EX-10.1 2 ea157311ex10-1_purple.htm EXECUTION VERSION

Exhibit 10.1

 

EXECUTION VERSION

 

SECOND AMENDMENT TO CREDIT AGREEMENT

 

SECOND AMENDMENT TO CREDIT AGREEMENT (this “Second Amendment”), dated as of March 23, 2022, among purple innovation, inc., a Delaware corporation (“Holdings”), purple innovation, llc, a Delaware limited liability company (the “Borrower”), the LENDERS (as defined below) party hereto (the “Second Amendment Lenders”) and KEYBANK NATIONAL ASSOCIATION, as administrative agent (in such capacity, the “Administrative Agent”). Unless otherwise indicated, all capitalized terms used herein and not otherwise defined shall have the respective meanings provided such terms in the Credit Agreement or the Amended Credit Agreement (each as defined below), as applicable.

 

PRELIMINARY STATEMENTS

 

WHEREAS, the Borrower, Holdings, the Administrative Agent, the lenders from time to time party thereto (each, a “Lender” and, collectively, the “Lenders”) and the other parties thereto from time to time have entered into that certain Credit Agreement, dated as of September 3, 2020 (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”; and the Credit Agreement as amended by this Second Amendment, the “Amended Credit Agreement”);

 

WHEREAS, the Borrower has requested that the Second Amendment Lenders (which constitute the Required Lenders) make certain amendments to the Credit Agreement as provided herein; and

 

WHEREAS, the parties hereto have agreed, subject to the satisfaction of the conditions precedent to effectiveness set forth in Section 4 hereof, to amend certain terms of the Credit Agreement as hereinafter provided to give effect to the amendments contemplated hereby.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is acknowledged by each party hereto, it is agreed that:

 

SECTION 1. AMENDMENTS. The Credit Agreement is hereby amended by deleting the stricken text (indicated textually in the same manner as the following example: stricken text), and (ii) adding the double underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the Amended Credit Agreement attached hereto as Annex I.

 

SECTION 2. [RESERVED].

 

SECTION 3. Representations & Warranties. Each Credit Party hereby represents and warrants to the Lenders and the Administrative Agent that (a) the representations and warranties contained in the Amended Credit Agreement and in the other Loan Documents are true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, Material Adverse Effect or dollar amount threshold, which are true and correct in all respects) on and as of the Second Amendment Effective Date to the same extent as though made on and as of the Second Amendment Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, Material Adverse Effect or dollar amount threshold, were true and correct in all respects) on and as of such earlier date; (b) such Credit Party has the legal power and authority to execute and deliver this Second Amendment; (c) the officers executing this Amendment on behalf of such Credit Party have been duly authorized to execute and deliver the same and bind such Credit Party with respect to the provisions hereof; (d) the execution and delivery hereof by such Credit Party and the performance and observance by such Credit Party of the provisions hereof do not violate or conflict with the Organizational Documents of such Credit Party or any law applicable to such Credit Party or result in a breach of any provision of or constitute a default under any Material Contract, or any other promissory note, bond, debenture, indenture, mortgage, deed of trust, credit or loan agreement, or any other agreement or other instrument related to Indebtedness, to which such Credit Party is a party or by which it or any of its property or assets are bound or to which it may be subject; (e) both immediately before and after giving effect to this Second Amendment, no Default or Event of Default exists under the Credit Agreement, nor will any occur immediately after the execution and delivery of this Second Amendment or by the performance or observance of any provision hereof; (f) as of the date hereof, neither the Borrower nor Holdings has any claim or offset against, or defense or counterclaim to, any obligations or liabilities of the Borrower or Holdings under the Credit Agreement or any other Loan Document; and (g) this Second Amendment constitutes a valid and binding obligation of such Credit Party in every respect, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of general application affecting the enforcement of creditors’ rights or by general principles of equity limiting the availability of equitable remedies (regardless of whether enforcement is sought in equity or at law).

 

 

 

 

SECTION 4. Conditions Precedent. This Second Amendment shall become effective as of the first date (the “Second Amendment Effective Date”) when each of the conditions set forth in this Section 4 shall have been satisfied to the satisfaction of the Administrative Agent:

 

(a) the Administrative Agent’s receipt of the following:

 

(i) counterparts of this Second Amendment executed by the Borrower, Holdings, the Administrative Agent and the Second Amendment Lenders; and

 

(ii) such other documents or deliverables as the Administrative Agent or any Second Amendment Lender may reasonably request;

 

(b) the Borrower shall have paid to the Administrative Agent (x) those fees and amounts as set forth in the fee letters dated as of the date hereof between Holdings, the Borrower and the Administrative Agent and (y) all other fees and expenses, including all reasonable out-of-pocket costs, fees and expenses owing to them and the fees and expenses of counsel thereto, in each case, pursuant to the terms of the Credit Agreement;

 

(c) no Default or Event of Default exists or would result immediately after giving effect to the transactions contemplated hereby; and

 

(d) the representations and warranties of the Credit Parties set forth in Section 3 of this Amendment are true and correct.

 

SECTION 5. Reaffirmation.

 

By executing and delivering a copy hereof, (i) each Credit Party hereby (A) agrees that all Loans shall be guaranteed pursuant to the Guaranty in accordance with the terms and provisions thereof and shall be secured pursuant to the Security Documents in accordance with the terms and provisions thereof, and (ii) each Credit Party hereby (A) agrees that, after giving effect to this Second Amendment, the Guaranty and the Liens created pursuant to the Security Documents for the benefit of the Secured Creditors continue to be in full force and effect and (B) affirms, acknowledges and confirms all of its obligations and liabilities under the Amended Credit Agreement and each other Loan Document to which it is a party, in each case after giving effect to this Second Amendment.

 

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SECTION 6. WAIVER; Release.

 

(a) As of the date of this Second Amendment, each Credit Party on behalf of itself and each of their respective Subsidiaries (collectively, the “Releasors”), to the fullest extent permitted by law, hereby releases, and forever discharges the Administrative Agent, each Lender and each of its or their respective trustees, officers, directors, participants, beneficiaries, agents, attorneys, affiliates and employees, and the successors and assigns of the foregoing (collectively, the “Released Parties”), from any and all claims, actions, causes of action, suits, defenses, set-offs against the Obligations, and liabilities of any kind or character whatsoever, known or unknown, contingent or matured, suspected or unsuspected, anticipated or unanticipated, liquidated or unliquidated, claimed or unclaimed, in contract or in tort, at law or in equity, or otherwise, including, without limitation, any claims, causes of action or defenses based on the negligence of any of the Released Parties or on any “lender liability” theories of, among others, unfair dealing, control, misrepresentation, omissions, misconduct, overreaching, unconscionability, disparate bargaining position, reliance, equitable subordination, or otherwise, and any claim based upon illegality and any claims or defenses relating to allegations of usury, which relate, in whole or in part, directly or indirectly, to the Loans, the Loan Documents, the Obligations, the Collateral or this Second Amendment, in each case, which existed, arose or occurred at any time prior to the date of this Second Amendment, including, without limitation, the negotiation, execution, performance or enforcement of the Loan Documents and this Second Amendment, (collectively, the “Released Claims”). No Releasor shall intentionally, willfully or knowingly commence, join in, prosecute, or participate in any suit or other proceeding in a position which is adverse to any of the Released Parties, arising directly or indirectly from any of the Released Claims. The Released Claims include, but are not limited to, any and all unknown, unanticipated, unsuspected or misunderstood claims and defenses which existed, arose or occurred at any time prior to the date of this Second Amendment, all of which are released by the provisions hereof in favor of the Released Parties.

 

(b) Each Releasor acknowledges and agrees that as of the Second Amendment Effective Date, it has no defenses, counterclaims, offsets, cross-complaints, causes of action, rights, claims or demands of any kind or nature whatsoever, including, without limitation, any usury or lender liability claims or defenses, arising out of the Loan Documents or this Second Amendment, that can be asserted either to reduce or eliminate all or any part of any of the Releasors’ liability to the Administrative Agent and the Lenders under the Loan Documents, or to seek affirmative relief or damages of any kind or nature from the Administrative Agent or the Lenders, for or in connection with the Loans or any of the Loan Documents. Each Releasor further acknowledges that, to the extent that any such claim does in fact exist as of the Second Amendment Effective Date, it is being fully, finally and irrevocably released by them as provided in this Second Amendment.

 

(c) Each Releasor hereby waives the provisions of any applicable laws restricting the release of claims which the releasing parties do not know or suspect to exist as of the date of this Second Amendment, which, if known, would have materially affected the decision to agree to these releases. Accordingly, each Releasor hereby agrees, represents and warrants to the Administrative Agent and each Lender that it understands and acknowledges that factual matters now unknown may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and each Releasor further agrees, represents and warrants that the releases provided herein have been negotiated and agreed upon, and in light of, that realization and that each Releasor nevertheless hereby intends to release, discharge and acquit the parties set forth hereinabove from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are in any manner set forth in or related to the Released Claims and all dealings in connection therewith.

 

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(d) In making the releases set forth in this Second Amendment, each Releasor acknowledges that it has not relied upon any representation of any kind made by any Released Party.

 

(e) It is understood and agreed by the Releasors and the Released Parties that the acceptance of delivery of the releases set forth in this Second Amendment shall not be deemed or construed as an admission of liability by any of the Released Parties and the Administrative Agent, on behalf of itself and the other Released Parties, hereby expressly denies liability of any nature whatsoever arising from or related to the subject of such releases.

 

SECTION 7. Miscellaneous Provisions.

 

(a) Ratification. This Second Amendment is limited to the matters expressly specified herein and shall not constitute a modification, acceptance or waiver of any other provision of the Credit Agreement or any other Loan Document. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Credit Agreement or any other Loan Document or instruments securing the same, which shall remain in full force and effect as modified hereby or by instruments executed concurrently herewith.

 

(b) Governing Law; Submission to Jurisdiction, Etc. THIS SECOND AMENDMENT 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 SECOND AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. SECTION 11.08 OF THE CREDIT AGREEMENT ARE INCORPORATED BY REFERENCE HEREIN AS IF SUCH SECTION APPEARED HEREIN, MUTATIS MUTANDIS.

 

(c) Severability. Section 11.21 of the Credit Agreement is incorporated by reference herein as if such Section appeared herein, mutatis mutandis.

 

(d) Counterparts; Headings. This Second Amendment may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one agreement. Delivery of an executed signature page of this Second Amendment by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof. The words “execution,” “signed,” “signature,” and words of like import in this Second Amendment shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar applicable state laws based on the Uniform Electronic Transactions Act. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Second Amendment.

 

[Remainder of page intentionally blank; signatures begin next page]

 

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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Second Amendment as of the date first above written.

 

  PURPLE INNOVATION, LLC,
  as the Borrower
   
  By: /s/ Bennett Nussbaum
    Name: Bennett Nussbaum
    Title: Interim CFO
       
  PURPLE INNOVATION, INC.,
  as Holdings
   
  By: /s/ Bennett Nussbaum
    Name:  Bennett Nussbaum
    Title: Interim CFO

 

 

 

 

  KEYBANK NATIONAL ASSOCIATION,
  as Administrative Agent
       
  By: /s/ Marianne T. Meil
    Name: Marianne T. Meil
    Title: Sr. Vice President

 

 

 

 

  KEYBANK NATIONAL ASSOCIATION, as a Lender
   
  By: /s/ Marianne T. Meil
    Name:  Marianne T. Meil
    Title: Sr. Vice President

 

 

 

 

  BANK OF MONTREAL, as a Lender
   
  By: /s/ Katherine K. Robinson
    Name:  Katherine K. Robinson
    Title: Managing Director

 

 

 

 

 

  FIFTH THIRD BANK, NATIONAL ASSOCIATION, as a Lender
   
  By: /s/ Douglas P. Best
    Name:  Douglas P. Best
    Title: Vice President

 

 

 

  TRUIST BANK,, as a Lender
   
  By: John L. Saylor
    Name:  John L. Saylor
    Title: Senior Vice President

 

 

 

 

 

  WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender
   
  By: /s/ Steve Lowe
    Name:  Steve Lowe
    Title: Senior Vice President

 

 

 

 

 

  RAYMOND JAMES BANK, as a lender
   
  By: /s/ H. Fred Coble, Jr.
    Name:  Douglas P. Best
    Title: Managing Director

 

 

 

 

 

  ARVEST BANK, is a Lender
   
  By: John Suskie
    Name:  Douglas P. Best
    Title: Managing Director of Syndicated Banking

 

 

 

 

 

ANNEX I

 

Amended Credit Agreement

 

Attached

  

 

 

 

DEAL CUSIP NUMBER: 74641DAA9

REVOLVER CUSIP NUMBER: 74641DAB7

TERM LOAN CUSIP NUMBER: 74641DAC5

 

 

 

 

 

 

 

CREDIT AGREEMENT

 

dated as of

September 3, 2020,

as amended by the First Amendment, dated as of February 28, 2022

and the Second Amendment, dated as of March 23, 2022

among

PURPLE INNOVATION, LLC,
as Borrower,

PURPLE INNOVATION, INC.,
as Holdings,


THE LENDING INSTITUTIONS NAMED HEREIN,
as Lenders,

and

 

KEYBANK NATIONAL ASSOCIATION,
as an LC Issuer, Swing Line Lender and as the Administrative Agent

 

 

 

KeyBanc Capital Markets Inc.,
BMO Capital markets corp.,

Fifth third bank, national association,

silicon valley bank,

Truist securities, inc.

AND

wells fargo SECURITIES, LLC,

each as a Joint Lead Arranger and a Joint Bookrunner

  

Bank of montreal,

Fifth third bank, national association,

silicon valley bank,

Truist Bank, and

AND

WELLS FARGO BANK, NATIONAL ASSOCIATION,

each as a Syndication Agent

 

$100,000,000 Senior Secured Credit Facility

 

 

 

 

 

 

TABLE OF CONTENTS

 

  Page
   
ARTICLE I DEFINITIONS AND TERMS 1
Section 1.01   Certain Defined Terms 1
Section 1.02   Computation of Time Periods 47
Section 1.03   Accounting Terms 47
Section 1.04   Terms Generally 47
Section 1.05   Divisions 48
       
ARTICLE II THE TERMS OF THE CREDIT FACILITY 48
Section 2.01   Establishment of the Credit Facility 48
Section 2.02   Revolving Facility 48
Section 2.03   Term Loan 48
Section 2.04   Swing Line Facility. 4849
Section 2.05   Letters of Credit. 51
Section 2.06   Notice of Borrowing. 55
Section 2.07   Funding Obligations; Disbursement of Funds 55
Section 2.08   Evidence of Obligations 56
Section 2.09   Interest; Default Rate. 57
Section 2.10   Conversion and Continuation of Loans 60
Section 2.11   Fees. 6061
Section 2.12   Termination and Reduction of Revolving Commitments 62
Section 2.13   Voluntary, Scheduled and Mandatory Prepayments of Loans 6263
Section 2.14   Method and Place of Payment 67
Section 2.15   Defaulting Lenders 68
Section 2.16   Cash Collateral 70
Section 2.17   Increase in Commitments 71
       
ARTICLE III INCREASED COSTS, ILLEGALITY AND TAXES 73
Section 3.01   Increased Costs, Illegality, etc 73
Section 3.02   Breakage Compensation 75
Section 3.03   Net Payments 76
Section 3.04   Increased Costs to LC Issuers 79
Section 3.05   Change of Lending Office; Replacement of Lenders 79
Section 3.06   Rates 80
       
ARTICLE IV CONDITIONS PRECEDENT 81
Section 4.01   Conditions Precedent at Closing Date 81
Section 4.02   Conditions Precedent to All Credit Events 84
       
ARTICLE V REPRESENTATIONS AND WARRANTIES 84
Section 5.01   Corporate Status 84
Section 5.02   Corporate Power and Authority 8485
Section 5.03   No Violation 85
Section 5.04   Governmental Approvals 85
Section 5.05   Litigation 85
Section 5.06   Use of Proceeds; Margin Regulations; Sanctions 85
Section 5.07   Financial Statements 86
Section 5.08   Solvency 87
Section 5.09   No Material Adverse Change 87
Section 5.10   Tax Returns and Payments 87
Section 5.11   Title to Properties, etc 87

 

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TABLE OF CONTENTS
(continued)

 

      Page
       
Section 5.12   Lawful Operations, etc 87
Section 5.13   Environmental Matters 88
Section 5.14   Compliance with ERISA 88
Section 5.15   Intellectual Property, etc 8889
Section 5.16   Investment Company Act, etc 89
Section 5.17   Insurance 89
Section 5.18   Burdensome Contracts; Labor Relations 89
Section 5.19   Security Interests 90
Section 5.20   True and Complete Disclosure 8990
Section 5.21   Defaults 90
Section 5.22   Capitalization 90
Section 5.23   Anti-Terrorism and Anti-Money Laundering Law Compliance 91
Section 5.24   Location of Bank Accounts 91
Section 5.25   Material Contracts 91
Section 5.26   Affiliate Transactions 91
Section 5.27   Beneficial Ownership 91
Section 5.28   Status of Obligations as Senior Indebtedness 9192
Section 5.29   Status of Holdings 9192
       
ARTICLE VI AFFIRMATIVE COVENANTS 92
Section 6.01   Reporting Requirements 92
Section 6.02   Books, Records and Inspections. 96
Section 6.03   Insurance 96
Section 6.04   Payment of Taxes and Claims 97
Section 6.05   Corporate Franchises 97
Section 6.06   Good Repair 97
Section 6.07   Compliance with Statutes, etc 9798
Section 6.08   Compliance with Environmental Laws 98
Section 6.09   Certain Subsidiaries to Join in Guaranty 98
Section 6.10   Additional Security; Real Property Matters; Further Assurances 99
Section 6.11   Control Agreements 102
Section 6.12   Senior Debt 102
Section 6.13   Use of Proceeds 102
Section 6.14   Lender Meetings 102
Section 6.15   Cash Management 102
Section 6.16   Post-Closing Obligations 102
Section 6.17   Flood Insurance Matters 102
       
ARTICLE VII NEGATIVE COVENANTS 103
Section 7.01   Changes in Business 103
Section 7.02   Consolidation, Merger, Acquisitions, Asset Sales, Statutory Divisions, etc 103
Section 7.03   Liens 105
Section 7.04   Indebtedness 105106
Section 7.05   Investments and Guaranty Obligations 107
Section 7.06   Restricted Payments 109
Section 7.07   Financial Covenants. 111
Section 7.08   Limitation on Certain Restrictive Agreements 112
Section 7.09   Transactions with Affiliates 113

 

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TABLE OF CONTENTS
(continued)

 

      Page
       
Section 7.10   Modification of Certain Agreements 113
Section 7.11   Anti-Terrorism Laws 114
Section 7.12   Fiscal Year 114
Section 7.13   Issuance of Disqualified Equity Interests 114
Section 7.14   Business of Holdings. 114
Section 7.15   Maximum Capital Expenditures 114
Section 7.16   Lease Incurrence Test 115
       
ARTICLE VIII EVENTS OF DEFAULT 115
Section 8.01   Events of Default 115
Section 8.02   Remedies 117
Section 8.03   Application of Certain Payments and Proceeds 118
       
ARTICLE IX THE ADMINISTRATIVE AGENT 118119
Section 9.01   Appointment 118119
Section 9.02   Delegation of Duties 120
Section 9.03   Exculpatory Provisions 120
Section 9.04   Reliance by Administrative Agent 121
Section 9.05   Notice of Default 121
Section 9.06   Non-Reliance 121
Section 9.07   No Reliance on Administrative Agent’s Customer Identification Program 122
Section 9.08   USA Patriot Act 122
Section 9.09   Reimbursement by Lenders 122
Section 9.10   The Administrative Agent in Individual Capacity 122123
Section 9.11   Successor Administrative Agent 122123
Section 9.12   Other Agents 123
Section 9.13   Agency for Perfection 123
Section 9.14   Proof of Claim 123124
Section 9.15   Posting of Approved Electronic Communications 124
Section 9.16   Credit Bidding 125126
Section 9.17   ERISA 125126
Section 9.18   Withholding Taxes 126127
Section 9.19   Resignation/Replacement of LC Issuer 127
Section 9.20   Erroneous Payments 127
       
ARTICLE X GUARANTY 128
Section 10.01   Guaranty by the Borrower 128
Section 10.02   Additional Undertaking 129
Section 10.03   Guaranty Unconditional 129
Section 10.04   Borrower Obligations to Remain in Effect; Restoration 130
Section 10.05   Waiver of Acceptance, etc 130
Section 10.06   Subrogation 130
Section 10.07   Effect of Stay 130
Section 10.08   Keepwell 130

 

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TABLE OF CONTENTS
(continued)

 

      Page
       
ARTICLE XI MISCELLANEOUS 131
Section 11.01   Payment of Expenses etc 131
Section 11.02   Indemnification 131
Section 11.03   Right of Setoff 132
Section 11.04   Equalization 131132
Section 11.05   Notices 133
Section 11.06   Successors and Assigns 134
Section 11.07   No Waiver; Remedies Cumulative 139
Section 11.08   Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial 139140
Section 11.09   Counterparts 141
Section 11.10   Integration 141
Section 11.11   Headings Descriptive 141
Section 11.12   Amendment or Waiver; Acceleration by Required Lenders 141
Section 11.13   Survival of Indemnities 145
Section 11.14   Domicile of Loans 145
Section 11.15   Confidentiality. 145
Section 11.16   Limitations on Liability of the LC Issuers 146
Section 11.17   General Limitation of Liability 146
Section 11.18   No Duty 146147
Section 11.19   Lenders and Agent Not Fiduciary to Borrower, etc 147
Section 11.20   Survival of Representations and Warranties 147
Section 11.21   Severability 147
Section 11.22   Independence of Covenants 147
Section 11.23   Interest Rate Limitation 147148
Section 11.24   USA Patriot Act 148
Section 11.25   Advertising and Publicity 148
Section 11.26   Release of Guarantees and Liens 148
Section 11.27   Payments Set Aside 148149
Section 11.28   Hedging Liability 148149
Section 11.29   Acknowledgement and Consent to Bail-In of Affected Financial Institutions 149
Section 11.30   Acknowledgement Regarding Any Supported QFCs 149

 

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EXHIBITS

 

Exhibit A-1   Form of Revolving Facility Note
Exhibit A-2   Form of Swing Line Note
Exhibit A-3   Form of Term Note
Exhibit B-1   Form of Notice of Borrowing
Exhibit B-2   Form of Notice of Continuation or Conversion
Exhibit B-3   Form of LC Request
Exhibit D   Form of Solvency Certificate
Exhibit E   Form of Compliance Certificate
Exhibit F   Form of Closing Certificate
Exhibit G   Form of Assignment Agreement
Exhibit K   Form of Intercompany Subordination Agreement
Exhibit L-1   Form of U.S. Tax Compliance Certificate
Exhibit L-2   Form of U.S. Tax Compliance Certificate
Exhibit L-3   Form of U.S. Tax Compliance Certificate
Exhibit L-4   Form of U.S. Tax Compliance Certificate

 

Schedule 1   Lenders and Commitments
Schedule 2   Guarantors
Schedule 3   Series B Holders
Schedule 5.11   Title to Property, etc.
Schedule 5.15   Intellectual Property, etc.
Schedule 5.17   Insurance
Schedule 5.22   Capitalization
Schedule 5.24   Location of Bank Accounts
Schedule 6.16   Post-Closing Obligations
Schedule 7.03   Liens
Schedule 7.04   Indebtedness
Schedule 7.05   Investments
Schedule 7.16   Permitted Leases

 

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This CREDIT AGREEMENT is entered into as of September 3, 2020 among Purple Innovation, LLC, a Delaware limited liability company, as the borrower (the “Borrower”), Purple Innovation, Inc., a Delaware corporation (“Holdings”), the lenders from time to time party hereto (each a “Lender” and collectively, the “Lenders”), and KeyBank National Association, as the administrative agent (in such capacity, the “Administrative Agent”).

 

PRELIMINARY STATEMENTS:

 

(1) The Borrower has requested that the Lenders, the Swing Line Lender and each LC Issuer extend credit to the Borrower (a) to repay the obligations under the Existing Credit Agreement (as hereinafter defined), and (b) for working capital, capital expenditures, investments in or purchase of assets or entities in support of the existing business of the Credit Parties (as hereinafter defined) and other general corporate purposes, including, without limitation, to pay fees and expenses incurred in connection with the Transactions and for Permitted Acquisitions, in each case, as permitted hereunder.

 

(2) Subject to and upon the terms and conditions set forth herein, the Lenders, the Swing Line Lender and each LC Issuer are willing to extend credit and make available to the Borrower the credit facilities provided for herein for the foregoing purposes.

 

AGREEMENT:

 

In consideration of the premises and the mutual covenants contained herein, the parties hereto agree as follows:

 

ARTICLE I

DEFINITIONS AND TERMS

 

Certain Defined Terms. As used herein, the following terms shall have the meanings herein specified unless the context otherwise requires:

 

1934 Act” means the Securities Exchange Act of 1934, as amended.

 

Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (i) the acquisition of all or substantially all of the assets of any Person, or any business or division of any Person, (ii) the acquisition or ownership of in excess of 50% of the Equity Interests of any Person, or (iii) the acquisition of another Person by a merger, consolidation, amalgamation or any other combination with such Person.

 

Additional Security Documents” has the meaning provided in ‎Section 6.10(a).

 

Adjusted Term SOFR” means for any Available Tenor and Interest Period with respect to a Term SOFR Loan, the sum of (a) Term SOFR for such Interest Period and (b) the applicable SOFR Index Adjustment; provided that if Adjusted Term SOFR as so determined would be less than the Term SOFR Floor, then Adjusted Term SOFR shall be deemed to be the Term SOFR Floor.

 

Administrative Agent” has the meaning provided in the first paragraph of this Agreement and includes any successor to the Administrative Agent appointed pursuant to ‎Section 9.11.

 

 

 

 

Affected Financial Institution” means (i) any EEA Financial Institution or (ii) any UK Financial Institution.

 

Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person, or, in the case of any Lender that is an investment fund, the investment advisor thereof and any investment fund having the same investment advisor. A Person shall be deemed to control a second Person if such first Person possesses, directly or indirectly, the power (i) to vote 10% or more of the securities having ordinary voting power for the election of directors or managers of such second Person or (ii) to direct or cause the direction of the management and policies of such second Person, whether through the ownership of voting securities, by contract or otherwise. Notwithstanding the foregoing, (i) the Permitted Holders shall be deemed to be Affiliates of the Credit Parties and their Subsidiaries and (ii) neither the Administrative Agent nor any Lender shall in any event be considered an Affiliate of Holdings, the Borrower or any of its Subsidiaries.

 

Aggregate Credit Facility Exposure” means, at any time, the sum of (i) the Aggregate Revolving Facility Exposure at such time, (ii) the principal amount of Swing Loans outstanding at such time, and (iii) the aggregate principal amount of the Term Loans outstanding at such time.

 

Aggregate Revolving Facility Exposure” means, at any time, the sum of (i) the aggregate principal amount of all Revolving Loans made by all Lenders and outstanding at such time and (ii) the aggregate amount of the LC Outstandings at such time.

 

Agreement” means this Credit Agreement, including any exhibits or schedules, as the same may from time to time be amended, restated, amended and restated, supplemented or otherwise modified.

 

Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to Holdings, the Borrower or any Subsidiary from time to time concerning or relating to anti-money laundering, bribery or corruption, including the United States Foreign Corrupt Practices Act of 1997 and the UK Bribery Act 2010.

 

Anti-Terrorism Law” means the USA Patriot Act or any other law pertaining to the prevention of future acts of terrorism, in each case as such law may be amended from time to time.

 

Applicable Lending Office” means, with respect to each Lender, the office designated by such Lender to the Administrative Agent as such Lender’s lending office for all purposes of this Agreement. A Lender may have a different Applicable Lending Office for Base Rate Loans and Term SOFR Loans.

 

Applicable Margin” means:

 

(i) On the First Amendment Effective Date and thereafter, until changed in accordance with clause (ii) below,

 

(a) the Administrative Agent shall determine the Applicable Margin and the Commitment Fee in accordance with the following matrix, based on Liquidity:

 

Liquidity Amount  Applicable
Margin for
Base Rate
Loans
   Applicable
Margin for
Term SOFR
Loans
   Commitment
Fee
 
Greater than or equal to the Liquidity Threshold   3.75%   4.75%   0.50%
Less than the Liquidity Threshold   8.00%   9.00%   0.50%

 

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As used in this clause (i)(a), Liquidity Threshold for the applicable period shall mean the amounts opposite such dates in the matrix below:

 

Month Ending  Minimum
Liquidity
 
March 31, 2022  $15,000,000 
April 30, 2022  $10,000,000 
May 31, 2022  $35,000,000 
June 30, 2022  $35,000,000 
July 31, 2022 and thereafter  $40,000,000 

 

(b) Changes in the Applicable Margin and the Commitment Fee based upon changes in the Liquidity shall become effective on the third Business Day following the receipt by the Administrative Agent of each Liquidity Certificate in accordance with Section 6.01(k), demonstrating the computation of Liquidity for the applicable month. Notwithstanding the foregoing provisions, during any period when (A) the Borrower has failed to timely deliver a Liquidity Certificate in accordance with Section 6.01(k), or (B) an Event of Default has occurred and is continuing, the Applicable Margin and the Commitment Fee shall be the highest percentage indicated therefor in the above matrix, regardless of Liquidity at such time. The above matrix does not modify or waive, in any respect, the rights of the Administrative Agent and the Lenders to charge any default rate of interest or any of the other rights and remedies of the Administrative Agent and the Lenders in accordance with the terms hereunder.

 

(c) In the event that any certificate delivered pursuant to Section 6.01(k) is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin or Commitment Fee for any period (any such period, an “Applicable Period (Liquidity)”) than the Applicable Margin and the Commitment Fee actually applied for such Applicable Period (Liquidity), then (i) the Borrower shall immediately deliver to the Administrative Agent a corrected Liquidity Certificate for such Applicable Period (Liquidity), (ii) the Applicable Margin and the Commitment Fee shall be determined as if such corrected, higher Applicable Margin and Commitment Fee were applicable for such period, and (iii) the Borrower shall immediately pay to the Administrative Agent the accrued additional interest and fees owing as a result of such higher Applicable Margin and Commitment Fee for such Applicable Period (Liquidity).

 

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(ii) Commencing with the fiscal quarter of the Borrower for which the Borrower provides a Compliance Certificate in accordance with Section 6.10(c), demonstrating a Consolidated Leverage Ratio of less than 3.00:1.00, and continuing with each fiscal quarter thereafter:

 

(a) The Administrative Agent shall determine the Applicable Margin and the Commitment Fee in accordance with the following matrix, based on the Consolidated Leverage Ratio; provided that, the Applicable Margin and the Commitment Fee shall be determined based on the Consolidated Net Leverage Ratio if no Revolving Borrowings were outstanding for the 30-day period immediately prior to the end of such applicable Testing Period:

 

Applicable Leverage Ratio  Applicable
Margin for
Base Rate
Loans
   Applicable
Margin for
Term SOFR
Loans
   Commitment
Fee
 
Greater than or equal to 2.50 to 1.00   2.75%   3.75%   0.50%
Greater than or equal to 2.00 to 1.00 but less than 2.50 to 1.00   2.50%   3.50%   0.375%
Less than 2.00 to 1.00   2.00%   3.00%   0.25%

 

(b) Changes in the Applicable Margin and the Commitment Fee based upon changes in the Consolidated Leverage Ratio shall become effective on the third Business Day following the receipt by the Administrative Agent pursuant to ‎Section 6.01(a) or ‎Section 6.01(b), as the case may be, of the financial statements of the Borrower for the Testing Period most recently ended, accompanied by a Compliance Certificate in accordance with ‎Section 6.01(c), demonstrating the computation of the Consolidated Leverage Ratio. Notwithstanding the foregoing provisions, during any period when (A) the Borrower has failed to timely deliver its consolidated financial statements referred to in ‎Section 6.01(a) or ‎Section 6.01(b), as applicable, accompanied by a Compliance Certificate in accordance with ‎Section 6.01(c), or (B) an Event of Default has occurred and is continuing, the Applicable Margin and the Commitment Fee shall be the highest percentage indicated therefor in the above matrix, regardless of the Consolidated Leverage Ratio at such time. The above matrix does not modify or waive, in any respect, the rights of the Administrative Agent and the Lenders to charge any default rate of interest or any of the other rights and remedies of the Administrative Agent and the Lenders in accordance with the terms hereunder.

 

(c) In the event that any financial statement or certificate, as applicable, delivered pursuant to ‎Section 6.01(a), ‎(b) or ‎(c) is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin or Commitment Fee for any period (any such period, an “Applicable Period”) than the Applicable Margin and the Commitment Fee actually applied for such Applicable Period, then (i) the Borrower shall immediately deliver to the Administrative Agent a corrected certificate for such Applicable Period, (ii) the Applicable Margin and the Commitment Fee shall be determined as if such corrected, higher Applicable Margin and Commitment Fee were applicable for such period, and (iii) the Borrower shall immediately pay to the Administrative Agent the accrued additional interest and fees owing as a result of such higher Applicable Margin and Commitment Fee for such Applicable Period.

 

Applicable Period” has the meaning provided to such term in subpart (ii)(c) of the definition of “Applicable Margin.”

 

Approved Bank” has the meaning provided in subpart (ii) of the definition of “Cash Equivalents.”

 

Approved Fund” means a fund that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit and that is administered or managed by a Lender or an Affiliate of a Lender or its investment advisor. With respect to any Lender, an Approved Fund shall also include any swap, special purpose vehicle purchasing or acquiring security interests in collateralized loan obligations or any other vehicle through which such Lender may leverage its investments from time to time.

 

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Arrangers” means KeyBanc Capital Markets Inc., BMO Capital Markets Corp., FifthThird Bank, National Association, Silicon Valley Bank, Truist Securities, Inc. and Wells Fargo Securities, LLC, in each case, in their respective capacity as a lead arranger and bookrunner.

 

Asset Sale” means, with respect to any Person, the sale, lease, transfer or other disposition (including by means of Sale and Lease-Back Transactions, and by means of mergers, consolidations, statutory divisions, amalgamations and liquidations of a corporation, partnership or limited liability company of the interests therein of such Person) by such Person to any other Person of any of such Person’s assets, provided that the term Asset Sale specifically excludes (i) any sales, transfers or other dispositions of inventory, or obsolete, worn-out or excess furniture, fixtures, equipment or other property, real or personal, tangible or intangible, in each case in the ordinary course of business, and (ii) any disposition or series of related dispositions for fair market value that yield gross proceeds of less than $250,000.

 

Assignment Agreement” means an Assignment Agreement substantially in the form of Exhibit G hereto or such other agreement acceptable to the Administrative Agent.

 

Authorized Officer” means, with respect to any Person, any of the following officers: the President, the Chief Executive Officer, the Chief Legal Officer, the Chief Financial Officer, the Treasurer or the Assistant Treasurer, or such other officer of such Person as is authorized in writing to act on behalf of such Person. Unless otherwise qualified, all references herein to an Authorized Officer shall refer to an Authorized Officer of the Borrower.

 

Available Amount” means, at any date, an aggregate amount determined on a cumulative basis equal to:

 

(a) $2,500,000; plus

 

(b) the amount (which shall not be less than zero) of Excess Cash Flow (if any) not required to be applied towards repayment of the Loans pursuant to Section 2.13(c)(iv) (but excluding the amount of any voluntary repayments, prepayments or redemptions made during such fiscal year that are applied to reduce the amount of such required prepayment in accordance with Section 2.13(c)(iv)), determined for the period (taken as one accounting period) commencing with the fiscal year ending December 31, 2021 to the end of the most recently completed fiscal year in respect of which a Compliance Certificate has been delivered as required hereunder; plus

 

(c) the cash proceeds of any Permitted Equity Issuance after the Closing Date; plus

 

(d) any Declined Amounts; less

 

(e) the portion of the Available Amount that is applied from time to time to make Investments or payments of Subordinated Indebtedness to the extent permitted hereunder.

 

At any time the Borrower utilizes the Available Amount, the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer certifying as to (i) compliance with the conditions for usage of the Available Amount, as applicable, and (ii) the calculation of the Available Amount both prior to and immediately after giving effect to its usage.

 

Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement, or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.09(i)(iv).

 

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Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

 

Bail-In Legislation” means (i) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (ii) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

Banking Services Obligations” means all obligations of the Credit Parties, whether absolute or contingent, and howsoever and whensoever created, arising, evidenced or acquired in connection with the provision of commercial credit cards, stored value cards, or treasury management services (including controlled disbursement automated clearinghouse transactions, return items, overdrafts, netting and interstate depository network services) by any Lender (or any Affiliate of a Lender) to any Credit Party or by any Person that was a Lender (or an Affiliate of a Lender) at the time such obligation was created.

 

Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto, as hereafter amended.

 

Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (i) the Federal Funds Rate plus 0.50%, (ii) the rate of interest in effect for such day as established from time to time by the Administrative Agent as its “prime rate”, whether or not publicly announced, which interest rate may or may not be the lowest rate charged by it for commercial loans or other extensions of credit, (iii) the Adjusted Term SOFR Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00% and (iv) 1.50%. Any change in the Base Rate due to a change in the prime rate, the Federal Funds Effective Rate or Adjusted Term SOFR shall be effective from and including the effective date of such change in the prime rate, the Federal Funds Effective Rate or Adjusted Term SOFR, respectively.

 

Base Rate Loan” means any Loan bearing interest at a rate based upon the Base Rate in effect from time to time.

 

Benchmark” means, initially, with respect to any Term SOFR Loan, Term SOFR; provided that if a Benchmark Transition Event has occurred with respect to the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.09(i).

 

Benchmark Replacement” means, with respect to any Benchmark Transition Event for the then-current Benchmark, the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for such Benchmark giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for syndicated credit facilities denominated in U.S. Dollars at such time and (ii) the related Benchmark Replacement Adjustment, if any; provided that, if such Benchmark Replacement as so determined would be less than the Term SOFR Floor, such Benchmark Replacement will be deemed to be the Term SOFR Floor for the purposes of this Agreement and the other Loan Documents.

 

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Benchmark Replacement Adjustment” means, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), if any, that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. Dollar denominated syndicated credit facilities.

 

Benchmark Replacement Date” means the earlier to occur of the following events with respect to the then-current Benchmark:

 

(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or

 

(b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative or non-compliant with or non-aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

 

For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

Benchmark Transition Event” means, with respect to the then-current Benchmark, the occurrence of one or more of the following events with respect to such Benchmark:

 

(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

 

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(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

 

(c) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.

 

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

 

Benchmark Transition Start Date” means, with respect to any Benchmark, in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).

 

Benchmark Unavailability Period” means, with respect to any then-current Benchmark, the period (if any) (i) beginning at the time that a Benchmark Replacement Date with respect to such Benchmark pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.09(h) and (ii) ending at the time that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.09(i).

 

Beneficial Owner” means (i) each individual, if any, who, directly or indirectly, owns 25% or more of Holdings’ Equity Interests, (ii) each individual, if any, who, directly or indirectly, owns 25% or more of the Borrower’s Equity Interests, and (iii) a single individual with significant responsibility to control, manage or direct Holdings or the Borrower.

