equity Interests and all promissory notes required to be pledged thereunder, accompanied by undated stock powers executed in blank and other proper instruments of transfer;
(ii)    a UCC Filing Authorization Letter, together with evidence satisfactory to the Collateral Agent of the filing of appropriate financing statements on Form UCC‑1 in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Agreement and each Mortgage;
(iii)    the results of searches for any effective UCC financing statements, tax Liens or judgment Liens filed against any Loan Party or its property, which results shall not show any such Liens (other than Permitted Liens acceptable to the Collateral Agent);
(iv)    a Perfection Certificate;
(v)    the Vegas.com Acquisition Collateral Assignment;
(vi)    the Disbursement Letter;
(vii)    the Fee Letter;

DOCID - 27822767.5
 
 
- 70 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





(viii)    the Intercompany Subordination Agreement;
(ix)    a Management Rights Agreement between the Loan Parties and each Lender that is intended to qualify as a venture capital operating company under the United States Department of Labor Regulation published at 29 C.F.R. 2510.3-101 (each a "VCOC Management Rights Agreement");
(x)    each of the Equity Documents;
(xi)    (A) the Shareholder Letter, duly executed by the Administrative Borrower, the Collateral Agent and DigiPac, and (B) the Side Letter, duly executed by the Administrative Borrower and the Collateral Agent;
(xii)    a certificate of an Authorized Officer of each Loan Party, certifying (A) as to copies of the Governing Documents of such Loan Party, together with all amendments thereto (including, without limitation, a true and complete copy of the charter, certificate of formation, certificate of limited partnership or other publicly filed organizational document of each Loan Party certified as of a recent date not more than 30 days prior to the Effective Date by an appropriate official of the jurisdiction of organization of such Loan Party which shall set forth the same complete name of such Loan Party as is set forth herein and the organizational number of such Loan Party, if an organizational number is issued in such jurisdiction), (B) as to a copy of the resolutions or written consents of such Loan Party authorizing (1) the borrowings hereunder and the transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, and (2) the execution, delivery and performance by such Loan Party of each Loan Document to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith, including, without limitation, in the case of the Parent, the Warrants, (C) the names and true signatures of the representatives of such Loan Party authorized to sign each Loan Document (in the case of a Borrower, including, without limitation, the Notice of Borrowing and all other notices under this Agreement and the other Loan Documents) to which such Loan Party is or will be a party and the other documents to be executed and delivered by such Loan Party in connection herewith and therewith, together with evidence of the incumbency of such authorized officers and (D) as to the matters set forth in Section 5.01(b);
(xiii)    a certificate of the chief financial officer of the Parent (A) attaching a copy of the Financial Statements and the Projections described in Section 6.01(g)(ii) hereof and certifying as to the compliance with the representations and warranties set forth in Section 6.01(g)(i) and Section 6.01(cc) and (B) certifying that after giving effect to all Loans to be made on the Effective Date, all liabilities of the Loan Parties (other than those identified to the Collateral Agent in writing prior to the date hereof) are current;
(xiv)    a certificate of the chief financial officer of each Loan Party, certifying as to the solvency of such Loan Party (after giving effect to the Loans made on the Effective Date);
(xv)    a certificate of the appropriate official(s) of the jurisdiction of organization and, except to the extent such failure to be so qualified could not reasonably be expected

DOCID - 27822767.5
 
 
- 71 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





to have a Material Adverse Effect, each jurisdiction of foreign qualification of each Loan Party certifying as of a recent date not more than 30 days prior to the Effective Date as to the subsistence in good standing of, and the payment of taxes by, such Loan Party in such jurisdictions, together with, if requested by the Collateral Agent, written confirmation (where available) on the Effective Date from such official(s) as to such matters;
(xvi)    an opinion of (A) Olshan Frome Wolosky LLP, counsel to the Loan Parties, and Sklar Williams PLLC, Nevada counsel to the Loan Parties, in each case, as to such matters as the Collateral Agent may reasonably request, including, without limitation, the Warrants;
(xvii)    except as may otherwise be agreed by the Collateral Agent, evidence of the insurance coverage required by Section 7.01 and the terms of each Security Agreement and each Mortgage and such other insurance coverage with respect to the business and operations of the Loan Parties as the Collateral Agent may reasonably request, together with evidence of the payment of all premiums due in respect thereof for such period as the Collateral Agent may request;
(xviii)    evidence that on the Effective Date, concurrently with the making of the Loan, the Parent and its Subsidiaries shall have (A) repaid in full all Existing Indebtedness (or in the case of the Indebtedness described in clauses (b), (c), (d) and (e) of the definition of Existing Indebtedness, converted all of such Indebtedness into Qualified Equity Interests of the Parent), (B) terminated any commitments to lend or make other extensions of credit under the documents establishing or evidencing such Existing Indebtedness, (C) delivered to Administrative Agent all documents or instruments necessary to release all Liens securing Existing Indebtedness or other obligations of the Parent and its Subsidiaries thereunder being repaid on the Effective Date, and (D) made arrangements satisfactory to Administrative Agent with respect to the cancellation of any letters of credit outstanding thereunder.
(xix)    evidence in form and substance reasonably satisfactory to the Agents that (A) the Sharecare SPV has been formed as a special purpose entity on terms satisfactory to the Agents, and (B) all of the Sharecare Equity owned by the Parent has been transferred to the Sharecare SPV;
(xx)    (A) a certificate of an Authorized Officer of the Parent attaching copies of the Bank of America Loan Documents (as amended and restated on the Effective Date in form and substance satisfactory to the Agents), and certifying that such documents are true and correct copies thereof and are in full force and effect, and (B) evidence that all Liens securing the Bank of America Loan Documents (other than Liens securing the cash collateral permitted pursuant to clause (p) of the definition of Permitted Liens) have been released (or, if such Liens are not released prior to the Effective Date, all documents necessary to effect such releases, including, without limitation, all appropriate UCC-3 financing statements and intellectual property releases);
(xxi)    a Control Agreement with respect to the Cash Collateral Account, duly executed by the Parent, the Collateral Agent, and Citibank, N.A.;
(xxii)    evidence of the resolution of the "Specified Dispute" (as defined in the Vegas.com Acquisition Agreement) in form and substance satisfactory to the Agents (it being

DOCID - 27822767.5
 
 
- 72 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





understood that delivery of an invoice stating that payment of the amount specified therein satisfies all payment obligations between the parties thereto for all periods prior to September 30, 2015, along with evidence of the payment of such invoice, shall be deemed to be satisfactory to the Agents); and
(xxiii)    such other agreements, instruments, approvals, opinions and other documents, each satisfactory to the Agents in form and substance, as any Agent may reasonably request.
(e)    Material Adverse Effect. The Collateral Agent shall have determined, in its sole judgment, that no event or development shall have occurred since December 31, 2014 which could reasonably be expected to have a Material Adverse Effect.
(f)    Receipt of Vegas.com Acquisition Documents; Consummation of Vegas.com Acquisition. The Agents shall have received, in form and substance reasonably satisfactory to them, (i) a copy of the Vegas.com Acquisition Agreement and each other Vegas.com Acquisition Document, duly executed by the parties thereto; (ii) evidence that the Vegas.com Acquisition will be consummated in accordance with the terms of such Vegas.com Acquisition Documents concurrently with the effectiveness of this Agreement. Concurrently with the making of the Loan, (i) the Parent shall have purchased pursuant to the Vegas.com Acquisition Documents (no provision of which shall have been amended or otherwise modified or waived in a manner adverse to the Parent, the Loan Parties, the Agents or the Lenders without the prior written consent of the Agents), and shall have become the owner, free and clear of all Liens other than Permitted Liens, of all of the outstanding Equity Interests of Vegas.com, (ii) a portion of the proceeds of the Loan shall have been applied to finance a portion of the consideration for the Vegas.com Acquisition payable pursuant to the Vegas.com Acquisition Documents for all of the outstanding Equity Interests of Vegas.com and the closing and other costs relating thereto and (iii) each of the Parent, Vegas.com and the Vegas.com Sellers shall have fully performed (or, with the prior written consent of the Collateral Agent, received a waiver with respect to) all of the obligations to be performed by it under the Vegas.com Acquisition Documents. Without limiting the foregoing, the Agents shall have received a certificate of the Parent, stating that (1) the Parent has delivered to the Agents complete and correct copies of the Vegas.com Acquisition Documents, including all schedules and exhibits thereto, (2) the Vegas.com Acquisition Documents set forth the entire agreement and understanding of the parties thereto relating to the subject matter thereof, and there are no other agreements, arrangements or understandings, written or oral, relating to the matters covered thereby, (3) the execution, delivery and performance of the Vegas.com Acquisition Documents has been duly authorized by all necessary action (including, without limitation, the obtaining of any consent of stockholders or other holders of Equity Interests required by law or by any applicable corporate or other organizational documents) on the part of each such Person, (4) no authorization or approval or other action by, and no notice to filing with or license from, any Governmental Authority is required for the consummation of such sale other than such as have been obtained on or prior to the Effective Date, (5) each Vegas.com Acquisition Document is the legal, valid and binding obligation of the parties thereto, enforceable against such parties in accordance with its terms, (6) all conditions precedent to the Vegas.com Acquisition Agreement have been fulfilled or (with the prior written consent of the Agents) waived, (7) no Vegas.com Acquisition Document has been

DOCID - 27822767.5
 
 
- 73 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





amended or otherwise modified in a manner adverse to the Parent, the Loan Parties, the Agents or the Lenders and (8) there has been no breach of any material term or condition of any Vegas.com Acquisition Document.
(g)    Cash Collateral Account. The Agents shall have received (i) evidence, in form and substance reasonably satisfactory to them, of the establishment of the Cash Collateral Account, (ii) immediately available funds from the Borrowers, in an amount not less than $2,250,000, for deposit into the Cash Collateral Account, and (iii) a Control Agreement with respect to the Cash Collateral Account, which Control Agreement shall provide the Collateral Agent with sole dominion and control over the Cash Collateral Account and the funds on deposit therein.
(h)    Approvals. All consents, authorizations and approvals of, and filings and registrations with, and all other actions in respect of, any Governmental Authority or other Person required in connection with the making of the Loans or the conduct of the Loan Parties' business shall have been obtained and shall be in full force and effect.
(i)    Proceedings; Receipt of Documents. All proceedings in connection with the making of the initial Loan and the other transactions contemplated by this Agreement and the other Loan Documents, and all documents incidental hereto and thereto, shall be satisfactory to the Collateral Agent and its counsel, and the Collateral Agent and such counsel shall have received all such information and such counterpart originals or certified or other copies of such documents as the Collateral Agent or such counsel may reasonably request.
(j)    Due Diligence. The Agents shall have completed their business, legal and collateral due diligence with respect to each Loan Party and the results thereof shall be acceptable to the Agents, in their sole and absolute discretion.
(k)    Notices. The Administrative Agent shall have received a Notice of Borrowing pursuant to Section 2.02 hereof.

