EX-2.1 2 exhibit21transferandcontri.htm EX-2.1 Document
展覽二點一
執行副本


轉讓和貢獻協議
之間的變化
b. RILEY 品牌管理有限責任公司
作為讓與人
及
BR FUNDING HOLDINGS 2024-1 LLC
作為受讓人
日期為2024年10月25日





目 錄
頁面
第一篇 定義 　 　 1
第1.1節 定義 1
第1.2節 其他條款 4
第1.3節　計算時間期間　4
第1.4節 解釋 4
第二條款 轉讓資產的交接 5
第2.1節 交通工具 5
第2.2節　生存；賠償　8
第2.3節 轉讓稅 9
第三條款 研究和付款；報告    9
第3.1節 移轉考慮 9
第3.2節　支付轉讓代價　9
第四條款 陳述與保證    9
第4.1節 轉讓方的陳述與保證 10
第4.2節 受讓人的陳述與保證 15
第五條 轉讓人之契約條款 15
第5.1節  轉讓人的契約    15
第六條 雜項條款19
第6.1節 修訂事項 19
第6.2節 適用法律：服從司法管轄 19
第6.3節 通知 19
第6.4節 [保留] ……… 21
第6.5節　條款可分割性　21
第6.6節 進一步保證 21
第6.7節 不放棄； 累積救濟措施 22
第6.8節　分割　22
第6.9章 合併與整合    23
第6.10條 不申請; 有限追索權 23
第6.11節　標題　23




日程安排
資產移轉明細表A　　已移轉資產清單

Schedule b 知識人士
i


本《轉讓與貢獻協議》，日期為2024年10月25日（經修訂、補充或以任何其他方式修改並生效的時間，以下簡稱為「協議）,在NIKOLA CORPORATION和WILMINGTON SAVINGS FUND SOCIETY, FSB之間簽訂。 b. RILEY 品牌管理有限責任公司，一家特許經營的特拉華有限責任公司（在此資格下，稱為「轉讓方以及 BR FUNDING HOLDINGS 2024-1 LLC，一家特拉華州有限責任公司 (在此身份上，"受讓人”).
證詞:
鑑於受讓人已於2024年10月25日訂立了某個《票據購買和安全協議》，與BR Funding 2024-1 LLC（以下簡稱為“銀行”，而MKm Holdings XX, LLC為服務商，Bluestar Alliance LLC為資產車輛經理，購買人及其中提及的每一位偏好股份購買人，國家協會銀行信託公司為擔保代理、擔保管理員和票據代理，而美國國家協會銀行為證券中介，根據該協議，購買人已同意資助由發行人在其中發行的某些A級票據、B級票據和偏好股份；票據購買和安全協議（以下簡稱為“”）薪酬銀行
鑑於發行人是受讓人的全資子公司；且
鑑於，在票據購買和安防協議所議定的交易中，轉讓人願意貢獻、出售、轉讓和轉讓，而受讓人願意購買和承擔某些轉讓的資產，在此所設定的條款和條件下。
現在，故此，為了好的且有價值的考慮，謹此確認其收受及足夠性，現謹由受讓方與轉讓方同意如下：
第一篇文章