 

Benefited Creditors” means, with respect to the Borrower Guaranteed Obligations pursuant to Article ‎X, each of the Administrative Agent, the Lenders, each LC Issuer and the Swing Line Lender and each Designated Hedge Creditor and each person providing Designated Banking Services Obligations, and the respective successors and assigns of each of the foregoing.

 

Borrower” has the meaning provided in the first paragraph of this Agreement.

 

Borrower Guaranteed Obligations” has the meaning provided in ‎Section 10.01.

 

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Borrowing” means a Revolving Borrowing, a Term Borrowing or the incurrence of a Swing Loan.

 

Business Day” means (i) any day other than Saturday, Sunday or any other day on which commercial banks in Cleveland, Ohio or New York, New York are authorized or required by law to close and (ii) with respect to any matters relating to Term SOFR Loans, a SOFR Business Day.

 

Capital Distribution” means, with respect to any Person, a payment made, liability incurred or other consideration given for the purchase, acquisition, repurchase, redemption or retirement of any Equity Interest of such Person or as a dividend, return of capital or other distribution in respect of any of such Person’s Equity Interests.

 

Capital Expenditures” means, without duplication, (i) any expenditure or commitment to expend money for any purchase or other acquisition of any asset including capitalized leasehold improvements, which would be classified as a fixed or capital asset on a consolidated balance sheet of Holdings, the Borrower and its Subsidiaries prepared in accordance with GAAP, and (ii) Capitalized Lease Obligations and Synthetic Lease Obligations, but excluding (a) expenditures made in connection with the replacement, substitution or restoration of property pursuant to Section 2.13(c)(viii), (b) the purchase price of equipment that is purchased substantially contemporaneously with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time and (c) Permitted Acquisitions.

 

Capital Lease” as applied to any Person means any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, should be accounted for as a capital lease or financing lease on the balance sheet of that Person.

 

Capitalized Lease Obligations” means, with respect to any Person, all obligations under Capital Leases of such Person, without duplication, in each case taken at the amount thereof accounted for as liabilities identified as “capital lease obligations” (or any similar words) on a consolidated balance sheet of such Person prepared in accordance with GAAP.

 

Cash Collateralize” means, (i) to deposit into a cash collateral account maintained with (or on behalf of) the Administrative Agent, and under the sole dominion and control of the Administrative Agent, or (ii) to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the LC Issuers or Lenders, as collateral for LC Outstandings or obligations of Lenders to fund participations in respect of LC Outstandings, cash or deposit account balances in each case, in an amount equal to 103% of such obligations or, if the Administrative Agent and each applicable LC Issuer shall agree in their sole discretion, other credit support; in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and each applicable LC Issuer. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 

Cash Dividend” means a Capital Distribution by a Person payable in cash to the holders of Equity Interests of such Person with respect to any class or series of Equity Interest of such Person.

 

Cash Equivalents” means any of the following:

 

(i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition;

 

(ii) U.S. dollar denominated time deposits, certificates of deposit and bankers’ acceptances of (x) any Lender, (y) any commercial bank of recognized standing organized under the laws of the United States (or any state thereof or the District of Columbia) and having capital and surplus in excess of $500,000,000 or (z) any commercial bank (or the parent company of such bank) of recognized standing organized under the laws of the United States (or any state thereof or the District of Columbia) and whose short-term commercial paper rating from S&P is at least A-1, A-2 or the equivalent thereof or from Moody’s is at least P-1, P-2 or the equivalent thereof (any such bank, an “Approved Bank”), in each case with maturities of not more than 365 days from the date of acquisition;

 

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(iii) commercial paper and variable or fixed rate notes issued by any Lender or Approved Bank or by the parent company of any Lender or Approved Bank and commercial paper or any variable rate note issued by, or guaranteed by, any industrial or financial company with a short-term commercial paper rating of at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s, or guaranteed by any industrial company with a long-term unsecured debt rating of at least A or A2, or the equivalent of each thereof, from S&P or Moody’s, as the case may be, and in each case maturing within 270 days after the date of acquisition;

 

(iv) fully collateralized repurchase agreements entered into with any Lender or Approved Bank having a term of not more than 30 days and covering securities described in clause (i) above;

 

(v) investments funds investing at least 95% of their assets in securities of the types described in clauses (i) through (iv) above;

 

(vi) investments in money market funds access to which is provided as part of “sweep” accounts maintained with a Lender or an Approved Bank;

 

(vii) investments in industrial development revenue bonds that (A) “re-set” interest rates not less frequently than quarterly, (B) are entitled to the benefit of a remarketing arrangement with an established broker dealer, and (C) are supported by a direct pay letter of credit covering principal and accrued interest that is issued by an Approved Bank; and

 

(viii) investments in pooled funds or investment accounts consisting of investments of the nature described in the foregoing clause (vii).

 

Cash Proceeds” means, with respect to (i) any Asset Sale, the aggregate cash payments (including any cash received by way of deferred payment pursuant to a note receivable issued in connection with such Asset Sale, other than the portion of such deferred payment constituting interest, but only as and when so received) received by Holdings, the Borrower or any Subsidiary from such Asset Sale, (ii) any Event of Loss, the aggregate cash payments, including all insurance proceeds and proceeds of any award for condemnation or taking, received in connection with such Event of Loss and (iii) the issuance or incurrence of any Indebtedness, the aggregate cash proceeds received by Holdings, the Borrower or any Subsidiary in connection with the issuance or incurrence of such Indebtedness.

 

CBA” means CME Group Benchmark Administration Ltd.

 

CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same may be amended from time to time, 42 U.S.C. § 9601 et seq.

 

CFC” means a Subsidiary that is a controlled foreign corporation under the Code.

 

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CFC Holdco” means any Subsidiary with no material operations and no material assets other than capital stock of and/or indebtedness incurred by one or more CFCs.

 

Change in Control” means:

 

(i) any “person” or “group” (as those terms are used in Section 13(d)(3) of the 1934 Act, it being agreed that an employee of Holdings or any of its Subsidiaries for whom shares are held under an employee stock ownership, employee retirement, employee savings or similar plan and whose shares are voted in accordance with the instructions of such employee shall not be a member of a “group” (as that term is used in Section 13(d)(3) of the 1934 Act) solely because such employee’s shares are held by a trustee under said plan), other than the Permitted Holders, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the 1934 Act), directly or indirectly, of Equity Interests of Holdings (or other securities convertible into such Equity Interests) representing 35% or more of the combined voting power of all Equity Interests of Holdings entitled (without regard to the occurrence of any contingency) to vote for the election of members of the Board of Directors of Holdings;

 

(ii) occupation of a majority of the seats (other than vacant seats) on the board of directors of Holdings by Persons who were neither (i) nominated or approved by the board of directors of Holdings nor (ii) appointed by directors so nominated or approved;

 

(iii) other than the Series B shares issued and outstanding as of the First Amendment Effective Date (except to the extent any are repurchased, retired or otherwise acquired pursuant to Section 7.06(e)(ii)), Holdings fails to directly own 100% of the Equity Interests of the Borrower or fails to control directly 100% of the Equity Interests of the Borrower;

 

(iv) the Series B Holders assign or transfer any of the Equity Interests of the Borrower to any Person other than as permitted under the Organizational Documents of Holdings as in effect on the date hereof or as modified as agreed to by the Required Lenders;

 

(v) except in connection with a transaction permitted by Section 7.05, the Borrower fails to own and control, directly or indirectly, 100% of the Equity Interests of each other Credit Party other than Holdings (or if such Subsidiary becomes a Credit Party after the Closing Date, the amount owned and controlled, directly or indirectly, as of the date such Subsidiary becomes a Credit Party); or

 

(vi) the occurrence of any “Change in Control” (or any similar or like term) as defined in any indenture, agreement, note or similar document governing or evidencing Material Indebtedness or Equity Interests of Holdings or the Borrower.

 

Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (iii) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

Charges” has the meaning provided in ‎Section 11.23.

 

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CIP Regulations” has the meaning provided in ‎Section 9.07.

 

Claims” has the meaning set forth in the definition of “Environmental Claims.”

 

Closing Certificate” means a certificate substantially in the form of Exhibit F attached hereto.

 

Closing Date” means September 3, 2020.

 

Code” means the Internal Revenue Code of 1986, as amended from time to time. Section references to the Code are to the Code as in effect at the Closing Date and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.

 

Collateral” means the “Collateral” as defined in the Security Agreement, together with any other collateral (whether Real Property or personal property) covered by any Security Document.

 

Collateral Assignment” means a collateral assignment agreement, in form and substance reasonably acceptable to the Administrative Agent, pursuant to which, in connection with any Permitted Acquisition, the applicable Credit Party, among other things, collaterally assigns its rights and benefits under the applicable documentation related to the Permitted Acquisition to the Administrative Agent.

 

Commercial Letter of Credit” means any letter of credit or similar instrument issued for the purpose of providing the primary payment mechanism in connection with the purchase of materials, goods or services in the ordinary course of business.

 

Commitment” means, with respect to each Lender, (i) its Revolving Commitment or (ii) its Term Commitment, if any, or, in the case of such Lender, all of such Commitments.

 

Commitment Fees” has the meaning provided in ‎Section 2.11(a).

 

Commodities Hedge Agreement” means a commodities contract purchased by Holdings, the Borrower or any of its Subsidiaries in the ordinary course of business, and not for speculative purposes, with respect to raw materials necessary to the manufacturing or production of goods in connection with the business of Holdings, the Borrower and its Subsidiaries.

 

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

Communications” has the meaning provided in ‎Section 9.15(a).

 

“Competitor” means any Person described in clause (b) of the definition of Disqualified Institution.

 

Compliance Certificate” has the meaning provided in ‎Section 6.01(c).

 

Confidential Information” has the meaning provided in ‎Section 11.15(b).

 

Conforming Changes” means, with respect to either the use or administration of Term SOFR, or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “SOFR Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 3.02 and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

 

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Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

Consideration” means, in connection with an Acquisition, the aggregate consideration paid, including borrowed funds, cash, the issuance of securities or notes, the assumption or incurring of liabilities (direct or contingent), the payment of consulting fees (excluding any fees payable to any investment banker or advisors in connection with such Acquisition) or fees for a covenant not to compete and any other consideration paid.

 

Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) made by Holdings and its Subsidiaries to acquire or lease (pursuant to a Capital Lease) fixed or capital assets, or additions to equipment (including replacements, capitalized repairs and improvements during such period).

 

Consolidated Depreciation and Amortization Expense” means, for any period, all depreciation and amortization expenses of Holdings and its Subsidiaries, all as determined for Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP.

 

Consolidated EBITDA” means, for any period:

 

(i)Consolidated Net Income for the most recently completed Testing Period, plus

 

(ii)without duplication, the sum of the amounts for such period included in determining such Consolidated Net Income of:

 

(a)Consolidated Income Tax Expense,

 

(b)Consolidated Interest Expense,

 

(c)Consolidated Depreciation and Amortization Expense,

 

(d)the amount of any non-recurring restructuring charge or retention, severance or integration costs or other non-recurring business optimization expense or cost incurred in connection with any Permitted Acquisition, in each case, to the extent incurred within twelve months of the closing of such Acquisition; provided that amounts added-back to Consolidated EBITDA in reliance on this clause (d) and on clause (h) below, in an aggregate basis, shall not, exceed 15% of Consolidated EBITDA (determined prior to giving effect to such add-backs) in any four consecutive fiscal quarter period,

 

(e)other non-cash charges (including, without limitation, any non-cash loss attributable to the mark-to-market movement in the valuation of hedging obligations or warrant obligations (to the extent the cash impact resulting from such loss has not been realized), and non-cash stock based compensation expenses, but excluding any such noncash charges to the extent that it represents an accrual or reserve for potential cash items in any future period or amortization of a prepaid cash item that was paid in a prior period),

 

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(f)proceeds of business interruption insurance received in cash during such period,

 

(g)transaction costs, expenses or charges (other than depreciation or amortization expenses) related to any equity offering, sale, redemption or repurchase of equity interest, non-ordinary course Asset Sale, Permitted Acquisition or similar Investment, in each case, permitted hereunder, or the incurrence or amendment of Indebtedness permitted to be incurred hereunder (in each case, whether or not successful, and including the Transactions),

 

(h)pro forma “run rate” cost savings, operating expense reductions and synergies, in each case, related to Permitted Acquisitions consummated by the Borrower or any of its Subsidiaries that are factually supportable and reasonably identifiable and are projected by the Borrower in good faith (and certified by the Chief Financial Officer of Borrower in reasonable detail) to result from actions taken or expected to be taken (in the good faith determination of Borrower) within twelve months after the date any such transaction is consummated, and in each case to the extent reasonably expected to be realized within such twelve month period; provided that amounts added-back to Consolidated EBITDA in reliance on this clause (h) and on clause (d) above, in an aggregate basis (including any such amounts that would be permitted to be included in financial statements prepared in accordance with Regulation S-X, but excluding any such amounts relating to the Transactions and/or any transaction consummated prior to the Closing Date), shall not, exceed 15% of Consolidated EBITDA (determined prior to giving effect to such add-backs) in any four consecutive fiscal quarter period,

 

(i)costs and expenses in connection with pre-opening and opening of any retail location or showroom in an amount not to exceed $200,000 per any such location or showroom, and

 

(j)costs, expenses or charges with respect to preparation of filings made with the SEC, defense of third party litigation and/or executive search fees and costs and expenses associated with a new executive level position, in an aggregate amount not to exceed $1,000,000 for any Testing Period; less

 

(iii)without duplication, the sum of the amounts for such period included in determining such Consolidated Net Income of:

 

(a)interest income (except to the extent deducted in determining Consolidated Interest Expense),

 

(b)any non-cash gains, and

 

(c)any federal, state, local, and foreign income tax credits;

 

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provided, however, that Consolidated EBITDA of Holdings and its Subsidiaries for any Testing Period shall (y) include the Consolidated EBITDA for any Person or business unit that has been acquired by Holdings or any of its Subsidiaries for any portion of such Testing Period prior to the date of acquisition, so long as such Consolidated EBITDA has been verified by appropriate audited financial statements or other financial statements reasonably acceptable to the Administrative Agent and (z) exclude the Consolidated EBITDA for any Person or business unit that has been disposed of by Holdings or any of its Subsidiaries, for the portion of such Testing Period prior to the date of disposition.

 

Consolidated Fixed Charges” means, for any period, as determined on a consolidated basis and in accordance with GAAP, without duplication, the aggregate of (i) Consolidated Interest Expense (excluding any interest that is paid-in-kind and other non-cash interest payments or adjustments), (ii) scheduled principal payments on Indebtedness due in the twelve months preceding the measurement date (which for the avoidance of doubt shall not include prepayments of the Revolving Loans or other optional or mandatory prepayments required under Section 2.13(a) or (c), except, in each case, if such prepayment is accompanied with a termination of the Revolving Commitments), (iii) Capital Distributions made in cash (other than distributions made in cash under Section 7.06(d) for Taxes) made by the Borrower in respect of its common stock during such period, (iv) unfinanced (and not financed by revolving Indebtedness) Consolidated Maintenance Capital Expenditures of Holdings, the Borrower and its Subsidiaries during such period, and (v) cash payments in respect of Taxes (including, without duplication, cash payments made or required to be made by Holdings and its Subsidiaries pursuant to the Tax Receivables Agreement, distributions made in cash under Section 7.06(d) for Taxes and federal, state, local and foreign income taxes) made during such period (net of any cash refund in respect of income taxes actually received by Holdings, the Borrower and its Subsidiaries during such period).

 

Consolidated Income Tax Expense” means, for any period, all provisions for taxes based on income, profits or capital of Holdings and its Subsidiaries, including, without limitation, federal, state, franchise, excise and similar taxes and foreign withholding taxes paid or accrued during such period including penalties and interest related to such taxes or arising from any tax examinations.

 

Consolidated Interest Expense” means with respect to Holdings and its Subsidiaries on a consolidated basis, for any Testing Period, interest expense in accordance with GAAP, adjusted, to the extent not included, to include without duplication (i) interest expense attributable to Capitalized Leases, (ii) gains and losses on hedging or other derivatives to hedge interest rate risk, (iii) fees and costs related to letters of credit, bankers’ acceptance financing, surety bonds and similar financings, and (iv) amortization or write-off of deferred financing fees, debt issuance costs, debt discount or premium, terminated hedging obligations and other commissions, financing fees and expenses and, adjusted, to the extent included, to exclude (i) interest income and (ii) any refunds or similar credits received in connection with the purchasing or procurement of goods or services under any purchasing card or similar program.

 

Consolidated Leverage Ratio” means, for any Testing Period, the ratio of (i) Consolidated Total Debt to (ii) Consolidated EBITDA; provided that, solely for purposes of Section 7.07, for the period ending (x) September 30, 2022, Consolidated EBITDA in the denominator shall only consist of Consolidated EBITDA for the fiscal quarter then ended, and (y) December 31, 2022, Consolidated EBITDA in the denominator shall only consist of Consolidated EBITDA for the fiscal quarters ended September 30, 2022 and December 31, 2022.

 

Consolidated Maintenance Capital Expenditures” means, for any period, (x) Capital Expenditures of Holdings, the Borrower and its Subsidiaries less (y) Growth Capital Expenditures.

 

Consolidated Net Leverage Ratio” means, for any Testing Period, the ratio of (i) Consolidated Net Total Debt to (ii) Consolidated EBITDA.

 

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Consolidated Net Income” means for any period, the net income (or loss) of Holdings, the Borrower and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP; provided, that there shall be excluded (a) the income (or loss) of any Person (other than a Subsidiary of Holdings) in which any other Person (other than Holdings or any of its Subsidiaries) has a joint interest (provided that Consolidated Net Income shall be increased by the amount of dividends or other distributions actually paid in cash or Cash Equivalents to any Credit Party by such other Person during such period), (b) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of Holdings or is merged into or consolidated with Holdings or any of its Subsidiaries or that Person’s assets are acquired by Holdings or any of its Subsidiaries, (c) the income (or loss) of any Subsidiary of Holdings to the extent that the declaration or payment of dividends or similar distributions or other payment by that Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any material agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary, (d) any after-Tax gains or losses attributable to asset sales outside the ordinary course of business or returned surplus assets of any Plan and (e) to the extent not included in clauses (a) through (d) above, any extraordinary gains or extraordinary losses.

 

Consolidated Net Working Capital” means current assets (excluding cash and Cash Equivalents), minus current liabilities, all as determined for Holdings, the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.

 

Consolidated Net Total Debt” means, as at any date of determination, Consolidated Total Debt, less the lesser of (x) $25,000,000, and (y) the amount of cash and Cash Equivalents of the Credit Parties subject to Control Agreements in favor of the Administrative Agent (it being understood that for the first ninety (90) days after the Closing Date, Borrower shall be permitted to net unrestricted cash and Cash Equivalents not subject to a first priority perfected lien in favor of the Administrative Agent for purposes of calculating the Consolidated Net Leverage Ratio).

 

Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of Holdings, the Borrower and its Subsidiaries of the type described in clauses (i) through (iii), clause (iv) (solely to the extent of any unreimbursed obligations), clause (v) (solely to the extent of any unreimbursed obligations), clause (vi), clause (vii), clause (ix) and clause (xii) of the definition of the term “Indebtedness” (or, if higher, the par value or stated face amount of all such Indebtedness), and with respect to any Indebtedness of the type described by the foregoing, (without duplication) any guarantee of such type of Indebtedness, determined on a consolidated basis as of such date in accordance with GAAP.

 

Continue,” “Continuation” and “Continued” each refers to a continuation of a Term SOFR Loan for an additional Interest Period as provided in ‎Section 2.10.

 

Control Agreements” has the meaning set forth in the Security Agreement.

 

Convert,” “Conversion” and “Converted” each refers to a conversion of Loans of one Type into Loans of another Type.

 

Covenant Amendment Period” means the period commencing as of the First Amendment Effective Date and ending as of the fifth (5th) Business Day after the date on which the Borrower delivers a Compliance Certificate to the Administrative Agent pursuant to Section 6.01(c) demonstrating a Consolidated Leverage Ratio (without giving effect to the proviso set forth in the definition thereof) of less than 2.00:1.00 for two consecutive fiscal quarters.

 

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Credit Event” means the making of any Borrowing, any Conversion or Continuation or any LC Issuance.

 

Credit Facility” means the credit facility established under this Agreement pursuant to which (i) the Lenders shall make Revolving Loans to the Borrower, and shall participate in LC Issuances, under the Revolving Facility pursuant to the Revolving Commitment of each such Lender, (ii) each Lender with a Term Commitment shall make a Term Loan to the Borrower pursuant to such Term Commitment of such Lender, (iii) the Swing Line Lender shall make Swing Loans to the Borrower under the Swing Line Facility pursuant to the Swing Line Commitment, and (iv) each LC Issuer shall issue Letters of Credit for the account of the LC Obligors in accordance with the terms of this Agreement.

 

Credit Facility Exposure” means, for any Lender at any time, the sum of (i) such Lender’s Revolving Facility Exposure at such time, (ii) in the case of the Swing Line Lender, the principal amount of Swing Loans outstanding at such time, and (iii) the outstanding aggregate principal amount of the Term Loan made by such Lender, if any.

 

Credit Party” means the Borrower, Holdings or any other Guarantor.

 

Crossover Lender” means each holder of any Subordinated Indebtedness or any of such holder’s Affiliates.

 

Debtor Relief Laws” means the Bankruptcy Code and any other federal, state, provincial, or foreign bankruptcy or insolvency law, each as now and hereinafter in effect, any successors to such statutes, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise), judicial management, administration, examinership or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and any law permitting a debtor to obtain a stay or a compromise of the claims of its creditors (including any applicable corporate law relating to arrangements, reorganizations or restructuring which permits a debtor to seek a compromise or arrangement of a corporation’s debts or a stay of proceedings to enforce any claims of such corporation’s creditors against it).

 

Declined Amounts” has the meaning set forth in Section 2.13(f).

 

Declining Lender” has the meaning set forth in Section 2.13(f).

 

Default” means any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.

 

Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any LC Issuer, any Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any LC Issuer or Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, in each case, which is still in effect or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) upon delivery of written notice of such determination to the Borrower, each LC Issuer, each Swing Line Lender and each Lender.

 

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Default Rate” means, for any day, (i) with respect to any Loan, a rate per annum equal to 2% per annum above the interest rate that is or would be applicable from time to time to such Loan pursuant to ‎Section 2.09(a) or ‎Section 2.09(b), as applicable and (ii) with respect to any other amount, a rate per annum equal to 2% per annum above the rate that would be applicable to Revolving Loans that are Base Rate Loans pursuant to ‎Section 2.09(a).

 

Designated Banking Services Obligations” means any Banking Services Obligations evidenced by an agreement to which Holdings, the Borrower or any of its Subsidiaries is a party and as to which a Lender or any of its Affiliates is a counterparty that, pursuant to a written instrument signed by the Borrower and the Administrative Agent, has been designated as a Designated Banking Services Obligations and will be entitled to share in the benefits of the Guaranty and the Security Documents.

 

Designated Hedge Agreement” means any Hedge Agreement (other than a Commodities Hedge Agreement) to which Holdings, the Borrower or any of its Subsidiaries is a party and as to which a Lender or any of its Affiliates (or a Person who was a Lender or an Affiliate of a Lender at the time of execution and delivery of such Hedge Agreement) is a counterparty that, pursuant to a written instrument signed by the Administrative Agent, has been designated as a Designated Hedge Agreement so that Holdings’, Borrower’s or such Subsidiary’s counterparty’s credit exposure thereunder will be entitled to share in the benefits of the Guaranty and the Security Documents to the extent the Guaranty and such Security Documents provide guarantees or security for creditors of Holdings, the Borrower or any Subsidiary under Designated Hedge Agreements.

 

Designated Hedge Creditor” means each Secured Hedge Provider that participates as a counterparty to any Credit Party pursuant to any Designated Hedge Agreement with such Secured Hedge Provider.

 

Disqualified Equity Interests” means any Equity Interest that (a) by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to one hundred and eighty (180) days after the Term Loan Maturity Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or other Indebtedness or (ii) any Equity Interest referred to in clause (a) above, in each case at any time on or prior to one hundred and eighty (180) days after the Term Loan Maturity Date, (c) contains any repurchase obligation that may come into effect prior to payment in full of all Obligations, (d) requires cash dividend payments prior to one hundred and eighty (180) days after the Term Loan Maturity Date, or (e) provides the holders of such Equity Interests with any rights to receive any cash upon the occurrence of a change of control prior to one hundred and eighty (180) days after the date on which the Obligations have been irrevocably paid in full in cash (other than contingent obligations for which no claim has been made), unless, in any case, the rights to receive such cash are contingent upon the Obligations being irrevocably paid in full in cash (other than contingent obligations for which no claim has been made).

 

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Disqualified Institution” means, on any date, (a) any Person designated by the Borrower as a “Disqualified Institution” by written notice delivered to the Administrative Agent prior to the Closing Date, (b) any Person that (x) is engaged in manufacturing, wholesale or retailing of bedding or comfort related products or any of their Affiliates, in each case, specifically identified by name and designated by the Borrower as a “Disqualified Institution” by written notice to the Administrative Agent and the Lenders (including by posting such notice to the Platform) not less than five (5) Business Days prior to such date or (y) is engaged in a business classified under NAICS code 337910, and (c) any reasonably identifiable Affiliate of any Person referred to in the foregoing clauses (a) and (b) on the basis of the name of such Affiliate containing the name of such Person; provided, (i) a Competitor or an Affiliate of a Competitor shall not include any Person that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business and (ii) “Disqualified Institution” shall exclude any Person that the Borrower has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent from time to time.

 

Dollars,” “U.S. Dollars” and the sign “$” each means lawful money of the United States.

 

Domestic Subsidiary” means any Subsidiary organized under the laws of the United States, any State thereof, or the District of Columbia.

 

DQ List” has the meaning set forth in Section 11.06(g).

 

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.

 

EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

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Eligible Assignee” means (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund, and (iv) any other Person (other than a natural Person) approved by (A) the Administrative Agent, (B) in the case of an assignment of a Revolving Commitment, each LC Issuer, and (C) unless a Specified Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed (and the Borrower shall be deemed to have consented if it fails to object to any assignment within five Business Days after it received written notice thereof)); provided, however, no such approval of the Administrative Agent or the Borrower shall be required in connection with assignments to any Lender or any Affiliate thereof; and, provided further, that notwithstanding the foregoing, “Eligible Assignee” shall not include (x) Holdings or the Borrower or any of their Affiliates or Subsidiaries, (y) any holder of any Subordinated Indebtedness or any of such holder’s Affiliates, or (z) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (z). For the avoidance of doubt, any Disqualified Institution is subject to Section 11.06(g).

 

Eligible Participant” means (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund, (iv) any commercial bank (or the parent company of such bank), insurance company or any company engaged in the business of making commercial loans and (v) any other Person (other than a natural Person) approved by (A) the Administrative Agent, (B) each LC Issuer, (C) each Swing Line Lender and (D) unless a Default or Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed (and the Borrower shall be deemed to have consented thereto if it fails to object to any participation within five Business Days after it received written notice thereof)); provided, however, that notwithstanding the foregoing, “Eligible Participant” shall not include (x) Holdings or the Borrower or any of their Affiliates or Subsidiaries, (y) any holder of any Subordinated Indebtedness or any of such holder’s Affiliates or (z) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (z).

 

Environmental Claims” means any and all global, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of non-compliance or violation, investigations or proceedings relating in any way to any Environmental Law or any permit issued under any such law (hereafter “Claims”), including, without limitation, (i) any and all Claims by any Governmental Authority for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from the storage, treatment or Release (as defined in CERCLA) of any Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the environment.

 

Environmental Law” means any applicable Federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy and rule of common law now or hereafter in effect and in each case as amended, and any binding and enforceable judicial or global interpretation thereof, including any judicial or global order, consent, decree or judgment issued to or rendered against Holdings, the Borrower or any of its Subsidiaries relating to the protection of the environment or employee health and safety or Hazardous Materials, including, without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq., the Hazardous Material Transportation Act, 49 U.S.C. § 5101 et seq. and the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (to the extent it regulates occupational exposure to Hazardous Materials); and any state, provincial and local or foreign counterparts or equivalents, in each case as amended from time to time.

 

Environmental Liabilities and Costs” means all liabilities, monetary obligations, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigations and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any Environmental Claim which relate to any environmental condition or a release, use, handling, storage or treatment of Hazardous Materials by any Credit Party or a predecessor in interest from or on to (i) any property presently or formerly owned by any Credit Party or (ii) any facility which received Hazardous Materials generated by any Credit Party.

 

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Equity Interest” means with respect to any Person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or non-voting) of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited) or any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership, but in no event will Equity Interest include any debt securities convertible or exchangeable into equity unless and until actually converted or exchanged.

 

ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect at the Closing Date and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.

 

ERISA Affiliate” means each Person (as defined in Section 3(9) of ERISA), which together with Holdings or a Subsidiary of Holdings, would be deemed to be a “single employer” (i) within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(a)(14) or 4001(b)(i) of ERISA or (ii) as a result of Holdings or a Subsidiary of Holdings being or having been a general partner of such Person.

 

ERISA Event” means: (i) that a Reportable Event has occurred with respect to any Plan; (ii) with respect to any Single Employer Plan, the failure to meet the minimum funding standard of Section 412 of the Code (whether or not waived in accordance with Section 412(c) of the Code) or the failure to make by its due date a required installment under Section 430(j) of the Code; (iii) the institution of any steps by Holdings, the Borrower or any Subsidiary, any ERISA Affiliate, the PBGC or any other Person to terminate any Plan or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, a Plan; (iv) the institution of any steps by Holdings, the Borrower or any Subsidiary or any ERISA Affiliate to withdraw from any Multi-Employer Plan or Multiple Employer Plan, if such withdrawal could result in withdrawal liability (as described in Part 1 of Subtitle E of Title IV of ERISA or in Section 4063 of ERISA) in excess of $1,000,000; (v) a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA in connection with any Plan; (vi)  the cessation of operations at a facility of Holdings, the Borrower or any Subsidiary or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (vii) the conditions for imposition of a Lien under Section 303(a) of ERISA shall have been met with respect to a Plan; (viii) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 206(g) of ERISA; (ix) the insolvency of or commencement of reorganization proceedings with respect to a Multi-Employer Plan; or (x) the taking of any action by, or the threatening of the taking of any action by, the Internal Revenue Service, the Department of Labor or the PBGC with respect to any of the foregoing.

 

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

Event of Default” has the meaning provided in ‎Section 8.01.

 

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Event of Loss” means, with respect to any property, (i) the actual or constructive total loss of such property or the use thereof resulting from destruction, damage beyond repair, or the rendition of such property permanently unfit for normal use from any casualty or similar occurrence whatsoever, (ii) the destruction or damage of a portion of such property from any casualty or similar occurrence whatsoever, (iii) the condemnation, confiscation or seizure of, or requisition of title to or use of, any property, or (iv) in the case of any fixtures located upon a leasehold, the termination or expiration of such leasehold.

 

Excess Cash Flow” means, for any period, the excess of (i) Consolidated EBITDA for such period, minus (ii) the sum for such period without duplication of (A) Consolidated Interest Expense, (B) Consolidated Income Tax Expense, (C) Consolidated Capital Expenditures funded with Internally Generated Cash, (D) the increase (or decrease), if any, in Consolidated Net Working Capital, (E) scheduled or mandatory repayments, prepayments or redemptions of the principal of Indebtedness (and, as in the case of any revolving credit facility, so long as there is a permanent reduction in the commitment thereunder), (F) without duplication of any amount included under the preceding clause (E), scheduled payments representing the principal portion of Capitalized Leases and Synthetic Leases, (G) Restricted Payments by Holdings to the extent such Restricted Payment was permitted hereunder, (H) the amount of consideration paid in connection with a Permitted Acquisition (including, to the extent permitted to be paid hereunder, the subsequent cash payment of earn-outs in connection therewith, when paid) and other Investments in cash during such period to the extent that such consideration was financed with Internally Generated Cash and permitted under Section 7.05, (I) cash payments by Holdings and its Subsidiaries required to be paid in cash during such period in respect of long-term liabilities of Holdings and its Subsidiaries other than Indebtedness to the extent that such payments were made with Internally Generated Cash, (J) cash payments by Holdings and its Subsidiaries required to be paid in cash during such period pursuant to that certain Tax Receivables Agreement to the extent that such payments were made with Internally Generated Cash and (K) the amount related to items that were added to or not deducted from net income in calculating Consolidated EBITDA to the extent such items represented a cash payment by Holdings, the Borrower or any Subsidiary, on a consolidated basis during such period and to the extent permitted to be paid hereunder.

 

Exchange Agreement” means that certain Exchange Agreement dated as of February 2, 2018 by and among Holdings, the Borrower, InnoHold, LLC, a Delaware limited liability company, and any other Series B Holders that may from time to time become parties thereto.

 

Excluded Accounts” means any (i) payroll accounts, (ii) escrow accounts, (iii) trust accounts, (iv) employee benefit accounts, 401(k) accounts and pension fund accounts, (v) tax withholding accounts, and (vi) zero balance accounts.

 

Excluded Subsidiary” means (i) any Subsidiary not wholly-owned, directly or indirectly, by Holdings or the Borrower to the extent (but only so long as) it is prohibited by the terms of any contractual obligation (including pursuant to any Organizational Documents of such Subsidiary) from guaranteeing the Obligations or any other obligations or liabilities guaranteed pursuant to the terms of the Security Agreement; provided, that such contractual obligation is not and was not created in contemplation of this definition, (ii) any Subsidiary that is prohibited or restricted by applicable law, rule or regulation or from guaranteeing the Obligations or which would require consent, approval, license or authorization from any Governmental Authority to provide a guarantee unless such consent, approval, license or authorization has been received, after giving effect to the anti-assignment provision of the UCC and other applicable law, (iii) any CFC, (iv) any CFC Holdco, (v) any Subsidiary whose Equity Interests are owned directly or indirectly by a CFC or CFC Holdco, (vi) captive insurance companies, and (vii) not-for-profit Subsidiaries.

 

Excluded Swap Obligation” means, with respect to the Borrower or any Guarantor, (x) as it relates to all or a portion of the guaranty of such Guarantor or the Borrower, any Swap Obligation if, and to the extent that, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s or the Borrower’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guarantee of such Guarantor or the Borrower becomes effective with respect to such Swap Obligation or (y) as it relates to all or a portion of the grant by such Guarantor or the Borrower of a security interest, any Swap Obligation if, and to the extent that, such Swap Obligation (or such security interest in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s or the Borrower’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the security interest of such Guarantor or the Borrower becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal.

 

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Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 3.05) or (ii) such Lender changes its Applicable Lending Office, except in each case to the extent that, pursuant to Section 3.03, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Applicable Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.03(g) and (d) any U.S. Federal withholding Taxes imposed under FATCA.

 

Existing Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of February 26, 2019, by and among the Borrower, the lenders party thereto and Delaware Trust Company, a Delaware corporation, as collateral agent, as amended.

 

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any applicable intergovernmental agreements with respect thereto (including any applicable law implementing such agreements) and any current or future regulations or official interpretations thereof.

 

Federal Funds Effective Rate” means, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent.

 

Fee Letters” means (i) the Amended and Restated Fee Letter, dated as of the Closing Date, among the Borrower, KeyBanc Capital Markets Inc., and the Administrative Agent., and (ii) the Fee Letter (Upfront Fees), dated as of the Closing Date, between the Borrower and the Administrative Agent.

 

Fees” means all amounts payable pursuant to, or referred to in, ‎Section 2.11.

 

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Financial Officer” means the chief executive officer, the president or the chief financial officer of the Borrower.

 

Financial Projections” has the meaning provided in ‎Section 5.07(b).

 

First Amendment” means the First Amendment to Credit Agreement, dated as of the First Amendment Effective Date, among the Borrower, Holdings, the Lenders party thereto and the Administrative Agent.

 

First Amendment Effective Date” means February 28, 2022.

 

Fixed Charge Coverage Ratio” means, for any Testing Period, the ratio of (i) Consolidated EBITDA to (ii) Consolidated Fixed Charges; provided that, solely for purposes of Section 7.07, for the period ending (x) September 30, 2022, Consolidated EBITDA and Consolidated Fixed Charges in the this equation shall only consist of Consolidated EBITDA and Consolidated Fixed Charges for the fiscal quarter then ended, and (y) December 31, 2022, Consolidated EBITDA and Consolidated Fixed Charges in this equation shall only consist of Consolidated EBITDA and Consolidated Fixed Charges for the fiscal quarters ending September 30, 2022 and December 31, 2022.

 

Flood Hazard Property” means any Real Property located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.

 

Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.

 

Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any LC Issuer, such Defaulting Lender’s Revolving Facility Percentage of LC Outstandings with respect to Letters of Credit issued by such LC Issuer other than LC Outstandings as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to any Swing Line Lender, such Defaulting Lender’s Revolving Facility Percentage of outstanding Swing Loans made by such Swing Line Lender other than Swing Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.

 

GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time.

 

Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

Granting Lender” has the meaning provided in ‎Section 11.06(f).

 

Growth Capital Expenditures” means, for any period, Capital Expenditures of Holdings, the Borrower and its Subsidiaries during such period made in connection with the opening of new showrooms or other retail locations, research and development costs, wholesale expenditures (including new marketing displays), and acquisitions of equipment, in each case, that are incurred for the purpose of adding new productive capacity.

 

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Guarantors” means Holdings and any Subsidiary that is or hereafter becomes a party to the Guaranty. Schedule 2 hereto lists each Guarantor as of the Closing Date.

 

Guaranty” has the meaning provided in ‎Section 4.01(iii).

 

Guaranty Obligations” means as to any Person (without duplication) any obligation of such Person guaranteeing any Indebtedness (“primary Indebtedness”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent: (i) to purchase any such primary Indebtedness or any property constituting direct or indirect security therefore; (ii) to advance or supply funds for the purchase or payment of any such primary Indebtedness or to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary Indebtedness of the ability of the primary obligor to make payment of such primary Indebtedness; or (iv) otherwise to assure or hold harmless the owner of such primary Indebtedness against loss in respect thereof; provided, however, that the definition of Guaranty Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guaranty Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary Indebtedness in respect of which such Guaranty Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder).

 

Hazardous Materials” means (i) any petrochemical or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; and (ii) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “restricted hazardous materials,” “extremely hazardous wastes,” “restrictive hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants” or “pollutants,” or words of similar meaning and regulatory effect, under any applicable Environmental Law.

 

Hedge Agreement” means (i) any interest rate swap agreement, any interest rate cap agreement, any interest rate collar agreement or other similar interest rate management agreement or arrangement, (ii) any currency swap or option agreement, foreign exchange contract, forward currency purchase agreement or similar currency management agreement or arrangement or (iii) any Commodities Hedge Agreement.

 

Hedge Termination Value” means, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined by the applicable Secured Hedge Provider (or, if there is no Secured Hedge Provider party to such Hedge Agreement, by a recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender)) in accordance with the terms thereof and in accordance with customary methods for calculating mark-to-market values under similar arrangements by the applicable Secured Hedge Provider (or, if there is no Secured Hedge Provider party to such Hedge Agreement, by a recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender)).

 

Hedging Obligations” means all obligations of any Credit Party under and in respect of (i) any Hedge Agreements entered into with any Secured Hedge Provider or (ii) any Designated Hedge Agreement.

 

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Holdings” has the meaning provided in the first paragraph of this Agreement.

