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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

  

 

 

FORM 8-K

 

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

 

Date of report (Date of earliest event reported): February 15, 2024

 

 

 

Westrock Coffee Company

(Exact Name of Registrant as Specified in Charter)

 

Delaware   001-41485   80-0977200
(State or Other
Jurisdiction
of Incorporation)
  (Commission
File Number)
  (I.R.S.
Employer
Identification
No.)

 

4009 N. Rodney Parham Rd.

3rd Floor

Little Rock, AR 72212

(Address of Principal Executive Offices, and
Zip Code)

 

(501) 918-9358

Registrant’s Telephone Number, Including
Area Code

 

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

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

 

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

 

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

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
Shares of common stock, par value $0.01 per share   WEST   The Nasdaq Stock Market LLC
Warrants, each whole warrant exercisable for one share of common stock, par value $0.01 per share   WESTW   The Nasdaq Stock Market LLC

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2 of this chapter).

 

Emerging growth company x

 

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

 

 

 

 

 

 

Item 1.01.Entry into a Material Definitive Agreement.

 

Convertible Notes due 2029

 

On February 15, 2024, Westrock Coffee Company, a Delaware corporation (the “Company”) sold and issued in a private placement $72 million in aggregate principal amount of 5.00% convertible senior notes due 2029 (the “Convertible Notes”).

 

The Convertible Notes will be unsecured and senior obligations of the Company and will accrue interest at a rate of 5.00% per annum.

 

Noteholders may convert their Convertible Notes at their option only in the following circumstances:

 

(A)       during the period commencing on August 15, 2024, and prior to the close of business on the trading day immediately preceding August 15, 2028, if the closing price for at least 20 trading days (whether or not consecutive) during the period of any 30 consecutive trading days in the immediately preceding calendar quarter is equal to or greater than 130% of the conversion price;

 

(B)       during the period commencing on August 15, 2028, and prior to the close of business on the second scheduled trading day immediately preceding February 15, 2029, at any time; and

 

(C)       during the 35 trading days following the effective date of certain fundamental change transactions that occur prior to the close of business on the trading day immediately preceding August 15, 2028.

 

The Company will settle conversions by paying or delivering, as applicable, at the Company’s election, cash, shares of the Company’s common stock (“Common Stock”) or a combination of cash and shares of Common Stock. The Company may not issue more than 19.99% of the issued and outstanding Common Stock immediately prior to the issuance of the Convertible Notes in respect of the conversion of the Convertible Notes.

 

The initial conversion price of the Convertible Notes is $12.84, which corresponds to an initial conversion rate of approximately 77.88 shares of Common Stock per $1,000 principal amount of Convertible Notes. The conversion price and conversion rate are subject to customary adjustments.

 

The Convertible Notes do not contain any financial or operating covenants or restrictions on the payments of dividends, the incurrence of indebtedness or the issuance or repurchase of securities by the Company or any of its subsidiaries. The Convertible Notes contain customary terms regarding events of default. If any event of default (other than certain events of bankruptcy, insolvency or reorganization involving the Company) occurs and is continuing, then each noteholder may, by written notice to the Company, declare the principal amount of, and all accrued and unpaid interest on, such noteholder’s Convertible Notes to become due and payable immediately. If an event of default involving certain events of bankruptcy, insolvency or reorganization occurs, then the principal amount of, and all accrued and unpaid interest on, all of the Convertible Notes then outstanding will immediately become due and payable without any further action or notice by any person.

 

 

 

 

The purchasers of the Convertible Notes are Westrock Group, LLC (a holder of more than 5% of the outstanding Common Stock and an affiliate of Scott Ford, the Company’s Chief Executive Officer and a member of the board of directors of the Company (the “Board”)), Wooster Capital, LLC (an affiliate of Joe Ford, chairman of the Board), an affiliate of The Stephens Group, LLC (a holder of more than 5% of the outstanding Common Stock), an affiliate of Sowell Westrock, L.P. (a holder of more than 5% of the outstanding Common Stock), HF Direct Investments Pool, LLC (a holder of more than 10% of the outstanding Common Stock), an affiliate of the Herbert Hunt family and an individual investor. The offer and sale of the Convertible Notes was authorized and approved unanimously by the Audit and Finance Committee of the Board in accordance with the Company’s Related Party Transactions Policy.  For additional information about the Company’s related parties and transaction with related parties, see the section of the Company’s definitive proxy statement for the Company’s 2023 annual meeting of stockholders titled “Relationships and Certain Related Transactions”, which is incorporated herein by reference.

 

A copy of the form of Convertible Note is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated by reference herein. The foregoing description of the Convertible Notes does not purport to be complete and is qualified in its entirety by reference to such exhibit.

 

Credit Agreement Amendment

 

On February 15, 2024, Westrock Beverage Solutions, LLC (the “Borrower”), a Delaware limited liability company and a wholly-owned subsidiary of the Company, entered into Amendment No. 3 (the “Amendment”) among the Borrower, the lenders party thereto and Wells Fargo Bank, N.A., as administrative agent, to the Credit Agreement dated as of August 29, 2022 (as amended by the Amendment, the “Amended Credit Agreement”), among the Borrower, the Company, Wells Fargo Bank, N.A., as administrative agent, as collateral agent and as swingline lender, Wells Fargo Securities, LLC, as sustainability structuring agent, the issuing banks party thereto from time to time and the lenders party thereto from time to time.

 

The Amendment modified the existing covenant relief period (the “Covenant Relief Period”), which commenced on June 30, 2023, and will end on the earlier to occur of (i) April 1, 2026 and (ii) any date following June 30, 2024, on which the Borrower elects to terminate the Covenant Relief Period subject to satisfaction of certain conditions.

 

During the Covenant Relief Period, the Borrower’s ability to incur additional indebtedness and make investments, restricted payments and junior debt restricted payments will be more limited. The Amendment will permit the Borrower to issue convertible notes, including the Convertible Notes.

 

During the Covenant Relief Period, the applicable margin for any term SOFR rate loan will range from 3.00% to 4.00% and for any ABR loan will range from 2.00% to 3.00%, in each case depending on the secured net leverage ratio. After the Covenant Relief Period, the applicable margin for any term SOFR rate loan will range from 2.00% to 3.00% and for any ABR loan will range from 1.00% to 2.00%, in each case depending on the secured net leverage ratio.

 

 

 

 

The Amended Credit Agreement requires the Borrower to maintain compliance with (i) a secured net leverage ratio at levels ranging from 4.50:1.00 to 6.25:1.00 and stepping down to 4.50:1.00 by April 2026 and (ii) an interest coverage ratio of at least 1.50:1.00 on and prior to September 30, 2025 and at least 2.00:1.00 on December 31, 2025 and thereafter. The Amended Credit Agreement also includes (i) a minimum liquidity covenant requiring the Borrower not to permit its liquidity, measured as of the last business day of each calendar month commencing March 29, 2024, to be less than $15 million and (ii) an anti-cash hoarding covenant, which shall be effective only during the Covenant Relief Period, requiring the Borrower to have no more than $20 million of unrestricted cash on the last day of each calendar month when revolving loans or letters of credit are outstanding or on the date of borrowing of a revolving loan.

 

The foregoing description of the Amendment is not complete and is qualified in its entirety by reference to the full text of the Amendment, which is attached to this current report as Exhibit 10.1 and is incorporated herein by reference.

 

Item 2.02.Results of Operations and Financial Condition.

 

On February 15, 2024, the Company issued a press release announcing, among other things, an update on its preliminary financial results for the fiscal year ended December 31, 2023. The press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated by reference herein.

 

The information furnished pursuant to this Item 2.02, including Exhibit 99.1, shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, nor shall it be incorporated by reference in any filing made by the Company pursuant to the Securities Act of 1933, as amended (the “Securities Act”), other than to the extent that such filing incorporates by reference any or all of such information by express reference thereto.

 

Item 2.03.Creation of a Direct Financial Obligation or an Off-Balance Sheet Arrangement.

 

The disclosure set forth in Item 1.01 above is incorporated by reference into this Item 2.03.

 

Item 3.02. Unregistered Sales of Equity Securities.

 

The information set forth in Item 1.01 of this report under the heading “Convertible Notes due 2029” is incorporated by reference into this Item 3.02.

 

The Convertible Notes were sold and issued without registration under the Securities Act in reliance on the exemption provided by Rule 506(b) of Regulation D promulgated under the Securities Act.

 

This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any securities described herein, nor shall there be any offer, solicitation or sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful.

 

Item 9.01. Financial Statements and Exhibits.
   
(d) Exhibits.  

 

 

 

 

 

Exhibit
No.

  Description of Exhibit
4.1   Form of Convertible Note of Westrock Coffee Company, dated February 15, 2024
     
10.1*   Amendment No. 3, dated as of February 15, 2024, among Westrock Beverage Solutions, LLC, as the borrower, the lenders party thereto and Wells Fargo Bank, N.A., as administrative agent
     
99.1   Press Release, dated February 15, 2024
     
104   Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

* Certain schedules have been omitted from this exhibit in accordance with Item 601(a)(5) of Regulation S-K. The Company agrees to furnish a copy of any omitted schedules to the Securities and Exchange Commission upon request. 

 

 

 

  

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

  WESTROCK COFFEE COMPANY
   
  By: /s/ Robert P. McKinney
    Name: Robert P. McKinney
    Title: Chief Legal Officer

 

Dated: February 15, 2024

 

 

 

 

Exhibit 4.1

 

EXECUTION VERSION

 

THIS NOTE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE. THESE SECURITIES HAVE BEEN SOLD IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.

 

$ [●] New York, New York
   
  February 15, 2024

  

WESTROCK COFFEE COMPANY
5% Convertible Senior Note due 2029

 

Unless this Note is otherwise converted pursuant to Article 4, Westrock Coffee Company, a Delaware corporation (the “Company”), hereby unconditionally promises to pay to the order of [●] (or, if such Person has ceased to be a party hereto pursuant to an Assignment and Acceptance executed in accordance with Section 2.2, then instead such Person that becomes the holder of this Note pursuant to Section 2.2, the “Holder”), the principal amount of [●] (U.S. $[●]), on February 15, 2029 (the “Maturity Date”), and to pay interest at the time, in the form and at the rate set forth herein. Certain capitalized terms used herein without definition shall have the meanings assigned to them in Article 9. This Note is issued at 12:01 am eastern time on February 15, 2024 in accordance with and subject to the following terms and conditions:

 

Article 1
PRINCIPAL AND INTEREST; PAYMENTS, GENERALLY

 

Section 1.1.            Principal and Interest.

 

(a)            On the Maturity Date, the Company shall pay to the order of the Holder an amount equal to the aggregate principal amount of this Note outstanding on the Maturity Date, plus accrued and unpaid interest thereon, except to the extent that this Note is earlier repurchased, repaid or converted in accordance with the terms of this Note.

 

(b)            Interest shall be payable in cash semi-annually in arrears on each February 15 and August 15, commencing August 15, 2024 (each such date, an “Interest Payment Date”). Until the principal amount of this Note is paid in full or the full principal amount of this Note has been converted as provided in Article 4 hereof, interest shall accrue on the unpaid principal amount of this Note at the rate of 5.00% per annum from the later of the date hereof and the most recent Interest Payment Date for which the applicable interest payment has been made. Interest on this Note shall be computed on the basis of a 360-day year composed of twelve 30-day months.

 

 

 

  

(c)            If a date for payment pursuant to this Note is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and interest shall not accrue for the intervening period.

 

(d)           The Holder of this Note must surrender this Note to the Company to collect principal payments.

 

(e)           The Company will pay amounts due pursuant to this Note in money of the United States that at the time of payment is legal tender for payment of public and private debts in immediately available funds (without any counterclaim, setoff, recoupment or deduction whatsoever, except as otherwise contemplated by Section 1.2) and by wire transfer to a U.S. dollar account maintained by the Holder with a bank in the United States designated in writing by the Holder. All payments in respect of this Note shall be made on the due date thereof no later than 3:00 p.m., New York, New York time. Any payment received by the Holder after 3:00 p.m., New York, New York time, on any day, will be deemed to have been received on the following Business Day.

 

(f)            The Company agrees that to the extent that the Company makes a payment or payments hereunder, which payment or payments, or any part thereof, are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to the Company or its successors under any Bankruptcy Law, state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the obligations, or part thereof, under this Note that have been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the time immediately preceding such initial payment, reduction or satisfaction.

 

Section 1.2.            Withholding. Notwithstanding anything herein to the contrary, the Company shall have the right to deduct and withhold from any payment or distribution made with respect to this Note (or the issuance of Common Shares upon conversion of this Note) and/or the Common Shares issued upon conversion of this Note such amounts as are required to be deducted or withheld with respect to the making of such payment or distribution (or issuance) under any applicable tax law. To the extent that any amounts are so deducted or withheld, such deducted or withheld amounts shall be treated for all purposes under this Note as having been paid to the Holder. In the event that the Company previously remitted any amounts to a governmental entity on account of taxes required to be deducted or withheld in respect of any payment or distribution (or deemed distribution) on this Note, the Company shall be entitled to offset any such amounts against any amounts otherwise payable in respect of this Note (or Common Shares issued upon its conversion) or any Common Shares otherwise required to be issued upon its conversion.

 

Section 1.3.            Rank. [Subject to Section 7.1, all]1/ [All] payments due under this Note shall be senior unsecured obligations of the Company.

 

 

1 NTD: Included only in notes issued to Westrock Group, LLC and Wooster Capital, LLC.

 

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Article 2

TRANSFER

 

The Company and, by acceptance of this Note, the Holder hereby agree that the following provisions shall govern the registration, sale, assignment, or transfer of this Note.

 

Section 2.1.            Note Registration. The Company shall keep at its principal office a register (the “Register”) in which the Company shall enter the name and address of the registered holder of this Note. References to the Holder of this Note shall mean the Person listed in the Register as the payee of this Note unless the payee shall have presented this Note to the Company for transfer and the transferee shall have been entered in the Register as a subsequent holder, in which case the term shall mean such subsequent holder. The registered holder of this Note may be treated as the owner of it for all purposes.

 

Section 2.2.            Transfer.

 

(a)            Without the prior written consent of the Company, the Holder shall not sell, offer to sell or enter into any agreement or contract to sell this Note other than to a controlled Affiliate of the Holder.

 

(b)           A transfer of this Note permitted by Section 2.2(a) shall only be effected by (i) the Holder delivering this Note to the Company and (ii) the Holder executing, and the Company acknowledging, an assignment and acceptance in substantially the form attached hereto as Exhibit A in accordance with the terms and conditions of this Note (an “Assignment and Acceptance”).

 

(c)           Any transfer of this Note permitted by Section 2.2(a) shall be recorded on the books of the Company upon the surrender of this Note, properly endorsed, to the Company at its principal offices, and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer. In the event of a partial transfer, the Company shall issue to the Holder one or more appropriate new notes (having the same terms as this Note other than with respect to the principal amount). All of the stipulations, promises and agreements in this Note made by or on behalf of the Company shall bind the successors and assigns of the Company, whether so expressed or not, and inure to the benefit of the successors and assignees of the Holder.

 

Article 3
OUTSTANDING NOTES

 

Section 3.1.            Outstanding Notes. This Note (or any replacement issued in respect hereof following a partial transfer or partial conversion pursuant to Article 4) shall be considered outstanding and the only Note issued by the Company to the Holder, except for those cancelled by it, those surrendered to it for cancellation and (without limiting the generality of the foregoing) those converted. A Note also ceases to be outstanding for purposes of Article 4, if and for so long as the Company or any direct or indirect Subsidiary of the Company holds such Note.

 

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Article 4
CONVERSION RIGHTS

 

Section 4.1.            Conversion of Notes.

 

(a)            Conversion.

 

(i)            The Holder may convert this Note, in whole or in part, but solely in denominations of $1,000, in accordance with this Section 4.1 at its option:

 

(A)          during the period commencing on August 15, 2024, and prior to the close of business on the Trading Day immediately preceding August 15, 2028, if the Closing Price for at least 20 Trading Days (whether or not consecutive) during the period of any 30 consecutive Trading Days in the immediately preceding calendar quarter is equal to or greater than 130% of the Conversion Price;

 

(B)           during the period commencing on August 15, 2028, and prior to the close of business on the second scheduled Trading Day immediately preceding the Maturity Date, at any time; and

 

(C)           during the 35 Trading Days following the effective date of any Fundamental Change that occurs prior to the close of business on the Trading Day immediately preceding August 15, 2028.

 

(ii)           Any conversion pursuant to Section 4.1(a)(i) shall be made at a price equal to the Conversion Price (the date of such conversion, the “Conversion Date”) and the conversion rate shall equal the Conversion Rate. The Company’s obligation to convert this Note, subject to and in accordance with the provisions of this Article 4 (the “Conversion Obligation”), shall be subject to the conversion procedures set forth in Section 4.1(c) below.

 

(b)            In order to exercise its option to convert this Note, the Holder must promptly (1) surrender this Note to the Company at the address specified under Section 10.1, (2) furnish appropriate endorsements and transfer documents if required by the Company, and (3) pay any transfer or similar tax, if required by applicable law. The date on which the Holder surrenders this Note to exercise its option to convert this Note and otherwise complies with all applicable requirements under this Article 4 is referred to as the “Surrender Date”. The Company shall issue the Common Shares or cash amount required by Section 4.1(c) or Section 4.1(f) no later than five (5) Business Days after the Surrender Date, provided that following a Specified Conversion Price Adjustment, the timelines set forth in Section 4.1(h) shall apply.

 

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(c)           Conversion Procedures.

 

(i)            Subject to this Section 4.1(c), upon the surrender of this Note, or any part thereof, for conversion, the Company shall settle the Conversion Amount, at the Company’s election: (i) solely via a cash payment (“Cash Settlement”), (ii) solely via delivery of Common Shares together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with Section 4.1(f) (“Physical Settlement”), or (iii) via a combination of cash payment and delivery of Common Shares (“Combination Settlement”), in each case, to the Holder (any such payment or issuance, the “Settlement Amount”).

 

(ii)           The Settlement Amount shall be computed as follows:

 

(A)          subject to Section 4.1(f), if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall (x) deliver to the Holder a number of Common Shares equal to the product of (1) 1/1000, (2) the Conversion Amount and (3) the Conversion Rate in effect on the Surrender Date, and (y) pay the Holder an amount in cash equal to the Fractional Cash Amount (if applicable);

 

(B)           if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the Holder an amount in cash equal to the product of (1) 1/1000, (2) the Conversion Rate in effect on the Surrender Date, (3) the Conversion Amount and (4) subject to the last sentence of Section 4.1(h), the arithmetic average of the Daily VWAP of the Common Shares for each Trading Day in the 20 consecutive Trading Day period ending on the Trading Day immediately prior to Surrender Date; or

 

(C)           subject to Section 4.1(f), if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall (x) issue to the Holder a whole number of Common Shares equal to the Combination Settlement Share Amount and (y) pay the Holder an amount in cash equal to the sum of the Combination Settlement Cash Amount and the Fractional Cash Amount (if applicable).

 

(iii)          If this Note is surrendered in connection with a partial conversion of such Note on a Conversion Date, the Company shall execute a new note in a denomination equal to the principal amount of this Note less the Conversion Amount and otherwise on the same terms as this Note.

 

Notwithstanding anything in this Note or the Other Notes to the contrary, the Company shall not issue any Common Shares, that together with any Common Shares issued previously in respect of this Note or any of the Other Notes, shall cause the aggregate number of Common Shares issued in conversion of, all or part of, this Note and the Other Notes to exceed 19.99% of the issued and outstanding Common Shares immediately prior to the issuance of this Note (the “Cap Amount”).

 

-5-

 

 

(d)           Taxes on Conversion. If the Holder converts this Note, the Holder shall pay any documentary, stamp or similar issue or transfer tax due on the issue of Common Shares upon the conversion. The Company may refuse to deliver the certificates representing the Common Shares being issued or delivered to the Holder or in a name other than the Holder’s name until the Company receives a sum sufficient to pay any tax which is due on the issuance or delivery of the Common Shares to the Holder or because the Common Shares are to be issued or delivered in a name other than the Holder’s name, or until the Holder establishes, to the satisfaction of the Company, that such tax has been paid or is not payable.

 

(e)            Issuances in Other Names. The Company may refuse to deliver the Common Shares being issued in a name other than the Holder’s name, unless the Company receives documentation reasonably acceptable to the Company that all provisions with respect to transfers pursuant to this Note have been complied with and all documents required to be delivered hereunder in connection with any transfer have been delivered to the Company.

 

(f)            Fractional Shares. The Company shall not deliver any fractional Common Shares to satisfy Physical Settlement or Combination Settlement, and in lieu of delivering such fractional Common Shares, the Company shall pay the Holder an amount in cash equal to the product of (1) the fractional amount of Common Shares excluded from Physical Settlement or Combination Settlement as a result of this Section 4.1(f) and (2) subject to the last sentence of Section 4.1(h), the arithmetic average of the Daily VWAP of the Common Shares for each Trading Day in the 20 twenty consecutive Trading Day period ending on the Trading Day immediately prior to the Surrender Date (the “Fractional Cash Amount”).

 

(g)           Effect of Reorganization Transactions. Any recapitalization, reclassification or change of the Common Shares (other than changes resulting from a subdivision or combination) resulting from:

 

(i)            any consolidation, merger or combination involving the Company, or

 

(ii)           any statutory share exchange,

 

in each case, as a result of which the Common Shares would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Reorganization Transaction”), then, at and after the effective time of such Reorganization Transaction, the right to convert each $1,000 principal amount of this Note shall be changed into the right to convert such principal amount of this Note into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Shares equal to the Conversion Rate immediately prior to such Reorganization Transaction would have received or been entitled to receive as result of and following such Reorganization Transaction. This Section 4.1(g) shall be without prejudice to the rights of the Holder under Section 4.1(a)(i)(C).