ARTICLE VI

REPRESENTATIONS AND WARRANTIES

Section 6.01    Representations and Warranties. Each Loan Party hereby represents and warrants to the Secured Parties as follows:
(a)    Organization, Good Standing, Etc. Each Loan Party (i) is a corporation, limited liability company or limited partnership duly organized, validly existing and in good standing under the laws of the state or jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated and, in the case of the Borrowers, to make the borrowings hereunder, and to execute and deliver each Loan Document to which it is a party, and to consummate the transactions contemplated thereby, and (iii) is duly qualified to do business and is in good standing in each jurisdiction in which the character of the

DOCID - 27822767.5
 
 
- 74 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except (solely for the purposes of this subclause (iii)) where the failure to be so qualified and in good standing could reasonably be expected to have a Material Adverse Effect.
(b)    Authorization, Etc. The execution, delivery and performance by each Loan Party of each Loan Document to which it is or will be a party, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene (A) any of its Governing Documents, (B) any applicable material Requirement of Law or (C) any material provision of any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval material to its operations or any of its properties.
(c)    Governmental Approvals. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance by any Loan Party of any Loan Document to which it is or will be a party other than filings and recordings with respect to Collateral to be made, or otherwise delivered to the Collateral Agent for filing or recordation, on the Effective Date.
(d)    Enforceability of Loan Documents. This Agreement is, and each other Loan Document to which any Loan Party is or will be a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity.
(e)    Capitalization. On the Effective Date, after giving effect to the transactions contemplated hereby to occur on the Effective Date, the authorized Equity Interests of the Parent and each of its Subsidiaries and the issued and outstanding Equity Interests of the Parent and each of its Subsidiaries are as set forth on Schedule 6.01(e). All of the issued and outstanding shares of Equity Interests of the Parent and each of its Subsidiaries have been validly issued and are fully paid and nonassessable, and the holders thereof are not entitled to any preemptive, first refusal or other similar rights. All Equity Interests of such Subsidiaries of the Parent are owned by the Parent free and clear of all Liens (other than Permitted Specified Liens). Except as described on Schedule 6.01(e), there are no outstanding debt or equity securities of the Parent or any of its Subsidiaries and no outstanding obligations of the Parent or any of its Subsidiaries convertible into or exchangeable for, or warrants, options or other rights for the purchase or acquisition from the Parent or any of its Subsidiaries, or other obligations of the Parent or any of its Subsidiaries to issue, directly or indirectly, any shares of Equity Interests of the Parent or any of its Subsidiaries.
(f)    Litigation. There is no pending or, to the knowledge of any Loan Party, threatened action, suit or proceeding affecting any Loan Party or any of its properties before any court or other Governmental Authority or any arbitrator that (i) if adversely determined, could reasonably be expected to have a Material Adverse Effect or (ii) relates to this Agreement, any other Loan Document or any Vegas.com Acquisition Document or any transaction contemplated hereby

DOCID - 27822767.5
 
 
- 75 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





or thereby. There are no proceedings pending or, to the knowledge of any Loan Party, threatened by or against any domain name registrar that would have the effect of revoking or limiting or affecting the transfer or renewal of the registration of any Domain Assets with or by its domain name registrar.
(g)    Financial Statements.
(i)    The Financial Statements, copies of which have been delivered to each Agent and each Lender, fairly present the consolidated financial condition of the Parent and its Subsidiaries as at the respective dates thereof and the consolidated results of operations of the Parent and its Subsidiaries for the fiscal periods ended on such respective dates, all in accordance with GAAP. The Parent has heretofore delivered to the Lenders the unaudited pro forma consolidated balance sheet of the Parent and its Subsidiaries as of June 30, 2015 (the "Pro Forma Balance Sheet") after giving effect to the consummation of the Vegas.com Acquisition and the making of the Loan on the Effective Date and the payment of all fees and expenses in connection therewith, as if they had occurred on such date. Such Pro Forma Balance Sheet accurately reflects all adjustments required to be made to give effect to the Vegas.com Acquisition and present fairly in all material respects the pro forma consolidated financial position of the Parent and its Subsidiaries as of such date, assuming that the Vegas.com Acquisition and the making of the Loan on the Effective Date and the payment of all fees and expenses in connection therewith, had occurred at such date. All material indebtedness and other liabilities (including, without limitation, Indebtedness, liabilities for taxes, long-term leases and other unusual forward or long-term commitments), direct or contingent, of the Parent and its Subsidiaries are set forth in the Financial Statements. Since December 31, 2014, no event or development has occurred that has had or could reasonably be expected to have a Material Adverse Effect.
(ii)    The Parent has heretofore furnished to each Agent and each Lender (A) projected quarterly EBITDA and cash flows of the Parent and its Subsidiaries for the period from September 30, 2015 through December 31, 2016 and (B) projected annual EBITDA and cash flows of the Parent and its Subsidiaries for the Fiscal Years ending in 2017 and 2018, which projections shall be updated annually pursuant to Section 7.01(a)(vi).
(h)    Compliance with Law, Etc. No Loan Party or any of its Subsidiaries is in violation of (i) any of its Governing Documents, (ii) any material Requirement of Law or (iii) any material term of any material Contractual Obligation binding on or otherwise affecting it or any of its properties, and no default or event of default has occurred and is continuing thereunder.
(i)    ERISA. (i) Each Employee Plan is in substantial compliance with ERISA and the Internal Revenue Code, (ii) no Termination Event has occurred nor is reasonably expected to occur with respect to any Employee Plan, (iii) the most recent annual report (Form 5500 Series) with respect to each Employee Plan, including any required Schedule B (Actuarial Information) thereto, copies of which have been filed with the Internal Revenue Service and delivered to the Agents, is complete and correct and fairly presents the funding status of such Employee Plan, and since the date of such report there has been no material adverse change in such funding status, (iv) copies of each agreement entered into with the PBGC, the U.S. Department of Labor or the Internal Revenue Service with respect to any Employee Plan have been delivered to the Agents,

DOCID - 27822767.5
 
 
- 76 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





(v) no Employee Plan had an accumulated or waived funding deficiency or permitted decrease which would create a deficiency in its funding standard account or has applied for an extension of any amortization period within the meaning of Section 412 of the Internal Revenue Code at any time during the previous 60 months, and (vi) no Lien imposed under the Internal Revenue Code or ERISA exists or is likely to arise on account of any Employee Plan within the meaning of Section 412 of the Internal Revenue Code. No Loan Party or any of its ERISA Affiliates has incurred any withdrawal liability under ERISA with respect to any Multiemployer Plan, or is aware of any facts indicating that it or any of its ERISA Affiliates may in the future incur any such withdrawal liability. No Loan Party or any of its ERISA Affiliates nor any fiduciary of any Employee Plan has (i) engaged in a nonexempt prohibited transaction described in Sections 406 of ERISA or 4975 of the Internal Revenue Code, (ii) failed to pay any required installment or other payment required under Section 412 of the Internal Revenue Code on or before the due date for such required installment or payment, (iii) engaged in a transaction within the meaning of Section 4069 of ERISA or (iv) incurred any liability to the PBGC which remains outstanding other than the payment of premiums, and there are no premium payments which have become due which are unpaid. There are no pending or, to the knowledge of any Loan Party, threatened claims, actions, proceedings or lawsuits (other than claims for benefits in the normal course) asserted or instituted against (i) any Employee Plan or its assets, (ii) any fiduciary with respect to any Employee Plan, or (iii) any Loan Party or any of its ERISA Affiliates with respect to any Employee Plan. Except as required by Section 4980B of the Internal Revenue Code, no Loan Party or any of its ERISA Affiliates maintains an employee welfare benefit plan (as defined in Section 3(1) of ERISA) which provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of any Loan Party or any of its ERISA Affiliates or coverage after a participant's termination of employment.
(j)    Taxes, Etc. (i) All foreign, Federal and material provincial, state and local tax returns and other reports required by applicable Requirements of Law to be filed by any Loan Party have been filed, or extensions have been obtained, and (ii) all taxes, assessments and other governmental charges imposed upon any Loan Party or any property of any Loan Party in an aggregate amount for all such taxes, assessments and other governmental charges exceeding $50,000 and which have become due and payable on or prior to the date hereof have been paid, except to the extent contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof on the Financial Statements in accordance with GAAP; provided that the aggregate amount of all taxes, assessments and other governmental charges being so contested at any one time shall not exceed $250,000.
(k)    Regulations T, U and X. No Loan Party is or will be engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation T, U or X), and no proceeds of any Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T, U and X.
(l)    Nature of Business. No Loan Party is engaged in any business other than as set forth on Schedule 6.01(l).

