EX-10 2 zeta-ex10_1.htm EX-10.1 EX-10

 

SECOND AMENDMENT TO CREDIT AGREEMENT

This SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of March 22, 2023 (this “Second Amendment”), by and among ZETA GLOBAL CORP., a Delaware corporation (the “Borrower”), ZETA GLOBAL HOLDINGS CORP., a Delaware corporation (“Holdings”), the other Guarantors party hereto, the Lenders party hereto, and BANK OF AMERICA, N.A., as administrative agent and collateral agent (in such capacity, together with its permitted successors and assigns in such capacity, the “Administrative Agent”) and as the 2023 Incremental Revolving Lender (as defined below).

W I T N E S S E T H:

WHEREAS, the Borrower, Holdings, each Guarantor from time to time party thereto, each Lender from time to time party thereto and the Administrative Agent have entered into that certain Credit Agreement, dated as of February 3, 2021 (as amended by that certain First Amendment to Credit Agreement, dated as of July 22, 2021 and as may be further amended, restated, amended and restated, modified and/or supplemented from time to time through, but not including, the date hereof, the “Existing Credit Agreement”, and the Existing Credit Agreement, as amended by this Second Amendment, the “Credit Agreement”); capitalized terms not otherwise defined in this Second Amendment shall have the meanings assigned thereto in the Credit Agreement);

WHEREAS, pursuant to Section 3.03 of the Existing Credit Agreement, the Administrative Agent, the Borrower and the Lenders wish to adopt an alternate rate of interest to replace the Eurodollar Rate and propose entering into this Second Amendment to reflect such adoption and to make other related changes in connection therewith;

WHEREAS, pursuant to Section 2.17 of the Existing Credit Agreement, the Borrower has notified the Administrative Agent of its request to increase the existing Revolving Commitments by an aggregate principal amount of $25,000,000 (the “2023 Incremental Revolving Commitment”) and Bank of America, N.A. (in such capacity, the “2023 Incremental Revolving Lender”) has agreed to provide such 2023 Incremental Revolving Commitment on the terms, and subject to the conditions, set forth herein;

WHEREAS, the Credit Agreement may be otherwise waived, amended or modified pursuant to an agreement or agreements in writing entered into by the Borrower, Holdings, each other Guarantor, the Administrative Agent and the Lenders required pursuant to the terms of Section 11.01 of the Credit Agreement (and, for the avoidance of doubt, the parties hereto acknowledge that the Lenders party to this Second Amendment constitute all Lenders party to the Existing Credit Agreement as of the date hereof); and

WHEREAS, the Borrower has requested, and the Lenders have agreed, upon the terms and subject to the conditions set forth herein, to make certain amendments to the Credit Agreement as set forth in Section 1 below.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

SECTION 1.
2023 Incremental Revolving Commitment.
(a)
Subject to the terms and conditions set forth herein and in the Credit Agreement (as amended hereby), the 2023 Incremental Revolving Lender party hereto agrees that it shall have a 2023

 


 

Incremental Revolving Commitment on and as of the Second Amendment Effective Date in Dollars in a principal amount not to exceed the amount set forth opposite such 2023 Incremental Revolving Lender’s name on Schedule 1 hereto.
(b)
Immediately upon the establishment of the 2023 Incremental Revolving Commitment on the Second Amendment Effective Date, (A) the 2023 Incremental Revolving Commitment shall be added to (and form part of) the existing Class of Revolving Commitments under the Credit Agreement, (B) the 2023 Incremental Revolving Commitment shall be secured by identical collateral and guaranteed on identical terms as the existing Revolving Commitments and (C) the 2023 Incremental Revolving Commitment shall effectively increase the principal amount of, the Revolving Commitments in effect immediately prior to the Second Amendment Effective Date (the “Existing Revolving Commitments”).
(c)
The terms of the 2023 Incremental Revolving Commitment shall be identical to the terms of the Existing Revolving Commitments, as such terms of the Existing Revolving Commitments are amended pursuant to Section 2 of this Second Amendment. Without limiting the foregoing, upon the establishment of the 2023 Incremental Revolving Commitment on the Second Amendment Effective Date, the 2023 Incremental Revolving Commitment shall be deemed to be a “Revolving Commitment”, and shall constitute an incremental increase of, and be part of the same Class as, the Existing Revolving Commitments, and each Lender holding a 2023 Incremental Revolving Commitment shall be deemed to be a “Revolving Lender” and a “Lender”, in each case, for all purposes of the Credit Agreement and the other Loan Documents.
(d)
Upon the Second Amendment Effective Date, (i) each Lender with a Revolving Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to the 2023 Incremental Revolving Lender in respect of such increase, and the 2023 Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Lender with a Revolving Commitment (including the 2023 Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Lender’s Revolving Commitment and (ii) such outstanding Revolving Loans shall on or prior to the effectiveness of such 2023 Incremental Revolving Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05, to the extent necessary to maintain the pro rata exposures among the Lenders with Revolving Commitments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
SECTION 2.
Amendments. Each of the parties hereto agrees that, effective on the Second Amendment Effective Date, (I) the Existing Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following examples: double-underlined text or double-underlined text) as set forth in the pages of the Credit Agreement attached as Annex I hereto, (II) Schedule 1.01(b) to the Existing Credit Agreement (solely as it relates to the headings “Revolving Commitment” and “Applicable Percentage (Revolving Loans)” shall be amended and restated in the form attached hereto as Annex II and (III) Exhibits E and N to the Existing Credit Agreement are, in each case, hereby amended and restated in their entirety in the forms attached hereto as Annex III.

 


 

SECTION 3.
Representations and Warranties. In order to induce the 2023 Incremental Revolving Lender, the other Lenders and the Administrative Agent to enter into this Second Amendment and to consent to the amendments to the Existing Credit Agreement set forth herein, the Loan Parties party hereto represent and warrant that, as of the Second Amendment Effective Date:
(a)
all representations and warranties of the Loan Parties contained in the Credit Agreement and in the other Loan Documents are true and correct in all respects (or in all material respects for such representations and warranties that are not by their terms already qualified by materiality) with the same effect as though such representations and warranties had been made on and as of the Second Amendment Effective Date; and
(b)
no Default exists on the Second Amendment Effective Date, both before and after giving effect to this Second Amendment.
SECTION 4.
Conditions of Effectiveness of this Second Amendment. This Second Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which each of the following conditions have been satisfied:
(a)
the Administrative Agent shall have received counterparts of this Second Amendment, duly executed by the Borrower, Holdings, each other Loan Party, the Administrative Agent, the 2023 Incremental Revolving Lender (with respect to its consent to the incurrence of the 2023 Incremental Revolving Commitment) and each other Lender (with respect to its consent to the other amendments to the Credit Agreement set forth in this Second Amendment);
(b)
the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying that (i) the matters set forth in Section 3 above are true and correct as of the Second Amendment Effective Date and (ii) on a pro forma basis (assuming the 2023 Incremental Revolving Commitments are fully drawn), the Borrower shall be in compliance with each of the covenants set forth in Section 7.11 of the Credit Agreement as of the end of the latest fiscal quarter for which financial statements are required to have been delivered pursuant to Section 6.01(a) or (b) of the Credit Agreement;
(c)
the Administrative Agent shall have received a Solvency Certificate from the chief financial officer of the Borrower (or other authorized financial officer thereof reasonably acceptable to the Administrative Agent), dated the Second Amendment Effective Date;
(d)
the Administrative Agent shall have received an executed legal opinion of counsel for the Loan Parties, addressed to the Administrative Agent, the 2023 Incremental Revolving Lender and the Lenders and dated the Second Amendment Effective Date, in form and substance reasonably satisfactory to the Administrative Agent;
(e)
the Administrative Agent shall have received, as to each Loan Party, an officer’s certificate dated as of the Second Amendment Effective Date and certifying as to the Organization Documents of each Loan Party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority or shall include a certification from each Loan Party that such Organization Documents have not changed since the date most recently delivered to the Administrative Agent and are in full force and effect), the resolutions of the governing body of each Loan Party, the good standing, existence or its equivalent of each Loan Party and of the incumbency (including specimen signatures) of the Responsible Officers of each Loan Party (to the extent any changes have been made to such incumbency since the date most recently delivered to the Administrative Agent);

 


 

(f)
all (i) fees and expenses required to be paid to the Administrative Agent, the 2023 Incremental Revolving Lender or the other Lenders, as applicable, on the Second Amendment Effective Date shall have been paid and (ii) all reasonable and documented fees and expenses of White & Case LLP and any local counsel to the Administrative Agent, in each case as evidenced by an invoice provided to the Borrower prior to the Closing Date;
(g)
no Default shall have occurred or be continuing on the Second Amendment Effective Date; and
(h)
At least three Business Days prior to the Closing Date, the Borrower shall have provided to each Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act.
SECTION 5.
Reference to and Effect on the Credit Agreement and the other Loan Documents; Limitation of Amendment.
(a)
On and after the Second Amendment Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as supplemented by this Second Amendment.
(b)
The Credit Agreement and each of the other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, each Loan Party agrees that (i) all of its Obligations, liabilities and Indebtedness under each Loan Document, including the Guaranteed Obligations, shall remain in full force and effect on a continuous basis after giving effect to this Second Amendment, (ii) all of the Liens and security interests created and arising under such Loan Documents remain in full force and effect on a continuous basis, and the perfected status and priority of each such Lien and security interest continues in full force and effect on a continuous basis, unimpaired, uninterrupted and undischarged, after giving effect to this Second Amendment as collateral security for its Obligations, liabilities and Indebtedness under the Credit Agreement and under its guarantees in the Loan Documents, (iii) all Obligations under the Loan Documents are payable or guaranteed, as applicable, by each of the Loan Parties in accordance with the Credit Agreement and the other Loan Documents, and each Loan Party unconditionally and irrevocably waives any claim or defense in respect of the Obligations existing on, or arising out of facts occurring at any time on or prior, to the Second Amendment Effective Date, including, without limitation, any claim or defense based on any right of set off or counterclaim and hereby ratifies and affirms each and every waiver of claims and defenses granted under the Loan Documents and (iv) the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties.
(c)
On and after the effectiveness of this Second Amendment, this Second Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
(d)
This Second Amendment is limited as specified and shall not constitute an amendment, modification, acceptance or waiver of any other provision of the Credit Agreement or any other Loan Document or for any purpose except as expressly set forth herein or a consent to any further or future action on the part of the Borrower, Holdings or any other Loan Party that would require the waiver or consent of the Administrative Agent or any of the Lenders.

