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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): January
18, 2024
B.
RILEY FINANCIAL, INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-37503 |
|
27-0223495 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
11100
Santa Monica Blvd., Suite
800
Los
Angeles, CA
90025
310-966-1444
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which
registered |
Common
Stock, par value $0.0001 per share |
|
RILY |
|
Nasdaq Global Market |
Depositary Shares (each
representing a 1/1000th interest in a 6.875% Series A Cumulative Perpetual Preferred Share, par value $0.0001 per share) |
|
RILYP |
|
Nasdaq Global Market |
Depositary Shares, each
representing a 1/1000th fractional interest in a 7.375% share of Series B Cumulative Perpetual Preferred Stock |
|
RILYL |
|
Nasdaq Global Market |
6.75% Senior Notes due
2024 |
|
RILYO |
|
Nasdaq Global Market |
6.375% Senior Notes due
2025 |
|
RILYM |
|
Nasdaq Global Market |
5.00% Senior Notes due
2026 |
|
RILYG |
|
Nasdaq Global Market |
5.50% Senior Notes due
2026 |
|
RILYK |
|
Nasdaq Global Market |
6.50% Senior Notes due
2026 |
|
RILYN |
|
Nasdaq Global Market |
5.25% Senior Notes due
2028 |
|
RILYZ |
|
Nasdaq Global Market |
6.00% Senior Notes due
2028 |
|
RILYT |
|
Nasdaq Global Market |
Not
Applicable
(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
January 18, 2024 (the “Effective Date”), B. Riley Financial, Inc., a
Delaware corporation (the “Company”), entered into a guaranty (the
“Guaranty”) in favor of (i) Axos Bank, in its capacity as administrative
agent (the “Administrative Agent”) for the secured parties under that
certain Credit Agreement, dated as of the Effective Date among Babcock & Wilcox Enterprises, Inc. (the “Borrower”),
the guarantors party thereto, the lenders party thereto and the Administrative Agent (the “Credit
Agreement”), and (ii) the secured parties. The description of the Credit Agreement included under Item 1.01 – Entry into a Material Definitive Agreement in the Borrower’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on January 22, 2024, is incorporated by reference herein.
Subject
to the terms and conditions of the Guaranty, the Company has guaranteed certain obligations of the Borrower (subject to certain limitations)
under the Credit Agreement, including the obligation to repay outstanding loans and letters of credit and to pay earned interest, fees
costs and expenses of enforcing the Guaranty, provided however, that the Company’s obligations with respect to the principal amount
of credit extensions and unreimbursed letter of credit obligations under the Credit Agreement shall not at any time exceed $150,000,000
in the aggregate. In consideration for the agreements and commitments under the Guaranty and pursuant to a separate fee and reimbursement
agreement, the Borrower has agreed to pay the Company a fee equal to 2.00% of the aggregate revolving commitments (as defined in the
Credit Agreement) under the Credit Agreement, payable quarterly and, at the Borrower’s election, in cash in full or 50% in cash
and 50% in the form of penny warrants.
The
foregoing description of the Guaranty is only a summary, does not purport to be complete and is qualified in its entirety by reference
to the full text of the Guaranty a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K.
Item
2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
The
information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
Item
9.01 Financial Statements and Exhibits
(d) Exhibits.
SIGNATURES
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.
|
B. Riley Financial, Inc. |
|
|
|
By: |
/s/ Phillip J. Ahn |
|
Name: |
Phillip J. Ahn |
|
Title: |
CFO & COO |
Date:
January 22, 2024
Exhibit 10.1
Exhibit C
EXECUTION
COPY
GUARANTY
GUARANTY (this “Guaranty”),
dated as of January 18, 2024, by B. RILEY FINANCIAL, INC. (the “Guarantor”), in favor of (i) AXOS BANK, in its capacity
as administrative agent (in such capacity, the “Administrative Agent”) for the Secured Parties (as defined in the Credit
Agreement referred to below), and (ii) such Secured Parties.
W I T N E S S E T H
WHEREAS, reference is made
to that certain Credit Agreement, dated as of the date hereof (as in effect on the date hereof, and as amended, modified, extended, restated,
renewed, replaced, or supplemented from time to time in accordance with the terms hereof, the “Credit Agreement”),
by, among others, (i) Babcock & Wilcox Enterprises, Inc. (the “Borrower”), (ii) the Guarantors party thereto from
time to time, (iii) the Lenders party thereto from time to time (the “Lenders”), and (iv) Axos Bank, as Administrative
Agent, L/C Issuer and Swingline Lender. Capitalized terms used herein and not defined herein shall have the meanings assigned to such
terms in the Credit Agreement.
WHEREAS the Lenders have agreed
to make Loans to the Borrower, and the L/C Issuer and the Underlying Issuer have agreed to issue Letters of Credit for the account of
the Borrower and certain of its Affiliates, in an aggregate principal amount of up to $150,000,000.00, pursuant to, and upon the terms
and subject to the conditions specified in, the Credit Agreement.
WHEREAS, the Guarantor is
an owner of Equity Interests in the Borrower and will materially benefit from the availability of the credit facility provided for in
the Credit Agreement, from the making of the Loans by the Lenders, and the issuance of the Letters of Credit by the L/C Issuer and the
Underlying Issuer.
WHEREAS, the obligations of
the Lenders to make Loans and of the L/C Issuer and the Underlying Issuer to issue Letters of Credit are each conditioned upon, among
other things, the execution and delivery by the Guarantor of a guaranty in the form hereof. As consideration therefor, and in order to
induce the Lenders to make Loans and the L/C Issuer and the Underlying Issuer to issue Letters of Credit, the Guarantor is willing to
execute this Guaranty.
Accordingly, the Guarantor
hereby agrees as follows:
SECTION 1. Guaranty.