定義
第1.1節 定義。本協議中使用的詞語應具有以下含義（該含義同樣適用於所定義詞語的單數和復數形式）。本協議中出現但未在此處定義的所有大寫詞語應具有在《票據購買及安防協議》中規定的相應含義，或其內容所引用的含義。
“反貪污法律“法律”指的是(a) 1977年修改的美國《反海外腐敗行為法》；(b) 2010年修改的英國《賄賂法》；以及(c) 在任何轉讓方或受讓方從事業務的任何司法管轄區內的任何其他反賄賂或反腐敗法律、法規或條例。
“反洗錢法律「」代表任何轉讓人或受讓人所在或從事業務的任何司法管轄區，涉及洗錢或資助恐怖主義或任何相關財務記錄保存和報告要求的適用法律。
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“協議”在前文中具有所述的含義。
“資產車輛經理同意”代表每個資產車輛1經理同意、資產車輛2經理同意、資產車輛3經理同意和資產車輛4經理同意。
“資產車輛1經理同意” 意指在本日或前後某天的某特定日期由資產車輛經理、作為日常經理的經理（在資產車輛1有限法團中定義）、BR賣方和發行人就資產車輛1利益簽署的某特定經理同意書。
“資產車輛2經理人同意指有關經理人同意，日期約為本文件日期，在資產車輛2有限責任公司章程所定義的經理人、BR賣方、發行人之間就資產車輛2權益所作的同意。
“資產車輛3經理同意書「」是指就資產車輛3有限公司法中所定義的經理、BR賣方和發行人就資產車輛3權益而於本日或前後簽署的某項經理同意書。
“資產車輛4經理同意書“意味著在本日或本日前後之間經理（如資產車輛4有限公司協議書中所定義的）與BR賣方以及發行人就資產車輛4權益所簽訂的某特定經理同意書。
“轉讓「轉讓」指在此之下賣出、轉讓、指派、貢獻或以其他方式轉讓資產。
“交通工具”的定義如下所述 第2.1節(b).
“轉輸重新界定”的定義如下所述 第2.1節(b).
“最終確定「”」指與爭議有關的情況，其中(a) 有關爭議的各方已達成書面協議，(b) 有管轄權的法院對索賠作出最終且無上訴的判決，或(c) 仲裁或類似小組對雙方已同意提交的爭議作出最終且不可上訴的裁定。
“私有化交易事件“意味著任何交易的實現，因此轉讓方母公司或其任何後繼者不再受1934年證券交易法的報告要求所約束。
“政府授權「」指所有政府機關的所有特許經營權、許可證、牌照、批准、同意和其他授權。
“政府申報「政府申報」指所有申報，包括特許和類似的稅務申報，以及與此類申報相關的所有費用、評估、利息和罰款支付給所有政府機構。
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“賠償金額”的定義如下所述 第2.2節.
“賠償方”的定義如下所述 第2.2節.
“初始發行日期”表示2024年11月的付款日期。
“私人授權「批准」指除政府機關以外的所有人的所有特許經營權、許可證、執照、批准、同意和其他授權。
“相关权益「財產」是指就每項已轉讓資產而言，根據適用的資產車輛協議，與任何資產車輛權益相關的權利或利益，以及涵蓋所有相關的款項、包括與之相關的分發及追收，自本文件日期後應當到期並支付的款項，或在此之後應當到期並支付的款項。
“受讓人”在前文中具有所述的含義。
“轉讓方母公司” 意指 b. Riley Financial, Inc.
“轉讓方”在前文中具有所述的含義。
“轉讓考慮”的定義如下所述 第3.1節.
“過戶稅”的定義如下所述 第2.3节.
“轉讓資產「資產」指根據本協議條款，由轉讓人轉讓給受讓人的資產車輛權益，並按照本協議所列出的。 附表A.
第1.2節其他條款所有未在本文件中明確定義的會計術語應按照一般可接受的會計原則解釋。所有在《統一商品信用代為法》第9條中使用的術語，並且在本文件中未明確定義的術語，應按照該第9條中的定義使用。
第1.3節時間段的計算除非本協議另有規定，從特定日期到較晚的特定日期的時間計算中，“從”表示“從並包括”，而“至”和“直至”各表示“到但不包括”。
第1.4節解釋在本協議中，除非表明相反的意圖：
(i)對於任何人的參照包括該人的繼受人和受讓人，但僅在交易文件允許的情況下。
(ii)對任何性別的參考包括其他性別；
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(iii)提及「日」或「天」，未有進一步限定，即指日歷上的一天；
(iv)除非另有規定，任何關於時間的提及均指紐約時間；
(v)「書寫」一詞包括印刷、打字、光刻機、電子或其他形式的以可見形式再現文字的方式；
(vi)對於任何協議（包括任何交易文件或資產車輛協議）、文件或工具的提及，意味著該等協議、文件或工具根據其條款不時經修改、調整、補充、取代、重訂、放棄或延長並生效，如適用，符合其他交易文件的條款。
(vii)對任何法定要求的提及，意指隨時生效之該等法定要求，無論是全部或部分修訂、修改、編纂、取代或重新制定，包括在其下頒布的規則和法規；提及任何條款或法定要求的其他規定，表示隨時生效且構成該等條款或法定要求的其他規定的實質修訂、修改、編纂、取代或重新制定的該等法定要求的條文。
(viii)“包括”一詞的引用意味著“包括但不限於”；
(ix)所有板塊參考（包括對序言的參考），除非另有指示，應該指向本協議中的各個板塊（以及序言）。
(x)本協議中對“知識”或“實際知識”的參考應表示所指定人士的實際知識。 附表B 在合理調查後； 提供而該合理調查不應要求過夢採取或事先進行任何盡職、調查或其他對資產車輛管理者或其聯屬進行的調查。
第II條