 

Immaterial Subsidiary” means, on any date, any Subsidiary of the Borrower (a) that has been designated as such pursuant to a written notice delivered by the Borrower to the Administrative Agent (or identified in this definition) and (b) that did not, as of the last day of the fiscal quarter of the Borrower most recently ended for which financial statements have been delivered to the Administrative Agent pursuant to ‎Section 6.01(b), (i) have individually or in the aggregate with all other Immaterial Subsidiaries, assets in excess of 5% of the consolidated total assets of Holdings and its Subsidiaries or revenues in excess of 5% of the consolidated revenues of Holdings and its Subsidiaries or (ii) own material Intellectual Property; provided, however, that no Subsidiary shall be deemed or designated an Immaterial Subsidiary if such Subsidiary guarantees any Material Indebtedness of the Borrower or any other Credit Party.

 

Incremental Revolving Credit Assumption Agreement” means an Incremental Revolving Credit Assumption Agreement in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Incremental Revolving Credit Lenders.

 

Incremental Revolving Credit Commitment” means the commitment of any Lender, established pursuant to ‎Section 2.17, to make Incremental Revolving Loans to the Borrower.

 

Incremental Revolving Credit Lender” means a Lender with an Incremental Revolving Credit Commitment or an outstanding Incremental Revolving Loan.

 

Incremental Revolving Loans” means Revolving Loans made by one or more Lenders to the Borrower pursuant to Section 2.17. Incremental Revolving Loans shall be made in the form of additional Revolving Loans.

 

Incremental Term Lender” means a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.

 

Incremental Term Loan Assumption Agreement” means an Incremental Term Loan Assumption Agreement in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Incremental Term Lenders.

 

Incremental Term Loan Commitment” means the commitment of any Lender, established pursuant to Section 2.17, to make Incremental Term Loans to the Borrower.

 

Incremental Term Loan Maturity Date” means the final maturity date of any Incremental Term Loan, as set forth in the applicable Incremental Term Loan Assumption Agreement.

 

Incremental Term Loan Repayment Dates” means the dates scheduled for the repayment of principal of any Incremental Term Loan, as set forth in the applicable Incremental Term Loan Assumption Agreement.

 

Incremental Term Loans” means Term Loans made by one or more Lenders to the Borrower pursuant to ‎Section 2.17, Incremental Term Loans may be made in the form of additional Term Loans or, to the extent permitted by ‎Section 2.17 and provided for in the relevant Incremental Term Loan Assumption Agreement, Other Term Loans.

 

Indebtedness” of any Person means without duplication:

 

(i) all indebtedness of such Person for borrowed money;

 

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(ii) all indebtedness evidenced by bonds, notes, debentures, loan agreements and similar debt securities of such Person;

 

(iii) the deferred purchase price of capital assets or capital services that in accordance with GAAP would be shown on the liability side of the balance sheet of such Person, including, without limitation, Permitted Seller Notes and Permitted Earnouts;

 

(iv) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder;

 

(v) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, surety bonds, performance bonds, and similar instruments issued or created by or for the account of such person;

 

(vi) all indebtedness of a second Person secured by any Lien on any property owned by such first Person, whether or not such indebtedness has been assumed;

 

(vii) all Capitalized Lease Obligations and Purchase Money Indebtedness of such Person;

 

(viii) the present value, determined on the basis of the implicit interest rate, of all basic rental obligations under all Synthetic Leases of such Person;

 

(ix) all obligations of such Person with respect to any asset securitization financing;

 

(x) all obligations of such Person to pay a specified purchase price for goods or services whether or not delivered or accepted, i.e., take-or-pay and similar obligations, in each case that in accordance with GAAP would be shown on the liability side of the balance sheet of such Person;

 

(xi) all net obligations of such Person under Hedge Agreements;

 

(xii) all Disqualified Equity Interests of such Person;

 

(xiii) the full outstanding balance of trade receivables, notes or other instruments sold with full recourse (and the portion thereof subject to potential recourse, if sold with limited recourse), other than in any such case any thereof sold solely for purposes of collection of delinquent accounts; and

 

(xiv) all Guaranty Obligations of such Person;

 

provided, however, that (y) neither trade payables (other than trade payables outstanding for more than 180 days after the date such trade payables were created), deferred revenue, taxes nor other similar accrued or deferred expenses, in each case arising in the ordinary course of business, shall constitute Indebtedness; and (z) the Indebtedness of any Person shall in any event include (without duplication) the Indebtedness of any other entity (including any general partnership in which such Person is a general partner) to the extent such Person is liable thereon as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the holders of such Indebtedness do not have recourse to such Person. The amount of Indebtedness of any Person for purposes of clause (vi) above shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith. The amount of any net obligation under any Hedge Agreement on any date shall be deemed to be the Hedge Termination Value thereof as of such date.

 

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Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

 

Indemnitees” has the meaning provided in ‎Section 11.02.

 

Initial Term Loan Maturity Date” means September 3, 2025.

 

Insolvency Event” means, with respect to any Person:

 

(i) the commencement of a voluntary case by such Person under the Bankruptcy Code or the seeking of relief by such Person under any Debtor Relief Law or analogous law in any jurisdiction outside of the United States;

 

(ii) the commencement of an involuntary case against such Person under the Bankruptcy Code, any Debtor Relief Law or analogous law in any jurisdiction outside of the United States and the petition is not dismissed within 60 days, after commencement of the case;

 

(iii) a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of such Person;

 

(iv) such Person commences (including by way of applying for or consenting to the appointment of, or the taking of possession by, a rehabilitator, receiver, administrative receiver, receiver-manager, administrator, judicial manager, compulsory manager, custodian, trustee, monitor, conservator or liquidator (collectively, a “conservator”) of such Person or all or any substantial portion of its property) any other proceeding under any Debtor Relief Law or similar law of any jurisdiction whether now or hereafter in effect relating to such Person;

 

(v) any such proceeding of the type set forth in clause (iv) above is commenced against such Person to the extent such proceeding is consented to by such Person or remains undismissed for a period of 60 days;

 

(vi) such Person is adjudicated insolvent or bankrupt, or is deemed to, or is declared to, be unable to pay its debts under applicable law;

 

(vii) any order of relief or other order approving any such case or proceeding is entered;

 

(viii) such Person suffers any appointment of any conservator or the like for it or any substantial part of its property that continues undischarged or unstayed for a period of 60 days;

 

(ix) such Person makes a general assignment for the benefit of creditors or generally does not pay its debts as such debts become due; or

 

(x) any corporate (or similar organizational) action is taken by such Person for the purpose of effecting any of the foregoing.

 

Intellectual Property” has the meaning provided in the Security Agreement.

 

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Intercompany Subordination Agreement” means the Intercompany Subordination Agreement in substantially the form of Exhibit K hereto.

 

Interest Period” means, with respect to each Term SOFR Borrowing, a period of one, three or six months as selected by the Borrower; provided, however, that (i) the initial Interest Period for any Borrowing of a Term SOFR Loan shall commence on the date of such Borrowing (the date of a Borrowing resulting from a Conversion or Continuation shall be the date of such Conversion or Continuation) and each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period expires; (ii) if any Interest Period begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month; (iii) if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided, however, that if any Interest Period would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day; (iv) no Interest Period for any Term SOFR Loan may be selected that would end after the Revolving Facility Termination Date or the latest Term Loan Maturity Date, as the case may be; and (v) if, upon the expiration of any Interest Period, the Borrower has failed to (or may not) elect a new Interest Period to be applicable to the respective Borrowing of Term SOFR Loans as provided above, the Borrower shall be deemed to have elected to Convert such Borrowing to Base Rate Loans effective as of the expiration date of such current Interest Period.

 

Internally Generated Cash” means, with respect to any Person, funds of such Person and its Subsidiaries not constituting (x) proceeds of the issuance of (or contributions in respect of) equity interests of such Person, (y) proceeds of the incurrence of Indebtedness by such Person or any of its Subsidiaries (other than under any revolving credit facility or line of credit) or (z) proceeds of Asset Sales (other than Asset Sales in the ordinary course of business) and casualty events.

 

Investment” means: (i) any direct or indirect purchase or other acquisition by a Person of any Equity Interest of any other Person; (ii) any loan, advance (other than deposits with financial institutions available for withdrawal on demand), capital contribution or extension of credit to, guarantee or assumption of debt or purchase or other acquisition of any other Indebtedness of, any Person by any other Person; (iii) the purchase, acquisition or investment of or in any stocks, bonds, mutual funds, notes, debentures or other securities, or any deposit account, certificate of deposit or other investment of any kind; or (iv) any statutory division.

 

“Investment Affiliate” means (a) Blackwell Partners LLC – Series A, solely with respect to any securities managed by a Permitted Holder pursuant to an investment management agreement which grants control to a Permitted Holder and (b) any fund or investment vehicle that (i) is organized by a Permitted Holder for the purpose of making equity or debt investments in one or more companies and (ii) is controlled by, or under common control with, such Permitted Holder. For purposes of this definition ‘control’ means the power to direct or cause the direction of management and policies of a Person whether by contract or otherwise

 

IRS” means the United States Internal Revenue Service.

 

Landlord’s Agreement” means a landlord’s waiver, mortgagee’s waiver or bailee’s waiver, each in form and substance reasonably satisfactory to the Administrative Agent, and providing, among other things, for waiver of Lien, certain notices and opportunity to cure and access to Collateral, delivered by a Credit Party in connection with this Agreement, as the same may from time to time be amended, restated or otherwise modified.

 

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LC Commitment Amount” means $5,000,000.

 

LC Documents” means, with respect to any Letter of Credit, any documents executed in connection with such Letter of Credit, including the Letter of Credit itself.

 

LC Fee” means any of the fees payable pursuant to ‎Section 2.11(b) or ‎Section 2.11(c) in respect of Letters of Credit.

 

LC Issuance” means the issuance of any Letter of Credit by any LC Issuer for the account of an LC Obligor in accordance with the terms of this Agreement, and shall include any amendment thereto that increases the Stated Amount thereof or extends the expiry date of such Letter of Credit.

 

LC Issuer” means KeyBank National Association or any of its Affiliates, or such other Lender that is requested by the Borrower and agrees to be an LC Issuer hereunder (provided that any such Lender is entitled to agree or decline in its sole discretion) and is approved by the Administrative Agent.

 

LC Obligor” means, with respect to each LC Issuance, the Borrower or the Guarantor for whose account such Letter of Credit is issued.

 

LC Outstandings” means, at any time, the sum, without duplication, of (i) the aggregate Stated Amount of all outstanding Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings with respect to Letters of Credit.

 

LC Participant” has the meaning provided in ‎Section 2.05(g).

 

LC Participation” has the meaning provided in ‎Section 2.05(g).

 

LC Request” has the meaning provided in ‎Section 2.05(b).

 

Leaseholds” of any Person means all the right, title and interest of such Person as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures.

 

Lease Revenue Test” means that ratio of (x) the average revenue of each showroom (which shall be calculated (i) excluding any revenues of showrooms open for less than six (6) months, (ii) on an annualized basis for showrooms (excluding any outlet showrooms) open for a period of six (6) to 12 months (excluding revenues for the first three months thereof), and (iii) over the prior 12-month period for any showroom (excluding any outlet showrooms) open for a period longer than 12 months) over (y) the average cost (net of tenant allowance) of opening each store referenced in clause (x) hereof, shall be greater than or equal to 2.25 to 1.00 for the Testing Period ended at least 30 days prior to such time

 

Lender” and “Lenders” have the meaning provided in the first paragraph of this Agreement and includes any other Person that becomes a party hereto pursuant to an Assignment Agreement, other than any such Person that ceases to be a party hereto pursuant to an Assignment Agreement. Unless the context otherwise requires, the term “Lenders” includes the Swing Line Lender. In addition to the foregoing, solely for the purpose of identifying the Persons entitled to share in payments and collections from the Collateral and the benefit of any guarantees of the Obligations, as more fully set forth in this Agreement and the other Loan Documents, the term “Lender” shall include Secured Hedge Providers. For the avoidance of doubt, any Secured Hedge Provider to whom any Hedging Obligations are owed and that does not hold any Loans or commitments hereunder shall not be entitled to any other rights as a “Lender” under this Agreement or the other Loan Documents.

 

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Lender Register” has the meaning provided in ‎Section 2.08(b).

 

Letter of Credit” means any Standby Letter of Credit or Commercial Letter of Credit, in each case issued by any LC Issuer under this Agreement pursuant to ‎Section 2.05 for the account of any LC Obligor.

 

Lien” means any mortgage, pledge, security interest, hypothecation, encumbrance, trust or deemed trust, lien (statutory or otherwise) or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof).

 

Liquidity” means, the sum of, without duplication, (x) unrestricted cash and Cash Equivalents of the Credit Parties which are subject to a Control Agreement in favor of the Administrative Agent, plus (y) availability under the Revolving Facility to the extent such amounts can be borrowed for general corporate purposes.

 

Liquidity Certificate” has the meaning provided in Section 6.01(k).

 

Loan” means any Revolving Loan, Term Loan or Swing Loan.

 

Loan Documents” means this Agreement, the Notes, the Guaranty, the Security Documents, the Fee Letter, the Intercompany Subordination Agreement, the First Amendment and each Letter of Credit and each other LC Document.

 

Margin Stock” has the meaning provided in Regulation U.

 

Material Adverse Effect” means the occurrence of any event which has the effect of any or all of the following: (i) any material adverse effect on the business, operations, property, assets, liabilities or financial or other condition of the Borrower, individually, or of Holdings and its Subsidiaries, taken as a whole; (ii) any material adverse effect on the ability of the Borrower, individually, or Holdings and its Subsidiaries, taken as a whole, to perform their obligations under any of the Loan Documents to which they are party; (iii) any material adverse effect on the validity, effectiveness or enforceability, as against any Credit Party, of any of the Loan Documents to which it is a party; (iv) any material adverse effect on the rights and remedies of the Administrative Agent or any Lender under any Loan Document; or (v) any material adverse effect on the validity, perfection or priority of any Lien in favor of the Administrative Agent on any of the Collateral; provided that for purposes of clause (i) of this definition, the Coronavirus Disease 2019 (“COVID-19”), the declaration of the national emergency relating to COVID-19, and the direct impacts of the foregoing on the Borrower, individually, or Holdings and its Subsidiaries, taken as a whole, in each case, disclosed in public filings made by Holdings or in materials delivered to the Lenders prior to Closing Date, and occurring on or prior to the date which is three hundred sixty four (364) days after the Closing Date shall not constitute a material adverse effect on the business, assets, operations, properties, assets, liabilities or financial or other condition of the Borrower, individually, or Holdings and its Subsidiaries, taken as a whole.

 

Material Acquisition” means any Permitted Acquisition for which the aggregate consideration (including the purchase price, any earn-out, any Indebtedness assumed and any other consideration) paid or payable exceeds $15,000,000.

 

Material Contract” means each contract or agreement to which Holdings, the Borrower or any of its Subsidiaries is a party involving aggregate consideration payable to or by Holdings, the Borrower or such Subsidiary of $5,000,000 or more per annum (other than purchase orders in the ordinary course of business of Holdings, the Borrower or such Subsidiary and other than contracts that by their terms may be terminated by the Borrower or such Subsidiary in the ordinary course of its business upon less than 60 days’ notice without penalty or premium).

 

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Material Indebtedness” means, as to Holdings, the Borrower or any of its Subsidiaries, any particular Indebtedness of Holdings, the Borrower or such Subsidiary (including any Guaranty Obligations) in excess of the aggregate principal amount of $5,000,000.

 

Material Indebtedness Agreement” means any agreement governing or evidencing any Material Indebtedness.

 

Maximum Rate” has the meaning provided in ‎Section 11.23.

 

Minimum Borrowing Amount” means (i) with respect to any Base Rate Loan, $1,000,000, with minimum increments thereafter of $500,000, (ii) with respect to any Term SOFR Loan, $1,000,000, with minimum increments thereafter of $500,000, and (iii) with respect to Swing Loans, $500,000, with minimum increments thereafter of $500,000, or, in each case, such lesser amounts as agreed to by the Administrative Agent.

 

Minimum Collateral Amount” means, at any time with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of all LC Issuers with respect to Letters of Credit issued and outstanding at such time.

 

Moody’s” means Moody’s Investors Service, Inc. and its successors.

 

Mortgage” means a Mortgage, Deed of Trust or other instrument, in form and substance reasonably satisfactory to the Administrative Agent, executed by a Credit Party with respect to a Mortgaged Real Property, as the same may from time to time be amended, restated or otherwise modified.

 

Mortgaged Real Property” means each parcel of Real Property that shall become subject to a Mortgage in accordance with Section 6.10(a), in each case together with all of such Credit Party’s right, title and interest in the improvements and buildings thereon and all appurtenances, easements or other rights belonging thereto.

 

Multi-Employer Plan” means a multi-employer plan, as defined in Section 4001(a)(3) of ERISA to which Holdings, the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate is making or accruing an obligation to make contributions or has within any of the preceding five plan years made or accrued an obligation to make contributions.

 

Multiple Employer Plan” means an employee benefit plan, other than a Multi-Employer Plan, to which Holdings, the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate, and one or more employers other than the Borrower or a Subsidiary of the Borrower or an ERISA Affiliate, is making or accruing an obligation to make contributions or, in the event that any such plan has been terminated, to which Holdings, the Borrower or a Subsidiary of the Borrower or an ERISA Affiliate made or accrued an obligation to make contributions during any of the five plan years preceding the date of termination of such plan.

 

Narrative Report” means, with respect to the financial statements for which such narrative report is required, a narrative report describing the operations of Holdings, the Borrower and its Subsidiaries in the form prepared for presentation to the board of directors of Holdings thereof for the applicable fiscal quarter or fiscal year and for the period from the beginning of the then current fiscal year to the end of such period to which such financial statements relate with comparison to and variances from the immediately preceding period and budget.

 

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National Flood Insurance Program” means the National Flood Insurance Program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004, in each case as amended from time to time, and any successor statutes.

 

Net Cash Proceeds” means, with respect to (i) any Asset Sale, the Cash Proceeds resulting therefrom net of (A) reasonable and customary expenses of sale incurred in connection with such Asset Sale, and other reasonable and customary fees and expenses incurred, and all state, provincial and local taxes paid or reasonably estimated to be payable by such person as a consequence of such Asset Sale, and the payment of principal, premium and interest of Indebtedness (other than the Obligations) secured by the asset that is the subject of such Asset Sale, and required to be, and that is, repaid under the terms thereof as a result of such Asset Sale (to the extent any intercreditor or subordination agreement applies, only if permitted by such intercreditor or subordination agreement), and (B) incremental federal, state, provincial and local income taxes paid or payable as a result thereof; (ii) any Event of Loss, the Cash Proceeds resulting therefrom net of (A) reasonable and customary expenses incurred in connection with such Event of Loss, and local taxes paid or reasonably estimated to be payable by such person as a consequence of such Event of Loss and the payment of principal, premium and interest of Indebtedness (other than the Obligations) secured by the asset that is the subject of the Event of Loss and required to be, and that is, repaid under the terms thereof as a result of such Event of Loss (to the extent any intercreditor or subordination agreement applies, only if permitted by such intercreditor or subordination agreement), and (B) incremental federal, state, provincial and local income taxes paid or payable as a result thereof; and (iii) the incurrence or issuance of any Indebtedness, the Cash Proceeds resulting therefrom net of reasonable and customary fees and expenses incurred in connection therewith and net of the repayment or payment of any Indebtedness or obligation intended to be repaid or paid with the proceeds of such Indebtedness; in the case of each of clauses (i), (ii) and (iii), to the extent, but only to the extent, that the amounts so deducted are (x) actually paid to a Person that, except in the case of reasonable out-of-pocket expenses, is not an Affiliate of such Person or any of its Subsidiaries and (y) properly attributable to such transaction or to the asset that is the subject thereof.

 

Non-Consenting Lender” has the meaning provided in ‎Section 11.12(g).

 

Non-Credit Party” means each Subsidiary that is not a Guarantor.

 

Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

 

Note” means a Revolving Facility Note, a Term Note or a Swing Line Note, as applicable.

 

Notice of Borrowing” has the meaning provided in ‎Section 2.06(b).

 

Notice of Continuation or Conversion” has the meaning provided in ‎Section 2.10(b).

 

Notice of Swing Loan Refunding” has the meaning provided in ‎Section 2.04(b).

 

Notice Office” means the office of the Administrative Agent at Key Agency Services, 4900 Tiedeman Road, OH-01-49-0362, Brooklyn, OH 44144, Attention: KAS Services (email: Agent_Servicing@keybank.com), or such other office as the Administrative Agent may designate in writing to the Borrower from time to time.

 

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Obligations” means all amounts, indemnities and reimbursement obligations, direct or indirect, contingent or absolute, of every type or description, and at any time existing, owing by the Borrower or any other Credit Party to the Administrative Agent, any Lender, any Affiliate of any Lender, the Swing Line Lender, any Secured Hedge Provider or any LC Issuer pursuant to the terms of this Agreement, any other Loan Document or any Designated Hedge Agreement (including, but not limited to, interest and fees that accrue after the commencement by or against any Credit Party of any insolvency proceeding or other proceeding under any Debtor Relief Laws, regardless of whether allowed or allowable in such proceeding or subject to an automatic stay under Section 362(a) of the Bankruptcy Code or analogous provision under any other Debtor Relief Laws); provided, however, that Obligations shall not include any Excluded Swap Obligations. Without limiting the generality of the foregoing description of Obligations, the Obligations include (a) the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, reasonable attorneys’ fees and disbursements, indemnities and other amounts payable by the Credit Parties under any Loan Document, (b) Banking Services Obligations, (c) Hedging Obligations and (d) the obligation to reimburse any amount in respect of any of the foregoing that any Agent, any Lender or any Affiliate or any Secured Hedge Provider of any of them, in connection with the terms of any Loan Document, may elect to pay or advance on behalf of the Credit Parties.

 

OFAC” has the meaning provided in Section 5.23.

 

Operating Lease” as applied to any Person means any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is not accounted for as a Capital Lease on the balance sheet of that Person.

 

Organizational Documents” means, with respect to any Person (other than an individual), such Person’s Articles (Certificate or Memorandum) of Incorporation, or equivalent formation documents, and Regulations, Bylaws, Operating Agreements, or Articles, or equivalent governing documents, and, in the case of any partnership, includes any partnership agreement and any amendments to any of the foregoing.

 

Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.05).

 

Other Term Loans” has the meaning set forth in Section 2.17(a).

 

Participant Register” has the meaning provided in ‎Section 11.06(b).

 

Payment Office” means the office of the Administrative Agent at 4900 Tiedeman Road, Cleveland, OH, 44144, Attention: Paula Gordon (facsimile: 216 813-6101), or such other office(s), as the Administrative Agent may designate to the Borrower in writing from time to time.

 

PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.

 

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Perfection Certificate” has the meaning provided in the Security Agreement.

 

Permitted Acquisition” means any Acquisition by any Credit Party as to which all of the following conditions are satisfied:

 

(i) such Acquisition involves a line or lines of business that is or are complementary, reasonably related or ancillary to the lines of business in which Holdings, the Borrower and its Subsidiaries, considered as an entirety, are engaged on the Closing Date;

 

(ii) with respect to any Material Acquisition or, at the request of the Administrative Agent, in connection with any other Acquisition, the Borrower shall have furnished to the Administrative Agent (for distribution to the Lenders) at least five (5) Business Days prior to the consummation of such Acquisition (or such shorter period of time as the Administrative Agent agrees) pro forma financial statements of the Borrower and its Subsidiaries giving effect to the consummation of such Acquisition;

 

(iii) the agreements, instruments and other documents delivered in connection with such Acquisition shall provide that (A) neither the Credit Parties nor any of their Subsidiaries shall, in connection with such Acquisition, assume or remain liable in respect of any Indebtedness of the seller or sellers, except for Indebtedness permitted hereunder, and (B) all property to be so acquired in connection with such Acquisition shall be free and clear of any and all Liens, except for Permitted Liens (and if any such property is subject to any Lien not permitted by this clause (B), then concurrently with such Acquisition such Lien shall be released);

 

(iv) such Acquisition shall be effected in such a manner so that either (A) the acquired Equity Interests or assets are owned either by a Credit Party or by a Person that will become a Credit Party in accordance with ‎Section 6.09 and, if effected by merger or consolidation involving a Credit Party, such Credit Party shall be the continuing or surviving Person or the continuing or surviving Person shall become a Credit Party upon the effectiveness of such merger or consolidation or (B) if the entity so acquired is not a Domestic Subsidiary or if the assets so acquired do not constitute Collateral, such Acquisition, together with any other such Acquisition in any fiscal year, shall not exceed the greater of (x) $9,000,000, or (y) 15% of Consolidated EBITDA as of the last Testing Period for which financial statements were delivered pursuant to Section 6.01(a) or (b) hereto;

 

(v) the Covenant Amendment Period shall have ended;

 

(vi) no Default or Event of Default shall exist prior to or immediately after giving effect to such Acquisition;

 

(vii) the Borrower would, after giving effect to such Acquisition, on a pro forma basis (as determined in accordance with subpart (viii) below whether or not a certificate is required pursuant to such subpart (viii)), be in compliance with the financial covenants contained in ‎‎Section 7.07;

 

(viii) at least five Business Days prior to the consummation of any Material Acquisition, the Borrower shall have delivered to the Administrative Agent and the Lenders (A) a certificate of an Authorized Officer demonstrating, in reasonable detail, the computation of the financial covenants referred to in Section 7.07 on a pro forma basis, such pro forma ratios being determined as if (y) such Acquisition had been completed at the beginning of the most recent Testing Period for which financial information for the Borrower and the business or Person to be acquired, is available, and (z) any such Indebtedness, or other Indebtedness incurred to finance such Acquisition, had been outstanding for such entire Testing Period, and (B) historical financial statements relating to the business or Person to be acquired evidencing positive Consolidated EBITDA on a pro forma basis (with such adjustments as the Administrative Agent agrees to) for the four fiscal quarter period most recently ended prior to the date of the Acquisition and such other information as the Administrative Agent may reasonably request; provided, however that this subclause (B) shall not apply if the Consolidated Leverage Ratio as of the most recent date on which a Compliance Certificate was delivered pursuant to Section 6.01(c) was less than or equal to 1.00 to 1.00;

 

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(ix) all transactions in connection with such Acquisition shall be consummated, in all material respects, in accordance with all applicable laws;

 

(x) the Acquisition shall have been approved by the board of directors or other governing body or controlling Person of the Person from whom such Equity Interests or assets are proposed to be acquired;

 

(xi) as of the date of the Acquisition, a Financial Officer shall provide a certificate to the Administrative Agent and the Lenders certifying as to the matters set forth in the foregoing clauses and further certifying that the Acquisition could not reasonably be expected to have a Material Adverse Effect;

 

(xii) immediately after giving effect to such Acquisition, any acquired or newly formed Subsidiary shall be a wholly owned Subsidiary and shall take all actions required to be taken pursuant to ‎Section 6.09 and ‎Section 6.10 (or within 30 days of such Acquisition in the case of ‎Section 6.10(c) or, in each case, such longer period as agreed to by the Administrative Agent); and

 

(xiii) immediately after giving effect to the Acquisition, the Credit Parties’ unrestricted cash and Cash Equivalents, together with Revolving Availability, shall be no less than $20,000,000.

 

Permitted Creditor Investment” means any securities (whether debt or equity) received by Holdings, the Borrower or any of its Subsidiaries in connection with the bankruptcy or reorganization of any customer or supplier of Holdings, the Borrower or any such Subsidiary and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business.

 

Permitted Earnout” means any earnout, hold back amount, deferred purchase price or similar obligation of Holdings, the Borrower or any Subsidiary that is incurred in connection with a Permitted Acquisition and is subordinated to the Obligations hereunder in a manner reasonably acceptable to the Administrative Agent or is otherwise on payment terms reasonably acceptable to the Administrative Agent.

 

Permitted Equity Issuance” means any capital contribution to Holdings (other than with respect to Disqualified Equity Interests and other than any such contributions from a Subsidiary of Holdings) or sale or issuance of any Equity Interests (other than Disqualified Equity Interests) of Holdings, in each case, the proceeds of which are contributed to the common equity of the Borrower.

 

“Permitted Holder” means Coliseum Capital Management, LLC and its Investment Affiliates.

 

Permitted Lien” means any Lien permitted by ‎Section 7.03.

 

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Permitted Refinancing” means any modification, refinancing, refunding, renewal, replacement, redemption, repurchase, defeasance, exchange and/or extension (collectively to “Refinance” or a “Refinancing” or “Refinanced”) of any Indebtedness (any such Indebtedness as so modified, refinanced, refunded, renewed, replaced, redeemed, repurchased, defeased, exchanged and/or extended, “Refinancing Indebtedness”); provided that (a) the principal amount (or, if issued with original issue discount, the aggregate issue price) of such Refinancing Indebtedness does not exceed the outstanding principal amount of the Indebtedness so Refinanced except by an amount equal to unpaid accrued interest, fees and premium (including tender premium) and penalties (if any) thereon, plus upfront fees and OID thereon, plus other reasonable and customary fees and expenses incurred or paid in connection with such Refinancing; (b) such Refinancing Indebtedness has a final maturity date equal to or later than the final maturity date of, and has a weighted average life to maturity equal to or greater than the weighted average life to maturity of, the Indebtedness being Refinanced; (c) if the Indebtedness being Refinanced is subordinated in right of payment to the Obligations, such Refinancing Indebtedness is subordinated in right of payment to the Obligations on terms, taken as a whole, not materially less favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced; (d) if the Indebtedness being Refinanced is secured by a second-priority or other junior-priority security interest in the Collateral and/or subject to any intercreditor arrangements for the benefit of the Lenders, such Refinancing Indebtedness is secured and subject to intercreditor arrangements on terms, taken as a whole, not materially less favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced; and (e) such Refinancing Indebtedness is incurred by the Person or Persons who was or were obligor(s) or guarantor(s) (or any successor thereto) on the Indebtedness being Refinanced.

 

Permitted Seller Note” means a Seller Note permitted under Section 7.04(p).

 

Person” means any individual, partnership, joint venture, firm, corporation, limited liability company, association, central bank, trust or other enterprise or any governmental or political subdivision or any agency, department or instrumentality thereof.

 

Plan” means any Multi-Employer Plan, Multiple Employer Plan or Single Employer Plan.

 

Platform” has the meaning provided in ‎Section 9.15(b).

 

primary Indebtedness” has the meaning provided in the definition of “Guaranty Obligations.”

 

primary obligor” has the meaning provided in the definition of “Guaranty Obligations.”

 

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

Purchase Date” has the meaning provided in ‎Section 2.04(c).

 

Purchase Money Indebtedness” means, for any Person, Indebtedness incurred for the purpose of financing all or any part of the purchase price of any fixed or capital assets or the cost of installation, construction or improvement of any fixed or capital assets; provided, however, that (i) such Indebtedness is incurred within 270 days after such acquisition, installation, construction or improvement of such fixed or capital assets by such person and (ii) the amount of such Indebtedness does not exceed the lesser of 100% of the fair market value of such fixed or capital asset at the time incurred or the cost of the acquisition, installation, construction or improvement thereof, as the case may be.

 

Qualified ECP Guarantor” means, in respect of any Obligations with respect to a Designated Hedge Agreement, each Credit Party that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Obligations or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

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RCRA” means the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.

 

Real Property” of any Person means all of the right, title and interest of such Person in and to land, improvements and fixtures, including Leaseholds.

 

Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any LC Issuer, as applicable.

 

Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.

 

Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

 

Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

 

Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.

 

Remedial Action” means all actions any Environmental Law requires any Credit Party to: (i) clean up, remove, remediate, contain, treat, monitor, assess, evaluate or in any other way address Hazardous Materials in the environment; (ii) prevent or minimize a release or threatened release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the environment; (iii) perform pre-remedial studies and investigations and post-remedial operation and maintenance activities; or (iv) perform any other actions authorized by 42 U.S.C. § 9601.

 

Reportable Event” means an event described in Section 4043 of ERISA or the regulations thereunder with respect to a Plan, other than those events as to which the notice requirement is waived under subsection .22, .23, .25, .27, .28, .29, .30, .31, .32, .34, .35, .62, .63, .64, .65 or .67 of PBGC Regulation Section 4043.

 

Required Lenders” means Lenders whose Credit Facility Exposure and Unused Revolving Commitments constitute more than 50% of the sum of the Aggregate Credit Facility Exposure and the Unused Total Revolving Commitment. The Credit Facility Exposure and Unused Revolving Commitments of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

 

Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

Restricted Payment” means (i) any Capital Distribution, (ii) any amount paid by Holdings, the Borrower or any of its Subsidiaries in repayment, redemption, retirement, repurchase, payments, or prepayment, direct or indirect, of any Subordinated Indebtedness or any Permitted Earnouts, (iii) any payment by Holdings, the Borrower or any of its Subsidiaries of any management fees, consulting fees or any similar fees, whether pursuant to a management agreement or otherwise, or (iv) any distribution of assets pursuant to a plan of statutory division, or (v) any voluntary or mandatory prepayment of principal of any junior lien Indebtedness, Subordinated Indebtedness, Permitted Earnout or Seller Note.

 

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Resulting Company” means any Person formed by virtue of any statutory division of any Credit Party.

 

Revolving Availability” means, at the time of determination, (a) the sum of all Revolving Commitments at such time less (b) the sum of (i) the principal amount of Revolving Loans and Swing Loans made and outstanding at such time and (ii) the LC Outstandings at such time.

 

Revolving Borrowing” means the incurrence of Revolving Loans consisting of one Type of Revolving Loan by the Borrower from all of the Lenders having Revolving Commitments in respect thereof on a pro rata basis on a given date (or resulting from Conversions or Continuations on a given date) in the same currency, having in the case of any Term SOFR Loans, the same Interest Period.

 

Revolving Commitment” means, with respect to each Lender, the amount set forth opposite such Lender’s name in Schedule 1 hereto as its “Revolving Commitment” or in the case of any Lender that becomes a party hereto pursuant to an Assignment Agreement, the amount set forth in such Assignment Agreement, as such commitment may be reduced from time to time pursuant to ‎Section 2.12 or adjusted from time to time as a result of assignments to or from such Lender pursuant to ‎Section 11.06 and any Incremental Revolving Credit Commitments.

 

Revolving Facility” means the credit facility established under ‎Section 2.02 pursuant to the Revolving Commitment of each Lender.

 

Revolving Facility Availability Period” means the period from the Closing Date until the Revolving Facility Termination Date.

 

Revolving Facility Exposure” means, for any Lender at any time, the sum of (i) the principal amount of Revolving Loans made by such Lender and outstanding at such time, and (ii) such Lender’s share of the LC Outstandings at such time.

 

Revolving Facility Note” means a promissory note substantially in the form of Exhibit A-1 hereto.

 

Revolving Facility Percentage” means, at any time for any Lender, the percentage obtained by dividing such Lender’s Revolving Commitment by the Total Revolving Commitment, provided, however, that if the Total Revolving Commitment has been terminated, the Revolving Facility Percentage for each Lender shall be determined by dividing such Lender’s Revolving Commitment immediately prior to such termination by the Total Revolving Commitment immediately prior to such termination.

 

Revolving Facility Termination Date” means, as applicable, the earlier of (i) September 3, 2025, or (ii) the date that the Commitments have been terminated pursuant to ‎Section 8.02.

 

Revolving Loan” means, with respect to each Lender, any loan made by such Lender pursuant to ‎Section 2.02.

 

S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., and its successors.

 

Sale and Lease-Back Transaction” means any arrangement with any Person providing for the leasing by the Borrower or any Subsidiary of the Borrower of any property (except for temporary leases for a term, including any renewal thereof, of not more than one year and except for leases between the Borrower and a Subsidiary or between Subsidiaries), which property has been or is to be sold or transferred by the Borrower or such Subsidiary to such Person.

 

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Sanctions” has the meaning provided in Section 5.23.

 

Scheduled Repayment” has the meaning provided in ‎Section 2.13(b).

 

SEC” means the United States Securities and Exchange Commission.

 

SEC Regulation D” means Regulation D as promulgated under the Securities Act of 1933, as amended, as the same may be in effect from time to time.

 

Secured Creditors” has the meaning provided in the Security Agreement.

 

Secured Hedge Provider” means a Lender or an Affiliate of a Lender (or a Person who was a Lender or an Affiliate of a Lender at the time of execution and delivery of a Designated Hedge Agreement) who has entered into a Designated Hedge Agreement with Holdings, the Borrower or any of its Subsidiaries.

 

Security Agreement” has the meaning provided in ‎Section 4.01(iii).

 

Security Documents” means the Security Agreement, each Mortgage, each Landlord’s Agreement, each Additional Security Document, any UCC financing statement, any Control Agreement, any Collateral Assignment, any Perfection Certificate and any document pursuant to which any Lien is granted or perfected by any Credit Party to the Administrative Agent as security for any of the Obligations.

 

Seller Note” means any unsecured promissory note (and any guarantee thereof) issued by one or more Credit Parties (or any Subsidiary of a Credit Party organized for purposes of the corresponding Permitted Acquisition, which as a part of such Permitted Acquisition will contemporaneously be merged with or into a Credit Party or otherwise will become a Credit Party promptly thereafter in accordance with this Agreement) in favor of a seller in connection with a Permitted Acquisition in an aggregate principal amount not to exceed the purchase price in respect of such Permitted Acquisition.

 

Series B Holders” means the holders of the Series B shares of Holdings. As of the Closing Date, the Series B Holders are set forth on Schedule 3 hereto.

 

Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, to which Holdings, the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is making or accruing an obligation to make contributions or, in the event that any such plan has been terminated, to which Holdings, the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate made or accrued an obligation to make contributions during any of the five plan years preceding the date of termination of such plan.

 

SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

 

SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

 

SOFR Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

 

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SOFR Index Adjustment” means a percentage per annum as set forth below for the applicable Interest Period therefor:

 

Interest Period  Percentage 
One month   0.10%
Three months   0.15%
Six months   0.25%

 

SPC” has the meaning provided in ‎Section 11.06(f).

 

Specified Event of Default” means either (x) an Event of Default other than an Event of Default under Section 8.01(c) as a result of a breach of Section 6.01, Section 6.05 (other than as to existence), Section 6.09, Section 6.10, Section 6.11, Section 6.14, Section 6.15 or Section 6.16 or (y) an Event of Default under Section 8.01(c) as a result of a breach of Section 6.01, Section 6.05 (other than as to existence), Section 6.09, Section 6.10, Section 6.11, Section 6.14, Section 6.15 or Section 6.16 which continues for ten (10) consecutive Business Days.