 

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(h)            Effect of Specified Conversion Price Adjustment. Following a Specified Conversion Price Adjustment, if any Investor tenders a 2029 Note for conversion (such Investor, the “Initiating Investor”) and the Company elects to settle such conversion by issuing Common Shares, prior to any such issuance, the Company shall send written notice (the “Cap Notice”) to all Investors no later than five (5) Business Days following the surrender by the Initiating Investor of its 2029 Note. The Cap Notice shall specify (i) the Cap Amount, (ii) the number of Common Shares the Company may issue (as of the date of the Cap Notice) in respect of all outstanding 2029 Notes without exceeding the Cap Amount (the “Remaining Cap Amount”), and (iii) the number of Common Shares that the Company would issue to the Initiating Investor if it settled the full principal amount of the 2029 Note surrendered by the Initiating Investor for Common Shares. The Investors, other than the Initiating Investor, shall have a period of five (5) Business Days following the delivery of the Cap Notice to tender all or part of their 2029 Notes for conversion (such period, the “Cap Allocation Period”). The Company shall settle the principal amount of the 2029 Notes surrendered by the Initiating Investor and the principal amount of the 2029 Notes surrendered by the other Investors (“Other Tendering Investors”) during the Cap Allocation Period no later than five (5) Business Days after the end of the Cap Allocation Period. The Common Shares that the Company elects to issue to the Initiating Investor and the Other Tendering Investors shall be allocated, as closely as possible, pro rata among the Initiating Investor and the Other Tendering Investors based on the principal amount of the 2029 Notes that each has surrendered for conversion. Prior to the settlement of the 2029 Notes surrendered by the Initiating Investor and the Other Tendering Investors, the Company shall not settle any other 2029 Notes that would reduce the Remaining Cap Amount. For purposes of calculating the cash amount payable to the Initiating Investor and the Other Tendering Investors (including in respect of fractional shares), the Company shall use the arithmetic average of the Daily VWAP of the Common Shares for each Trading Day in the 20 consecutive Trading Day period ending on the Trading Day immediately prior to surrender date of the 2029 Notes held by the Initiating Investor.

  

Article 5
EVENTS OF DEFAULT

 

Section 5.1.            Events of Default. Each of the following shall be an “Event of Default”:

 

(a)           the Company defaults in any payment of interest on this Note when due and payable, and the default continues for a period of 30 calendar days;

 

(b)           the Company defaults in the payment of principal of this Note when due and payable on the Maturity Date, upon declaration of acceleration or otherwise;

 

(c)           the Company fails to comply with the obligation to convert this Note upon exercise of the Holder’s conversion right, and such failure continues for a period of five Business Days;

 

(d)           any failure by the Company to comply with its obligations under Section 6.3;

 

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(e)           any default by the Company or any of its wholly owned domestic Subsidiaries in the payment of the principal of, or interest on, any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any debt for money borrowed in excess of the greater of $7,000,000 and 10% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time in the aggregate of the Company and/or any of its wholly owned Subsidiaries, whether such debt now exists or shall hereafter be created, resulting in such debt becoming or being declared due and payable, and such acceleration shall not have been rescinded or annulled or such failure to pay shall not have been cured, as the case may be, within 60 calendar days after written notice to the Company;

 

(f)            a final judgment for the payment in excess of the greater of $7,000,000 and 10% of Adjusted Consolidated EBITDA for the most recently ended Test Period (excluding any amounts covered by insurance or indemnity) is rendered against the Company or any of its wholly owned Subsidiaries, which judgment is not discharged or stayed within 60 calendar days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been extinguished; and

 

(g)           the Company or any of its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X) pursuant to or within the meaning of any Bankruptcy Law or otherwise shall be liquidated, dissolved, adjudicated insolvent, or shall fail to pay, or shall admit in writing its inability to pay, its debts as they mature, or shall make a general assignment for the benefit of creditors; or the Company or any of its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X) shall apply for or consent to the appointment of any receiver, custodian, trustee or similar officer for it or for all or any substantial part of its property, or such receiver, custodian, trustee or similar officer shall be appointed without the application or consent of the Company or such subsidiary; or the Company or any of its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X) shall institute (by petition, application, answer, consent or otherwise), or take any action to authorize the institution of, any bankruptcy, insolvency, reorganization, dissolution, liquidation or similar proceeding relating to the Company or such subsidiary under the laws of any jurisdiction or takes any comparable action under any foreign laws relating to insolvency; or any such proceeding shall be instituted (by petition, application or otherwise) against the Company or any of its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X) and such proceeding shall not be dismissed within 60 days after being instituted.

 

Section 5.2.            Acceleration of Maturity; Rescission and Annulment. If an Event of Default (other than an Event of Default specified in Section 5.1(g) with respect to the Company) occurs and is continuing, then and in every such case the Holder may declare the principal of, and all accrued and unpaid interest under, this Note to be due and payable immediately by a notice in writing to the Company. Upon any such declaration, such principal and interest shall become due and payable immediately. If an Event of Default specified in Section 5.1(g) with respect to the Company occurs, the principal of, and all accrued and unpaid interest under, this Note shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Holder.

 

Notwithstanding any of the foregoing, at any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained, the Holder may rescind and annul such declaration and its consequences if the Holder so notifies the Company in writing of the Holder’s desire to do so. No such rescission and annulment shall affect any subsequent default or impair any right consequent thereon.

 

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Article 6
COVENANTS

 

Section 6.1.            Payment of Notes. The Company shall promptly pay the principal of and interest on this Note on the dates and in the manner provided herein.

 

Section 6.2.            Delivery of Certain IRS Forms. Concurrently with the execution of this Note and at such other times as the Company may reasonably request, the Holder shall deliver to the Company a properly completed and duly executed IRS Form W-9. At such times as the Company may reasonably request, any transferee of the Holder (or subsequent transferee) shall deliver to the Company a properly completed and duly executed IRS Form W-9 or appropriate IRS Form W-8.

 

Section 6.3.            Mergers and Dispositions. Without the prior written consent of the Holder, the Company shall not merge into, amalgamate with or consolidate with any other Person, or permit any other Person to merge into, amalgamate with or consolidate with it, or Dispose of all or substantially all of its assets in a single transaction or a series of related transactions, unless (A) no Event of Default is then continuing, and (B) (x) in the case of a merger, the Company shall be the surviving entity or if the surviving entity is not the Company, the surviving entity shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia and shall expressly assume all the obligations of the Company under this Note pursuant to a supplement hereto or (y) in the case of a Disposition of all or substantially all of its assets to any Person, such Person shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia and shall expressly assume all the obligations of the Company under this Note pursuant to a supplement hereto.

 

Section 6.4.            Authorized Common Shares. The Company shall at all times reserve and keep available out of its authorized but unissued restricted Common Shares, for the purpose of effecting the conversion of this Note into Common Shares, such number of its duly authorized Common Shares as shall from time to time be sufficient to effect the conversion of the outstanding principal amount into Common Shares.

  

Article 7
Priority

 

Section 7.1.            [Notwithstanding anything to the contrary herein or under applicable law, in the event of any voluntary or involuntary liquidation, winding-up, or dissolution of the Company, this Note will be ranked pari passu in right of payment with the Series A Preferred Shares. In furtherance of the foregoing, upon the voluntary or involuntary liquidation, winding-up or dissolution of the Company, if the assets of the Company available for distribution to the holders of Series A Preferred Shares shall be insufficient to permit payment in full to such holders of the sums which such holders are entitled to receive in such case, then the assets available for distribution to the Holder of this Note, the holders of the Specified Notes and holders of Series A Preferred Shares shall be distributed among and paid to such Persons, ratably in proportion to the respective amounts that would be payable to such Persons if such assets were sufficient to permit payment in full. The sale, conveyance, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property and assets of the Company or any Subsidiary of the Company, or any merger, consolidation, statutory exchange or any other business combination transaction of the Company or any Subsidiary of the Company into or with any other Person or the merger, consolidation, statutory exchange or any other business combination transaction of any other Person (whether or not the Company is the surviving or resulting entity) shall not be deemed to be the voluntary or involuntary liquidation, winding-up or dissolution of the Company.]3

 

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Article 8
Conversion Adjustments

 

Section 8.1.            Adjustments.

 

(a)            The Conversion Price shall, subject to Sections 8.1(h), 8.1(i) and 8.1(j), be subject to the adjustments described in this Article 8 (each such event set forth in Sections 8.1(b) through Section 8.1(g), an “Adjustment Event”).

 

(b)            Stock Dividends and Distributions. If the Company pays dividends or other distributions on the Common Shares in Common Shares, then the Conversion Price will be adjusted by multiplying the Conversion Price in effect at 5:00 p.m., New York City time on the Trading Day immediately prior to the Ex-Date for such dividend or distribution by the following fraction:

 

OS0
OS1

Where,

 

  OS0 = the number of Common Shares outstanding immediately prior to Ex-Date for such dividend or distribution.

 

  OS1 = the sum of (x) the number of Common Shares outstanding immediately prior to the Ex-Date for such dividend or distribution, plus (y) the total number of Common Shares issued in such dividend or distribution.

 

The adjustment pursuant to this Section 8.1(b) shall become effective at 9:00 a.m., New York City time on the Ex-Date for such dividend or distribution. For the purposes of this Section 8.1(b), the number of Common Shares at the time outstanding shall not include shares held in treasury by the Company. If any dividend or distribution described in this Section 8.1(b) is declared by the Board of Directors but not paid or made, the Conversion Price shall be readjusted, effective as of the date the Board of Directors publicly announces its decision not to make such dividend or distribution, to such Conversion Price that would be in effect if such dividend or distribution had not been declared.

 

 

3 NTD: Included only in notes issued to Westrock Group, LLC and Wooster Capital, LLC.

 

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(c)           Subdivisions, Splits and Combinations of Common Shares. If the Company subdivides, splits or combines the Common Shares, then the Conversion Price will be adjusted by multiplying the Conversion Price in effect at 5:00 p.m., New York City time on the Trading Day immediately prior to the effective date of such share subdivision, split or combination by the following fraction:

 

OS0
OS1

 

Where,

 

  OS0 = the number of Common Shares outstanding immediately prior to the effective date of such share subdivision, split or combination.

 

  OS1 = the number of Common Shares outstanding immediately after the opening of business on the effective date of such share subdivision, split or combination.

 

The adjustment pursuant to this Section 8.1(c) shall become effective at 9:00 a.m., New York City time on the effective date of such subdivision, split or combination. For the purposes of this Section 8.1(c), the number of Common Shares at the time outstanding shall not include shares held in treasury by the Company. If any subdivision, split or combination described in this Section 8.1(c) is announced but the outstanding Common Shares are not subdivided, split or combined, the Conversion Price shall be readjusted, effective as of the date the Board of Directors publicly announces its decision not to subdivide, split or combine the outstanding Common Shares, to such Conversion Price that would be in effect if such subdivision, split or combination had not been announced.

 

(d)           Debt or Asset Distributions. If the Company distributes to all or substantially all holders of Common Shares evidences of indebtedness, shares of capital stock, securities, cash or other assets (excluding a distribution of rights or warrants (as to which an adjustment is effected solely under Section 8.1(g)), an issuance solely pursuant to a Reorganization Transaction (as to which Section 4.1(g) will apply), any dividend or distribution referred to in Section 8.1(b) above, any dividend or distribution paid in cash (as to which an adjustment is effected solely under Section 4.1(f)), any consideration payable in connection with a tender or exchange offer made by the Company or any of its Subsidiaries (as to which an adjustment is effected solely under Section 4.1(e)), and any dividend of shares of capital stock of any class or series, or similar equity interests, of or relating to a Subsidiary or other business unit in the case of spin-off transactions as described below), then the Conversion Price will be adjusted by multiplying the Conversion Price in effect at 5:00 p.m., New York City time on the Trading Day immediately prior to the Ex-Date for such distribution by the following fraction:

 

SP0 – FMV
SP0

Where,

 

  SP0 = the Current Market Price per Common Share on such date.

 

  FMV = the fair market value of the portion of the distribution applicable to one Common Share on such date as reasonably determined by the Board of Directors; provided that, if “FMV” as set forth above is equal to or greater than “SP0” as set forth above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall receive on the date on which such distribution is made to holders of Common Shares, for each Common Share issued upon conversion of the Note, the amount of such distribution such Holder would have received had such holder owned a number of Common Shares equal to the Conversion Rate on the Ex-Date for such distribution.

 

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In a “spin-off”, where the Company makes a distribution to all holders of Common Shares consisting of capital stock of any class or series, or similar equity interests of, or relating to, a Subsidiary or other business unit, if a Holder did not participate in such distribution with respect to such Common Shares issued upon conversion of the Note, the Conversion Price with respect to such share held by such Holder will be adjusted on the 15th Trading Day after the effective date of the distribution by multiplying such Conversion Price in effect immediately prior to such 15th Trading Day by the following fraction:

 

MP0
MP0+ MPs

Where,

 

  MP0 = the average of the Daily VWAP of the Common Shares over the first ten (10) Trading Days commencing on and including the fifth (5th) Trading Day following the effective date of such distribution.

 

  MPs = the average of the Daily VWAP of the capital stock or equity interests representing the portion of the distribution applicable to one Common Share over the first ten (10) Trading Days commencing on and including the fifth (5th) Trading Day following the effective date of such distribution, or, if not traded on a national or regional securities exchange or over-the-counter market, the fair market value of the capital stock or equity interests representing the portion of the distribution applicable to one Common Share on such date as reasonably determined by the Board of Directors.

 

Any adjustment pursuant to this Section 8.1(d) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Date for such distribution. In the event that such distribution described in this Section 8.1(d) is not so paid or made, the Conversion Price shall be readjusted, effective as of the date the Board of Directors publicly announces its decision not to pay or make such dividend or distribution, to the Conversion Price that would then be in effect if such dividend or distribution had not been declared.

 

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(e)           Self-Tender Offers and Exchange Offers. If the Company or any of its Subsidiaries successfully completes a tender or exchange offer for the Common Shares (except in an open market purchase in compliance with Rule 10b-18 promulgated under the Securities Exchange Act of 1934, as amended, through an “accelerated share repurchase” on customary terms or in connection with tax withholding upon vesting or settlement of options, restricted stock units, performance share units or other similar equity awards or upon forfeiture or cashless exercise of options or other equity awards) where the cash and the value of any other consideration included in the payment per Common Share exceeds the arithmetic average of the VWAP of the Common Shares for each of the ten (10) consecutive Trading Days commencing on, and including the Trading Day next succeeding the expiration date of such tender offer or exchange offer, then the Conversion Price will be adjusted by multiplying the Conversion Price in effect at 5:00 p.m., New York City time prior to the commencement of the offer by the following fraction:

 

OS0 x SP0
AC + (SP0 x OS1)

 

Where,

 

  SP0 = the arithmetic average of the VWAP of the Common Shares for each of the ten (10) consecutive Trading Days commencing on, and including the Trading Day next succeeding the expiration date of such tender offer or exchange offer.

 

  OS0 = the number of Common Shares outstanding immediately prior to the expiration of the tender or exchange offer, including any shares validly tendered and not withdrawn.

 

  OS1= the number of Common Shares outstanding immediately after the expiration of the tender or exchange offer (after giving effect to such tender offer or exchange offer).

 

  AC = the aggregate cash and fair market value of the other consideration payable in the tender or exchange offer, as reasonably determined by the Board of Directors.

 

Any adjustment made pursuant to this Section 8.1(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Trading Day immediately following the expiration of the tender or exchange offer. In the event that the Company or one of its Subsidiaries is obligated to purchase Common Shares pursuant to any such tender offer or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then the Conversion Price shall be readjusted to be such Conversion Price that would then be in effect if such tender offer or exchange offer had not been made.

 

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(f)            Cash Dividends. If the Company distributes to all or substantially all holders of Common Shares any cash dividend on the Common Shares, then the Conversion Price will be adjusted by multiplying the Conversion Price in effect at 5:00 p.m., New York City time on the Trading Day immediately prior to the Ex-Date for such dividend or distribution by the following fraction:

  

SP0 – C
SP0

 

Where,

 

  SP0 = the Current Market Price per Common Share on such date.

 

  C = the amount in cash per share the Company distributes to all or substantially all holders of the Common Shares.

 

Any adjustment pursuant to this Section 8.1(f) shall become effective at 9:00 a.m., New York City time, on the Ex-Date for such distribution. In the event that the dividend described in this Section 8.1(f) is not so paid or made, the Conversion Price shall be readjusted, effective as of the date the Board of Directors publicly announces its decision not to pay or make such dividend, to the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Holder of this Note shall receive, for each $1,000 principal amount of this Note it holds, at the same time and upon the same terms as holders of shares of the Common Shares, the amount of cash that the Holder would have received if the Holder owned a number of shares of Common Shares equal to the Conversion Rate in effect on the Ex-Date for such cash dividend or distribution.

 

(g)           Rights, Options or Warrants. If the Company issues to all or substantially all holders of Common Shares any rights, options or warrants (other than rights, options or warrants issued pursuant to a stockholder rights plan, dividend reinvestment plan, share purchase plan or other similar plans) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase Common Shares at a price per share that is less than the arithmetic average of the VWAP of the Common Shares for each of the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately preceding the date of the announcement of such issuance, then the Conversion Price will be adjusted by multiplying the Conversion Price in effect at 5:00 p.m., New York City time on the Trading Day immediately prior to the Ex-Date for such issuance by the following fraction:

 

OS0 + Y
OS0 + X

 

Where,

 

  OS0 = the number of Common Shares outstanding immediately prior to Ex-Date for such issuance.

 

  X= the total number of Common Shares issuable pursuant to such rights, options or warrants; and.

 

  Y = the number of Common Shares equal to the aggregate price payable to exercise such rights, options or warrants, divided by the arithmetic average of the VWAP of the Common Shares for each of the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately preceding the date of the announcement of such issuance.

 

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Any adjustment pursuant to this Section 8.1(g) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Date for such distribution. To the extent that shares of the Common Shares are not delivered after the expiration of such rights, options or warrants, the Conversion Price shall be readjusted to the Conversion Price that would then be in effect had the adjustment with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Shares actually delivered. If such rights, options or warrants are not so issued, the Conversion Price shall be readjusted to the Conversion Price that would then be in effect if such issuance had not been declared.

 

(h)            No adjustment to the Conversion Price shall be made with respect to a Common Share issuable upon conversion of the Note if the Holder thereof has participated in the transaction that would otherwise give rise to an adjustment with respect to such Common Share, as a result of holding such Common Share at the time of such transaction, without having to convert such Note, as if they held the full number of Common Shares into which each such Note held by them may then be converted.

 

(i)              Notwithstanding anything herein to the contrary, the Company shall not be required to adjust the Conversion Price pursuant to this Section 8.1:

 

(i)            as a result of the issuance of, the distribution of separate certificates representing, the exercise or redemption of, or the termination or invalidation of, rights pursuant to any stockholder rights plans;

 

(ii)            upon the issuance of Common Shares pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in Common Shares under any plan;

 

(iii)          upon the issuance of any Common Shares or options or rights to purchase such shares or other form of equity-based or equity-related awards (including restricted stock units) to employees (or prospective employees who have accepted an offer of employment), directors or consultants, pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries or of any employee agreements or arrangements or programs;

 

(iv)          upon the issuance of any Common Shares pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security;

 

(v)           for a change in par value of the Common Shares;

 

(vi)          for stock repurchases that are not tender offers referred to in Section 8.1(e), including structured or derivative transactions or pursuant to a stock repurchase program approved by the Board of Directors; or

 

(vii)         for any other issuance of Common Shares or any securities convertible into or exchangeable for Common Shares or the right to purchase Common Shares or such convertible or exchangeable securities, except as otherwise provided in Sections 8.1(b), (c), (d), (e), (f) and (g).

 

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(j)            No adjustment to the Conversion Price will be required, unless such adjustment would require an increase or decrease of at least $0.01 of the Conversion Price; provided, however, that any such adjustment that is not required to be made will be carried forward and taken into account in any subsequent adjustment.

 

(k)           After an adjustment to the Conversion Price under this Section 8.1, any subsequent event requiring an adjustment under this Section 8.1 shall cause an adjustment to each such Conversion Price as so adjusted.

 

(l)            The Company shall promptly inform the Holder if there has been an adjustment to the Conversion Price.

 

(m)          [Notwithstanding anything in this Note to the contrary, the Conversion Price shall not be reduced below the consolidated closing bid price (as defined in the Nasdaq rules) as of the time of the issuance of this Note.]4

 

Article 9
DEFINITIONS

 

Section 9.1.            Definitions. The following terms shall have the meanings set forth below:

 

2029 Notes” means this Note and the Other Notes, and each a “2029 Note”.

 

Adjusted Consolidated EBITDA” has the meaning given to that term in the Credit Agreement.

 

Adjustment Event” has the meaning set forth in Section 8.1(a).

 

Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person (as used in this definition, the term “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 ownership of voting securities, by contract or otherwise)

 

Assignment and Acceptance” has the meaning set forth in Section 2.2(b).

 

Bankruptcy Law” means Title 11, United States Code, or any similar Federal, state or foreign law for the relief of debtors.

 

Board of Directors” means the Board of Directors of the Company or any committee thereof duly authorized to act on behalf of the Board of Directors of the Company.

 

Business Day” means each day which is not a Legal Holiday.

 

Cap Allocation Period” has the meaning set forth in Section 4.1(h).

 

 

4 NTD: Included only in notes issued to Westrock Group, LLC and Wooster Capital, LLC.

 

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Cap Amount” has the meaning set forth in Section 4.1(c).

 

Cap Notice” has the meaning set forth in Section 4.1(h).

 

Capital Stock” of any Person means any and all shares, partnership, membership or other interests, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock (but excluding any debt securities convertible into such equity) and any rights to purchase, warrants, options or similar interests with respect to the foregoing.

 

Cash Portion” means the portion (in dollars) of the Conversion Amount that the Company has elected to settle in cash.

 

Cash Settlement” has the meaning set forth in Section 4.1(c)(i).

 

Closing Price” means the closing price of the Company’s Common Shares on the Nasdaq.

 

Combination Settlement” has the meaning set forth in Section 4.1(c)(i).

 

Combination Settlement Cash Amount” means the amount of cash that is the product of (i) the Conversion Rate (in effect at the time of the Surrender Date), (ii) 1/1000, (iii) the Cash Portion and (iv) subject to the last sentence of Section 4.1(h), the arithmetic average of the Daily VWAP of the Common Shares for each Trading Day in the 20 consecutive Trading Day period ending on the Trading Day immediately prior to time of the Surrender Date.

 

Combination Settlement Share Amount” is the number of Common Shares equal to the product of (i) the Conversion Rate (in effect at the time of the Surrender Date), (ii) 1/1000, and (iii) the amount equal to (x) the Conversion Amount less (y) the Cash Portion.

 

Common Shares” means the common stock of the Company.

 

Company” has the meaning set forth in the preamble.

 

Conversion Amount” means the principal amount of this Note tendered by the Holder for conversion, which such amount must be a multiple of $1,000.

 

Conversion Date” has the meaning set forth in Section 4.1(a)(ii).

 

Conversion Obligation” has the meaning set forth in Section 4.1(a)(ii).

 

Conversion Price” means, initially $12.84, subject to adjustment as provided in this Note.

 

Conversion Rate” means the number of Common Shares that is equal to $1,000.00 divided by the Conversion Price.

 

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Credit Agreement” means that certain Credit Agreement dated as of August 29, 2022, among Westrock Beverage Solutions, LLC, the Company, Wells Fargo Bank, N.A. and the other parties thereto (as amended, amended and restated or otherwise modified from time to time).