轉讓資產的轉讓
第2.1節交通工具.
第一篇文章根據本協議設定的條款和條件，在本協議設定的條款和條件下，轉讓人特此將所有轉讓資產的權利，標的轉讓人在此將所有轉讓資產的權利轉讓給受讓人，而受讓人特此購買、收購並接受轉讓人在此日所有轉讓資產的權利、所有權和利益（無論現在所有或將來擁有或獲得的權益，並不論其位於何處），以及與其相關的權利。
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除非在此明確規定中另有明示，否則不負追索責任，且不作出陳述或保證；儘管如前所述，轉讓人保留就於初始分配日期（該日期之相關資產的收款中接收之部分的權利、標題和利益；該項總收款稱為「I初始分配日期之收款），等於（i）75% 與（ii）初始分配日期收款 - （x）少去（y）相當於該日期根據支付優先順序應支付給資產車輛管理人之管理員推廣費的金額之和（但該管理員推廣費不得超過初始分配日期收款的20%）（「保留延遲付款價格金額」），該金額不構成「已轉讓資產」。受讓人同意交付指示，或促使發行人、抵押代理人和服務人交付，給資產車輛管理人之指示，以促使資產車輛管理人和資產車輛直接在初始分配日期支付該保留的延遲付款價格金額給受讓人。
(a)轉讓人和被轉讓人根據本協議將轉讓人根據本協議轉讓資產的每項轉讓資產被解釋為轉讓人根據適用州法律和聯邦破產法的絕對轉讓及/或貢獻該轉讓資產。該轉讓是絕對且不可撤銷的，並為該轉讓人提供該等轉讓資產擁有所有的全部風險和利益。，包括全部利益權益和所有權益如果有關轉讓人或轉讓人的財產發生破產、收支或其他破產程序，則該等轉讓資產不被視為轉讓人遺產的財產。轉讓人打算放棄所有擁有和控制轉讓資產的權利。轉讓人無義務向轉讓人對任何轉讓資產進行帳目、更換、替代或退還任何轉讓人。被轉讓人有不受限制的權利，根據「票據購買及證券協議」或其他任何限制下，轉讓、轉讓、交付、連結、分割或以其他方式處理轉讓人及其所有權利、所有權利和權益。此外，轉讓人和被轉讓人並非意圖將任何轉讓資金視為轉讓人授予轉讓資產的證券權益，以確保轉讓人的債務或其他義務。但是，儘管當事人明確意圖，但本文的轉讓將被視為貸款而不是銷售（」傳輸重新分析」)，然後 (i) 本協議亦將被視為，並在此為《UCC》和其他適用法律的意義的保證協議，(ii) 本協議中規定的轉讓人將被視為，並且每個轉讓人特此授予轉讓人的所有權利的首要保證權益（受許權限約限制），該等轉讓資產及上述所得款項所得的所有收益，無論現在擁有或以後獲得，以及對於及下方的權益、(iii) 被轉讓人及其轉讓人對於該等轉讓資產，除了受託人及其他交易文件下所提供的所有其他權利和補救措施外，其受保人在任何適用的 UCC 下擁有保證方的所有權利和補救措施，以及 (iv) 每個轉讓人和被轉讓人根據本協議向被轉讓人所提交的收款項將為（A) 在支付轉讓人在
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轉讓人和受讓人之業務和財務事務（B）與轉讓人和受讓人之業務和財務事務中進行。在此類轉讓重新性質化情況下，受讓人及其受讓人應就轉讓資產享有除了根據相關的轉讓文件中及適用的轉讓文件下受讓人和其受讓人可利用的所有其他權利和救濟外，根據任何適用UCC擁有所有擔保人的權利和救濟。
The Transferor and the Transferee shall, to the extent consistent with this Agreement, take such actions as may be reasonably necessary to ensure that, if this Agreement were deemed to create a security interest in the Transferred Assets to secure a debt or other obligation, such security interest would be deemed to be a first-priority perfected security interest in favor of the Transferee under applicable law and will be maintained as such throughout the term of this Agreement. The Transferor represents and warrants that the Transferred Assets are being transferred with the intention of removing them from the Transferor’s estate pursuant to Section 541 of the Bankruptcy Code of the United States or any other applicable insolvency law. The Transferee assumes all risk relating to nonpayment or failure by the Asset Vehicles and any other applicable counterparty to make any distributions owed by them under the Transferred Assets. Except with respect to any breach of its representations, warranties and covenants expressly stated in this Agreement, the Transferor Conveys each Transferred Asset “as is” and makes no covenants, representations or warranties regarding the Transferred Assets.
Notwithstanding anything herein to the contrary, the Transferee acknowledges and agrees on behalf of itself and its subsidiaries that (i) the Retained Deferred Purchase Price Amount is property of Transferor, (ii) the right of the Transferor to receive the Retained Deferred Purchase Price Amount shall be treated as owned by the Transferor and shall not be transferred to the Transferee for tax purposes, (iii) to the extent Transferee or Issuer receives or holds the Retained Deferred Purchase Price Amount or any portion thereof, that Transferee or Issuer, as applicable, holds such amount in trust for the benefit of Transferor as a fiduciary for Transferor, and shall not have or assert, and hereby disclaims, any right, title or interest in or to the Retained Deferred Purchase Price Amount, (iv) Transferee shall, and shall cause Issuer to, immediately pay over all amounts of the Retained Deferred Purchase Price Amount received by it or Issuer to Transferee and (v) Transferee shall not, and shall not Issuer to, exercise any right of recoupment, setoff or debit against any such amount it may receive or hold from time to time. The parties acknowledge and agree that neither Transferee nor Issuer (or any of their respective successors or assigns, as well as any bankruptcy estate formed under the Bankruptcy Code of the United States holds any equitable interest in the Retained Deferred Purchase Price Amount and, accordingly, such amounts shall not constitute property of the any bankruptcy estate of Transferee or the Issuer (or their respective successors or assigns) pursuant to section 541(d) of the Bankruptcy Code of the United States, and all such amounts shall remain Transferor’s sole property.
(b)In connection with the transactions to occur on the date hereof, the Transferor authorizes the Transferee to file, at the cost of the Transferee, a precautionary UCC financing statement or statements with respect to the Transferred Assets hereunder from time to time meeting the requirements of applicable state law in the jurisdiction of such Transferor’s
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organization to perfect and protect the interests of the Transferee created hereby under the UCC against all creditors of, and transferees of, the Transferor, and to deliver a file-stamped copy of such financing statements or other evidence of such filings to the Transferee as soon as reasonably practicable after its receipt thereof.
(c)The Transferor hereby authorizes the Transferee to file and, to the fullest extent permitted by applicable law the Transferee shall be permitted to sign (if necessary) and file, initial financing statements, continuation statements and amendments thereto and assignments thereof without the Transferor’s further action; provided that the description of collateral contained in such financing statements shall be limited to only Transferred Assets. Carbon, photographic or other reproduction of this Agreement or any financing statement shall be sufficient as a financing statement.
(d)The Transferor and the Transferee agree that prior to the time of Conveyance of the Transferred Assets hereunder, the Transferee has no rights to or claim of benefit from the Transferred Assets (or any interest therein) owned by the Transferor.
(e)The Transferee shall be entitled to dispose of any Transferred Assets in its discretion, subject to the terms of the Asset Vehicle Agreements, and shall have no duty or obligation to account to the Transferor in respect thereof nor any recourse to the Transferor in connection with any such disposition.
SECTION 2.2    Survival; Indemnification.
(a)Survival. The representations and warranties set forth in Article IV shall survive the consummation of the transactions contemplated herein for a period of two years from the date hereof; provided, that the representations and warranties set forth in Section 4.1(a), (c), (h) and (l) shall survive for a period of six (6) years from the date hereof; and provided, further, that if a claim with respect thereto shall be made prior to the applicable survival date, then such survival date shall be extended, and such provision shall survive solely for purposes of this Article II, but only with respect to such claim and only until the Final Determination thereof, whereupon such provision shall terminate.
(b)Indemnification by Transferor. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Transferor agrees to indemnify the Transferee and its successors, transferees, and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related reasonable and documented out-of-pocket costs and expenses, including reasonable and documented external attorneys’ fees and disbursements (provided that any indemnification for damages is limited to actual damages, and not consequential (including loss of profit), indirect, special or punitive damages) (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any of them arising out of any breach by the Transferor of its obligations under this Agreement or as a result of the failure of any representation or warranty of the Transferor herein to be true and correct in any material respect as of the date hereof; provided
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that such Indemnified Amounts shall not, as to any Indemnified Party, be available to the extent that such losses, claims, damages, liabilities or related expenses (a) related to the performance of the Transferred Asset, including any change in the market value of any Transferred Asset or (b) that arise from any dispute not involving the Transferor between or among any Indemnified Party and any assignee or pledgee contemplated hereby or by any other agreement, document or instrument entered into in connection herewith.
SECTION 2.3    Transfer Taxes. The Transferor and the Transferee each hereby agree to bear fifty percent (50%) of all transfer, documentary, sales, use, stamp, registration and other such Taxes, and any conveyance fees or recording charges (collectively, “Transfer Taxes”) incurred in connection with the transactions contemplated by this Agreement. The party required by law to do so shall file all necessary Tax returns and other documentation with respect to all such Transfer Taxes and, if required by applicable law, the other party shall, and shall cause their respective Affiliates to, join in the execution of any such Tax returns and other documentation.