 

Standard Permitted Lien” means any of the following:

 

(i) Liens for taxes not yet delinquent with respect to income taxes and not overdue for a period of more than ninety (90) days for all other taxes so long as the aggregate amount of all overdue taxes is less than $1,000,000 or Liens for taxes, assessments or governmental charges being contested in good faith and by appropriate proceedings for which adequate reserves in accordance with GAAP have been established;

 

(ii) Liens in respect of property or assets imposed by law that were incurred in the ordinary course of business, such as, but not limited to, landlord’s, carriers’, suppliers’, warehousemen’s, materialmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business, that do not in the aggregate materially detract from the value of such property or assets or materially impair the use thereof in the operation of the business of Holdings, the Borrower or any of its Subsidiaries and do not secure any Indebtedness;

 

(iii) Liens created by this Agreement or the other Loan Documents;

 

(iv) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Section 8.01(h);

 

(v) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business in connection with workers compensation, unemployment insurance and other types of social security, and mechanic’s Liens, carrier’s Liens, and other Liens to secure the performance of tenders, statutory obligations, contract bids, government contracts, surety, appeal, customs, performance and return-of-money bonds and other similar obligations, incurred in the ordinary course of business (exclusive of obligations in respect of the payment for borrowed money), whether pursuant to statutory requirements, common law or consensual arrangements;

 

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(vi) leases or subleases granted in the ordinary course of business to others not interfering in any material respect with the business of Holdings, the Borrower or any of its Subsidiaries and any interest or title of a lessor under any lease not in violation of this Agreement;

 

(vii) easements, rights-of-way, zoning or other restrictions, charges, encumbrances, defects in title, prior rights of other persons, and obligations contained in similar instruments, in each case that do not secure Indebtedness and do not involve, and are not likely to involve at any future time, either individually or in the aggregate, (A) a substantial and prolonged interruption or disruption of the business activities of Holdings, the Borrower and its Subsidiaries considered as an entirety, or (B) a Material Adverse Effect;

 

(viii) Liens arising from the rights of lessors under leases (including financing statements regarding property subject to lease) not in violation of the requirements of this Agreement, provided that such Liens are only in respect of the property subject to, and secure only, the respective lease (and any other lease with the same or an affiliated lessor);

 

(ix) rights of consignors of goods, whether or not perfected by the filing of a financing statement under the UCC;

 

(x) purported Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of personal property entered into in the ordinary course of business;

 

(xi) Liens that are contractual rights of setoff or rights of pledge (i) relating to the establishment of depository relations with banks or other financial institutions not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of Holdings, the Borrower or any of its Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Holdings, the Borrower or any of its Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any of its Subsidiaries in the ordinary course of business, and Liens arising on any real property as a result of any eminent domain, condemnation or similar proceeding being commenced with respect to such real property;

 

(xii) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

 

(xiii) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business; and (iii) in favor of a banking or other financial institution arising as a matter of law or under customary general terms and conditions encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;

 

(xiv) Liens (i) on cash or Cash Equivalents advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.05 to be applied against the purchase price for such Investment, (ii) arising out of conditional sale, title retention, consignment or similar arrangements for the purchase or sale of goods entered into by Holdings, the Borrower or any of their respective Subsidiaries in the ordinary course of business, (iii) solely on any cash earnest money deposits made by Holdings, the Borrower or any of their respective Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder or (iv) consisting of an agreement to dispose of any property in a disposition permitted under Section 7.02 (or, to dispose of any property in a transaction not constituting an Asset Sale hereunder); and

 

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(xv) (i) deposits made in the ordinary course of business to secure liability to insurance carriers and (ii) Liens on insurance policies and the proceeds thereof securing the financing of insurance premiums with respect thereto.

 

Standby Letter of Credit” means any standby letter of credit issued for the purpose of supporting workers compensation, liability insurance, releases of contract retention obligations, contract performance guarantee requirements and other bonding obligations or for other lawful purposes.

 

Stated Amount” of each Letter of Credit means the maximum amount available to be drawn thereunder (regardless of whether any conditions or other requirements for drawing could then be met).

 

Subordinated Debt Documents” means, collectively, any loan agreements, indentures, note purchase agreements, promissory notes, guarantees and other instruments and agreements evidencing the terms of any Subordinated Indebtedness.

 

Subordinated Indebtedness” means any Indebtedness that has been subordinated to the prior payment in full of all of the Obligations pursuant to a written agreement or written terms reasonably acceptable to the Administrative Agent, including, without limitation, Permitted Earnouts and Permitted Seller Notes.

 

Subsidiary” of any Person means (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary Voting Power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have Voting Power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries, and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person directly or indirectly through Subsidiaries, owns more than 50% of the Equity Interests of such Person at the time or in which such Person, one or more other Subsidiaries of such Person or such Person and one or more Subsidiaries of such Person, directly or indirectly, has the power to direct the policies, management and affairs thereof. Unless otherwise expressly provided, all references herein to “Subsidiary” means a Subsidiary of Holdings.

 

Swap Obligation” means, with respect to the Borrower or any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

 

Swing Line Commitment” means $10,000,000.

 

Swing Line Facility” means the credit facility established under ‎Section 2.04 pursuant to the Swing Line Commitment of the Swing Line Lender.

 

Swing Line Lender” means KeyBank National Association or any replacement or successor thereto.

 

Swing Line Note” means a promissory note substantially in the form of Exhibit A-2 hereto.

 

Swing Line Participation Amount” has the meaning provided in ‎Section 2.04(c).

 

Swing Loan” means any loan made by the Swing Line Lender under the Swing Line Facility pursuant to ‎Section 2.04.

 

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Swing Loan Maturity Date” means, with respect to any Swing Loan, the earlier of (i) the last day of the period for such Swing Loan as established by the Swing Line Lender and agreed to by the Borrower, which shall be less than seven (7) Business Days, and (ii) the Revolving Facility Termination Date.

 

Swing Loan Participation” has the meaning provided in ‎Section 2.04(c).

 

Synthetic Lease” means any lease (i) that is accounted for by the lessee as an Operating Lease, and (ii) under which the lessee is intended to be the “owner” of the leased property for federal income tax purposes.

 

Synthetic Lease Obligations” means, as to any person, an amount equal to the capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a balance sheet of such person in accordance with GAAP if such obligations were accounted for as Capitalized Lease Obligations.

 

Tax Receivables Agreement” means that certain Tax Receivables Agreement dated as of February 2, 2018 by and among Holdings, InnoHold, LLC, a Delaware limited liability company, and those direct or indirect equity owners listed on Schedule 1 thereto.

 

Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

Term Borrowing” means the incurrence of Term Loans or Incremental Term Loans consisting of one Type of Term Loan by the Borrower from all of the Lenders having Term Commitments in respect thereof on a pro rata basis on a given date (or resulting from Conversions or Continuations on a given date), having in the case of Term SOFR Loans the same Interest Period.

 

Term Commitment” means, with respect to each Lender, the amount, if any, set forth opposite such Lender’s name in Schedule 1 hereto as its “Term Commitment” or in the case of any Lender that becomes a party hereto pursuant to an Assignment Agreement, the amount set forth in such Assignment Agreement, as such commitment may be reduced from time to time as a result of assignments to or from such Lender pursuant to ‎Section 11.06 and any Incremental Term Loan Commitments.

 

Term Lender” means (a) at any time on or prior to the Closing Date, any Lender that has a Term Commitment at such time and (b) at any time after the Closing Date, any Lender that holds Term Loans at such time.

 

Term Loan” means, with respect to each Lender that has a Term Commitment, any loan made by such Lender pursuant to ‎Section 2.03. Unless the context shall otherwise require, the term “Term Loans” shall include the Incremental Term Loans, if any.

 

Term Loan Maturity Date” means, as applicable, (a) with respect to any Term Loans made on the Closing Date, the Initial Term Loan Maturity Date, (b) with respect to any Incremental Term Loan, the applicable Incremental Term Loan Maturity Date, or (c) with respect to all Term Loans, the latest of the dates referred to in clause (a), (b) and (c).

 

Term Note” means a promissory note substantially in the form of Exhibit A-3 hereto.

 

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Term SOFR” means for any calculation with respect to a Term SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Lookback Day”) that is two SOFR Business Days prior to the first day of such Interest Period (and rounded in accordance with the Administrative Agent’s customary practice), as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Lookback Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding SOFR Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding SOFR Business Day is not more than three SOFR Business Days prior to such Lookback Day, and for any calculation with respect to a Base Rate Loan, the Term SOFR Reference Rate for a tenor of one month on the day that is two SOFR Business Days prior to the date the Base Rate is determined, subject to the proviso provided above; provided, further, that if Term SOFR as so determined would be less than the Term SOFR Floor, then Term SOFR shall be deemed to be the Term SOFR Floor.

 

Term SOFR Administrator” means CBA (or a successor administrator of the Term SOFR Reference Rate, as selected by the Administrative Agent in its reasonable discretion).

 

Term SOFR Borrowingmeans a Borrowing comprised of Term SOFR Loans.

 

Term SOFR Floor” means a rate of interest equal to 0.50% per annum.

 

Term SOFR Loan” means each Loan bearing interest at a rate based upon Adjusted Term SOFR (other than pursuant to clause (iii) of the definition of Base Rate).

 

Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.

 

Testing Period” means a single period consisting of the four consecutive fiscal quarters of Holdings then last ended (whether or not such quarters are all within the same fiscal year), except that if a particular provision of this Agreement indicates that a Testing Period shall be of a different specified duration, such Testing Period shall consist of the particular fiscal quarter or quarters then last ended that are so indicated in such provision.

 

Title Company” has the meaning provided in ‎Section 6.10(c)(i).

 

Title Policy” has the meaning provided in ‎Section 6.10(c)(i).

 

Total Credit Facility Amount” means the aggregate of the Total Revolving Commitment and the Total Term Loan Commitment. As of the Closing Date, the Total Credit Facility Amount is $100,000,000.

 

Total Revolving Commitment” means the sum of the Revolving Commitments of the Lenders as the same may be decreased pursuant to ‎Section 2.12(c) hereof. As of the Closing Date, the amount of the Total Revolving Commitment is $55,000,000.

 

Total Term Loan Commitment” means the sum of the Term Commitments of the Lenders. As of the Closing Date, the amount of the Total Term Loan Commitment is $45,000,000.

 

Trade Date” has the meaning set forth in Section 11.06(g).

 

Transactions” means the transactions contemplated by the Loan Documents.

 

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Type” means any type of Loan determined with respect to the interest option and currency denomination applicable thereto, which in each case shall be a Base Rate Loan or a Term SOFR Loan.

 

UCC” means the Uniform Commercial Code as in effect from time to time. Unless otherwise specified, the UCC shall refer to the UCC as in effect in the State of New York.

 

UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

 

United States” and “U.S.” each means United States of America.

 

Unpaid Drawing” means, with respect to any Letter of Credit, the aggregate Dollar amount of the draws made on such Letter of Credit that have not been reimbursed by the Borrower or the applicable LC Obligor or converted to a Revolving Loan pursuant to ‎Section 2.05(f)(i), and, in each case, all interest that accrues thereon pursuant to this Agreement.

 

Unused Revolving Commitment” means, for any Lender at any time, the excess of (i) such Lender’s Revolving Commitment at such time over (ii) such Lender’s Revolving Facility Exposure at such time.

 

Unused Total Revolving Commitment” means, at any time, the excess of (i) the Total Revolving Commitment at such time over (ii) the Aggregate Revolving Facility Exposure at such time.

 

U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

  

U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 3.03(g)(ii)(B)(iii).

  

USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001.

 

Voting Power” means, with respect to any Person, the exclusive ability to control, through the ownership of shares of capital stock, partnership interests, membership interests or otherwise, the election of members of the board of directors or other similar governing body of such Person, and the holding of a designated percentage of Voting Power of a Person means the ownership of shares of capital stock, partnership interests, membership interests or other interests of such Person sufficient to control exclusively the election of that percentage of the members of the board of directors or other similar governing body of such Person.

 

Withholding Agent” means any Credit Party and the Administrative Agent.

 

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Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

Computation of Time Periods. In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each means “to but excluding” and the word “through” means “through and including.”

 

Accounting Terms. Except as otherwise specifically provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time, provided that if the Borrower notifies the Administrative Agent and the Lenders that the Borrower wishes to amend any financial ratio or requirement to eliminate the effect of any change in GAAP that occurs after the Closing Date on the operation of such financial ratio or requirement (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend any financial ratio or requirement for such purpose), then the Borrower’s compliance with such financial ratio or requirement shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such financial ratio or requirement is amended in a manner satisfactory to the Borrower, the Administrative Agent and the Required Lenders, with the Borrower, the Administrative Agent and the Lenders agreeing to enter into negotiations to amend any such financial ratio or requirement immediately upon receipt from any party entitled to send such notice. Notwithstanding the foregoing, (A) all financial statements delivered hereunder shall be prepared, and all financial covenants contained herein shall be calculated, without giving effect to any election under Statement of Financial Accounting Standards 159 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof and (B) all terms of an accounting or financial nature used herein shall be construed shall be made in a manner such that all liabilities related to operating leases, as defined by Accounting Standards Codification 842 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect), are excluded from the definition of Indebtedness and payments related to operating leases are not included in Consolidated Interest Expense in part or in whole. Without limiting the foregoing, leases (whether existing or entered into after the date hereof) shall continue to be classified and accounted for on a basis consistent with that reflected in the Borrower’s historical financial statements for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.

 

Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections, Schedules and Exhibits shall be construed to refer to Sections of, and Schedules and Exhibits to, this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all Real Property, tangible and intangible assets and properties, including cash, securities, accounts and contract rights, and interests in any of the foregoing, and (f) any reference to a statute, rule or regulation is to that statute, rule or regulation as now enacted or as the same may from time to time be amended, re-enacted or expressly replaced.

 

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Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

 

ARTICLE II

THE TERMS OF THE CREDIT FACILITY

 

Establishment of the Credit Facility. On the Closing Date, and subject to and upon the terms and conditions set forth in this Agreement and the other Loan Documents, the Administrative Agent, the Lenders, the Swing Line Lender and each LC Issuer agree to establish the Credit Facility for the benefit of the Borrower; provided, however, that at no time will (i) the Aggregate Credit Facility Exposure exceed the Total Credit Facility Amount, or (ii) the Credit Facility Exposure of any Lender exceed the aggregate amount of such Lender’s Commitment.

 

Revolving Facility. During the Revolving Facility Availability Period, each Lender severally, and not jointly, agrees, on the terms and conditions set forth in this Agreement, to make a Revolving Loan or Revolving Loans to the Borrower from time to time pursuant to such Lender’s Revolving Commitment, which Revolving Loans: (i) may, except as set forth herein, at the option of the Borrower, be incurred and maintained as, or Converted into, Revolving Loans that are Base Rate Loans or Term SOFR Loans, in each case denominated in Dollars, provided that all Revolving Loans made as part of the same Revolving Borrowing shall consist of Revolving Loans of the same Type; (ii) may be repaid or prepaid and reborrowed in accordance with the provisions hereof; and (iii) shall not be made if, after giving effect to any such Revolving Loan, (A) the Revolving Facility Exposure of any Lender would exceed such Lender’s Revolving Commitment, (B) the Aggregate Revolving Facility Exposure plus the principal amount of Swing Loans would exceed the Total Revolving Commitment, or (C) the Borrower would be required to prepay Loans or Cash Collateralize Letters of Credit pursuant to ‎Section 2.13(c)(iii). The Revolving Loans to be made by each Lender will be made by such Lender on a pro rata basis based upon such Lender’s Revolving Facility Percentage of each Revolving Borrowing, in each case in accordance with ‎Section 2.07 hereof.

 

Term Loan. On the Closing Date, each Lender that has a Term Commitment severally, and not jointly, agrees, on the terms and conditions set forth in this Agreement, to make a Term Loan to the Borrower pursuant to such Lender’s Term Commitment, which Term Loans: (i) can only be incurred on the Closing Date in the entire amount of each Lender’s Term Commitment; (ii) once prepaid or repaid, may not be reborrowed; (iii) may, except as set forth herein, at the option of the Borrower, be incurred and maintained as, or Converted into, Term Loans that are Base Rate Loans or Term SOFR Loans, in each case denominated in Dollars, provided that all Term Loans made as part of the same Term Borrowing shall consist of Term Loans of the same Type; (iv) shall be repaid in accordance with Section 2.13(b); and (v) shall not exceed (A) for any Lender at the time of incurrence thereof the aggregate principal amount of such Lender’s Term Commitment, if any, and (B) for all the Lenders at the time of incurrence thereof the Total Term Loan Commitment. The Term Loans to be made by each Lender will be made by such Lender in the aggregate amount of its Term Commitment in accordance with ‎Section 2.07 hereof.

 

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Section 2.04 Swing Line Facility.

 

(a) Swing Loans. During the Revolving Facility Availability Period, the Swing Line Lender may in its sole discretion, upon the request of the Borrower and on the terms and conditions set forth in this Agreement, make a Swing Loan or Swing Loans to the Borrower from time to time, which Swing Loans: (i) shall be payable on the Swing Loan Maturity Date applicable to each such Swing Loan; (ii) shall be made only in Dollars; (iii) may be repaid or prepaid and reborrowed in accordance with the provisions hereof; (iv) may only be made if after giving effect thereto (A) the aggregate principal amount of Swing Loans outstanding does not exceed the Swing Line Commitment, and (B) the Aggregate Revolving Facility Exposure plus the principal amount of Swing Loans would not exceed the Total Revolving Commitment; (v) shall not be made if, after giving effect thereto, the Borrower would be required to prepay Loans or Cash Collateralize Letters of Credit pursuant to ‎Section 2.13(c)(ii) or ‎(iii) hereof; (vi) shall not be made if the proceeds thereof would be used to repay, in whole or in part, any outstanding Swing Loan and (vii) at no time shall there be more than three Borrowings of Swing Loans outstanding hereunder.

 

(b) Swing Loan Refunding. The Swing Line Lender may at any time, in its sole and absolute discretion, direct that the Swing Loans owing to it be refunded by delivering a notice to such effect to the Administrative Agent, specifying the aggregate principal amount thereof (a “Notice of Swing Loan Refunding”). Promptly upon receipt of a Notice of Swing Loan Refunding, the Administrative Agent shall give notice of the contents thereof to the Lenders with Revolving Commitments and, unless an Event of Default specified in ‎Section 8.01(i) in respect of the Borrower has occurred, the Borrower. Each such Notice of Swing Loan Refunding shall be deemed to constitute delivery by the Borrower of a Notice of Borrowing requesting Revolving Loans consisting of Base Rate Loans in the amount of the Swing Loans to which it relates. Each Lender with a Revolving Commitment (including the Swing Line Lender) hereby unconditionally agrees (notwithstanding that any of the conditions specified in ‎Section 4.02 or elsewhere in this Agreement shall not have been satisfied, but subject to the provisions of paragraph (d) below) to make a Revolving Loan to the Borrower in the amount of such Lender’s Revolving Facility Percentage of the aggregate amount of the Swing Loans to which such Notice of Swing Loan Refunding relates. Each such Lender shall make the amount of such Revolving Loan available to the Administrative Agent in immediately available funds at the Payment Office not later than 2:00 P.M. (local time at the Payment Office), if such notice is received by such Lender prior to 11:00 A.M. (local time at its Payment Office), or not later than 2:00 P.M. (local time at the Payment Office) on the next Business Day, if such notice is received by such Lender after such time. The proceeds of such Revolving Loans shall be made immediately available to the Swing Line Lender and applied by it to repay the principal amount of the Swing Loans to which such Notice of Swing Loan Refunding relates.

 

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(c) Swing Loan Participation. If prior to the time a Revolving Loan would otherwise have been made as provided above as a consequence of a Notice of Swing Loan Refunding, any of the events specified in ‎Section 8.01(i) shall have occurred in respect of the Borrower or one or more of the Lenders with Revolving Commitments shall determine that it is legally prohibited from making a Revolving Loan under such circumstances, each Lender (other than the Swing Line Lender), or each Lender (other than such Swing Line Lender) so prohibited, as the case may be, shall, on the date such Revolving Loan would have been made by it (the “Purchase Date”), purchase an undivided participating interest (a “Swing Loan Participation”) in the outstanding Swing Loans to which such Notice of Swing Loan Refunding relates, in an amount (the “Swing Line Participation Amount”) equal to such Lender’s Revolving Facility Percentage of such outstanding Swing Loans. On the Purchase Date, each such Lender or each such Lender so prohibited, as the case may be, shall pay to the Swing Line Lender, in immediately available funds, such Lender’s Swing Line Participation Amount, and promptly upon receipt thereof the Swing Line Lender shall, if requested by such other Lender, deliver to such Lender a participation certificate, dated the date of the Swing Line Lender’s receipt of the funds from, and evidencing such Lender’s Swing Loan Participation in, such Swing Loans and its Swing Line Participation Amount in respect thereof. If any amount required to be paid by a Lender to the Swing Line Lender pursuant to the above provisions in respect of any Swing Loan Participation is not paid on the date such payment is due, such Lender shall pay to the Swing Line Lender on demand interest on the amount not so paid at the overnight Federal Funds Effective Rate from the due date until such amount is paid in full. Whenever, at any time after the Swing Line Lender has received from any other Lender such Lender’s Swing Line Participation Amount, the Swing Line Lender receives any payment from or on behalf of the Borrower on account of the related Swing Loans, the Swing Line Lender will promptly distribute to such Lender its ratable share of such amount based on its Revolving Facility Percentage of such amount on such date on account of its Swing Loan Participation (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded); provided, however, that if such payment received by the Swing Line Lender is required to be returned, such Lender will return to the Swing Line Lender any portion thereof previously distributed to it by the Swing Line Lender.

 

(d) Obligations Unconditional. Each Lender’s obligation to make Revolving Loans pursuant to ‎Section 2.04(b) and/or to purchase Swing Loan Participations in connection with a Notice of Swing Loan Refunding shall be subject to the conditions that (i) such Lender shall have received a Notice of Swing Loan Refunding complying with the provisions hereof and (ii) at the time the Swing Loans that are the subject of such Notice of Swing Loan Refunding were made, the Swing Line Lender making the same had no actual written notice from another Lender that an Event of Default had occurred and was continuing, but otherwise shall be absolute and unconditional, shall be solely for the benefit of the Swing Line Lender that gives such Notice of Swing Loan Refunding, and shall not be affected by any circumstance, including, without limitation, (A) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against any other Lender, any Credit Party, or any other Person, or any Credit Party may have against any Lender or other Person, as the case may be, for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default; (C) any event or circumstance involving a Material Adverse Effect; (D) any breach of any Loan Document by any party thereto; or (E) any other circumstance, happening or event, whether or not similar to any of the foregoing.

 

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Section 2.05 Letters of Credit.

 

(a) LC Issuances. During the Revolving Facility Availability Period, the Borrower may request an LC Issuer at any time and from time to time to issue, for the account of the Borrower or any Subsidiary, and subject to and upon the terms and conditions herein set forth, each LC Issuer agrees to issue from time to time Letters of Credit denominated and payable in Dollars and in each case in such form as may be approved by such LC Issuer and the Administrative Agent; provided, however, that notwithstanding the foregoing, no LC Issuance shall be made if, after giving effect thereto, (i) the LC Outstandings would exceed the LC Commitment Amount, (ii) the Revolving Facility Exposure of any Lender would exceed such Lender’s Revolving Commitment, (iii) the Aggregate Revolving Facility Exposure plus the principal amount of Swing Loans outstanding would exceed the Total Revolving Commitment, or (iv) the Borrower would be required to prepay Loans or Cash Collateralize Letters of Credit pursuant to Section 2.13(c)(ii) or Section 2.13(c)(iii) hereof; and provided, further, that the Borrower shall be a co-applicant, and be jointly and severally liable, with respect to each Letter of Credit issued for the account of a Subsidiary that is not a Guarantor hereof. Subject to Section 2.05(c) below, each Letter of Credit shall have an expiry date (including any renewal periods) occurring not later than the earlier of (y) one year from the date of issuance thereof, or (z) five (5) Business Days prior to the scheduled Revolving Facility Termination Date.

 

(b) LC Requests. Whenever the Borrower desires that a Letter of Credit be issued for its account or the account of any eligible LC Obligor, the Borrower shall give the Administrative Agent and the applicable LC Issuer written or telephonic notice (in the case of telephonic notice, promptly confirmed in writing if so requested by the Administrative Agent) which, if in the form of written notice, shall be substantially in the form of Exhibit B-3 (each such request, an “LC Request”), or transmit by electronic communication (if arrangements for doing so have been approved by the applicable LC Issuer), prior to 11:00 A.M. (local time at the Notice Office) at least three Business Days (or such shorter period as may be acceptable to the relevant LC Issuer) prior to the proposed date of issuance (which shall be a Business Day), which LC Request shall include such supporting documents that such LC Issuer customarily requires in connection therewith (including, in the case of a Letter of Credit for an account party other than the Borrower, an application for, and if applicable a reimbursement agreement with respect to, such Letter of Credit). In the event of any inconsistency between any of the terms or provisions of any LC Document and the terms and provisions of this Agreement respecting Letters of Credit, the terms and provisions of this Agreement shall control.

 

(c) Auto-Extension Letters of Credit. If an LC Obligor so requests in any applicable LC Request, each LC Issuer shall agree to issue a Letter of Credit that has automatic extension provisions; provided, however, that any Letter of Credit that has automatic extension provisions must permit such LC Issuer to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Once any such Letter of Credit that has automatic extension provisions has been issued, the Lenders shall be deemed to have authorized (but may not require) such LC Issuer to permit the renewal of such Letter of Credit at any time to an expiry date not later than five (5) Business Days prior to the scheduled Revolving Facility Termination Date; provided, however, that such LC Issuer shall not permit any such renewal if (i) such LC Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof, or (ii) it has received notice (which may be by telephone or in writing) on or before the day that is two Business Days before the date that such LC Issuer is permitted to send a notice of non-renewal from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied.

 

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(d) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the applicable LC Issuer and the applicable LC Obligor, when a Letter of Credit is issued, (i) the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each Standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance (including the International Chamber of Commerce’s decision published by the Commission on Banking Technique and Practice on April 6, 1998 regarding the European single currency (euro)) shall apply to each Standby Letter of Credit and Commercial Letter of Credit.

 

(e) Notice of LC Issuance. Each LC Issuer shall, on the date of each LC Issuance by it, give the Administrative Agent, each applicable Lender and the Borrower written notice of such LC Issuance, accompanied by a copy to the Administrative Agent of the Letter of Credit or Letters of Credit issued by it. Each LC Issuer shall provide to the Administrative Agent a quarterly (or monthly if requested by any applicable Lender) summary describing each Letter of Credit issued by such LC Issuer and then outstanding and an identification for the relevant period of the daily aggregate LC Outstandings represented by Letters of Credit issued by such LC Issuer.

 

(f) Reimbursement Obligations.

 

(i) The Borrower hereby agrees to reimburse (or cause any LC Obligor for whose account a Letter of Credit was issued to reimburse) each LC Issuer, by making payment directly to such LC Issuer in immediately available funds at the payment office of such LC Issuer, for any Unpaid Drawing with respect to any Letter of Credit immediately after, and in any event on the date on which, such LC Issuer notifies the Borrower (or any such other LC Obligor for whose account such Letter of Credit was issued) of such payment or disbursement (which notice to the Borrower (or such other LC Obligor) shall be delivered reasonably promptly after any such payment or disbursement), such payment to be made in Dollars in which such Letter of Credit is denominated, with interest on the amount so paid or disbursed by such LC Issuer, to the extent not reimbursed prior to 1:00 P.M. (local time at the payment office of the applicable LC Issuer) on the date of such payment or disbursement, from and including the date paid or disbursed to but not including the date such LC Issuer is reimbursed therefor at a rate per annum that shall be the rate then applicable to Revolving Loans pursuant to ‎Section 2.09(a) that are Base Rate Loans or, if not reimbursed on the date of such payment or disbursement, at the Default Rate, any such interest also to be payable on demand. Immediately following notice to it of its obligation to make reimbursement in respect of an Unpaid Drawing, if the Borrower or the relevant LC Obligor has not made such reimbursement out of its available cash on hand, (x) the Borrower will be deemed to have given a Notice of Borrowing for Revolving Loans that are Base Rate Loans in an aggregate principal amount sufficient to reimburse such Unpaid Drawing (and the Administrative Agent shall promptly give notice to the Lenders of such deemed Notice of Borrowing), (y) the Lenders shall, unless they are legally prohibited from doing so, make the Revolving Loans contemplated by such deemed Notice of Borrowing (which Revolving Loans shall be considered made under ‎Section 2.02), and (z) the proceeds of such Revolving Loans shall be disbursed directly to the applicable LC Issuer to the extent necessary to effect such reimbursement and repayment of the Unpaid Drawing, with any excess proceeds to be made available to the Borrower in accordance with the applicable provisions of this Agreement.

 

(ii) Obligations Absolute. Each LC Obligor’s obligation under this Section to reimburse each LC Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that such LC Obligor may have or have had against such LC Issuer, the Administrative Agent or any Lender, including, without limitation, any defense based upon the failure of any drawing under a Letter of Credit to conform to the terms of the Letter of Credit or any non-application or misapplication by the beneficiary of the proceeds of such drawing; provided, however, that no LC Obligor shall be obligated to reimburse an LC Issuer for any wrongful payment made by such LC Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such LC Issuer.

 

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(g) LC Participations.

 

(i) Immediately upon each LC Issuance, the LC Issuer of such Letter of Credit shall be deemed to have sold and transferred to each Lender with a Revolving Commitment, and each such Lender (each an “LC Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such LC Issuer, without recourse or warranty, an undivided interest and participation (an “LC Participation”), to the extent of such Lender’s Revolving Facility Percentage of the Stated Amount of such Letter of Credit in effect at such time of issuance, in such Letter of Credit, each substitute Letter of Credit, each drawing made thereunder, the obligations of any LC Obligor under this Agreement with respect thereto (although LC Fees relating thereto shall be payable directly to the Administrative Agent for the account of the Lenders as provided in ‎Section 2.11 and the LC Participants shall have no right to receive any portion of any fees of the nature contemplated by ‎Section 2.11(c) or ‎Section 2.11(d)), the obligations of any LC Obligor under any LC Documents pertaining thereto, and any security for, or guaranty pertaining to, any of the foregoing.

 

(ii) In determining whether to pay under any Letter of Credit, an LC Issuer shall not have any obligation relative to the LC Participants other than to determine that any documents required to be delivered under such Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an LC Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such LC Issuer any resulting liability.

 

(iii) If an LC Issuer makes any payment under any Letter of Credit and the applicable LC Obligor shall not have reimbursed such amount in full to such LC Issuer pursuant to ‎Section 2.05(f), such LC Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each LC Participant of such failure, and each LC Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such LC Issuer, the amount of such LC Participant’s Revolving Facility Percentage of such payment in Dollars and in same-day funds; provided, however, that no LC Participant shall be obligated to pay to the Administrative Agent its Revolving Facility Percentage of such unreimbursed amount for any wrongful payment made by such LC Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such LC Issuer. If the Administrative Agent so notifies any LC Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such LC Participant shall make available to the Administrative Agent for the account of the relevant LC Issuer such LC Participant’s Revolving Facility Percentage of the amount of such payment on such Business Day in same-day funds. If and to the extent such LC Participant shall not have so made its Revolving Facility Percentage of the amount of such payment available to the Administrative Agent for the account of the relevant LC Issuer, such LC Participant agrees to pay to the Administrative Agent for the account of such LC Issuer, forthwith on demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such LC Issuer at the Federal Funds Effective Rate. The failure of any LC Participant to make available to the Administrative Agent for the account of the relevant LC Issuer its Revolving Facility Percentage of any payment under any Letter of Credit shall not relieve any other LC Participant of its obligation hereunder to make available to the Administrative Agent for the account of such LC Issuer its Revolving Facility Percentage of any payment under any Letter of Credit on the date required, as specified above, but no LC Participant shall be responsible for the failure of any other LC Participant to make available to the Administrative Agent for the account of such LC Issuer such other LC Participant’s Revolving Facility Percentage of any such payment.

 

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(iv) Whenever an LC Issuer receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such LC Issuer any payments from the LC Participants pursuant to subpart (iii) above, such LC Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each LC Participant that has paid its Revolving Facility Percentage thereof, in same-day funds, an amount equal to such LC Participant’s Revolving Facility Percentage of the principal amount thereof and interest thereon accruing after the purchase of the respective LC Participations, as and to the extent so received.

 

(v) The obligations of the LC Participants to make payments to the Administrative Agent for the account of each LC Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:

 

(A) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;

 

(B) the existence of any claim, set-off defense or other right that any LC Obligor may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any LC Issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the applicable LC Obligor and the beneficiary named in any such Letter of Credit), other than any claim that the applicable LC Obligor may have against any applicable LC Issuer for gross negligence or willful misconduct of such LC Issuer in making payment under any applicable Letter of Credit;

 

(C) any draft, certificate or other document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

 

(D) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or

 

(E) the occurrence of any Default or Event of Default.

 

(vi) To the extent any LC Issuer is not indemnified by the Borrower or any LC Obligor, the LC Participants will reimburse and indemnify such LC Issuer, in proportion to their respective Revolving Facility Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature that may be imposed on, asserted against or incurred by such LC Issuer in performing its respective duties in any way related to or arising out of LC Issuances by it; provided, however, that no LC Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from such LC Issuer’s gross negligence or willful misconduct.

 

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Section 2.06 Notice of Borrowing.

 

(a) Time of Notice. Each Borrowing of a Loan (other than a Continuation or Conversion) shall be made upon notice in the form provided for below which shall be provided by the Borrower to the Administrative Agent at its Notice Office not later than (i) in the case of each Borrowing of a Term SOFR Loan, 11:00 A.M. (local time at its Notice Office) at least three Business Days’ prior to the date of such Borrowing, (ii) in the case of each Borrowing of a Base Rate Loan, prior to 11:00 A.M. (local time at its Notice Office) on the proposed date of such Borrowing, and (iii) in the case of any Borrowing under the Swing Line Facility, prior to 1:00 P.M. (local time at its Notice Office) on the proposed date of such Borrowing.

 

(b) Notice of Borrowing. Each request for a Borrowing (other than a Continuation or Conversion) shall be made by an Authorized Officer of the Borrower by delivering written notice of such request substantially in the form of Exhibit B-1 hereto (each such notice, a “Notice of Borrowing”) or by telephone (to be confirmed promptly (and in any event, within five (5) Business Days) in writing by delivery by an Authorized Officer of the Borrower of a Notice of Borrowing), and in any event each such request shall be irrevocable and shall specify (i) the aggregate principal amount of the Loans to be made pursuant to such Borrowing, (ii) the date of the Borrowing (which shall be a Business Day), (iii) the Type of Loans such Borrowing will consist of, and (iv) if applicable, the initial Interest Period or the Swing Loan Maturity Date (which shall be less than seven days). Without in any way limiting the obligation of the Borrower to confirm in writing any telephonic notice permitted to be given hereunder, the Administrative Agent may act prior to receipt of written confirmation without liability upon the basis of such telephonic notice believed by the Administrative Agent in good faith to be from an Authorized Officer of the Borrower entitled to give telephonic notices under this Agreement on behalf of the Borrower. In each such case, the Administrative Agent’s record of the terms of such telephonic notice shall be conclusive absent manifest error.

 

(c) Minimum Borrowing Amount. The aggregate principal amount of each Borrowing by the Borrower shall not be less than the Minimum Borrowing Amount.

 

(d) Maximum Borrowings. More than one Borrowing may be incurred by the Borrower on any day; provided, however, that (i) if there are two or more Borrowings on a single day (other than with respect to a Term Borrowing made on the Closing Date) by the Borrower that consist of Term SOFR Loans, each such Borrowing shall have a different initial Interest Period, and (ii) at no time shall there be more than five Borrowings of Term SOFR Loans outstanding hereunder.

 

Funding Obligations; Disbursement of Funds.

 

(a) Several Nature of Funding Obligations. The Commitments of each Lender hereunder and the obligation of each Lender to make Loans, acquire and fund Swing Loan Participations, and LC Participations, as the case may be, are several and not joint obligations. No Lender shall be responsible for any default by any other Lender in its obligation to make Loans or fund any participation hereunder and each Lender shall be obligated to make the Loans provided to be made by it and fund its participations required to be funded by it hereunder, regardless of the failure of any other Lender to fulfill any of its Commitments hereunder. Nothing herein and no subsequent termination of the Commitments pursuant to ‎Section 2.12 shall be deemed to relieve any Lender from its obligation to fulfill its commitments hereunder and in existence from time to time or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder.

 

(b) Borrowings Pro Rata. Except with respect to the making of Swing Loans by the Swing Line Lender, all Loans hereunder shall be made as follows: (i) all Revolving Loans made, and LC Participations acquired by each Lender, shall be made or acquired, as the case may be, on a pro rata basis based upon each Lender’s Revolving Facility Percentage of the amount of such Revolving Borrowing or Letter of Credit in effect on the date the applicable Revolving Borrowing is to be made or the Letter of Credit is to be issued; and (ii) all Term Loans shall be made by the Lenders having Term Commitments pro rata on the basis of their respective Term Commitments.

 

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(c) Notice to Lenders. The Administrative Agent shall promptly give each Lender, as applicable, written notice (or telephonic notice promptly confirmed in writing) of each proposed Borrowing, or Conversion or Continuation thereof, and LC Issuance, and of such Lender’s proportionate share thereof or participation therein and of the other matters covered by the Notice of Borrowing, Notice of Continuation or Conversion, or LC Request, as the case may be, relating thereto.

 

(d) Funding of Loans.

 

(i) Loans Generally. No later than 2:00 P.M. (local time at the Payment Office) on the date specified in each Notice of Borrowing, each Lender will make available its amount, if any, of each Borrowing requested to be made on such date to the Administrative Agent at the Payment Office in Dollars and in immediately available funds and the Administrative Agent promptly will make available to the Borrower by depositing to its account at the Payment Office (or such other account as the Borrower shall specify) the aggregate of the amounts so made available in the type of funds received.

 

(ii) Swing Loans. No later than 2:00 P.M. (local time at the Payment Office) on the date specified in each Notice of Borrowing, the Swing Line Lender will make available to the Borrower by depositing to its account at the Payment Office (or such other account as the Borrower shall specify) the aggregate of Swing Loans requested in such Notice of Borrowing.

 

(e) Advance Funding. Unless the Administrative Agent shall have been notified by any Lender prior to the date of Borrowing that such Lender does not intend to make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender and the Administrative Agent has made the same available to the Borrower, the Administrative Agent shall be entitled to recover such corresponding amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower shall immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent shall also be entitled to recover from such Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent at a rate per annum equal to (i) if paid by such Lender, the overnight Federal Funds Effective Rate or (ii) if paid by the Borrower, the then applicable rate of interest, calculated in accordance with ‎Section 2.09, for the respective Loans (but without any requirement to pay any amounts in respect thereof pursuant to ‎Section 3.02).

 

Evidence of Obligations.

 

(a) Loan Accounts of Lenders. Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Obligations of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

 

(b) Loan Accounts of Administrative Agent; Lender Register. The Administrative Agent shall maintain accounts in which it shall record: (i) the amount of each Loan and Borrowing made hereunder, the Type thereof, the currency in which such Loan is denominated, the Interest Period and applicable interest rate and, in the case of a Swing Loan, the Swing Loan Maturity Date applicable thereto; (ii) the amount and other details with respect to each Letter of Credit issued hereunder; (iii) the amount of any principal due and payable or to become due and payable from the Borrower to each Lender hereunder; (iv) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof; and (v) the other details relating to the Loans, Letters of Credit and other Obligations. In addition, the Administrative Agent shall maintain a register (the “Lender Register”) on or in which it will record the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender, pursuant to the terms hereof from time to time. The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Lender Register pursuant to the terms hereof as a Lender for all purposes of this Agreement. The Administrative Agent will make the Lender Register available to any Lender or the Borrower upon its request.