 

Current Market Price” means, on any date, the arithmetic average of the Daily VWAP of the Common Shares on each of the ten consecutive Trading Days preceding the earlier of the day before the date of the issuance, dividend or distribution in question and the day before the Ex-Date with respect to the issuance or distribution, in each case, that gives rise to an adjustment to the Conversion Price pursuant to Article 8.

 

Daily VWAP” means the per share volume-weighted average price as displayed by Bloomberg (or its equivalent successor) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one Common Share on such Trading Day as determined by the Board of Directors in a commercially reasonable manner using a volume-weighted average method). The “Daily VWAP” will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.

 

Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.

 

Dispose” or “Disposed of” means to convey, sell, lease, sell and lease-back, assign, farm-out, transfer or otherwise dispose of any property, business or asset. The term “Disposition” shall have a correlative meaning to the foregoing. Notwithstanding anything to the contrary herein, “Dispose”, “Disposed of” and “Disposition” shall be deemed not to include any issuance by the Company of any of its equity interests to another Person.

 

Event of Default” has the meaning set forth in Section 5.1.

 

Ex-Date”, when used with respect to any issuance, dividend or distribution giving rise to an adjustment to the Conversion Price pursuant to Article 8, means the first date on which the Common Shares trade without the right to receive the issuance, dividend or distribution.

 

Fractional Cash Amount” has the meaning set forth in Section 4.1(f).

 

Fundamental Change” shall be deemed to have occurred at the time after February 15, 2024, if any of the following occurs prior to the Maturity Date:

 

(a) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act (other than any such person or group that was an equityholder of the Company’s predecessor company, Westrock Coffee Holdings, LLC, immediately prior to its conversion into the Company) files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Common Shares representing more than 50% of the voting power of the Common Shares;

 

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(b) the consummation of (A) any recapitalization, reclassification or change of the Common Shares (other than changes resulting from a subdivision or combination) as a result of which the Common Shares would be converted into, or exchanged for, stock, other securities, other property or assets (other than a transaction described in clause (B) below); (B) any share exchange, consolidation or merger of the Company pursuant to which the Common Shares will be converted into cash, securities or other property or assets; or (C) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one of the Company’s wholly-owned Subsidiaries; provided, however, that a transaction described in clauses (A), (B) or (C) in which the holders of all classes of the Company’s common equity securities immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of common equity securities of the continuing, resulting or surviving entity, transferee, or the parent company of the foregoing entities immediately after such transaction in substantially the same proportions as such ownership immediately prior to such transaction shall not be a Fundamental Change pursuant to this clause (b); or

 

(c) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company;

 

provided, however, that a transaction or transactions described in clauses (a) or (b) above shall not constitute a Fundamental Change if at least 90% of the consideration received or to be received by the holders of Common Shares, excluding cash payments for fractional shares and cash payments made in respect of dissenters’ statutory appraisal rights, in connection with such transaction or transactions consists of common equity that is listed or quoted on any of The New York Stock Exchange or any market of The NASDAQ Stock Market LLC (or any of their respective successors) or will be so listed or quoted when issued or exchanged in connection with such transaction or transactions, and as a result of such transaction or transactions this Note becomes convertible into such consideration, excluding cash payments for fractional shares and cash payments made in respect of dissenters’ statutory appraisal rights.

 

Holder” has the meaning set forth in the preamble, as further described in Section 2.1.

 

Initiating Investor” has the meaning set forth in Section 4.1(h).

 

Interest Payment Date” has the meaning set forth in Section 1.1(b).

 

Investor” means a holder of the 2029 Notes.

 

Legal Holiday” means a Saturday, a Sunday or other day on which banking institutions are not open for general business in New York.

 

Maturity Date” has the meaning set forth in the preamble.

 

New York Court” has the meaning set forth in Section 10.4(b).

 

Note” means this Note, as amended, supplemented, extended, restated, renewed, replaced, refinanced or otherwise modified, in each case from time to time and whether in whole or in part.

 

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Other Notes” means the other notes issued and sold substantially concurrently with this Note, and having substantially the same terms as this Note (other than with respect to the principal amount, Section 7.1, and Section 8.1(m)), for an aggregate principal amount (together with this Note) of $72 million.

 

Other Tendering Investors” has the meaning set forth in Section 4.1(h).

 

Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.

 

Physical Settlement” has the meaning set forth in Section 4.1(c)(i).

 

Preferred Stock”, as applied to Capital Stock of any Person, means Capital Stock of any class or classes (however designated) that is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.

 

Register” has the meaning set forth in Section 2.1.

 

Remaining Cap Amount” has the meaning set forth in Section 4.1(h).

 

Reorganization Transaction” has the meaning set forth in Section 4.1(g).

 

Securities Act” has the meaning set forth in the legend of this Note.

 

Series A Preferred Shares” means the Series A Convertible Preferred Stock, par value $0.01 per share, of the Company.

 

Settlement Amount” has the meaning set forth in Section 4.1(c)(i).

 

Specified Conversion Price Adjustment” means an adjustment to the Conversion Price under Section 8.1 that would cause the Common Shares obtained by dividing the aggregate principal amount of this Note and the Other Notes, as of the date hereof, by the Conversion Price following such adjustment to exceed the Cap Amount.

 

Specified Notes” means the 5% Convertible Senior Note due 2029 issued to [Westrock Group, LLC]5 / [Wooster Capital, LLC]6.

 

Subsidiary” of any Person means any corporation, association, partnership or other business entity of which more than 50% of the total Voting Stock is at the time owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of such Person.

 

Surrender Date” has the meaning set forth in Section 4.1(b).

 

 

5 NTD: Included only for notes purchased directly or indirectly by Wooster Capital, LLC.

6 NTD: Included only for notes purchased directly or indirectly by Westrock Capital, LLC.

 

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Test Period” has the meaning given to that term in the Credit Agreement.

 

Trading Day” means the day on which trading in the Common Shares generally occurs on the Nasdaq (or, if the Common Shares are not traded on Nasdaq, on such other U.S. national securities exchange on which such Common Shares are then traded or, if not so traded, in the over-the-counter market).

 

Voting Stock” of a Person means all classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled at the time to vote in the election of directors, managers or trustees thereof.

 

Section 9.2.            Interpretation. Unless the context otherwise requires:

 

(a)           a term has the meaning assigned to it;

 

(b)           an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;

 

(c)           references to “generally accepted accounting principles” shall mean generally accepted accounting principles in effect as of the time when and for the period as to which such accounting principles are to be applied;

 

(d)           “or” is not exclusive;

 

(e)            words in the singular include the plural, and words in the plural include the singular;

 

(f)            provisions apply to successive events and transactions;

 

(g)           “including” means including without limitation; and

 

(h)            any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified.

 

Article 10
MISCELLANEOUS

 

Section 10.1.         Notices. Any notice or communication to be given according to the terms of this Note shall be in writing and shall be deemed to have been duly given if delivered personally or sent by overnight courier (a) if to the Company, to: Westrock Coffee Company, 4009 N. Rodney Parham Road, 3rd Floor, Little Rock, Arkansas, Attention: Robert P. McKinney, Chief Legal Officer; with a copy to: Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York 10019, Attention: Brandon C. Price; and Gregory E. Pessin (or to such other address or addresses as shall be designated to the Holder in writing) and (b) if to the Holder, at its address as set forth in the Register (it being understood that the address of the initial Holder is the address entered into the Register on the date hereof). Failure to mail a notice or communication to the Holder or any defect in it shall not affect its sufficiency with respect to the Holder.

 

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Section 10.2.         No Recourse Against Others. A director, officer, employee or shareholder, as such, of the Company shall not have any liability for any obligations of the Company under this Note or for any claim based on, in respect of or by reason of such obligations or their creation. The Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issuance of this Note.

 

Section 10.3.         Amendment. Subject to the terms of Article 5, the provisions of this Note may be amended, modified or waived if the Holder shall, by written consent delivered to the Company, consent to such amendment, modification or waiver; provided, however, that no such waiver shall extend to or affect any covenant set forth herein except to the extent so expressly waived and, until such waiver shall become effective, the obligations of the Company in respect of any such covenant shall remain in full force and effect.

 

Section 10.4.         Governing Law; Jurisdiction; Waiver of Trial by Jury.

 

(a)           This Note shall be construed in accordance with the internal laws of the State of New York without regard to the conflicts of laws provisions thereof.

 

(b)           The Company hereby irrevocably submits (and by its acceptance hereof, the Holder hereby irrevocably submits) to the jurisdiction of any court of the State of New York located in the County of New York or the United States District Court for the Southern District of the State of New York, any appellate courts from any thereof (any such court, a “New York Court”), for the purpose of any suit, action or other proceeding arising out of or relating to this Note or under any applicable securities laws and arising out of the foregoing, which is brought by or against the Company, and the Company hereby irrevocably agrees (and by its acceptance hereof, the Holder hereby irrevocably agrees) that all claims in respect of any such suit, action or proceeding will be heard and determined in any New York Court. The Company hereby agrees (and by its acceptance hereof, the Holder hereby agrees) not to commence any action, suit or proceeding relating to this Note other than in a New York Court except to the extent mandated by applicable law. The Company hereby waives (and by its acceptance hereof, the Holder hereby waives) any objection that it may now or hereafter have to the venue of any such suit, action or proceeding in any such court or that such suit, action or proceeding was brought in an inconvenient court and agree not to plead or claim the same.

 

(c)           THE COMPANY (AND BY ITS ACCEPTANCE HEREOF, THE HOLDER) HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT THIS NOTE, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND THE COMPANY (AND BY ITS ACCEPTANCE HEREOF, THE HOLDER) HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT THE COMPANY OR THE HOLDER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS Section 10.4 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE COMPANY AND THE HOLDER TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

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(d)           The Company agrees that the process by which any suit, action or proceeding is begun in connection with this Note may be served on it at its principal place of business in the United States. If the Company ceases to have a principal place of business in the United States, it shall immediately appoint a further Person in the United States to accept service of process on its behalf in such jurisdiction. Nothing contained herein shall affect the right of the Company or the Holder to serve process in any other manner permitted by law.

 

Section 10.5.         Successors. All agreements of the Company in this Note shall bind its successor.

 

Section 10.6.         Severability. If any one or more of the provisions contained in this Note shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Note and such provision shall be interpreted to the fullest extent permitted by the law; provided that the Company and the Holder shall use their reasonable best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such provision.

 

Section 10.7.         Headings, etc. The headings of the Articles and Sections of this Note have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.

 

Section 10.8.         Non-Waiver; Remedies Cumulative. The Holder shall not, by any act of omission or commission, be deemed to waive any of its rights or remedies hereunder unless such waiver be in writing and signed by the Holder and then only to the extent specifically set forth therein; a waiver on one occasion shall not, except as specifically set forth therein, be construed as continuing or as a bar to or waiver of a right or remedy on any other occasion. All remedies conferred upon the Holder by this Note shall be cumulative and none is exclusive, and such remedies may be exercised concurrently or consecutively at the Holder’s option.

 

Section 10.9.         Waiver. The Company hereby waives presentment for payment, protest and demand, and, except as specifically set forth or required herein or hereunder, notice of protest, intent, demand, dishonor and nonpayment of this Note and all other notices of any kind.

 

Section 10.10.        Assignment. Subject to Section 6.3, this Note and the rights, duties and obligations hereunder may not be assigned or delegated by the Company without the prior written consent of the Holder.

 

Section 10.11.        Rights. For the avoidance of doubt, notwithstanding anything in this Note to the contrary, this Note will not, in and of itself, give the Holder any right to vote Common Shares or any right to receive any dividends or other distributions that are made or paid to the holders of Common Shares.

 

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Section 10.12.        Entire Agreement. This Note and the agreements, documents and instruments executed in connection herewith, constitute the entire agreement of the Company and the Holder with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the Company and the Holder, whether oral or written, with respect to the subject matter hereof.

 

Section 10.13.        Time of the Essence. Time is of the essence with respect to all of the obligations and agreements specified in this Note.

 

[Signature Page Follows]

  

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IN WITNESS WHEREOF, the Company has executed and delivered this Note as of the date first above written.

 

  WESTROCK COFFEE COMPANY
   
  By:  
    Name: T. Christopher Pledger
    Title: Chief Financial Officer

 

[Signature Page to Convertible Note]

 

 

 

  

EXHIBIT A

 

[FORM OF ASSIGNMENT AND ACCEPTANCE]

 

The undersigned Holder, hereby      *   to ___ (herein called the “Assignee”),       *       interest of the undersigned in this Note, with the effect and subject to the provisions set forth in this Note, such assignment to be effected by delivery of this Note to the Company with this assignment properly completed in accordance with the terms and conditions of this Note, such transfer or assignment to become effective on, and not to be effective for any purpose until, the Company has acknowledged such transfer or assignment and executed and delivered a new Note to the (partial) Assignee registered in the name of the (partial) Assignee (and, in the case of a partial assignment, a new Note to the undersigned Holder).

 

Dated:      
      Signature
(Use exact name of Holder as shown on this Note)

 

Fill in for registration of new Note:

 

   
   
   
   
   

 

Please print address of Assignee (including zip code)

 

   

Signature of Assignee

 

 

  * Insert, as appropriate, the words “transfers,” “assigns,” or followed by a description of the obligation, “pledges as security for.”

 

  ** Insert, as appropriate, the words “(100%) the entire” or, preceded by a percentage less than 100% in parentheses, “a partial.”

 

Notice of the foregoing assignment is hereby acknowledged and approved.

  

  [WESTROCK COFFEE COMPANY]
     
  By:  

 

Dated:    

  

 

 

Exhibit 10.1

 

Execution Version

 

AMENDMENT NO. 3

 

AMENDMENT NO. 3, dated as of February 15, 2024 (this “Amendment”), among Westrock Beverage Solutions, LLC, a Delaware limited liability company (the “Borrower”), the Lenders party hereto and Wells Fargo Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”), to the Credit Agreement dated as of August 29, 2022 (as amended by that certain Incremental Assumption Agreement and Amendment No. 1, dated as of February 14, 2023 and Amendment No. 2, dated as of June 30, 2023 and as further amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement” and, as amended by this Amendment, the “Amended Credit Agreement”), among the Borrower, Westrock Coffee Company, a Delaware corporation (“Holdings”), Wells Fargo Bank, N.A., as Administrative Agent, as Collateral Agent and as Swingline Lender, Wells Fargo Securities, LLC, as Sustainability Structuring Agent, the Issuing Banks party thereto from time to time and the Lenders party thereto from time to time. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Existing Credit Agreement.

 

WHEREAS, pursuant to Section 9.08 of the Existing Credit Agreement, the Borrower, each of the undersigned Lenders and the Administrative Agent desire to amend the Existing Credit Agreement as set forth herein;

 

WHEREAS, the Borrower, the Administrative Agent and the Lenders constituting the Required Lenders under the Existing Credit Agreement on the Amendment No. 3 Effective Date (as defined below) are willing to agree to amend the Existing Credit Agreement as more fully set forth herein, subject to the terms and conditions specified herein; and

 

WHEREAS, Wells Fargo Securities, LLC (the “Amendment No. 3 Arranger”) is acting as sole lead arranger in connection with this Amendment;

 

NOW, THEREFORE, in consideration of the premises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

 

Section 1.              Amendments. Effective as of the Amendment No. 3 Effective Date (as defined below):

 

(a)           the Existing Credit Agreement is hereby 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 example: double-underlined text) as set forth in the pages of the Amended Credit Agreement attached as Exhibit A hereto;

 

(b)           the Form of Minimum Liquidity Certificate is hereby added to the Amended Credit Agreement as Exhibit O (Form of Minimum Liquidity Certificate) attached as Exhibit B hereto (for the avoidance of doubt, following the Amendment No. 3 Effective Date, all other exhibits to the Existing Credit Agreement shall remain in full force and effect and in the same form as attached to the Existing Credit Agreement prior to the Amendment No. 3 Effective Date); and

 

(c)           the Schedules to the Existing Credit Agreement are hereby amended to add Schedule 3.24 (Schedule of Material Real Property) attached as Exhibit C hereto (for the avoidance of doubt, following the Amendment No. 3 Effective Date, all other schedules to the Existing Credit Agreement shall remain in full force and effect and in the same form as attached to the Existing Credit Agreement prior to the Amendment No. 3 Effective Date).

 

 1

 

 

Section 2.              Conditions to Effectiveness. This Amendment shall become effective on the date (the “Amendment No. 3 Effective Date”) on which:

 

(a)           the Administrative Agent (or its counsel) shall have received from the Borrower, the Required Lenders and the Administrative Agent, a counterpart of this Amendment signed on behalf of each such party;

 

(b)           the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower stating that the representations and warranties of the Borrower and each other Loan Party contained in Article III of the Existing Credit Agreement or any other Loan Document are true and correct in all material respects as of the Amendment No. 3 Effective Date; provided, that, to the extent that such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;

 

(c)            the Borrower shall have (i) reimbursed the Administrative Agent for the reasonable and documented out-of-pocket expenses incurred by it in connection with this Amendment invoiced at least three (3) Business Days prior to the Amendment No. 3 Effective Date (including the reasonable and documented fees, charges and disbursements of Cahill Gordon & Reindel LLP, counsel for the Administrative Agent) and (ii) paid all fees and expenses required to be paid on the Amendment No. 3 Effective Date pursuant to the Engagement Letter, dated as of January 29, 2024, between the Borrower, Wells Fargo Bank, N.A. and Wells Fargo Securities, LLC;

 

(d)           no Event of Default or Default shall have occurred and be continuing on the Amendment No. 3 Effective Date; and

 

(e)            the Borrower shall have received proceeds from a capital raise in the form of unsecured convertible debt securities, preferred Equity Interests or common Equity Interests of not less than $50,000,000 (the “Amendment No. 3 Equity Contribution”).

 

Section 3.              Post-closing Items. Within one hundred twenty (120) days of the Amendment No. 3 Effective Date (unless otherwise extended by the Administrative Agent in its sole discretion and subject to the proviso at the end of this Section 3), the Collateral Agent shall have received, with respect to each Material Real Property owned or leased by a Loan Party as of the Amendment No. 3 Effective Date, each of the following, in each case in form and substance reasonably satisfactory to the Administrative Agent:

 

(a)            a Mortgage, duly executed and delivered by the applicable Loan Party in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem reasonably necessary in order to create a valid and subsisting perfected Lien (subject to no Liens other than Permitted Liens) on the real property and/or rights described therein in favor of the Collateral Agent, for the benefit of the Secured Parties, together with evidence that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Collateral Agent;

 

(b)            with respect to the Conway Property only, a Recognition of Prior Interests, Non-Disturbance and Attornment Agreement;

 

 2

 

 

(c)            with respect to each such Material Real Property, such consents, approvals, estoppels, tenant subordination agreements, recognition agreements, non-disturbance agreements, or other instruments as shall be deemed reasonably necessary by the Administrative Agent in order for the owner or holder of the fee or leasehold interest in such Material Real Property to grant the Lien contemplated by the Mortgage;

 

(d)            a title insurance policy or a marked-up commitment or pro forma thereof for such Material Real Property (the “Mortgage Policies”) insuring the Lien of each such Mortgage as a valid Lien on the real property described therein with the priority which it is expressed to have in such Mortgage, free and clear of any other Liens except for Permitted Liens, together with such endorsements, coinsurance and reinsurance and in such amounts (not to exceed the fair market value of the Material Real Property covered thereby as reasonably determined by the Borrower in good faith) as the Collateral Agent may reasonably request;

 

(e)            customary legal opinions from local counsel in each jurisdiction (A) where such Mortgaged Property is located regarding the enforceability of the Mortgage and (B) where the applicable Loan Party granting the Mortgage on said Mortgaged Property is organized, regarding the due authorization, execution and delivery of such Mortgage;

 

(f)             an ALTA survey (or update certificate to an existing ALTA survey or an affidavit of no change with respect to an existing ALTA survey) in a form and substance reasonably acceptable to the Administrative Agent, to the extent required by the title insurance company issuing the Mortgage Policies required by clause (d) hereof for deletion of the so called “survey exception” and issuance of the endorsements reasonably requested by the Collateral Agent that require a survey for issuance;

 

(g)            the Flood Documents;

 

(h)            to the extent reasonably requested by the Administrative Agent, a Phase I Environmental Site Assessment Report, together with a Phase II Environmental Site Assessment Report as reasonably requested by the Administrative Agent; and

 

(i)             evidence of payment by the Borrower of all Mortgage Policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the Mortgage Policies referred to above;

 

provided, however, no Mortgage shall be signed until at least 30 days after the Flood Documents have been posted for the Lenders (and the deadline for delivery of the items required under this Section 3 shall be automatically extended to the extent necessary to comply with the foregoing).

 

Section 4.              Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission or by email in Adobe “.pdf” format shall be effective as delivery of a manually executed counterpart hereof. The words “execution,” “signed,” “signature,” and words of like import in this Amendment shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

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Section 5.               Applicable Law. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

Section 6.               Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

 

Section 7.              Effect of Amendment.

 

(a)            On and after the effectiveness of this Amendment, each reference in the Existing Credit Agreement to “this Credit Agreement”, “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Existing Credit Agreement and each reference in the Notes and each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Credit Agreement shall mean and be a reference to the Amended Credit Agreement.

 

(b)            The Existing Credit Agreement, and each of the other Loan Documents, in each case as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. This Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent or the Collateral Agent under the Existing Credit Agreement, or any other Loan Document, and except as expressly set forth herein, shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document, or any other provision of the Existing Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. The parties hereto expressly acknowledge that it is not their intention that this Amendment or any of the other Loan Documents executed or delivered pursuant hereto constitute a novation of any of the obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document, but rather constitute a modification thereof pursuant to the terms contained herein. The Existing Credit Agreement as amended hereby, shall be deemed to be a continuing agreement among the parties thereto, and all documents, instruments, and agreements delivered, as well as all Liens created, pursuant to or in connection with the Existing Credit Agreement and the other Loan Documents shall remain in full force and effect, each in accordance with its terms (as amended by this Amendment). Each party hereto acknowledges and agrees that the prior liens, security interests and assignments created or granted by any Loan Party that encumber the Collateral shall continue to exist and remain valid and subsisting, shall not be impaired, extinguished or released hereby, shall remain in full force and effect, and are hereby ratified, renewed, brought forward, extended, and rearranged as security for the Obligations. This Amendment constitutes a Loan Document.

 

Section 8.              Acknowledgement and Consent.

 

(a)            The Borrower, on behalf of itself and each Guarantor, hereby acknowledges that it has reviewed the terms and provisions of the Existing Credit Agreement and this Amendment, and the Borrower, on behalf of itself and each Guarantor, consents to the amendments to the Existing Credit Agreement effected pursuant to this Amendment. The Borrower, on behalf of itself and each Guarantor, hereby confirms that each Loan Document to which it is a party or otherwise bound will continue to guarantee to the fullest extent possible in accordance with the Loan Documents the payment and performance of all Obligations.