DOCID - 27822767.5
 
 
- 77 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





(m)    Adverse Agreements, Etc. No Loan Party or any of its Subsidiaries is a party to any Contractual Obligation or subject to any restriction or limitation in any Governing Document or any judgment, order, regulation, ruling or other requirement of a court or other Governmental Authority, which (either individually or in the aggregate) has, or in the future could reasonably be expected (either individually or in the aggregate) to have, a Material Adverse Effect.
(n)    Permits, Etc. Each Loan Party has, and is in compliance with, all permits, licenses, authorizations, approvals, entitlements and accreditations required for such Person lawfully to own, lease, manage or operate, or to acquire, each business and Facility currently owned, leased, managed or operated, or to be acquired, by such Person, except to the extent the failure to have or be in compliance therewith could not reasonably be expected to have a Material Adverse Effect. No condition exists or event has occurred which, in itself or with the giving of notice or lapse of time or both, would result in the suspension, revocation, impairment, forfeiture or non-renewal of any such permit, license, authorization, approval, entitlement or accreditation, and, to the knowledge of any Loan Party, there is no claim that any thereof is not in full force and effect.
(o)    Properties. Each Loan Party has good and marketable title to, valid leasehold interests in, or valid licenses to use, all property and assets material to its business, free and clear of all Liens, except Permitted Liens. All such properties and assets are in good working order and condition, ordinary wear and tear excepted.
(p)    Employee and Labor Matters. There is (i) no unfair labor practice complaint pending or, to the knowledge of any Loan Party, threatened against any Loan Party before any Governmental Authority and no grievance or arbitration proceeding pending or, to the knowledge of any Loan Party, threatened against any Loan Party which arises out of or under any collective bargaining agreement, (ii) no strike, labor dispute, slowdown, stoppage or similar action or grievance pending or, to the knowledge of any Loan Party, threatened against any Loan Party or (iii) to the knowledge of each Loan Party, no union representation question existing with respect to the employees of any Loan Party and no union organizing activity taking place with respect to any of the employees of any Loan Party. No Loan Party or any of its ERISA Affiliates has incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act ("WARN") or similar state law, which remains unpaid or unsatisfied. The hours worked and payments made to employees of any Loan Party have not been in violation of the Fair Labor Standards Act or any other applicable legal requirements. All material payments due from any Loan Party on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of such Loan Party.
(q)    Environmental Matters. Except as set forth on Schedule 6.01(q), (i) the operations of each Loan Party are in compliance with all material requirements of Environmental Laws; (ii) there has been no Release at any of the properties owned or operated by any Loan Party or a predecessor in interest, or at any disposal or treatment facility which received Hazardous Materials generated by any Loan Party or any predecessor in interest which could reasonably be expected to have a Material Adverse Effect; (iii) no Environmental Action has been asserted against any Loan Party or any predecessor in interest nor does any Loan Party have knowledge or notice of any threatened or pending Environmental Action against any Loan Party or any predecessor in

DOCID - 27822767.5
 
 
- 78 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





interest which could reasonably be expected to have a Material Adverse Effect; (iv) no Environmental Actions have been asserted against any facilities that may have received Hazardous Materials generated by any Loan Party or any predecessor in interest which could reasonably be expected to have a Material Adverse Effect; (v) to the knowledge of any Loan Party, no property now or formerly owned or operated by a Loan Party has been used as a treatment or disposal site for any Hazardous Material; (vi) no Loan Party has failed to report to the proper Governmental Authority any Release which is required to be so reported by any Environmental Laws which could reasonably be expected to have a Material Adverse Effect; (vii) each Loan Party holds all licenses, permits and approvals required under any Environmental Laws in connection with the operation of the business carried on by it, except for such licenses, permits and approvals as to which a Loan Party's failure to maintain or comply with could not reasonably be expected to have a Material Adverse Effect; and (viii) no Loan Party has received any notification pursuant to any Environmental Laws that (A) any work, repairs, construction or Capital Expenditures are required to be made in respect as a condition of continued compliance with any Environmental Laws, or any license, permit or approval issued pursuant thereto or (B) any license, permit or approval referred to above is about to be reviewed, made, subject to limitations or conditions, revoked, withdrawn or terminated, in each case under this clause (viii), except as could not reasonably be expected to have a Material Adverse Effect.
(r)    Insurance. Each Loan Party maintains the insurance and required services and financial assurance as required by law and as required by Section 7.01(h). Schedule 6.01(r) sets forth a list of all insurance maintained by each Loan Party on the Effective Date.
(s)    Use of Proceeds.
(i)    The proceeds of the Initial Loan were used (A) to finance a portion of the cash consideration for the Vegas.com Acquisition, (B) to repay a portion of the Existing Indebtedness, (C) for general working capital purposes of the Borrowers and (D) to pay fees and expenses related to this Agreement and the Vegas.com Acquisition.
(ii)    The proceeds of the Additional Loan shall be used (A) to finance a portion of the cash consideration for the CBG Acquisition, (B) for general working capital purposes of the CBG Subsidiaries and (C) to pay fees and expenses related to the First Amendment and the CBG Acquisition.
(t)    Solvency. After giving effect to the transactions contemplated by this Agreement and before and after giving effect to each Loan, each Loan Party is, and the Loan Parties on a consolidated basis are, Solvent. No transfer of property is being made by any Loan Party and no obligation is being incurred by any Loan Party in connection with the transactions contemplated by this Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of such Loan Party.
(u)    Intellectual Property. (i) Each Loan Party owns or licenses or otherwise has the right to use all Intellectual Property rights that are necessary for the operation of its business, without infringement upon or conflict with the rights of any other Person with respect thereto, except for such infringements and conflicts which, individually or in the aggregate, could not reasonably

DOCID - 27822767.5
 
 
- 79 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





be expected to have a Material Adverse Effect. Set forth on Schedule 6.01(u) is a complete and accurate list as of the Effective Date of (i) each item of Registered Intellectual Property owned by each Loan Party; (ii) each material work of authorship owned by each Loan party and which is not Registered Intellectual Property, and (iii) each material Intellectual Property Contract to which each Loan Party is bound. Schedule 6.01 identifies certain infringement actions to which certain of the Loan Parties are a party, but none of such actions, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. No trademark or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by any Loan Party infringes upon or conflicts with any rights owned by any other Person, and no claim or litigation regarding any of the foregoing is pending or, to the knowledge of any Loan Party, threatened, except for such infringements and conflicts which could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of each Loan Party, no patent, invention, device, application, principle or any statute, law, rule, regulation, standard or code pertaining to Intellectual Property is pending or proposed, which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(ii)    The Domain Assets are not subject to any encumbrances or restrictions, such as registrar or registry locks, that limit the Loan Parties' rights to access and use the Domain Assets. Since the Domain Assets have been owned by a Loan Party, they have not been used by or on behalf of such party for purposes of the delivery of viruses, worms, malicious code, spyware, or link farms (i.e., multiple pop-up windows that cannot be closed without another window popping open), or otherwise in connection with the sending of unsolicited bulk email, so-called "phishing," or any other similar illegal, fraudulent or misleading purposes. The Whois contact information for all of the Domain Assets, including name, address, email address and telephone number, is currently accurate and up to date. No Domain Asset has been challenged or, to the knowledge of any Loan Party, threatened as infringing in any way, and, to the knowledge of any Loan Party, no Domain Asset is alleged to infringe the trademark, copyright or domain name of any other person. Each Loan Party and each of its Subsidiaries is not in violation of any applicable rule, regulation, policy, or procedure of (A) the Internet Corporation for Assigned Names and Numbers, (B) any applicable domain name registry, or (C) any applicable domain name registrar in connection with the Domain Assets and the Domain Assets are in compliance with all formal legal requirements. Each Loan Party is not and has not engaged in or otherwise aided or solicited any third parties to engage in click fraud or any other acts or omissions of any kind to artificially inflate the value of the traffic or revenue statistics of the Domain Assets. Each Loan Party does not directly or indirectly have any other domain names or websites that are illegally or unlawfully driving Internet visitors and traffic in any way to the Domain Assets, or that otherwise violate in any material respect such party's third party domain name traffic agreements.
(v)    Immaterial Subsidiaries. MyStockFund Securities Inc. (i) engages in no business activities other than business activities necessary in connection with the winding down of its business operations, (ii) owns no assets, other than assets having a fair market value equal to or less than $50,000 in the aggregate for all such assets, or (iii) has no liabilities, other than liabilities equal to or less than $50,000 in the aggregate for all such liabilities.