(a) The
Guarantor irrevocably and unconditionally guaranties, as a primary obligor and not merely as a surety, the due and punctual payment when
due (whether at the stated maturity, by required prepayment, by acceleration or otherwise) and performance by the Borrower of (i) the
principal amount of Credit Extensions, (ii) all unreimbursed L/C Obligations under the Credit Agreement and the other Loan Documents,
including any Loans in respect thereof made pursuant to Section 2.03(f) of the Credit Agreement; provided that the obligations
guaranteed pursuant to the foregoing clauses (i) and (ii) shall not at any time exceed $150,000,000.00 in the aggregate, (iii) interest
on any Loans under or described in the foregoing clauses (i) and (ii), (iv) Commitment Fees and Additional Facility Fees payable pursuant
to the Fee Letter and fees payable pursuant to Section 2.03(l) of the Credit Agreement, and (v) costs and expenses as provided in SECTION
15 (the foregoing clauses (i) though and including (v), collectively, the “Guaranteed Obligations”), including any
such indebtedness, obligations, and liabilities, or portion thereof, which may be or hereafter become unenforceable or compromised or
shall be an allowed or disallowed claim under any proceeding or case commenced by or against any debtor under any Debtor Relief Laws;
provided, that the Guarantor shall have no liability to make any payment under the foregoing clauses (ii) or (iii) until the occurrence
of a Reimbursement Guarantee Event (as defined below). As used herein, a “Reimbursement Guarantee Event” means the
failure of the Borrower and the other Loan Parties to reimburse the L/C Issuer in respect of any L/C Disbursement within two (2) Business
Days following the date on which such reimbursement payment is due pursuant to Section 2.03(f) of the Credit Agreement, notwithstanding
the making or deemed making of a Loan pursuant to such Section 2.03(f) and without limiting the Secured Parties’ rights and remedies,
or the Loan Parties’ obligations, under the Loan Documents arising as a result of the Borrower’s and the other Loan Parties’
failure to so reimburse when due.
(b) Notwithstanding
anything to the contrary set forth herein or in any of the other Loan Documents:
(i) in
the event only of a failure by the Borrower to effect a required repayment pursuant to Section 2.05(b)(vi) of the Credit Agreement in
respect of an Overadvance, the liability of the Guarantor hereunder with respect thereto shall not arise unless the Borrower shall have
failed to make such payment within thirty (30) days after the date on which such repayment was otherwise required to be made under the
Credit Agreement; provided, that such liability shall arise immediately if, at any time during such thirty-day period, any Event
of Default other than failure to make such payment within such thirty-day period shall occur;
(ii) in
the event only of an Event of Default arising from the failure of the Borrower to comply with the provisions of one or more of the financial
covenants set forth in Section 7.11(a) and/or Section 7.11(b) of the Credit Agreement as reflected in a Compliance Certificate delivered
pursuant to and in accordance with the terms of the Credit Agreement (a “Specified Financial Covenant Breach”), the
Guarantor shall have no liability in respect such occurrence in such instance unless a Specified Financial Covenant Breach has occurred
as of the end of two (2) consecutive fiscal quarters as reflected in a Compliance Certificate delivered pursuant to and in accordance
with the terms of the Credit Agreement, and only if the Guarantor has then failed within thirty (30) days after the occurrence of such
Event of Default for such second consecutive fiscal quarter, to provide the Borrower, in an amount necessary and sufficient to effect
a cure of such Specified Financial Covenant Breach with respect to such fiscal quarters, with (i) an equity capital contribution or other
similar infusion of capital, in any such case on terms and subject to conditions reasonably acceptable to the Administrative Agent, or
(ii) a loan advance or similar financial accommodation, in any such case on arms’ length and commercially reasonable terms, with
any Liens granted in favor of the Guarantor to secure such loan advance or similar financial accommodation to be subordinated to the Liens
securing the Obligations pursuant to the Specified Guarantor Subordination Agreement, and which loan advance or similar financial accommodation
shall in all respects be on terms, and subject to documentation, reasonably acceptable to the Administrative Agent; provided, that
such liability shall arise immediately if at any time during such thirty (30)-day period, any Event of Default (including, for the avoidance
of doubt, as a result of the failure to deliver any Compliance Certificate pursuant to and in accordance with the terms of the Credit
Agreement) other than any such Specified Financial Covenant Breach shall occur;
(iii) in
the event only of an Event of Default under Sections 8.01(a), (f), (g) or (p) of the Credit Agreement (other than as set forth in the
foregoing clauses (b)(i) and (ii), as to which the terms thereof shall apply), the Administrative Agent may immediately invoke its rights
and remedies in respect of this Guaranty; and
(iv) other
than as set forth in the foregoing clauses (b)(i) and (ii) (as to which the terms thereof shall apply), in the event only of an Event
of Default under Sections 8.01(b), (e) or (h)-(o) of the Credit Agreement, the Administrative Agent agrees that it shall not invoke its
rights and remedies in respect of this Guaranty until fifteen (15) days following the occurrence of such Event of Default.
(c) The
Administrative Agent’s books and records showing the amount of the Guaranteed Obligations shall be admissible in evidence in any
action or proceeding, and shall be binding upon the Guarantor, and conclusive for the purpose of establishing the amount of the Guaranteed
Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations
or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection
or extent of any collateral therefor, or by any fact or circumstance relating to the Guaranteed Obligations which might otherwise constitute
a defense to the obligations of the Guarantor, under this Guaranty, and the Guarantor hereby irrevocably waives any defenses it may now
have or hereafter acquire in any way relating to any or all of the foregoing.
(d) The
principal amount of Credit Extensions guaranteed pursuant to SECTIONS 1(a)(i) and 1(a)(ii) hereof shall be reduced concurrently, dollar
for dollar, with any permanent reduction in the Aggregate Revolving Commitments to the extent such permanent reduction is consummated
in accordance with the Credit Agreement. Unless consented in writing by the Guarantor, the principal amount of Credit Extensions guaranteed
pursuant to SECTIONS 1(a)(i) and 1(a)(ii) hereof shall not be increased by any increase in the Aggregate Revolving Commitments after any
such permanent reduction.