 

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(c) Effect of Loan Accounts, etc. The entries made in the accounts maintained pursuant to ‎Section 2.08(b) shall be prima facie evidence of the existence and amounts of the Obligations recorded therein; provided, that the failure of the Administrative Agent to maintain such accounts or any error (other than manifest error) therein shall not in any manner affect the obligation of any Credit Party to repay or prepay the Loans or the other Obligations in accordance with the terms of this Agreement.

 

(d) Notes. Upon request of any Lender or the Swing Line Lender, the Borrower will execute and deliver to such Lender or the Swing Line Lender, as the case may be, (i) a Revolving Facility Note with blanks appropriately completed in conformity herewith to evidence the Borrower’s obligation to pay the principal of, and interest on, the Revolving Loans made to it by such Lender, (ii) a Term Note with blanks appropriately completed in conformity herewith to evidence its obligation to pay the principal of, and interest on, the Term Loan made to it by such Lender, and (iii) a Swing Line Note with blanks appropriately completed in conformity herewith to evidence the Borrower’s obligation to pay the principal of, and interest on, the Swing Loans made to it by the Swing Line Lender; provided, however, that the decision of any Lender or the Swing Line Lender to not request a Note shall in no way detract from the Borrower’s obligation to repay the Loans and other amounts owing by the Borrower to such Lender or the Swing Line Lender.

 

Section 2.09 Interest; Default Rate.

 

(a) Interest on Revolving Loans. The outstanding principal amount of each Revolving Loan made by each Lender shall bear interest at a fluctuating rate per annum that shall at all times be equal to (i) during such periods as such Revolving Loan is a Base Rate Loan, the Base Rate plus the Applicable Margin in effect from time to time and (ii) during such periods as such Revolving Loan is a Term SOFR Loan, the relevant Adjusted Term SOFR for such Term SOFR Loan for the applicable Interest Period plus the Applicable Margin in effect from time to time.

 

(b) Interest on Term Loans. The outstanding principal amount of each Term Loan made by each Lender shall bear interest at a fluctuating rate per annum that shall at all times be equal to (i) during such periods as such Term Loan is a Base Rate Loan, the Base Rate plus the Applicable Margin in effect from time to time and (ii) during such periods as such Term Loan is a Term SOFR Loan, the relevant Adjusted Term SOFR for such Term SOFR Loan for the applicable Interest Period plus the Applicable Margin, in each case, as in effect from time to time.

 

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(c) Interest on Swing Loans. The outstanding principal amount of each Swing Loan shall bear interest from the date of the Borrowing at a rate per annum that shall be equal to the Base Rate plus the Applicable Margin in effect from time to time.

 

(d) Default Interest. Notwithstanding the above provisions, if an Event of Default under Section 8.01(a) or (i) has occurred and is continuing or upon the request of the Administrative Agent (made at the request or direction of the Required Lenders), if any other Event of Default has occurred and is continuing, (i) the principal amount of all Loans outstanding and, to the extent permitted by applicable law, all overdue interest in respect of each Loan and all fees or other amounts owed hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable Debtor Relief Laws) payable on demand, at a rate per annum equal to the Default Rate, and (ii) the LC Fees shall be increased by an additional 2% per annum in excess of the LC Fees otherwise applicable thereto. In addition, if any amount (other than amounts as to which the foregoing subparts (i) and (ii) are applicable) payable by the Borrower under the Loan Documents is not paid when due, upon written notice by the Administrative Agent (which notice the Administrative Agent may give in its discretion and shall give at the direction of the Required Lenders), such amount shall bear interest, payable on demand, at a rate per annum equal to the Default Rate.

 

(e) Accrual and Payment of Interest. Interest shall accrue from and including the date of any Borrowing to but excluding the date of any prepayment or repayment thereof and shall be payable by the Borrower: (i) in respect of each Base Rate Loan, quarterly in arrears on the last Business Day of each March, June, September and December; (ii) in respect of each Term SOFR Loan, on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on the dates that are successively three months after the commencement of such Interest Period; (iii) in respect of any Swing Loan, on the Swing Loan Maturity Date applicable thereto; and (iv) in respect of all Loans, other than Revolving Loans accruing interest at a Base Rate, on any repayment, prepayment or Conversion (on the amount repaid, prepaid or Converted), at maturity (whether by acceleration or otherwise), and, after such maturity or, in the case of any interest payable pursuant to Section 2.09(d), on demand.

 

(f) Computations of Interest. All computations of interest on Term SOFR Loans shall be made on the actual number of days elapsed over a year of 360 days. All computations of interest on Base Rate Loans and Unpaid Drawings hereunder shall be made on the actual number of days elapsed over a year of 365 or 366 days, as applicable.

 

(g) Information as to Interest Rates. The Administrative Agent, upon determining the interest rate for any Borrowing, shall promptly notify the Borrower and the Lenders thereof. Any changes in the Applicable Margin shall be determined by the Administrative Agent in accordance with the provisions set forth in the definition of “Applicable Margin” and the Administrative Agent will promptly provide notice of such determinations to the Borrower and the Lenders. Any such determination by the Administrative Agent shall be conclusive and binding absent manifest error.

 

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(h) Temporary Inability to Determine Rates. If (A) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that Adjusted Term SOFR cannot be determined pursuant to the definition thereof or (B) the Required Lenders determine that for any reason in connection with any request for a Term SOFR Loan or a conversion thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, and the Required Lenders have provided notice of such determination to the Administrative Agent, in each case of (A) and (B), on or prior to the first day of any Interest Period, the Administrative Agent will promptly so notify the Borrower and each Lender. Upon notice thereof by the Administrative Agent to the Borrower, (i) any obligation of the Lenders to make or continue the applicable Term SOFR Loans or to convert Base Rate Loans to Term SOFR Loans shall be suspended (to the extent of the affected Interest Periods) until the Administrative Agent revokes such notice and (ii) if such determination affects the calculation of the Base Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate without reference to clause (iii) of the definition of “Base Rate” until the Administrative Agent revokes such notice. Upon receipt of such notice, (i) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of any applicable Term SOFR Loans (to the extent of the affected Term SOFR Loans or affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans in the amount specified therein and (ii) any outstanding affected Term SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 3.02. If the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by the Administrative Agent without reference to clause (iii) of the definition of “Base Rate” until the Administrative Agent revokes such determination.

 

(i) Permanent Inability to Determine Rate; Benchmark Replacement.

 

(i) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of the then-current Benchmark with a Benchmark Replacement pursuant to this Section 2.09(i) will occur prior to the applicable Benchmark Transition Start Date.

 

(ii) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

 

(iii) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of the implementation of any Benchmark Replacement and the effectiveness of any Conforming Changes. The Administrative Agent will notify the Borrower and the removal or reinstatement of any tenor of a Benchmark. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.09(i), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.09(i).

 

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(iv) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if any then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or incompliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.

 

(v) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for the applicable Term SOFR Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon Adjusted Term SOFR (or then-current Benchmark) will not be used in any determination of Base Rate.

 

Conversion and Continuation of Loans.

 

(a) Conversion and Continuation of Revolving Loans. The Borrower shall have the right, subject to the terms and conditions of this Agreement, to (i) Convert all or a portion of the outstanding principal amount of Loans of one Type made to it into a Borrowing or Borrowings of another Type of Loans that can be made to it pursuant to this Agreement and (ii) Continue a Borrowing of Term SOFR Loans at the end of the applicable Interest Period as a new Borrowing of Term SOFR Loans with a new Interest Period; provided, however, that any Conversion of Term SOFR Loans into Base Rate Loans shall be made on, and only on, the last day of an Interest Period for such Term SOFR Loans.

 

(b) Notice of Continuation and Conversion. Each Continuation or Conversion of a Loan shall be made upon notice in the form provided for below provided by the Borrower to the Administrative Agent at its Notice Office not later than (i) in the case of each Continuation of or Conversion into a Term SOFR Loan, prior to 11:00 A.M. (local time at its Notice Office) at least three Business Days’ prior to the date of such Continuation or Conversion, and (ii) in the case of each Conversion to a Base Rate Loan, prior to 11:00 A.M. (local time at its Notice Office) on the proposed date of such Conversion. Each such request shall be made by an Authorized Officer of the Borrower delivering written notice of such request substantially in the form of Exhibit B-2 hereto (each such notice, a “Notice of Continuation or Conversion”) or by telephone (to be confirmed immediately in writing by delivery by an Authorized Officer of the Borrower of a Notice of Continuation or Conversion), and in any event each such request shall be irrevocable and shall specify (A) the Borrowings to be Continued or Converted, (B) the date of the Continuation or Conversion (which shall be a Business Day), and (C) the Interest Period or, in the case of a Continuation, the new Interest Period. Without in any way limiting the obligation of the Borrower to confirm in writing any telephonic notice permitted to be given hereunder, the Administrative Agent may act prior to receipt of written confirmation without liability upon the basis of such telephonic notice believed by the Administrative Agent in good faith to be from an Authorized Officer of the Borrower entitled to give telephonic notices under this Agreement on behalf of the Borrower. In each such case, the Administrative Agent’s record of the terms of such telephonic notice shall be conclusive absent manifest error.

 

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Section 2.11 Fees.

 

(a) Commitment Fees. The Borrower agrees to pay to the Administrative Agent, for the ratable benefit of each Lender based upon each such Lender’s Revolving Facility Percentage, as consideration for the Revolving Commitments of the Lenders, commitment fees (the “Commitment Fees”) for the period from the Closing Date to, but not including, the Revolving Facility Termination Date, computed for each day at a rate per annum equal to (i) the Applicable Margin times (ii) the Unused Total Revolving Commitment in effect on such day. Accrued Commitment Fees shall be due and payable in arrears on the last Business Day of each March, June, September and December and on the Revolving Facility Termination Date.

 

(b) LC Fees. (i) Standby Letters of Credit. The Borrower agrees to pay to the Administrative Agent, for the ratable benefit of each Lender with a Revolving Commitment based upon each such Lender’s Revolving Facility Percentage, a fee in respect of each Letter of Credit issued hereunder that is a Standby Letter of Credit for the period from the date of issuance of such Letter of Credit until the expiration date thereof (including any extensions of such expiration date that may be made at the election of the account party or the beneficiary), computed for each day at a rate per annum equal to (A) the Applicable Margin for Revolving Loans that are Term SOFR Loans in effect on such day times (B) the Stated Amount of such Letter of Credit on such day. The foregoing fees shall be payable quarterly in arrears on the last Business Day of each March, June, September and December and on the Revolving Facility Termination Date.

 

(ii) Commercial Letters of Credit. The Borrower agrees to pay to the Administrative Agent for the ratable benefit of each Lender based upon each such Lender’s Revolving Facility Percentage, a fee in respect of each Letter of Credit issued hereunder that is a Commercial Letter of Credit in an amount equal to (A) the Applicable Margin for Revolving Loans that are Term SOFR Loans in effect on the date of issuance times (B) the Stated Amount of such Letter of Credit. The foregoing fees shall be payable on the date of issuance of such Letter of Credit.

 

(c) Fronting Fees. The Borrower agrees to pay directly to each LC Issuer, for its own account, a fee in respect of each Letter of Credit issued by it, payable on the date of issuance (or any increase in the amount, or renewal or extension) thereof, computed at the rate of 0.25% per annum on the Stated Amount thereof for the period from the date of issuance (or increase, renewal or extension) to the expiration date thereof (including any extensions of such expiration date which may be made at the election of the beneficiary thereof).

 

(d) Additional Charges of LC Issuer. The Borrower agrees to pay directly to each LC Issuer upon each LC Issuance, drawing under, or amendment, extension, renewal or transfer of, a Letter of Credit issued by it such amount as shall at the time of such LC Issuance, drawing under, amendment, extension, renewal or transfer be the processing charge that such LC Issuer is customarily charging for issuances of, drawings under or amendments, extensions, renewals or transfers of, letters of credit issued by it.

 

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(e) Closing Date Fees. The Borrower shall pay to the Administrative Agent, on the Closing Date and thereafter, the fees set forth in the Fee Letter.

 

(f) Computations and Determination of Fees. All computations of Commitment Fees, LC Fees and other Fees hereunder shall be made on the actual number of days elapsed over a year of 360 days.

 

Termination and Reduction of Revolving Commitments.

 

(a) Mandatory Termination of Revolving Commitments. All of the Revolving Commitments shall terminate on the Revolving Facility Termination Date.

 

(b) Cash Collateral. If the Total Revolving Commitment is reduced to any amount that is less than the LC Outstandings, the Borrower shall immediately Cash Collateralize the LC Outstandings to the extent of such excess.

 

(c) Voluntary Termination of the Total Revolving Commitment. Upon at least three Business Days’ prior irrevocable written notice (or telephonic notice confirmed in writing) (unless such notice expressly conditions such termination upon consummation of a transaction which is contemplated to result in prepayment of the Loans, in which case such notice may be revoked by Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied) to the Administrative Agent at its Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right to terminate in whole the Total Revolving Commitment, provided that (i) all outstanding Revolving Loans and Unpaid Drawings are contemporaneously prepaid in accordance with ‎Section 2.13 and (ii) either there are no outstanding Letters of Credit or the Borrower shall contemporaneously cause all outstanding Letters of Credit to be surrendered for cancellation (any such Letters of Credit to be replaced by letters of credit issued by other financial institutions acceptable to each LC Issuer and the Revolving Lenders) or shall Cash Collateralize all LC Outstandings.

 

(d) Partial Reduction of Total Revolving Commitment. Upon at least three Business Days’ prior irrevocable written notice (or telephonic notice confirmed in writing) (unless such notice expressly conditions such reduction upon consummation of a transaction which is contemplated to result in prepayment of the Loans, in which case such notice may be revoked by Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied) to the Administrative Agent at its Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right to partially and permanently reduce the Unused Total Revolving Commitment; provided, however, that (i) any such reduction shall apply to proportionately (based on each Lender’s Revolving Facility Percentage) and permanently reduce the Revolving Commitment of each Lender, (ii) such reduction shall apply to proportionately and permanently reduce the LC Commitment Amount, but only to the extent that the Unused Total Revolving Commitment would be reduced below any such limits, (iii) no such reduction shall be permitted if the Borrower would be required to make a mandatory prepayment of Loans pursuant to ‎Section 2.13(c)(ii) or ‎(iii), and (iv) any partial reduction shall be in the amount of at least $1,000,000 (or, if greater, in integral multiples of $250,000).

 

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Voluntary, Scheduled and Mandatory Prepayments of Loans.

 

(a) Voluntary Prepayments. The Borrower shall have the right to prepay any of the Loans owing by it, in whole or in part, without premium or penalty, except as specified in subpart (f) below, from time to time. The Borrower shall give the Administrative Agent at the Notice Office written or telephonic notice (in the case of telephonic notice, promptly confirmed in writing if so requested by the Administrative Agent) of its intent to prepay the Loans, the amount of such prepayment and (in the case of Term SOFR Loans) the specific Borrowing(s) pursuant to which the prepayment is to be made, which notice shall be received by the Administrative Agent by (y) 11:00 A.M. (local time at the Notice Office) three Business Days prior to the date of such prepayment, in the case of any prepayment of Term SOFR Loans, or (z) 11:00 A.M. (local time at the Notice Office) on date of such prepayment, in the case of any prepayment of Base Rate Loans, and which notice shall promptly be transmitted by the Administrative Agent to each of the affected Lenders, provided that:

 

(i) each partial prepayment shall be in an aggregate principal amount of at least (A) in the case of any prepayment of a Term SOFR Loan, $1,000,000 (or, if less, the full amount of such Borrowing), or an integral multiple of $250,000, (B) in the case of any prepayment of a Base Rate Loan, $250,000 (or, if less, the full amount of such Borrowing), or an integral multiple of $100,000, and (C) in the case of any prepayment of a Swing Loan, in the full amount thereof;

 

(ii) no partial prepayment of any Loans made pursuant to a Borrowing shall reduce the aggregate principal amount of such Loans outstanding pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto; and

 

(iii) in the case of any prepayment of Term Loans, such prepayment shall be applied as directed by the Borrower, and if the Borrower has not so directed, in direct order of the Scheduled Repayments in respect of the Term Loans.

 

(b) Scheduled Repayments of Term Loans.

 

(i) Closing Date Term Loans. On each of the dates set forth below, the Borrower shall repay the principal amount of the Term Loans made on the Closing Date in the amount set forth opposite such date, except that the payment due on the Term Loan Maturity Date shall in any event be in the amount of the entire remaining principal amount of the outstanding Term Loans (each such repayment, as the same may be reduced by reason of the application of prepayments pursuant to Sections 2.13(a) and 2.13(c), a “Scheduled Repayment”):

 

Date  Amount of
Payment
 
December 31, 2020  $562,500 
March 31, 2021  $562,500 
June 30, 2021  $562,500 
September 30, 2021  $562,500 
December 31, 2021  $562,500 
March 31, 2022  $562,500 
June 30, 2022  $562,500 
September 30, 2022  $562,500 
December 31, 2022  $843,750 
March 31, 2023  $843,750 
June 30, 2023  $843,750 
September 30, 2023  $843,750 
December 31, 2023  $843,750 
March 31, 2024  $843,750 
June 30, 2024  $843,750 
September 30, 2024  $843,750 
December 31, 2024  $1,125,000 
March 31, 2025  $1,125,000 
June 30, 2025  $1,125,000 
September 3, 2025   Remainder of Term Loans 

 

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(ii) Incremental Loans. In addition to the foregoing, the Borrower shall pay to the Administrative Agent, for the account of the Lenders, on each Incremental Term Loan Repayment Date, a principal amount of the Other Term Loans (as adjusted from time to time pursuant to Sections 2.13(a), 2.13(c) and 2.17(d)) equal to the amount set forth for such date in the applicable Incremental Term Loan Assumption Agreement, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment. To the extent not previously paid, all Incremental Term Loans shall be due and payable on the applicable Incremental Term Loan Maturity Date and all Incremental Revolving Loans shall be due and payable on the applicable Revolving Facility Termination Date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of payment.

 

(c) Mandatory Payments. The Loans shall be subject to mandatory repayment or prepayment (in the case of any partial prepayment conforming to the requirements as to the amounts of partial prepayments set forth in ‎Section 2.13(a) above), and the LC Outstandings shall be subject to cash collateralization requirements, in accordance with the following provisions:

 

(i) Revolving Facility Termination Date. The entire principal amount of all outstanding Revolving Loans shall be repaid in full on the Revolving Facility Termination Date.

 

(ii) Loans Exceed the Commitments. If on any date (after giving effect to any other payments on such date) (A) the Aggregate Credit Facility Exposure exceeds the Total Credit Facility Amount, (B) the Revolving Facility Exposure of any Lender exceeds such Lender’s Revolving Commitment, (C) the Aggregate Revolving Facility Exposure plus the principal amount of Swing Loans exceeds the Total Revolving Commitment, or (D) the aggregate principal amount of Swing Loans outstanding exceeds the Swing Line Commitment, then, in the case of each of the foregoing, the Borrower shall, on such day, prepay on such date the principal amount of Loans and, after Loans have been paid in full, Unpaid Drawings, in an aggregate amount at least equal to such excess.

 

(iii) LC Outstandings Exceed LC Commitment. If on any date the LC Outstandings exceed the LC Commitment Amount, then the applicable LC Obligor or the Borrower shall, on such day, Cash Collateralize the LC Outstandings to the extent of such excess.

 

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(iv) Excess Cash Flow. Within ten days following the earlier of the date on which the financial statements have been delivered, or are required to be delivered, pursuant to Section 6.01(a), commencing with the financial statements of the Borrower for the fiscal year ended December 31, 2021, the Borrower shall prepay the principal of the Loans in an aggregate amount equal to the sum of (A) Excess Cash Flow times (B) the percentage of the Excess Cash Flow for such fiscal year computed in accordance with the table set forth below based on the Consolidated Leverage Ratio as of the end of such fiscal year, with such amount to be applied as set forth in Section 2.13(d) below, less the amount of any voluntary repayments, prepayments or redemptions of the principal of the Term Loans (and, as in the case of any Revolving Loans, so long as there is a permanent reduction in the commitment thereunder) made during such fiscal year that are not financed with other Indebtedness; provided that, the percentage of Excess Cash Flow shall be computed in accordance with the table set forth below based on the Consolidated Net Leverage Ratio if for such Fiscal Year no Revolving Borrowings were outstanding for the 30-day period immediately prior to the end of such Fiscal Year:

 

Applicable Leverage Ratio  Percentage of
Excess
Cash Flow
 
Greater than or equal to 1.50 to 1.00   50%
Greater than or equal to 0.50 to 1.00 but less than 1.50 to 1.00   25%
Less than 0.50 to 1.00   0%

 

(v) Certain Proceeds of Asset Sales. If during any fiscal year of the Borrower, Holdings and its Subsidiaries have received cumulative Net Cash Proceeds during such fiscal year from one or more Asset Sales (other than Asset Sales permitted by Section 7.02(b), (h) through (j) and (l) through (o)) of at least $2,500,000, not later than the third Business Day following the date of receipt of any Cash Proceeds in excess of such amount, an amount equal to 100% of the Net Cash Proceeds then received in excess of such amount from any Asset Sale shall be applied as a mandatory prepayment of the Loans in accordance with Section 2.13(d) below; provided, that (A) if no Event of Default shall have occurred and be continuing, and (B) the Borrower notifies the Administrative Agent of the amount and nature thereof and of its intention to reinvest all or a portion of such Net Cash Proceeds in assets constituting Collateral (other than inventory) of Holdings and its Subsidiaries within 180 days of receipt of such Net Cash Proceeds (or, if the Holdings or the relevant Subsidiary, as applicable, has contractually committed within 180 days following receipt of such Net Cash Proceeds to reinvest such Net Cash Proceeds, then within 360 days following receipt of such Net Cash Proceeds), then no such prepayment shall be required. Any amounts not so applied to such reinvestment or as provided in Section 8.03 shall be applied to the prepayment of the Loans as provided in Section 2.13(d) below. If at the end of any such 180 day period (or 360 day period, as applicable) any portion of such Net Cash Proceeds has not been so reinvested, the Borrower will immediately make a prepayment of the Loans, to the extent required above.

 

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(vi) If any Revolving Loans are outstanding, and the aggregate amount of cash and Cash Equivalents of the Credit Parties and their Subsidiaries exceeds $25,000,000 for a period of five (5) consecutive Business Days, then not later than the first (1st) Business Day following the end of such five (5) Business Day period, the Borrower shall prepay the Revolving Loans in an amount equal to the lesser of (i) the outstanding amount of the Revolving Loans at such time and (ii) the aggregate amount of cash and Cash Equivalents in excess of $25,000,000 on such fifth (5th) Business Day. All such prepayments shall be applied to prepay, with interest and with any additional compensation required under Section 3.02, the Revolving Loans outstanding hereunder. All prepayments of Revolving Loans pursuant to this Section 2.13(c)(vi) shall be applied to the outstanding Revolving Loans of each Lender pro rata.

 

(vii) Certain Proceeds of Indebtedness. Not later than the Business Day following the date of the receipt by any Credit Party of the Net Cash Proceeds from any sale or issuance of any Indebtedness (other than any Indebtedness incurred pursuant to Section 7.04 or otherwise consented to by the Required Lenders after the Closing Date), the Borrower will make a prepayment of the Loans in an amount equal to 100% of such Net Cash Proceeds in accordance with Section 2.13(d) below.

 

(viii) Certain Proceeds of an Event of Loss. If during any fiscal year of the Borrower, any Credit Party has received cumulative Net Cash Proceeds during such fiscal year from one or more Events of Loss of at least $5,000,000, not later than the third Business Day following the date of receipt of any Net Cash Proceeds in excess of such amount, the Borrower will make a prepayment of the Loans with an amount equal to 100% of the Net Cash Proceeds then received in excess of such amount from any Event of Loss in accordance with Section 2.13(d) below. Notwithstanding the foregoing, in the event any property suffers an Event of Loss and (A) no Default or Event of Default has occurred and is continuing, and (B) the Borrower notifies the Administrative Agent and the Lenders in writing that it intends to replace, rebuild or restore the affected property or invest in other long-term assets of Holdings and its Subsidiaries, that such reinvestment can be accomplished within 180 days out of such Cash Proceeds and other funds available to the Borrower (which 180-day period shall be extended for an additional 180 days to the extent Borrower has entered into a legally binding agreement to reinvest such Net Cash Proceeds within such 180-day period), then no such prepayment of the Loans shall be required. If at the end of any such 180 day (or 360-day) period any portion of such Net Cash Proceeds from Events of Loss has not been so used to replace, rebuild or restore the affected property or invest in other long-term assets of Holdings and its Subsidiaries, the Borrower will immediately make a prepayment of the Loans, to the extent required above.

 

(d) Applications of Certain Prepayment Proceeds. Each prepayment required to be made pursuant to Section 2.13(c)(iv), (v), (vii) or (viii), above shall be applied as a mandatory prepayment of principal of first, the outstanding Term Loans, with such amounts being applied to the Scheduled Repayments (excluding the final payment), thereof in the inverse order of their maturity, second, to the final payment of the Term Loans, third, after no Term Loans are outstanding, the outstanding Swing Loans, and fourth, the outstanding Revolving Loans, and the Total Revolving Commitment shall not be permanently reduced on the date of any such prepayment by an amount equal to such prepayment in accordance with Section 2.12(b) and the LC Outstandings shall be Cash Collateralized to the extent required by Section 2.12(b).

 

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(e) Particular Loans to be Prepaid. With respect to each repayment or prepayment of Loans made or required by this Section, the Borrower shall designate the Types of Loans that are to be repaid or prepaid and the specific Borrowing(s) pursuant to which such repayment or prepayment is to be made; provided, however, that (i) the Borrower shall first so designate all Loans that are Base Rate Loans and Term SOFR Loans with Interest Periods ending on the date of repayment or prepayment prior to designating any other Term SOFR Loans for repayment or prepayment, and (ii) if the outstanding principal amount of Term SOFR Loans made pursuant to a Borrowing is reduced below the applicable Minimum Borrowing Amount as a result of any such repayment or prepayment, then all the Loans outstanding pursuant to such Borrowing shall, in the case of Term SOFR Loans, be Converted into Base Rate Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion with a view, but no obligation, to minimize breakage costs owing under Article ‎III.

 

(f) Breakage and Other Compensation. Any prepayment made pursuant to this ‎Section 2.13 shall be accompanied by any amounts payable in respect thereof under Article ‎III hereof.

 

(g) Term Lender Opt-Out. With respect to any prepayment of Term Loans pursuant to Section 2.13(c)(iv) or (v), the Term Lenders may decline to accept the applicable prepayment. The Borrower shall notify the Administrative Agent of any event giving rise to a prepayment under Section 2.13(c)(iv) or (v) at least ten (10) Business Days prior to the date of such prepayment. Each such notice shall specify the expected date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment that is required to be made under Section 2.13(c)(iv) or (v) (the “Prepayment Amount”). The Administrative Agent will promptly notify each Term Lender of the contents of any such prepayment notice so received from the Borrower, including the date on which such prepayment is to be made (the “Prepayment Date”). Any Term Lender may decline to accept all (but not less than all) of its share of any such prepayment (any such Lender, a “Declining Lender”) by providing written notice to the Administrative Agent no later than five (5) Business Days after the date of such Term Lender’s receipt of notice from the Administrative Agent regarding such prepayment. If any Term Lender does not give a notice to the Administrative Agent on or prior to such fifth (5th) Business Day informing the Administrative Agent that it declines to accept the applicable prepayment, then such Lender will be deemed to have accepted such prepayment. On any Prepayment Date, an amount equal to the Prepayment Amount minus the portion thereof allocable to Declining Lenders, in each case for such Prepayment Date, shall be paid to the Administrative Agent by the Borrower and applied by the Administrative Agent ratably to prepay Term Loans owing to Appropriate Lenders (other than Declining Lenders) in the manner described in Section 2.13(d) for such prepayment. The remaining amount may be retained by the Borrower (such remaining amounts, the “Declined Amounts”).

 

Method and Place of Payment.

 

(a) Generally. All payments made by the Borrower hereunder (including any payments made with respect to the Borrower Guaranteed Obligations under Article ‎X) under any Note or any other Loan Document shall be made without setoff, counterclaim or other defense.

 

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(b) Application of Payments. Except as specifically set forth elsewhere in this Agreement and subject to ‎Section 8.03, (i) all payments and prepayments of Revolving Loans and Unpaid Drawings with respect to Letters of Credit shall be applied by the Administrative Agent on a pro rata basis based upon each Lender’s Revolving Facility Percentage of the amount of such prepayment, (ii) all payments and prepayments of Term Loans shall be applied by the Administrative Agent to reduce the principal amount of the Term Loans made by each Lender with a Term Commitment, pro rata on the basis of their respective Term Commitments, and (iii) all payments or prepayments of Swing Loans shall be applied by the Administrative Agent to pay or prepay such Swing Loans.

 

(c) Payment of Obligations. Except as specifically set forth elsewhere in this Agreement, all payments under this Agreement with respect to any of the Obligations shall be made to the Administrative Agent on the date when due and shall be made at the Payment Office in immediately available funds and, except as set forth in the next sentence, shall be made in Dollars.

 

(d) Timing of Payments. Any payments under this Agreement that are made later than 2:00 P.M. (local time at the Payment Office) shall be deemed to have been made on the next succeeding Business Day. Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable during such extension at the applicable rate in effect immediately prior to such extension.

 

(e) Distribution to Lenders. Upon the Administrative Agent’s receipt of payments hereunder, the Administrative Agent shall immediately distribute to each Lender or the applicable LC Issuer, as the case may be, its ratable share, if any, of the amount of principal, interest, and Fees received by it for the account of such Lender. Payments received by the Administrative Agent in Dollars shall be delivered to the Lenders or the applicable LC Issuer, as the case may be, in Dollars in immediately available funds; provided, however, that if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, Unpaid Drawings, interest and Fees then due hereunder then, except as specifically set forth elsewhere in this Agreement and subject to ‎Section 8.03, such funds shall be applied, first, towards payment of interest and Fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and Fees then due to such parties, and second, towards payment of principal and Unpaid Drawings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and Unpaid Drawings then due to such parties.

 

Defaulting Lenders.

 

(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

 

(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders.

 

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(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.03 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any LC Issuer or Swing Line Lender hereunder; third, to Cash Collateralize the LC Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.16; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the LC Issuers’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.16; sixth, to the payment of any amounts owing to the Lenders, the LC Issuers or Swing Line Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the LC Issuers or Swing Line Lenders against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or reimbursement of any payment on any Letter of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans or reimbursement of any payment on any Letter of Credit were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Outstandings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Outstandings owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in LC Outstandings and Swing Loans are held by the Lenders pro rata in accordance with the Commitments under the applicable Credit Facilities without giving effect to Section 2.15(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

(iii) Certain Fees. (A) No Defaulting Lender shall be entitled to receive any Commitment Fee for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

 

(B) Each Defaulting Lender shall be entitled to receive LC Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Revolving Facility Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.16.

 

(C) With respect to any LC Fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to the Administrative Agent for the ratable benefit of each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in LC Outstandings or Swing Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each LC Issuer and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such LC Issuer’s or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.

 

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(iv) Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in LC Outstandings and Swing Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Facility Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set forth in Section 4.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Facility Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

 

(v) Cash Collateral, Repayment of Swing Loans. If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swing Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, Cash Collateralize the LC Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.16.

 

(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent and each Swing Line Lender and LC Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Loans to be held pro rata by the Lenders in accordance with the Commitments under the applicable Credit Facility (without giving effect to Section 2.15(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

(c) New Swing Loans/Letters of Credit. So long as any Lender is a Defaulting Lender, (i) the Swing Line Lender shall not be required to fund any Swing Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swing Loan and (ii) no LC Issuer shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

 

Cash Collateral.

 

(a) Fronting Exposure. At any time that there shall exist a Defaulting Lender, within one Business Day following the written request of the Administrative Agent or any LC Issuer (with a copy to the Administrative Agent) the Borrower shall Cash Collateralize the LC Issuers’ Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.

 

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(b) Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the LC Issuers, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of LC Outstandings, to be applied pursuant to clause (b) below. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the LC Issuers as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).

 

(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.16 or Section 2.15 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of L/C Outstandings (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

 

(d) Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce any LC Issuer’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.16 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and each LC Issuer that there exists excess Cash Collateral; provided that, subject to Section 2.15, the Person providing Cash Collateral and each LC Issuer may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations and provided, further that to the extent that such Cash Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.

 

Increase in Commitments.

 

(a) The Borrower may, by written notice to the Administrative Agent at any time after the Covenant Amendment Period and prior to the Term Loan Maturity Date, request on one or more occasions, Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments in an aggregate principal amount not to exceed $50,000,000 (provided that the aggregate amount of all Incremental Revolving Credit Commitments shall not exceed $10,000,000) from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided, that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its reasonable discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.

 

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(b) The Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the sum of (A) the margin then in effect for Term Loans that are Term SOFR Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of the Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above Adjusted Term SOFR on such Other Term Loans (which shall be increased by the amount any benchmark floor applicable to such Other Term Loans on the date such Other Term Loans are made exceeds Adjusted Term SOFR) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four year life to maturity or, if the actual maturity date falls earlier than four years, the lesser number of years, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from Holdings, the Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on Holdings, the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby as provided for in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower (any such amendment, an “Incremental Amendment”) and furnished to the other parties hereto, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.

 

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(c) All Incremental Term Loans shall rank pari passu in right of payment and security with the initial Term Loans and shall be guaranteed by the Guarantors.

 

(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, and (iii) the Borrower would be in pro forma compliance with the covenants set forth in Section 7.07.

 

(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Term SOFR Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.

 

(f) Each Incremental Revolving Loan shall contain terms and provisions identical to the terms and conditions applicable to the Revolving Facility.

 

ARTICLE III

INCREASED COSTS, ILLEGALITY AND TAXES

 

Increased Costs, Illegality, etc.

 

(a) In the event that (y) in the case of clause (i) below, the Administrative Agent or (z) in the case of clauses (ii) and (iii) below, any Lender or other Recipient, shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):

 

(i) on any date for determining the interest rate applicable to any Term SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such Term SOFR Loan; or

 

(ii) at any time, that such Lender or other Recipient shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or other Recipient deems material with respect to any Term SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (x) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender or other Recipient) or (y) other circumstances adversely affecting the availability of SOFR; or

 

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(iii) at any time, that the making or continuance of any Term SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR;

 

then, and in each such event, such Lender or other Recipient (or the Administrative Agent in the case of clause (i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or other Recipients). Thereafter (x) in the case of clause (i) above, the affected Type of Term SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or other Recipients that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of Term SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for Base Rate Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of clause (ii) above, the Borrower shall pay to such Lender or other Recipient, upon written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or other Recipient shall determine) as shall be required to compensate such Lender or other Recipient for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or other Recipient, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or other Recipient shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in ‎Section 3.01(b) as promptly as possible and, in any event, within the time period required by law.

 

(b) At any time that any Term SOFR Loan is affected by the circumstances described in ‎Section 3.01(a)(ii) or ‎(iii), the Borrower may (and in the case of a Term SOFR Loan affected pursuant to ‎Section 3.01(a)(iii) the Borrower shall) either (i) if the affected Term SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or other Recipient pursuant to ‎Section 3.01(a)(ii) or ‎(iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of Base Rate Loans or require the affected Lender or other Recipient to make its requested Loan as a Base Rate Loan, or (ii) if the affected Term SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or other Recipient to Convert each such Term SOFR Loan into a Base Rate Loan; provided, however, that if more than one Lender or other Recipient is affected at any time, then all affected Lenders or other Recipients must be treated the same pursuant to this ‎Section 3.01(b).

 

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(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Lender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s or its parent corporation’s policies with respect to capital adequacy and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this ‎Section 3.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this ‎Section 3.01(c) upon the subsequent receipt of such notice.

 

(d) Notwithstanding the foregoing, the provisions of ‎Section 2.09(i) shall apply with respect to a Benchmark Transition Event.

 

(e) The Borrower shall not be required to compensate a Lender pursuant to Section 3.01(a) or (c) for any such increased cost or reduction incurred more than one hundred eighty (180) days prior to the date that such Lender demands, or notifies the Borrower of its intention to demand, compensation therefor; provided that if the circumstance giving rise to such increased cost or reduction is retroactive, then such one hundred eighty (180) day period referred to above shall be extended to include the period of retroactive effect thereof.

 

Breakage Compensation. The Borrower shall compensate each Lender upon its written request (which request shall set forth the detailed basis for requesting and the method of calculating such compensation), for all reasonable losses, costs, expenses and liabilities (including, without limitation, any loss, cost, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its Term SOFR Loans) which such Lender may sustain in connection with any of the following: (i) if for any reason (other than a default by such Lender or the Administrative Agent) a Borrowing of Term SOFR Loans does not occur on a date specified therefor in a Notice of Borrowing or a Notice of Continuation or Conversion (whether or not withdrawn by the Borrower or deemed withdrawn pursuant to ‎Section 3.01(a)); (ii) if any repayment, prepayment, Conversion or Continuation of any Term SOFR Loan occurs on a date that is not the last day of an Interest Period applicable thereto; (iii) if any prepayment of any of its Term SOFR Loans is not made on any date specified in a notice of prepayment given by the Borrower; (iv) as a result of an assignment by a Lender of any Term SOFR Loan other than on the last day of the Interest Period applicable thereto pursuant to a request by the Borrower pursuant to ‎Section 3.05(b); or (v) as a consequence of (y) any other default by the Borrower to repay or prepay any Term SOFR Loans when required by the terms of this Agreement or (z) an election made pursuant to ‎Section 3.05(b). The written request of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such request within 10 days after receipt thereof.

 

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Net Payments.

 

(a) Defined Terms. For purposes of this Section 3.03, the term “Lender” includes any LC Issuer and the term “applicable law” includes FATCA.

 

(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Credit Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

(c) Payment of Other Taxes by the Borrower. The Credit Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

 

(d) Indemnification by the Credit Parties. The Credit Parties shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

 

(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(b) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).

 

(f) Evidence of Payments. As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 3.03, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

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(g) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent and at the time or times prescribed by applicable law, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent or prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.03(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,

 

(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax;

 

(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

 

(1)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(2)executed originals of IRS Form W-8ECI;

 

(3)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit L-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or

 

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(4)to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner;

 

(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

 

(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

 

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(h) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.03 (including by the payment of additional amounts pursuant to this Section 3.03), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

(i) Survival. Each party’s obligations under this Section 3.03 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

 

Increased Costs to LC Issuers. If after the Closing Date, there is a Change in Law by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any LC Issuer or any Lender with any request or directive (whether or not having the force of law) by any such authority, central bank or comparable agency (in each case made subsequent to the Closing Date) shall either (i) impose, modify or make applicable any reserve, deposit, capital adequacy or similar requirement against Letters of Credit issued by such LC Issuer or such Lender’s participation therein, or (ii) impose on such LC Issuer or any Lender any other conditions affecting this Agreement, any Letter of Credit or such Lender’s participation therein; and the result of any of the foregoing is to increase the cost to such LC Issuer or such Lender of issuing, maintaining or participating in any Letter of Credit, or to reduce the amount of any sum received or receivable by such LC Issuer or such Lender hereunder (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of taxes or similar charges), then, upon demand to the Borrower by such LC Issuer or such Lender (a copy of which notice shall be sent by such LC Issuer or such Lender to the Administrative Agent), the Borrower shall pay to such LC Issuer or such Lender such additional amount or amounts as will compensate any such LC Issuer or such Lender for such increased cost or reduction. A certificate submitted to the Borrower by any LC Issuer or any Lender, as the case may be (a copy of which certificate shall be sent by such LC Issuer or such Lender to the Administrative Agent), setting forth, in reasonable detail, the basis for the determination of such additional amount or amounts necessary to compensate any LC Issuer or such Lender as aforesaid shall be conclusive and binding on the Borrower absent manifest error, although the failure to deliver any such certificate shall not release or diminish the Borrower’s obligations to pay additional amounts pursuant to this ‎Section 3.04.