 


 

SECTION 6.
Execution in Counterparts. This Second Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Second Amendment shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of (i) an original manual signature, (ii) a scanned, or photocopied manual signature or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the UCC (collectively, “Signature Law”), in each case to the extent applicable. Each scanned, or photocopied manual signature, or other electronic signature, shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any scanned, or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings. For the avoidance of doubt, the foregoing also applies to any amendment, extension or renewal of this Second Amendment.
SECTION 7.
Costs and Expenses. As provided in Section 11.04 of the Credit Agreement, the Borrower agrees to reimburse the Administrative Agent and the Lenders for all reasonable and documented out-of-pocket expenses, including in connection with the preparation, negotiation, execution and delivery of this Second Amendment.
SECTION 8.
Severability. Section 11.12 of the Credit Agreement is incorporated by reference herein as if such Section appeared herein, mutatis mutandis.
SECTION 9.
Governing Law; Submission to Jurisdiction; Waiver of Jury Trial, 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. SECTIONS 11.14 AND 11.15 OF THE CREDIT AGREEMENT ARE INCORPORATED BY REFERENCE HEREIN AS IF SUCH SECTIONS APPEARED HEREIN, MUTATIS MUTANDIS.
SECTION 10.
Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Second Amendment.

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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

 

ZETA GLOBAL CORP., as the Borrower

 

 

 

 

 

 

 

By:

/s/ Steven Vine

 

Name:

Steven Vine

 

Title:

Executive Vice President and General Counsel

 

 

 

 

 

 

 

 

 

 

ZETA GLOBAL HOLDINGS CORP., as Holdings

 

 

 

 

 

 

 

By:

/s/ Steven Vine

 

Name:

Steven Vine

 

Title:

Executive Vice President and Secretary

 

[Signature Page to Zeta-BofA - Second Amendment]

 

 

 

 


 

 

GUARANTORS:

DISQUS, INC.

 

UNSUBCENTRAL INC.

 

 

 

 

 

 

 

By:

/s/ Steven Vine

 

Name:

Steven Vine

 

Title:

Executive Vice President and Secretary

 

 

 

 

 

 

 

CARIDAN MARKETING LABS, INC.

 

CLICKSQUARED, INC.

 

CT HOLDING CORPORATION

 

ZETA GLOBAL, LLC

 

ZETA IMPACT INC.

 

ZETAXCHANGE, LLC

 

 

 

 

 

 

 

By:

/s/ Steven Vine

 

Name:

Steven Vine

 

Title:

Vice President and Secretary

 

 

 

 

 

 

 

 

 

 

ARCAMAX PUBLISHING, INC.

 

BRITEMOON, LLC

 

CANARY GROUP INC.

 

CLICK TACTICS, LLC

 

DDSE ACQUISITION CORP.

 

GRASSLAND MEDIA GROUP, LLC

 

HILL VALLEY TECHNOLOGY, LLC

 

ICONIC MEDIA GROUP, LLC

 

INTRASIGHT, LLC

 

KINETIC DATA SOLUTIONS, INC.

 

LATTICE HOLDINGS, LLC

 

LEVELOCITY, LLC

 

MONTANE HOLDINGS, LLC

 

PROTOCOL HOLDINGS, LLC

 

PTS HOLDINGS, LLC

 

VERIAMAIL, LLC

 

VERIM HOLDINGS, LLC

 

VITAL DIGITAL GROUP, INC.

 

 

 

 

 

 

 

By:

/s/ Steven Vine

 

Name:

Steven Vine

 

Title:

President

 

[Signature Page to Zeta-BofA - Second Amendment]

 

 

 

 


 

 

 

ACTIONS, LLC

 

SPIRE VISION HOLDINGS, INC.

 

ZETA ACTIONS, LLC

 

 

 

 

 

 

 

By:

/s/ Steven Vine

 

Name:

Steven Vine

 

Title:

Secretary

 

[Signature Page to Zeta-BofA - Second Amendment]

 

 

 

 


 

 

BANK OF AMERICA, N.A., as Administrative Agent

 

 

 

 

By:

/s/ Christine Trotter

Name:

Christine Trotter

Title:

Vice President

 

BANK OF AMERICA, N.A., as the 2023 Incremental Revolving Lender and as a Lender

 

 

 

 

By:

/s/ Kevin Yuen

Name:

Kevin Yuen

Title:

Senior Vice President

 

BARCLAYS BANK PLC, as a Lender

 

 

 

 

By:

/s/ Edward Brooks

Name:

Edward Brooks

Title:

Vice President

 

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender

 

 

 

 

By:

/s/ D. Andrew Maletta

Name:

D. Andrew Maletta

Title:

Authorized Signatory

 

 

 

 

By:

/s/ Heesu Sin

Name:

Heesu Sin

Title:

Authorized Signatory

 

MORGAN STANLEY SENIOR FUNDING, INC., as a Lender

 

 

 

 

By:

/s/ Fru Ngwa

Name:

Fru Ngwa

Title:

Vice President

 

[Signature Page to Zeta-BofA - Second Amendment]

 

 

 

 


 

SCHEDULE 1

2023 Incremental Revolving Commitments

Lender

2023 Incremental Revolving
Commitment

Bank of America, N.A.

$25,000,000‬

 

 


 

Annex I

[attached]

 

 

 

 

 

 

 

 


 

Annex I to Second Amendment, dated March 22, 2023

 

 

Revolving Facility CUSIP Number: 98954YAB1
Term Facility CUSIP Number: 98954YAC9
Published CUSIP Number: 98954YAA3

CREDIT AGREEMENT

Dated as of February 3, 2021

 

among


ZETA GLOBAL CORP.,

as the Borrower,

ZETA GLOBAL HOLDINGS CORP.,

as Holdings,

CERTAIN SUBSIDIARIES OF THE BORROWER PARTY HERETO,

as Guarantors,


BANK OF AMERICA, N.A.,

as Administrative Agent, Swingline Lender and L/C Issuer,

and

THE LENDERS PARTY HERETO

and

BOFA SECURITIES, INC.,

as Lead Arranger and Bookrunner

 

 

 

 

 

 

 

 

 

 

 


 

Article I DEFINITIONS AND ACCOUNTING TERMS

1

1.01

Defined Terms

1

1.02

Other Interpretive Provisions

42

1.03

Accounting Terms

43

1.04

Rounding

44

1.05

Times of Day

44

1.06

Letter of Credit Amounts

44

1.07

UCC Terms

44

1.08

Rates

44

Article II COMMITMENTS AND CREDIT EXTENSIONS

45

2.01

Loans

45

2.02

Borrowings, Conversions and Continuations of Loans

45

2.03

Letters of Credit

47

2.04

Swingline Loans

55

2.05

Prepayments

58

2.06

Termination or Reduction of Commitments

60

2.07

Repayment of Loans

61

2.08

Interest and Default Rate

62

2.09

Fees

63

2.10

Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate

64

2.11

Evidence of Debt

64

2.12

Payments Generally; Administrative Agent’s Clawback

65

2.13

Sharing of Payments by Lenders

67

2.14

Cash Collateral

68

2.15

Defaulting Lenders

68

2.16

Extension of Maturity Date

71

2.17

Incremental Facilities

72

Article III TAXES, YIELD PROTECTION AND ILLEGALITY

77

3.01

Taxes

77

3.02

Illegality

81

3.03

Benchmark Replacement

81

3.04

Increased Costs.

83

3.05

Compensation for Losses

84

3.06

Mitigation Obligations; Replacement of Lenders

84

3.07

Survival

85

Article IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

85

4.01

Conditions of Initial Credit Extension

85

4.02

Conditions to all Credit Extensions

87

Article V REPRESENTATIONS AND WARRANTIES

88

5.01

Existence, Qualification and Power

88

5.02

Authorization; No Contravention

88

5.03

Governmental Authorization; Other Consents

88

5.04

Binding Effect

89

5.05

Financial Statements; No Material Adverse Effect

89

5.06

Litigation

89

5.07

No Default

90

5.08

Ownership of Property

90

5.09

Environmental Matters

90

i


 

5.10

Insurance

91

5.11

Taxes

91

5.12

Plan Compliance

91

5.13

Margin Regulations; Investment Company Act

92

5.14

Disclosure

92

5.15

Compliance with Laws

93

5.16

Solvency

93

5.17

Casualty, Etc

93

5.18

Sanctions Concerns and Anti-Corruption Laws

93

5.19

Responsible Officers

93

5.20

Subsidiaries; Equity Interests; Loan Parties

94

5.21

Collateral Representations

94

5.22

EEA Financial Institutions

96

5.23

Beneficial Ownership Certification

96

5.24

Regulation H

96

5.25

Intellectual Property; Licenses, Etc

96

5.26

Labor Matters

97

5.27

Privacy and Data Security

97

Article VI AFFIRMATIVE COVENANTS

97

6.01

Financial Statements

97

6.02

Certificates; Other Information

98

6.03

Notices

100

6.04

Payment of Obligations

101

6.05

Preservation of Existence, Etc

101

6.06

Maintenance of Properties

101

6.07

Maintenance of Insurance

102

6.08

Compliance with Laws

102

6.09

Books and Records

102

6.10

Inspection Rights

103

6.11

Use of Proceeds

103

6.12

Covenant to Guarantee Obligations

103

6.13

Covenant to Give Security

103

6.14

Compliance with Environmental Laws

104

6.15

Anti-Corruption Laws; Sanctions

104

6.16

Approvals and Authorizations

105

6.17

[Reserved]

105

6.18

[Reserved]

105

6.19

Further Assurances

105

6.20

Post-Closing Matters

105

6.21

Designation of Unrestricted Subsidiaries

106

Article VII NEGATIVE COVENANTS

107

7.01

Liens

107

7.02

Indebtedness

109

7.03

Investments

111

7.04

Fundamental Changes

112

7.05

Dispositions

113

7.06

Restricted Payments

114

7.07

Change in Nature of Business

114

7.08

Transactions with Affiliates

114

7.09

[Reserved]

115

ii


 

7.10

Use of Proceeds

115

7.11

Financial Covenants

115

7.12

Amendments of Organization Documents; Fiscal Year; Legal Name, State of Formation; Form of Entity and Accounting Changes

116

7.13

Sale and Leaseback Transactions

117

7.14

Sanctions

117

7.15

Anti-Corruption Laws

117

7.16

[Reserved]

117

7.17

Passive Holding Company

117

Article VIII EVENTS OF DEFAULT AND REMEDIES

117

8.01

Events of Default

117

8.02

Remedies upon Event of Default

119

8.03

Application of Funds

120

Article IX ADMINISTRATIVE AGENT

121

9.01

Appointment and Authority

121

9.02

Rights as a Lender

122

9.03

Exculpatory Provisions

122

9.04

Reliance by Administrative Agent

123

9.05

Delegation of Duties

123

9.06

Resignation of Administrative Agent

124

9.07

Non-Reliance on Administrative Agent and Other Lenders

125

9.08

No Other Duties, Etc

125

9.09

Administrative Agent May File Proofs of Claim; Credit Bidding

126

9.10

Collateral and Guaranty Matters

127

9.11

Secured Cash Management Agreements and Secured Hedge Agreements

128

9.12

Certain ERISA Matters

128

Article X CONTINUING GUARANTY

129

10.01

Guaranty

129

10.02

Rights of Lenders

130

10.03

Certain Waivers

130

10.04

Obligations Independent

130

10.05

Subrogation

130

10.06

Termination; Reinstatement

130

10.07

Stay of Acceleration

131

10.08

Condition of Borrower

131

10.09

Appointment of Borrower

131

10.10

Right of Contribution

131

10.11

Keepwell

131

Article XI MISCELLANEOUS

132

11.01

Amendments, Etc

132

11.02

Notices; Effectiveness; Electronic Communications

135

11.03

No Waiver; Cumulative Remedies; Enforcement

136

11.04

Expenses; Indemnity; Damage Waiver

137

11.05

Payments Set Aside

139

11.06

Successors and Assigns

139

11.07

Treatment of Certain Information; Confidentiality

145

11.08

Right of Setoff

146

11.09

Interest Rate Limitation

147

11.10

Counterparts; Integration; Effectiveness

147

iii


 