(e) Unless
consented in writing by the Guarantor, any references to the Credit Agreement and the other Loan Documents in this Guaranty refer to the
Credit Agreement and the other Loan Documents as in effect as of the date hereof, and as amended, modified, extended, restated, renewed,
replaced, or supplemented from time to time to the extent such amendment, modification, extension, restatement, renewal, replacement or
supplement is not prohibited by SECTION 4(b). For the avoidance of doubt, the principal amount of Credit Extensions guaranteed pursuant
to SECTIONS 1(a)(i) and 1(a)(ii) hereof shall not at any time exceed $150,000,000.00, notwithstanding any amendment, modification, extension,
restatement, renewal, replacement or supplement to the Credit Agreement or the other Loan Documents.
SECTION 2. Guaranteed
Obligations Not Affected. To the fullest extent permitted by applicable Law, the Guarantor waives presentment to, demand of payment
from, and protest to, any Loan Party of any of the Guaranteed Obligations, and also waives notice of acceptance of this Guaranty, notice
of protest for nonpayment and all other notices of any kind. To the fullest extent permitted by applicable Law, the obligations of the
Guarantor hereunder shall not be affected by (a) the failure of the Administrative Agent or any other Secured Party to assert any
claim or demand or to enforce or exercise any right or remedy against the Guarantor or any Loan Party under the provisions of the Credit
Agreement, any other Loan Document or otherwise or against any other party with respect to any of the Guaranteed Obligations, (b) any
rescission, waiver, amendment, extension, renewal, compromise, discharge, acceleration or other modification of, or any release from,
any of the terms or provisions of this Guaranty, any other Loan Document or any other agreement, with respect to the Guarantor or any
Loan Party or with respect to the Guaranteed Obligations (except as expressly set forth in such rescission, waiver, amendment, extension,
renewal, compromise, discharge, acceleration or other modification or release), (c) the failure to perfect any security interest
in, or the release of, any of the Collateral held by or on behalf of the Administrative Agent or any other Secured Party, or (d) the lack
of legal existence of the Guarantor or any Loan Party or legal obligation to discharge any of the Guaranteed Obligations by the Guarantor
or any Loan Party for any reason whatsoever, including, without limitation, in connection with any Debtor Relief Laws.
SECTION 3. Security.
The Guarantor covenants and agrees that its obligation to make payments of the Guaranteed Obligations hereunder constitutes an unsecured
obligation of the Guarantor ranking (a) pari passu with all existing and future senior Indebtedness of the Guarantor and (b) senior
in right of payment to all existing and future subordinated Indebtedness of the Guarantor.
SECTION 4. Information
Rights; Inspection Rights; Amendments to Credit Agreement.
(a) The
Borrower shall deliver to the Guarantor, concurrently with the delivery thereof to the Administrative Agent, those items described in
Section 6.01, 6.02 and 6.03 of the Credit Agreement. Additionally, the Borrower acknowledges and agrees that to the extent the Administrative
Agent chooses to exercise its inspection rights pursuant to Section 6.10 of the Credit Agreement, the Borrower shall notify the Guarantor
of such occurrence.
(b) The
Borrower and, by their acceptance hereof, the Secured Parties, agree that the Credit Agreement shall not be amended to (i) increase the
Aggregate Revolving Commitments to an amount in excess of $175,000,000.00, (ii) extend the Maturity Date beyond January 18, 2027, (iii)
increase the interest rate (including by imposing or increasing a rate floor or otherwise, but excluding the imposition of default rate
interest or fluctuations in “reference” or “index” rates used to calculate the applicable interest rate) by more
than 3.00% in the aggregate during the term of this Guaranty, or (iv) modify any covenants therein to the extent such modification is
materially more restrictive for the Loan Parties and would reasonably be expected to be materially adverse to the Guarantor, in any such
case of this clause (b) without the prior written consent of the Guarantor.
SECTION 5. Guaranty of
Payment. The Guarantor further agrees that this Guaranty constitutes a guaranty of payment and performance when due of all Guaranteed
Obligations and not of collection and, to the fullest extent permitted by applicable Law, waives any right to require that any resort
be had by the Administrative Agent or any other Secured Party to any of the Collateral or other security held for payment of the Guaranteed
Obligations or to any balance of any deposit account or credit on the books of the Administrative Agent or any other Secured Party in
favor of any Loan Party or any other Person or to any other guarantor of all or part of the Guaranteed Obligations. Any payment required
to be made by the Guarantor hereunder may be required by the Administrative Agent or any other Secured Party on any number of occasions
and shall be payable to the Administrative Agent, for the benefit of the other Secured Parties, in the manner provided in the Credit Agreement.
SECTION 6. Indemnification.
(a) Without
limiting any indemnification obligations under the Credit Agreement or the other Loan Documents, the Guarantor shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender, the L/C Issuer the Underlying Issuer, and each Related Party of any of the foregoing Persons
of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel
for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower, the Guarantor
or any other Loan Party) arising out of, in connection with, or as a result of, (i) the execution or delivery of this Guaranty, any Issuer
Document or any other agreement or instrument contemplated hereby or thereby (including, without limitation, the Indemnitee’s reliance
on any Communication executed using an Electronic Signature, or in the form of an Electronic Record), the performance by the parties hereto
or thereto of their respective obligations hereunder or thereunder, or the consummation of the transactions contemplated hereby or thereby,
or, in the case of the Administrative Agent, the L/C Issuer and their Related Parties and sub-agents only, the administration of this
Guaranty, the Credit Agreement and the Issuer Documents, (ii) any Letter of Credit or Reimbursement Undertaking or the use or proposed
use of the proceeds therefrom (including any refusal by the L/C Issuer or the Underlying Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit),
or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract,
tort or any other theory, whether brought by a third party or by the Guarantor or any Loan Party, and regardless of whether any Indemnitee
is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment
to have resulted from (x) the gross negligence or willful misconduct of such Indemnitee, (y) a material breach of the obligations of such
Indemnitee under the Loan Documents, or (z) any dispute solely among Indemnitees (other than any claims (1) against any Indemnitee in
its capacity or in fulfilling its role as an Administrative Agent or any similar role under the Loan Documents, or (2) arising out of
any act or omission on the part of the Borrower, any Subsidiary thereof or the Guarantor); provided, further, the Guarantor shall
not be required to indemnify the Indemnitees for costs and expenses of more than one lead counsel (and one local counsel in each applicable
jurisdiction deemed reasonably necessary or advisable by the Administrative Agent) for the Indemnitees, except in the case of actual or
potential conflicts of interest, in which case the Guarantor shall also be required to indemnify the Indemnitees for additional counsel
in each applicable jurisdiction for the affected Indemnitees(s) similarly situated taken as a whole. In connection with any indemnified
claim hereunder, the Indemnitee shall be entitled to select its own counsel and the Guarantor shall promptly pay the reasonable fees and
expenses of such counsel (subject to the limitations as to counsel set forth in the immediately preceding sentence).