 

Change of Lending Office; Replacement of Lenders.

 

(a) Each Lender agrees that, upon the occurrence of any event giving rise to the operation of ‎Section 3.01(a)(ii) or ‎(iii), ‎3.01(c), ‎3.03 or ‎3.04 requiring the payment of additional amounts to the Lender, such Lender will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another Applicable Lending Office for any Loans or Commitments affected by such event; provided, however, that such designation is made on such terms that such Lender and its Applicable Lending Office suffer no economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of any such Section. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

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(b) If (i) any Lender requests any compensation, reimbursement or other payment under ‎Section 3.01(a)(ii) or ‎(iii), ‎3.01(c) or ‎3.04 with respect to such Lender, (ii) the Borrower is, or because of a matter in existence as of the date that the Borrower is seeking to exercise its rights under this Section will be, required to pay any additional amount to any Lender or Governmental Authority pursuant to ‎Section 3.03, or (iii) or if any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with the restrictions contained in ‎Section 11.06(c)), all its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations; provided, however, that (1) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed, (2) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts, including any breakage compensation under ‎Section 3.02 hereof), and (3) in the case of any such assignment resulting from a claim for compensation, reimbursement or other payments required to be made under ‎Section 3.01(a)(ii) or ‎(iii), ‎Section 3.01(c) or ‎Section 3.04 with respect to such Lender, or resulting from any required payments to any Lender or Governmental Authority pursuant to ‎Section 3.03, such assignment will result in a reduction in such compensation, reimbursement or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

 

(c) Nothing in this ‎Section 3.05 shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Section ‎3.01, ‎3.03 or ‎3.04.

 

Rates. The interest rate on Loans denominated in Dollars may be determined by reference to a benchmark rate that is, or may in the future become, the subject of regulatory reform or cessation. The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service. In connection with the use or administration of Term SOFR, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. The Administrative Agent will promptly notify the Borrower and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration Term SOFR.

 

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ARTICLE IV

CONDITIONS PRECEDENT

 

Conditions Precedent at Closing Date. The obligation of the Lenders to make Loans, and of any LC Issuer to issue Letters of Credit, is subject to the satisfaction of each of the following conditions on or prior to the Closing Date:

 

(i) Credit Agreement. This Agreement shall have been executed by Holdings, the Borrower, the Administrative Agent, each LC Issuer and each of the Lenders.

 

(ii) Notes. The Borrower shall have executed and delivered to the Administrative Agent the appropriate Note or Notes for the account of each Lender that has requested the same.

 

(iii) Security Agreement and Guaranty. The Credit Parties shall have duly executed and delivered a Pledge and Security Agreement (the “Security Agreement”) and a Guaranty Agreement (the “Guaranty”), in each case in form and substance reasonably acceptable to the Administrative Agent, and shall have executed and delivered all of the following in connection therewith, each of which shall be in form and substance satisfactory to the Administrative Agent: (A) a Perfection Certificate, and (B) each other Security Document that is required by this Agreement or the Security Agreement.

 

(iv) Fees and Fee Letters. The Borrower shall have (A) executed and delivered to the Administrative Agent, the Fee Letter and shall have paid to the Administrative Agent the fees required to be paid therein, and (B) paid or caused to be paid all reasonable fees and expenses of the Administrative Agent and of special counsel to the Administrative Agent that have been invoiced on or prior to the Closing Date.

 

(v) Corporate Resolutions and Approvals. The Administrative Agent shall have received certified copies of the resolutions of the Board of Directors (or similar governing body) of each Credit Party approving the Loan Documents to which such Credit Party is or may become a party, and of all documents evidencing other necessary corporate or other organizational action, as the case may be, and governmental approvals, if any, with respect to the execution, delivery and performance by such Credit Party of Transactions and the Loan Documents to which it is or may become a party and the expiration of all applicable waiting periods, all of which documents to be in form and substance reasonably satisfactory to the Administrative Agent.

 

(vi) Incumbency Certificates. The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of each Credit Party certifying the names and true signatures of the officers of such Credit Party authorized to sign the Loan Documents to which such Credit Party is a party and any other documents to which such Credit Party is a party that may be executed and delivered in connection herewith.

 

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(vii) Opinions of Counsel. The Administrative Agent shall have received such opinions of counsel from counsel to the Credit Parties, including opinions of local counsel for the Credit Parties in each jurisdiction in which any Credit Party is registered under the UCC, each of which opinions shall be addressed to the Administrative Agent and the Lenders and dated the Closing Date and in form and substance reasonably satisfactory to the Administrative Agent.

 

(viii) Recordation of Security Documents, Delivery of Collateral, Taxes, etc. The Security Documents (or proper notices or UCC financing statements in respect thereof) shall have been duly recorded, published and filed in such manner and in such places as is required by law to establish, perfect, preserve and protect the rights, Liens and security interests of the parties thereto and their respective successors and assigns, all Collateral items required to be physically delivered to the Administrative Agent thereunder shall have been so delivered, accompanied by any appropriate instruments of transfer, and all taxes, fees and other charges then due and payable in connection with the execution, delivery, recording, publishing and filing of such instruments and the issuance of the Obligations and the delivery of the Notes shall have been paid in full.

 

(ix) Evidence of Insurance. The Administrative Agent shall have (A) received certificates of insurance and other evidence satisfactory to it of compliance with the insurance requirements of this Agreement and the Security Documents and (B) received endorsements naming the Administrative Agent, for the benefit of the Lenders, as an additional insured on the liability insurance policies of the Credit Parties and as a loss payee on the property insurance policies of the Credit Parties.

 

(x) Search Reports. The Administrative Agent shall have received the results of UCC and other search reports from one or more commercial search firms acceptable to the Administrative Agent, listing all of the effective financing statements filed against any Credit Party, together with copies of such financing statements.

 

(xi) Organizational Documents. The Administrative Agent shall have received: (A) an original certified copy of the Certificate or Articles of Incorporation or equivalent formation document of each Credit Party and any and all amendments and restatements thereof, certified as of a recent date by the relevant Secretary of State; (B) the bylaws or governing documents of each Credit Party as in effect on the Closing Date, and (C) an original “long-form” good standing certificate or certificate of existence from the Secretary of State of the state of incorporation, dated as of a recent date, listing all charter documents affecting such Credit Party and certifying as to the good standing of such Credit Party.

 

(xii) Closing Certificate. The Administrative Agent shall have received a Closing Certificate, dated the Closing Date, of an Authorized Officer, to the effect that, at and as of the Closing Date, both before and after giving effect to the initial Borrowings hereunder and the application of the proceeds thereof: (i) no Default or Event of Default has occurred or is continuing; and (ii)  all representations and warranties of each Credit Party set forth in each Loan Document to which any Credit Party is a party are true and correct in all material respects (or in the case of any representation and warranty subject to a materiality qualifier, true and correct).

 

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(xiii) Financial Statements. The Administrative Agent shall have received (i) financial projections through the Maturity Date in form and substance satisfactory to the Administrative Agent, (ii) a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of and for the twelve-month period ending on March 31, 2020, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income), (iii) audited consolidated balance sheet of Holdings and related statements of income, retained earnings, and members’ equity and changes in financial position of Holdings as of the end of and for the fiscal years ended December 31, 2017, December 31, 2018 and December 31, 2019, (iv) unaudited consolidated balance sheets and related consolidated statements of income, retained earnings, and members’ equity as of March 31, 2020, and (v) auditors’ management letters, if any, for the fiscal years ended December 31, 2018 and December 31, 2019.

 

(xiv) Solvency Certificate. The Administrative Agent shall have received a solvency certificate in substantially the form attached hereto as Exhibit D, dated as of the Closing Date, and executed by a Financial Officer of the Borrower.

 

(xv) [Reserved].

 

(xvi) Payment of Outstanding Indebtedness, etc. The Administrative Agent shall have received evidence that immediately after the making of the Loans on the Closing Date, all Indebtedness under the Existing Credit Agreement and any other Indebtedness not permitted by ‎Section 7.04, together with all interest, all payment premiums and all other amounts due and payable with respect thereto, shall be paid in full from the proceeds of the initial Credit Event, and the commitments in respect of such Indebtedness shall be permanently terminated, and all Liens securing payment of any such Indebtedness shall be released and the Administrative Agent shall have received all payoff and release letters, Uniform Commercial Code Form UCC-3 termination statements or other instruments or agreements as may be suitable or appropriate in connection with the release of any such Liens.

 

(xvii) No Material Adverse Change. As of the Closing Date, no condition or event shall have occurred since December 31, 2019 that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect.

 

(xviii) Litigation. There shall not exist any litigation or proceeding seeking to enjoin or prevent the transactions contemplated hereby.

 

(xix) Know Your Customer Information Act. The Administrative Agent shall have received, at least five Business Days prior to the Closing Date, (i) all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act and (ii) information regarding the Beneficial Owners of the Borrower reasonably requested by the Administrative Agent, including without limitation, the complete legal names, addresses of residence, date of birth, social security number and/or tax identification number of each such Beneficial Owner.

 

(xx) Miscellaneous. The Credit Parties shall have provided to the Administrative Agent and the Lenders such other items and shall have satisfied such other conditions as may be reasonably required by the Administrative Agent or the Lenders.

 

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Conditions Precedent to All Credit Events. The obligations of the Lenders, the Swing Line Lender and each LC Issuer to make or participate in each Credit Event is subject, at the time thereof, to the satisfaction of the following conditions:

 

(a) Notice. The Administrative Agent (and in the case of subpart (iii) below, the applicable LC Issuer) shall have received, as applicable, (i) a Notice of Borrowing meeting the requirements of ‎Section 2.06(b) with respect to any Borrowing (other than a Continuation or Conversion), (ii) a Notice of Continuation or Conversion meeting the requirements of ‎Section 2.10(b) with respect to a Continuation or Conversion, or (iii) an LC Request meeting the requirements of ‎Section 2.05(b) with respect to each LC Issuance.

 

(b) No Default; Representations and Warranties. At the time of each Credit Event and also after giving effect thereto, (i) there shall exist no Default or Event of Default and (ii) all representations and warranties of the Credit Parties contained herein or in the other Loan Documents shall be true and correct in all material respects (or in the case of any representation and warranty subject to a materiality qualifier, true and correct) with the same effect as though such representations and warranties had been made on and as of the date of such Credit Event, except to the extent that such representations and warranties expressly relate to an earlier specified date, in which case such representations and warranties shall have been true and correct in all material respects as of the date when made.

 

(c) [Reserved].

 

(d) Cash and Cash Equivalents. After giving effect to such Borrowing and any transactions to be consummated therewith, the aggregate amount of cash and Cash Equivalents of the Credit Parties and their Subsidiaries shall not exceed $25,000,000.

 

The acceptance of the benefits of (i) the Credit Events on the Closing Date shall constitute a representation and warranty by the Borrower to the Administrative Agent, the Swing Line Lender, each LC Issuer and each of the Lenders that all of the applicable conditions specified in ‎Section 4.01 have been satisfied as of the times referred to in such Section and (ii) each Credit Event thereafter shall constitute a representation and warranty by the Borrower to the Administrative Agent, the Swing Line Lender, each LC Issuer and each of the Lenders that all of the applicable conditions specified in ‎Section 4.02 have been satisfied as of the times referred to in such Section.

 

ARTICLE V

 

REPRESENTATIONS AND WARRANTIES

 

In order to induce the Administrative Agent, the Lenders and each LC Issuer to enter into this Agreement and to make the Loans and to issue and to participate in the Letters of Credit provided for herein, each of the Borrower and Holdings makes the following representations and warranties to, and agreements with, the Administrative Agent, the Lenders and each LC Issuer, all of which shall survive the execution and delivery of this Agreement and each Credit Event:

 

Corporate Status. Holdings, the Borrower and each of its Subsidiaries (i) is a duly organized or formed and validly existing corporation, partnership or limited liability company, as the case may be, in good standing or in full force and effect under the laws of the jurisdiction of its formation and has the corporate, partnership or limited liability company power and authority, as applicable, to own its property and assets and to transact the business in which it is engaged and presently proposes to engage, and (ii) is duly qualified and is authorized to do business in all jurisdictions where it is required to be so qualified or authorized except where the failure to be so qualified would not have a Material Adverse Effect. Neither Holdings, the Borrower nor any of its Subsidiaries is an Affected Financial Institution.

 

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Corporate Power and Authority. Each Credit Party has the corporate or other organizational power and authority to execute, deliver and carry out the terms and provisions of the Loan Documents to which it is party and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is party. Each Credit Party has duly executed and delivered each Loan Document to which it is party and each Loan Document to which it is party constitutes the legal, valid and binding agreement and obligation of such Credit Party enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).

 

No Violation. Neither the execution, delivery and performance by any Credit Party of the Loan Documents to which it is party nor compliance with the terms and provisions thereof (i) will contravene any provision of any law, statute, rule, regulation, order, writ, injunction or decree of any Governmental Authority applicable to such Credit Party or its properties and assets, (ii) will conflict with or result in any breach of, any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (other than the Liens created pursuant to the Security Documents) upon any of the property or assets of such Credit Party pursuant to the terms of (A) any Material Contract, or (B) any other promissory note, bond, debenture, indenture, mortgage, deed of trust, credit or loan agreement, or any other agreement or other instrument related to Indebtedness, to which such Credit Party is a party or by which it or any of its property or assets are bound or to which it may be subject, or (iii) will violate any provision of the Organizational Documents of such Credit Party.

 

Governmental Approvals. No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, any Governmental Authority is required to authorize or is required as a condition to (i) the execution, delivery and performance by any Credit Party of any Loan Document to which it is a party or any of its obligations thereunder, or (ii) the legality, validity, binding effect or enforceability of any Loan Document to which any Credit Party is a party, except those that have been obtained and are in full force and effect and the filing and recording of financing statements and other documents necessary in order to perfect the Liens created by the Security Documents.

 

Litigation. There are no actions, suits or proceedings pending or, to the knowledge of the Borrower, threatened in writing with respect to any Credit Party or any of their respective Subsidiaries or against any of their respective properties (i) that have had, or could reasonably be expected to have, a Material Adverse Effect, or (ii) that question the validity or enforceability of any of the Loan Documents, or of any action to be taken by any Credit Party pursuant to any of the Loan Documents.

 

Use of Proceeds; Margin Regulations; Sanctions.

 

(a) The proceeds of all Loans and LC Issuances shall be utilized to (a) repay the obligations under the Existing Credit Agreement, (b) finance capital expenditures and (c) provide working capital and funds for other general corporate purposes, including, without limitation, to pay fees and expenses incurred in connection with the Transactions and for Permitted Acquisitions, in each case, not inconsistent with the terms of this Agreement.

 

(b) No part of the proceeds of any Credit Event will be used directly or indirectly to purchase or carry Margin Stock, or to extend credit to others for the purpose of purchasing or carrying any Margin Stock, in violation of any of the provisions of Regulations T, U or X of the Board of Governors of the Federal Reserve System. No Credit Party is engaged in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. At no time would more than 25% of the value of the assets of the Borrower or of Holdings, the Borrower and its consolidated Subsidiaries that are subject to any “arrangement” (as such term is used in Section 221.2(g) of such Regulation U) hereunder be represented by Margin Stock.

 

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(c) No part of the proceeds of any Credit Event will be used directly or indirectly to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions or in any other manner that would result in a violation of Sanctions by any Person.

 

Financial Statements.

 

(a) The Borrower has furnished to the Administrative Agent and the Lenders complete and correct copies of the Financial Statements required by Section 4.01(xiii). All financial statements delivered pursuant hereto or in connection herewith have been prepared in accordance with GAAP, consistently applied (except as stated therein), and fairly present the financial position of Holdings, the Borrower and its Subsidiaries as of the respective dates indicated and the consolidated results of their operations and cash flows for the respective periods indicated, subject in the case of any such financial statements that are unaudited, to normal audit adjustments, none of which shall be material. Holdings, the Borrower and its Subsidiaries did not have, as of the date of the latest financial statements referred to above, and will not have after giving effect to the incurrence of Loans or LC Issuances hereunder, any material or significant contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto in accordance with GAAP and that in any such case is material in relation to the business, operations, properties, assets, financial or other condition of Holdings, the Borrower and its Subsidiaries.

 

(b) The financial projections of Holdings, the Borrower and its Subsidiaries for the fiscal years 2020 through 2025 prepared by the Borrower and delivered to the Administrative Agent and the Lenders (the “Financial Projections”) were prepared on behalf of the Borrower in good faith after taking into account historical levels of business activity of Holdings, the Borrower and its Subsidiaries, known trends, including general economic trends, and all other information, assumptions and estimates considered by management of Holdings, the Borrower and its Subsidiaries to be pertinent thereto; provided, however, that no representation or warranty is made as to the impact of future general economic conditions or as to whether the Borrower’s projected consolidated results as set forth in the Financial Projections will actually be realized, it being recognized by the Lenders that such projections as to future events are not to be viewed as facts and that actual results for the periods covered by the Financial Projections may differ materially from the Financial Projections and that no assurance is or can be given that the projected results will be realized. No facts are known to Holdings or the Borrower as of the Closing Date which, if reflected in the Financial Projections, would result in a material adverse change in the assets, liabilities, results of operations or cash flows reflected therein.

 

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Solvency. The Borrower has received consideration that is the reasonable equivalent value of the obligations and liabilities that Holdings and the Borrower has incurred to the Administrative Agent, each LC Issuer and the Lenders under the Loan Documents. The Borrower now has capital sufficient to carry on its business and transactions and all business and transactions in which it is about to engage and is now solvent and able to pay its debts as they mature, and the Borrower owns property having a value, both at fair valuation and at present fair salable value, greater than the amount required to pay the Borrower’s debts; and the Borrower is not entering into the Loan Documents with the intent to hinder, delay or defraud its creditors. The Credit Parties, taken as a whole, now have capital sufficient to carry on their business and transactions and all business and transactions in which they are about to engage and are now solvent and able to pay their debts as they mature, and the Credit Parties, taken as a whole, own property having a value, both at fair valuation and at present fair salable value, greater than the amount required to pay the Credit Parties’ debts; and the Credit Parties are not entering into the Loan Documents with the intent to hinder, delay or defraud their creditors. For purposes of this ‎Section 5.08, “debt” means any liability on a claim, and “claim” means (y) right to payment whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, legal, equitable, secured or unsecured; or (z) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, secured or unsecured.

 

No Material Adverse Change. Since December 31, 2019, there has been no change in the condition or business of Holdings, the Borrower and its Subsidiaries taken as a whole, or their properties and assets considered as an entirety, except for changes none of which, individually or in the aggregate, has had or could reasonably be expected to have, a Material Adverse Effect.

 

Tax Returns and Payments. Each Credit Party has filed all federal and state income tax returns and all other material tax returns, domestic and foreign, required to be filed by it and has paid all material taxes and assessments payable by it that have become due, other than those not yet delinquent and except for (i) those prior year tax liability accruals set forth in the financial statements delivered to the Administrative Agent prior to the Closing Date or (ii) those contested in good faith. Each Credit Party has established on its books such charges, accruals and reserves in respect of taxes, assessments, fees and other governmental charges for all fiscal periods as are required by GAAP. No Credit Party knows of any proposed assessment for additional federal, foreign, state or provincial taxes for any period, or of any basis therefor, which, individually or in the aggregate, taking into account such charges, accruals and reserves in respect thereof as Holdings, the Borrower and its Subsidiaries have made, could reasonably be expected to have a Material Adverse Effect.

 

Title to Properties, etc. Each Credit Party has good and marketable title, in the case of Real Property (or valid Leaseholds, in the case of any leased property), and good title, in the case of all other property, to all of its properties and assets free and clear of Liens other than Permitted Liens. The interests of the Credit Parties and their Subsidiaries in the properties reflected in the most recent balance sheet referred to in ‎Section 5.07(a), taken as a whole, were sufficient, in the judgment of the Credit Parties, as of the date of such balance sheet for purposes of the ownership and operation of the businesses conducted by the Credit Parties and their Subsidiaries. Schedule 5.11 sets forth a complete list of Real Property owned and/or leased or subleased (as lessor or sublessor, lessee or sublessee) by the Credit Parties on the Closing Date.

 

Lawful Operations, etc. Each Credit Party and each of its Subsidiaries: (i) holds all necessary foreign, federal, state, provincial, local and other governmental licenses, registrations, certifications, permits and authorizations necessary to conduct its business and own its properties; and (ii) is in full compliance with all requirements imposed by law, regulation or rule, whether foreign, federal, state or local, that are applicable to it, its operations, or its properties and assets, including, without limitation, applicable requirements of Environmental Laws, except for any failure to obtain and maintain in effect, or noncompliance that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

 

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Environmental Matters.

 

(a) Each Credit Party and each of their Subsidiaries is in compliance with all applicable Environmental Laws, except to the extent such non-compliance could not reasonably be expected to have a Material Adverse Effect. All licenses, permits, registrations or approvals required for the conduct of the business of each Credit Party and each of their Subsidiaries under any Environmental Law have been secured and each Credit Party and each of their Subsidiaries is in substantial compliance therewith, except for such licenses, permits, registrations or approvals the failure to secure or to comply therewith is not reasonably likely to have a Material Adverse Effect. No Credit Party nor any of their Subsidiaries has received written notice, or otherwise knows, that it is in any respect in noncompliance with, breach of or default under any applicable writ, order, judgment, injunction, or decree to which such Credit Party or such Subsidiary is a party or that would affect the ability of such Credit Party or such Subsidiary to operate any Real Property and no event has occurred and is continuing that, with the passage of time or the giving of notice or both, would constitute noncompliance, breach of or default thereunder, except in each such case, such noncompliance, breaches or defaults as would not reasonably be expected to, in the aggregate, have a Material Adverse Effect. There are no Environmental Claims pending or, to the knowledge of any Credit Party, threatened wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect. There are no facts, circumstances, conditions or occurrences on any Real Property now or at any time owned, leased or operated by the Credit Parties or their Subsidiaries or on any property adjacent to any such Real Property, that are known by the Credit Parties or as to which any Credit Party or any such Subsidiary has received written notice, that could reasonably be expected: (i) to form the basis of an Environmental Claim against any Credit Party or any of their Subsidiaries or any Real Property of a Credit Party or any of their Subsidiaries; or (ii) to cause such Real Property to be subject to any restrictions on the ownership, occupancy, use or transferability of such Real Property under any Environmental Law, except in each such case, such Environmental Claims or restrictions that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect.

 

(b) Hazardous Materials have not at any time been (i) generated, used, treated or stored on, or transported to or from, any Real Property of the Credit Parties or any of their Subsidiaries or (ii) released on or about any such Real Property, in each case where such occurrence or event is not in compliance with or could give rise to liability under Environmental Laws and is reasonably likely to have a Material Adverse Effect.

 

Compliance with ERISA.

 

(a) Compliance by the Credit Parties with the provisions hereof and Credit Events contemplated hereby will not involve any non-exempt prohibited transaction within the meaning of ERISA or Section 4975 of the Code. Except as could not reasonably be expected to have a Material Adverse Effect, the Credit Parties, their Subsidiaries and each ERISA Affiliate (i) has fulfilled all obligations under the minimum funding standards of ERISA and the Code with respect to each Plan that is not a Multi-Employer Plan or a Multiple Employer Plan, (ii) has satisfied all contribution obligations in respect of each Multi-Employer Plan and each Multiple Employer Plan, (iii) is in compliance in all material respects with all other applicable provisions of ERISA and the Code with respect to each Plan, each Multi-Employer Plan and each Multiple Employer Plan, and (iv) has not incurred any liability under Title IV of ERISA to the PBGC with respect to any Plan, any Multi-Employer Plan, any Multiple Employer Plan, or any trust established thereunder. No Plan or trust created thereunder has been terminated, and there have been no Reportable Events, with respect to any Plan or trust created thereunder or with respect to any Multi-Employer Plan or Multiple Employer Plan, which termination or Reportable Event could reasonably be expected to have Material Adverse Effect. No Credit Party nor any Subsidiary of a Credit Party nor any ERISA Affiliate is at the date hereof, or has been at any time within the five years preceding the date hereof, an employer required to contribute to any Multi-Employer Plan or Multiple Employer Plan, or a “contributing sponsor” (as such term is defined in Section 4001 of ERISA) in any Multi-Employer Plan or Multiple Employer Plan. No Credit Party nor any Subsidiary of a Credit Party nor any ERISA Affiliate has any contingent liability with respect to any post-retirement “welfare benefit plan” (as such term is defined in ERISA) except as has been disclosed to the Administrative Agent and the Lenders in writing.

 

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(b) The Borrower represents and warrants as of the Closing Date that the Borrower is not and will not be using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Plans in connection with the Loans, the Letters of Credit or the Commitments.

 

Intellectual Property, etc. Each Credit Party and each of its Subsidiaries has obtained or has the right to use all patents, trademarks, service marks, trade names, copyrights, licenses and other rights with respect to the foregoing necessary for the present and planned future conduct of its business, without any known conflict with the rights of others, except for such patents, trademarks, service marks, trade names, copyrights, licenses and rights, the loss of which, and such conflicts that, in any such case individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect. As of the Closing Date, Schedule 5.15 sets forth a complete list of all material licenses, trade names and service marks and all registered patents, trademarks and copyrights, in each case with respect to Intellectual Property.

 

Investment Company Act, etc. No Credit Party nor any of its Subsidiaries is subject to regulation with respect to the creation or incurrence of Indebtedness under the Investment Company Act of 1940, as amended, the Federal Power Act, as amended or any applicable Federal or state public utility law.

 

Insurance. The Credit Parties and their Subsidiaries maintain insurance coverage by such insurers and in such forms and amounts and against such risks as are generally consistent with industry standards and in each case in compliance with the terms of ‎Section 6.03. Schedule 5.17 sets forth a complete list of all insurance maintained by the Credit Parties on the Closing Date.

 

Burdensome Contracts; Labor Relations. No Credit Party nor any of its Subsidiaries (a) is subject to any burdensome labor contract, agreement, corporate restriction, judgment, decree or order, (b) is a party to any labor dispute affecting any bargaining unit or other group of employees generally, (c) is subject to any strike, slowdown, workout or other concerted interruptions of operations by employees of a Credit Party or any Subsidiary, whether or not relating to any labor contracts, (d) is subject to any pending or, to the knowledge of any Credit Party, threatened, unfair labor practice complaint, before the National Labor Relations Board, (e) is subject to any pending or, to the knowledge of any Credit Party, threatened grievance or arbitration proceeding arising out of or under any collective bargaining agreement, (f) is subject to any pending or, to the knowledge of any Credit Party, threatened significant strike, labor dispute, slowdown or stoppage, or (g) is, to the knowledge of the Credit Parties, involved or subject to any union representation organizing or certification matter with respect to the employees of the Credit Parties or any of their Subsidiaries, except (with respect to any matter specified in any of the above clauses) for such matters as, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Neither Holdings, the Borrower nor any of its Subsidiaries has suffered any strikes, walkouts or work stoppages in the five years preceding the Closing Date.

 

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Security Interests. Once executed and delivered, each of the Security Documents creates, as security for the Obligations, a valid and enforceable, and upon making the filings and recordings referenced in the next sentence, perfected security interest in and Lien on all of the Collateral subject thereto from time to time, in favor of the Administrative Agent for the benefit of the Secured Creditors, superior to and prior to the rights of all third persons and subject to no other Liens, except that the Collateral under the Security Documents may be subject to Permitted Liens. No filings or recordings are required in order to perfect the security interests created under any Security Document except for filings or recordings required in connection with any such Security Document that shall have been made, or for which satisfactory arrangements have been made, upon or prior to the execution and delivery thereof. All recording, stamp, intangible or other similar taxes required to be paid by any Person under applicable legal requirements or other laws applicable to the property encumbered by the Security Documents in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement thereof have been paid.

 

True and Complete Disclosure. The factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Credit Party to the Administrative Agent or any Lender for purposes of or in connection with this Agreement or any transaction contemplated herein, other than the Financial Projections (as to which representations are made only as provided in ‎Section 5.07(b)), is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Person in writing to the Administrative Agent or any Lender will be, complete and correct in all material respects on the date as of which such information is dated or certified and does not contain any untrue statement of material fact or omit to state any material fact necessary to make such information (taken as a whole) not misleading at such time in light of the circumstances under which such information was provided, except that all information consisting of financial projections prepared by any Credit Party or any Subsidiary is only represented herein as being based on good faith estimates and assumptions believed by such persons to be reasonable at the time made, it being recognized that such projections are not to be viewed as facts and are subject to significant uncertainties and contingencies many of which are beyond the Credit Parties’ control, and that actual results during the period or periods covered by any such projections may differ materially from the projected results, and that no assurance is or can be given that the projected results will be realized.

 

Defaults. No Default or Event of Default has occurred and is continuing.

 

Capitalization. As of the Closing Date, Schedule 5.22 sets forth a true, complete and accurate description of the equity capital structure of Holdings, the Borrower and each of its Subsidiaries showing, for each Subsidiary of Holdings, accurate ownership percentages of the equityholders of record and accompanied by a statement of authorized and issued Equity Interests for each such Person. Except as set forth on Schedule 5.22, as of the Closing Date (a) there are no preemptive rights, outstanding subscriptions, warrants or options to purchase any Equity Interests of Holdings, the Borrower or any Subsidiary of the Borrower, (b) there are no obligations of Holdings, the Borrower or any Subsidiary of the Borrower to redeem or repurchase any of its Equity Interests and (c) there is no agreement, arrangement or plan to which Holdings, the Borrower or any Subsidiary of the Borrower is a party or of which any such Person has knowledge that could directly or indirectly affect the capital structure of any such Person. The Equity Interests of Borrower and each Subsidiary described on Schedule 5.22 (i) are validly issued and fully paid and non-assessable (to the extent such concepts are applicable to the respective Equity Interests) and (ii) are owned of record and beneficially as set forth on Schedule 5.22, the Equity Interests owned by Holdings, the Borrower and each of their respective Subsidiaries, are owned free and clear of all Liens (other than Liens created under the Security Documents). The Organizational Documents of each such Person whose Equity Interests are subject to the Liens created under the Loan Documents do not and could not restrict or inhibit any transfer of those shares on creation or enforcement of the Liens created under the Loan Documents.

 

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Anti-Terrorism and Anti-Money Laundering Law Compliance. Each Credit Party and each Subsidiary of each Credit Party is and will remain in compliance with all U.S. trade, economic or financial sanctions laws, embargoes, Executive Orders, restrictive measures and implementing regulations as promulgated by the U.S. Department of State, the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), the European Union and Her Majesty’s Treasury, all applicable anti-money laundering and counter-terrorism financing provisions of the Bank Secrecy Act or Executive Order No. 13224, Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism, as amended, and other applicable law and all regulations issued or promulgated pursuant thereto as well as all applicable anti-corruption laws. Each Credit Party and each Subsidiary of each Credit Party is and will remain in compliance with all other trade, economic or financial sanctions and anti-money laundering or anti-terrorism laws applicable to it. No Credit Party and no Subsidiary or Affiliate of a Credit Party and, to the knowledge of the Borrower, no Affiliate, director, officer, employee or agent of any Credit Party or any of its Subsidiaries is a Person that is, or is owned or controlled by Persons that are (i) the subject of any trade, economic or financial sanctions laws, embargoes or restrictive measures administered or enforced by OFAC, the U.S. Department of State, the United Nations Security Council or other relevant sanctions authority (collectively, “Sanctions”) or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions (a) is a Person designated by the U.S. government on the list of the Specially Designated Nationals and Blocked Persons (the “SDN List”) with which a U.S. Person cannot deal with or otherwise engage in business transactions, (b) is a Person who is otherwise the target of U.S. economic sanctions laws such that a U.S. Person cannot deal or otherwise engage in business transactions with such Person or (c) is controlled by (including without limitation by virtue of such person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any person or entity on the SDN List or a foreign government that is the target of U.S. economic sanctions prohibitions such that the entry into, or performance under, this Agreement or any other Loan Document would be prohibited under U.S. law. The Credit Parties, each of their Subsidiaries and each of their Affiliates are in compliance with (a) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B Chapter V, as amended) and any other enabling legislation or executive order relating thereto, (b) the Patriot Act and (c) other federal, state or other applicable laws relating to “know your customer” and anti-money laundering rules and regulations. No part of the proceeds of any Loan will be used directly or indirectly for any payments to any Person, government official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.

 

Location of Bank Accounts. Schedule 5.24 sets forth a complete and accurate list as of the Closing Date of all deposit, checking and other bank accounts, all securities and other accounts maintained with any broker dealer and all other similar accounts maintained by each Credit Party, together with a description thereof (i.e., the bank or broker dealer at which such deposit or other account is maintained and the account number and the purpose thereof).

 

Material Contracts. As of the Closing Date, all Material Contracts are in full force and effect and no material defaults by a Credit Party currently exist thereunder.

 

Affiliate Transactions. As of the Closing Date, except as disclosed in any filing with the SEC on Form 10-K, 10-Q or 8-K (or any successor forms) prior to the date hereof, there are no existing or proposed agreements, arrangements or transactions between any Credit Party and any of the officers, members, managers, directors, stockholders, parents, other interest holders, employees, or Affiliates (other than the Subsidiaries) of any Credit Party or any members of their respective immediate families.

 

Beneficial Ownership. The information regarding Beneficial Owners provided to the Administrative Agent and the Lenders pursuant to Section 4.01(xviii) on or prior to the Closing Date, as updated from time to time in accordance with this Agreement, is accurate, complete and correct as of the date hereof and as of the date any such update is delivered.

 

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Status of Obligations as Senior Indebtedness. All of the Obligations and fees and expenses in connection therewith shall constitute “senior indebtedness” or similar term as defined in the documentation governing any Material Indebtedness relating to the Obligations.

 

Status of Holdings. Holdings has not engaged in any activities or business or incurred any Indebtedness or other liabilities as of the Closing Date, except as permitted by Section 7.14 and except in connection with its formation and the Loan Documents, nor is it holding assets other than the Equity Interests in the Borrower.

 

ARTICLE VI

AFFIRMATIVE COVENANTS

 

The Borrower hereby covenants and agrees that on the Closing Date and thereafter so long as this Agreement is in effect and until such time as the Commitments have been terminated, no Notes remain outstanding and the Loans, together with interest, Fees and all other Obligations incurred hereunder and under the other Loan Documents (other than contingent obligations for which no claim has been made), have been paid in full, as follows:

 

Reporting Requirements. The Borrower will furnish to the Administrative Agent and each Lender:

 

(a) Annual Financial Statements. As soon as available and in any event within 90 days after the close of each fiscal year of Holdings, the audited consolidated balance sheets of Holdings, the Borrower and its consolidated Subsidiaries as at the end of such fiscal year and the related consolidated statements of income, of stockholders’ equity and of cash flows for such fiscal year, in each case setting forth comparative figures for the preceding fiscal year, all in reasonable detail and accompanied by the opinion with respect to such consolidated financial statements of independent public accountants of recognized national standing selected by Holdings or the Borrower, which opinion shall be unqualified (except any “going concern” qualification or exception as a result of the maturity of a Credit Facility within the next 12 months) and shall (i) state that such accountants audited such consolidated financial statements in accordance with generally accepted auditing standards, that such accountants believe that such audit provides a reasonable basis for their opinion, and that in their opinion such consolidated financial statements present fairly, in all material respects, the consolidated financial position of Holdings, the Borrower and its consolidated Subsidiaries as at the end of such fiscal year and the consolidated results of their operations and cash flows for such fiscal year in conformity with generally accepted accounting principles, or (ii) contain such statements as are customarily included in unqualified reports of independent accountants in conformity with the recommendations and requirements of the American Institute of Certified Public Accountants (or any successor organization) together with all management letters of such accountants addressed to the Borrower or any other Credit Party; notwithstanding the above, if Holdings or the Borrower seek and obtain a time extension for the date on which the annual financial statements are due with the SEC, then the 90 days after the close of such fiscal year of Holdings shall be automatically extended by the same number of days as approved by the SEC.

 

(b) Quarterly Financial Statements. As soon as available and in any event within 45 days after the close of each of the first three quarterly accounting periods in each fiscal year of the Borrower (commencing with the fiscal quarter ending September 30, 2020), the unaudited consolidated balance sheets of Holdings, the Borrower and its consolidated Subsidiaries as at the end of such quarterly period and the related unaudited consolidated statements of income and of cash flows for such quarterly period and/or for the fiscal year to date, and setting forth, in the case of such unaudited consolidated and consolidating statements of income and of cash flows, comparative figures for the related periods in the prior fiscal year, and which shall be certified on behalf of the Borrower by the Chief Financial Officer of the Borrower, subject to changes resulting from normal year-end audit adjustments.

 

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Documents required to be delivered pursuant to Section 6.01(a) and Section 6.01(b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings posts such documents, or provides a link thereto on Holdings’ website on the internet; or (ii) on which such documents are posted on the Borrower’s behalf on an internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third party website or whether sponsored by the Administrative Agent); provided that (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic version of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

 

(c) Officer’s Compliance Certificates. At the time of the delivery of the financial statements provided for in subparts (a) and (b) above, (i) a certificate (a “Compliance Certificate”), substantially in the form of Exhibit E, signed by a Financial Officer to the effect that (A) no Default or Event of Default exists or, if any Default or Event of Default does exist, specifying the nature and extent thereof and the actions the Credit Parties have taken or proposes to take with respect thereto, and (B) the representations and warranties of the Credit Parties are true and correct in all material respects, except to the extent that any relate to an earlier specified date, in which case, such representations shall be true and correct in all material respects as of the date made, which certificate shall set forth the calculations of Consolidated Net Leverage Ratio, Consolidated Leverage Ratio, Fixed Charge Coverage Ratio, the Lease Revenue Test, Liquidity and Capital Expenditures, in each case, regardless of if such provisions are tested for such period, and (ii) a Narrative Report with respect to such financial statements and any other operating reports prepared by management for such period.

 

(d) Budgets and Forecasts. Not later than 30 days after the commencement of any fiscal year of Holdings, the Borrower and its Subsidiaries, commencing with the fiscal year ending December 31, 2021, a consolidated budget in reasonable detail for each of the four fiscal quarters of such fiscal year, and (if and to the extent prepared by management of the Borrower or any other Credit Party) for any subsequent fiscal years, as customarily prepared by management for its internal use, setting forth, with appropriate discussion, the forecasted balance sheet, income statement, operating cash flows and capital expenditures of Holdings, the Borrower and its Subsidiaries for the period covered thereby, and the principal assumptions upon which forecasts and budget are based.