 

 4

 

 

(b)            The Borrower, on behalf of itself and each Guarantor, acknowledges and agrees that any of the Loan Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Amendment.

 

(c)            The Borrower, on behalf of itself and each Guarantor, acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Amendment, such Guarantor is not required by the terms of the Existing Credit Agreement or any other Loan Document to consent to the amendments to the Existing Credit Agreement effected pursuant to this Amendment and (ii) nothing in the Existing Credit Agreement, this Amendment or any other Loan Document shall be deemed to require the consent of such Guarantor to any future amendments to the Existing Credit Agreement.

 

Section 9.              Amendment No. 3 Arranger. The Amendment No. 3 Arranger shall be entitled to all rights, privileges and immunities applicable to the “Arranger” under the Loan Documents in connection herewith.

 

[Signature Pages Follow]

 

 5

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.

 

BORROWER: WESTROCK BEVERAGE SOLUTIONS, LLC
     
  By: /s/ T. Christopher Pledger
    Name: T. Christopher Pledger
    Title: Chief Financial Officer

 

[Signature Page to Westrock Amendment No. 3]

 

 

 

 

ADMINISTRATIVE AGENT:  WELLS FARGO BANK, N.A., as Administrative Agent, Collateral Agent and a Lender
   
  By: /s/ Christine Gardiner
    Name: Christine Gardiner
    Title: Senior Vice President

 

[Signature Page to Westrock Amendment No. 3]

 

 

 

 

LENDERS: Bank of America, as a Lender
     
  By: /s/ Kevin Couch
    Name: Kevin Couch
    Title: Senior Vice President

 

[Signature Page to Westrock Amendment No. 3]

 

 

 

 

  COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as a Lender
   
  By: /s/ Van Brandenburg
    Name: Van Brandenburg
    Title: Managing Director
   
  By: /s/ Irene Stephens
    Name: Irene Stephens
    Title: Executive Director
   

[Signature Page to Westrock Amendment No. 3] 

 

 

 

 

  SUMITOMO MITSUI BANKING CORPORATION, as a Lender
 
  By: /s/ Valery Amouroux
    Name: Valery Amouroux
    Title: Director

 

[Signature Page to Westrock Amendment No. 3]

 

 

 

 

  TRUIST BANK, as a Lender
   
  By: /s/ Jason Douglas
    Name:  Jason Douglas
    Title: Director

 

[Signature Page to Westrock Amendment No. 3]

 

 

 

 

  FIRST HORIZON BANK, as a Lender
   
  By: /s/ Kevin M. Brown
    Name:  Kevin M. Brown
    Title: SVP

 

[Signature Page to Westrock Amendment No. 3]

 

 

 

 

  PINNACLE BANK, as a Lender
   
  By: /s/ Glynn M. Alexander Jr.
    Name:  Glynn M. Alexander Jr.
    Title: Executive Vice President

 

[Signature Page to Westrock Amendment No. 3]

 

 

 

 

  STIFEL BANK & TRUST, as a Lender
   
  By: /s/ Daniel P. McDonald
    Name:  Daniel P. McDonald
    Title: Vice President

 

[Signature Page to Westrock Amendment No. 3]

 

 

 

 

Exhibit A

 

Amended Credit Agreement

 

 

 

 

Exhibit A

 

 

CREDIT AGREEMENT

 

dated as of August 29, 2022,

 

as amended by Incremental Assumption Agreement and Amendment No. 1 on February 14, 2023,

 

as amended by Amendment No. 2 on June 30, 2023,

 

and as further amended by Amendment No. 23 on June 30, 2023,February 15, 2024,

 

among

 

WESTROCK Beverage Solutions, LLC,
as the Borrower,

 

WESTROCK COFFEE Company,
as Holdings,

 

THE LENDERS AND ISSUING BANKS PARTY HERETO,

 

and

 

WELLS FARGO BANK, N.A.,
as Administrative Agent, Collateral Agent and Swingline Lender

 

 

 

WELLS FARGO SECURITIES, LLC,

as Lead Arranger and Bookrunner

 

BOFA SECURITIES, INC.,

as Syndication Agent

 

WELLS FARGO SECURITIES, LLC,

as Sustainability Structuring Agent

 

 

 

 

 

CONTENTS

 

    Page
ARTICLE I . Definitions 1
   
Section 1.01 Defined Terms 1
Section 1.02 Terms Generally; GAAP 8186
Section 1.03 Interest Rates; Benchmark Notifications 8287
Section 1.04 Timing of Payment or Performance 8387
Section 1.05 Times of Day 8388
Section 1.06 Classification of Loans and Borrowings 8388
Section 1.07 Certain Conditions, Calculations and Tests 8388
Section 1.08 Effectuation of Transactions 8590
     
ARTICLE II. The Credits 8590
   
Section 2.01 Commitments 8590
Section 2.02 Loans and Borrowings 8691
Section 2.03 Requests for Borrowings 8792
Section 2.04 Swingline Loans 8792
Section 2.05 Letters of Credit 8995
Section 2.06 Funding of Borrowings 95100
Section 2.07 Interest Elections 95101
Section 2.08 Termination and Reduction of Commitments 97102
Section 2.09 Repayment of Loans; Evidence of Debt 98104
Section 2.10 Repayment of Term Loans and Revolving Facility Loans 99104
Section 2.11 Prepayment of Loans 101107
Section 2.12 Fees 103108
Section 2.13 Interest 104110
Section 2.14 Alternative Rate of Interest 105111
Section 2.15 Increased Costs 107113
Section 2.16 Break Funding Payments 109115
Section 2.17 Taxes 109115
Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs 114120
Section 2.19 Mitigation Obligations; Replacement of Lenders 116122
Section 2.20 Delayed Draw Term Loans 118124
Section 2.21 Incremental Commitments 118125
Section 2.22 Extensions of Loans and Commitments 122128
Section 2.23 Refinancing Amendments 124131
Section 2.24 Defaulting Lender 128135
Section 2.25 Loan Repurchases 131137
     
ARTICLE III. Representations and Warranties 132139
   
Section 3.01 Organization; Powers 132139
Section 3.02 Authorization 133139

 

i 

 

 

Section 3.03 Enforceability 133140
Section 3.04 Governmental Approvals 133140
Section 3.05 Financial Statements 134140
Section 3.06 No Material Adverse Effect 134141
Section 3.07 Title to Properties; Possession Under Leases 134141
Section 3.08 [Reserved] 134141
Section 3.09 Litigation; Compliance with Laws 134141
Section 3.10 Federal Reserve Regulations 135141
Section 3.11 Investment Company Act 135141
Section 3.12 Use of Proceeds 135142
Section 3.13 Tax Returns 135142
Section 3.14 No Material Misstatements 135142
Section 3.15 Employee Benefit Plans 136143
Section 3.16 Environmental Matters 136143
Section 3.17 Security Documents 137144
Section 3.18 Solvency 138145
Section 3.19 Labor Matters 138145
Section 3.20 Insurance 138145
Section 3.21 Intellectual Property; Licenses, Etc. 138146
Section 3.22 USA PATRIOT Act 139146
Section 3.23 Anti-Corruption Laws and Sanctions 139146
Section 3.24 Title to Properties 146
   
ARTICLE IV. Conditions of Lending 139147
   
Section 4.01 Closing Date 139147
Section 4.02 Subsequent Credit Events 142149
Section 4.03 Determinations Under Section 4.01 142150
     
ARTICLE V. Affirmative Covenants 143150
   
Section 5.01 Existence; Business and Properties 143151
Section 5.02 Insurance 143151
Section 5.03 Taxes 144152
Section 5.04 Financial Statements, Reports, Etc. 144152
Section 5.05 Other Notices 146154
Section 5.06 Compliance with Laws 147155
Section 5.07 Maintaining Records; Access to Properties and Inspections 147155
Section 5.08 Use of Proceeds 147156
Section 5.09 Compliance with Environmental Laws 147156
Section 5.10 Further Assurances; Additional Security 147156
Section 5.11 Quarterly Compliance Certificates 151160
Section 5.12 Restricted and Unrestricted Subsidiaries 151160
Section 5.13 Anti-Corruption Laws and Sanctions 151160
Section 5.14 Post-Closing 151160
Section 5.15 Transactions with Affiliates 151160

 

ii 

 

 

Section 5.16 Sustainability Financing Framework 153162
     
ARTICLE VI. Negative Covenants 153162
   
Section 6.01 Indebtedness 153162
Section 6.02 Liens 157167
Section 6.03 [Reserved] 162172
Section 6.04 Investments, Loans and Advances 162172
Section 6.05 Mergers, Consolidations, Sales of Assets and Acquisitions 167177
Section 6.06 Restricted Payments 170180
Section 6.07 Junior Debt Restricted Payments 174185
Section 6.08 Restrictions on Subsidiary Distributions and Negative Pledge Clauses 175185
Section 6.09 Financial Covenants. 177 187
Section 6.10 Limitations on Holdings. 178 189
Section 6.11 Covenant Relief Period Additional Covenants 190
ARTICLE VII. Events of Default 179191
Section 7.01 Events of Default 179191
Section 7.02 Right to Cure 182194
     
ARTICLE VIII. The Administrative Agent, the Collateral Agent and Other Agents 183195
   
Section 8.01 Authorization and Action 183195
Section 8.02 Administrative Agent’s and Collateral Agent’s Reliance; Limitation of
  Liability, Etc. 186198
Section 8.03 Posting of Communications 187199
Section 8.04 The Administrative Agent and Collateral Agent Individually 188201
Section 8.05 Successor Administrative Agent and Successor Collateral Agent 189201
Section 8.06 Acknowledgements of Lenders 190202
Section 8.07 Indemnification 192204
Section 8.08 Agent in Its Individual Capacity 192205
Section 8.09 Security Documents and Collateral Agent 193205
Section 8.10 Right to Realize on Collateral and Enforce Guarantees 193206
Section 8.11 Withholding Tax 194207
Section 8.12 Certain ERISA Matters 195207
Section 8.13 Sustainability Structuring Agent 196208
     
ARTICLE IX. Miscellaneous 197210
   
Section 9.01 Notices; Communications 197210
Section 9.02 Survival of Agreement 198211
Section 9.03 Binding Effect 199211
Section 9.04 Successors and Assigns 199211
Section 9.05 Expenses; Indemnity; Limitation of Liability 207219
Section 9.06 Right of Set-off 209222

 

iii 

 

 

Section 9.07 Applicable Law 209222
Section 9.08 Waivers; Amendment 209222
Section 9.09 Interest Rate Limitation 215228
Section 9.10 Entire Agreement 215228
Section 9.11 WAIVER OF JURY TRIAL 215228
Section 9.12 Severability 216229
Section 9.13 Counterparts; Electronic Execution 216229
Section 9.14 Headings 216229
Section 9.15 Jurisdiction; Consent to Service of Process 216229
Section 9.16 Confidentiality 217230
Section 9.17 Platform; Borrower Materials 218231
Section 9.18 Release of Liens and Guarantees 219232
Section 9.19 USA PATRIOT Act Notice 221234
Section 9.20 Agency of the Borrower for the Loan Parties 221234
Section 9.21 No Liability of the Issuing Banks 221234
Section 9.22 Judgment Currency 222235
Section 9.23 Acknowledgment and Consent to Bail-In of EEA Financial Institutions 222235
Section 9.24 Acknowledgment Regarding Any Supported QFCs 223236
     

Exhibits and Schedules

Exhibit A Form of Assignment and Acceptance  
Exhibit B [Reserved]
Exhibit C Form of Solvency Certificate
Exhibit D-1 Form of Borrowing Request
Exhibit D-2 Form of Letter of Credit Request
Exhibit D-3 Form of Swingline Borrowing Request
Exhibit E Form of Interest Election Request
Exhibit F Auction Procedures
Exhibit G Form of Compliance Certificate
Exhibit H Form of Promissory Note
Exhibit I Form of Perfection Certificate
Exhibit J-1 U.S. Tax Certificate (For Non-U.S. Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit J-2 U.S. Tax Certificate (For Non-U.S. Lenders that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit J-3 U.S. Tax Certificate (For Non-U.S. Participants that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit J-4 U.S. Tax Certificate (For Non-U.S. Participants that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit K Form of Sustainability Loan Report
Exhibit L Form of Collateral Agreement
Exhibit M Form of Guarantee Agreement
Exhibit N Form of Affiliated Lender Assignment and Acceptance
Exhibit O Form of Minimum Liquidity Certificate

 

iv 

 

 

Schedule 1.01(a) Unrestricted Subsidiaries
Schedule 1.01(b)   Sustainability Financing Framework
Schedule 2.01  Commitments

Schedule 3.04  Governmental Approvals
Schedule 3.09  Existing Litigation
Schedule 3.16   Environmental Matters
Schedule 3.20    Insurance
Schedule 3.21   Intellectual Property
Schedule 3.24 Material Real Property
Schedule 5.14   Post-Closing Items
Schedule 6.01 Indebtedness
Schedule 6.02(a)    Liens
Schedule 6.04    Investments
Schedule 9.01        Notice Information

 

v 

 

 

CREDIT AGREEMENT, dated as of August 29, 2022, and amended as of February 14, 2023 and2023, June 30, 2023 and February 15, 2024 (this “Agreement”), among Westrock Beverage Solutions, LLC, a Delaware limited liability company (f/k/a Westrock Coffee Company, LLC, a Delaware limited liability company) (the “Borrower”), Westrock Coffee Company, a Delaware corporation (f/k/a Westrock Coffee Holdings, LLC, a Delaware limited liability company) (“Holdings”), Wells Fargo Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”), as collateral agent (in such capacity, the “Collateral Agent”) and as Swingline Lender (as defined below), Wells Fargo Securities, LLC, as sustainability structuring agent (in such capacity, the “Sustainability Structuring Agent”), and each Issuing Bank and Lender (each as defined below) party hereto from time to time.

 

WHEREAS, Holdings, Origin Merger Sub I, Inc. (“Merger Sub I”), Origin Merger Sub II, LLC (“Merger Sub II” and, together with Merger Sub I, the “Merger Subs”) and Riverview Acquisition Corp. (“RVAC”), have entered into that certain Transaction Agreement (as defined below) pursuant to which, and subject to the terms and conditions set forth therein, (i) Merger Sub I will merge with and into RVAC, with RVAC surviving, and (ii) RVAC will merge with and into Merger Sub II, with Merger Sub II surviving as a wholly owned subsidiary of the Borrower (such mergers, together, the “SPAC Merger”);

 

WHEREAS, in connection with the consummation of the transaction contemplated by the Transaction Agreement, the Borrower has requested the Lenders and the Issuing Banks extend credit as set forth herein; and

 

WHEREAS, the Revolving Credit Facility shall be a sustainability investment-linked revolving credit facility on the terms set forth herein;

 

NOW, THEREFORE, the Lenders and the Issuing Banks are willing to extend such credit to the Borrower on the terms and subject to the conditions set forth herein.

 

Accordingly, the parties hereto agree as follows:

 

Article I.

 

Definitions

 

Section 1.01           Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below:

 

ABR” shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published by two U.S. Government Securities Business Days prior to such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided, that for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the ABR due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the ABR is being used as an alternate rate of interest pursuant to Section 2.14 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.14), then the ABR shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the ABR as determined pursuant to the foregoing would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

1 

 

 

ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.

 

ABR Loan” shall mean any ABR Term Loan or ABR Revolving Loan.

 

ABR Revolving Facility Borrowing” shall mean a Borrowing comprised of ABR Revolving Loans.

 

ABR Revolving Loan” shall mean any Revolving Facility Loan bearing interest at a rate determined by reference to the ABR in accordance with the provisions of Article II.

 

ABR Term Loan” shall mean any Term Loan bearing interest at a rate determined by reference to the ABR in accordance with the provisions of Article II.

 

Account” shall have the meaning assigned to such term in Article 9 of the Uniform Commercial Code, including all rights to payment for goods sold or leased, or for services rendered.

 

Acquired EBITDA” shall mean, with respect to any Pro Forma Entity for any period, the amount for such period of Adjusted Consolidated EBITDA of such Pro Forma Entity (determined as if references to the Borrower and the Subsidiaries in the definition of the term “Adjusted Consolidated EBITDA” were references to such Pro Forma Entity and its Subsidiaries which will become Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity.

 

Acquired Entity or Business” shall have the meaning assigned to such term in clause (I) of the definition of the term “Adjusted Consolidated EBITDA.”

 

Additional Liquidity Certification Date” shall have the meaning assigned to such term in Section 6.09(c).

 

Adjusted Consolidated EBITDA” shall mean, for any period, the Consolidated Net Income for such period, plus:

 

(a) without duplication and to the extent already deducted (and not added back) in arriving at such Consolidated Net Income, the sum of the following amounts for such period:

 

(i)            total interest expense and, to the extent not reflected in such total interest expense, any losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such hedging obligations or such derivative instruments, and bank and letter of credit fees and costs of surety bonds in connection with financing activities, together with items excluded from the definition of “Consolidated Interest Expense”,

 

2 

 

 

(ii)            provision for Taxes based on income, profits, revenue or capital, including federal, foreign, state, local and provincial income, franchise, excise, value-added and similar Taxes and foreign withholding Taxes paid or accrued during such period (including in respect of repatriated funds) including penalties and interest related to such Taxes or arising from any Tax examinations and (without duplication) any payments to a Parent Entity pursuant to Section 6.06 in respect of Taxes,

 

(iii)          depreciation and amortization (including amortization of Capitalized Software Expenditures, internal labor costs and amortization of deferred financing fees and accelerated and other deferred financing costs, OID or other costs),

 

(iv)          other non-cash charges (other than any accrual in respect of bonuses) (provided, in each case, that if any non-cash charges represent an accrual or reserve for potential cash items in any future period, (A) the Borrower may elect not to add back such non-cash charges in the current period and (B) to the extent the Borrower elects to add back such non-cash charges in the current period, the cash payment in respect thereof in such future period shall be subtracted from Adjusted Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period),

 

(v)            the amount of any non-controlling interest consisting of income attributable to non-controlling interests of third parties in any non-wholly owned subsidiary deducted (and not added back in such period to Consolidated Net Income) except to the extent of any cash distributions in respect thereof,

 

(vi)          (A)  the amount of consulting, advisory, or other fees, indemnities or expenses paid pursuant to the Management Services Agreement, (B) the amount of monitoring, consulting and advisory fees, indemnities and related expenses paid or accrued in such period to (or on behalf of) any holder of Equity Interests of any Parent Entity (including any termination fees payable in connection with the early termination of management and monitoring agreements), (C) the amount of payments made to option, phantom equity or profits interest holders of any Parent Entity in connection with, or as a result of, any distribution being made to shareholders of such person or its direct or indirect parent companies, which payments are being made to compensate such option, phantom equity or profits interest holders as though they were shareholders at the time of, and entitled to share in, such distribution, including any cash consideration for any repurchase of equity, in each case to the extent permitted in the Loan Documents and (D) the amount of fees, expenses and indemnities paid or accrued to directors, including of any Parent Entity, in the case of the foregoing clauses (B) – (D), attributable to such Parent Entities’ ownership of the Borrower,

 

3 

 

 

(vii)          losses or discounts on sales of receivables and related assets in connection with any Qualified Receivables Facilities,

 

(viii)        cash receipts (or any netting arrangements resulting in reduced cash expenditures) not included in the calculation of Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Adjusted Consolidated EBITDA pursuant to paragraph (c) below for any previous period and not added back,

 

(ix)           any costs or expenses incurred by the Borrower or any Subsidiary pursuant to any management equity plan or stock option or phantom equity plan or any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of the Borrower or Net Proceeds of an issuance of Equity Interests of the Borrower (other than Disqualified Stock),

 

(x)            any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of FASB Accounting Standards Codification 715, and any other items of a similar nature,

 

(xi)           any unusual or non-recurring operating expenses directly attributable to the implementation of cost savings initiatives and any accruals or reserves in respect of any expenses,

 

(xii)          severance, relocation costs, integration and facilities’ or offices’ opening costs, start-up costs and other business optimization expenses (including related to new product introductions and other strategic or cost saving initiatives) and any costs or expenses related or attributable to the commencement of a New Project and including any related employee hiring or retention costs, restructuring charges, accruals or reserves (including restructuring and integration costs and outstanding payments pursuant to employment agreements related to acquisitions consummated prior to or after the Closing Date and adjustments to existing reserves), whether or not classified as restructuring expense on the consolidated financial statements, signing costs, retention or completion bonuses and other executive recruiting and retention costs,

 

(xiii)         transition costs, costs related to closure/consolidation of facilities or offices, internal costs in respect of strategic initiatives and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities and charges resulting from changes in estimates, valuations and judgments thereof),

 

4 

 

 

(xiv)        any expenses reimbursed in cash during such period by non-Affiliate third parties (other than the Borrower or any of its Subsidiaries),

 

(xv) (x)    Public Company Costs; provided, that all such amounts pursuant to this clause (x) shall not exceed $2,500,000 for any relevant Test Period, and (y) related expenses and charges incurred in connection with litigation (including threatened litigation), any investigation or proceeding (or any threatened investigation or proceeding) by a regulatory, governmental or law enforcement body (including any attorney general); provided, that all such amounts pursuant to this clause (y) shall not exceed $1,000,000 for any relevant Test Period,

 

(xvi)         costs, fees and expenses (including diligence and integration costs) incurred in connection with (x) investments in any Person, acquisitions of the equity interests of any Person, acquisitions of all or a material portion of the assets of any Person or constituting a line of business of any Person, and financings related to any of the foregoing or to the capitalization of any Loan Party or any Restricted Subsidiary or (y) other transactions that are out of the ordinary course of business of such Person and its Restricted Subsidiaries (in each case of clause (x) and (y), including transactions considered or proposed but not consummated), including equity issuances, Investments, acquisitions, dispositions, recapitalizations, mergers, option buyouts and the incurrence, modification or repayment of Indebtedness (including all consent fees, premium and other amounts payable in connection therewith),

 

(xvii) (A) unrealized or realized foreign exchange losses resulting from the impact of foreign currency changes and (B) losses due to fluctuations in currency values and related Tax effects, and

 

(xviii) other add backs and adjustments, at the election of the Borrower, reflected in a quality of earnings report provided by a “big four” accounting firm or other nationally recognized accounting firm reasonably acceptable to the Administrative Agent with respect to any Permitted Acquisition or other Investment;

 

plus

 