.
(b) To
the fullest extent permitted by Law, the Guarantor shall not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Guaranty, the Credit Agreement, any other Loan Document or any agreement or instrument contemplated hereby,
the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred
to in subsection (a) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials
distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission
systems in connection with this Guaranty, the Credit Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(c) The
agreements in this SECTION 6 shall survive (i) the occurrence of the Facility Termination Date, and (ii) the resignation of the Administrative
Agent.
SECTION 7. No Discharge
or Diminishment of Guaranty. The obligations of the Guarantor hereunder shall not be subject to any reduction, limitation, impairment
or termination for any reason (other than the occurrence of the Facility Termination Date), including any claim of waiver, release, surrender,
alteration or compromise of any of the Guaranteed Obligations, and shall not be subject to any defense or set-off, counterclaim, recoupment
or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without
limiting the generality of the foregoing, the Guaranteed Obligations of the Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent or any other Secured Party to assert any claim or demand or to enforce any
remedy under this Guaranty, the Credit Agreement, any other Loan Document or any other agreement, by any waiver or modification of any
provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or
by any other act or omission that may or might in any manner or to any extent vary the risk of the Guarantor or that would otherwise operate
as a discharge of the Guarantor as a matter of law or equity (other than the occurrence of the Facility Termination Date).
SECTION 8. Defenses Waived.
To the fullest extent permitted by applicable Law, the Guarantor waives (a) any defense based on or arising out of any defense of any
Loan Party or the unenforceability of the Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of
the liability of any Loan Party, other than the occurrence of the Facility Termination Date, (b) the benefit of any statute of limitations
affecting the Guarantor’s liability hereunder; and (c) to the fullest extent permitted by law, any and all other defenses or benefits
that may be derived from or afforded by Applicable Law limiting the liability of or exonerating guarantors or sureties. The Guarantor
hereby acknowledges that the Administrative Agent and the other Secured Parties may, at their election, foreclose on any security held
by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure,
compromise or adjust any part of the Guaranteed Obligations, make any other accommodation with any Loan Party, or exercise any other right
or remedy available to them against any Loan Party, without affecting or impairing in any way the liability of the Guarantor hereunder
except to the extent that the Facility Termination Date has occurred. Pursuant to, and to the extent permitted by, applicable Law, the
Guarantor waives any defense arising out of any such election and waives any benefit of and right to participate in any such foreclosure
action, even though such election operates, pursuant to applicable Law, to impair or to extinguish any right of reimbursement, indemnity,
contribution or subrogation or other right or remedy of the Guarantor against any Loan Party, as the case may be, or any security. The
Guarantor agrees that it shall not assert any claim in competition with the Administrative Agent or any other Secured Party in respect
of any payment made hereunder in connection with any proceedings under any Debtor Relief Laws.
SECTION 9. Agreement to
Pay; Subordination. In furtherance of the foregoing and not in limitation of any other right that the Administrative Agent or any
other Secured Party has at law or in equity against the Guarantor by virtue hereof, upon the failure of any Loan Party to pay any Guaranteed
Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Guarantor
hereby promises to and will forthwith pay, or cause to be paid, to the Administrative Agent or such other Secured Party as designated
thereby in cash the amount of such unpaid Guaranteed Obligations. Upon payment by the Guarantor of any sums to the Administrative Agent
or any other Secured Party as provided above, all rights of the Guarantor against any Loan Party arising as a result thereof by way of
right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of
payment to the prior occurrence of the Facility Termination Date; provided, that the Borrower, on behalf of itself and the other
Loan Parties, agrees that the Guarantor shall be entitled to a security interest in the Collateral in the event that the Guarantor has
exercised its right of subrogation; provided, further, that such security interest, if granted prior to the Facility Termination
Date, shall be subject to the terms of the Specified Guarantor Subordination Agreement. In addition, any indebtedness of the Borrower
or any other Loan Party now or hereafter held by the Guarantor is hereby subordinated in right of payment to the prior occurrence of the
Facility Termination Date. After the occurrence and during the continuance of an Event of Default, the Guarantor will not demand, sue
for or otherwise attempt to collect any such indebtedness until the prior occurrence of the Facility Termination Date. If any amount shall
erroneously be paid to the Guarantor on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right
or (b) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Secured Parties and shall
forthwith be paid to the Administrative Agent to be credited against the payment of the Guaranteed Obligations, whether matured or unmatured,
in accordance with the terms of the Credit Agreement. If acceleration of the time for payment of any of the Guaranteed Obligations is
stayed, in connection with any case commenced by or against the Guarantor or a Loan Party under any Debtor Relief Laws, or otherwise,
all such amounts shall nonetheless be payable by the Guarantor immediately upon demand by the Secured Parties.
SECTION 10. Purchase Right.