 

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(e) Notices. Promptly, and in any event within three Business Days, after any Credit Party or any Subsidiary obtains knowledge thereof, notice of:

 

(i) the occurrence of any event that constitutes a Default or Event of Default, which notice shall specify the nature thereof, the period of existence thereof and what action Holdings, the Borrower or the applicable Subsidiary proposes to take with respect thereto;

 

(ii) the commencement of, or any other material development concerning, any litigation or governmental or regulatory proceeding pending against any Credit Party or any Subsidiary, if the same could be reasonably likely to have a Material Adverse Effect;

 

(iii) any amendment or waiver of the terms of, or notice of a default or an event of default under, the Subordinated Debt Documents;

 

(iv) any event that could reasonably be expected to have a Material Adverse Effect; or

 

(v) promptly after the transmission or receipt thereof, as applicable, copies of all notices received or sent by any Credit Party to or from the holders of any Material Indebtedness or any trustee with respect thereto.

 

(f) ERISA. Promptly, and in any event within three (3) days after any Credit Party or any Subsidiary of a Credit Party or any ERISA Affiliate knows of the occurrence of any ERISA Event that would reasonably be expected to have a Material Adverse Effect, the Borrower will deliver to the Administrative Agent and each of the Lenders a certificate of an Authorized Officer of the Borrower setting forth the full details as to such occurrence and the action, if any, that such Credit Party or such Subsidiary of such Credit Party or such ERISA Affiliate is required or proposes to take, together with any notices required or proposed to be given by such Credit Party or such Subsidiary of such Credit Party or the ERISA Affiliate to or filed with the PBGC, a Plan participant or the Plan administrator with respect thereto.

 

(g) Environmental Matters. Promptly upon, and in any event within 10 Business Days after, an officer of a Credit Party or any Subsidiary of a Credit Party obtaining knowledge thereof, notice of one or more of the following environmental matters to the extent any of the following could reasonably be expected to have a Material Adverse Effect: (i) any pending or threatened Environmental Claim against such Credit Party or any of its Subsidiaries or any Real Property owned or operated by such Credit Party or any of its Subsidiaries; (ii) any condition or occurrence on or arising from any Real Property owned or operated by such Credit Party or any of its Subsidiaries that (A) results in noncompliance by such Credit Party or any of its Subsidiaries with any applicable Environmental Law or (B) would reasonably be expected to form the basis of an Environmental Claim against such Credit Party or any of its Subsidiaries or any such Real Property; (iii) any condition or occurrence on any Real Property owned, leased or operated by such Credit Party or any of its Subsidiaries that could reasonably be expected to cause such Real Property to be subject to any restrictions on the ownership, occupancy, use or transferability by such Credit Party or any of its Subsidiaries of such Real Property under any Environmental Law; and (iv) the taking of any removal or remedial action in response to the actual or alleged presence of any Hazardous Material on any Real Property owned, leased or operated by such Credit Party or any of its Subsidiaries as required by any Environmental Law or any governmental or other Global agency. All such notices shall describe in reasonable detail the nature of the Environmental Claim, the Credit Party’s or such Subsidiary’s response thereto and the potential exposure in Dollars of the Credit Parties and their Subsidiaries with respect thereto.

 

(h) SEC Reports and Registration Statements. Promptly after transmission thereof or other filing with the SEC, copies of all registration statements (other than the exhibits thereto and any registration statement on Form S-8 or its equivalent) and all annual, quarterly or current reports that any Credit Party or any Subsidiary files with the SEC on Form 10-K, 10-Q or 8-K (or any successor forms). Any such documents that are filed pursuant to and are accessible through the SEC’s EDGAR system will be deemed to have been provided in accordance with this clause (h) so long as the Administrative Agent and each Lender have received notifications of the same.

 

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(i) Annual, Quarterly and Other Reports. Promptly after transmission thereof to its stockholders, copies of all annual, quarterly and other reports and all proxy statements that Holdings or the Borrower furnishes to its stockholders generally. Any such documents that are filed pursuant to and are accessible through the SEC’s EDGAR system will be deemed to have been provided in accordance with this clause (i) so long as the Administrative Agent and each Lender have received notifications of the same.

 

(j) Auditors’ Internal Control Comment Letters, etc. Promptly upon receipt thereof, a copy of each letter or memorandum commenting on internal accounting controls and/or accounting or financial reporting policies followed by the Credit Parties and/or any of their Subsidiaries that is submitted to such Credit Party or Subsidiary, as applicable, by its independent accountants in connection with any annual or interim audit made by them of the books of Holdings, the Borrower or any of its Subsidiaries.

 

(k) Liquidity Certificate. As soon as available and in any event within 5 days after the end of each month (commencing with the month ending March 31, 2022), a certificate (a “Liquidity Certificate”) calculating the Liquidity of the Credit Parties as of the last day of such month and the calculations demonstrating such amount and certified by the Chief Financial Officer of the Borrower; provided however, that the Borrower shall not be required to deliver a Liquidity Certificate after both (x) the fiscal quarter of the Borrower for which the Borrower provides a Compliance Certificate in accordance with Section 6.10(c), demonstrating a Consolidated Leverage Ratio of less than 3.00:1.00 and (y) the Covenant Amendment Period has ended.

 

(l) Information Relating to Collateral. At the time of the delivery of the annual financial statements provided for in subpart (a) above, a certificate of an Authorized Officer of the Borrower (i) setting forth any changes to the information required pursuant to the Perfection Certificate or confirming that there has been no change in such information since the date of the most recently delivered or updated Perfection Certificate, (ii) outlining all material insurance coverage maintained as of the date of such report by the Credit Parties and all material insurance coverage planned to be maintained by the Credit Parties in the immediately succeeding fiscal year, and (iii) certifying that no Credit Party has taken any actions (and is not aware of any actions so taken) to terminate any UCC financing statements or other appropriate filings, recordings or registrations, including all refilings, rerecordings and reregistrations, containing a description of the Collateral have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction identified pursuant to clause (i) above to the extent necessary to protect and perfect the security interests and Liens under the Security Documents for a period of not less than 18 months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period).

 

(m) Violation of Anti-Terrorism Laws. Promptly (i) if any Credit Party obtains knowledge that any Credit Party or any Person that owns, directly or indirectly, any Equity Interests of any Credit Party, or any other holder at any time of any direct or indirect equitable, legal or beneficial interest therein is the subject of any of the Anti-Terrorism Laws, such Credit Party will notify the Administrative Agent and (ii) upon the request of the Administrative Agent or any Lender (through the Administrative Agent), such Credit Party will provide any information the Administrative Agent or such Lender believes is reasonably necessary to be delivered to comply with the USA Patriot Act or to demonstrate compliance with any reporting requirement under any other applicable anti-terrorism or anti-money laundering act or regulation.

 

(n) Other Information. Promptly upon the reasonable request therefor, such other information or documents (financial or otherwise) relating to any Credit Party or any Subsidiary as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request from time to time.

 

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(o) Showroom Sales Performance. (x) During the Covenant Amendment Period, within five (5) Business Days of the last day of each fiscal month, and (y) at all other times after the Covenant Amendment Period, in connection with the delivery of the Compliance Certificate, in each case, a consolidated showroom sales report in form and detail reasonably acceptable to the Administrative Agent and in any case consistent in form with such report previously delivered to the Administrative Agent prior to the First Amendment Effective Date.

 

(p) 13-Week Cash Flow Forecast. During the Covenant Amendment Period, beginning on Monday March 11, 2022, and continuing on every other Monday thereafter, a rolling 13-week cash flow forecast of the Credit Parties and their Subsidiaries covering the 13-week period (beginning with the date of delivery of such forecast) in form and detail reasonably satisfactory to the Administrative Agent.

 

Books, Records and Inspections. Each Credit Party will, and will cause each of its Subsidiaries to, (i) keep proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of such Credit Party or such Subsidiary, as the case may be, in accordance with GAAP; and (ii) permit officers and designated representatives of the Administrative Agent (and, during the continuance of any Event of Default, representatives of each Lender may accompany the representatives of the Administrative Agent) to visit and inspect any of the properties or assets of such Credit Party and/or its Subsidiaries in whomsoever’s possession (but only to the extent such Credit Party or such Subsidiary, as applicable, has the right to do so to the extent in the possession of another Person), to examine the books of account of such Credit Party or such Subsidiary, as applicable, and make copies thereof and take extracts therefrom, and to discuss the affairs, finances and accounts of such Credit Party and/or such Subsidiary, as applicable, with, and be advised as to the same by, its and their officers and independent accountants and independent actuaries, if any, all at such reasonable times and intervals and to such reasonable extent as the Administrative Agent or any of the Lenders (through the Administrative Agent) may request; provided that excluding any such visits and inspections during the continuation of an Event of Default, (i) only the Administrative Agent on behalf of the Lenders may exercise rights under this Section 6.02, and (ii) such exercise shall be at the Borrower’s expense; provided further that unless an Event of Default has occurred and continuing, the Borrower shall not be responsible for the expenses incurred in the exercise such rights more often than one time during any calendar year; provided still further that to the extent that the books and records of account are available electronically, such portion of the inspections shall be conducted remotely.

 

Insurance.

 

(a) Each Credit Party will, and will cause each of its Subsidiaries to, (i) maintain insurance coverage by such insurers and in such forms and amounts and against such risks as are generally consistent with the insurance coverage maintained by the Credit Parties and their Subsidiaries as of the Closing Date, and (ii) forthwith upon the Administrative Agent’s or any Lender’s written request, furnish to the Administrative Agent or such Lender such information about such insurance as the Administrative Agent or such Lender may from time to time reasonably request, which information shall be prepared in form and detail reasonably satisfactory to the Administrative Agent or such Lender and certified by an Authorized Officer of the Borrower.

 

(b) Each Credit Party will at all times keep its respective property that is subject to the Lien of any Security Document insured in favor of the Administrative Agent, for the benefit of the Secured Creditors and all policies or certificates (or certified copies thereof) with respect to such insurance (and any other insurance maintained by the Credit Parties) (i) shall be endorsed to the Administrative Agent’s satisfaction for the benefit of the Administrative Agent (including, without limitation, by naming the Administrative Agent as loss payee (with respect to Collateral) or, to the extent permitted by applicable law, as an additional insured), (ii) shall state that such insurance policies shall not be canceled without 30 days’ prior written notice thereof (or 10 days’ prior written notice in the case of cancellation for the non-payment of premiums) by the respective insurer to the Administrative Agent, (iii) shall provide that the respective insurers irrevocably waive any and all rights of subrogation with respect to the Administrative Agent and the Lenders, and (iv) shall in the case of any such certificates or endorsements in favor of the Administrative Agent, be delivered to or deposited with the Administrative Agent.

 

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(c) Each Credit Party shall maintain at all times, with respect to any Mortgaged Real Property that is a Flood Hazard Property, the flood insurance required by Section 6.10(c)(iv), and shall deliver to the Administrative Agent evidence of such insurance in form and substance reasonably satisfactory to the Administrative Agent, including, without limitation, annual renewals of such insurance.

 

(d) If any Credit Party shall fail to maintain any insurance in accordance with this ‎Section 6.03, or if any Credit Party shall fail to so endorse and deliver or deposit all endorsements or certificates with respect thereto, the Administrative Agent shall have the right (but shall be under no obligation) to procure such insurance and the Borrower agrees to reimburse the Administrative Agent on demand for all costs and expenses of procuring such insurance.

 

Payment of Taxes and Claims. Each Credit Party will pay and discharge, and will cause each of its Subsidiaries to pay and discharge, all material taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it, prior to the date on which penalties attach thereto, and all lawful claims that, if unpaid, might become a Lien or charge upon any properties of any Credit Party or any of their respective Subsidiaries; provided, however, that no Credit Party nor any of their respective Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim that is being contested in good faith and by proper proceedings if (i) it has maintained adequate reserves with respect thereto in accordance with GAAP and (ii) in the case of a tax or claim that has or may become a Lien against any of the Collateral, such proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy such tax or claim. Without limiting the generality of the foregoing, each Credit Party will, and will cause each of its Subsidiaries to, pay in full all of its wage obligations in accordance with the Fair Labor Standards Act (29 U.S.C. Sections 206-207), with respect to its employees subject thereto, and any comparable provisions of applicable law.

 

Corporate Franchises. Each Credit Party will do, and will cause each of its Subsidiaries to do, or cause to be done, all things necessary to preserve and keep in full force and effect its corporate existence, rights and authority, qualification, franchises, licenses and permits, other than those (excluding corporate existence) the failure to keep in full force and effect would not individually or in the aggregate be reasonably expected to have a Material Adverse Effect; provided, however, that nothing in this ‎Section 6.05 shall be deemed to prohibit any transaction permitted by ‎Section 7.02.

 

Good Repair. Each Credit Party will, and will cause each of its Subsidiaries to, ensure that its material properties and equipment used or useful in its business in whomsoever’s possession they may be, are kept in reasonably good repair, working order and condition, normal wear and tear excepted, and that from time to time there are made in such properties and equipment all needful and proper repairs, renewals, replacements, extensions, additions, betterments and improvements thereto, in each case, to the extent and in the manner customary for companies in similar businesses.

 

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Compliance with Statutes, etc. Each Credit Party will, and will cause each of its Subsidiaries to, comply with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and the ownership of its property, other than those the noncompliance with which would not individually or in the aggregate be reasonably expected to have a Material Adverse Effect.

 

Compliance with Environmental Laws. Without limitation of the covenants contained in Section 6.07:

 

(a) Each Credit Party will comply, and will cause each of its Subsidiaries to comply, with all Environmental Laws applicable to the ownership, lease or use of all Real Property now or hereafter owned, leased or operated by such Credit Party or any of its Subsidiaries, and will promptly pay or cause to be paid all costs and expenses incurred in connection with such compliance, except to the extent that the reasonably likely outcome in such proceedings could not reasonably be expected to have a Material Adverse Effect.

 

(b) Each Credit Party will keep or cause to be kept, and will cause each of its Subsidiaries to keep or cause to be kept, all such Real Property free and clear of any Liens imposed pursuant to such Environmental Laws other than Permitted Liens.

 

(c) No Credit Party nor any of its Subsidiaries will generate, use, treat, store, release or dispose of, or permit the generation, use, treatment, storage, release or disposal of, Hazardous Materials on any Real Property now or hereafter owned, leased or operated by the Credit Parties or any of their Subsidiaries or transport or permit the transportation of Hazardous Materials to or from any such Real Property other than in compliance with applicable Environmental Laws and in the ordinary course of business, except to the extent that the reasonably likely outcome in such proceedings could not reasonably be expected to have a Material Adverse Effect.

 

(d) If required to do so under any applicable order of any Governmental Authority, each Credit Party will undertake, and cause each of its Subsidiaries to undertake any clean up, removal, remedial or other action necessary to remove and clean up any Hazardous Materials from any Real Property owned, leased or operated by the Credit Parties or any of its Subsidiaries in accordance with, in all material respects, the requirements of all applicable Environmental Laws and in accordance with, in all material respects, such orders of all Governmental Authorities, except to the extent that the reasonably likely outcome in such proceedings could not reasonably be expected to have a Material Adverse Effect.

 

Certain Subsidiaries to Join in Guaranty. In the event that at any time after the Closing Date, any Credit Party acquires, creates (including by virtue of any statutory division of any such Credit Party) or has any Domestic Subsidiary or Resulting Company (other than an Excluded Subsidiary or Immaterial Subsidiary) that is not already a party to the Guaranty, or if any Domestic Subsidiary no longer meets the requirements of an Excluded Subsidiary or Immaterial Subsidiary, such Credit Party will promptly, but in any event within 30 days (or such later date as the Administrative Agent agrees to in its reasonable discretion), cause such Subsidiary or Resulting Company to deliver to the Administrative Agent, (a) an executed Guaranty or a joinder thereto, duly executed by such Subsidiary or Resulting Company, pursuant to which such Subsidiary or Resulting Company joins in the Guaranty as a guarantor thereunder, (b) resolutions of the Board of Directors or equivalent governing body of such Subsidiary or Resulting Company, certified by the Secretary or an Assistant Secretary of such Subsidiary or Resulting Company, as duly adopted and in full force and effect, authorizing the execution and delivery of such joinder supplement and the other Loan Documents to which such Subsidiary or Resulting Company is or will be a party, together with such other corporate documentation and an opinion of counsel as the Administrative Agent shall reasonably request, in each case, in form and substance reasonably satisfactory to the Administrative Agent and (c) all such documents, instruments, agreements, and certificates as are similar to those described in ‎Section 6.10. In the event that any Person becomes a CFC of the Borrower and the ownership interests of such CFC are owned by the Borrower or by any Guarantor, the Borrower shall, or shall cause such Guarantor to, deliver, all such documents, instruments, agreements, and certificates as are similar to those described in ‎‎Section 6.10, and the Borrower shall take, or shall cause such Guarantor to take, all of the actions required under ‎Section 6.10.

 

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Additional Security; Real Property Matters; Further Assurances. (a) Additional Security. Subject to subpart (b) below, if any Credit Party acquires, owns or holds an interest (other than a Leasehold Interest) in any Real Property with a fair market value in excess of $5,000,000 for any Real Property (with fair market value determined at the time of acquisition and agreed to by the Administrative Agent), or any personal property (other than Excluded Collateral (as such term is defined in the Security Agreement)) that is not at the time included in the Collateral, the Borrower will promptly notify the Administrative Agent in writing of such event, identifying the property or interests in question and referring specifically to the rights of the Administrative Agent and the Lenders under this Section, and the Credit Party will, or will cause such Subsidiary to, within 20 Business Days following request by the Administrative Agent (or such later date as may be agreed to by the Administrative Agent in its sole discretion), grant to the Administrative Agent for the benefit of the Secured Creditors a Lien on such Real Property or such personal property pursuant to the terms of such security agreements, assignments, Mortgages or other documents as the Administrative Agent deems appropriate (collectively, the “Additional Security Documents”) or a joinder to any existing Security Document. Furthermore, the Borrower or such other Credit Party shall cause to be delivered to the Administrative Agent such corporate resolutions, a Perfection Certificate, consents of landlords, Landlord’s Agreements, opinions of counsel and other related documents, in each case as may be reasonably requested by the Administrative Agent in connection with the execution, delivery and recording of any such Additional Security Document or joinder, all of which documents shall be in form and substance reasonably satisfactory to the Administrative Agent.

 

(b) Foreign Subsidiaries. Notwithstanding anything in subpart (a) above or elsewhere in this Agreement to the contrary, no Credit Party shall be required to (i) pledge (or cause to be pledged) more than 65% of the Equity Interests designated as voting and 100% of the Equity Interests designated as non-voting in any CFC or CFC Holdco, or (ii) cause a CFC or CFC Holdco to become a Guarantor or otherwise become a party to the Security Agreement or any other Security Document, if to do so would subject Holdings, the Borrower or any of its Subsidiaries to liability for additional United States income taxes by virtue of Section 956 of the Code in an amount the Borrower considers material.

 

(c) Real Property Matters. The Credit Parties shall have delivered to the Administrative Agent with respect to each parcel of Real Property to the extent that such parcel of Real Property becomes or should be subject to a Mortgage pursuant to ‎Section 6.10(a) above, all of the following:

 

(i) an American Land Title Association (ALTA) mortgagee title insurance policy or policies, or unconditional commitments therefor (a “Title Policy”) issued by a title insurance company reasonably satisfactory to the Administrative Agent (a “Title Company”), in an amount not less than the amount reasonably required therefor by the Administrative Agent (taking into account the estimated value of the property involved), insuring fee simple title to, or a valid leasehold interest in, such Real Property vested in the applicable Credit Party and assuring the Administrative Agent that the applicable Mortgage creates a valid and enforceable first priority mortgage lien on the respective Real Property encumbered thereby, subject only to Permitted Liens, which Title Policy (1) shall include an endorsement for mechanics’ liens, for revolving, “variable rate” and future advances under this Agreement and for any other matters reasonably requested by the Administrative Agent, and (2) shall provide for affirmative insurance and such reinsurance as the Administrative Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Administrative Agent;

 

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(ii) a title report issued by the Title Company with respect thereto, dated not more than 30 days prior to the date of execution of the applicable Mortgage and satisfactory in form and substance to the Administrative Agent;

 

(iii) copies of all recorded documents listed as exceptions to title or otherwise referred to in the Title Policy or in such title report relating to such Real Property;

 

(iv) evidence, which may be in the form of a letter or other certification from the Title Company or from an insurance broker, surveyor, engineer or other provider, as to whether (1) such Real Property is a Flood Hazard Property, and (2) the community in which such Flood Hazard Property is located is participating in the National Flood Insurance Program, and if such Real Property is a Flood Hazard Property, evidence that the applicable Credit Party has obtained flood insurance in respect of such Flood Hazard Property to the extent required under the applicable regulations of the Board of Governors of the Federal Reserve System;

 

(v) a survey, in form and substance reasonably satisfactory to the Administrative Agent, of such Real Property, certified in a manner satisfactory to the Administrative Agent by a licensed professional surveyor reasonably satisfactory to the Administrative Agent;

 

(vi) a certificate of the Borrower identifying any Phase I, Phase II or other environmental report received in draft or final form by any Credit Party during the five year period prior to the date of execution of the Mortgage relating to such Real Property and/or the operations conducted therefrom, or stating that no such draft or final form reports have been requested or received by any Credit Party (or its counsel), together with true and correct copies of all such environmental reports so listed (in draft form, if not finalized); and all such environmental reports shall be satisfactory in form and substance to the Administrative Agent;

 

(vii) an opinion of local counsel admitted to practice in the jurisdiction in which such Real Property is located, reasonably satisfactory in form and substance to the Administrative Agent, as to the validity and effectiveness of such Mortgage as a lien on such Real Property encumbered thereby, and covering such other matters of law in connection with the execution, delivery, recording and enforcement of such Mortgage as the Administrative Agent may reasonably request; and

 

(viii) upon request of the Administrative Agent and/or the Lenders, the Administrative Agent shall have received appraisals, reasonably satisfactory in form and substance to the Administrative Agent and each Lender, dated not more than 60 days prior to the date of execution of each Mortgage and addressed to the Administrative Agent and the Lenders or accompanied by a separate letter indicating that the Administrative Agent and the Lenders may rely thereon, from one or more nationally recognized appraisal firms, reasonably satisfactory to the Administrative Agent, covering (i) the Real Properties, and (ii) all other tangible property, plant and equipment owned by Holdings, the Borrower or any of its Subsidiaries, that is to be subjected to the Lien of the Security Agreement and is located at any plant or facility owned or leased by Holdings, the Borrower or any of its Subsidiaries in the United States of America, which appraisals shall set forth (A) the “fair market value” of such property (i.e., the amount at which such property would equitably exchange between a willing buyer and a willing seller, neither being under a compulsion and both having reasonable knowledge of all relevant facts on the premise that such property will continue in its present use as part of an ongoing business enterprise), (B) the “orderly disposal value” of such property (i.e., the amount that may be realized through a forced sale disposal of such property when a reasonable time to find a buyer is allowed), and (C) the “forced liquidation value” of such property (i.e., the amount that may be realized through an immediate forced sale disposal of such property), in each case as determined in accordance with sound appraisal standards.

 

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(d) Taxes. The Credit Parties shall have paid or caused to be paid all costs and expenses payable in connection with all of the actions set forth in ‎Section 6.10(c), including but not limited to (A) all mortgage, intangibles or similar taxes or fees, however characterized, payable in respect of this Agreement, the execution and delivery of the Notes, any of the Mortgages or any of the other Loan Documents or the recording of any of the same or any other documents related thereto; and (B) all expenses and premiums of the Title Company in connection with the issuance of such policy or policies of title insurance and to all costs and expenses required for the recording of the Mortgages or any other Loan Documents or any other related documents in the appropriate public records.

 

(e) Landlord/Mortgagee/Bailee Waivers. The Credit Parties will use commercially reasonable efforts upon request of the Administrative Agent to obtain, and will maintain in effect, Landlord’s Agreements on any Real Property (i) on which any items of Collateral are located, provided that the Credit Parties shall not be required to deliver Landlord Agreements for those locations at which the value of the Collateral (excluding any inventory which has been sold and is in the process of being delivered to customers) located thereon is no more than $1,000,000 in the aggregate for all locations for which Landlord’s Agreements have not been obtained, (ii) that functions as the chief executive office for any Credit Party or (iii) at which books and records of any Credit Party are located, in each case in form and substance reasonably acceptable to the Administrative Agent.

 

(f) Further Assurances. (i) The Credit Parties will, and will cause each of their respective Subsidiaries to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Administrative Agent from time to time such conveyances, financing statements, transfer endorsements, powers of attorney, certificates, and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Administrative Agent may reasonably require, including any documents, instruments and filings required by the Assignment of Claims Act of 1940. If at any time the Administrative Agent determines, based on applicable law, that all applicable taxes (including, without limitation, mortgage recording taxes or similar charges) were not paid in connection with the recordation of any mortgage or deed of trust, the Borrower shall promptly pay the same upon demand.

 

(ii) The Borrower will provide to the Administrative Agent and the Lenders (A) confirmation of the accuracy of the information regarding Beneficial Owners provided to the Administrative Agent and the Lenders, (B) updates with respect to the information regarding Beneficial Owners, including, without limitation, updates to any complete legal name, address of residence, date of birth, social security number and/or tax identification number, in form and substance acceptable to the Administrative Agent and the Lenders, when such information has changed or when the individual(s) to be identified as a Beneficial Owner have changed and (C) such other information and documentation as may reasonably be requested by the Administrative Agent or any Lender from time to time for purposes of compliance by the Administrative Agent or such Lender with applicable laws (including without limitation the USA Patriot Act and other “know your customer” and anti-money laundering rules and regulations), and any policy or procedure implemented by the Administrative Agent or such Lender to comply therewith.

 

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(iii) Upon the request by the Administrative Agent, the Administrative Agent shall be permitted to conduct appraisals and field examinations from an appraiser selected by the Administrative Agent and prepared on a basis satisfactory to the Administrative Agent related to the assets of Holdings, the Borrower and their Subsidiaries (including, without limitations, inventory appraisals), in each case, at the sole cost and expense of the Borrower.

 

Control Agreements. Subject to Section 6.16, the Credit Parties will take commercially reasonable efforts to enter into, and will maintain in effect, Control Agreements with respect to each deposit account (excluding deposit accounts with no more than a $100,000 individually or $500,000 in the aggregate for all such accounts balance in the aggregate at any given time and any Excluded Accounts) and lock-box account maintained by the Credit Parties after the Closing Date. Each such Control Agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.

 

Senior Debt. The Obligations shall, and the Credit Parties shall take all necessary action to ensure that the Obligations shall, at all times rank (a) at least pari passu in right of payment (to the fullest extent permitted by law) with all other senior Secured Indebtedness of the Credit Parties and (b) prior in right of payment, to the extent set forth in the applicable subordination agreement, to the Subordinated Indebtedness.

 

Use of Proceeds. The Borrower will use the proceeds of the Term Loans on the Closing Date to consummate the Transactions including the payments of fees and expenses in connection with the Transactions and for working capital needs and for other general corporate purposes and for any other purpose not prohibited under the Loan Documents. The Borrower will use the proceeds of the Revolving Facility and LC Issuances (i) to consummate the Transactions, (ii) to provide working capital to Holdings, the Borrower and its Subsidiaries (including to replace or provide credit support for any existing letters of credit), (iii) to provide funds for other general corporate purposes of Holdings, the Borrower and its Subsidiaries (including Permitted Acquisitions and Investments), (iv) to fund certain fees and expenses relating thereto, and (v) to finance any transaction not prohibited hereby.

 

Lender Meetings. The Credit Parties will, upon the request of the Administrative Agent or the Required Lenders, participate in a meeting of the Administrative Agent and the Lenders once during each fiscal year to be held, at the election of the Borrower, virtually or at the Borrower’s corporate offices (or at such other location as may be agreed to by the Borrower and Administrative Agent) at such time as may be agreed to by the Borrower and the Administrative Agent.

 

Cash Management. Subject to Section 6.16, the Credit Parties will cause their primary cash and treasury management services and accounts to be maintained at all times at KeyBank National Association or its Affiliates; provided that this section shall not prohibit the Credit Parties from using any other Lenders for their other cash and treasury management services and accounts.

 

Post-Closing Obligations. The Borrower will cause to be delivered or performed the documents and other agreements and actions listed on Schedule 6.16 within the time frame specified on therein.

 

Flood Insurance Matters. The parties hereto acknowledge and agree that notwithstanding anything herein to the contrary, (x) the signing of any Mortgage with respect to any Real Property that is required to be subject to a Mortgage hereunder, or (y) if there is any Mortgaged Real Property, any increase, extension, or renewal of any of the Loans or Commitments (including any Incremental Term Loan Commitments and Incremental Revolving Credit Commitments, but excluding (a) any Continuation or Conversion of Borrowings, (b) the making of any Revolving Loans or Swing Loans or (c) the issuance, renewal or extension of Letters of Credit) shall be subject to (and conditioned upon): (i) the prior delivery of all “life of loan” flood zone determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation with respect to such Mortgaged Property reasonably sufficient to evidence compliance with flood insurance laws and (ii) the earlier to occur of (A) the date that occurs thirty (30) days after the Administrative Agent has delivered the documentation set forth in clause (i) of this Section to the Lenders (which may be delivered electronically) or (B) the Administrative Agent’s receipt of written confirmation from each of the Lenders that flood insurance due diligence and flood insurance compliance has been completed by such Lender (such written confirmation not to be unreasonably withheld, conditioned or delayed).

 

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ARTICLE VII

NEGATIVE COVENANTS

 

Each of Holdings, the Borrower and the Subsidiaries hereby covenants and agrees that on the Closing Date and thereafter for so long as this Agreement is in effect and until such time as the Commitments have been terminated, no Notes remain outstanding and the Loans, together with interest, Fees and all other Obligations incurred hereunder and under the other Loan Documents (other than contingent obligations for which no claim has been made), have been paid in full as follows:

 

Changes in Business. No Credit Party nor any of its Subsidiaries will engage in any business other than the businesses engaged in by the Credit Parties and its Subsidiaries on the Closing Date and any other business reasonably related, complimentary or ancillary thereto.

 

Consolidation, Merger, Acquisitions, Asset Sales, Statutory Divisions, etc. No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) make or otherwise effect any Asset Sale, (v) consummate a statutory division or (vi) agree to do any of the foregoing at any future time, except that each of the following shall be permitted:

 

(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Guarantor (other than Holdings), provided that the surviving or continuing or resulting Person is a Guarantor; (iii) any foreign Subsidiary of the Borrower that is not a Credit Party with or into any other foreign Subsidiary of the Borrower; or (iv) any Domestic Subsidiary that is not a Credit Party into any other Domestic Subsidiary that is not a Credit Party;

 

(b) any Asset Sale by (i) the Borrower to any other Credit Party, (ii) any Subsidiary of the Borrower to any Credit Party (in the case of an Asset Sale by a Subsidiary that is not a Credit Party to a Credit Party, for not more than fair market value), (iii) any foreign Subsidiary of the Borrower that is not a Credit Party to any other foreign Subsidiary of the Borrower; or (iv) any Domestic Subsidiary that is not a Credit Party to any other Domestic Subsidiary that is not a Credit Party;

 

(c) any transaction permitted pursuant to ‎Section 7.05;

 

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(d) Asset Sales or other dispositions not to exceed $1,000,000 in any Fiscal Year, so long as (i) at the time of such Asset Sale or disposition, no Default or Event of Default exists and (ii) the consideration for each such Asset Sale or disposition represents fair value;

 

(e) the Borrower or any of its Subsidiaries may consummate any Asset Sale or other disposition, provided that (i) the consideration for each such Asset Sale represents fair value and at least 75% of such consideration consists of cash or Cash Equivalents; (ii) at the time of and immediately after giving effect to such Asset Sale or disposition, no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; and (iii) the aggregate amount of all such Asset Sales made pursuant to this clause (e) in any fiscal year shall not exceed $5,000,000; provided that, this subclause (iii) shall not apply if the Consolidated Leverage Ratio as of the most recent date on which a Compliance Certificate was delivered pursuant to ‎Section 6.01(c) was, and will be after giving pro forma effect to such Asset Sale, less than or equal to 1.00 to 1.00;

 

(f) Asset Sales resulting from an Events of Loss; provided that the Net Cash Proceeds received by Holdings, the Borrower or a Subsidiary are applied to prepay Loans to the extent required by ‎Section 2.13(c);

 

(g) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied;

 

(h) a sale, exchange or other disposition of Investments in cash or Cash Equivalents;

 

(i) any Restricted Payment that is permitted to be made, and is made, pursuant to Section 7.06;

 

(j) the creation of any Lien permitted under this Agreement;

 

(k) [reserved];

 

(l) the lease, assignment, license, sublicense or sublease of any real or personal property in the ordinary course of business;

 

(m) non-exclusive or revocable licenses, sublicenses or cross-licenses of intellectual property, other intellectual property rights or other general intangibles in the ordinary course of business;

 

(n) the surrender or waiver of obligations of trade creditors or customers or other contract rights that were incurred in the ordinary course of business of Borrower or any Subsidiary of Borrower, including pursuant to any plan of reorganization or similar arrangement, upon the bankruptcy or insolvency of any trade creditor or customer or compromise, settlement, release or surrender of a contract, tort or other litigation claim, arbitration or other disputes;

 

(o) to the extent allowable under Section 1031 of the Code, any exchange of like property for use in a similar business; and

 

(p) the disposition assets acquired pursuant to any permitted Investment, provided that, (A) such assets are not used or useful to the core or principal business of Borrower and its Subsidiaries, (B) such disposition occurs 180-days after the acquisition thereof, (C) the Borrower of such Subsidiary provides written notice to the Administrative Agent promptly after such Acquisition indicating the intention to dispose of such non-core assets and (D) no Default or Event of Default exists.

 

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Notwithstanding the foregoing, during the Covenant Amendment Period no Credit Party nor any of its Subsidiaries shall be permitted to utilize the exceptions set forth in clauses (e), (g) and (p) of this Section 7.02.

 

Liens. No Credit Party will, nor will any Credit Party permit its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind of such Credit Party or such Subsidiary whether now owned or hereafter acquired, except that the foregoing shall not apply to:

 

(a) any Standard Permitted Lien;

 

(b) Liens in existence on the Closing Date that are listed on Schedule 7.03 hereto and any renewals or extensions, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 7.04(b), and (iii) the direct or any contingent obligor with respect thereto is not changed;

 

(c) Liens (i) that are placed upon fixed or capital assets acquired, constructed or improved by the Credit Parties or any of their respective Subsidiaries, provided that (A) such Liens only secure Indebtedness permitted by ‎Section 7.04(c), (B) such Liens and the Indebtedness secured thereby are incurred prior to or within 120 days after such acquisition or the completion of such construction or improvement, (C) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets; and (D) such Liens shall not apply to any other property or assets of the Credit Parties or any of their respective Subsidiaries; or (ii) arising out of the refinancing, extension, renewal or refunding of any Indebtedness secured by any such Liens, provided that the principal amount of such Indebtedness is not increased and such Indebtedness is not secured by any additional assets;

 

(d) any Lien granted to the Administrative Agent securing any of the Obligations or any other Indebtedness of the Credit Parties under the Loan Documents or any Indebtedness under any Designated Hedge Agreement;

 

(e) [reserved];

 

(f) Liens on assets of Non-Credit Parties securing Indebtedness permitted by Section 7.04(k);

 

(g) Liens securing Indebtedness permitted to be incurred pursuant to Section 7.04(n); provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Subsidiary; (ii) in the case of either (x) any assets acquired by a Credit Party (or a Person who is required to be a Credit Party under the terms hereof) or (y) any Person acquired that is a Credit Party or is required to become a Credit Party under the terms hereof, such Liens are not “blanket” or “all asset” Liens and (iii) such Liens do not extend to any assets other than the assets of the acquired Person; and

 

(h) other Liens on assets of the Borrower and its Subsidiaries not to exceed $3,000,000 at any one time.

 

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Notwithstanding the foregoing, during the Covenant Amendment Period no Credit Party nor any of its Subsidiaries shall be permitted to utilize the exceptions set forth in clause (f) and (h) of this Section 7.03; provided that, such restriction shall not limit any Liens existing prior to the Covenant Amendment Period.

 

Indebtedness. No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness of the Credit Parties or any of their respective Subsidiaries, except:

 

(a) Indebtedness incurred under this Agreement and the other Loan Documents;

 

(b) the Indebtedness set forth on Schedule 7.04 hereto, and any Permitted Refinancing thereof;

 

(c) (i) Indebtedness consisting of Capitalized Lease Obligations of the Credit Parties and their Subsidiaries, (ii) Indebtedness secured by a Lien referred to in ‎Section 7.03(c), (iii) Purchase Money Indebtedness, and (iv) any Permitted Refinancing thereof, provided the aggregate outstanding principal amount (using Capitalized Lease Obligations in lieu of principal amount, in the case of any Capital Lease) of Indebtedness permitted by this subpart (c) shall not exceed $10,000,000 at any time;

 

(d) any intercompany loans (i) made by the Borrower or any Subsidiary of the Borrower to any Credit Party (other than Holdings), (ii) made by any Non-Credit Party to any other Non-Credit Party, and (iii) any other intercompany loans permitted by ‎Section 7.05(i); provided, that any intercompany loan between a Credit Party and a Non-Credit Party shall be subject to the Intercompany Subordination Agreement;

 

(e) Indebtedness of the Borrower and its Subsidiaries under Hedge Agreements, provided such Hedge Agreements have been entered into in the ordinary course of business and not for speculative purposes;

 

(f) Indebtedness constituting Guaranty Obligations permitted by ‎Section 7.05;

 

(g) Indebtedness incurred in favor of insurance companies (or their financing affiliates) in connection with the financing of insurance premiums in the ordinary course of business;

 

(h) Indebtedness in respect of cash management obligations and netting services, overdraft protections, employee credit card programs, automatic clearinghouse arrangements and similar arrangements, in each case in connection with deposit accounts or arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business;

 

(i) obligations in respect of surety, stay, customs and appeal bonds, bid or performance bonds and performance and completion guaranties and obligations of a like nature (including letters of credit-related thereto), worker’s compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance obligations, trade contracts, governmental contracts and leases, in each case incurred in the ordinary course of business and not in connection with the borrowing of money;

 

(j) to the extent constituting Indebtedness, deposits and advance payments received from customers in the ordinary course of business consistent with past practices;

 

(k) Indebtedness of Non-Credit Parties not to exceed $3,000,000 any time outstanding;

 

(l) additional Indebtedness of the Borrower or any of its Subsidiaries, including in connection with the issuance of letters of credit, to the extent not permitted by any of the foregoing clauses, provided that the aggregate outstanding principal amount of all such Indebtedness does not exceed $3,000,000 at any time; provided, further, that to the extent such Indebtedness is secured, such Lien shall only apply to Cash Collateral;

 

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(m) Indebtedness in respect of indemnification, purchase price adjustments or Permitted Earnouts incurred by Holdings, the Borrower or any of their respective Subsidiaries in a Permitted Acquisition or other Investment permitted by Section 7.05 under agreements which provide for indemnification, the adjustment of the purchase price or for similar adjustments; provided, however, that with respect to any Permitted Earnout, shall be subject to a subordination agreement reasonably satisfactory to the Administrative Agent, including without limitation, payment restrictions to the extent required pursuant to the terms of this Agreement;

 

(n) so long as no Default or Event of Default exists or would result therefrom, Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Subsidiary (or is merged or consolidated with or into the Borrower or a Subsidiary thereof) or Indebtedness attaching to assets that are acquired by the Borrower or any Subsidiary thereof (including any Indebtedness assumed by the Borrower or any Subsidiary thereof in connection with any acquisition of any assets or Person), in each case after the Closing Date as the result of a Permitted Acquisition or other Investment permitted by Section 7.05 to the extent existing at the time of such Permitted Acquisition or other Investment and any Permitted Refinancing thereof (or successive Permitted Refinancings thereof); provided that (i) such Indebtedness is not incurred in contemplation of such Permitted Acquisition or other Investment, (ii) on the date of determination, immediately after giving effect to such incurrence or assumption of Indebtedness in connection therewith and the related acquisition or similar Investment, the Borrower and its Subsidiaries shall be in Pro Forma Compliance with the applicable maximum Consolidated Leverage Ratio set forth in Section 7.07(a)(ii) as of the most recent date on which a Compliance Certificate was delivered pursuant to Section 6.01(c) (or, prior to the first delivery thereof, compliance to be determined on the basis of the most recent financial statements delivered prior to the Closing Date), the aggregate principal amount of any Indebtedness assumed pursuant to this Section 7.02(n) by a (x) Subsidiary that will become a Credit Party pursuant to Section 6.10 shall not exceed $5,000,000 at any time outstanding, and (y) Subsidiary that is not a Credit Party (or is not required to become a Credit Party under Section 6.10) shall not exceed $3,000,000 at any time outstanding;

 

(o) Indebtedness pursuant to the Tax Receivables Agreement; and

 

(p) Indebtedness in respect of any Seller Note; provided, however, that with respect to any Seller Note, shall be subject to a subordination agreement reasonably satisfactory to the Administrative Agent, including without limitation, payment restrictions to the extent required pursuant to the terms of this Agreement.