11.11

Survival of Representations and Warranties

147

11.12

Severability

148

11.13

Replacement of Lenders

148

11.14

Governing Law; Jurisdiction; Etc

149

11.15

Waiver of Jury Trial

150

11.16

Subordination

150

11.17

No Advisory or Fiduciary Responsibility

151

11.18

Electronic Execution; Electronic Records

151

11.19

USA PATRIOT Act Notice

152

11.20

Acknowledgement and Consent to Bail-In of Affected Financial Institutions

152

11.21

[Reserved]

153

11.22

Acknowledgement Regarding Any Supported QFCs

153

iv


 

BORROWER PREPARED SCHEDULES

Schedule 1.01(c) Responsible Officers

Schedule 5.10 Insurance

Schedule 5.12 Pension Plans

Schedule 5.20(a) Subsidiaries, Joint Ventures, Partnerships and Other Equity Investments

Schedule 5.20(b) Loan Parties

Schedule 5.21(b) Intellectual Property

Schedule 5.21(c) Documents, Instrument, and Tangible Chattel Paper

Schedule 5.21(d)(i) Deposit Accounts & Securities Accounts

Schedule 5.21(d)(ii) Electronic Chattel Paper & Letter-of-Credit Rights

Schedule 5.21(e) Commercial Tort Claims

Schedule 5.21(f) Pledged Equity Interests

Schedule 5.21(g)(i) Mortgaged Properties

Schedule 5.21(g)(ii) Other Properties

Schedule 7.01 Existing Liens

Schedule 7.02 Existing Indebtedness

Schedule 7.03 Existing Investments

ADMINISTRATIVE AGENT PREPARED SCHEDULES

Schedule 1.01(a) Certain Addresses for Notices

Schedule 1.01(b) Initial Commitments and Applicable Percentages

Schedule 1.01(d) Existing Letters of Credit

Schedule 1.01(e) Mortgaged Property Support Documentation

Schedule 2.01 Swingline Commitments

Schedule 2.03 Letter of Credit Commitments

EXHIBITS

Exhibit A Form of Administrative Questionnaire

Exhibit B Form of Assignment and Assumption

Exhibit C Form of Compliance Certificate

Exhibit D Form of Joinder Agreement

Exhibit E Form of Loan Notice

Exhibit F Form of Permitted Acquisition Certificate

Exhibit G Form of Revolving Note

Exhibit H Form of Secured Party Designation Notice

Exhibit I Form of Swingline Loan Notice

Exhibit J Form of Term Note

Exhibit K Form of Incremental Term Note

Exhibit L Forms of U.S. Tax Compliance Certificates

Exhibit M Form of Authorization to Share Insurance Information

Exhibit N Form of Notice of Loan Prepayment

Exhibit O Form of Letter of Credit Report

Exhibit P Form of Notice of Additional L/C Issuer

 

 

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CREDIT AGREEMENT

This CREDIT AGREEMENT is entered into as of February 3, 2021, among ZETA GLOBAL CORP., a Delaware corporation (the “Borrower”), ZETA GLOBAL HOLDINGS CORP., a Delaware corporation (“Holdings”), the other Guarantors (defined herein), the Lenders (defined herein), BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender and an L/C Issuer, and the other L/C Issuers from time to time party hereto.

PRELIMINARY STATEMENTS:

WHEREAS, the Loan Parties (as hereinafter defined) have requested that the Lenders, the Swingline Lender and each L/C Issuer make loans and other financial accommodations to the Loan Parties in an aggregate amount of up to $222,500,000.

WHEREAS, the Lenders, the Swingline Lender and each L/C Issuer have agreed to make such loans and other financial accommodations to the Loan Parties on the terms and subject to the conditions set forth herein.

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

Article I

DEFINITIONS AND ACCOUNTING TERMS

1.01.
Defined Terms.

As used in this Agreement, the following terms shall have the meanings set forth below:

Acquisition” means the acquisition, whether through a single transaction or a series of related transactions, of (a) a majority of the Voting Stock or other controlling ownership interest in another Person (including the purchase of an option, warrant or convertible or similar type security to acquire such a controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase of such equity or other ownership interest or upon the exercise of an option or warrant for, or conversion of securities into, such equity or other ownership interest, or (b) assets of another Person which constitute all or substantially all of the assets of such Person or of a division, line of business or other business unit of such Person.

Act” has the meaning specified in Section 11.19.

Additional Commitment Lender” has the meaning specified in Section 2.16(c).

Additional Lender” has the meaning specified in Section 2.17(b).

Additional Secured Obligations” means (a) all obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements and (b) all out-of-pocket costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided that Additional Secured Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.


 

Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.

Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

Administrative Agent Fee Letter” means the administrative agent fee letter, dated as of the date hereof, among the Borrower and the Administrative Agent.

Administrative Agents Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 1.01(a), or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit A or any other form approved by the Administrative Agent.

Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

Aggregate Commitments” means the Commitments of all the Lenders.

Agreement” means this Credit Agreement, including all schedules, exhibits and annexes hereto.

All-in-Yield” means as to any Indebtedness the yield to maturity thereof, whether in the form of interest rate margin, original issue discount, upfront fees, recurring periodic fees, any interest rate floors or similar devices, or otherwise, in each case payable generally to Lenders making such Loans, but excluding any arrangement, commitment, structuring, underwriting or other fees payable in connection therewith that are not generally shared with the relevant Lenders and customary consent fees paid generally to consenting Lenders.

Applicable Law” means, as to any Person, all applicable Laws binding upon such Person or to which such a Person is subject.

Applicable Percentage” means (a) in respect of the Term Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Facility represented by (i) on or prior to the Closing Date, such Term Lender’s Term Commitment at such time and (ii) thereafter, the outstanding principal amount of such Term Lender’s Term Loans at such time, (b) in respect of an Incremental Term Facility, with respect to any Incremental Term Lender at any time, the percentage (carried out to the ninth decimal place) of such Incremental Term Facility represented by (i) on or prior to the applicable Incremental Effective Date, such Incremental Term Lender’s Incremental Term Commitment at such time and (ii) thereafter, the outstanding principal amount of such Incremental Term Lender’s Incremental Term Loans at such time and (c) in respect of the Revolving Facility, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Facility represented by such Revolving Lender’s Revolving Commitment at such time, subject to adjustment as provided in Section 2.15. If the Commitment of all of the Revolving Lenders to make Revolving Loans and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Revolving Commitments have expired, then the Applicable Percentage of each Revolving Lender in respect of the Revolving Facility shall be determined based on the Applicable

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Percentage of such Revolving Lender in respect of the Revolving Facility most recently in effect, giving effect to any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time of determination. The Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 1.01(b) or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.17, as applicable.

Applicable Rate” means, for any day, the rate per annum set forth below opposite the applicable level then in effect (based on the Consolidated Net Leverage Ratio), it being understood that the Applicable Rate for (a) Revolving Loans that are Base Rate Loans shall be the percentage set forth under the column “Revolving Loans” and “Base Rate”, (b) Revolving Loans that are SOFR Loans shall be the percentage set forth under the column “Revolving Loans” and “SOFR Loans & Letter of Credit Fee”, (c) that portion of the Term Loan comprised of Base Rate Loans shall be the percentage set forth under the column “Term Loan” and “Base Rate”, (d) that portion of the Term Loan comprised of SOFR Loans shall be the percentage set forth under the column “Term Loan” and “SOFR Loans & Letter of Credit Fee”, (e) the Letter of Credit Fee shall be the percentage set forth under the column “Revolving Loans” and “SOFR Loans & Letter of Credit Fee”, and (f) the Commitment Fee shall be the percentage set forth under the column “Commitment Fee”:

Applicable Rate

Level

Consolidated Net Leverage
Ratio

SOFR Loans
& Letter of Credit
Fee

Base Rate
 

Commitment Fee

Revolving Loans

Term Loan

Revolving Loans

Term Loan

1

≤ 1.00:1.00

2.125%

2.125%

1.125%

1.125%

0.25%

2

≤1.75:1.00 but > 1.00:1.00

2.25%

2.25%

1.25%

1.25%

0.25%

3

≤2.50:1.00 but > 1.75:1.00

2.375%

2.375%

1.375%

1.375%

0.25%

4

≤3.00:1.00 but > 2.50:1.00

2.50%

2.50%

1.50%

1.50%

0.25%

5

> 3.00:1.00

2.625%

2.625%

1.625%

1.625%

0.25%

The Applicable Rate in respect of any Incremental Term Loan shall be as set forth in the Incremental Agreement executed in connection therewith. Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b); provided, however, that if a Compliance Certificate is not delivered when due in accordance with Section 6.02(b), then, upon the request of the Required Lenders, pricing level 5 shall apply, in each case as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the first Business Day following the date on which such Compliance Certificate is delivered.

Notwithstanding anything to the contrary contained in this definition, (i) the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b) and (ii) the initial Applicable Rate shall be set forth in pricing level 3 until the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b) for the first full fiscal quarter to occur following the Closing Date to the Administrative Agent. Any adjustment in the Applicable Rate shall be applicable to all Credit Extensions then existing or subsequently made or issued.

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The Applicable Rate set forth above shall be increased as, and to the extent, required by Section 2.17.

Applicable Revolving Percentage” means with respect to any Revolving Lender at any time, such Revolving Lender’s Applicable Percentage in respect of the Revolving Facility at such time.

Appropriate Lender” means, at any time, (a) with respect to any Facility, a Lender that has a Commitment with respect to such Facility or holds a Loan under such Facility at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuers and (ii) if any Letters of Credit have been issued pursuant to Section 2.03, the Revolving Lenders and (c) with respect to the Swingline Sublimit, (i) the Swingline Lender and (ii) if any Swingline Loans are outstanding pursuant to Section 2.04(a), the Revolving Lenders.

Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Arranger” means BofA Securities, Inc. in its capacity as lead arranger.

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit B or any other form (including an electronic documentation form generated by use of an electronic platform) approved by the Administrative Agent.

Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or other agreement or instrument were accounted for as a Capitalized Lease and (c) all Synthetic Debt of such Person.

Audited Financial Statements” means the audited Consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2019, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.

Authorization to Share Insurance Information” means the authorization substantially in the form of Exhibit M (or such other form as required by each of the Loan Party’s insurance companies).

Availability Period” means in respect of the Revolving Facility, the period from and including the Closing Date to the earliest of (i) the Maturity Date for the Revolving Facility, (ii) the date of termination of the Revolving Commitments pursuant to Section 2.06, and (iii) the date of termination of the Commitment of each Revolving Lender to make Revolving Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02.

Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (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 pursuant to this Agreement, 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 3.03(d).

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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 (a) 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 (b) 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).