(a) If
(i) an Event of Default occurs, (ii) a Default under Section 8.01(f) of the Credit Agreement occurs, (iii) the Administrative Agent delivers
a notice of its intent to commence any enforcement action with respect to all or a material portion of the Collateral, (iv) the Obligations
are accelerated in accordance with the terms of the Credit Agreement, or (v) any payment or demand for payment under this Guaranty is
made (each such event, a “Trigger Event”), then, in any such case, the Guarantor shall have the right, but not the
obligation, upon ten (10) calendar days’ advance written notice from the Guarantor (a “Purchase Notice”) to the
Administrative Agent, for the benefit of the Secured Parties, to acquire from the Secured Parties all (but not less than all) of the Obligations
in accordance with this SECTION 10 and subject to the satisfaction of the Purchase Conditions referred to below (the date of such purchase
and satisfaction of such Purchase Conditions, which shall be the date specified by the Guarantor in the Purchase Notice and in any event
shall not be more than fifteen (15) Business Days after receipt by the Administrative Agent of the Purchase Notice, is hereinafter referred
to as the “Purchase Date”). The Purchase Notice, if given, shall be irrevocable. Upon receipt of such Purchase Notice,
and in the absence of exigent circumstances, the Administrative Agent shall not commence any enforcement action with respect to all or
a material portion of the Collateral or make further demand under this Guaranty. If the Administrative Agent does not receive a Purchase
Notice within the ten (10) calendar day period commencing with the occurrence of a Trigger Event, the Guarantor’s right to purchase
the Obligations as provided herein (and, for the avoidance of doubt, any agreement of the Administrative Agent in the foregoing sentence),
shall expire at the end of such period in respect of such Trigger Event. As used herein, “Purchase Conditions” means
(i) the purchase of all (but not less than all) of the Obligations in accordance with this SECTION 10, (ii) the execution and delivery
of the general release of claims described in SECTION 10(c), and (iii) the execution and delivery of the Assignment Agreement(s) described
in SECTION 10(e).
(b) On
the Purchase Date, the Guarantor shall, by wire transfer in immediately available funds to such bank account of the Administrative Agent
(for the benefit of the Secured Parties) as the Administrative Agent shall have specified in writing to the Guarantor, (i) pay to the
Administrative Agent, for the benefit of the Secured Parties, the full amount of all Obligations (including, without limitation, all principal
and interest in respect of Loans, all fees (including, for the avoidance of doubt, any Early Termination Fee as would be required to be
paid on account of any termination of the Aggregate Revolving Commitments as if they had been terminated on the Purchase Date) owing under
the Loan Documents, all expenses as to which the Secured Parties are entitled to reimbursement under the Loan Documents, and any termination
amount then applicable (or which would or could become applicable as a result of the repayment of the Obligations) under Secured Hedge
Agreements provided by Hedge Banks), all in the amounts reasonably determined by the Administrative Agent in accordance with the applicable
Loan Documents, (ii) furnish to the Administrative Agent as cash collateral an amount equal to 105% of the Dollar Equivalent of the Outstanding
Amount of L/C Obligations (including, without limitation, in respect of any Letters of Credit as to which the Administrative Agent is
then holding Specified Cash Collateral in the amount and manner and otherwise as required by the Credit Agreement) as of the Purchase
Date plus any accrued and unpaid interest thereon (any excess of such cash collateral remaining at such time when all L/C Obligations
have been paid (including via application of such cash collateral thereto) and all Letters of Credit have expired, been cancelled or returned
undrawn to the issuer thereof shall be remitted to the Guarantor, via wiring instructions provided by the Guarantor to the Administrative
Agent in writing, within three five (5) Business Days following the Administrative Agent’s determination that the events described
in this parenthetical have occurred), (iii) furnish Bank Product Collateralization to the Administrative Agent with respect to Bank Products
(other than in respect of Secured Hedge Agreements, which are addressed in clause (i) above), and (iv) furnish to the Administrative Agent
cash collateral in order to secure any other contingent Obligations for which a claim or demand for payment has been made on or prior
to the Purchase Date or in respect of matters or circumstances known to the Administrative Agent or a Lender as of the Purchase Date that
are reasonably expected to result in any loss, cost, damage, or expense (including attorneys’ fees and legal expenses), such cash
collateral to be in such amount as the Administrative Agent reasonably determines is appropriate to secure such contingent Obligations.
The amounts described in this clause (b) are hereinafter referred to, collectively, as the “Purchase Price”; provided,
that notwithstanding anything to the contrary, the Purchase Price shall exclude, and the Guarantor shall not be required to pay, any Early
Termination Fee as would be required to be paid on account of any termination of the Aggregate Revolving Commitments as if they had been
terminated on the Purchase Date, if the Trigger Event giving rise to the exercise of the purchase right set forth in this SECTION 10 arose
solely as a result of or in connection with (i) the occurrence of an Event of Default under Section 8.01(a) of the Credit Agreement, (ii)
the occurrence of a Default or Event of Default under Section 8.01(f) of the Credit Agreement, (iii) the occurrence of a Material Adverse
Effect, (iv) the reversion of the Maturity Date from January 18, 2027 to August 30, 2025 in accordance with the definition of “Maturity
Date”, (v) the acceleration of the Obligations, or (vi) the failure of the Loan Parties, together with their Subsidiaries on a Consolidated
basis, to be Solvent.
(c) On
the Purchase Date, the Guarantor and the Borrower shall, and the Borrower shall cause the other Loan Parties to, execute and deliver to
the Administrative Agent and the other Secured Parties, in form and substance reasonably satisfactory to the Administrative Agent, a general
release of all claims against the Administrative Agent and the other Secured Parties by the Guarantor, the Borrower and the other Loan
Parties relating to the Loan Documents, the Obligations, the Collateral and the Administrative Agent’s and the other Secured Parties’
performance and obligations under the Loan Documents arising prior to the Purchase Date.
(d) Any
purchase in accordance with this SECTION 10 shall, except as provided below, be expressly made without representation or warranty of any
kind by the Administrative Agent or any other Secured Party as to the Obligations, the Collateral or otherwise, and without recourse to
the Administrative Agent or any other Secured Party as to the Obligations, the Collateral or otherwise, except that the Administrative
Agent and each other Secured Party shall, severally and not jointly, shall represent and warrant only (i) the principal amount of the
Obligations being sold by it and accrued and unpaid interest on the Obligations, (ii) that such Person has not created any Lien on any
Obligations being sold by it, and (iii) that such Person has the right to assign the Obligations being assigned by it and its Assignment
Agreement has been duly authorized and delivered.