 

Notwithstanding the foregoing, during the Covenant Amendment Period no Credit Party nor any of its Subsidiaries shall be permitted to utilize the exceptions set forth in clauses (d)(iii), (k), (l), (m), (n) and (p) of this Section 7.04; provided that, such restriction shall not limit any Indebtedness existing prior to the Covenant Amendment Period.

 

Investments and Guaranty Obligations. No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, directly or indirectly, (i) make or commit to make any Investment or (ii) be or become obligated under any Guaranty Obligations, except:

 

(a) Investments by the Borrower or any of its Subsidiaries in cash and Cash Equivalents;

 

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(b) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction in the normal course of business;

 

(c) the Borrower and its Subsidiaries may acquire and hold receivables and similar items owing to them in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

 

(d) any Permitted Creditor Investment;

 

(e) loans and advances to employees for business-related travel expenses, moving expenses, costs of replacement homes, business machines or supplies, automobiles and other similar expenses, in each case incurred in the ordinary course of business, provided the aggregate outstanding amount of all such loans and advances shall not exceed $1,000,000 at any time;

 

(f) Investments existing as of the Closing Date and described on Schedule 7.05 hereto;

 

(g) any Guaranty Obligations of the Credit Parties or any of their respective Subsidiaries in favor of the Administrative Agent, each LC Issuer and the Lenders and any other benefited creditors under any Designated Hedge Agreements or with respect to Designated Bank Services Obligations pursuant to the Loan Documents;

 

(h) Investments of the Borrower and its Subsidiaries in Hedge Agreements permitted to be entered into pursuant to this Agreement;

 

(i) Investments of the Borrower or any Subsidiary in any other Subsidiaries; provided that, loans and investments by a Credit Party to or in a Non-Credit Party made on or after the Closing Date (A) shall not exceed at any time, in the aggregate amount of  $3,000,000, and (B) such loans and investments are subject to the Intercompany Subordination Agreement;

 

(j) the Acquisitions permitted by ‎Section 7.02(g);

 

(k) any Guaranty Obligation incurred by any Credit Party with respect to Indebtedness of another Credit Party that is permitted by ‎Section 7.04;

 

(l) other Investments by the Borrower or any Subsidiary of the Borrower in any other Person made after the Closing Date and not otherwise permitted pursuant to this Section 7.05, provided that (i) at the time of making any such Investment no Default or Event of Default shall have occurred and be continuing, or would result therefrom, and (ii) the maximum cumulative amount of all such Investments that are so made pursuant to this subpart and outstanding at any time shall not exceed an aggregate amount of $3,000,000, taking into account the repayment of any loans or advances comprising such Investments;

 

(m) Investments constituting deposits made in connection with the purchase of goods or services in the ordinary course of business;

 

(n) promissory notes and other non-cash consideration received in connection with Asset Sale permitted by Section 7.02;

 

(o) Investments in the ordinary course of business, consisting of (i) endorsements for collection or deposit, (ii) customary trade arrangements with customers, (iii) customary trade arrangements with vendors and suppliers in an aggregate outstanding amount not in excess of $3,000,000, (iv) advances of payroll payments to employees or other advances of salaries or compensation (including advances against commissions) to employees and sales representatives and (v) Investments maintained in connection with any Credit Party’s deferred compensation plan;

 

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(p) [reserved];

 

(q) Investments held by a Person that is acquired and becomes a Subsidiary after the Closing Date and in accordance with this Section 7.05 and/or Section 7.02, as applicable, to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation, and were in existence on the date of such acquisition, merger, amalgamation or consolidation;

 

(r) so long as (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (y) the Borrower is in pro forma covenant compliance with the financial covenants set forth in Section 7.07 (it being understood that the Consolidated Leverage Ratio permitted at the time by Section 7.07(a)(ii) shall be deemed to be 0.50x less than the ratio actually provided for in Section 7.07(a)(ii) at such time), and (z) immediately after giving effect to such Investment, the Credit Parties’ unrestricted cash and Cash Equivalents shall be no less than $10,000,000, Investments made with the portion, if any, of the Available Amount on the date that the Borrower elects to apply all or a portion thereof to this Section 7.05(r);

 

(s) Investments to the extent that payment for such Investments is made by the issuance of Equity Interests (other than Disqualified Equity Interests) of Holdings; and

 

(t) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, other Investments if immediately after giving effect thereto, the Consolidated Leverage Ratio, on a pro forma basis, as of the most recent date on which a Compliance Certificate was delivered pursuant to Section 6.01(c) (or, prior to the first delivery thereof, compliance to be determined on the basis of the most recent financial statements delivered prior to the Closing Date), shall be less than 1.00 to 1.00.

 

Notwithstanding the foregoing, during the Covenant Amendment Period no Credit Party nor any of its Subsidiaries shall be permitted to utilize the exceptions set forth in clauses (i), (j), (l), (q), (r), (s) and (t) of this Section 7.05; provided that such restriction shall not limit any Investments existing prior to the Covenant Amendment Period.

 

Restricted Payments. No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:

 

(a) Holdings, the Borrower or any of its Subsidiaries may declare and pay or make Capital Distributions that are payable solely in additional shares of its common stock (or warrants, options or other rights to acquire additional shares of its common stock);

 

(b) (i) any Subsidiary of the Borrower may declare and pay or make Capital Distributions to the Borrower or any Guarantor, and (ii) any Non-Credit Party may declare and pay or make Capital Distributions to any other Non-Credit Party, the Borrower or any Guarantor;

 

(c) Restricted Payments so long as after giving pro forma effect thereto, (i) no Default or Event of Default exists or will exist, (ii) as of the last Testing Period for which financial statements were delivered pursuant to Section 6.01(a) or (b) hereto, the Borrower is in pro forma compliance with the financial covenants contained in Section 7.07 hereto, (iii) the availability under the Revolving Credit Facility plus the unrestricted cash and Cash Equivalents of the Borrower and the other Credit Parties is greater than $20,000,000, and (iv) the aggregate amount under this clause (c) shall not exceed $5,000,000 per fiscal year;

 

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(d) tax distributions in accordance with the Organizational Documents in effect as of the date hereof or as modified with the approval of the Required Lenders;

 

(e) Borrower or any Subsidiary may make Restricted Payments to Holdings (including by making payments on behalf of Holdings):

 

(i) the proceeds of which shall be used by Holdings promptly after the receipt thereof to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by directors, officers or employees of Holdings; and

 

(ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the proceeds of which will be used by Holdings to repurchase, retire or otherwise acquire the Series B shares outstanding as of the Closing Date from the Series B Holders;

 

(f) the Borrower may make payments on Subordinated Indebtedness, in an aggregate amount not to exceed an amount equal to the portion, if any, of the Available Amount on the date Borrower elects to apply this to Section 7.06(f); provided that, in the case of this Section 7.06(f), (A) immediately before and after giving effect to any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing, (B) the Borrower is in pro forma covenant compliance with the financial covenants set forth in Section 7.07 (it being understood that the Consolidated Leverage Ratio permitted at the time by Section 7.07(a)(ii) shall be deemed to be 1.0x less than the ratio actually provided for in Section 7.07(a)(ii) at such time), and (C) immediately after giving effect to such Restricted Payment, the Credit Parties’ unrestricted cash and Cash Equivalents shall be no less than $10,000,000;

 

(g) Holdings and any Subsidiary may pay cash in lieu of fractional shares in connection with any dividend, split or combination of its Equity Interests or any Permitted Acquisition (or similar Investment permitted by Section 7.05);

 

(h) the payment of dividends and distributions within forty five (45) days after the date of declaration thereof, if at the date of declaration of such payment, such payment would otherwise be permitted pursuant to this Section 7.06; and

 

(i) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make payments with respect to Permitted Earnouts, Seller Notes and/or junior lien Indebtedness incurred pursuant to Section 7.03(n) if immediately prior to and immediately after giving effect thereto, (x) the Consolidated Leverage Ratio, on a pro forma basis, as of the most recent date on which a Compliance Certificate was delivered pursuant to Section 6.01(c) (or, prior to the first delivery thereof, compliance to be determined on the basis of the most recent financial statements delivered prior to the Closing Date), shall be less than 1.00 to 1.00 and (y) the availability under the Revolving Credit Facility plus the unrestricted cash and Cash Equivalents of the Borrower and the other Credit Parties is greater than $20,000,000.

 

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Notwithstanding the foregoing, during the Covenant Amendment Period no Credit Party nor any of its Subsidiaries shall be permitted to utilize the exceptions set forth in clauses (c), (e)(ii), (f), (h) and (i) of this Section 7.06; provided that such restriction shall not limit any Restricted Payments existing prior to the Covenant Amendment Period

 

Section 7.07 Financial Covenants.

 

(a) 

 

(i) Consolidated Net Leverage Ratio. The Credit Parties will not permit the Consolidated Net Leverage Ratio of the Credit Parties and their Subsidiaries as of any date set forth below to be greater than the maximum ratio set forth in the table below opposite such date; provided that, upon written notice of the Borrower to the Administrative Agent and the Lenders of a Material Acquisition, for the twelve month period starting as of the date of such Material Acquisition, the Consolidated Net Leverage Ratio shall not exceed the then applicable Consolidated Net Leverage Ratio as set forth below plus 0.25 as of the last day of any fiscal quarter ending during such twelve month period.

 

Quarter Ending   Consolidated Net
Leverage Ratio
 
December 31, 2020   3.00 to 1.00 
March 31, 2021   3.00 to 1.00 
June 30, 2021   3.00 to 1.00 
September 30, 2021   3.00 to 1.00 
December 31, 2021   N/A 
March 31, 2022   N/A 
June 30, 2022   N/A 

 

(ii) Consolidated Leverage Ratio. The Credit Parties will not permit the Consolidated Leverage Ratio of the Credit Parties and their Subsidiaries as of any date set forth below to be greater than the maximum ratio set forth in the table below opposite such date;

 

Quarter Ending   Consolidated
Leverage Ratio
 
September 30, 2022   5.75 to 1.00 
December 31, 2022   3.00 to 1.00 
March 31, 2023 and each fiscal quarter ending thereafter   2.50 to 1.00 

 

(b) Fixed Charge Coverage Ratio. The Credit Parties will not permit as of the last day of any fiscal quarter the Fixed Charge Coverage Ratio of the Credit Parties and their Subsidiaries to be less than the ratio set forth in the table below opposite such date.

 

Quarter Ending   Fixed Charge
Coverage Ratio
 
December 31, 2020 – September 30, 2021   2.00 to 1.00 
December 31, 2021 – June 30, 2022   N/A 
September 30, 2022 and each fiscal quarter ending thereafter   2.00 to 1.00 

 

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(c) Minimum Liquidity. During the Covenant Amendment Period the Credit Parties will not permit Liquidity of the Credit Parties as of any date set forth below to be less than the amount set forth in the table below opposite such date as demonstrated by the applicable Liquidity Certificate.

 

Month Ending  Minimum Liquidity 
March 31, 2022  $15,000,000 
April 30, 2022  $10,000,000 
May 31, 2022  $10,000,000 
June 30, 2022  $10,000,000 
July 31, 2022  $17,500,000 
August 31, 2022  $17,500,000 
September 30, 2022  $17,500,000 
October 31, 2022 and thereafter  $25,000,000 

 

Limitation on Certain Restrictive Agreements. No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist or become effective, any “negative pledge” covenant or other agreement, restriction or arrangement that prohibits, restricts or imposes any condition upon (a) the ability of any Credit Party or any of their respective Subsidiaries to create, incur or suffer to exist any Lien upon any of its property or assets as security for Indebtedness, or (b) the ability of any such Credit Party or any such Subsidiary to make Capital Distributions or any other interest or participation in its profits owned by any Credit Party or any Subsidiary, or pay any Indebtedness owed to any Credit Party or any Subsidiary, or to make loans or advances to any Credit Party or any Subsidiary, or transfer any of its property or assets to any Credit Party or any Subsidiary, except for such restrictions existing under or by reason of (i) applicable law, (ii) this Agreement and the other Loan Documents, (iii) customary provisions restricting subletting or assignment of any lease governing a leasehold interest, (iv) customary provisions restricting assignment of any licensing agreement entered into in the ordinary course of business, (v) customary provisions restricting the transfer or further encumbering of assets subject to Liens permitted under ‎Section 7.03(c), (vi) customary restrictions under any agreement or instrument governing any of the Indebtedness of a Credit Party permitted pursuant to ‎Section 7.04, (vii) restrictions affecting any Non-Credit Party under any agreement or instrument governing any Indebtedness of such Non-Credit Party permitted pursuant to ‎Section 7.04, and customary restrictions contained in “comfort” letters and guarantees of any such Indebtedness, (viii) any document relating to Indebtedness secured by a Lien permitted by ‎Section 7.03, insofar as the provisions thereof limit grants of junior liens on the assets securing such Indebtedness, (ix) any Operating Lease or Capital Lease, insofar as the provisions thereof limit grants of a security interest in, or other assignments of, the related leasehold interest to any other Person, and (x) any restrictions existing at the time any Subsidiary becomes a Subsidiary of the Borrower, so long as such agreement was not entered into solely in contemplation of such Person becoming a Subsidiary of the Borrower.

 

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Transactions with Affiliates. No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, enter into any transaction or series of transactions with any Affiliate (other than, in the case of the Borrower, any Subsidiary, and in the case of a Subsidiary, the Borrower or another Subsidiary) other than (a) in the ordinary course of business of and pursuant to the reasonable requirements of such Credit Party’s or such Subsidiary’s business and upon fair and reasonable terms no less favorable to such Credit Party or such Subsidiary than would be obtained in a comparable arm’s-length transaction with a Person other than an Affiliate, (b) Restricted Payments permitted under Section 7.06, (c) Investments permitted under Section 7.05 (excluding provisions thereof generally permitting transactions permitted by this Section 7.09), (d) transactions pursuant to agreements in existence on the Closing Date and set forth on Schedule 7.09 or any amendment to any such agreement to the extent such amendment is not adverse, taken as a whole, to the Lenders in any material respect, (e) any issuance of Equity Interests in Holdings or other payments, awards or grants in cash, securities, Equity Interests in Holdings or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans in the ordinary course of business approved by the board of directors (or other similar governing body) of Holdings and (f) transactions in which the Borrower or any Subsidiary thereof, as the case may be, delivers to the Administrative Agent a letter from an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which it has been engaged and that is independent of the Borrower and its Affiliates stating that such transaction is fair to the Borrower or such Subsidiary from a financial point of view or meets the requirements of clause (a) of this Section 7.09

 

Modification of Certain Agreements. Without the prior written consent of the Required Lenders, no Credit Party will amend, modify, supplement, waive or otherwise change, or consent or agree to any amendment, modification, supplement, waiver or other change to, or enter into any forbearance from exercising any rights with respect to the terms or provisions contained in:

 

(a) any Subordinated Debt Document (other than in accordance with the terms of any applicable subordination agreement and other than any amendment, modification, supplement, waiver or other change for which no fee is payable to the holders of the Subordinated Indebtedness and that (i)  extends the maturity or reduces the amount of any repayment, prepayment or redemption of the principal of such Subordinated Indebtedness, (ii)  reduces the rate or extends any date for payment of interest, premium (if any) or fees payable on such Subordinated Indebtedness or (iii) makes the covenants, events of default or remedies in such Subordinated Debt Documents less restrictive on any applicable Credit Party);

 

(b) any of the terms of any preferred Equity Interests of the Credit Parties (other than in accordance with the terms of any applicable subordination agreement and other than any such amendment, modification, supplement, waiver or other change for which no fee is payable to the holders of such preferred stock and that (i)  extends the scheduled redemption date or reduces the amount of any scheduled redemption payment or (ii)  reduces the rate or extend any date for payment of dividends thereon); or

 

(c) any Credit Party’s Organizational Documents, the Tax Receivables Agreement or the Exchange Agreement, in each case, in any manner materially adverse to the interests of Administrative Agent and the Lenders.

 

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Anti-Terrorism Laws.

 

(a) No Credit Party nor any of their respective Subsidiaries shall be subject to or in violation of any law, regulation, or list of any government agency (including, without limitation, the U.S. Office of Foreign Asset Control list, Executive Order No. 13224 or the USA Patriot Act) (including, without limitation, the Consolidated List of Financial Sanctions Targets maintained by Her Majesty’s Treasury, the “Consolidated list of persons, groups and entities subject to EU financial sanctions” maintained by the European Union External Action Service and the annexes to Regulation (EU) No. 833/2014 (as amended) maintained by the European Union) that prohibits or limits the conduct of business with or the receiving of funds, goods or services to or for the benefit of certain Persons specified therein or that prohibits or limits any Lender or LC Issuer from making any advance or extension of credit to the Borrower or from otherwise conducting business with the Borrower or any other Credit Party.

 

(b) The Borrower will not, directly or indirectly, use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture, partner or other Person, (i) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, (ii) in any other manner that would result in a violation of Sanctions by any Person or (iii) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws

 

Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries to, change its Fiscal Year end from December 31.

 

Issuance of Disqualified Equity Interests. No Credit Party shall, nor shall it permit any of its Subsidiaries to, issue or sell any Disqualified Equity Interests.

 

Business of Holdings. Holdings shall not engage in any business activities or have any material assets or liabilities other than (a) its ownership of the Equity Interests of the Borrower and assets and liabilities incidental to its function as a holding company, including its liabilities under any guaranty of Indebtedness permitted by Section 7.04, and pursuant to the Guarantee and Collateral Agreement and any other Loan Document; (b) maintaining its corporate existence; (c) participating in tax, accounting and other administrative activities (including preparing reports and financial statements); (d) compliance with applicable law; (e) obligations and activities incidental to the business or activities described in the foregoing clauses (a) through (d), including providing indemnification of officers, directors, shareholders and employees.

 

Maximum Capital Expenditures.

 

(a) Holdings and its Subsidiaries will not allow the aggregate amount of Capital Expenditures made during the fiscal quarter ending June 30, 2022 to exceed $17,500,000.

 

(b) Holdings and its Subsidiaries will not allow Growth Capital Expenditures made in any fiscal year indicated below to exceed the corresponding amount set forth below opposite such fiscal year:

 

Fiscal Year  Capital Expenditure Amount 
Fiscal year ending December 31, 2020  $19,000,000 
Fiscal year ending December 31, 2021   N/A 
Fiscal year ending December 31, 2022  $37,500,000 
Fiscal year ending December 31, 2023  $41,000,000 
Fiscal year ending December 31, 2024  $41,500,000 

 

; provided, however, that (i) if the aggregate amount of Growth Capital Expenditures made in any fiscal year shall be less than the maximum amount of Growth Capital Expenditures permitted under this Section 7.15 for such fiscal year (before giving effect to any carryover) then the amount of such shortfall not exceeding 50% of such maximum amount may, so long as no Default or Event of Default has occurred and is then continuing, be added to the amount of Growth Capital Expenditures permitted under this Section 7.15 for the immediately succeeding (but not any other) fiscal year, and (ii) in determining whether any amount is available for carryover, the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (before giving effect to any carryover; provided further, any Growth Capital Expenditures made during any fiscal quarter in which the Consolidated Leverage Ratio is less than 0.50 to 1.00 shall not be included in determining the amount of Growth Capital Expenditures made during such fiscal quarter.

 

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Section 7.16 Lease Incurrence Test. Other than those leases set forth on Schedule 7.16, no Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, contract, create, incur or assume any lease or similar arrangement of Real Property prior to the date on which the Borrower delivers a Compliance Certificate to the Lenders pursuant to Section 6.01(c) demonstrating (A) the Consolidated Leverage Ratio for such Testing Period is less than 0.75x less than the ratio required by Section 7.07 for such Testing Period, or (B) both (i) the Consolidated Leverage Ratio for such Testing Period is less than 0.50x less than the ratio required by Section 7.07 for such Testing Period, and (ii) the Credit Parties are in compliance with the Lease Revenue Test.

 

ARTICLE VIII

EVENTS OF DEFAULT

 

Events of Default. Any of the following specified events shall constitute an Event of Default (each an “Event of Default”):

 

(a) Payments: the Borrower shall (i) default in the payment when due (whether at maturity, on a date fixed for a scheduled repayment, on a date on which a required prepayment is to be made, upon acceleration or otherwise) of any principal of the Loans or any reimbursement obligation in respect of any Unpaid Drawing, or in the payment of the same becoming due of any interest on the Loans, any Fees payable under Section 2.11(a) or (e); (ii) default in the payment within five (5) Business Days after the same becomes due, any Fees (other than those payable under Section 2.11(a) and (e)) or any other Obligations; or (iii) fail to Cash Collateralize any Letter of Credit when required to do so hereunder; or

 

(b) Representations, etc.: any representation, warranty or statement made by the Borrower or any other Credit Party herein or in any other Loan Document or in any statement or certificate delivered or required to be delivered pursuant hereto or thereto shall prove to be untrue in any material respect (without duplication as to any materiality modifiers, qualifications, or limitations applicable thereto) on the date as of which made, deemed made, or confirmed; or

 

(c) Certain Covenants: the Borrower shall default in the due performance or observance by it of any term, covenant or agreement contained in (x) Sections ‎6.01 (other than Section 6.01(o) and (p)), ‎6.05, ‎6.09, ‎6.10, ‎6.11, ‎6.12, 6.13, 6.14, 6.15 or 6.16 or Article ‎VII of this Agreement, or (y) Section 6.01(o) and (p) and such default is not remedied within three (3) days after the date of such default; or

 

(d) Other Covenants: any Credit Party shall default in the due performance or observance by it of any term, covenant or agreement contained in this Agreement or any other Loan Document (other than those referred to in ‎Section 8.01(a) or ‎(b) or ‎(c) above) and such default is not remedied within 30 days after the earlier of (i) an Authorized Officer of any Credit Party obtaining knowledge of such default or (ii) the Borrower receiving written notice of such default from the Administrative Agent or the Required Lenders (any such notice to be identified as a “notice of default” and to refer specifically to this paragraph); or

 

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(e) Cross Default Under Other Agreements; Designated Hedge Agreements: any Credit Party or any of its Subsidiaries shall (i) default in any payment with respect to any Material Indebtedness (other than the Obligations), and such default shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Indebtedness; or (ii) default in the observance or performance of any agreement or condition relating to any Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto (and all grace periods applicable to such observance, performance or condition shall have expired), or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Material Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause any such Material Indebtedness to become due prior to its stated maturity; or any such Material Indebtedness of any Credit Party or any of its Subsidiaries shall be declared to be due and payable, or shall be required to be prepaid (other than by a regularly scheduled required prepayment or redemption, prior to the stated maturity thereof); or (iii) without limitation of the foregoing clauses, default in any payment obligation under a Designated Hedge Agreement, and such default shall continue after the applicable grace period, if any, specified in such Designated Hedge Agreement or any other agreement or instrument relating thereto; provided that this clause (e)(ii) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer or other disposition (including any Event of Loss) of the property or assets securing such Indebtedness, if such sale, transfer or disposition is permitted hereunder and under the documents providing for such Indebtedness and such Indebtedness is repaid when required under the documents providing for such Indebtedness and such Indebtedness and the related Lien were permitted hereunder; or

 

(f) Invalidity of Loan Documents: any provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or under such Loan Document or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Credit Party or any other Person (other than a Lender, the Administrative Agent or one of their respective Affiliates) contests in any manner the validity or enforceability of any provision of any Loan Document; or any Credit Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or

 

(g) Invalidity of Liens: any security interest and Lien purported to be created by any Security Document shall cease to be in full force and effect (other than in accordance with the terms hereof and thereof) in a material portion of Collateral covered thereby or shall cease to give the Administrative Agent, for the benefit of the Secured Creditors, the Liens, rights, powers and privileges purported to be created and granted under such Security Documents (including a perfected first priority security interest in and Lien on, all of the Collateral thereunder (except as otherwise expressly provided in such Security Document)) or shall be asserted by any Credit Party not to be, a valid, perfected, first priority (except as otherwise expressly provided in this Agreement or such Security Document) security interest in or Lien on any Collateral covered thereby, except (i) to the extent that any such perfection or priority is not required pursuant to this Agreement or such Security Document, or results from the failure of the Administrative Agent to maintain possession of possessory collateral actually delivered to it or to file UCC continuation statements, or (ii) as to Collateral consisting of real property, to the extent that such losses are covered by a lender’s title insurance policy and such insurers have not denied or failed to acknowledge coverage;

 

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(h) Judgments: one or more judgments, orders or decrees (or any settlement of any claim that, if breached, could result in a judgment order or decree) shall be entered against any Credit Party and/or any of its Subsidiaries involving a liability (other than a liability covered by insurance, as to which the carrier has adequate claims paying ability and does not dispute coverage) of $5,000,000 or more in the aggregate for all such judgments, orders, decrees and settlements for the Credit Parties and their Subsidiaries, and any such judgments or orders or decrees or settlements shall not have been vacated, discharged or stayed or bonded pending appeal within 30 days (or such longer period, not in excess of 60 days, during which enforcement thereof, and the filing of any judgment lien, is effectively stayed or prohibited) from the entry thereof; or

 

(i) Insolvency Event: any Insolvency Event shall occur with respect to any Credit Party or any of its Subsidiaries; or

 

(j) ERISA: any ERISA Event shall have occurred and either (i) such event or events could reasonably be expected to have a Material Adverse Effect or (ii) there shall result from any such event or events the imposition of a Lien; or

 

(k) Change in Control: if there occurs a Change in Control; or

 

(l) [Reserved]; or

 

(m) Environmental: Holdings, the Borrower and its Subsidiaries shall have any Environmental Liabilities and Costs (other than Environmental Liabilities and Costs covered by insurance, as to which the carrier has adequate claims paying ability and has not effectively disclaimed coverage), the payment of which is reasonably probable and which could reasonably be expected to have a Material Adverse Effect (after taking into consideration available claims or rights of recovery that Holdings, the Borrower and its Subsidiaries may have against any third-party, to the extent reasonably expected to be realized); or

 

(n) Subordinated Affiliate Obligations: any Affiliate of any Credit Party holding obligations of any Credit Party that are subordinated to the Obligations shall fail to perform or comply with any of the subordination provisions of any subordination agreement or other subordination document evidencing or governing such obligations; or

 

(o) Subordinated Indebtedness: (i)  any of the Obligations for any reason shall cease to be “Senior Indebtedness” or “Designated Senior Indebtedness” (or any comparable terms) under, and as defined in, any Subordinated Debt Document, (ii) any holder of Subordinated Indebtedness that is an Affiliate of any Credit Party shall fail to perform or comply with any of the subordination provisions of the Subordinated Debt Document evidencing or governing such Subordinated Indebtedness, or (iii) the subordination provisions of the documents evidencing or governing any Subordinated Indebtedness shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of the applicable Subordinated Indebtedness.

 

Remedies. Upon the occurrence of any Event of Default, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent (i) may, in its discretion, or (ii) shall, upon the written request of the Required Lenders, by written notice to the Borrower, take any or all of the following actions, without prejudice to the rights of the Administrative Agent or any Lender to enforce its claims against the Borrower or any other Credit Party in any manner permitted under applicable law:

 

(a) declare the Commitments terminated, whereupon the Commitment of each Lender shall forthwith terminate immediately without any other notice of any kind;

 

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(b) declare the principal of and any accrued interest in respect of all Loans, all Unpaid Drawings and all other Obligations (other than any Obligations under any Designated Hedge Agreement) owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower;

 

(c) (i) terminate any Letter of Credit that may be terminated in accordance with its terms and/or (ii) require the Borrower to Cash Collateralize all or any portion of the LC Outstandings; or

 

(d) exercise any other right or remedy available under any of the Loan Documents or applicable law;

 

provided that, if an Event of Default specified in ‎Section 8.01(i) shall occur, the result that would occur upon the giving of written notice by the Administrative Agent as specified in clauses (a), (b) and/or (c)(ii) above shall occur automatically without the giving of any such notice.

 

Application of Certain Payments and Proceeds. All payments and other amounts received by the Administrative Agent or any Lender through the exercise of remedies hereunder or under the other Loan Documents shall, unless otherwise required by the terms of the other Loan Documents or by applicable law, be applied as follows:

 

(i) first, to the payment of that portion of the Obligations constituting fees, indemnities and expenses and other amounts (including attorneys’ fees and amounts due under Article ‎III) payable to the Administrative Agent in its capacity as such;

 

(ii) second, to the payment of that portion of the Obligations constituting fees, indemnities and expenses (including attorneys’ fees and amounts due under Article ‎III) payable to each Lender or each LC Issuer, ratably among them in proportion to the aggregate of all such amounts;

 

(iii) third, to the payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and Unpaid Drawings with respect to Letters of Credit, ratably among the Lenders in proportion to the aggregate of all such amounts;

 

(iv) fourth, pro rata to the payment of (A) that portion of the Obligations constituting unpaid principal of the Loans and Unpaid Drawings, ratably among the Lenders and each LC Issuer in proportion to the aggregate of all such amounts, and (B) the amounts due to Designated Hedge Creditors under Designated Hedge Agreements and Designated Banking Services Obligations;

 

(v) fifth, to the Administrative Agent for the benefit of each LC Issuer to Cash Collateralize the Stated Amount of outstanding Letters of Credit;

 

(vi) sixth, to the payment of all other Obligations of the Credit Parties owing under or in respect of the Loan Documents that are then due and payable to the Administrative Agent, each LC Issuer, the Swing Line Lender, the Lenders and the Designated Hedge Creditors, ratably based upon the respective aggregate amounts of all such Obligations owing to them on such date; and

 

(vii) finally, any remaining surplus after all of the Obligations (other than contingent obligations for which no claim has been made) have been paid in full, to the Borrower or to whomsoever shall be lawfully entitled thereto.

 

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ARTICLE IX

THE ADMINISTRATIVE AGENT

 

Appointment.

 

(a) Each Lender hereby irrevocably designates and appoints the Administrative Agent to act as specified herein and in the other Loan Documents, and each such Lender hereby irrevocably appoints and authorizes KeyBank National Association as the Administrative Agent for such Lender, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. The Administrative Agent agrees to act as Administrative Agent upon the express conditions contained in this Article. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein or in the other Loan Documents, nor any fiduciary relationship with any Lender or LC Issuer, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against the Administrative Agent. The provisions of this Article ‎IX are solely for the benefit of the Administrative Agent and the Lenders, and no Credit Party shall have any rights as a third-party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement, the Administrative Agent shall act solely as agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation or relationship of agency or trust with or for the Credit Parties or any of their respective Subsidiaries.

 

(b) Each Lender hereby further irrevocably authorizes the Administrative Agent on behalf of and for the benefit of the Lenders, to be the agent for and representative of the Lenders with respect to the Guaranty, the Security Agreement, the Collateral and any other Loan Document. Subject to ‎Section 11.12, without further written consent or authorization from Lenders, the Administrative Agent may execute any documents or instruments necessary to (i) release any Lien (x) encumbering any item of Collateral that is the subject of a sale or other disposition of assets permitted hereby or to which the Required Lenders (or such other Lenders as may be required to give such consent under ‎Section 11.12) have otherwise consented, or (y) upon the termination of the Commitments and the payment in full (other than contingent indemnification obligations and unasserted expense reimbursement obligations) of all Obligations and the expiration or termination of all Letters of Credit (other than those that have been Cash Collateralized or backstopped), or (ii) release any Guarantor from the Guaranty, the Security Agreement with respect to which the Required Lenders (or such other Lenders as may be required to give such consent under ‎Section 11.12) have otherwise consented.

 

(c) Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Administrative Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty or release the Security Agreement, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent, on behalf of the Lenders in accordance with the terms hereof and all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Secured Creditors (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent at such sale.

 

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(d) Notwithstanding anything to the contrary herein, no Crossover Lender acting in its capacity as a Lender may make or bring any claim against the Administrative Agent or any other Lender with respect to the duties and obligations of such Person under the Loan Documents (other than claims arising from the failure of the Administrative Agent or any other Lender to make any payment to such Crossover Lender required to be made by such Person pursuant to the terms hereof).

 

Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, sub-agents or attorneys-in-fact, and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents, sub-agents or attorneys-in-fact selected by it with reasonable care except to the extent otherwise required by ‎Section 9.03. All of the rights, benefits and privileges (including the exculpatory and indemnification provisions) of ‎Section 9.03 shall apply to any such sub-agent and to the Affiliates of any such sub-agent, and shall apply to their respective activities as sub-agent as if such sub-agent and Affiliates were named herein. Notwithstanding anything herein to the contrary, with respect to each sub-agent appointed by the Administrative Agent, (i) such sub-agent shall be a third party beneficiary under this Agreement with respect to all such rights, benefits and privileges (including exculpatory and rights to indemnification) and shall have all of the rights, benefits and privileges of a third party beneficiary, including an independent right of action to enforce such rights, benefits and privileges (including exculpatory rights and rights to indemnification) directly, without the consent or joinder of any other Person, against any or all of the Credit Parties and the Lenders, (ii) such rights, benefits and privileges (including exculpatory rights and rights to indemnification) shall not be modified or amended without the consent of such sub-agent, and (iii) such sub-agent shall only have obligations to the Administrative Agent and not to any Credit Party, any Lender or any other Person and no Credit Party, Lender or any other Person shall have the rights, directly or indirectly, as a third party beneficiary or otherwise, against such sub-agent.

 

Exculpatory Provisions. Neither the Administrative Agent nor any of its Related Parties shall be (a) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except for its or such Related Parties’ own gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction) or (b) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by the Credit Parties or any of their respective Subsidiaries or any of their respective officers contained in this Agreement, any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document or for any failure of any Credit Party or any of its officers to perform its obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of the Credit Parties or any of their respective Subsidiaries. The Administrative Agent shall not be responsible to any Lender for the effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of this Agreement or any Loan Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents in connection herewith or therewith furnished or made by the Administrative Agent to the Lenders or by or on behalf of the Credit Parties or any of their respective Subsidiaries to the Administrative Agent or any Lender or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein or as to the use of the proceeds of the Loans or of the existence or possible existence of any Default or Event of Default. In addition, the Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institution. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or participant or prospective Lender or participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of loans, or disclosure of confidential information, to, or the restrictions on any exercise of rights or remedies of, any Disqualified Institution.

 

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Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, e-mail or other electronic transmission, facsimile transmission, telex or teletype message, statement, order or other document or conversation believed by it, in good faith, to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Borrower or any of its Subsidiaries), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders or all of the Lenders, as applicable, as to any matter that, pursuant to ‎Section 11.12, can only be effectuated with the consent of all Required Lenders, or all applicable Lenders, as the case may be, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders.

 

Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” If the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders; provided, however, that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.

 

Non-Reliance. Each Lender expressly acknowledges that neither the Administrative Agent nor any of its Related Parties has made any representations or warranties to it and that no act by the Administrative Agent hereinafter taken, including, without limitation, any review of the affairs of the Credit Parties or their respective Subsidiaries, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent, or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Credit Parties and their Subsidiaries and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent, or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement, and to make such investigation as it deems necessary to inform itself as to the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Credit Parties and their Subsidiaries. The Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, assets, property, financial and other conditions, prospects or creditworthiness of the Credit Parties and their Subsidiaries that may come into the possession of the Administrative Agent or any of its Related Parties.

 

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No Reliance on Administrative Agent’s Customer Identification Program. Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on the Administrative Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer identification program, or other obligations required or imposed under or pursuant to the USA Patriot Act or the regulations thereunder, including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP Regulations”), or any other Anti-Terrorism Law, including any programs involving any of the following items relating to or in connection with the Credit Parties or their respective Subsidiaries, any of their respective Affiliates or agents, the Loan Documents or the transactions hereunder: (a) any identity verification procedures, (b) any record keeping, (c) any comparisons with government lists, (d) any customer notices or (e) any other procedures required under the CIP Regulations or such other laws.

 

USA Patriot Act. Each Lender or assignee or participant of a Lender that is not organized under the laws of the United States of America or a state thereof (and is not excepted from the certification requirement contained in Section 313 of the USA Patriot Act and the applicable regulations because it is both (a) an affiliate of a depository institution or foreign bank that maintains a physical presence in the United States or foreign country, and (b) subject to supervision by a banking authority regulating such affiliated depository institution or foreign bank) shall deliver to the Administrative Agent the certification, or, if applicable, recertification, certifying that such Lender is not a “shell” and certifying to other matters as required by Section 313 of the USA Patriot Act and the applicable regulations: (i) within 10 days after the Closing Date, and (ii) at such other times as are required under the USA Patriot Act.

 

Reimbursement by Lenders. To the extent that the Credit Parties for any reason fail to indefeasibly pay any amount required under Sections 11.01 and 11.02 to be paid by it, each Lender severally agrees to pay to the Administrative Agent, each LC Issuer, each Lender, each Arranger and their respective Related Parties, as the case may be, such Lender’s pro rata share of the Aggregate Credit Facility Exposure (excluding Swing Loans), determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s pro rata share of the Aggregate Credit Facility Exposure (excluding Swing Loans) at such time, of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, such LC Issuer or such Arranger in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent, such LC Issuer or any such Arranger in connection with such capacity.  The obligations of the Lenders under this Section are subject to the provisions of Section 2.07(a).

 

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The Administrative Agent in Individual Capacity. The Administrative Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Credit Parties, their respective Subsidiaries and their Affiliates as though not acting as Administrative Agent hereunder. With respect to the Loans made by it and all Obligations owing to it, the Administrative Agent shall have the same rights and powers under this Agreement as any Lender and may exercise the same as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include the Administrative Agent in its individual capacity.

 

Successor Administrative Agent. The Administrative Agent may resign at any time upon not less than 30 days’ notice to the Lenders, each LC Issuer and the Borrower. Any resignation by KeyBank National Association as Administrative Agent pursuant to this Section 9.11 shall also constitute its resignation as LC Issuer. Up