(b)           without duplication, the amount of “run rate” cost savings, operating expense reductions, cost synergies, related to any Specified Transaction and any transaction in connection therewith, any restructuring, cost saving initiative or other initiative, projected by the Borrower in good faith to be realized as a result of actions that have been taken or initiated or are expected to be taken or initiated (in the good-faith determination of the Borrower) within 12 months after the relevant transaction, including any of the foregoing in connection with, or incurred by or on behalf of, any joint venture of the Borrower or any of the Subsidiaries (whether accounted for on the financial statements of any such joint venture or the Borrower) (collectively, “Projected Savings”) (which Projected Savings shall be added to Adjusted Consolidated EBITDA until fully realized and calculated on a Pro Forma Basis as though such Projected 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 Projected Savings are reasonably quantifiable and factually supportable, (B) no Projected Savings shall be added pursuant to this clause (b) to the extent duplicative of any expenses or charges relating to such Projected Savings above (it being understood and agreed that “run rate” shall mean the full recurring benefit that is associated with any action taken) and (C) the share of any Projected Savings with respect to a joint venture that are to be allocated to the Borrower or any Subsidiaries shall not exceed the total amount thereof for any such joint venture multiplied by the percentage of income of such venture expected to be included in Adjusted Consolidated EBITDA for the relevant Test Period; provided, that such Projected Savings and any Pro Forma Adjustments included in Adjusted Consolidated EBITDA for the relevant Test Period pursuant to the definition of “Pro Forma Basis” shall not exceed (x) 20% of Adjusted Consolidated EBITDA for any relevant Test Period (calculated after giving effect to such capped adjustments) ending on or prior to the date that is 12 months from the Closing Date and (y) 15% for any relevant Test Period ending thereafter;

 

5 

 

 

less

 

(c)            without duplication and to the extent included in arriving at such Consolidated Net Income, the sum of the following amounts for such period:

 

(i)             non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated Net Income or Adjusted Consolidated EBITDA in any prior period),

 

(ii)            the amount of any non-controlling interest consisting of loss attributable to non-controlling interests of third parties in any non-wholly-owned subsidiary added (and not deducted in such period from Consolidated Net Income), and

 

(iii)           (A) unrealized or realized foreign exchange gains resulting from the impact of foreign currency changes and (B) gains due to fluctuations in currency values and related Tax effects,

 

in each case, as determined on a consolidated basis for the Borrower and the Subsidiaries in accordance with GAAP; provided, that,

 

(I)            there shall be included in determining Adjusted Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any person, property, business or asset acquired by the Borrower or any Subsidiary during such period (other than any Unrestricted Subsidiary) whether such acquisition occurred before or after the Closing Date to the extent not subsequently sold, transferred or otherwise disposed of (but not including the Acquired EBITDA of any related person, property, business or assets to the extent not so acquired) (each such person, property, business or asset acquired, including pursuant to a transaction consummated prior to the Closing Date, and not subsequently so disposed of, an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), in each case based on the Acquired EBITDA of such Pro Forma Entity for such period (including the portion thereof occurring prior to such acquisition or conversion) determined on a historical Pro Forma Basis, and

 

6 

 

 

(II)           there shall be excluded in determining Adjusted Consolidated EBITDA for any period the Disposed EBITDA of any person, property, business or asset (other than any Unrestricted Subsidiary) sold, transferred or otherwise disposed of, closed or classified as discontinued operations by the Borrower or any Subsidiary during such period (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of, abandon, transfer, close or discontinue such operations, at the Borrower’s election only when and to the extent such operations are actually disposed of) (each such person, property, business or asset so sold, transferred or otherwise disposed of, closed or classified, a “Sold Entity or Business”), and the Disposed EBITDA of any Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”), in each case based on the Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer, disposition, closure, classification or conversion) determined on a historical Pro Forma Basis.

 

Notwithstanding anything contained in this definition to the contrary, Adjusted Consolidated EBITDA of the Borrower and its Subsidiaries shall be deemed to be: (a) $11,462,000 for the fiscal quarter ended September 30, 2021, (b) $11,544,000 for the fiscal quarter ended December 31, 2021, (c) $10,420,000 for the fiscal quarter ended March 31, 2022 and (d) $12,471,000 for the fiscal quarter ended June 30, 2022, in each case, as adjusted on a Pro Forma Basis.

 

Adjusted Term SOFR Rate” shall mean, with respect to any Term Benchmark Borrowing for any Interest Period, an interest rate per annum equal to (a) the Term SOFR Rate for such Interest Period, plus (b)(x) in the case of an Interest Period that is one month in duration, 0.10%, (y) in the case of an Interest Period that is three months in duration, 0.15% and (z) in the case of an Interest Period that is six months in duration, 0.25%.

 

Administrative Agent” shall have the meaning assigned to such term in the introductory paragraph of this Agreement, together with its permitted successors and assigns.

 

Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.12(c).

 

Administrative Questionnaire” shall mean an administrative questionnaire in the form supplied by the Administrative Agent.

 

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

 

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Affiliate” shall mean, when used 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.

 

Affiliate Transaction” shall have the meaning assigned to such term in Section 5.15.

 

Affiliated Debt Fund” shall mean an Affiliated Lender that is a bona fide debt fund primarily engaged in, or that advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds or similar extensions of credit or securities in the ordinary course.

 

Affiliated Lender” shall mean, at any time, any Lender that is an Affiliate of Holdings (other than the Borrower or any of its Subsidiaries) at such time.

 

Affiliated Lender Assignment and Acceptance” shall have the meaning assigned to such term in Section 9.04(f)(iv).

 

Affiliated Lender Cap” shall have the meaning assigned to such term in Section 9.04(f)(iii).

 

Agents” shall mean, collectively, the Administrative Agent and the Collateral Agent.

 

Agreement” shall have the meaning assigned to such term in the introductory paragraph of this Agreement, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

Agreement Currency” shall have the meaning assigned to such term in Section 9.22.

 

Amendment No. 1” shall mean the Incremental Assumption Agreement and Amendment No. 1 to this Agreement, dated as of February 14, 2023.

 

Amendment No. 1 Delayed Draw Commitment Fee” shall have the meaning assigned to such term in Section 2.12(d).

 

Amendment No. 1 Delayed Draw Commitment Fee End Date” shall have the meaning assigned to such term in Section 2.12(d).

 

Amendment No. 1 Delayed Draw Commitment Period” shall mean the period from the Amendment No. 1 Effective Date to the Amendment No. 1 Delayed Draw Termination Date.

 

Amendment No. 1 Delayed Draw Funding Date” shall mean the date of the requested borrowing (which shall be a Business Day) of Amendment No. 1 Delayed Draw Term Loans.

 

Amendment No. 1 Delayed Draw Maturity Date” shall mean August 29, 2027.

 

Amendment No. 1 Delayed Draw Term Loan Commitment” shall mean, with respect to each Amendment No. 1 Delayed Draw Term Loan Lender, the commitment of such Amendment No. 1 Delayed Draw Term Loan Lender to make its portion of the Amendment No. 1 Delayed Draw Term Loan in a principal amount equal to such Amendment No. 1 Delayed Draw Term Loan Lender’s Amendment No. 1 Delayed Draw Term Loan Commitment Percentage of the Amendment No. 1 Delayed Draw Term Loan Committed Amount.

 

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Amendment No. 1 Delayed Draw Term Loan Commitment Percentage” shall mean, for any Amendment No. 1 Delayed Draw Term Loan Lender, the percentage identified as its Amendment No. 1 Delayed Draw Term Loan Commitment Percentage on Schedule 2.01 (as in effect on the Amendment No. 1 Effective Date), as such percentage may be modified in connection with any Incremental Term Loan Commitment and/or any assignment made in accordance with the provisions of Section 9.04.

 

Amendment No. 1 Delayed Draw Term Loan Committed Amount” shall mean an initial aggregate principal amount of $50,000,000 as of the Amendment No. 1 Effective Date, as such amount may be decreased pursuant to Section 2.08 or Section 2.20.

 

Amendment No. 1 Delayed Draw Term Loan Facility” shall mean the Amendment No. 1 Delayed Draw Term Loan Commitment and the Amendment No. 1 Delayed Draw Term Loans made hereunder.

 

Amendment No. 1 Delayed Draw Term Loan Installment Date” shall have the meaning assigned to such term in Section 2.10(a)(ii).

 

Amendment No. 1 Delayed Draw Term Loan Lender” shall mean, as of any date of determination, any lender that holds a portion of the outstanding Amendment No. 1 Delayed Draw Term Loans and/or Amendment No. 1 Delayed Draw Term Loan Commitment on such date.

 

Amendment No. 1 Delayed Draw Term Loans” shall have the meaning assigned to such term in Section 2.20.

 

Amendment No. 1 Delayed Draw Termination Date” shall mean the one year anniversary of the Amendment No. 1 Effective Date.

 

Amendment No. 1 Effective Date” shall mean February 14, 2023.

 

Amendment No. 1 Lead Arranger” shall have the meaning assigned to such term in Amendment No. 1.

 

Amendment No. 2” shall mean Amendment No. 2 to this Agreement, dated as of June 30, 2023.

 

Amendment No. 2 Effective Date” shall mean June 30, 2023.

 

Amendment No. 2 Lead Arranger” shall have the meaning assigned to such term in Amendment No. 2.

 

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Amendment No. 3” shall mean Amendment No. 3 to this Agreement, dated as of February 15, 2024.

 

“Amendment No. 3 Effective Date” shall mean February 15, 2024.

 

“Amendment No. 3 Lead Arranger” shall have the meaning assigned to such term in Amendment No. 3.

 

“Amendment No. 3 Equity Contribution” shall have the meaning assigned to such term in Amendment No. 3.

 

Annual Borrower Financial Statements” shall mean the audited consolidated and consolidating balance sheets and the related consolidated and consolidating statements of comprehensive income and cash flows of the Borrower and its Restricted Subsidiaries for the fiscal years ended December 31, 2020 and December 31, 2021.

 

Anti-Cash Hoarding Certificate” shall have the meaning assigned to such term in Section 6.09(d).

 

“Anti-Cash Hoarding Test Date” shall mean following the Amendment No. 3 Effective Date and prior to the termination of the Covenant Relief Period (i) the last day of each calendar month (commencing with the month ending February 29, 2024) unless on such date no Revolving Facility Loans, Swingline Loans or Letters of Credit (other than Letters of Credit that are Cash Collateralized) are then outstanding and (ii) each day on which a Credit Event is made.

 

Anti-Corruption Laws” shall mean the United States Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.

 

Applicable Commitment Fee” shall mean for any day (i) with respect to any Revolving Facility Commitments relating to Initial Revolving Loans and Amendment No. 1 Delayed Draw Term Loan Commitments, (x) initially, 0.30% per annum and (y) from and after the delivery by the Borrower to the Administrative Agent of the Borrower’s financial statements required to be delivered pursuant to Section 5.04(a) or (b), as applicable, for the first full fiscal quarter of the Borrower completed after the Closing Date, the applicable percentage per annum set forth under the heading “Commitment Fee Rate” in the grid in the definition of “Applicable Margin,” as determined by reference to the TotalSecured Net Leverage Ratio set forth in the certificate received by the Administrative Agent pursuant to Section 5.04(c) prior to such day; or (ii) with respect to any Other Revolving Facility Commitments, the “Applicable Commitment Fee” set forth in the applicable Extension Amendment or Refinancing Amendment (as applicable).

 

Applicable Margin” shall mean for any day:

 

(i) with respect to any Initial Term Loan, Amendment No. 1 Delayed Draw Term Loans or Initial Revolving Loan (other than Swingline Loans), (x) initially, 2.25% per annum in the case of any Term SOFR Rate Loan and 1.25% per annum in the case of any ABR Loan and (y) from and after the delivery by the Borrower to the Administrative Agent of the Borrower’s financial statements required to be delivered pursuant to Section 5.04(a) or (b), as applicable, and certificate delivered pursuant to Section 5.04(c), for the first full fiscal quarter of the Borrower completed after the Closing Date, the applicable percentage per annum set forth below under the heading “Adjusted Term SOFR Margin” or “ABR Loan Margin,” as applicable, as determined by reference to the TotalSecured Net Leverage Ratio set forth in the certificate received by the Administrative Agent pursuant to Section 5.04(c),

 

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(A) except for purposes of determining the Applicable Margin during the Covenant Relief Period:

 

Pricing Level Total Secured Net Leverage Ratio Adjusted Term SOFR
Margin
ABR Loan Margin Commitment Fee Rate
I ≥ 3.75 to 1.00 2.503.00% 1.502.00% 0.3500.400%
II < 3.75 to 1.00 and ≥ 3.00 to 1.00 2.252.75% 1.251.75% 0.3000.350%
III < 3.00 to 1.00 and ≥ 2.00 to 1.00 2.002.50% 1.001.50% 0.2500.300%
IV < 2.00 to 1.00 and ≥ 1.00 to 1.00 1.752.25% 0.751.25% 0.2250.275%
V < 1.00 to 1.00 1.502.00% 0.501.00% 0.2000.250%

 

(B) during the Covenant Relief Period:

 

Pricing Level Total Secured Net Leverage Ratio Adjusted Term SOFR
Margin
ABR Loan Margin Commitment Fee Rate
I 4.505.50 to 1.00 3.754.00% 2.753.00% 0.4000.450%
II < 5.50 to 1.00 and ≥ 4.50 to 1.00 3.75% 2.75% 0.400%
IIIII < 4.50 to 1.00 and ≥ 3.75 to 1.00 3.50% 2.50% 0.350%
IIIIV < 3.75 to 1.00 and ≥ 3.00 to 1.00 3.25% 2.25% 0.300%
IVV < 3.00 to 1.00 and ≥ 2.00 to 1.00 3.00% 2.00% 0.250%
V < 2.00 to 1.00 and ≥ 1.00 to 1.00 2.75% 1.75% 0.225%
VI < 1.00 to 1.00 2.50% 1.50% 0.200%

 

(ii) with respect to Swingline Loans, (x) initially, 2.75% per annum and (y) from and after the delivery by the Borrower to the Administrative Agent of the Borrower’s financial statements required to be delivered pursuant to Section 5.04(a) or (b), as applicable, and certificate delivered pursuant to Section 5.04(c), for the first full fiscal quarter of the Borrower completed after the Closing Date, the applicable percentage per annum set forth in the applicable table above under the heading “Adjusted Term SOFR Margin”, as determined by reference to the TotalSecured Net Leverage Ratio set forth in the certificate received by the Administrative Agent pursuant to Section 5.04(c) plus 0.50%; and

 

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(iii) with respect to any Other Term Loan or Other Revolving Loan, the “Applicable Margin” set forth in the Incremental Assumption Agreement, Extension Amendment or Refinancing Amendment (as applicable) relating thereto.

 

Notwithstanding the foregoing, the Applicable Margin with respect to any Initial Revolving Loan that is a Sustainability Loan shall be (x) the rate set forth in clause (i) above that would have otherwise been in effect at such time minus (y) the Sustainability Margin Adjustment. For the avoidance of doubt, the Commitment Fee Rate shall not be reduced by the Sustainability Margin Adjustment.

 

Any increase or decrease in the Applicable Margin or Commitment Fee resulting from a change in the TotalSecured Net Leverage Ratio shall become effective as of the first Business Day immediately following the date on which the Borrower is required to deliver the certificate pursuant to Section 5.04(c). If, as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the TotalSecured Net Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the TotalSecured Net Leverage Ratio would have resulted in a higher Pricing Level for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the applicable Issuing Bank, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code, automatically and without further action by the Administrative Agent, any Lender or any Issuing Bank), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period; provided, that if the Borrower fails to provide a Compliance Certificate when due as required by Section 5.11 for the most recently completed fiscal quarter of the Borrower, the Applicable Margin from the date on which such Compliance Certificate was required to have been delivered shall be based on Pricing Level I until such time as such Compliance Certificate is delivered, at which time the Pricing Level shall be determined by reference to the TotalSecured Net Leverage Ratio as of the last day of the most recently completed fiscal quarter of the Borrower.

 

Applicable Parties” shall have the meaning assigned to such term in Section 8.03(c).

 

Approved Commercial Bank” shall mean a commercial bank with a consolidated combined capital and surplus of at least $5,000,000,000.

 

Approved Electronic Platform” shall have the meaning assigned to such term in Section 8.03(a).

 

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Approved Foreign Bank” shall have the meaning assigned to such term in clause (i) of the definition of the term “Permitted Investments.”

 

Approved Fund” shall have the meaning assigned to such term in Section 9.04(b)(ii).

 

Arranger” shall mean (i) Wells Fargo Securities, LLC, in its capacities as lead arranger and bookrunner, (ii) the Amendment No. 1 Lead Arranger and, (iii) the Amendment No. 2 Lead Arranger and (iv) the Amendment No. 3 Lead Arranger.

  

Asset Sale” shall mean (x) any Disposition (including any sale and lease-back of assets and any mortgage or lease of Real Property) to any person of any asset or assets of the Borrower or any Subsidiary and (y) any sale of any Equity Interests by any Subsidiary to a person other than the Borrower or a Subsidiary.

 

Assignee” shall have the meaning assigned to such term in Section 9.04(b)(i).

 

Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an Assignee, and accepted by the Administrative Agent and the Borrower (if required by Section 9.04), substantially in the form of Exhibit A or such other form as shall be approved by the Administrative Agent and reasonably satisfactory to the Borrower.

 

Attributable Receivables Indebtedness” shall mean the principal amount of Indebtedness (other than any Indebtedness subordinated in right of payment owing by a Receivables Entity to a Receivables Seller or a Receivables Seller to another Receivables Seller in connection with the transfer, sale and/or pledge of Permitted Receivables Facility Assets) which (i) if a Qualified Receivables Facility is structured as a secured lending agreement or other similar agreement, constitutes the principal amount of such Indebtedness or (ii) if a Qualified Receivables Facility is structured as a purchase agreement or other similar agreement, would be outstanding at such time under such Qualified Receivables Facility if the same were structured as a secured lending agreement rather than a purchase agreement or such other similar agreement.

 

Auction Manager” shall have the meaning assigned to such term in Section 2.25(a).

 

Auction Procedures” shall mean auction procedures with respect to Purchase Offers set forth in Exhibit F hereto.

 

Auto Renewal Letter of Credit” shall have the meaning assigned to such term in Section 2.05(c).

 

Availability Period” shall mean, with respect to any Class of Revolving Facility Commitments, the period from and including the Closing Date (or, if later, the effective date for such Class of Revolving Facility Commitments) to but excluding the earlier of the Revolving Facility Maturity Date for such Class and, in the case of each of the Revolving Facility Loans, Revolving Facility Borrowings, Swingline Loans, Swingline Borrowings and Letters of Credit, the date of termination of the Revolving Facility Commitments of such Class.

 

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Available Amount” shall mean, as at any time of determination, an amount, not less than zero in the aggregate, determined on a cumulative basis, equal to, without duplication:

 

(a)           50% of cumulative Consolidated Net Income of the Borrower since the first day of the fiscal quarter of the Borrower during which the Closing Date occurred, plus

 

(b)           the cumulative amounts of all mandatory prepayments declined by Lenders, plus

 

(c)           the Fair Market Value of Investments of the Borrower or any of the Subsidiaries in any Unrestricted Subsidiary made using the Available Amount (not to exceed the amount of such Investments) that has been redesignated as a Restricted Subsidiary or that has been merged or consolidated with or into the Borrower or any of the Subsidiaries, plus

 

(d)           the Net Proceeds of a sale or other Disposition of any Unrestricted Subsidiary that was designated in reliance on the Available Amount (including the issuance or sale of Equity Interests of an Unrestricted Subsidiary) received by the Borrower or any Subsidiary (not to exceed the amount of Investments of the Borrower or any of the Subsidiaries in such Unrestricted Subsidiary made using the Available Amount), plus

 

(e)           to the extent not included in Consolidated Net Income, dividends or other distributions or returns on capital received by the Borrower or any Subsidiary from an Unrestricted Subsidiary that was designated in reliance on the Available Amount (not to exceed the amount of Investments of the Borrower or any of the Subsidiaries in such Unrestricted Subsidiary made using the Available Amount), plus

 

(f)            the Cumulative Qualified Equity Proceeds Amount on such date of determination, minus

 

(g)           the cumulative amount of Investments made with the Available Amount from and after the Closing Date and on or prior to such time (net of any return on such Investments not otherwise included in the Cumulative Qualified Equity Proceeds Amount), minus

 

(h)           the cumulative amount of Restricted Payments and Junior Debt Restricted Payments made with the Available Amount from and after the Closing Date and on or prior to such time.

 

Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement 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 clause (e) of Section 2.14.

 

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Available Unused Commitment” shall mean, with respect to a Revolving Facility Lender under any Class of Revolving Facility Commitments at any time, an amount equal to the amount by which (a) the applicable Revolving Facility Commitment of such Revolving Facility Lender at such time exceeds (b) the applicable Revolving Facility Credit Exposure (excluding the Swingline Exposure) of such Revolving Facility Lender at such time.

 

Bail-In Action” shall mean 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” shall mean, (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).

 

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

 

Bankruptcy Plan” shall have the meaning assigned to such term in Section 9.04(i)(iii).

 

Benchmark” shall mean, initially, with respect to any Term Benchmark Loan, the Term SOFR Rate; provided, that if a Benchmark Transition Event and the related Benchmark Replacement Date have occurred with respect to the Term SOFR Rate or the then-current Benchmark, then “Benchmark” shall mean the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.14.

 

Benchmark Replacement” shall mean, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

 

(1)           the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;

 

(2)           the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in Dollars at such time in the United States and (b) the related Benchmark Replacement Adjustment;

 

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If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for purposes of this Agreement and the other Loan Documents. Notwithstanding anything herein or in any other Loan Document to the contrary, in determining the Benchmark Replacement, the Administrative Agent will consider in good faith any proposal reasonably requested by the Borrower and not adverse to the Lenders that is intended to prevent the use of the Benchmark Replacement from resulting in a deemed exchange of any Indebtedness hereunder under Section 1001 of the Code.

 

Benchmark Replacement Adjustment” shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such 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 for the applicable Corresponding Tenor giving due consideration to (i) 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 on the applicable Benchmark Replacement Date and/or (ii) 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 syndicated credit facilities denominated in Dollars at such time.

 

Benchmark Replacement Conforming Changes” shall mean, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of Borrowing Requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides, after consultation with the Borrower, in its reasonable discretion is appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides in its reasonable discretion that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides in consultation with the Borrower is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

 

Benchmark Replacement Date” shall mean, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:

 

(1)           in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) 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

 

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(2)           in the case of clause (3) 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 no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) 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, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) above 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” shall mean, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:

 

(1)           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);

 

(2)           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 NYFRB, the CME Term SOFR Administrator, 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), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided, that at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

 

(3) 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 no longer, or as of a specified future date will no longer be, representative.

 

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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” shall mean, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14.

 

Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

 

Beneficial Ownership Regulation” shall mean 31 CFR § 1010.230.