Bank of America” means Bank of America, N.A. and its successors and permitted assigns.

Base Rate” means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) Adjusted Term SOFR for a tenor of one month plus 1.00%, subject to the interest rate floors set forth therein; provided that if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.

Base Rate Loan” means a Revolving Loan, a Term Loan or an Incremental Term Loan that bears interest based on the Base Rate.

Base Rate Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.

Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or 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 3.03(a).

Benchmark Replacement” means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

(a)
the sum of: (i) Daily Simple SOFR and (ii) 0.10% (10 basis points); or
(b)
the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower 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 to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment.

If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the 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 the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), 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 Dollar-denominated syndicated credit facilities at such time.

Benchmark Replacement Date” means, a date and time determined by the Administrative Agent, which date shall be no later than 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 the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness 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, the occurrence of one or more of the following events with respect to the then-current 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);
(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;

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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 the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation 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.

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 Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.03 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.03.

Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

Borrower” has the meaning specified in the introductory paragraph hereto.

Borrower Materials” has the meaning specified in Section 6.02(p).

Borrowing” means a Revolving Borrowing, a Swingline Borrowing or a Term Borrowing, as the context may require.

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, when used in connection with an amount that bears interest at a rate based on SOFR or any direct or indirect calculation or determination of SOFR, the term “Business Day” means any such day that is also a U.S. Government Securities Business Day.

Capital Expenditures” means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset (excluding normal replacements and maintenance which are properly charged to current operations). For purposes of this definition, (i) the purchase price of assets purchased with the trade-in or disposition of existing assets or with insurance proceeds shall be included in Capital Expenditures only to the extent of the gross amount by which such purchase price exceeds the credit granted by the seller of such acquired assets for the assets being traded in or disposed of or the amount of such insurance proceeds, as the case may be and (ii) any Permitted Acquisition shall not be included in Capital Expenditures.

Capitalized Lease” means any lease that has been or is required to be, in accordance with GAAP, recorded, classified and accounted for as a capitalized lease or financing lease.

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Captive Insurance Subsidiary” means any Subsidiary that is subject to regulation as an insurance company.

Cash Collateralize” means to deposit in a Controlled Account or pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuers or Swingline Lender (as applicable) or the Lenders, as Collateral for L/C Obligations, the Obligations in respect of Swingline Loans, or obligations of the Revolving Lenders to fund participations in respect of L/C Obligations or Swingline Loans (as the context may require), (a) cash or deposit account balances, (b) backstop letters of credit entered into on terms, from issuers and in amounts reasonably satisfactory to the Administrative Agent and the applicable L/C Issuers, and/or (c) if the Administrative Agent and the applicable L/C Issuers or Swingline Lender shall agree, in their sole discretion, other credit support, in each case, in Dollars and pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and such L/C Issuer or the Swingline Lender (as applicable).

Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such Cash Collateral and other credit support.

Cash Equivalents” means any of the following types of Investments, to the extent owned by the Borrower or any of its Restricted Subsidiaries free and clear of all Liens (other than Permitted Liens):

(a)
readily marketable obligations issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof having maturities of not more than three hundred sixty days (360) days from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;
(b)
time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) of this definition and (iii) either (A) has combined capital and surplus of at least $500,000,000.00 or (B) whose short-term commercial paper rating at the time of the acquisition thereof is at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than one year from the date of acquisition thereof;
(c)
commercial paper issued by any Person organized under the laws of any state of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than one year from the date of acquisition thereof;
(d)
repurchase agreements with a term of not more than thirty (30) days with a bank or trust company (including a Lender) or a recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States;
(e)
obligations of any state of the United States or any political subdivision thereof for the payment of the principal and redemption price of and interest on which there shall have been irrevocably deposited Investments of the character described in clause (a) of this definition maturing as to principal and interest at times and in amounts sufficient to provide such payment;
(f)
money market accounts subject to Rule 2a-7 of the Investment Company Act of 1940 (“Rule 2a-7”) which consist primarily of cash and cash equivalents set forth in clauses (a) through (e) above and of which 95% shall at all times be comprised of First Tier Securities (as defined in

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Rule 2a-7) and any remaining amount shall at all times be comprised of Second Tier Securities (as defined in Rule 2a-7);
(g)
Investments, classified in accordance with GAAP as current assets of the Borrower or any of its Restricted Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a) through (f) of this definition; and
(h)
other short-term investments utilized by Foreign Subsidiaries (or the Borrower on behalf of such Foreign Subsidiaries) in accordance with normal investment practices for cash management in investments of a type analogous to the foregoing.

Cash Management Agreement” means any agreement that is not prohibited by the terms hereof to provide treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

Cash Management Bank” means any Person in its capacity as a party to a Cash Management Agreement that, (a) at the time it enters into a Cash Management Agreement with a Loan Party or any Restricted Subsidiary, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Cash Management Agreement with a Loan Party or any Restricted Subsidiary, in each case in its capacity as a party to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, however, that for any of the foregoing to be included as a “Secured Cash Management Agreement” on any date of determination by the Administrative Agent, the applicable Cash Management Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.

CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.

CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code in which the Borrower or any Loan Party is a United States shareholder within the meaning of Section 951(b) of the Code.

Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (ii) 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, issued or implemented.

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Change of Control” means an event or series of events by which:

(a) at any time prior to the creation of a Public Market, any “person” or “group” becomes the “beneficial owner” of equity securities in Holdings in an amount greater than the amount of equity securities held by David A. Steinberg (or any “group” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) of which he is a member) (and taking into account all such securities that David A. Steinberg has the right to acquire pursuant to any option right (as defined in clause (b) below));

(b) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of (i) at any time prior to the creation of a Public Market, 50% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right) and (ii) at any time after the creation of a Public Market, 35% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);

(c) Holdings shall cease to own and control, of record and beneficially, directly or indirectly, 100% of the Equity Interests of the Borrower; or

(d) the Borrower shall cease to own and control, of record and beneficially, directly or indirectly, 100% of the Equity Interests of each Guarantor (other than Holdings and excluding directors’ qualifying shares required by Law) except as otherwise expressly permitted under this Agreement.

provided that a transaction in which the Borrower becomes a wholly owned Subsidiary of another Person (other than a Person that is an individual) shall not constitute a Change of Control if (i) the holders of the Equity Interests of the Borrower immediately prior to such transaction “beneficially own” (as defined above), directly or indirectly through one or more intermediaries, at least a majority of the outstanding combined voting power of all of equity securities of the Borrower immediately following the consummation of such transaction, (ii) no “person” or “group” (as such terms are defined above), other than such other Person (but including the holders of the Equity Interests of such other Person), “beneficially owns” (as such term is defined above), directly or indirectly through one or more intermediaries, more than fifty percent (50%) of the outstanding combined voting power of all of equity securities of the Borrower immediately following the consummation of such transaction and (iii) such other Person shall become a Guarantor hereunder.

Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Term Loans or Incremental Term Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment, Term Commitment or Incremental Term Loan Commitment.

Closing Date” means the date hereof.

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Code” means the Internal Revenue Code of 1986, as amended.

Collateral” means all of the “Collateral” and “Mortgaged Property” referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.

Collateral Documents” means, collectively, the Security Agreement, the Mortgages, any related Mortgaged Property Support Documents, the Qualifying Control Agreements, each Joinder Agreement, each of the collateral assignments, security agreements, pledge agreements, account control agreements or other similar agreements delivered to the Administrative Agent pursuant to Section 6.13, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.

Commitment” means a Term Commitment, and Incremental Term Commitment or a Revolving Commitment, as the context may require.

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.

Competitor” means any Person that is a bona fide direct competitor of the Borrower or any of its Subsidiaries directly engaged in substantially similar business operations as the Borrower or any of its Subsidiaries and (b) any of such Person’s Subsidiaries; provided that, notwithstanding the foregoing, in no event shall “Competitor” include any Person that is a financial institution, a debt fund or an investment vehicle that is engaged in the business of making, purchasing, holding or otherwise investing in loans, notes, bonds and similar extensions of credit or securities in the ordinary course of business to unaffiliated third parties.

Compliance Certificate” means a certificate substantially in the form of Exhibit C.

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 “U.S. Government Securities 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 3.03 and other technical, administrative or operational matters) that the Administrative Agent determines, in consultation with the Borrower, 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 determines, in consultation with the Borrower, that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines, in consultation with the Borrower, that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent determines, in consultation with the Borrower, is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

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.

Consolidated” means, when used with reference to financial statements or financial statement items of the Borrower and its Subsidiaries or any other Person, such statements or items on a consolidated basis in accordance with the consolidation principles of GAAP.

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Consolidated EBITDA” means, for the Borrower and its Restricted Subsidiaries, for any period, Consolidated Net Income for such most recently completed Measurement Period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) Consolidated Interest Charges for such period, (ii) Consolidated federal, state, local and foreign income or similar tax expense for such period, (iii) all amounts attributable to depreciation and amortization for such period, (iv) any non-cash charges (other than the write-down of current assets) for such period and any non-cash fair value adjustments in respect of such period, (v) all fees, costs and expenses for such period relating to the consummation of the Loan Documents and termination of the Existing Credit Agreements (collectively, the “Transactions”), (vi) any premiums, expenses or charges (other than non-cash charges) related to any issuance or sale of Equity Interests, Investments, Permitted Acquisitions, Dispositions, recapitalization or the incurrence or permanent repayment or amendment of Indebtedness, in each case, permitted to be incurred or effected hereunder (including a refinancing thereof) (whether or not successful), including such fees, expenses or charges related to any Permitted Acquisitions or the issuance of Indebtedness and any amendment or other modification of this Agreement or other Indebtedness, (vii) any non-cash charges incurred pursuant to any management equity plan or stock option plan or other management or employee benefit plan or agreement or any stock subscription or shareholder plan, (viii) non-cash stock-based compensation and non-cash rental expense, (ix) liability, casualty or business interruption insurance proceeds (or indemnification or other third party reimbursement proceeds) received to the extent not already included in computing such Consolidated Net Income to the extent such event has resulted in a corresponding reduction in Consolidated Net Income for such period and (x) any earnout or similar payment permitted to be incurred hereunder in connection with a Permitted Acquisition which is paid or accrued during such period plus (b) (i) non-recurring restructuring charges, accruals or reserves (including restructuring and integration costs related to acquisitions permitted hereunder and adjustments to existing reserves), whether or not classified as restructuring expense on the consolidated financial statements, for such period and (ii) the amount of “run rate” costs savings related to a Permitted Acquisition and projected by the Borrower in good faith to be reasonably anticipated to be realizable within 12 months of the actions taken (which cost savings shall be added to Consolidated EBITDA until fully realized and calculated on a pro forma basis as though such cost savings had been realized on the first day of the relevant period), net of the amount of actual benefits realized from such actions; provided that (A) such amounts described in the immediately preceding clauses (i) and (ii) are reasonably identifiable and quantifiable and (B) no such amounts described in the immediately preceding clauses (i) and (ii) shall be added pursuant to this clause (b) to the extent duplicative of any expenses or charges relating to such cost savings made pursuant to Section 1.03(c) (it being understood and agreed that “run rate” shall mean the full recurring benefit that is associated with any action taken); provided further that the aggregate amount permitted to be added back pursuant to this clause (b) during any four consecutive fiscal quarter period when combined with any similar amounts added back pursuant to Section 1.03(c) shall not exceed 20.0% of pro forma Consolidated EBITDA (calculated after giving effect to such add-backs) and minus (c) without duplication (i) to the extent included in determining such Consolidated Net Income, all cash payments made during such period on account of reserves, restructuring charges and other non-cash charges added to Consolidated Net Income pursuant to clause (a)(iv) above in a previous period, (ii) any net after tax gain or income from the early extinguishment of Indebtedness and (iii) to the extent included in determining such Consolidated Net Income, any extraordinary gains and all non-cash items of income for such period, all determined on a consolidated basis in accordance with GAAP.