DOCID - 27822767.5
 
 
- 80 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





(w)    Investment Company Act. None of the Loan Parties is (i) an "investment company" or an "affiliated person" or "promoter" of, or "principal underwriter" of or for, an "investment company", as such terms are defined in the Investment Company Act of 1940, as amended, or (ii) subject to regulation under any Requirement of Law that limits in any respect its ability to incur Indebtedness or which may otherwise render all or a portion of the Obligations unenforceable.
(x)    Customers and Suppliers. There exists no actual or, to the knowledge of any Loan Party, threatened, termination, cancellation or limitation of, or modification to or change in, the business relationship between (i) any Loan Party, on the one hand, and any customer or any group thereof, on the other hand, whose agreements with any Loan Party are individually or in the aggregate material to the business or operations of such Loan Party, or (ii) any Loan Party, on the one hand, and any supplier or any group thereof, on the other hand, whose agreements with any Loan Party are individually or in the aggregate material to the business or operations of such Loan Party; and, to the knowledge of any Loan Party, there exists no present state of facts or circumstances that could give rise to or result in any such termination, cancellation, limitation, modification or change.
(y)    Credit Card Agreements. Set forth in Schedule 6.01(y) is a correct and complete list of (i) all of the Credit Card Agreements existing as of the Effective Date between and/or among any Loan Party, any of its Affiliates, the Credit Card Issuers, the Credit Card Processors and any of their affiliates, and (ii) the term of such Credit Card Agreements. The Credit Card Agreements constitute all of such agreements necessary for each Loan Party to operate its business as presently conducted with respect to credit cards and debit cards and no Account of the Loan Parties arise from customer purchases with credit cards or debit cards, other than those which are issued by Credit Card Issuers with whom any Loan Party has entered into one of the Credit Card Agreements set forth on Schedule 6.01(y) hereto or with whom each Loan Party has entered into a Credit Card Agreement in accordance with this Section 6.01(y). Each of the Credit Card Agreements constitutes the legal, valid and binding obligations of such Loan Party, enforceable against such Loan Party in accordance with their respective terms except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors' rights. To the knowledge of each Loan Party, no default or event of default, or act, condition or event which after notice or passage of time or both, would constitute a default or an event of default under any of the Credit Card Agreements exists or has occurred and is continuing. Each Loan Party and, to each Loan Party's knowledge, the other parties thereto, have complied with all of the terms and conditions of the Credit Card Agreements to the extent necessary for such Loan Party to be entitled to receive all payments thereunder. The Loan Parties have delivered, or caused to be delivered to the Agents, true, correct and complete copies of all of the Credit Card Agreements.
(z)    Consummation of Acquisition. The Parent has delivered to the Agents complete and correct copies of the Vegas.com Acquisition Documents, including all schedules and exhibits thereto. The Vegas.com Acquisition Documents set forth the entire agreement and understanding of the parties thereto relating to the subject matter thereof, and there are no other agreements, arrangements or understandings, written or oral, relating to the matters covered thereby.

DOCID - 27822767.5
 
 
- 81 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





The execution, delivery and performance of the Vegas.com Acquisition Documents has been duly authorized by all necessary action (including, without limitation, the obtaining of any consent of stockholders or other holders of Equity Interests required by law or by any applicable corporate or other organizational documents) on the part of the Parent and, to the knowledge of the Parent, on the part of each other Person party thereto. No authorization or approval or other action by, and no notice to filing with or license from, any Governmental Authority on behalf of the Parent and, to the knowledge of the Parent, on behalf of any other Person party thereto is required for the consummation of such sale other than such as have been obtained on or prior to the Effective Date. Each Vegas.com Acquisition Document is the legal, valid and binding obligation of the Parent and, to the knowledge of the Parent, each other Person party thereto, enforceable against each such Person in accordance with its terms. All conditions precedent to the Vegas.com Acquisition Agreement have been fulfilled or (with the prior written consent of the Agents) waived, no Vegas.com Acquisition Document has been amended or otherwise modified in a manner adverse to the Parent, any other Loan Party, the Agents or the Lenders, and there has been no breach of any material term or condition of any Vegas.com Acquisition Document. The Parent has delivered to the Agents complete and correct copies of the CBG Acquisition Documents, including all schedules and exhibits thereto. The CBG Acquisition Documents set forth the entire agreement and understanding of the parties thereto relating to the subject matter thereof, and there are no other agreements, arrangements or understandings, written or oral, relating to the matters covered thereby. The execution, delivery and performance of the CBG Acquisition Documents has been duly authorized by all necessary action (including, without limitation, the obtaining of any consent of stockholders or other holders of Equity Interests required by law or by any applicable corporate or other organizational documents) on the part of the Parent and the BVI Borrower and, to the knowledge of the Parent and the BVI Borrower, on the part of each other Person party thereto. No authorization or approval or other action by, and no notice to filing with or license from, any Governmental Authority on behalf of the Parent or the BVI Borrower and, to the knowledge of the Parent and the BVI Borrower, on behalf of any other Person party thereto is required for the consummation of such sale other than such as have been obtained on or prior to the First Amendment Effective Date. Each CBG Acquisition Document is the legal, valid and binding obligation of the Parent and the BVI Borrower and, to the knowledge of the Parent and the BVI Borrower, each other Person party thereto, enforceable against each such Person in accordance with its terms. All conditions precedent to the CBG Acquisition Agreement have been fulfilled (or with the prior written consent of the Agents, waived), no CBG Acquisition Document has been amended or otherwise modified in a manner adverse to the Parent or the BVI Borrower, any other Loan Party, the Agents or the Lenders, and there has been no breach of any material term or condition of any CBG Acquisition Document.
(aa)    Anti-Money Laundering and Anti-Terrorism Laws.
(i)    None of the Loan Parties, nor any Affiliate of the Loan Parties controlled by the Loan Parties, nor, to the knowledge of any Loan Party, any Affiliate of any of the Loan Parties, has violated or is in violation of any of the Anti-Money Laundering and Anti-Terrorism Laws or has engaged in or conspired to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the Anti-Money Laundering and Anti-Terrorism Laws.

DOCID - 27822767.5
 
 
- 82 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





(ii)    None of the Loan Parties, nor any Affiliate of the Loan Parties controlled by the Loan Parties, nor, to the knowledge of any Loan Party, any Affiliate of any of the Loan Parties, nor any officer, director or principal shareholder or owner of any of the Loan Parties, nor any of the Loan Parties' respective agents acting or benefiting in any capacity in connection with the Loans or other transactions hereunder, is a Blocked Person.
(iii)    None of the Loan Parties and, to the knowledge of any Loan Party, no agents acting in any capacity in connection with the Loans or other transactions hereunder, (A) conducts any business with or for the benefit of any Blocked Person or engages in making or receiving any contribution of funds, goods or services to, from or for the benefit of any Blocked Person, or (B) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked or subject to blocking pursuant to any OFAC Sanctions Programs.
(bb)    Anti-Bribery and Anti-Corruption Laws.
(i)    The Loan Parties are in compliance with the U.S. Foreign Corrupt Practices Act of 1977, as amended (the "FCPA") and the anti-bribery and anti-corruption laws of those jurisdictions in which they do business (collectively, the "Anti-Corruption Laws").
(ii)    None of the Loan Parties has at any time:
(A)    offered, promised, paid, given, or authorized the payment or giving of any money, gift or other thing of value, directly or indirectly, to or for the benefit of any employee, official, representative, or other person acting on behalf of any foreign (i.e., non-U.S.) Governmental Authority thereof, or of any public international organization, or any foreign political party or official thereof, or candidate for foreign political office (collectively, "Foreign Official"), for the purpose of: (1) influencing any act or decision of such Foreign Official in his, her, or its official capacity; (2) inducing such Foreign Official to do, or omit to do, an act in violation of the lawful duty of such Foreign Official, or (3) securing any improper advantage, in order to obtain or retain business for, or with, or to direct business to, any Person; or
(B)    acted or attempted to act in any manner which would subject any of the Loan Parties to liability under any Anti-Corruption Law.
(iii)    To the knowledge of any Loan Party, there are, and have been, no allegations, investigations or inquiries with regard to a potential violation of any Anti-Corruption Law by any of the Loan Parties or any of their respective current or former directors, officers, employees, stockholders or agents, or other persons acting or purporting to act on their behalf.
(iv)    The Loan Parties have adopted, implemented and maintain anti-bribery and anti-corruption policies and procedures that are reasonably designed to ensure compliance with the Anti-Corruption Laws.

DOCID - 27822767.5
 
 
- 83 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





(cc)    Full Disclosure.
(i)    Each Loan Party has disclosed to the Agents all agreements, instruments and corporate or other restrictions to which it is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party to the Agents (other than forward-looking information and projections and information of a general economic nature and general information about Borrowers' industry) in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which it was made, not misleading.
(ii)    Projections have been prepared on a reasonable basis and in good faith based on assumptions, estimates, methods and tests that are believed by the Loan Parties to be reasonable at the time such Projections were prepared and information believed by the Loan Parties to have been accurate based upon the information available to the Loan Parties at the time such Projections were furnished to the Lenders, and Parent is not be aware of any facts or information that would lead it to believe that such Projections are incorrect or misleading in any material respect; it being understood that (A) Projections are by their nature subject to significant uncertainties and contingencies, many of which are beyond the Loan Parties' control, (B) actual results may differ materially from the Projections and such variations may be material and (C) the Projections are not a guarantee of performance.
(dd)    Exchange Controls. Each Loan Party has the ability to lawfully pay solely and exclusively in Dollars the total amount which is, or may become, payable by it to the Lenders under the Loan Documents.