ARTICLE III

CONSIDERATION AND PAYMENT; REPORTING
SECTION 3.1    Transfer Consideration. The transfer consideration (the “Transfer Consideration”) for the Transferred Assets Conveyed on the date hereof shall be an amount equal to the fair market value of such Transferred Assets as of such date, as reasonably determined and agreed by the Transferor and the Transferee at the time of such Conveyance.
SECTION 3.2    Payment of Transfer Consideration. The Transfer Consideration shall be paid (a) concurrently with the execution of this Agreement by the Transferee making a payment in the amount of $189,300,000.00 in cash in immediately available funds to the Transferor, and/or (b) to the extent the Transfer Consideration is not paid in full in cash, by the Transferor making a deemed capital contribution to the Transferee in an amount equal to the unpaid portion of the Transfer Consideration, as agreed between the Transferor and the Transferee.
ARTICLE IV

REPRESENTATIONS AND WARRANTIES
SECTION 4.1    Transferor’s Representations and Warranties. The Transferor represents and warrants to the Transferee as of the date hereof as follows; provided, that, for clarity, the representations and warranties in this Article IV are solely with respect to the Transferor and do not constitute representations or warranties regarding the business, operations, financial condition or otherwise with respect to the Asset Vehicles or the Asset Vehicle Manager, except as otherwise expressly provided:
(a)Due Organization; Power and Authority. The Transferor is a limited liability company, duly formed under the laws of the State of Delaware, with the requisite limited
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liability company power and authority to own and operate its assets and properties, conduct the business in which it is now engaged and to execute and deliver and perform its obligations under this Agreement.
(b)Due Qualification and Good Standing. The Transferor is validly existing and in good standing (to the extent applicable) under the laws of its jurisdiction of organization, formation, incorporation or registration. The Transferor is duly qualified to do business and, to the extent applicable, is in good standing in each other jurisdiction in which the nature of its business, assets and properties, including the performance of its obligations under this Agreement and its constitutional documents, requires such qualification, except where the failure to be so qualified or in good standing (where applicable) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(c)Due Authorization; Execution and Delivery; Legal, Valid and Binding; Enforceability. This Agreement has been duly authorized by all requisite action by it and have been duly executed and delivered by the Transferor. Assuming due authorization, execution and delivery by each other party hereto and thereto, this Agreement is the legal, valid and binding obligation of the Transferor enforceable against it in accordance with its respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally or general principles of equity, regardless of whether considered in a proceeding in equity or at law, and implied covenants of good faith and fair dealing.
(d)Non-Contravention. Other than with respect to the Asset Vehicle Manager Consents required in connection with the transactions contemplated hereunder received on or before the date hereof, none of the execution and delivery by the Transferor of this Agreement or the consummation of the transactions herein contemplated, or compliance by it with the terms, conditions and provisions hereof, will (i) conflict with, or result in a breach or violation of, or constitute a default under, its constitutional documents, (ii) conflict with or contravene (A) any applicable law, (B) any material indenture, agreement or other contractual restriction binding on or affecting it or any of its assets, or (C) any order, writ, judgment, award, injunction or decree binding on or affecting it or any of its assets or properties or (iii) result in a breach or violation of, or constitute a default under, or permit the acceleration of any obligation or liability in any material contractual obligation or any material agreement or document to which it is a party or by which it or any of its assets are bound (or to which any such obligation, agreement or document relates), except, in each case under clause (ii) or (iii), for such conflicts, breaches, violations or defaults as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(e)Governmental Authorizations; Private Authorizations; Governmental Filings. The Transferor has obtained, maintained and kept in full force and effect all Governmental Authorizations and Private Authorizations which are necessary for it to properly carry out its business, except where the failure to do so would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and the Transferor has made all material Governmental Filings necessary for the execution and delivery by it of this
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Agreement, and the performance by the Transferor of its obligations under this Agreement, other than such UCC financing statements to be filed in connection with the execution and delivery of the Transaction Documents.
(f)Compliance with Agreements, Laws, Etc. The Transferor has preserved and kept in full force and effect its legal existence. The Transferor has preserved and kept in full force and effect its rights, privileges, qualifications and franchises, except where the failure to do so would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. Neither the Transferor nor any controlled subsidiary nor, to the knowledge of the Transferor, any director, manager, officer, employee, agent or representative thereof, is a Sanctioned Person. The Transferor and its controlled subsidiaries and, to the knowledge of the Transferor, any director, manager, officer, employee, agent or representative thereof, has conducted its business in material compliance with Anti-Corruption Laws and Ant-Money Laundering Laws and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
(g)Backup Security Interest. Notwithstanding that it is the express intent of the parties hereto that each Conveyance of Transferred Assets hereunder be an absolute sale of such Transferred Assets by the Transferor to the Transferee, in the event that the Conveyances hereunder shall be characterized as loans and not as sales, this Agreement creates a valid and continuing Lien on the Transferred Assets in favor of the Transferee and the Collateral Agent, pursuant to the lien granted by the Transferee to the Collateral Agent under the Note Purchase and Security Agreement, as secured party, for the benefit of the Secured Parties, which security interest shall be, upon the filing by the Transferee of the UCC financing statement contemplated below, validly perfected under Article 9 of the UCC (to the extent such security interest may be perfected under such article), and is enforceable as such against creditors of and transferees from such Transferor; the Transferor owns and has good and marketable title to the Transferred Assets, free and clear of any Lien, claims or encumbrances of any nature whatsoever except for Permitted Liens; the Transferor has received all consents and approvals required by the terms of any Asset Vehicle Agreement to the sale and granting of a security interest in the Asset Vehicle Interests to the Transferee; the Transferor will take all necessary steps to file or authorize the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect the security interest in that portion of the Transferred Assets in which a security interest may be perfected, including by filing a financing statement pursuant to Article 9 of the UCC as in effect in the State of Delaware.
(h)Solvency.
(i)The Transferor is not entering into this Agreement or the transactions contemplated herein with the intent to hinder, delay or defraud either present or future creditors.