 

Benefit Plan” shall mean 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.”

 

BHC Act Affiliate” of a party shall mean an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

 

Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America.

 

Board of Directors” shall mean, as to any person, the board of directors, the board of managers, the sole manager or other governing body of such person.

 

Bona Fide Debt Fund” shall mean any fund or investment vehicle that is primarily engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and other similar extensions of credit in the ordinary course.

 

Borrower” shall have the meaning assigned to such term in the introductory paragraph of this Agreement, together with any permitted successor thereto in accordance with Section 6.05(g) or (n). “Borrower Materials” shall have the meaning assigned to such term in Section 9.17.

 

Borrowing” shall mean a group of Loans of a single Type under a single Facility, and made on a single date and, in the case of Term Benchmark Loans, as to which a single Interest Period is in effect.

 

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Borrowing Minimum” shall mean (a) in the case of Term Benchmark Loans (other than Amendment No. 1 Delayed Draw Term Loans), $1,000,000, (b) in the case of ABR Loans (other than Amendment No. 1 Delayed Draw Term Loans), $1,000,000, (c) in the case of Amendment No. 1 Delayed Draw Term Loans (whether such Loans are Term Benchmark Loans or ABR Loans), $5,000,000 and (d) in the case of Swingline Loans, $500,000 or such other amount agreed to by the Swingline Lender.

 

Borrowing Multiple” shall mean (a) in the case of Term Benchmark Loans, $500,000, (b) in the case of ABR Loans, $250,000 and (c) in the case of Swingline Loans, $100,000 or such other amount agreed to by the Swingline Lender.

 

Borrowing Request” shall mean a request by the Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit D-1 or another form approved by the Administrative Agent.

 

Business Day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.

 

Capitalized Lease Obligations” shall mean, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on the balance sheet (excluding the footnotes thereto) in accordance with GAAP; provided, that all obligations that are or would be characterized as an operating lease as determined in accordance with GAAP as in effect on December 31, 2021 (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease Obligation) for purposes of this Agreement regardless of any change in GAAP following December 31, 2021 (or any change in the implementation in GAAP for future periods that are contemplated as of December 31, 2021) that would otherwise require such obligation to be recharacterized as a Capitalized Lease Obligation.

 

Capitalized Software Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by the Borrower and the Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of the Borrower and the Subsidiaries.

 

Cash Collateralize” shall mean to pledge and deposit with or deliver to the Collateral Agent, for the benefit of one or more of the Issuing Banks or Lenders, as collateral for Revolving L/C Exposure or obligations of the Lenders to fund participations in respect of Revolving L/C Exposure, cash or deposit account balances or, if the Collateral Agent and each Issuing Bank shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Collateral Agent and each applicable Issuing Bank. “Cash Collateral” and “Cash Collateralization” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 

Cash Management Agreement” shall mean any agreement to provide to the Borrower or any Subsidiary cash management services for collections, treasury management services (including controlled disbursement, overdraft, automated clearing house fund transfer services, return items and interstate depository network services), any demand deposit, payroll, trust or operating account relationships, commercial credit cards, merchant card, purchase or debit cards, non-card e-payables services, and other cash management services, including electronic funds transfer services, lockbox services, stop payment services and wire transfer services.

 

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Cash Management Bank” shall mean any person that (i) is (or any Affiliate of any person that is) an Agent, an Arranger or a Lender on the Closing Date (in the case of any Cash Management Agreement in existence on the Closing Date) and that enters into or is a party to a Cash Management Agreement with the Borrower or any of its Subsidiaries, in each case, in its capacity as a party to such Cash Management Agreement or (ii) is (or any Affiliate of any person that is) an Agent, an Arranger or a Lender at the time it enters into a Cash Management Agreement (in the case of any Cash Management Agreement entered into after the Closing Date) with the Borrower or any of its Subsidiaries, in each case, in its capacity as a party to such Cash Management Agreement.

 

CFC” shall mean a controlled foreign corporation within the meaning of Section 957 of the Code.

 

Change in Law” shall mean (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender (or, for purposes of Section 2.15(b), by any Lending Office of such Lender or by such Lender’s holding company, if any) with any written request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date; provided, however, that notwithstanding anything herein to the contrary, (x) all requests, rules, guidelines or directives under or issued in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act, all interpretations and applications thereof and any compliance by a Lender with any request or directive relating thereto and (y) all requests, rules, guidelines or directives promulgated under or in connection with, all interpretations and applications of, and any compliance by a Lender with any request or directive relating to the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case under clauses (x) and (y) above be deemed to be a “Change in Law” but only to the extent it is the general policy of a Lender to impose applicable increased costs or costs in connection with capital adequacy requirements similar to those described in clauses (a) and (b) of Section 2.15 generally on other similarly situated borrowers under similar circumstances under agreements permitting such impositions.

 

Change of Control” shall mean (a) the acquisition of beneficial ownership by any person or group, other than the Permitted Holders (or any parent of Holdings owned directly or indirectly by the Permitted Holders), of Equity Interests representing 40% or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings and the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings beneficially owned by such person or group is greater than the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings beneficially owned by the Permitted Holders, unless the Permitted Holders otherwise have the right (pursuant to contract, proxy or otherwise), directly or indirectly, to designate, nominate or appoint (and do so designate, nominate or appoint) directors of Holdings having a majority of the aggregate votes on the Board of Directors of Holdings or (b) the Borrower ceases to be directly or indirectly wholly owned by Holdings (or any successor of Holdings that has become a Guarantor in lieu of Holdings).

 

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For purposes of this definition, including other defined terms used herein in connection with this definition and notwithstanding anything to the contrary in this definition or any provision of Section 13d-3 of the Exchange Act, (i) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act as in effect on the date hereof, (ii) the phrase “person or group” is within the meaning of Section 13(d) or 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or group or its subsidiaries and any person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, (iii) if any group includes one or more Permitted Holders, the issued and outstanding Equity Interests of the Borrower, directly or indirectly owned by the Permitted Holders that are part of such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of this definition, (iv) a person or group shall not be deemed to beneficially own Equity Interests to be acquired by such person or group pursuant to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Equity Interests in connection with the transactions contemplated by such agreement unless such person or group has the right to control the voting of such Equity Interests and (v) a person or group will not be deemed to beneficially own the Equity Interests of another person as a result of its ownership of Equity Interests or other securities of such other person’s parent (or related contractual rights) unless it owns 50% or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of such person’s parent.

 

Charges” shall have the meaning assigned to such term in Section 9.09.

 

“City of Conway Revenue Bonds” shall mean the Taxable Industrial Development Revenue Improvement and Refunding Bonds (Westrock Beverage Company, LLC Project), Series 2024, in principal amount not to exceed $300,000,000 to be issued by the City of Conway, Arkansas pursuant to a Trust Indenture between the City of Conway, Arkansas, and First Security Bank, as trustee, to be dated as of the date of its execution (“City of Conway Trust Indenture”). It is understood that a portion of the proceeds of the City of Conway Revenue Bonds will be utilized to refund the City of Conway, Arkansas Taxable Industrial Development Revenue Bond (Westrock Beverage Company, LLC Project), Series 2021, outstanding in the principal amount of $10,000,000.

 

“City of Conway Bond Transactions” shall mean the (a) the purchase by Westrock Beverage Solutions, LLC of the City of Conway Revenue Bonds, (b) the entry into the Lease Agreement to be dated as of the date of its execution, between the City of Conway, Arkansas and Westrock Beverage Company, LLC (“Conway Lease Agreement”) and (c) the performance by Westrock Beverage Company, LLC of its obligations pursuant to the Conway Lease Agreement and the City of Conway Trust Indenture.

 

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Class” shall mean (a) when used in respect of any Loan or Borrowing, whether such Loan or the Loans comprising such Borrowing are Initial Term Loans, Other Term Loans, Amendment No. 1 Delayed Draw Term Loans, Initial Revolving Loans or Other Revolving Loans; and (b) when used in respect of any Commitment, whether such Commitment is in respect of a commitment to make Initial Term Loans, Other Term Loans, Amendment No. 1 Delayed Draw Term Loans, Initial Revolving Loans or Other Revolving Loans. Other Term Loans or Other Revolving Loans that have different terms and conditions (together with the Commitments in respect thereof) from the Initial Term Loans or the Initial Revolving Loans, respectively, or from other Other Term Loans or other Other Revolving Loans, as applicable, shall be construed to be in separate and distinct Classes.

 

Closing Date” shall mean the first date on which the conditions set forth in Section 4.01 are satisfied (or waived in accordance with Section 9.08), which date occurred on August 29, 2022.

 

Closing Date Investors” shall mean Persons other than the Management Investors providing a portion of the Equity Raise on the Closing Date.

 

Closing Date Refinancing” shall mean the termination of the commitments under the Existing Credit Agreements, the repayment of all outstanding principal and accrued and unpaid interest and fees owing thereunder and the termination of all guarantees and security thereunder.

 

CME Term SOFR Administrator” shall mean CME Group Benchmark Administration Limited as administrator of Term SOFR (or a successor administrator).

 

Code” shall mean the Internal Revenue Code of 1986, as amended.

 

Collateral” shall mean all the “Collateral” and all the “Mortgaged Property”, in each case, as defined in any Security Document and shall also include all other property that is subject to any Lien in favor of the Administrative Agent, the Collateral Agent or any Subagent for the benefit of the Secured Parties pursuant to any Security Document; provided, that notwithstanding anything to the contrary herein or in any Security Document or other Loan Document, in no case shall the Collateral include any Excluded Property.

 

Collateral Agent” shall have the meaning assigned to such term in the introductory paragraph of this Agreement, together with its permitted successors and assigns.

 

Collateral Agreement” shall mean the Collateral Agreement substantially in the form of Exhibit L dated as of the Closing Date, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, among the Borrower, each Guarantor and the Collateral Agent.

 

Collateral and Guarantee Requirement” shall mean the requirement that (in each case, subject to the last three paragraphs of Section 5.10, and subject to Schedule 5.14 (which, for the avoidance of doubt, shall override the applicable clauses of this definition of “Collateral and Guarantee Requirement”)):

 

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(a)           on the Closing Date, the Collateral Agent shall have received from the Borrower and each Guarantor, a counterpart of the Collateral Agreement and a counterpart of the Guarantee Agreement, in each case duly executed and delivered on behalf of such person;

 

(b)           on the Closing Date, (i)(x) all outstanding Equity Interests directly owned by the Loan Parties and Holdings, other than Excluded Securities, and (y) all Indebtedness owing to any Loan Party and Holdings, other than Excluded Securities, shall have been pledged or assigned for security purposes pursuant to the Security Documents and (ii) the Collateral Agent shall have received certificates or other instruments (if any) representing such Equity Interests and any notes or other instruments required to be delivered on the Closing Date pursuant to the applicable Security Documents, together with stock powers, note powers or other instruments of transfer with respect thereto (as applicable) endorsed in blank;

 

(c)           in the case of any person that becomes a Guarantor after the Closing Date, the Collateral Agent shall have received (i) a supplement to the Guarantee Agreement and (ii) supplements to the Collateral Agreement and any other Security Documents, if applicable, in the form specified therefor or otherwise reasonably acceptable to the Administrative Agent, in each case, duly executed and delivered on behalf of such Guarantor;

 

(d)           after the Closing Date (i) (x) all outstanding Equity Interests of any person that becomes a Guarantor after the Closing Date and that are held by a Loan Party and (y) all Equity Interests directly owned or acquired by a Loan Party after the Closing Date, in each case, other than Excluded Securities, and (z) all Indebtedness owing to any Loan Party, other than Excluded Securities, shall have been pledged or assigned for security purposes pursuant to the Security Documents and (ii) the Collateral Agent shall have received certificates, updated share registers (if applicable and necessary under the laws of any applicable jurisdiction in order to create a perfected security interest in such Equity Interests) or other instruments (if any) representing such Equity Interests and any notes or other instruments required to be delivered pursuant to the applicable Security Documents, together with stock powers, note powers or other instruments of transfer with respect thereto (as applicable) endorsed in blank;

 

(e)            except as otherwise contemplated by this Agreement or any Security Document, all documents and instruments, including Uniform Commercial Code financing statements, and filings with the United States Copyright Office and the United States Patent and Trademark Office, and all other actions reasonably requested by the Collateral Agent (including those required by applicable Requirements of Law) to be delivered, filed, registered or recorded to create the Liens intended to be created by the Security Documents (in each case, including any supplements thereto) and perfect such Liens to the extent required by, and with the priority required by, the Security Documents, shall have been delivered, filed, registered or recorded or delivered to the Collateral Agent for filing, registration or the recording substantially concurrently with, or promptly following, the execution and delivery of each such Security Document;

 

23 

 

 

(f)            evidence of the insurance (if any) required by the terms of Section 5.02 hereof shall have been received by the Collateral Agent; and

 

(g)           after the Closing Date, the Collateral Agent shall have received (i) such other Security Documents as may be required to be delivered pursuant to Section 5.10 or the Security Documents and (ii) upon reasonable request by the Collateral Agent, evidence of compliance with any other requirements of Section 5.10.

 

Notwithstanding anything to the contrary in this Agreement or in the other Loan Documents, it is understood that to the extent any Collateral (other than Collateral with respect to which a Lien may be perfected by (A) the filing of a Uniform Commercial Code financing statement, (B) delivery and taking possession of stock certificates of the Borrower and its subsidiaries or (C) the filing of a short-form security agreement with the United States Patent and Trademark Office or the United States Copyright Office) is not or cannot be provided or the security interest of the Collateral Agent therein is not or cannot be perfected on the Closing Date (or, as applicable, the closing date of any Incremental Facility) after the use of commercially reasonable efforts by the Borrower to do so and without undue burden and expense, then the provision and/or perfection of the security interest in such Collateral shall not constitute a condition precedent to any Credit Event on the Closing Date (or, as applicable, the closing date of any Incremental Facility) but, instead, shall be required to be delivered and perfected within 90 days after the Closing Date or such earlier date specified therefor on Schedule 5.14 (subject to extension by the Administrative Agent in its reasonable discretion).

 

Commitment Fees” shall have the meaning assigned to such term in Section 2.12(a).

 

Commitments” shall mean (a) with respect to any Lender, such Lender’s Revolving Facility Commitment, Term Facility Commitment and Amendment No. 1 Delayed Draw Term Loan Commitment and (b) with respect to the Swingline Lender, the Swingline Lender’s Swingline Commitment (it being understood that a Swingline Commitment does not increase the Swingline Lender’s Revolving Facility Commitment).

 

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

 

Communications” shall mean, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent, the Collateral Agent or any Lender by means of electronic communications pursuant to this Section, including through an Approved Electronic Platform.

 

Compliance Certificate” shall mean a certificate of the chief financial officer or the treasurer of the Borrower substantially in the form attached as Exhibit G.

 

Consolidated Debt” shall mean, as of any date of determination, the sum of (without duplication) the principal amount of (x) all Indebtedness for borrowed money of the Borrower and the Subsidiaries and (y) guarantees by the Borrower and the Subsidiaries of Indebtedness for borrowed money, in each case determined on a consolidated basis on such date.

 

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Consolidated Interest Expense” shall mean the sum of (a) cash interest expense (including that attributable to Capitalized Lease Obligations), net of cash interest income, of the Borrower and the Subsidiaries with respect to all outstanding Indebtedness of the Borrower and the Subsidiaries, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under hedging agreements plus (b) non-cash interest expense resulting solely from (i) the amortization of original issue discount from the issuance of Indebtedness of the Borrower and the Subsidiaries at less than par and (ii) pay in kind interest expense of the Borrower and the Subsidiaries, plus (c) the amount of cash dividends or distributions made by the Borrower and the Subsidiaries in respect of preferred Equity Interests (including all Disqualified Stock), but excluding, for the avoidance of doubt, (i) amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses and any other amounts of non-cash interest other than specifically referred to in clause (b) above (including as a result of the effects of acquisition method accounting or pushdown accounting), (ii) non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under hedging agreements or other derivative instruments pursuant to FASB Accounting Standards Codification No. 815-Derivatives and Hedging, (iii) any one-time cash costs associated with breakage in respect of hedging agreements for interest rates, (iv) commissions, discounts, yield and other fees and charges (but, for the avoidance of doubt, not including any interest expense) incurred in connection with any Qualified Receivables Facilities, (v) all non-recurring cash interest expense or “additional interest” for failure to timely comply with registration rights obligations, (vi) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect to any Investment, all as calculated on a consolidated basis in accordance with GAAP, (vii) any payments with respect to make-whole premiums or other breakage costs of any Indebtedness, (viii) penalties and interest relating to Taxes, (ix) accretion or accrual of discounted liabilities not constituting Indebtedness, (x) any interest expense attributable to a direct or indirect parent entity resulting from push down accounting and (xi) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting.

 

Consolidated Net Income” shall mean, for any period, the net income (loss) of the Borrower and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, excluding, without duplication:

 

(a)           extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses (other than as described in clause (a)(x) of the definition of “Adjusted Consolidated EBITDA”) (including any such accruals or reserves in respect of any extraordinary, non-recurring or unusual items),

 

(b)           the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such period to the extent included in Consolidated Net Income,

 

(c)           Transaction Costs,

 

(d)           the net income for such period of any person that is an Unrestricted Subsidiary and any person that is not a Subsidiary or that is accounted for by the equity method of accounting; provided, that Consolidated Net Income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Permitted Investments (or, if not paid in cash or Permitted Investments, but later converted into cash or Permitted Investments, upon such conversion) by such person to the Borrower or a Subsidiary thereof during such period,

 

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(e)           any fees and expenses (including any transaction or retention bonus or similar payment, any earnout, contingent consideration obligation or purchase price adjustment) incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, asset disposition, issuance or repayment of debt, issuance of equity securities, refinancing transaction or amendment or other modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case whether or not successful (including, for the avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with FASB Accounting Standards Codification 805 and gains or losses associated with FASB Accounting Standards Codification 460),

 

(f)            any income (loss) for such period attributable to the early extinguishment of Indebtedness, hedging agreements or other derivative instruments,

 

(g)           accruals and reserves that are established or adjusted as a result of the Transactions or within 12 months after the Closing Date in accordance with GAAP (including any adjustment of estimated payouts on existing earn-outs) or changes as a result of the adoption or modification of accounting policies during such period,

 

(h)           all Non-Cash Compensation Expenses,

 

(i)            any income (loss) attributable to deferred compensation plans or trusts,

 

(j)            any income (loss) from investments recorded using the equity method of accounting (but including any cash dividends or distributions actually received by the Borrower or any Subsidiary in respect of such investment),

 

(k)           any gain (loss) on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business) or income (loss) from discontinued operations (provided, that, notwithstanding anything to the contrary herein or in any classification under GAAP of any person, business, assets or operations in respect of which a definitive agreement for the disposition, abandonment, transfer, closure or discontinuation of operations thereof has been entered into as discontinued operations, at the Borrower’s option, no pro forma effect shall be given to any discontinued operations (and the income or loss attributable to any such person, business, assets or operations shall not be excluded for any purposes hereunder) until such disposition, abandonment, transfer, closure or discontinuation of operations shall have been consummated),

 

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(l)            any non-cash gain (loss) attributable to the mark-to-market movement in the valuation of hedging obligations or other derivative instruments pursuant to FASB Accounting Standards Codification 815-Derivatives and Hedging or mark-to-market movement of other financial instruments pursuant to FASB Accounting Standards Codification 825-Financial Instruments in such Test Period; provided, that any cash payments or receipts relating to transactions realized in a given period shall be taken into account in such period,

 

(m)          any non-cash gain (loss) related to currency remeasurements of Indebtedness, net loss or gain resulting from hedging agreements for currency exchange, interest rate or commodities risk and revaluations of intercompany balances and other balance sheet items,

 

(n)           any non-cash expenses, accruals or reserves related to adjustments to historical Tax exposures or non-cash charges for deferred Tax asset valuation allowances (except to the extent reversing a previously recognized increase to Consolidated Net Income), provided, in each case, that the cash payment in respect thereof in such future period shall be subtracted from Consolidated Net Income for the period in which such cash payment was made,

 

(o)           any impairment charge or asset write-off or write-down (other than with respect to Inventory or Accounts but including related to intangible assets (including goodwill), long-lived assets and investments in debt and equity securities),

 

(p)           to the extent covered by insurance and actually reimbursed, or, so long as such person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (i) not denied by the applicable carrier in writing within one hundred and eighty (180) days and (ii) in fact reimbursed within three hundred and sixty five (365) days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within three hundred and sixty five (365) days), expenses with respect to liability or casualty events or business interruption shall be excluded, and

 

(q)           solely for purposes of calculating the Available Amount, the Consolidated Net Income for such period of any Subsidiary of such person shall be excluded to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of its Consolidated Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such subsidiary or its equityholders, unless such restrictions with respect to the payment of dividends or similar distributions have been legally waived; provided, that the Consolidated Net Income of such person shall be increased by the amount of dividends or other distributions or other payments actually paid in cash (or converted into cash) by any such Subsidiary to such person or a Subsidiary of such person (subject to the provisions of this clause (q)), to the extent not already included therein.

 

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There shall be excluded from Consolidated Net Income for any period the effects from applying acquisition method accounting, including applying acquisition method accounting to inventory, property and equipment, loans and leases, software and other intangible assets and deferred revenue (including deferred costs related thereto and deferred rent) required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the Borrower and the Subsidiaries), as a result of any acquisition or Investment consummated prior to the Closing Date and any Permitted Acquisition or other Investment permitted hereunder or the amortization or write-off of any amounts thereof.

 

In addition, to the extent not already included in Consolidated Net Income, Consolidated Net Income shall include (i) the amount of proceeds received or due from business interruption insurance or reimbursement of expenses and charges that are covered by indemnification, insurance and other reimbursement provisions in connection with any acquisition or other Investment or any disposition of any asset permitted hereunder or that occurred prior to the Closing Date (net of any amount so added back in any prior period to the extent not so reimbursed within a two-year period) and (ii) the amount of any cash Tax benefits related to the Tax amortization of intangible assets in such period.

 

Consolidated Total Assets” shall mean, as of any date of determination, the total assets of the Borrower and the Subsidiaries, determined on a consolidated basis in accordance with GAAP, but excluding amounts attributable to Investments in Unrestricted Subsidiaries, as set forth on the consolidated balance sheet of the Borrower as of the last day of the Test Period ending immediately prior to such date for which financial statements of the Borrower have been delivered (or were required to be delivered) pursuant to Section 5.04(a) or 5.04(b), as applicable. Consolidated Total Assets shall be determined on a Pro Forma Basis.

 

Consolidated Total Net Debt” shall mean, as of any date of determination, (i) Consolidated Debt on such date less (ii) the Unrestricted Cash Amount on such date.