ARTICLE VII

COVENANTS OF THE LOAN PARTIES

Section 7.01    Affirmative Covenants. So long as any principal of or interest on any Loan or any other Obligation (whether or not due) shall remain unpaid (other than Contingent Indemnity Obligations) or any Lender shall have any Commitment hereunder, each Loan Party will, unless the Required Lenders shall otherwise consent in writing:
(a)    Reporting Requirements. Furnish to each Agent and each Lender:
(i)    as soon as available, and in any event within 30 days after the end of each fiscal month of the Parent and its Subsidiaries commencing with the first fiscal month of the Parent and its Subsidiaries ending after the Effective Date, (A) internally prepared consolidated balance sheets and consolidated and consolidating statements of operations and retained earnings and statements of cash flows as at the end of such fiscal month, and for the period commencing at

DOCID - 27822767.5
 
 
- 84 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





the end of the immediately preceding Fiscal Year and ending with the end of such fiscal month, setting forth in each case in comparative form the figures for the corresponding date or period set forth in the financial statements for the immediately preceding Fiscal Year (or, in the case of Vegas.com and its Subsidiaries for the first 12 months following the Effective Date, only the statement of operations for the immediately preceding Fiscal Year), in reasonable detail and certified by an Authorized Officer of the Parent as fairly presenting, in all material respects, the financial position of the Parent and its Subsidiaries as at the end of such fiscal month and the results of operations, retained earnings and cash flows of the Parent and its Subsidiaries for such fiscal month and for such year-to-date period, in accordance with GAAP applied in a manner consistent with that of the most recent audited financial statements furnished to the Agents and the Lenders, subject to the absence of footnotes and normal year-end adjustments and (B) a report regarding certain key operating metrics of the Parent and its Subsidiaries for such month, in the form of Exhibit D hereto; provided that, for all periods ended on or prior to December 31, 2015, the requirements of sub-clause (A) of this clause shall be satisfied by delivery of financial statements substantially in the form of Exhibit E hereto;
(ii)    as soon as available and in any event within 45 days after the end of each fiscal quarter of the Parent and its Subsidiaries commencing with the first fiscal quarter of the Parent and its Subsidiaries ending after the Effective Date, consolidated balance sheets, and consolidated and consolidating statements of operations and retained earnings and statements of cash flows of the Parent and its Subsidiaries as at the end of such quarter, and for the period commencing at the end of the immediately preceding Fiscal Year and ending with the end of such quarter, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year (or, in the case of Vegas.com and its Subsidiaries for the first 12 months following the Effective Date, only the statement of operations for the immediately preceding Fiscal Year) and (B) the Projections, all in reasonable detail and certified by an Authorized Officer of the Parent as fairly presenting, in all material respects, the financial position of the Parent and its Subsidiaries as of the end of such quarter and the results of operations and cash flows of the Parent and its Subsidiaries for such quarter and for such year-to-date period, in accordance with GAAP applied in a manner consistent with that of the most recent audited financial statements of the Parent and its Subsidiaries furnished to the Agents and the Lenders, subject to the absence of footnotes and normal year-end adjustments;
(iii)    as soon as available, and in any event within 90 days after the end of each Fiscal Year of the Parent and its Subsidiaries, consolidated balance sheets, and consolidated and consolidating statements of operations and retained earnings and statements of cash flows of the Parent and its Subsidiaries as at the end of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year (or, in the case of Vegas.com and its Subsidiaries for the first 12 months following the Effective Date, only the statement of operations for the immediately preceding Fiscal Year), and (B) the Projections, all in reasonable detail and prepared in accordance with GAAP, and accompanied by a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized standing selected by the Parent and satisfactory to the Agents (which opinion shall be without (1) a "going concern" or like qualification or exception, (2) any qualification or exception

DOCID - 27822767.5
 
 
- 85 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





as to the scope of such audit, or (3) any qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Section 7.03), together with a written statement of such accountants (x) to the effect that, in making the examination necessary for their certification of such financial statements, they have not obtained any knowledge of the existence of an Event of Default or a Default under Section 7.03 and (y) if such accountants shall have obtained any knowledge of the existence of an Event of Default or such Default, describing the nature thereof;
(iv)    simultaneously with the delivery of the financial statements of the Parent and its Subsidiaries required by clauses (i), (ii) and (iii) of this Section 7.01(a), a certificate of an Authorized Officer of the Parent (a "Compliance Certificate"):
(A)    stating that such Authorized Officer has reviewed the provisions of this Agreement and the other Loan Documents and has made or caused to be made under his or her supervision a review of the condition and operations of the Parent and its Subsidiaries during the period covered by such financial statements with a view to determining whether the Parent and its Subsidiaries were in compliance with all of the provisions of this Agreement and such Loan Documents at the times such compliance is required hereby and thereby, and that such review has not disclosed, and such Authorized Officer has no knowledge of, the occurrence and continuance during such period of an Event of Default or Default or, if an Event of Default or Default had occurred and continued or is continuing, describing the nature and period of existence thereof and the action which the Parent and its Subsidiaries propose to take or have taken with respect thereto,
(B)    in the case of the delivery of the financial statements of the Parent and its Subsidiaries required by clauses (ii) and (iii) of this Section 7.01(a), (1) attaching a schedule showing the calculation of the financial covenants specified in Section 7.03 and (2) including a discussion and analysis of the financial condition and results of operations of the Parent and its Subsidiaries for the portion of the Fiscal Year then elapsed and discussing the reasons for any significant variations from the Projections for such period and the figures for the corresponding period in the previous Fiscal Year, and
(C)    in the case of the delivery of the financial statements of the Parent and its Subsidiaries required by clause (iii) of this Section 7.01(a), attaching (1) a summary of all material insurance coverage maintained as of the date thereof by any Loan Party and all material insurance coverage planned to be maintained by any Loan Party, together with such other related documents and information as the Administrative Agent may reasonably require, (2) the calculation of the Excess Cash Flow in accordance with the terms of Section 2.05(c)(i) and (3) confirmation that there have been no changes (other than immaterial changes that could not affect the validity, perfection of priority of the Collateral Agent's Lien on any Collateral) to the information contained in each of the Perfection Certificates delivered on the Effective Date or the date of the most recently updated Perfection Certificate delivered pursuant to this clause (iv) and/or attaching an updated Perfection Certificate identifying any such changes to the information contained therein;

DOCID - 27822767.5
 
 
- 86 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





(v)    as soon as available and in any event within 30 days after the end of each fiscal month of the Parent and its Subsidiaries commencing with the first fiscal month of the Parent and its Subsidiaries ending after the Effective Date, reports in form and detail satisfactory to the Agents and certified by an Authorized Officer of the Administrative Borrower as being accurate and complete (A) listing all Accounts of the Loan Parties as of such day, which shall include the amount and age of each such Account, showing separately those which are more than 30, 60, 90 and 120 days old and a description of all Liens, set-offs, defenses and counterclaims with respect thereto, and such other information as any Agent may reasonably request, (B) listing all accounts payable of the Loan Parties as of each such day which shall include the amount and age of each such account payable and such other information as any Agent may reasonably request, all in detail and in form satisfactory to the Agents; provided that, for all periods ended on or prior to December 31, 2015, the requirements of this clause (v) shall be satisfied by delivery of a report substantially in the form of Exhibit F hereto;
(vi)    as soon as available and in any event not later than 30 days after the end of each Fiscal Year, a certificate of an Authorized Officer of the Parent (A) attaching Projections for the Parent and its Subsidiaries, supplementing and superseding the Projections previously required to be delivered pursuant to this Agreement, including quarterly balance sheets, income statements and statements of cash flows of the Parent and its Subsidiaries for the remainder of such Fiscal Year of the Parent and its Subsidiaries, and annual balance sheets, income statements and statements of cash flows of the Parent and its Subsidiaries for all Fiscal Years ended thereafter through the Final Maturity Date, in each case, in form and substance satisfactory to the Agents, and (B) certifying that the representations and warranties set forth in Section 6.01(cc)(ii) are true and correct with respect to the Projections;
(vii)    promptly after submission to any Governmental Authority, all documents and information furnished to such Governmental Authority in connection with any investigation of any Loan Party other than routine inquiries by such Governmental Authority;
(viii)    as soon as possible, and in any event within 3 days after any Authorized Officer of any Loan Party has knowledge of the occurrence of an Event of Default or Default or the occurrence of any event or development that could reasonably be expected to have a Material Adverse Effect, the written statement of an Authorized Officer of the Administrative Borrower setting forth the details of such Event of Default or Default or other event or development having a Material Adverse Effect and the action which the affected Loan Party proposes to take with respect thereto;
(ix)    (A) as soon as possible and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that (1) any Reportable Event with respect to any Employee Plan has occurred, (2) any other Termination Event with respect to any Employee Plan has occurred, or (3) an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the Internal Revenue Code with respect to an Employee Plan, a statement of an Authorized Officer of the Administrative Borrower setting forth the details of such occurrence

DOCID - 27822767.5
 
 
- 87 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





and the action, if any, which such Loan Party or such ERISA Affiliate proposes to take with respect thereto, (B) promptly and in any event within 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each notice received by any Loan Party or any ERISA Affiliate thereof of the PBGC's intention to terminate any Plan or to have a trustee appointed to administer any Plan, (C) promptly and in any event within 10 days after the filing thereof with the Internal Revenue Service if requested by any Agent, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Employee Plan and Multiemployer Plan, (D) promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the Internal Revenue Code has not been made when due with respect to an Employee Plan, (E) promptly and in any event within 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Loan Party or any ERISA Affiliate thereof concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA, and (F) promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof sends notice of a plant closing or mass layoff (as defined in WARN) to employees, copies of each such notice sent by such Loan Party or such ERISA Affiliate thereof;
(x)    promptly after the commencement thereof but in any event not later than 5 days after service of process with respect thereto on, or the obtaining of knowledge thereof by, any Loan Party, notice of each action, suit or proceeding before any court or other Governmental Authority or other regulatory body or any arbitrator which, if adversely determined, could reasonably be expected to have a Material Adverse Effect;
(xi)    as soon as possible and in any event within 5 days after execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives in connection with the sale or other Disposition of the Equity Interests of, or all or substantially all of the assets of, any Loan Party;
(xii)    as soon as possible and in any event within 5 days after the delivery thereof to the Parent's Board of Directors, copies of all reports or other information so delivered;
(xiii)    promptly after (A) the sending or filing thereof, copies of all statements, reports and other information any Loan Party sends to any holders of its Indebtedness or its securities or files with the SEC or any national (domestic or foreign) securities exchange and (B) the receipt thereof, a copy of any material notice received from any holder of its Indebtedness;
(xiv)    promptly upon receipt thereof, copies of all financial reports (including, without limitation, management letters), if any, submitted to any Loan Party by its auditors in connection with any annual or interim audit of the books thereof;
(xv)    promptly upon request, any certification or other evidence requested from time to time by any Lender in its sole discretion, confirming the Borrowers' compliance with Section 7.02(r);