For any period, (A) the Consolidated EBITDA of any Target acquired by the Borrower or any Restricted Subsidiary pursuant to a Permitted Acquisition during such period shall be included on a pro forma basis for such period (assuming the consummation of such acquisition and the incurrence or assumption of any Indebtedness in connection therewith occurred as of the first day of such period) and (B) the Consolidated EBITDA of any Person or line of business sold or otherwise disposed of by the Borrower or any Restricted Subsidiary during such period shall be excluded for such period (assuming the

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consummation of such sale or other disposition and the repayment of any Indebtedness in connection therewith occurred as of the first day of such period).

Notwithstanding the foregoing, the Administrative Agent shall utilize the quarterly Consolidated EBITDA amounts set forth below for purposes of calculating Consolidated EBITDA and determining the Borrower’s compliance with the financial covenants set forth in Section 7.11.

Applicable Period

Consolidated EBITDA

Fiscal quarter ended March 31, 2020

$13,832,499

Fiscal quarter ended June 30, 2020

$12,140,806

Fiscal quarter September 30, 2020

$17,089,780

Fiscal quarter ended December 31, 2020

$21,607,639

Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination for the Borrower and its Restricted Subsidiaries, the ratio of (a) (i) Consolidated EBITDA, less (ii) Maintenance Capital Expenditures to (b) the sum of (i) Consolidated Interest Charges to the extent paid in cash, (ii) the aggregate amount of federal, state, local and foreign income taxes paid in cash (net of any cash refund in respect of any such taxes received during such period) (including Permitted Tax Distributions), (iii) the aggregate principal amount of all redemptions or similar acquisitions for value of outstanding debt for borrowed money or regularly scheduled principal payments (other than any such payment that is required to be made on the final maturity date thereof) (without giving effect to any mandatory or voluntary prepayments), but excluding any such payments (A) to the extent refinanced through the incurrence of additional Indebtedness otherwise expressly permitted under Section 7.02 or (B) on debt constituting revolving credit loans except to the extent made in connection with a scheduled permanent commitment reduction, and (iv) all cash dividends paid (excluding items eliminated in consolidation) in respect of any series of Disqualified Stock, in each case, of or by the Borrower and its Restricted Subsidiaries for the most recently completed Measurement Period.

Consolidated Funded Indebtedness” means, as of any date of determination, for the Borrower and its Restricted Subsidiaries on a Consolidated basis, the sum of: (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including the principal amount of the Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) all purchase money Indebtedness; (c) the amount drawn and unreimbursed under issued and outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments; (d) all obligations (including, without limitation, earnout obligations) to pay the deferred purchase price of property or services (other than trade accounts payable and similar accrued obligations incurred in the ordinary course of business and not past due for more than 120 days after the date on which such trade account or similar accrued obligation was created, unless the same shall be contested in good faith or otherwise be subject to a bona fide dispute and adequate reserves in accordance with GAAP are being maintained by the Borrower or such Restricted Subsidiary); (e) all Attributable Indebtedness; (f) all obligations to purchase, redeem, retire, defease or otherwise make any payment prior to the Maturity Date in respect of any Equity Interests (other than in connection with any optional redemption thereof) or any warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (g) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (f) above of Persons other than the Borrower or any Restricted Subsidiary; and (h) all Indebtedness of the types referred to in clauses (a) through (g) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability

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company) in which the Borrower or a Restricted Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Borrower or such Restricted Subsidiary. The Borrower’s PPP Loan shall not constitute Consolidated Funded Indebtedness except to the extent such PPP Loan is finally determined not to be forgiven.

Consolidated Interest Charges” means, for any Measurement Period, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, (b) all interest paid or payable with respect to discontinued operations and (c) the portion of rent expense under Capitalized Leases that is treated as interest in accordance with GAAP, in each case, of or by the Borrower and its Restricted Subsidiaries on a Consolidated basis for the most recently completed Measurement Period. For purposes of the foregoing, interest expenses shall be determined after giving effect to any net payments made or received by the Borrower or any Restricted Subsidiary with respect to any Swap Contracts. Notwithstanding the foregoing, Consolidated Interest Charges shall be the amounts set forth below with respect to such fiscal quarters set forth below.

Applicable Period

Consolidated Interest Charges

Fiscal quarter ended March 31, 2020

$4,343,113

Fiscal quarter ended June 30, 2020

$4,091,469

Fiscal quarter September 30, 2020

$3,890,166

Fiscal quarter ended December 31, 2020

$4,036,412

Consolidated Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness less domestic Unrestricted Cash of the Borrower and its Restricted Subsidiaries which is held in a Controlled Account as of such date (in an amount not to exceed 50% of Consolidated EBITDA for the most recently ended Measurement Period) to (b) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries on a consolidated basis for the most recently completed Measurement Period.

Consolidated Net Income” means, for any period, the net income (or loss) of the Borrower and its Restricted Subsidiaries on a Consolidated basis for such period; provided that Consolidated Net Income shall exclude (a) extraordinary gains and extraordinary losses for such period, (b) the net income of any Restricted Subsidiary during such period to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of such income is not permitted by operation of the terms of its Organization Documents or any agreement, instrument or Law applicable to such Restricted Subsidiary (other than the Loan Documents) during such period, except that the Borrower’s equity in any net loss of any such Restricted Subsidiary for such period shall be included in determining Consolidated Net Income, and (c) any income (or loss) for such period of any Person if such Person is not a Restricted Subsidiary, except that the Borrower’s equity in the net income of any such Person for such period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Borrower or a Restricted Subsidiary as a dividend or other distribution (and in the case of a dividend or other distribution to a Restricted Subsidiary, such Restricted Subsidiary is not precluded from further distributing such amount to the Borrower as described in clause (b) of this proviso).

Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

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Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise (including any member of the senior management group of any such Person). “Controlling” and “Controlled” have meanings correlative thereto.

Controlled Account” means each deposit account and securities account that is subject to a Qualifying Control Agreement.

Cost of Acquisition” means, with respect to any Acquisition, as at the date of entering into any agreement therefor, the sum of the following (without duplication): (a) the amount of any cash given as consideration in connection with such Acquisition, (b) all additional purchase price amounts in the form of earnouts, holdbacks and other contingent obligations that should be recorded on the financial statements of the Borrower and its Restricted Subsidiaries in accordance with GAAP in connection with such Acquisition and (c) all amounts paid in respect of covenants not to compete and consulting agreements that is recorded on the financial statements of the Borrower and its Restricted Subsidiaries in accordance with GAAP as part of the consideration for such Acquisition, and other affiliated contracts in connection with such Acquisition, in each case excluding such amounts financed with equity proceeds.

Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that if the Administrative Agent determines, in consultation with the Borrower, that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.

Debt Issuance” means the issuance by any Loan Party or any Restricted Subsidiary of any Indebtedness other than Indebtedness permitted under Section 7.02.

Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

Default Rate” means (a) with respect to any Obligation for which a rate is specified, a rate per annum equal to two percent (2%) in excess of the rate otherwise applicable thereto and (b) with respect to any Obligation for which a rate is not specified or available, a rate per annum equal to the Base Rate plus the Applicable Rate for Revolving Loans that are Base Rate Loans plus two percent (2%), in each case, to the fullest extent permitted by Applicable Law.

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 (2) 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 L/C Issuer, the Swingline 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 Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, any L/C Issuer or the Swingline Lender in writing

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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 (3) 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 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, and the effective date of such status, 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)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, each L/C Issuer, the Swingline Lender and each other Lender promptly following such determination.

Designated Jurisdiction” means any country, region or territory to the extent that such country, region or territory is the subject of any Sanctions (including currently Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine).

Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback Transaction) of any property by any Loan Party or Restricted Subsidiary (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

Disqualified Institution” means, on any date, (a) those specific Persons designated by the Borrower as a “Disqualified Institution” by written notice delivered to the Administrative Agent on or prior to the Closing Date (including any Affiliate of such designated Person clearly recognizable as an Affiliate thereof by name) and (b) any other Person that is a Competitor of the Borrower or any of its Subsidiaries, which Person has been designated by the Borrower as a “Disqualified Institution” by written notice to the Administrative Agent and the Lenders (by posting such notice to the Platform) not less than three (3) Business Days prior to such date (including any Affiliate of such designated Person clearly recognizable as an Affiliate thereof by name); provided that “Disqualified Institutions” shall exclude any Person that the Borrower has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent and the Lenders from time to time; provided further than no commercial bank nor any investment bank shall be deemed to be a Disqualified Institution.

Disqualified Stock” shall mean any Equity Interest that, 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, (a) 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

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of the holder thereof, in whole or in part, or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital, in each case at any time on or prior to the date that is 180 days after the latest Maturity Date under any Facility, or (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interest referred to in clause (a) above, in each case at any time prior to the date that is 180 days after the latest Maturity Date under any Facility; provided, however, that with respect to any Equity Interest issued to any employee or to any plan for the benefit of employees of Holdings or its Restricted Subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute Disqualified Stock solely because it may be required to be repurchased in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, resignation, death or disability or if any class of Equity Interest of such Person by its terms authorizes such Person to satisfy its obligations thereunder by delivery of an Equity Interest that is not Disqualified Stock, such Equity Interests shall not be deemed to be Disqualified Stock. Notwithstanding the foregoing, any Equity Interest that would constitute Disqualified Stock solely because the holders thereof have the right to require Holdings or its Restricted Subsidiaries to repurchase such Equity Interest upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock if any such right becomes operative only after repayment in full of all the Loans and all other Obligations, the cancellation or expiration of all Letters of Credit and the termination or expiration of the Commitments.

Dollar” and “$” mean lawful money of the United States.

Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States.

DQ List” has the meaning specified in Section 11.06(g)(iv).

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.

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06 (subject to such consents, if any, as may be required under Section 11.06(b)(iii)). For the avoidance of doubt, any Disqualified Institution is subject to Section 11.06(g).

Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetland, flora and fauna.

Environmental Laws” means any and all federal, state, provincial, territorial, local, and foreign statutes, laws (including common law), regulations, standards, ordinances, rules, judgments, interpretations, orders, decrees, permits, agreements or governmental restrictions relating to pollution or the protection of the Environment or human health (to the extent related to exposure to Hazardous Materials), including those relating to the manufacture, generation, handling, transport, storage, treatment, Release or threat of Release of Hazardous Materials, air emissions and discharges to waste or public systems.