(e) Upon
written notice to the Borrower by the Administrative Agent that the Purchase Date has occurred, the Borrower shall, and shall cause the
other Loan Parties to, treat the Guarantor as holder of the Obligations and a representative designated by the Guarantor shall be deemed
appointed to act in such capacity as administrative agent (the “Replacement Agent”) under the Loan Documents for all
purposes hereunder and under each Loan Document (it being agreed that the Administrative Agent shall have no obligation to act as such
replacement “administrative agent” (or in any analogous capacity)). In connection with any purchase of Obligations in accordance
with this SECTION 10, the Administrative Agent and each other Secured Party shall (i) enter into and deliver to the Guarantor on the Purchase
Date, as a condition to the occurrence of the Purchase Date, a customary assignment agreement (which shall be based on Exhibit A to the
Credit Agreement or otherwise be in form and substance reasonably satisfactory to the Administrative Agent) (the “Assignment
Agreement”), and (ii) promptly (but in any event within five (5) Business Days) following written notice to the Borrower by
the Administrative Agent that the Purchase Date has occurred, deliver all possessory collateral (if any), together with any necessary
endorsements and other documents, then in its possession, or turn over control as to any pledged collateral, deposit accounts or securities
accounts of which it then has control, as the case may be, to the Replacement Agent, and deliver the Register, if applicable, and all
other material records pertaining to the Obligations to the Replacement Agent and otherwise take such actions as are reasonably necessary
to effect an orderly transition to the Replacement Agent, in each case at the sole cost and expense of the Loan Parties; provided,
that the Administrative Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under
applicable law, expose the Administrative Agent or any other Secured Party to liability or create any obligation or entail any adverse
consequence other than the assignment of any Lien held by the Administrative Agent pursuant to the Loan Documents without recourse or
warranty. Upon written notice to the Borrower by the Administrative Agent that the Purchase Date has occurred, the Administrative Agent
(and all other agents under the Credit Agreement) shall be deemed to have resigned as “administrative agent” for the Secured
Parties under the Loan Documents; provided, that the Administrative Agent (and all other agents under the Credit Agreement) shall
be entitled to all of the rights and benefits of a former “administrative agent” under the Credit Agreement. Without limiting
the foregoing, notwithstanding the purchase of the Obligations in accordance with this SECTION 10, the Administrative Agent and the other
Secured Parties shall retain the rights to indemnification and payment of expenses from the Loan Parties (each as provided in Section
11.04 of the Credit Agreement) and other obligations of the Loan Parties under the Loan Documents which by their express terms would survive
any repayment of the Obligations.
(f) Except
as expressly provided in SECTION 10(b), the Guarantor’s obligations set forth herein (including, without limitation, pursuant to
SECTION 1 hereof) shall not be delayed, affected, or otherwise modified by the occurrence of a Trigger Event.
(g) The
Borrower hereby consents to the assignment of the Obligations to the Guarantor in accordance with this SECTION 10 notwithstanding anything
in the Credit Agreement (including, without limitation, Section 11.06(b) thereof) to the contrary.
SECTION 11. Limitation
on Guaranty of Guaranteed Obligations. In any action or proceeding with respect to the Guarantor involving any Debtor Relief Laws,
if the obligations of the Guarantor under SECTION 1 hereof would otherwise be held or determined to be void, invalid or unenforceable,
or subordinated to the claims of any other creditors, on account of the amount of its liability under said SECTION 1, then, notwithstanding
any other provision hereof to the contrary, the amount of such liability shall, without any further action by the Guarantor, any Secured
Party, the Administrative Agent or any other Person, be automatically limited and reduced to the highest amount which is valid and enforceable
and not subordinated to the claims of other creditors as determined in such action or proceeding.
SECTION 12. Information.
The Guarantor acknowledges and agrees that the Guarantor has the sole responsibility for being and keeping itself informed of, and has
adequate means of obtaining information concerning, each Loan Party’s financial condition, business and operations, as well as all
other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that
the Guarantor assumes and incurs hereunder. The Guarantor acknowledges and agrees that none of the Secured Parties has any duty, and the
Guarantor is not relying on the Secured Parties at any time, to disclose to it any such information (the Guarantor hereby waiving any
duty on the part of the Secured Parties to disclose such information and any defense relating to the failure to provide the same).
SECTION 13. Representations
and Warranties. The Guarantor represents and warrants to the Administrative Agent and the other Secured Parties as follows:
(a) The
Guarantor is an owner of Equity Interests in the Borrower, and has received or will receive, direct or indirect benefit from the making
of this Guaranty with respect to the Obligations.
(b) No
Secured Party, nor any other Person, has made any representation, warranty or statement to the Guarantor in order to induce the Guarantor
to execute this Guaranty.
(c) As
of the date hereof, and after giving effect to this Guaranty and the contingent obligation evidenced hereby, the Guarantor is, and will
be, Solvent.
(d) The
Guarantor has the legal right to execute and deliver, and to perform its obligations under, this Guaranty.
(e) This
Guaranty has been duly executed and delivered by the Guarantor. This Guaranty constitutes a legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms
(f) The
execution, delivery and performance by the Guarantor of this Guaranty have been duly authorized by all necessary corporate or other organizational
action, and do not and will not (a) contravene the terms of any of the Guarantor’s Organization Documents; (b) conflict with or
result in any breach or contravention of, or the creation of (or the requirement to create) any Lien under, or require any payment to
be made under (i) any Contractual Obligation to which the Guarantor is a party or affecting the Guarantor or the properties of the Guarantor
or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Guarantor or its property
is subject; or (c) violate any Applicable Law.
(g) There
are no actions, suits, proceedings, claims, judgments or disputes pending or, to the knowledge of the Guarantor after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Guarantor
or against any of its properties or revenues that (i) purport to affect or pertain to this Guaranty or any of the transactions contemplated
hereby, or (b) either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.