DOCID - 27822767.5
 
 
- 88 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





(xvi)    as soon as available, but in any event not later than 30 days after the end of each fiscal month, the monthly statements received by any Loan Party from any Credit Card Issuers or Credit Card Processors, together with such additional information with respect thereto as shall be reasonably sufficient to enable the Agents to monitor the transactions pursuant to the Credit Card Agreements;
(xvii)    simultaneously with the delivery of the financial statements of the Parent and its Subsidiaries required by clauses (i), (ii) and (iii) of this Section 7.01(a), if, as a result of any change in accounting principles and policies from those used in the preparation of the Financial Statements that is permitted by Section 7.02(q), the consolidated financial statements of the Parent and its Subsidiaries delivered pursuant to clauses (i), (ii) and (iii) of this Section 7.01(a) will differ from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance satisfactory to the Agents; and
(xviii)    promptly upon request, such other information concerning the condition or operations, financial or otherwise, of any Loan Party as any Agent may from time to time may reasonably request.
(b)    Additional Guarantors and Collateral Security. Cause:
(i)    each Subsidiary of any Loan Party not in existence on the Effective Date, to execute and deliver to the Collateral Agent promptly and in any event within 3 Business Days after the formation, acquisition or change in status thereof, (A) a Joinder Agreement, pursuant to which such Subsidiary shall be made a party to this Agreement as a Guarantor, (B) a supplement to the Security Agreement, together with (1) certificates evidencing all of the Equity Interests of any Person owned by such Subsidiary required to be pledged under the terms of the Security Agreement, (2) undated stock powers for such Equity Interests executed in blank with signature guaranteed, and (3) such opinions of counsel as the Collateral Agent may reasonably request, (C) to the extent required under the terms of this Agreement, one or more Mortgages creating on the real property of such Subsidiary a perfected, first priority Lien (in terms of priority, subject only to Permitted Specified Liens) on such real property and such other Real Property Deliverables as may be required by the Collateral Agent with respect to each such real property, (D) Credit Card Acknowledgements with respect to any Credit Card Agreements of such Subsidiary, (E) Domain Name Control Agreements with respect to any Domain Assets owned by such Subsidiary, and (F) such other agreements, instruments, approvals or other documents reasonably requested by the Collateral Agent in order to create, perfect, establish the first priority of or otherwise protect any Lien purported to be covered by any such Security Agreement or Mortgage or otherwise to effect the intent that such Subsidiary shall become bound by all of the terms, covenants and agreements contained in the Loan Documents and that all property and assets of such Subsidiary shall become Collateral for the Obligations; and
(ii)    each owner of the Equity Interests of any such Subsidiary to execute and deliver promptly and in any event within 3 Business Days after the formation or acquisition of

DOCID - 27822767.5
 
 
- 89 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





such Subsidiary a Pledge Amendment (as defined in the Security Agreement), together with (A) certificates evidencing all of the Equity Interests of such Subsidiary required to be pledged under the terms of the Security Agreement, (B) undated stock powers or other appropriate instruments of assignment for such Equity Interests executed in blank with signature guaranteed, (C) such opinions of counsel as the Collateral Agent may reasonably request and (D) such other agreements, instruments, approvals or other documents requested by the Collateral Agent.
Notwithstanding the foregoing, no Foreign Subsidiary shall be required to become a Guarantor of the U.S. Obligations hereunder (and, as such, shall not be required to deliver the documents required by clause (i) above in respect of any U.S. Obligations); provided, however, that if the Equity Interests of a Foreign Subsidiary are directly owned by a U.S. Loan Party, such U.S. Loan Party shall deliver all such documents, instruments, agreements (including, without limitation, at the reasonable request of the Collateral Agent, a pledge agreement governed by the laws of the jurisdiction of the organization of such Foreign Subsidiary) and certificates described in clause (ii) above to the Collateral Agent, and take all commercially reasonable actions reasonably requested by the Collateral Agent or otherwise necessary to grant and to perfect a first-priority Lien (subject to Permitted Specified Liens) in favor of the Collateral Agent, for the benefit of the Agents and the Lenders, as security for the U.S. Obligations in 65% of the voting Equity Interests of such Foreign Subsidiary and 100% of all other Equity Interests of such Foreign Subsidiary owned by such Loan Party.
(c)    Compliance with Laws; Payment of Taxes.
(i)    Comply, and cause each of its Subsidiaries to comply, in all material respects, with all Requirements of Law (including, without limitation, all Environmental Laws), judgments and awards (including any settlement of any claim that, if breached, could give rise to any of the foregoing).
(ii)    Pay, and cause each of its Subsidiaries to pay, in full before delinquency or before the expiration of any extension period, all taxes, assessments and other governmental charges imposed upon any Loan Party or any of its Subsidiaries or any property of any Loan Party or any of its Subsidiaries in an aggregate amount for all such taxes, assessments and other governmental charges exceeding $50,000, except to the extent contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP; provided that the aggregate amount of all taxes, assessments and other governmental charges being so contested at any one time shall not exceed $250,000.
(d)    Preservation of Existence, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its existence, rights and privileges, except as otherwise expressly permitted pursuant to Section 7.02(c), and become or remain, and cause each of its Subsidiaries to become or remain, duly qualified and in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except to the extent that the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect.

DOCID - 27822767.5
 
 
- 90 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





(e)    Keeping of Records and Books of Account. Keep, and cause each of its Subsidiaries to keep, adequate records and books of account, with complete entries made to permit the preparation of financial statements in accordance with GAAP.
(f)    Inspection Rights. Permit, and cause each of its Subsidiaries to permit, the agents and representatives of any Agent at any time and from time to time upon reasonable prior notice to the Administrative Borrower and during normal business hours, at the expense of the Borrowers, to examine and make copies of and abstracts from its records and books of account, to visit and inspect its properties, to verify materials, leases, notes, accounts receivable, deposit accounts and its other assets, to conduct audits, physical counts, valuations, appraisals, Phase I Environmental Site Assessments (and, if requested by the Collateral Agent based upon the results of any such Phase I Environmental Site Assessment, a Phase II Environmental Site Assessment) or examinations and to discuss its affairs, finances and accounts with any of its directors, officers, managerial employees, independent accountants or any of its other representatives; provided that the Borrowers shall not be required to reimburse the Agents for more than one such visit, inspection, audit, appraisal or other examination during any calendar year (excluding Qualified Appraisals) unless an Event of Default has occurred and is continuing (in which case no such limit shall be applicable). In furtherance of the foregoing, each Loan Party hereby authorizes its independent accountants, and the independent accountants of each of its Subsidiaries, to discuss the affairs, finances and accounts of such Person (independently or together with representatives of such Person) with the agents and representatives of any Agent in accordance with this Section 7.01(f).
(g)    Maintenance of Properties, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its properties which are necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear and tear and casualty excepted, and comply, and cause each of its Subsidiaries to comply, at all times with the provisions of all leases to which it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder, except to the extent the failure to so maintain and preserve or so comply could not reasonably be expected to have a Material Adverse Effect.
(h)    Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations (including, without limitation, comprehensive general liability, hazard, rent, worker's compensation and business interruption insurance) with respect to its properties (including all real properties leased or owned by it) and business, in such amounts and covering such risks as is required by any Governmental Authority having jurisdiction with respect thereto or as is carried generally in accordance with sound business practice by companies in similar businesses similarly situated and in any event in amount, adequacy and scope reasonably satisfactory to the Collateral Agent. All policies covering the Collateral are to be made payable to the Collateral Agent for the benefit of the Agents and the Lenders, as its interests may appear, in case of loss, under a standard non-contributory "lender" or "secured party" clause and are to contain such other provisions as the Collateral Agent may reasonably require to fully protect the Lenders' interest in the Collateral and to any payments to be made under such policies. All certificates of insurance are to be delivered to the Collateral Agent and the policies are to be premium prepaid, with the loss payable and additional insured endorsement in favor of the Collateral Agent and such other Persons as the