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Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, directly or indirectly relating to (a) any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Environmental Permit” means any permit, certification, registration, approval, identification number, license or other authorization required under any Environmental Law.

Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with a Loan Party within the meaning of Sections 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of a Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of a notice of intent to terminate, or the treatment of a Pension Plan amendment as a termination, under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or any Multiemployer Plan is considered a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Loan Party or any ERISA Affiliate or (i) a failure by a Loan Party or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by a Loan Party or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.

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 specified in Section 8.01.

Excluded Property” has the meaning specified in the Security Agreement.

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Excluded Subsidiary” means (a) any Immaterial Subsidiary, (b) any Subsidiary that is a not-for-profit organization, (c) any Captive Insurance Subsidiary, (d) any Foreign Subsidiary, (e) any Subsidiary (whether existing or acquired after the Closing Date) that is prohibited from guaranteeing the Secured Obligations by applicable law or contractual obligations that are in existence on the Closing Date or at the time of acquisition of such Subsidiary and not entered in contemplation thereof or if guaranteeing the Secured Obligations would require governmental consent, approval, license or authorization (unless such consent, approval, license or authorization has been obtained), (f) any Unrestricted Subsidiary and (g) any other Restricted Subsidiary with respect to which, in their reasonable judgment, the Borrower and the Administrative Agent reasonably agree that the cost (including any tax cost), burden, difficulty or consequence of providing a Guarantee is excessive in relation to the value afforded thereby, provided that notwithstanding the foregoing, at no time shall any Guarantor existing on the Closing Date or joined hereto pursuant to Section 6.12 or Section 6.20 subsequently be deemed an Excluded Subsidiary.

Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a Lien to secure, 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 thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.11 and any other “keepwell”, support or other agreement for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or grant by such Guarantor of a Lien, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance with the first sentence of this definition.

Excluded Taxes” means any of the following Taxes imposed on or with respect to any 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 and similar 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 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 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Sections 3.01(b) or (d), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(f) and (d) any withholding Taxes imposed pursuant to FATCA.

Existing Credit Agreements” means (i) that certain Credit Agreement dated as of July 10, 2015, as amended, by and among the Borrower, Holdings, First Eagle Private Credit, LLC (f/k/a Newstar Financial, Inc.), as administrative agent and as collateral agent and the lenders party thereto from time to time and (ii) that certain Credit Agreement, dated as of July 29, 2016, as amended, by and among the Borrower and PNC Bank, National Association, as administrative agent and the other parties named therein from time to time.

Existing Letters of Credit” means those certain letters of credit set forth on Schedule 1.01(d).

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Extended Revolving Commitment” means any Class of Revolving Commitments the maturity of which shall have been extended pursuant to Section 2.16.

Extended Revolving Loans” means any Revolving Loans made pursuant to the Extended Revolving Commitments.

Extended Term Loans” means any Class of Term Loans the maturity of which shall have been extended pursuant to Section 2.16.

Extending Lender” means a Lender who has accepted an Extension Offer pursuant to Section 2.16.

Extension” has the meaning set forth in Section 2.16(a).

Extension Amendment” has the meaning specified in Section 2.16(d).

Extension Offer” has the meaning specified in Section 2.16(a).

Facility” means the Term Facility, and Incremental Term Facility or the Revolving Facility, as the context may require.

Facility Termination Date” means the date as of which all of the following shall have occurred: (a) the Aggregate Commitments have terminated, (b) all Obligations have been paid in full (other than contingent indemnification obligations), and (c) all Letters of Credit have terminated or expired or have been Cash Collateralized in accordance with the terms hereof (other than Letters of Credit as to which other arrangements with respect thereto reasonably satisfactory to the Administrative Agent and the applicable L/C Issuers shall have been made).

FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.

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, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

Fee Letters” means (a) the fee letter, dated December 29, 2020, among the Borrower, the Administrative Agent and BofA Securities, Inc. and (b) the Administrative Agent Fee Letter.

First Amendment” means that certain First Amendment to Credit Agreement, dated as of July 22, 2021, among the Borrower, Holdings, the other Guarantors party thereto, the Lenders party thereto and the Administrative Agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

First Amendment Effective Date” has the meaning assigned to such term in Section 2 of the First

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Amendment.

Flood Hazard Property” means any Mortgaged Property with any improvements thereon that are located wholly or partially in an area designated by the Federal Emergency Management Agency (or any successor agency) as having special flood hazards.

Flood Insurance Laws” means, collectively, (a) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (b) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (c) the Biggert–Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

Flood 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 and the Biggert-Waters Flood Insurance Reform Act of 2012, in each case as amended from time to time, and any successor statutes.

Floor” means a rate of interest equal to 0.00%.

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. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

FRB” means the Board of Governors of the Federal Reserve System of the United States.

Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Lender, (a) with respect to any L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof.

Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

Funding Indemnity Letter” means a funding indemnity letter in form and substance satisfactory to the Administrative Agent.

GAAP” means generally accepted accounting principles in the United States set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession) including, without limitation, the FASB Accounting Standards Codification, that are applicable to the circumstances as of the date of determination, consistently applied and subject to Section 1.03.

Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state, provincial, territorial or local, and any agency, authority,

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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, without limitation, any supra-national bodies such as the European Union or the European Central Bank).

Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness of the kind described in clauses (a) through (g) of the definition thereof or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness of the kind described in clauses (a) through (g) of the definition thereof or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed or expressly undertaken by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided however that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made (or, if less, the maximum amount of such Indebtedness or other obligation for which such Person may be liable, whether singly or jointly, pursuant to the terms of the instrument evidencing such Guarantee) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

Guaranteed Obligations” has the meaning set forth in Section 10.01.

Guarantors” means, collectively, (a) Holdings, (b) each Restricted Subsidiary of the Borrower identified as a “Guarantor” on the signature pages hereto, (c) the wholly-owned Domestic Subsidiaries of the Borrower as may from time to time become parties to this Agreement pursuant to Section 6.12 and (d) with respect to Additional Secured Obligations owing by any Loan Party or any of its Subsidiaries and any Swap Obligation of a Specified Loan Party (determined before giving effect to Sections 10.01 and 10.11) under the Guaranty, the Borrower.

Guaranty” means, collectively, the Guarantee made by the Guarantors under Article X in favor of the Secured Parties, together with each other guaranty delivered pursuant to Sections 6.12 and 6.20, in each case, as amended, restated, supplemented or otherwise modified from time to time.

Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, natural gas, natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or compounds of any nature in any form regulated pursuant to any Environmental Law.

Hedge Bank” means any Person in its capacity as a party to a Swap Contract that, (a) at the time it enters into a Swap Contract not prohibited under Articles VI or VII, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Swap Contract not prohibited under Articles VI or VII, in each case, in its capacity as a party to such Swap Contract (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, in the case of a Secured Hedge

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Agreement with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Hedge Bank only through the stated termination date (without extension or renewal) of such Secured Hedge Agreement and provided further that for any of the foregoing to be included as a “Secured Hedge Agreement” on any date of determination by the Administrative Agent, the applicable Hedge Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.

Holdings” has the meaning specified in the introductory paragraph hereto.

Immaterial Subsidiary” means, as of any date, any Restricted Subsidiary for which the aggregate amount of the Consolidated EBITDA of such Restricted Subsidiary and its subsidiaries on a consolidated basis, when taken together with (i) the contribution to Consolidated EBITDA of all other Immaterial Subsidiaries and their subsidiaries on a consolidated basis and (ii) the Consolidated EBITDA of all Unrestricted Subsidiaries1, is not in excess of 7.5% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries, in each case, as of the last day of the Measurement Period most recently ended for which the financial statements and certificates required by Section 6.01(a) or (b), as the case may be, have been or were required to have been delivered; provided that notwithstanding the foregoing, at no time shall any Guarantor existing on the Closing Date or joined hereto pursuant to Section 6.12 or Section 6.20 subsequently be deemed an Immaterial Subsidiary.

 

1 Which, solely for the purposes of this clause (ii), Consolidated EBITDA of Unrestricted Subsidiaries shall be calculated in the same manner as Consolidated EBITDA of the Borrower and its Restricted Subsidiaries.

Incremental Agreement” has the meaning specified in Section 2.17(f).

Incremental Commitments” means Incremental Revolving Commitments and/or the Incremental Term Commitments.

Incremental Effective Date” has the meaning specified in Section 2.17(f).

Incremental Revolving Commitment” has the meaning assigned to such term in Section 2.17(a).

Incremental Revolving Commitment Lender” has the meaning specified in Section 2.17(g).

Incremental Term Commitments” has the meaning assigned to such term in Section 2.17(a).

Incremental Term Facility” means, at any time, (a) on or prior to an Incremental Effective Date, the aggregate amount of any Incremental Term Commitments in respect of Incremental Term Loans at such time and (b) thereafter, the aggregate principal amount of the Incremental Term Loans of all Incremental Term Lenders outstanding at such time.

Incremental Term Lender” means a Lender with an Incremental Term Commitment in respect of Incremental Term Loans or an outstanding Incremental Term Loan.

Incremental Term Loan Maturity Date” has the meaning assigned to such term in Section 2.17(c)(ii).

Incremental Term Loans” means any loans made pursuant to any Incremental Term Commitments.

Incremental Term Note” means a promissory note made by the Borrower in favor of an Incremental Term Lender evidencing Incremental Term Loans made by such Incremental Term Lender, substantially in the form of Exhibit K.

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Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

(c) net obligations of such Person under any Swap Contract;

(d) all obligations (including, without limitation, earnout obligations) of such Person to pay the deferred purchase price of property or services (other than trade accounts payable and similar accrued obligations incurred in the ordinary course of business and not past due for more than 120 days after the date on which such trade account or similar accrued obligation was created) which would appear as liabilities on a balance sheet of such Person;

(e) indebtedness of others (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse, valued at the lesser of the fair market value of such property (as determined by such Person in good faith) and the amount of such indebtedness of such other person;

(f) all Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease Obligations of such Person and all Synthetic Debt of such Person;

(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person or any warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and

(h) all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or is generally liable for such joint venture, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.

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

Indemnitee” has the meaning specified in Section 11.04(b).

Information” has the meaning specified in Section 11.07(a).

Intellectual Property” has the meaning set forth in the Collateral Documents.

Intercompany Debt” has the meaning specified in Section 7.02(d).

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Interest Payment Date” means, (a) as to any SOFR Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided, however, that if any Interest Period for a SOFR Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or Swingline Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made (with Swingline Loans being deemed made under the Revolving Facility for purposes of this definition).

Interest Period” means, as to each SOFR Loan, the period commencing on the date such SOFR Loan is disbursed or converted to or continued as a SOFR Loan and ending on the date one (1), three (3) or six (6) months (or, to the extent agreed by all relevant affected Lenders, any other Interest Period other than one, three or six months in duration), thereafter (in each case, subject to availability), as selected by the Borrower in its Loan Notice,; provided that:

(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(c) no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.

Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or interest in, another Person (including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor guaranties Indebtedness of such other Person), or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person which constitute all or substantially all of the assets of such Person or of a division, line of business or other business unit of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of any Loan Party or any Restricted Subsidiary.