 

Continuing Letter of Credit” shall have the meaning assigned to such term in Section 2.05(k).

 

Contribution Indebtedness” shall mean Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount not greater than 100% of the aggregate amount of cash contributions (including such contributions in exchange for Equity Interests in the Borrower, but excluding Specified Equity Contributions) (other than any such cash contributions that have been applied to increase the Available Amount or otherwise applied to increase any basket or exception under this Agreement) made to the equity capital of the Borrower after the Closing Date; provided that proceeds of the Amendment No. 3 Equity Contribution will not be included in any determination of the Available Amount or otherwise applied to increase any basket or exception under this Agreement.

 

Control” shall mean 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 ownership of voting securities, by contract or otherwise, and “Controls,” “Controlled” and “Controlling” shall have meanings correlative thereto.

 

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Converted Restricted Subsidiary” shall have the meaning assigned to such term in clause I the definition of the term “Adjusted Consolidated EBITDA.”

 

Converted Unrestricted Subsidiary” shall have the meaning assigned to such term clause II in the definition of the term “Adjusted Consolidated EBITDA.”

 

Corresponding Tenor” with respect to any Available Tenor shall mean, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

 

Covenant Relief Period” shall mean the period commencing on the Amendment No. 2 Effective Date and ending on the earlier to occur of (i) April 1, 20252026 and (ii) the Covenant Relief Period Early Termination Date.

 

Covenant Relief Period Early Termination Date” shall mean, that date following December 31, 2023June 30, 2024 on which the Borrower, at its option, shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the Borrower (i) stating the Borrower’s election to terminate the Covenant Relief Period, (ii) setting forth a proper calculation of the TotalSecured Net Leverage Ratio as of the last day of the most recent Test Period showing that such TotalSecured Net Leverage Ratio on a Pro Forma Basis is less than 3.754.00 to 1.00 and (iii) attaching updated Projections in form and substance reasonably acceptable to the Administrative Agent that demonstrate compliance from the date thereof until the then-existing Latest Maturity Date with the TotalSecured Net Leverage Ratio Financial Covenant (for the avoidance of doubt, as in effect prior to giving effect to the Covenant Relief Period).

 

Covenant Relief TotalSecured Net Leverage Ratio Financial Covenant” shall have the meaning assigned to such term in Section 6.09(a)(ii).

 

Covered Entity” shall mean any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

Covered Party” shall have the meaning assigned to such term in Section 9.24.

 

Credit Event” shall mean each Borrowing (but not, for the avoidance of doubt, the continuation of any Loan or conversion of any Loan from one Type to another) and each issuance, amendment, extension or renewal of a Letter of Credit or increase of the stated amount of a Letter of Credit.

 

Cumulative Qualified Equity Proceeds Amount” shall mean, at any date of determination, an amount equal to, without duplication:

 

(a)           100% of the aggregate net proceeds (determined in a manner consistent with the definition of “Net Proceeds”), including cash and the Fair Market Value of tangible assets other than cash, received by the Borrower after the Closing Date from the issue or sale of its Qualified Equity Interests, including Qualified Equity Interests of the Borrower issued upon conversion of Indebtedness or Disqualified Stock to the extent the Borrower or its Wholly Owned Subsidiaries had received the Net Proceeds of such Indebtedness or Disqualified Stock and the receipt of such proceeds did not increase the amount available for incurrences of Indebtedness, Investments, Restricted Payments or Junior Debt Restricted Payments pursuant to any other provision of this Agreement; plus

 

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(b)           100% of the aggregate amount received by the Borrower or its Wholly Owned Subsidiaries in cash and the Fair Market Value of assets other than cash received by the Borrower or its Wholly Owned Subsidiaries after the Closing Date from (without duplication of amounts):

 

(i)             the sale or other disposition (other than to the Borrower or any Subsidiary) of any Investment made by the Borrower and its Subsidiaries and repurchases and redemptions of such Investment from the Borrower and its Subsidiaries by any person (other than the Borrower and its Subsidiaries) to the extent that (x) such Investment was justified as using a portion of the Available Amount pursuant to clause (X) of Section 6.04(j) and (y) the Net Proceeds thereof are not required to be applied pursuant to Section 2.11(b);

 

(ii)            the sale (other than to the Borrower or a Subsidiary) of the Equity Interests of an Unrestricted Subsidiary to the extent that (x) the designation of such Unrestricted Subsidiary was justified as using a portion of the Available Amount pursuant to clause (X) of Section 6.04(j) and (y) the Net Proceeds thereof are not required to be applied pursuant to Section 2.11(b); or

 

(iii)           to the extent not included in the calculation of Consolidated Net Income for the relevant period, a distribution, dividend or other payment from an Unrestricted Subsidiary to the extent relating to any portion of the Investment therein made pursuant to clause (X) of Section 6.04(j);

 

(iii)          provided that proceeds of the Amendment No. 3 Equity Contribution will not be included in any determination of the Available Amount or otherwise applied to increase any basket or exception under this Agreement.

 

Cure Amount” shall have the meaning assigned to such term in Section 7.02(a).

 

Customary Bridge Financings” shall mean any bridge financing so long as the long-term debt into which such bridge financing is to be converted has a final maturity date (after giving effect to automatic rollovers and extensions, if any) no earlier than the Latest Maturity Date.

 

Daily Simple SOFR” shall mean, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day “SOFR Determination Date”) that is five (5) Business Days prior to (i) if such SOFR Rate Day is a Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a Business Day, the Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower. For the avoidance of doubt, if Daily Simple SOFR as determined pursuant to the foregoing would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

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Debtor Relief Laws” shall mean the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, arrangement, receivership, insolvency, reorganization, examination, administration or similar debtor relief laws of the United States of America or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

Default” shall mean any event or condition that upon notice, lapse of time or both would constitute an Event of Default.

 

Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

Defaulting Lender” shall mean, subject to Section 2.24, 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 or (ii) pay to the Administrative Agent, any Issuing Bank, 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 Loan) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, any Issuing Bank, any Lender or the Swingline Lender in writing that it does not intend or expect to comply with its funding obligations hereunder or generally under other agreements in which it commits to extend credit, 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, (iii) taken any action in furtherance of, or indicated its consent to, approval or acquiescence in any such proceeding or appointment, or (iv) 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 of America or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.24) upon delivery of written notice of such determination to the Borrower, each Issuing Bank, the Swingline Lender and each Lender.

 

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Delaware Divided LLC” shall mean any Delaware LLC which has been formed as a consequence of a Delaware LLC Division (excluding any dividing Delaware LLC that survives a Delaware LLC Division).

 

Delaware LLC” shall mean any limited liability company organized or formed under the laws of the State of Delaware.

 

Delaware LLC Division” shall mean the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.

 

Designated Non-Cash Consideration” shall mean the Fair Market Value of non-cash consideration received by the Borrower or any of its Subsidiaries in connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth such valuation, less the amount of cash or cash equivalents received in connection with a subsequent disposition of such Designated Non-Cash Consideration.

 

Dispose” or “Disposed of” shall mean to convey, sell, lease, sell and lease-back, assign, farm-out, transfer or otherwise dispose of any property, business or asset (including to a Delaware Divided LLC pursuant to a Delaware LLC Division). The term “Disposition” shall have a correlative meaning to the foregoing. Notwithstanding anything to the contrary herein, “Dispose”, “Disposed of” and “Disposition” shall be deemed not to include any issuance by the Borrower of any of its Equity Interests to another person.

 

Disposed EBITDA” shall mean, with respect to any Sold Entity or Business or Converted Unrestricted Subsidiary for any period, the amount for such period of Adjusted Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to the Borrower and the Subsidiaries in the definition of the term “Adjusted Consolidated EBITDA” (and in the component financial definitions used therein) were references to such Sold Entity or Business and its subsidiaries or to such Converted Unrestricted Subsidiary and its subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business or Converted Unrestricted Subsidiary.

 

Disqualified Lender” shall mean (i) the persons identified as “Disqualified Institutions” in writing to the Arranger by the Borrower on or prior to the Closing Date, (ii) any other person identified by name in writing to the Administrative Agent after the Closing Date to the extent such person is or becomes a competitor of the Borrower or its Subsidiaries and (iii) any Affiliate of any person referred to in clause (i) or (ii) above that is clearly identifiable as such by name; provided, that a “competitor” or an Affiliate of a competitor shall not include any Bona Fide Debt Fund; provided, further, that no updates to the list of Disqualified Lenders shall be deemed to retroactively disqualify any parties that have previously acquired an assignment or participation interest in respect of the Loans or the Commitments.

 

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Disqualified Stock” shall mean, with respect to any person, any Equity Interests of such person that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests of the Borrower), pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests of the Borrower), in whole or in part, (c) provides for the scheduled, mandatory payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Stock, in the case of each of the foregoing clauses (a), (b), (c) and (d), prior to the date that is ninety-one (91) days after the Latest Maturity Date in effect at the time of issuance thereof and except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Loan Obligations that are accrued and payable and the termination of the Commitments (provided, that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or are so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock). Notwithstanding the foregoing: (i) any Equity Interests issued to any employee or consultant or to any plan for the benefit of employees or consultants of the Borrower or the Subsidiaries or by any such plan to such employees or consultants shall not constitute Disqualified Stock solely because they may be required to be repurchased by the Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; and (ii) any class of Equity Interests of such person that by its terms authorizes such person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock. For the avoidance of doubt, in no event shall any preferred stock issued on the Closing Date constitute Disqualified Stock.

 

Dollars” or “$” shall mean lawful money of the United States of America.

 

Domestic Subsidiary” shall mean any Subsidiary that is not a Foreign Subsidiary.

 

DQ List” shall have the meaning assigned to such term in Section 9.04(i)(iv).

 

EEA Financial Institution” shall mean (a) any institution established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) above, or (c) any institution established in an EEA Member Country that is a subsidiary of an institution described in clause (a) or (b) above and is subject to consolidated supervision with its parent.

 

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

 

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EEA Resolution Authority” shall mean 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.

 

Environment” shall mean ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources such as flora and fauna, the workplace or as otherwise defined in any Environmental Law.

 

Environmental Laws” shall mean all applicable laws (including common law), rules, regulations, codes, ordinances, orders, binding agreements, decrees or judgments, promulgated or entered into by or with any Governmental Authority, relating to the protection of the Environment, preservation or reclamation of natural resources, the release or threatened release of any Hazardous Materials or, to the extent relating to exposure to Hazardous Materials, the protection of human health or safety.

 

Environmental Permits” shall have the meaning assigned to such term in Section 3.16.

 

Equity Interests” of any person shall mean any and all shares, interests, rights to purchase or otherwise acquire, warrants, options, participations or other equivalents of or interests in (however designated) equity or ownership of such person, including any preferred stock (including any preferred equity certificates (and any other similar instruments)), any limited or general partnership interest and any limited liability company membership interest, and any securities or other rights or interests convertible into or exchangeable for any of the foregoing, but excluding (i) any Indebtedness convertible into or exchangeable for any of the foregoing and (ii) any Permitted Call Spread Swap Agreements.

 

Equity Raise” shall mean the proceeds received by the Borrower from the SPAC Merger or other capital contributions or investments in the equity of the Borrower or a direct or indirect parent of the Borrower.

 

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

 

ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with the Borrower or a Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

 

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ERISA Event” shall mean (a) any Reportable Event or the requirements of Section 4043(b) of ERISA apply with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) with respect to any Plan, the failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA, whether or not waived; (c) a determination that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (d) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (e) the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan; (f) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan under Section 4042 of ERISA; (g) the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (h) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower, a Subsidiary or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA, or in “endangered” or “critical” status, within the meaning of Section 432 of the Code or Section 305 of ERISA.

 

EU Bail-In Legislation Schedule” shall mean 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” shall have the meaning assigned to such term in Section 7.01.

 

Exchange Act” shall mean the United States Securities Exchange Act of 1934, as amended from time to time.

 

Excluded Indebtedness” shall mean all Indebtedness not incurred in violation of Section 6.01.

 

Excluded Property” shall have the meaning assigned to such term in Section 5.10.

 

Excluded Securities” shall mean any of the following:

 

(a)           any Equity Interests or Indebtedness with respect to which the Collateral Agent and the Borrower reasonably agree that the cost or other consequences of pledging such Equity Interests or Indebtedness in favor of the Secured Parties under the Security Documents (including Tax consequences) are likely to be excessive in relation to the value to be afforded thereby;

 

(b)           any Equity Interests or Indebtedness to the extent, and for so long as, the pledge thereof would be prohibited by any Requirement of Law (in each case, except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code and other applicable law);

 

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(c)           any Equity Interests of any person that is not the Borrower or a Wholly Owned Subsidiary to the extent (A) that a pledge thereof to secure the Secured Obligations (as defined in the Collateral Agreement) is prohibited by (i) any applicable organizational documents, joint venture agreement, shareholder agreement, or similar agreement or (ii) any other contractual obligation with an unaffiliated third party not in violation of Section 6.08 that was existing on the Closing Date or at the time of the acquisition of such person and was not created in contemplation of such acquisition but, in the case of subclause (A), only to the extent, and for so long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by the Uniform Commercial Code or any other Requirement of Law, (B) any organizational documents, joint venture agreement, shareholder agreement, or similar agreement (or other contractual obligation referred to in subclause (A)(ii) above) prohibits such a pledge without the consent of any other party thereto; provided, that this clause (B) shall not apply if (1) such other party is a Loan Party or a Wholly Owned Subsidiary or (2) consent has been obtained to consummate such pledge (it being understood that the foregoing shall not be deemed to obligate the Borrower or any Subsidiary to obtain any such consent) and for so long as such organizational documents, joint venture agreement, shareholder agreement or similar agreement (or other contractual obligation referred to in subclause (A)(ii) above) or replacement or renewal thereof is in effect, or (C) a pledge thereof to secure the Secured Obligations (as defined in the Collateral Agreement) would give any other party (other than a Loan Party or a Wholly Owned Subsidiary) to any organizational documents, joint venture agreement, shareholder agreement or similar agreement governing such Equity Interests the right to terminate its obligations thereunder, but only to the extent, and for so long as, such right of termination is not terminated or rendered unenforceable or otherwise deemed ineffective by the Uniform Commercial Code or any other Requirement of Law;

 

(d)           any Equity Interests of any (A) Unrestricted Subsidiary, (B) Immaterial Subsidiary, (C) special purpose securitization entity, including any Receivables Entity, (D) not-for-profit Subsidiary or (E) captive insurance Subsidiary; provided, that this clause (d) shall not apply to Equity Interests issued by Loan Parties;

 

(e)           any Margin Stock; and

 

(f)            any voting Equity Interests (and any other interests constituting “stock entitled to vote” within the meaning of Treasury Regulations Section 1.956-2(c)(2)) in excess of 65% of the total combined voting power in (A) any Foreign Subsidiary that is a CFC or (B) any FSHCO.

 

Excluded Subsidiary” shall mean any of the following:

 

(a)           each Immaterial Subsidiary,

 

(b)           each Domestic Subsidiary that is not a Wholly Owned Subsidiary (for so long as such Subsidiary remains a non-Wholly Owned Subsidiary); provided, that a Wholly Owned Subsidiary that becomes a non-Wholly Owned Subsidiary after the Closing Date shall not be deemed to be an Excluded Subsidiary if such Wholly Owned Subsidiary became a non-Wholly Owned Subsidiary solely as a result of a Disposition or other transfer of less than all of such Subsidiary’s capital stock, unless such Disposition or other transfer of capital stock is a good faith Disposition to a bona fide unaffiliated third party for Fair Market Value for a bona fide business purpose,

 

(c)           each Domestic Subsidiary that is prohibited from Guaranteeing or granting liens to secure the Obligations by any Requirement of Law or that would require consent, approval, license or authorization of a Governmental Authority to Guarantee or grant Liens to secure the Obligations (unless such consent, approval, license or authorization has been received),

 

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(d)           each Domestic Subsidiary that is prohibited by any applicable contractual requirement from Guaranteeing or granting liens to secure the Obligations on the Closing Date or at the time such Subsidiary becomes a Subsidiary not entered into in contemplation thereof and not in violation of Section 6.08(l) (and for so long as such restriction or any replacement or renewal thereof is in effect),

 

(e)           any special purpose securitization entity, including any Receivables Entity,

 

(f)            any Foreign Subsidiary,

 

(g)           any Domestic Subsidiary (i) that is an FSHCO or (ii) that is a Subsidiary of a Foreign Subsidiary of the Borrower that is a CFC,

 

(h)           any other Domestic Subsidiary with respect to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequences (including Tax consequences) of providing a Guarantee of or granting liens to secure the Obligations are likely to be excessive in relation to the value to be afforded thereby,

 

(i)            each Unrestricted Subsidiary, and

 

(j)            any captive insurance Subsidiary and any not-for-profit Subsidiary.

 

Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest 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 of any thereof) by virtue of (a) such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder or (b) in the case of a Swap Obligation subject to a clearing requirement pursuant to Section 2(h) of the Commodity Exchange Act (or any successor provision thereto), because such Guarantor is a “financial entity,” as defined in Section 2(h)(7)(C)(i) of the Commodity Exchange Act (or any successor provision thereto), in each case at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation, unless otherwise agreed between the Administrative Agent and the Borrower. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

 

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Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (i) Taxes imposed on or measured by such recipient’s overall net income (however denominated, and including, for the avoidance of doubt, franchise and similar Taxes imposed on such recipient in lieu of net income Taxes), or any branch profits or similar Taxes, in each case, imposed by a jurisdiction (including any political subdivision thereof) (a) as a result of such recipient being organized under the laws of, having its principal office in, or in the case of any Lender, having its applicable Lending Office in, such jurisdiction, or (b) that are Other Connection Taxes, (ii) U.S. federal withholding Tax imposed on any payment by or on account of any obligation of any Loan Party hereunder or under any other Loan Document to a Lender (other than to the extent such Lender is an assignee pursuant to a request by the Borrower under Section 2.19(b) or 2.19(c)) pursuant to laws in force at the time such Lender becomes a party hereto (or designates a new Lending Office), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new Lending Office (or assignment), to receive additional amounts or indemnification payments from any Loan Party with respect to such withholding Tax pursuant to Section 2.17, (iii) any withholding Tax imposed on any payment by or on account of any obligation of any Loan Party hereunder that is attributable to such recipient’s failure to comply with Section 2.17(d) or Section 2.17(f) or (iv) any Tax imposed under FATCA.

 

Existing Credit Agreements” shall mean (i) that certain Loan and Security Agreement, dated as of February 28, 2020, by and among the Borrower, certain guarantors party thereto, Bank of America, N.A., and the other lenders and parties from time to time party thereto and (ii) that certain Loan and Security Agreement, dated as of February 28, 2020, by and among the Borrower, certain guarantors party thereto, TCW Asset Management Company LLC and the other lenders and parties from time to time party thereto.

 

Extended Revolving Facility Commitment” shall have the meaning assigned to such term in Section 2.22(a).

 

Extended Revolving Loan” shall have the meaning assigned to such term in Section 2.22(a).

 

Extended Term Loan” shall have the meaning assigned to such term in Section 2.22(a).

 

Extending Lender” shall have the meaning assigned to such term in Section 2.22(a).

 

Extension” shall have the meaning assigned to such term in Section 2.22(a).

 

Extension Amendment” shall have the meaning assigned to that term in Section 2.22(b).

 

Facility” shall mean the respective facility and commitments utilized in making Loans and credit extensions hereunder, it being understood that, as of the Closing Date, there are two facilities (i.e., the Initial Term Facility and Revolving Facility) and thereafter, the term “Facility” may include any other Class of Commitments and the extensions of credit thereunder.

 

Fair Market Value” shall mean, with respect to any asset or property, the price (as determined in good faith by the management of the Borrower) that could be negotiated in an arm’s-length transaction between a willing seller and a willing buyer, neither of whom is under undue pressure or compulsion to complete the transaction.

 

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FATCA” shall mean Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), or any current or future U.S. Department of Treasury regulations promulgated thereunder or official administrative interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, such Code section as of the Closing Date (or any amended or successor version described above), and any intergovernmental agreements (or any related legislation, rules or official administrative practices) implementing the foregoing.

 

Federal Funds Effective Rate” shall mean, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate; provided, that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

 

Fee Letter” shall mean that certain Fee Letter, dated as of April 4, 2022, by and among the Borrower, the Administrative Agent, Wells Fargo Securities, LLC and the other parties party thereto (as such Fee Letter may be amended, restated, supplemented or otherwise modified).

 

Fees” shall mean the Commitment Fees, the L/C Participation Fee, the Issuing Bank Fees and the Administrative Agent Fees.

 

Financial Covenants” shall have the meaning assigned to such term in Section 6.09(b).

 

Financial Officer” of any person shall mean the chief financial officer, chief accounting officer, principal accounting officer, treasurer, assistant treasurer, controller or other executive responsible for the financial affairs of such person.

 

First Lien Secured Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (A) (i) the sum of, without duplication, (x) the aggregate principal amount of any Consolidated Debt of the Borrower and its Restricted Subsidiaries secured by assets of the Borrower or its Restricted Subsidiaries on a first lien basis and (y) the aggregate principal amount of any other Consolidated Debt of the Borrower and its Subsidiaries outstanding as of the last day of suchthe Test Period most recently ended as of such date that is then secured by Liens on the Collateral that are Other First Liens, less (ii) the Unrestricted Cash Amount as of the last day of such Test Period, to (B) Adjusted Consolidated EBITDA for such Test Period, all determined on a consolidated basis in accordance with GAAP.

 

Fixed Amounts” shall have the meaning assigned to such term in Section 1.07(b).

 

“Flood Documents” shall mean, with respect to each Material Real Property located in the United States of America or any territory thereof, (i) a completed “life-of-loan” Federal Emergency Management Agency standard flood hazard determination (and to the extent a Mortgaged Property is located in a Special Flood Hazard Area, a notice about Special Flood Hazard Area status and flood disaster assistance duly executed by the Borrower) and (ii) evidence of flood insurance, or a certificate as to coverage under, and a declaration page relating to, the insurance policies as required by Section 5.02 hereof.

 

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“Flood Insurance Laws” shall mean, collectively, (i) the National Flood Insurance Reform Act of 1994, (ii) the Flood Insurance Reform Act of 2004 and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012, in each case as now or hereafter in effect or any successor statute thereto.

 

Floor” shall mean the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Term SOFR Rate or any Benchmark. For the avoidance of doubt the initial Floor for the Term SOFR Rate or any Benchmark shall be zero.

 

Foreign Disposition” shall have the meaning assigned to such term in Section 2.11(h).

 

Foreign Lender” shall mean a Lender that is not a U.S. Person.

 

Foreign Subsidiary” shall mean any Subsidiary that is incorporated or organized under the laws of any jurisdiction other than the United States of America, any state thereof or the District of Columbia.