(ii)After giving effect to the transactions contemplated herein: (A) the Fair Value of the assets of each of the Transferor and the Transferor Parent (and its other Subsidiaries), taken as a whole, shall be greater than the total amount of liabilities (including all liabilities, whether or not reflected in a balance sheet prepared in accordance with GAAP, and
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whether direct or indirect, fixed or contingent, secured or unsecured, disputed or undisputed) of the Transferor and the Transferor Parent (and its other Subsidiaries), taken as a whole; (B) the Transferor and the Transferor Parent (and its other Subsidiaries), taken as a whole, shall each be able to pay their debts and obligations as they become due; and (C) the Transferor and the Transferor Parent (and its other Subsidiaries), taken as a whole, shall each have adequate capital to carry on their businesses and all businesses in which they are about to engage. For the purposes of this Section 4.1(h)(ii), (x) “Fair Value” means the amount at which the assets (both tangible and intangible), in their entirety, of each of the Transferor and the Transferor Parent (and its other Subsidiaries) would change hands in a transaction between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act and (y) “able to pay their debts and obligations” means that the Transferor and the Transferor Parent (and its other Subsidiaries) will be able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet their obligations as they become due.
(iii)As of the date hereof, the Transferor and the Transferor Parent (and its other Subsidiaries) are not subject to any insolvency or bankruptcy proceedings under applicable law.
(i)Information True, Correct and Accurate. To the Transferor’s knowledge, all information heretofore furnished by the Transferor or its counsel in writing to the Transferee or its counsel in connection with this Agreement, the Transferred Assets or any transaction contemplated hereby is (when taken as a whole) true, correct and accurate in all material respects.
(j)Taxes. The Transferor has filed or caused to be filed all U.S. federal income and all other material tax returns which, to its knowledge, are required to be filed by it, if any, and has paid all taxes shown to be due and payable on such returns or on any material assessments made against it or any of its property and all other taxes, fees or other charges imposed on it or any of its property by any governmental authority (other than any amount of tax due, the validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in accordance with GAAP have been provided on its books); to the Transferor’s knowledge, no tax lien has been filed against any of the Transferred Assets.
(k)Title. (i) The Transferor possesses good, valid and marketable title to the Asset Vehicle Interests, free and clear of all Liens other than Permitted Liens. (ii) The Transferor has acquired its ownership in the Transferred Assets in good faith without notice of any adverse claim. (iii) To the knowledge of the Transferor each Asset Vehicles possesses good, valid and marketable title to the Underlying Assets, free and clear of all Liens other than Permitted Liens.
(l)No Other Representation or Warranties.
(i)Except for the representations and warranties expressly set forth in this Section 4.1, none of the Transferor, or any other Person on behalf of the Transferor makes (and the Transferor, on behalf of itself and its Subsidiaries and Affiliates, hereby disclaims) any other express or implied representation or warranty with respect to the Transferor or its
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Affiliates or any of its or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects or the transactions contemplated hereunder (including any implied warranties that may otherwise be applicable because of the provisions of the UCC or any other applicable law, including the warranties of merchantability and fitness for a particular purpose) or with respect to the accuracy or completeness of any other information provided, or made available, to the Transferee or any of its Subsidiaries or Affiliates hereunder.
(ii)The Transferor acknowledges and agrees that, except for the representations and warranties expressly set forth in Section 4.2, neither the Transferee nor any other Person on behalf of the Transferee has made any express or implied representation or warranty with respect to the transactions contemplated herein (including any implied warranties that may otherwise be applicable because of the provisions of the UCC or any other applicable law, including the warranties of merchantability and fitness for a particular purpose), and neither the Transferor nor any of its Affiliates have relied on any representation or warranty other than those expressly set forth in Section 4.2; provided, however, that, notwithstanding anything to the contrary set forth in the foregoing provisions of this Section 4.1 (k), nothing in this Section 4.1(k) shall limit the Transferor’s remedies with respect to claims of fraud or willful breach in connection with, arising out of or otherwise related to the express written representations and warranties made by the Transferee in this Agreement.
SECTION 4.2    Transferee’s Representations and Warranties. The Transferee represents and warrants to the Transferor as of the date hereof:
(a)Due Organization. The Transferee is a Delaware limited liability company, with full power and authority to own and operate its assets and properties, conduct the business in which it is now engaged and to execute and deliver and perform its obligations under this Agreement.
(b)Due Qualification and Good Standing. The Transferee is validly existing and in good standing under the laws of its jurisdiction of organization, formation, incorporation or registration. The Transferee is duly qualified to do business and, to the extent applicable, is in good standing in each other jurisdiction in which the nature of its business, assets and properties, including the performance of its obligations under this Agreement, and its constitutional documents, requires such qualification, except where the failure to be so qualified or in good standing would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(c)Due Authorization; Execution and Delivery; Legal, Valid and Binding; Enforceability. This Agreement has been duly authorized by all requisite action by it and has been duly executed and delivered by the Transferee. Assuming due authorization, execution and delivery by each other party hereto, this Agreement is the legal, valid and binding obligation of the Transferee enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally or general principles of equity, regardless of whether considered in a proceeding in equity or at law.
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(d)Non-Contravention. None of the execution and delivery by the Transferee of this Agreement, the consummation of the transactions herein contemplated, or compliance by it with the terms, conditions and provisions hereof, will (i) conflict with, or result in a breach or violation of, or constitute a default, under its documents, (ii) conflict with or contravene (A) any applicable law, (B) any material indenture, agreement or other contractual restriction binding on or affecting it or any of its assets, or (C) any order, writ, judgment, award, injunction or decree binding on or affecting it or any of its assets or properties or (iii) result in a breach or violation of, or constitute a default under, or permit the acceleration of any obligation or liability in any material contractual obligation or any material agreement or document to which it is a party or by which it or any of its assets are bound (or to which any such obligation, agreement or document relates), except, in each case under clause (ii) or (iii), for such conflicts, breaches, violations or defaults as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(e)[reserved]