IRS” means the United States Internal Revenue Service.

ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.

ISP” means the International Standby Practices, International Chamber of Commerce Publication No. 590 (or such later version thereof as may be in effect at the applicable time).

Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by any L/C Issuer and the Borrower (or any Restricted Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.

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Joinder Agreement” means a joinder agreement substantially in the form of Exhibit D executed and delivered in accordance with the provisions of Sections 6.12 and 6.20.

Laws” means, collectively, all international, foreign, federal, state, provincial, territorial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

L/C Advance” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving Percentage.

L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Borrowing.

L/C Commitment” means, with respect to each L/C Issuer, the commitment of the L/C Issuer to issue Letters of Credit hereunder. The initial amount of each L/C Issuer’s Letter of Credit Commitment is set forth on Schedule 2.03, or if an L/C Issuer has entered into an Assignment and Assumption or has otherwise assumed an L/C Commitment after the Closing Date, the amount set forth for such L/C Issuer as its L/C Commitment in the Register maintained by the Administrative Agent. The Letter of Credit Commitment of an L/C Issuer may be modified from time to time by agreement between such L/C Issuer and the Borrower, and notified to the Administrative Agent.

L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

L/C Disbursement” means any payment made by the L/C Issuer pursuant to a Letter of Credit.

L/C Issuer” means with respect to a particular Letter of Credit, (a) each L/C Issuer in its capacity as issuer of such Letter of Credit, or any successor issuer thereof, (b) such other Lender selected by the Borrower pursuant to Section 2.03(s) from time to time to issue such Letter of Credit (provided that no Lender shall be required to become an L/C Issuer pursuant to this clause (b) without such Lender’s consent), or any successor issuer thereof or (c) any Lender selected by the Borrower (with the prior consent of the Administrative Agent) to replace a Lender who is a Defaulting Lender at the time of such Lender’s appointment as an L/C Issuer (provided that no Lender shall be required to become an L/C Issuer pursuant to this clause (c) without such Lender’s consent), or any successor issuer thereof.

L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts (including all L/C Borrowings). For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

LCA Election” means the Borrower’s election to treat a specified investment as a Limited Condition Acquisition.

Lender” means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender” in accordance with this Agreement and, their successors and permitted assigns and, unless the context requires otherwise, includes the Swingline Lender.

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Lending Office” means, as to the Administrative Agent, any L/C Issuer or any Lender, the office or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other office or offices as such Person may from time to time notify the Borrower and the Administrative Agent; which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or such Affiliate.

Letter of Credit” means any standby letter of credit issued hereunder and shall include the Existing Letters of Credit.

Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer.

Letter of Credit Expiration Date” means the day that is seven (7) days prior to the Maturity Date then in effect for the Revolving Facility (or, if such day is not a Business Day, the next preceding Business Day).

Letter of Credit Fee” has the meaning specified in Section 2.03(l).

Letter of Credit Report” means a certificate substantially the form of Exhibit O or any other form approved by the Administrative Agent.

Letter of Credit Sublimit” means, as of any date of determination, an amount equal to the lesser of (a) $15,000,000 and (b) the Revolving Facility; provided that each L/C Issuer’s Letter of Credit Sublimit shall not exceed its L/C Commitment. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Facility.

Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), hypothec, charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property and any financing lease having substantially the same economic effect as any of the foregoing).

Limited Condition Acquisition” means any Acquisition by the Borrower or its Restricted Subsidiaries or similar Investment by the Borrower or its Restricted Subsidiaries permitted pursuant to the Loan Documents whose consummation is not conditioned on the availability of, or on obtaining, third party financing.

Limited Condition Acquisition Agreement” means the definitive acquisition agreement for a Limited Condition Acquisition.

Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan, an Incremental Term Loan, a Revolving Loan or a Swingline Loan.

Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) any Guaranty, (d) the Collateral Documents, (e) the Fee Letters, (f) each Issuer Document, (g) each Joinder Agreement, (h) any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14, (i) each Incremental Agreement, (j) the First Amendment, (k) the Second Amendment and (l) all other certificates, agreements, documents and instruments executed and delivered, in each case, by any Loan Party pursuant to the foregoing (but specifically excluding any Secured Hedge Agreement or any Secured Cash Management Agreement) and any amendments, modifications or supplements thereto or to any other Loan Document or waivers hereof or to any other Loan Document; provided, however, that for purposes of Section 11.01, “Loan Documents” shall mean this Agreement and the Collateral Documents.

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Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of SOFR Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

Loan Parties” means, collectively, the Borrower and each Guarantor.

Maintenance Capital Expenditures” means, for any period, 75% of the aggregate amount of all non-financed cash Capital Expenditures made during such period.

Master Agreement” has the meaning set forth in the definition of “Swap Contract.”

Material Acquisition” has the meaning specified in clause (d) of the definition of “Permitted Acquisition”.

Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties or financial condition of the Loan Parties, taken as a whole; or (b) a material adverse effect on (i) the ability of any Loan Party to perform its Obligations under any Loan Document to which it is a party or (ii) the legality, validity, binding effect or enforceability against the Borrower or any Guarantor of any Loan Document to which it is a party or (iii) the material rights and remedies available to, or conferred upon, the Administrative Agent or any Lender under any Loan Documents.

Material Intellectual Property” shall mean Intellectual Property that, collectively, is material to the business of the Borrower and its Restricted Subsidiaries.

Material Real Property” means any fee-owned real property located in the United States that is owned by any Loan Party with a fair market value in excess of $500,000 (at the Closing Date or, with respect to fee-owned real property located in the United States acquired after the Closing Date, at the time of acquisition, in each case, as reasonably estimated by the Borrower in good faith).

Maturity Date” means (a) with respect to the Revolving Facility, the later of (i) February 3, 2026 and (ii) if maturity is extended pursuant to Section 2.16, such extended maturity date as determined pursuant to such Section 2.16, (b) with respect to the Term Facility, the later of (i) February 3, 2026 and (ii) if maturity is extended pursuant to Section 2.16, such extended maturity date as determined pursuant to such Section 2.16, and (c) with respect to any Incremental Term Facility, the maturity date set forth in the Incremental Agreement for such Incremental Term Facility; provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.

Measurement Period” means a period of four (4) consecutive fiscal quarters, which, at any date of determination unless otherwise specified herein, shall be the most recently completed four (4) fiscal quarters of the Borrower.

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 Outstanding Amount of all L/C Obligations with respect to Letters of Credit issued and outstanding at such time.

Moodys” means Moody’s Investors Service, Inc. and any successor thereto.

Mortgage” or “Mortgages” means, individually and collectively, as the context requires, each of the fee mortgages, deeds of trust, deeds and other similar security documents executed by a Loan Party that purport to grant a Lien to the Administrative Agent (or a trustee for the benefit of the Administrative Agent)

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for the benefit of the Secured Parties in any Mortgaged Properties, in form and substance reasonably satisfactory to the Administrative Agent.

Mortgaged Property” means Material Real Property of a Loan Party listed on Schedule 5.21(g)(i) and, thereafter, shall include each other Material Real Property with respect to which a Mortgage is granted pursuant to Section 6.13(b).

Mortgaged Property Support Documents” means, with respect to any real property subject to a Mortgage, the deliveries and documents described on Schedule 1.01(e) attached hereto.

Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which a Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.

Multiple Employer Plan” means a Pension Plan which has two or more contributing sponsors (including a Loan Party or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by any Loan Party or any Restricted Subsidiary in respect of any Disposition, Debt Issuance or Involuntary Disposition, net of (a) direct costs incurred in connection therewith (including, without limitation, legal, accounting and investment banking fees and sales commissions), (b) taxes paid or payable as a result thereof and (c) in the case of any Disposition or any Involuntary Disposition, the amount held in escrow as necessary to retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the Administrative Agent) on the related property; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by any Loan Party or any Restricted Subsidiary in any Disposition, Debt Issuance or Involuntary Disposition.

Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders, or all Lenders or all affected Lenders in a Facility, in accordance with the terms of Section 11.01 and (b) has been approved by the Required Lenders.

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

Non-Extending Lender” has the meaning specified in Section 2.16(c).

Note” means a Term Note, an Incremental Term Note or a Revolving Note, as the context may require.

Notice of Additional L/C Issuer” means a certificate substantially the form of Exhibit P or any other form approved by the Administrative Agent.

Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit N or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer.

NPL” means the National Priorities List under CERCLA.

Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document with respect to any Loan, or Letter of Credit and (b) all

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costs and expenses incurred in connection with enforcement and collection of the foregoing to the extent payable by the Loan Parties in accordance with the Loan Documents, including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof pursuant to any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided that, without limiting the foregoing, the Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.

OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

Organization Documents” means, (a) with respect to any corporation, the charter or certificate or articles of incorporation and the bylaws; (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction) and (d) with respect to all entities, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction).

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 solely 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 3.06).

Outstanding Amount” means (a) with respect to Term Loans, Incremental Term Loans, Revolving Loans and Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any Borrowings and prepayments or repayments of Term Loans, Incremental Term Loans, Revolving Loans and Swingline Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.

Participant” has the meaning specified in Section 11.06(d).

Participant Register” has the meaning specified in Section 11.06(d).

PBGC” means the Pension Benefit Guaranty Corporation.

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Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding standards with respect to Pension Plans and set forth in Sections 412, 430 and 436 of the Code and Sections 302 and 303 of ERISA.

Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan, but excluding a Multiemployer Plan) that is maintained or is contributed to by a Loan Party and any ERISA Affiliate or with respect to which a Loan Party or any ERISA Affiliate has any liability and is either covered by Title IV of ERISA or is subject to Section 412 or Section 430 of the Code.

Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.