(h) No
approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other
Person is necessary or required in connection with (i) the execution, delivery or performance by, or enforcement against, the Guarantor
of this Guaranty, or (ii) the exercise by the Administrative Agent or any other Secured Party of its rights under this Guaranty, other
than authorizations, approvals, actions, notices and filings which have been duly obtained.
(i) All
representations and warranties made by the Guarantor herein shall survive the execution hereof.
SECTION 14. Termination.
This Guaranty is a continuing and irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and shall remain in full
force and effect until the Facility Termination Date. Notwithstanding the foregoing, (a) this Guaranty shall continue in full force and
effect or be revived, as the case may be, if any payment by or on behalf of the Guarantor or any Loan Party is made, or any of the Secured
Parties exercises its right of setoff, in respect of the Guaranteed Obligations and such payment or the proceeds of such setoff or any
part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by any of the Secured Parties in their discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had
not occurred and whether or not the Secured Parties are in possession of or have released this Guaranty and regardless of any prior revocation,
rescission, termination or reduction, and (b) the Borrower, on behalf of itself and the other Loan Parties, agrees that, subject to SECTION
9, all rights of the Guarantor against any Loan Party, by way of right of subrogation, contribution, reimbursement, indemnity or otherwise,
arising as a result of payment by the Guarantor of any sums to the Administrative Agent or any other Secured Party pursuant to SECTION
1 shall survive the Facility Termination Date.
SECTION 15. Costs of Enforcement.
Without duplication of any fees or expenses provided for under the Credit Agreement or the other Loan Documents, the Guarantor agrees
to pay on demand all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent in connection with (i) the administration,
negotiation, documentation or amendment of this Guaranty, and (ii) the Administrative Agent’s or any other Secured Party’s
efforts to collect and/or to enforce any of the Guaranteed Obligations of the Guarantor hereunder and/or to enforce any of the rights,
remedies, or powers of the Administrative Agent or any other Secured Party against or in respect of the Guarantor (whether or not suit
is instituted by or against the Administrative Agent or any other Secured Party).
SECTION 16. Binding Effect;
Several Agreement; Assignments. Whenever in this Guaranty any of the parties hereto is referred to, such reference shall be deemed
to include the successors and assigns of such party, and all covenants, promises and agreements by or on behalf of the Guarantor that
are contained in this Guaranty shall bind and inure to the benefit of the Guarantor and its successors and assigns. This Guaranty shall
be binding upon the Guarantor and its successors and assigns, and shall inure to the benefit of the Administrative Agent and the other
Secured Parties, and their respective successors and assigns, except that the Guarantor shall not have the right to assign or transfer
its rights or obligations hereunder or any interest herein (and any such attempted assignment or transfer shall be void), except as expressly
permitted by this Guaranty or the Credit Agreement.
SECTION 17. Waivers; Amendment.
(a) The
rights, remedies, powers, privileges, and discretions of the Administrative Agent hereunder and under applicable Law (herein, the “Administrative
Agent’s Rights and Remedies”) shall be cumulative and not exclusive of any rights or remedies which they would otherwise
have. No delay or omission by the Administrative Agent in exercising or enforcing any of the Administrative Agent’s Rights and Remedies
shall operate as, or constitute, a waiver thereof. No waiver by the Administrative Agent of any Event of Default or of any default under
any other agreement shall operate as a waiver of any other default hereunder or under any other agreement. No single or partial exercise
of any of the Administrative Agent’s Rights or Remedies, and no express or implied agreement or transaction of whatever nature entered
into between the Administrative Agent and any Person, at any time, shall preclude the other or further exercise of the Administrative
Agent’s Rights and Remedies. No waiver by the Administrative Agent of any of the Administrative Agent’s Rights and Remedies
on any one occasion shall be deemed a waiver on any subsequent occasion, nor shall it be deemed a continuing waiver. The Administrative
Agent’s Rights and Remedies may be exercised at such time or times and in such order of preference as the Administrative Agent may
determine. The Administrative Agent’s Rights and Remedies may be exercised without resort or regard to any other source of satisfaction
of the Guaranteed Obligations. No waiver of any provisions of this Guaranty or any other Loan Document or consent to any departure by
the Guarantor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such
waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on the
Guarantor in any case shall entitle the Guarantor to any other or further notice or demand in the same, similar or other circumstances.
(b) Neither
this Guaranty nor any provision hereof may be waived, amended or modified except pursuant to a written agreement entered into between
the Administrative Agent and the Guarantor, subject to any consent required in accordance with Section 10.01 of the Credit Agreement.
SECTION 18. Governing
Law. THIS GUARANTY AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON,
ARISING OUT OF OR RELATING TO THIS GUARANTY AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 19. Notices.
All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in
Section 11.02 of the Credit Agreement, provided that communications and notices to the Guarantor shall be delivered to:
B. Riley Financial,
Inc.
11100 Santa Monica
Boulevard, Suite 800
Los Angeles, California
90025
Attention: Chairman
(with copy to General Counsel)
Email: brriley@brileyfin.com
aforman@brileyfin.com
SECTION 20. Survival of
Agreement; Severability.
(a) This
Guaranty and all covenants, agreements, indemnities, representations and warranties made by the Guarantor herein and in the certificates
or other instruments delivered in connection with or pursuant to this Guaranty, the Credit Agreement or any other Loan Document shall
be considered to have been relied upon by the Administrative Agent and the other Secured Parties and shall survive the execution and delivery
of this Guaranty, the Credit Agreement and the other Loan Documents and the making of any Loans by the Lenders and the issuance of any
Letters of Credit by the L/C Issuer, regardless of any investigation made by the Administrative Agent or any other Secured Party or on
their behalf and notwithstanding that the Administrative Agent or other Secured Party may have had notice or knowledge of any Default
or Event of Default or incorrect representation or warranty at the time any credit is extended, and shall continue in full force and effect
until terminated as provided in, and shall be reinstated to the extent required by, SECTION 14 hereof. The provisions of SECTION 6 and
SECTION 15 hereof shall survive and remain in full force and effect regardless of the occurrence of the Facility Termination Date or the
termination of this Guaranty or any provision hereof.