(f)No Other Representation or Warranties.
(i)Except for the representations and warranties expressly set forth in this Section 4.2, none of the Transferee, or any other Person on behalf of the Transferee makes (and the Transferee, on behalf of itself and its Subsidiaries and Affiliates, hereby disclaims) any other express or implied representation or warranty with respect to the Transferee or its Affiliates or any of its or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects or the transactions contemplated hereunder (including any implied warranties that may otherwise be applicable because of the provisions of the UCC or any other applicable law, including the warranties of merchantability and fitness for a particular purpose) or with respect to the accuracy or completeness of any other information provided, or made available, to the Transferor or any of its Subsidiaries or Affiliates in connection with the transactions contemplated hereunder.
(ii)The Transferee acknowledges and agrees that, except for the representations and warranties expressly set forth in Section 4.1, neither the Transferor nor any other Person on behalf of the Transferee has made any express or implied representation or warranty with respect to the transactions contemplated herein (including any implied warranties that may otherwise be applicable because of the provisions of the UCC or any other applicable law, including the warranties of merchantability and fitness for a particular purpose), and neither the Transferee nor any of its Affiliates have relied on any representation or warranty other than those expressly set forth in Section 4.1; provided, however, that, notwithstanding anything to the contrary set forth in the foregoing provisions of this Section 4.2(e), nothing in this this Section 4.2(e) shall limit the Transferee’s remedies with respect to claims of fraud or willful breach in connection with, arising out of or otherwise related to the express written representations and warranties made by the Transferor in this Agreement.
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ARTICLE V