DOCID - 27822767.5
 
 
- 91 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





Collateral Agent may designate from time to time, and shall provide for not less than 30 days' (10 days' in the case of non-payment) prior written notice to the Collateral Agent of the exercise of any right of cancellation. If any Loan Party or any of its Subsidiaries fails to maintain such insurance, the Collateral Agent may arrange for such insurance, but at the Borrowers' expense and without any responsibility on the Collateral Agent's part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent shall have the sole right, in the name of the Lenders, any Loan Party and its Subsidiaries, to file claims under any insurance policies, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.
(i)    Obtaining of Permits, Etc. Obtain, maintain and preserve, and cause each of its Subsidiaries to obtain, maintain and preserve, and take all necessary action to timely renew, all permits, licenses, authorizations, approvals, entitlements and accreditations that are necessary or useful in the proper conduct of its business, in each case, except to the extent the failure to obtain, maintain, preserve or take such action could not reasonably be expected to have a Material Adverse Effect.
(j)    Environmental. (i) Keep any property either owned or operated by it or any of its Subsidiaries free of any Environmental Liens; (ii) comply, and cause each of its Subsidiaries to comply, with all Environmental Laws and provide to the Collateral Agent any documentation of such compliance which the Collateral Agent may reasonably request; (iii) provide the Agents written notice within 5 days of any Authorized Officer of any Loan Party obtaining knowledge of any Release of a Hazardous Material in excess of any reportable quantity from or onto property at any time owned or operated by it or any of its Subsidiaries, and take any Remedial Actions required to abate said Release; and (iv) provide the Agents with written notice within 10 days of the receipt of any of the following: (A) notice that an Environmental Lien has been filed against any property of any Loan Party or any of its Subsidiaries; (B) commencement of any Environmental Action or notice that an Environmental Action will be filed against any Loan Party or any of its Subsidiaries; and (C) notice of a violation, citation or other administrative order which could reasonably be expected to have a Material Adverse Effect.
(k)    Fiscal Year. Cause the Fiscal Year of the Parent and its Subsidiaries to end on December 31st of each calendar year unless the Agents consent to a change in such Fiscal Year (and appropriate related changes to this Agreement).
(l)    Landlord Waivers; Collateral Access Agreements. Commencing on the date that is 30 days following the Effective Date, at any time any Collateral with a book value in excess of $250,000 (when aggregated with all other Collateral at the same location) is located on any real property of a Loan Party (whether such real property is now existing or acquired after the Effective Date) which is not owned by a Loan Party, or is stored on the premises of a bailee, warehouseman, or similar party, use commercially reasonable efforts to obtain written subordinations or waivers

DOCID - 27822767.5
 
 
- 92 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





or collateral access agreements, as the case may be, in form and substance satisfactory to the Collateral Agent.
(m)    After Acquired Real Property. Upon the acquisition by it or any of its Subsidiaries, other than any Foreign Subsidiary, after the date hereof of any fee interest in any real property (wherever located) (each such interest being a "New Facility") with a Current Value (as defined below) in excess of $100,000 immediately so notify the Collateral Agent, setting forth with specificity a description of the interest acquired, the location of the real property, any structures or improvements thereon and either an appraisal or such Loan Party's good-faith estimate of the current value of such real property (for purposes of this Section, the "Current Value"). The Collateral Agent shall notify such Loan Party whether it intends to require a Mortgage (and any other Real Property Deliverables) with respect to such New Facility. Upon receipt of such notice requesting a Mortgage (and any other Real Property Deliverables), the Person that has acquired such New Facility shall promptly furnish the same to the Collateral Agent. The Borrowers shall pay all fees and expenses, including, without limitation, reasonable attorneys' fees and expenses, and all title insurance charges and premiums, in connection with each Loan Party's obligations under this Section 7.01(m).
(n)    Anti-Bribery and Anti-Corruption Laws. Maintain, and cause each of its Subsidiaries to maintain, anti-bribery and anti-corruption policies and procedures that are reasonably designed to ensure compliance with the Anti-Corruption Laws.
(o)    Lender Meetings. From time to time upon the reasonable request of any Agent or the Required Lenders, cause the senior members of the management teams of each Loan Party (including, without limitation, any Person specifically requested by any Agent) to participate in telephonic meetings with the Agents and the Lenders and in-person meetings with the Agents and the Lenders at the Borrowers' corporate offices (or at such other location as may be agreed to by the Administrative Borrower and such Agent or the Required Lenders) to discuss the affairs, assets, financial performance, liquidity, operational performance and finances of the Loan Parties and such other matters as may be reasonably requested by any Lender or any Agent, at such times as may be agreed to by the Administrative Borrower and such Agent or the Required Lenders; provided that, so long as no Event of Default shall have occurred and be continuing, (i) requests for telephonic meetings may not be made more frequently than once during each calendar month and (ii) requests for in-person meetings may not be made more frequently than once during each calendar year.
(p)    Domain Name Control Agreements. Obtain and maintain at all times, Domain Name Control Agreements with respect to each of the domain names owned by any Loan Party, and, at the request of the Collateral Agent, enter into such other agreements and arrangements with third party domain name registrars necessary or appropriate to allow the Collateral Agent to access and control the use and ownership of the Domain Assets in the event that it is necessary for the Agents to exercise their remedies under the Loan Documents.
(q)    Proceeds of Dispositions of Sharecare Equity and Extraordinary Receipts.
(i)    Immediately upon the Disposition of any Sharecare Equity by the Parent or any of its Subsidiaries, deliver to the Administrative Agent, for deposit into the Cash

DOCID - 27822767.5
 
 
- 93 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





Collateral Account, an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such Disposition; and
(ii)    upon the receipt by any Loan Party or any of its Subsidiaries of any Extraordinary Receipts, deliver to the Administrative Agent, for deposit into the Cash Collateral Account, an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith;
provided, however, that the aggregate amount of funds required to be delivered to the Administrative Agent for deposit into the Cash Collateral Account pursuant to this Section 7.01(q) shall not exceed the amount required to repay the Obligations in full.
(r)    Board Observation Rights. (i) Permit one observer designated by the Collateral Agent (the "Board Observer") to attend any meeting (a "BOD Meeting") of the Board of Directors of the Parent (or its direct or indirect ultimate parent holding company) or any of its Subsidiaries (or, in each case, any relevant committees thereof), except that the Board Observer shall not be entitled to vote on matters presented to or discussed by the Board of Directors (or any relevant committee thereof) of the Parent (or its direct or indirect ultimate parent holding company) or any of its Subsidiaries at any such meetings; (ii) hold BOD Meetings no less than once per calendar quarter; (iii) notify the Board Observer of the time and place of any BOD Meetings and all proposed actions to be taken by the Board of Directors (or any relevant committee thereof) of the Parent (or its direct or indirect ultimate parent holding company) and any of its Subsidiaries at such meeting in a manner consistent with such notice provided to members of the Board of Directors or relevant committee thereof; (iv) provide to the Board Observer all information provided to the members of the Board of Directors or any similar group performing an executive oversight or similar function (or any relevant committee thereof) of the Parent (or its direct or indirect ultimate parent holding company) and any of its Subsidiaries in anticipation of or at such meeting (regular or special and whether telephonic or otherwise), in addition to copies of the records of the proceedings or minutes of such meeting, when provided to the members (it being understood that the Board Observer shall be required to keep such materials and information confidential in accordance with Section 12.19 of this Agreement); and (v) with respect to two BOD Meetings per year, reimburse the Board Observer, upon request, for all reasonable out-of-pocket costs and expenses incurred in connection with its participation in any such BOD Meeting; provided, that if counsel to the Parent or such Subsidiary advises the Parent or such Subsidiary that in its reasonable good faith discretion, participation in any BOD Meeting by the Board Observer or delivery of any document to the Board Observer required pursuant to clause (i) or (iv) above would result in a waiver of attorney-client privilege, create a conflict of interest or otherwise violate applicable law, the Parent shall notify the Board Observer in writing thereof (which notice shall contain reasonable detail regarding the nature of the issue and the related legal concern) and shall be entitled to exclude the Board Member from the portion of the applicable BOD Meeting during which such issue is discussed and redact the portion of the relevant documents addressing such issue.
(s)    Post-Closing Requirements.
(i)    Within 10 Business Days following the Effective Date (or such later date as the Collateral Agent may otherwise agree), deliver to the Collateral Agent, in form and

DOCID - 27822767.5
 
 
- 94 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





substance reasonably satisfactory to the Collateral Agent, evidence of the insurance coverage required by Section 7.01 (to the extent not provided on the Effective Date) and endorsements in respect of each insurance policy maintained by the Loan Parties (except as otherwise agreed by the Collateral Agent), naming the Collateral Agent as additional insured or lenders loss payee, as applicable, and providing that such policy may be terminated or canceled (by the insurer or the insured thereunder) only upon 30 days' prior written notice to the Collateral Agent and each such named insured or loss payee;
(ii)    Within 30 days following the Effective Date (or such later date as the Collateral Agent may otherwise agree), deliver to the Collateral Agent, in form and substance reasonably satisfactory to the Collateral Agent, (A) (1) amendments to the operating agreements of each Subsidiary of the Parent that is a limited liability company, (2) certificates representing the Equity Interests of each such Subsidiary, and (3) transfer powers with respect to the Equity Interests referred to in clause (2) above, duly executed in blank, and (B) amendments to the certificates of incorporation of Remark Travel, Inc. and Roomlia, Inc.
(iii)    Within 30 days following the Effective Date (or such later date as the Collateral Agent may otherwise agree), (A) repay in full (and terminate all obligations in respect of) (1) the Parent's payment obligations to Jeff Arnold in the aggregate principal amount of $85,000, and (2) the Convertible Promissory Note, dated as of December 11, 2014, made by the Parent to the order of Scott Booth, an individual, in the original face amount of $100,000, and (B) deliver to the Collateral Agent, in form and substance reasonably satisfactory to the Collateral Agent, evidence of such repayment and termination.
(iv)    Within 30 days following the Effective Date (or such later date as the Collateral Agent may otherwise agree), deliver to the Collateral Agent, in form and substance reasonably satisfactory to the Collateral Agent, Domain Name Control Agreements with respect to each domain name owned by any Loan Party, duly executed by the applicable Loan Party, the Collateral Agent and the applicable domain name registrar; provided, that if the Loan Parties are unable to deliver such Domain Name Control Agreements to the Collateral Agent by such date, after using commercially reasonable efforts to do so, no Default or Event of Default shall result under this provision if, within 60 days following the Effective Date, the Loan Parties (A) use commercially reasonable efforts to identify a new domain registrar that is willing to enter into a Domain Name Control Agreement with the Collateral Agent, (B) transfer all of the domain names owned by a Loan Party to a new registrar that is willing to enter into a Domain Name Control Agreement with the Collateral Agent, and (C) deliver to the Collateral Agent, in form and substance reasonably satisfactory to the Collateral Agent, Domain Name Control Agreements with respect to each domain name owned by any Loan Party, duly executed by the applicable Loan Party, the Collateral Agent and each new applicable domain name registrar.
(v)    Within 30 days following the Effective Date (or such later date as the Collateral Agent may otherwise agree), deliver to the Collateral Agent, in form and substance reasonably satisfactory to the Collateral Agent, Control Agreements with respect to each Cash Management Account maintained by any Loan Party (other than Excluded Accounts), duly executed by the applicable Loan Party, the Collateral Agent and the applicable financial institution.