Permitted Acquisition” means an Acquisition by a Loan Party (the Person or division, line of business or other business unit of the Person to be acquired in such Acquisition shall be referred to herein as the “Target”), in each case that is a type of business (or assets used in a type of business) permitted to be engaged in by the Borrower and its Subsidiaries pursuant to the terms of this Agreement, in each case so long as:

(a) no Default shall then exist or would exist after giving effect thereto; provided that, if such Acquisition is a Limited Condition Acquisition and the Borrower has made an LCA Election, no Event of Default only under Section 8.01(a), (f) or (g) shall have occurred and be continuing at the time of the consummation of the Limited Condition Acquisition;

(b) after giving effect to the Acquisition on a pro forma basis, the Loan Parties are in compliance with a Consolidated Net Leverage Ratio equal to or less than (i) 3.00 to 1.00 or (ii) during an Elevated Covenant Period, 3.50 to 1.00, in each case, as of the end of the most recent Measurement Period for which financial statements are required to have been delivered to the Administrative Agent pursuant to Section 6.01;

(c) the Borrower shall comply, and cause the Target to comply, with the terms of Section 6.13 and Section 6.12, to the extent applicable;

(d) the Administrative Agent and the Lenders shall have received not less than five (5) days prior to the consummation of any such Acquisition with an aggregate Cost of Acquisition (excluding any earnouts, holdbacks or other contingent obligations) paid by the Loan Parties and their Restricted Subsidiaries is in excess of $20,000,000 (each such Acquisition, a “Material Acquisition”), (i) (A) audited financial statements or management-prepared financial statements of the Target for its most recent fiscal year and for any fiscal quarters ended within the fiscal year to date, in each case to the extent available, or, only if the financial statements referenced in the prior clause (A) are not available, (B) a quality of earnings report or an independent verification of the Target’s financial performance, in form reasonably satisfactory to the Administrative Agent, (ii) Consolidated projected income statements of the Borrower and its Restricted Subsidiaries for the following twelve (12) month period (giving effect to such Acquisition), and (iii) not less than five (5) days (or such other period of time as may be agreed to by the Administrative Agent) prior to the consummation of any Permitted Acquisition, a Permitted Acquisition Certificate, executed by a Responsible Officer of the Borrower certifying that such Permitted Acquisition complies with the requirements of this Agreement;

(e) such Acquisition shall not be a “hostile” Acquisition and shall have been approved by the board of directors (or equivalent) and/or shareholders (or equivalent) of the applicable Loan Party and the Target;

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(f) the Cost of Acquisition paid by the Loan Parties and their Restricted Subsidiaries with respect to the Acquisition of any Target that is not required to (i) become a Guarantor pursuant to Section 6.12 or (ii) to give security pursuant to Section 6.13 shall not, for all such Acquisitions made during any fiscal year, in the aggregate, exceed $2,500,000; and

(g) the aggregate Cost of Acquisitions paid by the Loan Parties and their Restricted Subsidiaries with respect to all Acquisitions in any fiscal year shall not exceed $50,000,000.

Permitted Acquisition Certificate” means a certificate substantially the form of Exhibit F or any other form approved by the Administrative Agent.

Permitted Liens” has the meaning set forth in Section 7.01.

Permitted Tax Distributions” means:

(a) for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), distributions by Borrower to such direct or indirect parent of Borrower to pay federal, foreign, state and local income Taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and the Subsidiaries would have been required to pay as a stand-alone Tax Group, reduced by any portion of such income Taxes directly paid by the Borrower or any of its Subsidiaries; or

(b) with respect to any taxable year (or portion thereof) with respect to which the Borrower is a pass-through entity for U.S. federal, state and/or local income tax purposes, distributions to the Borrower’s direct owner(s) (and, if any such direct owner is a pass-through entity for U.S. federal income tax purposes, such direct owner may make distributions to its members (or, in the case of any member that is a pass-through entity for U.S. federal income tax purposes, to its beneficial owners)) in an aggregate amount equal to the product of (i) the net taxable income of the Borrower for such taxable year (or portion thereof), reduced by any cumulative net taxable loss with respect to all prior taxable years (or portions thereof) beginning after the date hereof (determined as if all such periods were one period) to the extent such cumulative net taxable loss is of a character (ordinary or capital) that would permit such loss to be deducted against the income of the taxable year in question (or portion thereof) and (ii) the highest combined marginal federal and applicable state and/or local income tax rate (taking into account, to the extent applicable, the deductibility of state and local income taxes for U.S. federal income tax purposes, the deduction for qualified business income under Section 199A of the Code, and the character of the taxable income in question (i.e., long term capital gain, qualified dividend income, etc.)) applicable to any direct owner(s) (or, if a direct owner is a pass-through entity, indirect owner(s)) of the Borrower for the taxable year in question (or portion thereof).

Permitted Transfers” means (a) Dispositions of inventory in the ordinary course of business; (b) Dispositions of property to the Borrower or any Restricted Subsidiary; provided, that if the transferor of such property is a Loan Party then the transferee thereof must be a Loan Party; (c) Dispositions of accounts receivable in connection with the collection or compromise thereof; (d) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Borrower and its Restricted Subsidiaries; (e) the sale or disposition of Cash Equivalents for fair market value, (f) Involuntary Dispositions of property or assets to the extent Net Cash Proceeds therefrom are reinvested or used to make mandatory prepayments pursuant to Section 2.05(b)); and (g) Dispositions of machinery, parts and equipment no longer used or useful in the conduct of the business of the Loan Parties or any of their Subsidiaries.

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Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of a Loan Party or any ERISA Affiliate or any such Plan to which a Loan Party or any ERISA Affiliate is required to contribute on behalf of any of its employees.

Platform” has the meaning specified in Section 6.02(p).

Pledged Equity” has the meaning specified in the Collateral Documents.

PPP Loan” means the Payment Protection Program (PPP) loan from Radius Bank to the Borrower dated April 20, 2020 in the initial principal amount of $10,000,000.

Pre-Adjustment Successor Rate” has the meaning specified in Section 3.03(c).

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.

Public Market” shall exist if (a) a Public Offering has been consummated and (b) any Equity Interests of Holdings or any direct or indirect parent company of Holdings have been distributed by means of an effective registration statement under the Securities Act of 1933.

Public Offering” means a public offering of the Equity Interests of Holdings or any direct or indirect parent company of Holdings pursuant to an effective registration statement under the Securities Act of 1933.

Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Qualifying Control Agreement” means an agreement, among a Loan Party, a depository institution or securities intermediary and the Administrative Agent, which agreement is in form and substance reasonably acceptable to the Administrative Agent and which provides the Administrative Agent with “control” (as such term is used in Article 9 of the UCC or the PPSA) or dominion over the deposit account(s) or securities account(s) described therein.

Recipient” means the Administrative Agent, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.

Refinancing Indebtedness” means, with respect to any Indebtedness, refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or extension; and, still further, that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination, standstill and related terms (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest

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rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate.

Register” has the meaning specified in Section 11.06(c).

Regulation U” means Regulation U of the FRB, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

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

Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any building, structure or facility.

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.

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.

Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Term Loans, Incremental Term Loans or Revolving Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swingline Loan, a Swingline Loan Notice.

Required Class Lenders” means, at any time with respect to any Class of Loans or Commitments, Lenders having Total Credit Exposures with respect to such Class representing more than 50% of the Total Credit Exposures of all Lenders of such Class. The Total Credit Exposure of any Defaulting Lender with respect to such Class shall be disregarded in determining Required Class Lenders at any time.

Required Incremental Term Lenders” means, at any time, Incremental Term Lenders having Total Incremental Term Credit Exposures representing more than 50% of the Total Incremental Term Credit Exposures of all Incremental Term Lenders. The Total Incremental Term Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Incremental Term Lenders at any time.

Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that, the amount of any participation in any Swingline Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swingline Lender or the applicable L/C Issuer, as the case may be, in making such determination.

Required Revolving Lenders” means, at any time, Revolving Lenders having Total Revolving Exposures representing more than 50% of the Total Revolving Exposures of all Revolving Lenders. The Total Revolving Exposure of any Defaulting Lender shall be disregarded in determining Required Revolving Lenders at any time; provided that, the amount of any participation in any Swingline Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Revolving Lender that is the Swingline Lender or the applicable L/C Issuer, as the case may be, in making such determination.

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Required Term Lenders” means, at any time, Term Lenders having Total Term Credit Exposures representing more than 50% of the Total Term Credit Exposures of all Term Lenders. The Total Term Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Term Lenders at any time.

Resignation Effective Date” has the meaning set forth in Section 9.06(a).

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

Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party, solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01(b), the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. To the extent reasonably requested by the Administrative Agent, each Responsible Officer will provide an incumbency certificate and to the extent reasonably requested by the Administrative Agent, appropriate authorization documentation, in form and substance satisfactory to the Administrative Agent.

Restricted Obligations” has the meaning specified in Section 10.12(a).

Restricted Payment” means (a) any dividend or other distribution (including without limitation Permitted Tax Distributions), direct or indirect, on account of any shares (or equivalent) of any class of Equity Interests of the Borrower or any of its Restricted Subsidiaries, now or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase, exchange or other acquisition for value, direct or indirect, of any shares (or equivalent) of any class of Equity Interests of the Borrower or any of its Restricted Subsidiaries, now or hereafter outstanding, and (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Equity Interests of any Loan Party or any of its Restricted Subsidiaries, now or hereafter outstanding. The term “Restricted Payment” shall not include any such payments made directly with the proceeds of any Equity Interest (other than Disqualified Stock) contributions made to Holdings to the extent such payments are made within 90 days of receipt of such proceeds.

Restricted Subsidiary” means a Subsidiary of the Borrower that is not an Unrestricted Subsidiary; provided that each Subsidiary of the Borrower that is a Guarantor shall constitute a Restricted Subsidiary at all times.

Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of SOFR Loans, having the same Interest Period made by each of the Revolving Lenders pursuant to Section 2.01(b).

Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations, and (c) purchase participations in Swingline Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01(b) under the caption “Revolving Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or in any Incremental Agreement, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement; it being understood that a Lender’s

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Revolving Commitment shall include any Incremental Revolving Commitments and Extended Revolving Commitments of such Lender. The Revolving Commitment of all of the Revolving Lenders on the Closing Date was $111,250,000. The Revolving Commitment of all of the Revolving Lenders as of the Second Amendment Effective Date was $136,250,000.

Revolving Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Lender’s participation in L/C Obligations and Swingline Loans at such time.

Revolving Facility” means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.

Revolving Lender” means, at any time, (a) so long as any Revolving Commitment is in effect, any Lender that has a Revolving Commitment at such time or (b) if the Revolving Commitments have terminated or expired, any Lender that has a Revolving Loan or a participation in L/C Obligations or Swingline Loans at such time.

Revolving Loan” has the meaning specified in Section 2.01(b).

Revolving Note” means a promissory note made by the Borrower in favor of a Revolving Lender evidencing Revolving Loans or Swingline Loans, as the case may be, made by such Revolving Lender, substantially in the form of Exhibit G.

S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and any successor thereto.

Sale and Leaseback Transaction” means, with respect to any Loan Party or any Restricted Subsidiary, any arrangement, directly or indirectly, with any Person whereby such Loan Party or such Restricted Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

Sanction(s)” means any sanctions administered or enforced by the United States Government (including, without limitation, OFAC) or any other relevant sanctions authority.

SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

Second Amendment” means that certain Second Amendment to Credit Agreement, dated as of March 22, 2023, among the Borrower, Holdings, the other Guarantors party thereto, the 2023 Incremental Revolving Lender (as defined therein), the other Lenders party thereto and the Administrative Agent.

Second Amendment Effective Date” has the meaning assigned to such term in Section 3 of the Second Amendment.

Secured Cash Management Agreement” means any Cash Management Agreement between any Loan Party and any of its Restricted Subsidiaries and any Cash Management Bank.

Secured Hedge Agreement” means any interest rate, currency, foreign exchange, or commodity Swap Contract required by or not prohibited under Article VI or VII between any Loan Party and any of its Restricted Subsidiaries and any Hedge Bank.

Secured Obligations” means all Obligations and all Additional Secured Obligations.

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Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuers, the Hedge Banks, the Cash Management Banks, the Indemnitees and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05.

Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit H.

Securities Act” means the Securities Act of 1933, including all amendments thereto and regulations promulgated thereunder.

Security Agreement” means the security and pledge agreement, dated as of the Closing Date, executed in favor of the Administrative Agent by each of the Loan Parties.