COVENANTS OF THE TRANSFEROR
SECTION 5.1    Covenants of the Transferor. The Transferor hereby covenants and agrees with the Transferee that until the Secured Obligations have been paid in full (other than contingent indemnification or expense reimbursement obligations in respect of which no claim has been made), unless the Transferee otherwise consents in writing:
(a)Cash Management Systems: Deposit of Collections. To the extent the Transferor receives any Collections due to the Transferee with respect to the Transferred Assets (excluding, for the avoidance of doubt, payments in respect of the Retained Deferred Purchase Price Amount) transferred by it to the Transferee, the Transferor shall transfer, or use commercially reasonable efforts to cause to be transferred, all such Collections to the Collection Account by the close of business on the second Business Day following the date such Collections are received by the Transferor. Upon the transfer of the Transferred Assets, the Transferor shall, or allow the Transferee on its behalf, direct each Asset Vehicle to make payments (excluding, for the avoidance of doubt, payments in respect of the Retained Deferred Purchase Price Amount) in respect of each related Transferred Asset Conveyed hereunder directly into the Collection Account.
(b)Accounting of Purchases. The Transferor will not account for or treat the transactions contemplated hereby in any manner other than as a transfer or contribution of the Transferred Assets by the Transferor to the Transferee including for tax purposes, where appropriate.
(c)Liens. The Transferor shall not create, incur, assume or permit to exist any Lien on or with respect to the Transferred Assets, other than Permitted Liens. For the avoidance of doubt, this Section 5.1(c) shall not apply to any property retained by the Transferor and not Conveyed or purported to be Conveyed hereunder.
(d)Change of Name. Etc. In the event that the Transferor changes its name, identity or corporate structure in any manner that would make any financing statement or continuation statement filed by the Transferor in accordance with Section 2.1(c) seriously misleading or change its jurisdiction of organization, the Transferor shall provide the Transferee at least ten (10) days (or such shorter period as the Transferee may agree) prior written notice and shall promptly file appropriate amendments to all previously filed financing statements and continuation statements.
(e)Transfer Characterization. The Transferor shall not make statements or disclosures, or treat the transactions contemplated by this Agreement (other than for tax or accounting purposes as appropriate) in any manner other than as a true transfer, contribution or absolute assignment of the title to and sole record and beneficial ownership interest of the Transferred Assets Conveyed or purported to be Conveyed by it hereunder.
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(f)Information. Following the occurrence of a Going Private Event, the Transferor will deliver the following to the Transferee:
(i)as soon as reasonably practicable, and in any event within one hundred and twenty (120) days after the end of each fiscal year, a consolidated balance sheet of the Transferor Parent as of the end of such fiscal year, and the related statements of operations and cash flows for such fiscal year audited by independent public accountants of nationally recognized standing; and
(ii)as soon as reasonably practicable, and in any event within sixty (60) days after the end of each of the first three quarters of each fiscal year of the Transferor, an unaudited consolidated balance sheet of the Transferor Parent as of the end of such quarter, and the related statements of operations for such quarter, and for the portion of the Transferor’s fiscal year (as applicable) ended at the end of such quarter; and
(iii)simultaneously with the delivery of each set of financial statements referred to in clauses (i) and clause (ii) above, a certificate of the Transferor Parent certifying that such financial statements fairly present in all material respects the financial condition and the results of operations of such entities, on the dates and for the periods indicated, on the basis of GAAP, subject, in the case of interim financial statements, to normally recurring year-end adjustments and the absence of notes.
ARTICLE VI

MISCELLANEOUS PROVISIONS
SECTION 6.1    Amendments, Etc. This Agreement and the rights and obligations of the parties hereunder may not be amended, supplemented, waived or otherwise modified except in an instrument in writing signed by the Transferee and the Transferor, and, so long as any Secured Obligation are outstanding, consented to in writing by the Collateral Agent. Any reconveyance executed in accordance with the provisions hereof shall not be considered an amendment or modification to this Agreement.
SECTION 6.2    Governing Law: Submission to Jurisdiction.
(a)THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT (EXCEPT, AS TO ANY OTHER TRANSACTION DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
    (b)    Each party hereto irrevocably and unconditionally:
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(i)submits for itself and its property in any legal action or proceeding relating to this Agreement or the other Transaction Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the State of New York in the Borough of Manhattan, the courts of the United States of America for the Southern District of New York, and the appellate courts of any of them;
(ii)consents that any such action or proceeding may be brought in any court described in Section 6.2(b)(i) and waives to the fullest extent permitted by Applicable Law any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(iii)agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such party at its address set forth in Section 6.3 or at such other address as may be permitted thereunder;
(iv)agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law; and
(v)waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding against any Secured Party arising out of or relating to this Agreement or any other Transaction Document any special, exemplary, punitive or consequential damages.
SECTION 6.3    Notices. All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing and shall be personally delivered or sent by certified mail, electronic mail, postage prepaid, to the intended party at the address of such party set forth below:
(a)in the case of the Transferee:

BR FUNDING HOLDINGS 2024-1 LLC
850 Library Ave., Ste. 204
Newark, DE 19711
Attention: D. J. Puglisi
Telephone: 302-738-6680
e-mail: dpuglisi@puglisiassoc.com

(b)in the case of the Transferor:

B. RILEY BRAND MANAGEMENT LLC,
21255 Burbank Boulevard, Suite 400
Woodland Hills, CA 91367
Attention: Alan N. Forman
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Email: aforman@brileyfin.com

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

Sullivan & Cromwell LLP
1888 Century Park East, Suite 2100
Los Angeles, CA 90067
Attn:     Patrick S. Brown
    Ari B. Blaut
Email:     brownp@sullcrom.com
    blauta@sullcrom.com