(b) If
any provision of this Guaranty or the other Loan Documents is held to be illegal, invalid or unenforceable, (i) the legality, validity
and enforceability of the remaining provisions of this Guaranty and the other Loan Documents shall not be affected or impaired thereby
and (ii) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity
of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 21. Counterparts.
This Guaranty may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute
an original, but all of which when taken together shall constitute a single contract. This Guaranty and the other Loan Documents constitute
the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Guaranty by telecopy,
pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Guaranty.
SECTION 22. Rules of Interpretation.
The rules of interpretation specified in Sections 1.02 through 1.10 of the Credit Agreement shall be applicable to this Guaranty.
SECTION 23. Jurisdiction;
Consent to Service of Process.
(a) THE
GUARANTOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION,
WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST ADMINISTRATIVE AGENT, ANY LENDER, THE L/C ISSUER, THE UNDERLYING
ISSUER OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING
HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND THE GUARANTOR IRREVOCABLY AND UNCONDITIONALLY
SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. THE GUARANTOR AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT
THE ADMINISTRATIVE AGENT, ANY LENDER, THE L/C ISSUER OR THE UNDERLYING ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING
TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST THE GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(b) THE
GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN CLAUSE (A) OF THIS SECTION 23. THE GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(c) THE
GUARANTOR IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 19. NOTHING IN THIS GUARANTY WILL AFFECT
THE RIGHT OF ANY SECURED PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
SECTION 24. Waiver of
Jury Trial. THE GUARANTOR AND, BY ITS ACCEPTANCE HEREOF, EACH SECURED PARTY, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). THE GUARANTOR AND, BY ITS ACCEPTANCE HEREOF, EACH SECURED PARTY, (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES TO THE LOAN DOCUMENTS HAVE BEEN INDUCED TO ENTER INTO THE LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 24.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Guarantor
has duly executed this Guaranty as a sealed instrument as of the day and year first above written.
|
GUARANTOR: |
|
|
|
B. RILEY FINANCIAL, INC. |
|
|
|
|
By: |
/s/ Phillip Ahn |
|
Name: |
Phillip Ahn |
|
Title: |
Chief Financial Officer, Chief Operating Officer |
Signature Page to Guaranty
ACKNOWLEDGED AND AGREED, |
WITH RESPECT TO SECTIONS 4, 10 AND 14: |
|
BORROWER: |
|
BABCOCK & WILCOX ENTERPRISES, INC. |
|
|
|
By: |
/s/ Rodney E. Carlson |
|
Name: |
Rodney E. Carlson |
|
Title: |
Treasurer |
|
Signature Page to Guaranty
ACKNOWLEDGED AND AGREED, |
|
WITH RESPECT TO SECTION 10: |
|
|
|
ADMINISTRATIVE AGENT: |
|
|
|
AXOS BANK |
|
|
|
|
By: |
/s/ David Park |
|
Name: |
David Park |
|
Title: |
Executive Vice President |
|
Signature Page to Guaranty
v3.23.4
Cover
|
Jan. 18, 2024 |
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Jan. 18, 2024
|
Entity File Number |
001-37503
|
Entity Registrant Name |
B.
RILEY FINANCIAL, INC.
|
Entity Central Index Key |
0001464790
|
Entity Tax Identification Number |
27-0223495
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
11100
Santa Monica Blvd.
|
Entity Address, Address Line Two |
Suite
800
|
Entity Address, City or Town |
Los
Angeles
|
Entity Address, State or Province |
CA
|
Entity Address, Postal Zip Code |
90025
|
City Area Code |
310-966-1444
|
Local Phone Number |
966-1444
|
Written Communications |
false
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
false
|
Entity Emerging Growth Company |
false
|
Common Stock, par value $0.0001 per share |
|
Title of 12(b) Security |
Common
Stock, par value $0.0001 per share
|
Trading Symbol |
RILY
|
Security Exchange Name |
NASDAQ
|
Depositary Shares (each representing a 1/1000th interest in a 6.875% Series A Cumulative Perpetual Preferred Share, par value $0.0001 per share) |
|
Title of 12(b) Security |
Depositary Shares (each
representing a 1/1000th interest in a 6.875
|
Trading Symbol |
RILYP
|
Security Exchange Name |
NASDAQ
|
Depositary Shares, each representing a 1/1000th fractional interest in a 7.375% share of Series B Cumulative Perpetual Preferred Stock |
|
Title of 12(b) Security |
Depositary Shares, each
representing a 1/1000th fractional interest in a 7.375
|
Trading Symbol |
RILYL
|
Security Exchange Name |
NASDAQ
|
6.75% Senior Notes due 2024 |
|
Title of 12(b) Security |
6.75% Senior Notes due
2024
|
Trading Symbol |
RILYO
|
Security Exchange Name |
NASDAQ
|
6.375% Senior Notes due 2025 |
|
Title of 12(b) Security |
6.375% Senior Notes due
2025
|
Trading Symbol |
RILYM
|
Security Exchange Name |
NASDAQ
|
5.00% Senior Notes due 2026 |
|
Title of 12(b) Security |
5.00% Senior Notes due
2026
|
Trading Symbol |
RILYG
|
Security Exchange Name |
NASDAQ
|
5.50% Senior Notes due 2026 |
|
Title of 12(b) Security |
5.50% Senior Notes due
2026
|
Trading Symbol |
RILYK
|
Security Exchange Name |
NASDAQ
|
6.50% Senior Notes due 2026 |
|
Title of 12(b) Security |
6.50% Senior Notes due
2026
|
Trading Symbol |
RILYN
|
Security Exchange Name |
NASDAQ
|
5.25% Senior Notes due 2028 |
|
Title of 12(b) Security |
5.25% Senior Notes due
2028
|
Trading Symbol |
RILYZ
|
Security Exchange Name |
NASDAQ
|
6.00% Senior Notes due 2028 |
|
Title of 12(b) Security |
6.00% Senior Notes due
2028
|
Trading Symbol |
RILYT
|
Security Exchange Name |
NASDAQ
|
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