DOCID - 27822767.5
 
 
- 95 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





(vi)    Use commercially reasonable best efforts to deliver to the Collateral Agent, within three Business Days following the next meeting of the shareholders of the Parent, an amendment to the certificate of incorporation of the Parent, in form and substance reasonably satisfactory to the Collateral Agent
(vii)    Use commercially reasonable best efforts to deliver to the Collateral Agent, within 30 days following the Effective Date (or such later date as the Collateral Agent may otherwise agree), Credit Card Acknowledgments, in form and substance reasonably satisfactory to the Collateral Agent, duly executed by the Collateral Agent, the applicable Loan Parties, and each Credit Card Issuer and Credit Card Processor that is party to a Credit Card Agreement with one or more Loan Parties (except to the extent the Collateral Agent may otherwise agree); provided, that to the extent such Credit Card Acknowledgements cannot be delivered by such date, the Loan Parties and the Agents agree to negotiate in good faith to reach a mutually acceptable solution with respect to the credit card arrangements of the Loan Parties, which may include, to the extent reasonably required by the Agents, entering into Credit Card Agreements with new Credit Card Processors and Credit Card Issuers.
(viii)    Within 90 days following the Effective Date (or such later date as the Collateral Agent may otherwise agree), deliver to the Collateral Agent, in form and substance reasonably satisfactory to the Collateral Agent, such local law security documents as may be necessary to grant to the Collateral Agent a first-priority perfected security interest (under local law) with respect to 65% of the voting Equity Interests and 100% of the non-voting Equity Interests of KanKan HK Limited (and to the extent requested by the Collateral Agent, any other Subsidiary of the Parent that participates in the KanKan social media channelartificial intelligence data platform business), accompanied by an opinion of local counsel to the effect that the security interest of the Collateral Agent thereunder is perfected.
(ix)    Within 90 days following the Effective Date (or such later date as the Collateral Agent may otherwise agree), deliver to the Collateral Agent evidence of the liquidation of the MyStockFund businesses, the transfer of all remaining assets of MyStockFund Securities, Inc. to a Loan Party, and the dissolution of MyStockFund Securities, Inc.
(t)    Credit Card Agreements. (a) Observe and perform all material terms, covenants, conditions and provisions of the Credit Card Agreements to be observed and performed by it at the times set forth therein; (b) not do, permit, suffer or refrain from doing anything, as a result of which there could be a material default under or material breach of any of the terms of any of the Credit Card Agreements; (c) at all times maintain in full force and effect the Credit Card Agreements and not terminate, cancel, surrender, or materially modify, amend, waive or release any of the Credit Card Agreements, or consent to or permit to occur any of the foregoing; except, that, (i) any such Loan Party may terminate or cancel any of the Credit Card Agreements in the ordinary course of the business of such Loan Party; provided that such Loan Party shall give the Agents not less than 5 Business Days' prior written notice of its intention to so terminate or cancel any of the Credit Card Agreements, and (ii) any Loan Party may modify or amend any of the Credit Card Agreement, so long as such modification or amendment does not give the Credit Card Issuer or Credit Card Processor party thereto greater rights to set-off against amounts otherwise payable

DOCID - 27822767.5
 
 
- 96 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





to such Loan Party or greater rights to cease or suspend payments to such Loan Party; (d) not enter into any new Credit Card Agreements with any new Credit Card Issuer or Credit Card Processor unless (i) the Agents shall have received not less than 30 days' prior written notice of the intention of such Loan Party to enter into such agreement (together with such other information with respect thereto as the Agents may reasonably request) and (ii) such Loan Party delivers, or causes to be delivered to the Agents, a Credit Card Acknowledgment in favor of the Collateral Agent; and (e) furnish to the Agents, promptly upon the request of any Agent, such information and evidence as any Agent may reasonably require from time to time concerning the observance, performance and compliance by such Loan Party or the other party or parties thereto with the terms, covenants or provisions of the Credit Card Agreements.
(u)    Further Assurances. Take such action and execute, acknowledge and deliver, and cause each of its Subsidiaries to take such action and execute, acknowledge and deliver, at its sole cost and expense, such agreements, instruments or other documents as any Agent may reasonably require from time to time in order (i) to carry out more effectively the purposes of this Agreement and the other Loan Documents, (ii) to subject to valid and perfected first priority Liens any of the Collateral or any other property of any Loan Party and its Subsidiaries, (iii) to establish and maintain the validity and effectiveness of any of the Loan Documents and the validity, perfection and priority of the Liens intended to be created thereby, and (iv) to better assure, convey, grant, assign, transfer and confirm unto each Secured Party the rights now or hereafter intended to be granted to it under this Agreement or any other Loan Document (including, without limitation, upon the occurrence of an Event of Default, causing each Credit Card Issuer and Credit Card Processor to direct all payments (due to any Loan Party) of all credit card charges submitted by any Loan Party to such Credit Card Issuer and Credit Card Processor to the Administrative Agent's Account). In furtherance of the foregoing, to the maximum extent permitted by applicable law, each Loan Party (i) authorizes each Agent to execute any such agreements, instruments or other documents in such Loan Party's name and to file such agreements, instruments or other documents in any appropriate filing office, (ii) authorizes each Agent to file any financing statement required hereunder or under any other Loan Document, and any continuation statement or amendment with respect thereto, in any appropriate filing office without the signature of such Loan Party, and (iii) ratifies the filing of any financing statement, and any continuation statement or amendment with respect thereto, filed without the signature of such Loan Party prior to the date hereof.
Section 7.02    Negative Covenants. So long as any principal of or interest on any Loan or any other Obligation (whether or not due) shall remain unpaid (other than Contingent Indemnity Obligations) or any Lender shall have any Commitment hereunder, each Loan Party shall not, unless the Required Lenders shall otherwise consent in writing:
(a)    Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Lien upon or with respect to any of its properties, whether now owned or hereafter acquired; file or suffer to exist under the Uniform Commercial Code or any Requirement of Law of any jurisdiction, a financing statement (or the equivalent thereof) that names it or any of its Subsidiaries as debtor; sign or suffer to exist any security agreement authorizing any secured party thereunder to file such financing statement (or the equivalent thereof) other than, as to all of the above, Permitted Liens.

DOCID - 27822767.5
 
 
- 97 -

ChangePro Comparison of 27822767v1 and 27822767v5 4/30/2018





(b)    Indebtedness. Create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to, or permit any of its Subsidiaries to create, incur, assume, guarantee or suffer to exist or otherwise become or remain liable with respect to, any Indebtedness other than Permitted Indebtedness.
(c)    Fundamental Changes; Dispositions.
(i)    Wind-up, liquidate or dissolve, or merge, consolidate or amalgamate with any Person, or permit any of its Subsidiaries to do (or agree to do) any of the foregoing; provided, however, that (A) any wholly-owned Subsidiary of any Loan Party (other than a Borrower) may be merged into such Loan Party or another wholly-owned Subsidiary of such Loan Party, or may consolidate or amalgamate with another wholly-owned Subsidiary of such Loan Party, so long as (1) no other provision of this Agreement would be violated thereby, (2) such Loan Party gives the Agents at least 30 days' prior written notice of such merger, consolidation or amalgamation accompanied by true, correct and complete copies of all material agreements, documents and instruments relating to such merger, consolidation or amalgamation, including, but not limited to, the certificate or certificates of merger or amalgamation to be filed with each appropriate Secretary of State (with a copy as filed promptly after such filing), (3) no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (4) the Lenders' rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger, consolidation or amalgamation and (5) the surviving Subsidiary, if any, if not already a Loan Party, is joined as a Loan Party hereunder pursuant to a Joinder Agreement and is a party to a Security Agreement and the Equity Interests of such Subsidiary is the subject of a Security Agreement, in each case, which is in full force and effect on the date of and immediately after giving effect to such merger, consolidation or amalgamation and (B) the Loan Parties may wind down and terminate the HowStuffWorks and MyStockFund businesses, and liquidate any Subsidiary that has substantially no business other than the business of HowStuffWorks or MyStockFund, so long as the assets of such Subsidiary are distributed to a Loan Party prior to (or concurrently with) the effectiveness of such liquidation; and
(ii)    Make any Disposition, whether in one transaction or a series of related transactions, of all or any part of its business, property or assets, whether now owned or hereafter acquired (or agree to do any of the foregoing), or permit any of its Subsidiaries to do any of the foregoing; provided, however, that any Loan Party and its Subsidiaries may make Permitted Dispositions.
(d)    Change in Nature of Business.
(i)    Engage, or permit any of its Subsidiaries to engage in any business other than a Permitted Business; or
(ii)