All such notices and communications shall be effective, (a) if personally delivered, when received, (b) if sent by certified mail, three (3) Business Days after having been deposited in the mail, postage prepaid, (c) if sent by two-day mail, two (2) Business Days after having been deposited in the mail, postage prepaid, (d) if sent by overnight courier, one (1) Business Day after having been given to such courier, and (e) if transmitted by electronic mail, when sent, receipt confirmed by telephone or electronic means.
SECTION 6.4    Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall for any reason whatsoever be held invalid, then such covenants, agreements, provisions, or terms shall be deemed severable from the remaining covenants, agreements, provisions, or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement.
SECTION 6.5    Further Assurances.
(a)The Transferee and the Transferor each agree that at any time and from time to time, at its expense and upon reasonable request of the Collateral Agent, it shall promptly execute and deliver all further instruments and documents, and take all reasonable further action, that is necessary or desirable to perfect and protect the Conveyances and security interests granted or purported to be granted by this Agreement or to enable the Collateral Agent or any of the Secured Parties to exercise and enforce its rights and remedies under this Agreement with respect to any Collateral the subject of a lien hereunder. Without limiting the generality of the foregoing, the Transferor authorizes the filing of such financing or continuation statements, or amendments thereto, and such other instruments or notices as may be necessary or desirable or that the Transferee or the Collateral Agent as the assignee of the Transferee may reasonably request to protect and preserve the Conveyances and security interests granted by this Agreement.
(b)The Transferee and the Transferor agree to do and perform, from time to time, any and all acts and to execute any and all further instruments reasonably requested by the other party more fully to effect the purposes of this Agreement and the other Transaction Documents, including the execution of any financing statements or continuation statements or
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equivalent documents relating to the Transferred Assets for filing under the provisions of the UCC or other laws of any applicable jurisdiction.
(c)The Transferee and the Transferor hereby severally authorize the Collateral Agent to file one or more financing or continuation statements, and amendments thereto, relating to all or any part of the Transferred Assets.
(d)The Transferor shall furnish to the Collateral Agent from time to time such statements and schedules further identifying and describing the Transferred Assets and such other reports in connection with the Transferred Assets as the Collateral Agent may reasonably request, all in reasonable detail.
SECTION 6.6    No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Transferee, or the Transferor, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exhaustive of any rights, remedies, powers and privilege provided by law.
SECTION 6.7    Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement. Delivery of an executed signature page of this Agreement by electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
SECTION 6.8    Merger and Integration. Except as specifically stated otherwise herein, this Agreement and the other Transaction Documents set forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement and the other Transaction Documents.
SECTION 6.9    Non-Petition; Limited Recourse. The Transferor hereby agrees not to institute against, or join, cooperate with or encourage any other Person in instituting against, the Transferee any bankruptcy, reorganization, receivership, arrangement, insolvency, moratorium or liquidation proceeding or other proceeding under any federal, state or foreign bankruptcy or similar laws until at least one year and one day, or, if longer, the applicable preference period then in effect plus one day, after the payment in full of all outstanding Secured Obligations; provided that nothing in this Section 7.9 shall preclude, or be deemed to prevent the Transferor (a) from taking any action prior to the expiration of the aforementioned one year and one day period, or, if longer, the applicable preference period then in effect, in (i) any case or proceeding voluntarily filed or commenced by the Transferee or (ii) any involuntary insolvency proceeding filed or commenced against the Transferee by a Person other than such Transferor, or (b) from commencing against the Transferee or any properties of the Transferee any legal action which is not a bankruptcy, reorganization, receivership, arrangement, insolvency, moratorium or liquidation proceeding or other proceeding under federal, state or foreign bankruptcy or similar
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laws. In addition, the Transferor shall have no recourse for any amounts payable or any other obligations arising under this Agreement against any officer, member, director, employee, partner, Affiliate or security holder of the Transferee or any of its successors or assigns. The provisions of this paragraph shall survive the termination of this Agreement.
SECTION 6.10    Headings. The headings herein are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the Transferee and the Transferor each have caused this Transfer and Contribution Agreement to be duly executed by their respective officers as of the day and year first above written.

BR FUNDING HOLDINGS 2024-1 LLC, as Transferee



By: /s/ Donald J. Puglisi
Name: Donald J. Puglisi
Title: Director




Signature Page to BR Seller Transfer and Contribution Agreement





B. RILEY BRAND MANAGEMENT LLC, as Transferor



By: /s/ Perry Mandarino
Name: Perry Mandarino
Title: Authorized Person




Signature Page to BR Seller Transfer and Contribution Agreement


SCHEDULE A

Schedule Of Transferred Assets
Asset VehicleAsset Vehicle Interest
1BR Brand Holdings LLC, a New York limited liability company80% of the limited liability company interests in BR Brand Holdings LLC, under the Amended and Restated Operating Agreement of BR Brand Holdings LLCA, dated as of October 28, 2019; held by B. Riley Brand Management, LLC, in its capacity as a member of BR Brand Holdings, LLC (including the economic and non-economic rights of a member under such agreement)
2HRLY Brand Management LLC, a Delaware limited liability company 42.91% of the limited liability company interests in HRLY Brand Management LLC, under the Limited Liability Company Operating Agreement of HRLY Brand Management LLC, dated as of as of October 28, 2019; held by B. Riley Brand Management, LLC, in its capacity as a member of HRLY Brand Management LLC (including the economic and non-economic rights of a member under such agreement)
3Justice Brand Management LLC, a New York limited liability company40.85% of the limited liability company interests in Justice Brand Management LLC, under the Operating Agreement of Justice Brand Management LLC, dated as of June 2, 2021; held by B. Riley Brand Management, LLC, in its capacity as a member of Justice Brand Management LLC (including the economic and non-economic rights of a member under such agreement)
4S&S Brand Management LLC, a New York limited liability company 10.29% of the limited liability company interests in S&S Brand Management LLC, under the Operating Agreement of S&S Brand Management LLC, dated as of March 23, 2023; held by B. Riley Brand Management, LLC, in its capacity as a member of S&S Brand Management LLC (including the economic and non-economic rights of a member under such agreement)