 

Free and Clear Incremental Amount” shall have the meaning assigned to such term in the definition of the term “Incremental Amount.”

 

Fronting Exposure” shall mean, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Revolving Facility Percentage of Revolving L/C Exposure with respect to Letters of Credit issued by such Issuing Bank other than such Revolving L/C Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swingline Lender, such Defaulting Lender’s Swingline Exposure other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.

 

FSHCO” shall mean any Domestic Subsidiary of the Borrower that owns no material assets other than (a) the Equity Interests (which term shall include, for purposes of this definition of FSHCO, any Indebtedness treated as equity for U.S. federal income tax purposes) (or Equity Interests and Indebtedness) of one or more Foreign Subsidiaries of the Borrower that are CFCs and/or (b) Equity Interests (or Equity Interests and/or Indebtedness) of one or more other FSHCOs.

 

GAAP” shall mean generally accepted accounting principles in effect from time to time in the United States of America, applied on a consistent basis, subject to the provisions of Section 1.02.

 

General RP/JDRP Basket” shall have the meaning assigned to such term in Section 6.06(g).

 

Governmental Authority” shall mean any federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory or legislative body.

 

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Guarantee” of or by any person (the “guarantor”) shall mean (a) any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, 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 owner of such Indebtedness or other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity 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 holders of such Indebtedness or other obligation of the payment thereof or to protect such holders against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of the guarantor securing any Indebtedness or other obligation (or any existing right, contingent or otherwise, of the holder of Indebtedness or other obligation to be secured by such a Lien) of any other person, whether or not such Indebtedness or other obligation is assumed by the guarantor (other than Liens on Equity Interests of Unrestricted Subsidiaries securing Indebtedness of such Unrestricted Subsidiaries); provided, however, that the term “Guarantee” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets permitted by this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness or other obligation in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such person in good faith. The amount of the Indebtedness or other obligation subject to any Guarantee provided by any person for purposes of clause (b) above shall (unless the applicable Indebtedness has been assumed by such person or is otherwise recourse to such person) be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness or other obligation and (B) the Fair Market Value of the property encumbered thereby.

 

Guarantee Agreement” shall mean the Guarantee Agreement substantially in the form of Exhibit M dated as of the Closing Date as may be amended, restated, supplemented or otherwise modified from time to time, among the Borrower, each Guarantor and the Administrative Agent.

 

guarantor” shall have the meaning assigned to such term in the definition of the term “Guarantee.”

 

Guarantors” shall mean (a) the Borrower (only with respect to Obligations of the other Guarantors in respect of Secured Cash Management Agreements, Secured Hedge Agreements and Secured Supplier Receivables Agreements, as applicable), (b) Holdings and (c) each Subsidiary of the Borrower that is a party to the Guarantee Agreement on the Closing Date or becomes a Loan Party pursuant to Section 5.10(c), whether existing on the Closing Date or established, created or acquired after the Closing Date, unless and until such time as the respective Subsidiary is released from its obligations under the Guarantee Agreement in accordance with the terms and provisions hereof or thereof.

 

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Hazardous Materials” shall mean all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including explosive or radioactive substances or petroleum byproducts or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas or pesticides, fungicides, fertilizers or other agricultural chemicals, of any nature subject to regulation or which can give rise to liability under any Environmental Law.

 

Hedge Bank” shall mean any person that (i) is (or any Affiliate of any person that is) an Agent, an Arranger or a Lender on the Closing Date (in the case of any Hedging Agreement in existence on the Closing Date) and that enters into or is a party to a Hedging Agreement with the Borrower or any of its Subsidiaries, in each case, in its capacity as a party to such Hedging Agreement or (ii) is (or any Affiliate of any person that is) an Agent, an Arranger or a Lender at the time it enters into a Hedging Agreement (in the case of any Hedging Agreement entered into after the Closing Date) with the Borrower or any of its Subsidiaries, in each case, in its capacity as a party to such Hedging Agreement.

 

Hedging Agreement” shall mean any agreement with respect to any swap, forward, future or derivative transaction, or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value, or credit spread transaction, repurchase transaction, reserve repurchase transaction, securities lending transaction, weather index transaction, spot contracts, fixed price physical delivery contracts, or any similar transaction or any combination of these transactions, in each case of the foregoing, whether or not exchange traded; provided, that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or any of the Subsidiaries shall be a Hedging Agreement.

 

Holdings” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

 

Immaterial Subsidiary” shall mean any Subsidiary that (a) did not, as of the last day of the fiscal quarter of the Borrower most recently ended for which financial statements have been (or were required to be) delivered pursuant to Section 5.04(a) or 5.04(b), as applicable, have assets with a value in excess of 5.0% of the Consolidated Total Assets of the Borrower and the Subsidiaries on a consolidated basis as of such date, and (b) taken together with all such Subsidiaries as of such date, did not have assets with a value in excess of 10.0% of Consolidated Total Assets of the Borrower and the Subsidiaries on a consolidated basis as of such date.

 

Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness or in the form of common stock of the Borrower, the accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies.

 

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Incremental Amount” shall mean, at any time, (x) the greater of (A) $100,000,000 and (B) 100% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time (the amount under this clause (x), the “Free and Clear Incremental Amount”) after giving effect to the incurrence of such additional amount and the use of proceeds thereof, any acquisition consummated concurrently therewith, and all other related transactions or events (calculated (a) in the event the Borrower is incurring Incremental Revolving Facility Commitments, as if such Incremental Revolving Facility Commitments were fully drawn on the effective date thereof and (b) excluding any cash constituting proceeds of such Incremental Facility), plus (y) (A) in the case of any Incremental Facility secured by Liens on the Collateral on a pari passu basis with the Facilities, the First Lien Secured Net Leverage Ratio on a Pro Forma Basis does not exceed 2.00 to 1.00, or (B) in the case of any Incremental Facility that is unsecured or is to be secured by the Collateral on a junior basis to the Facilities, the Total Net Leverage Ratio on a Pro Forma Basis does not exceed the greater of (i) 3.00 to 1.00 or (ii) if incurred in connection with financing a Permitted Acquisition or Permitted Investment, the Total Net Leverage Ratio immediately prior to such Permitted Acquisition or Permitted Investment (the amount under this clause (y), the “Ratio-Based Incremental Amount”), plus (z) an amount equal to all voluntary prepayments and repurchases of Term Loans (including Incremental Term Loans) and voluntary prepayments of Revolving Facility Loans to the extent accompanied by a corresponding reduction in Revolving Facility Commitments, in the case of this clause (z) other than to the extent financed with the proceeds of long-term Indebtedness (the “Prepayment-Based Incremental Amount”); provided, that in the case of Incremental Facilities used to finance a Limited Condition Acquisition, Section 1.07 shall be applicable; provided, further, that for purposes of any Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments established pursuant to Section 2.21, (A) the Borrower may select utilization under the Free and Clear Incremental Amount, the Ratio-Based Incremental Amount and the Prepayment-Based Incremental Amount in its sole discretion and in the absence of such selection, the Borrower shall be deemed to have used amounts under the Ratio-Based Incremental Amount (to the extent permitted thereby) prior to utilization of the Free and Clear Incremental Amount and the Prepayment-Based Incremental Amount, (B) Incremental Commitments established pursuant to Section 2.21 may be incurred under the Free and Clear Incremental Amount, the Ratio-Based Incremental Amount and/or the Prepayment-Based Incremental Amount, and proceeds from any such incurrence under the Free and Clear Incremental Amount, the Ratio-Based Incremental Amount and/or the Prepayment-Based Incremental Amount may be utilized in a single transaction by first calculating the incurrence under the Ratio-Based Incremental Amount (without inclusion of any amounts utilized pursuant to the Free and Clear Incremental Amount or the Prepayment-Based Incremental Amount) and then calculating the incurrence under the Prepayment-Based Incremental Amount (without inclusion of any amounts utilized pursuant to the Free and Clear Incremental Amount) and then calculating the incurrence under the Free and Clear Incremental Amount and (C) with respect to any Indebtedness originally incurred under the Free and Clear Incremental Amount or the Prepayment-Based Incremental Amount, if at any time subsequent to such incurrence all or any portion of such Indebtedness would be permitted to be incurred under the Ratio-Based Incremental Amount, all or such portion, as applicable, of such Indebtedness shall automatically be reclassified and deemed as of such time to have been incurred under the Ratio-Based Incremental Amount (which, for the avoidance of doubt, shall have the effect of increasing the remaining availability under the Free and Clear Incremental Amount or the Prepayment-Based Incremental Amount, as applicable, by the amount of such redesignated Indebtedness).

 

Incremental Assumption Agreement” shall mean an Incremental Assumption Agreement in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and, if applicable, one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders.

 

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Incremental Commitment” shall mean an Incremental Term Loan Commitment or an Incremental Revolving Facility Commitment.

 

Incremental Facility” shall mean the Incremental Commitments and the Incremental Loans made thereunder.

 

Incremental Loan” shall mean an Incremental Term Loan or an Incremental Revolving Loan.

 

Incremental Revolving Facility Commitment” shall mean the commitment of any Lender, established pursuant to Section 2.21, to make Incremental Revolving Loans to the Borrower.

 

Incremental Revolving Facility Lender” shall mean a Lender with an Incremental Revolving Facility Commitment or an outstanding Incremental Revolving Loan.

 

Incremental Revolving Loan” shall mean Revolving Facility Loans made by one or more Revolving Facility Lenders to the Borrower pursuant to an Incremental Revolving Facility Commitment to make additional Initial Revolving Loans.

 

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

 

Incremental Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to Section 2.21, to make Incremental Term Loans to the Borrower. For the avoidance of doubt, all references in this Agreement to Incremental Term Loan Commitments shall include, at any time after the Amendment No. 1 Effective Date, the Amendment No. 1 Delayed Draw Term Loan Commitments.

 

Incremental Term Loans” shall mean (i) Term Loans made by one or more Lenders to the Borrower pursuant to Section 2.01(c) consisting of additional Initial Term Loans and (ii) to the extent permitted by Section 2.21 and provided for in the relevant Incremental Assumption Agreement, Other Incremental Term Loans. For the avoidance of doubt, all references in this Agreement to Incremental Term Loans shall include, at any time after any Amendment No. 1 Delayed Draw Funding Date, the Amendment No. 1 Delayed Draw Term Loans borrowed on such Amendment No. 1 Delayed Draw Funding Date.

 

Incurrence-Based Amounts” shall have the meaning assigned to such term in Section 1.07(b).

 

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Indebtedness” of any person shall mean, without duplication, (a) all obligations of such person for borrowed money, (b) all obligations of such person evidenced by bonds, debentures, notes or similar instruments (except any such obligation with a maturity date of no more than six (6) months in a transaction intended to extend payment terms of trade payables or similar obligations to trade creditors incurred in the ordinary course of business), (c) all obligations of such person under conditional sale or other title retention agreements relating to property or assets purchased by such person (except any such obligation that constitutes a trade payable or similar obligation to a trade creditor incurred in the ordinary course of business), (d) all obligations of such person issued or assumed as the deferred purchase price of property or services (except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor incurred in the ordinary course of business, (ii) any earn-out obligations until such obligation becomes a liability on the balance sheet of such person in accordance with GAAP if not paid within 60 days after being due and payable and (iii) liabilities accrued in the ordinary course of business) which purchase price is due more than six (6) months after the date of placing the property in service or taking delivery and title thereto, (e) all Guarantees by such person of Indebtedness of others, (f) all Capitalized Lease Obligations of such person, (g) net obligations under any Hedging Agreements (at the agreement value thereof), to the extent the foregoing would appear on a balance sheet of such person as a liability, (h) the principal component of all obligations, contingent or otherwise, of such person as an account party in respect of letters of credit, (i) the principal component of all obligations of such person in respect of bankers’ acceptances, (j) the principal component of all obligations, or liquidation preference, of such person with respect to any Disqualified Stock (but excluding any accrued dividends), (k) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such person (other than Liens on Equity Interests of Unrestricted Subsidiaries securing Indebtedness of such Unrestricted Subsidiaries), whether or not the Indebtedness secured thereby has been assumed and (l) all Attributable Receivables Indebtedness with respect to a Qualified Receivables Facility. The amount of Indebtedness of any person for purposes of clause (k) above shall (unless such Indebtedness has been assumed by such person or is otherwise recourse to such person) be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the Fair Market Value of the property encumbered thereby. For all purposes hereof, the Indebtedness of the Borrower and the Subsidiaries shall exclude intercompany liabilities arising from their cash management, Tax, and accounting operations and intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business. For the avoidance of doubt, and without limitation of the foregoing, Indebtedness convertible into or exchangeable for Equity Interests shall at all times prior to the repurchase, conversion or payment thereof be valued at the full stated principal amount thereof and shall not include any reduction or appreciation in value of the shares and/or cash deliverable upon conversion thereof. Notwithstanding anything in this Agreement to the contrary, Indebtedness shall not include, and shall be calculated without giving effect to, (i) obligations of the Borrower or any Subsidiary pursuant to or arising out of any Permitted Supplier Receivables Sale Program, (ii) deferred or prepaid revenue, (iii) any obligations attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, (iv) Indebtedness of any Parent Entity appearing on the balance sheet of the Borrower solely by reason of push down accounting under GAAP, (v) accrued expenses and royalties, (vi) Permitted Key Account Purchase Programs and (vii) the effects of Financial Accounting Standards Board Accounting Standards Codification 825 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any embedded derivatives created by the terms of such Indebtedness and any such amounts that would have constituted Indebtedness under this Agreement but for the application of this sentence shall not be deemed an incurrence of Indebtedness under this Agreement.

 

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Indemnified Taxes” shall mean all Taxes imposed on or with respect to any payment by or on account of any obligation of any Loan Party hereunder or under any other Loan Document other than (a) Excluded Taxes and (b) Other Taxes.

 

Information” shall have the meaning assigned to such term in Section 3.14(a).

 

Initial Liquidity Certification Date” shall have the meaning assigned to such term in Section 6.09(c).

 

Initial Revolving Loan” shall mean a Revolving Facility Loan made (i) pursuant to the Revolving Facility Commitments in effect on the Closing Date (as the same may be amended from time to time in accordance with this Agreement) or (ii) pursuant to any Incremental Revolving Facility Commitment made on the same terms as (and forming a single Class with) the Revolving Facility Commitments referred to in clause (i) of this definition.

 

Initial Term Facility” shall mean the Initial Term Loan Commitment and the Initial Term Loans made hereunder.

 

Initial Term Facility Maturity Date” shall mean the fifth anniversary of the Closing Date.

 

Initial Term Lender” shall mean any Lender that holds an Initial Term Loan Commitment or makes an Initial Term Loan to the Borrower pursuant to Section 2.01(a).

 

Initial Term Loan Commitment” shall mean, as to each Initial Term Lender, its obligation to make Initial Term Loans to the Borrower pursuant to Section 2.01(a) in the aggregate principal amount set forth opposite such Initial Term Lender’s name on Schedule 2.01 under the caption “Initial Term Loan Commitment” (or such lesser amount as may be requested by the Borrower). As of the Closing Date, the aggregate amount of the Initial Term Loan Commitment of the Initial Term Lenders is $175,000,000.

 

Initial Term Loan Installment Date” shall have the meaning assigned to such term in Section 2.10(a)(i).

 

Initial Term Loans” shall mean all Initial Term Loans made by the Initial Term Lenders pursuant to Section 2.01(a).

 

Intellectual Property” has the meaning assigned to such term in the applicable Security Documents.

 

Intercreditor Agreement” shall have the meaning assigned to such term in Section 8.08.

 

Interest Coverage Ratio” shall mean on any date, the ratio of Adjusted Consolidated EBITDA to Consolidated Interest Expense as of any date of determination.

 

Interest Coverage Ratio Financial Covenant” shall have the meaning assigned to such term in Section 6.09(b).

 

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Interest Election Request” shall mean a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.07 and substantially in the form of Exhibit E or another form approved by the Administrative Agent.

 

Interest Payment Date” shall mean, (a) with respect to any Term SOFR Rate Loan, the last day of each Interest Period applicable thereto, and if such Interest Period extends over three (3) months, at the end of each three (3) month interval during such Interest Period, (b) with respect to any ABR Loan, the last Business Day of each calendar quarter and (c) with respect to any Swingline Loan, the last Business Day of each calendar quarter.

 

Interest Period” shall mean as to any Term Benchmark Borrowing, (a) the period commencing on the Borrowing date and ending one month, three months or six months thereafter, as selected by the Borrower in its notice of borrowing and (b) thereafter, each period commencing on the last day of the next preceding Interest Period and ending one month, three months or six months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not later than 12:00 noon, New York City time on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto; provided, that all of the foregoing provisions relating to Interest Periods are subject to the following:

 

(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day; provided, further, that the Interest Period for any Revolving Facility Borrowing made on the Closing Date may end on a date agreed to by the Administrative Agent;

 

(ii) any Interest Period of at least one month’s duration 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 last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period; and

 

(iii) no tenor that has been removed from this definition pursuant to Section 2.14(e) shall be available for specification in such borrowing request.

 

Inventory” shall have the meaning assigned to such term in Article 9 of the Uniform Commercial Code.

 

Investment” shall have the meaning assigned to such term in Section 6.04.

 

IRS” means the United States Internal Revenue Service.

 

ISDA CDS Definitions” shall have the meaning assigned to such term in Section 9.08(h).

 

Issuing Bank” shall mean, as the context may require, (i) Wells Fargo Bank, National Association and (ii) each other Issuing Bank designated pursuant to Section 2.05(l), in each case in its capacity as an issuer of Letters of Credit hereunder, and its permitted successors in such capacity. An Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

 

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Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.12(b).

 

Judgment Currency” shall have the meaning assigned to such term in Section 9.22.

 

Junior Debt Restricted Payment” shall mean, any payment or other distribution (whether in cash, securities or other property), directly or indirectly made by the Borrower or any of its Subsidiaries, of or in respect of principal of or interest on any Indebtedness (excluding Indebtedness among the Borrower and its Subsidiaries) that is by its terms subordinated in right of payment to the Loan Obligations (each of the foregoing, a “Junior Financing”); provided, that the following shall not constitute a Junior Debt Restricted Payment:

 

(a)           Refinancings with any Permitted Refinancing Indebtedness permitted to be incurred under Section 6.01;

 

(b)           payments of regularly-scheduled interest and fees due thereunder, other non-principal payments thereunder, any mandatory prepayments of principal, interest and fees thereunder, scheduled payments thereon necessary to avoid the Junior Financing from constituting “applicable high yield discount obligations” within the meaning of Section 163(i)(1) of the Code, and, to the extent this Agreement is then in effect, principal on the scheduled maturity date of any Junior Financing;

 

(c)           payments or distributions in respect of all or any portion of the Junior Financing with the proceeds from the issuance, sale or exchange by the Borrower of Qualified Equity Interests within eighteen (18) months prior thereto; provided, that such proceeds (including any proceeds of the Amendment No. 3 Equity Contribution) are not included in any determination of the Available Amount or otherwise applied to increase any other basket or exception under this Agreement;

 

(d)           the prepayment, redemption, purchase, defeasance or other satisfaction of any Junior Financing (x) existing at the time a person becomes a Subsidiary or (y) assumed in connection with the acquisition of assets, in each case so long as such Junior Financing was not incurred in contemplation of such person becoming a Subsidiary or such acquisition; or

 

(e)           the conversion of any Junior Financing to Qualified Equity Interests of the Borrower.

 

Junior Financing” shall have the meaning assigned to such term in the definition of the term “Junior Debt Restricted Payment.”

 

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Junior Liens” shall mean Liens on the Collateral that are junior to the Liens thereon securing the Initial Term Loans (and other Loan Obligations, other than Other Incremental Term Loans and Refinancing Term Loans that rank junior in right of security to the Initial Term Loans) pursuant to a Permitted Junior Intercreditor Agreement (it being understood that Junior Liens are not required to rank equally and ratably with other Junior Liens, and that Indebtedness secured by Junior Liens may be secured by Liens that are senior in priority to, or rank equally and ratably with, or junior in priority to, other Liens constituting Junior Liens), which Permitted Junior Intercreditor Agreement (together with such amendments to the Security Documents and any other Intercreditor Agreements, if any, as are reasonably necessary or advisable (and reasonably acceptable to the Collateral Agent) to give effect to such Liens) shall be entered into in connection with a permitted incurrence of any such Liens (unless a Permitted Junior Intercreditor Agreement and/or Security Documents (as applicable) covering such Liens are already in effect).

 

Latest Maturity Date” shall mean, at any date of determination, the later of (x) the latest Revolving Facility Maturity Date and (y) the latest Term Facility Maturity Date, in each case, then in effect on such date of determination.

 

L/C Disbursement” shall mean a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.

 

L/C Participation Fee” shall have the meaning assigned to such term in Section 2.12(b).

 

LCT Election” shall have the meaning assigned to such term in Section 1.07(a).

 

LCT Test Date” shall have the meaning assigned to such term in Section 1.07(a).

 

Lender” shall mean each financial institution listed on Schedule 2.01 (other than any such person that has ceased to be a party hereto pursuant to an Assignment and Acceptance in accordance with Section 9.04), as well as any person that becomes a “Lender” hereunder pursuant to Section 9.04, Section 2.20, Section 2.21, Section 2.22 or Section 2.23. Unless the context clearly indicates otherwise, the term “Lenders” shall include the Swingline Lender.

 

Lender Presentation” shall mean the lender presentation, dated April 19, 2022, as modified or supplemented prior to the Closing Date.

 

Lending Office” shall mean, as to any Lender, the applicable branch, office or Affiliate of such Lender designated by such Lender to make Loans.

 

Letter of Credit” shall have the meaning assigned to such term in Section 2.05(a).

 

Letter of Credit Commitment” shall mean, with respect to each Issuing Bank, the commitment of such Issuing Bank to issue Letters of Credit pursuant to Section 2.05.

 

Letter of Credit Individual Sublimit” shall mean (i) on the Closing Date, with respect to Wells Fargo Bank, National Association, $25,000,000 or (ii) such other amount as specified in the agreement pursuant to which such person becomes an Issuing Bank hereunder or, in each case, such larger amount not to exceed the Revolving Facility Commitment as the Administrative Agent and the applicable Issuing Bank may agree, as such amount may be reduced at or prior to such time pursuant to Section 2.08.

 

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Letter of Credit Sublimit” shall mean the aggregate Letter of Credit Commitments of the Issuing Banks, in an aggregate amount not to exceed $25,000,000, as such amount may be reduced pursuant to Section 2.08. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Facility.

 

Level” shall mean the level (whether I, II, III, IV, V or VIV, as applicable) in each table set forth in the definition of “Applicable Margin” that corresponds to an applicable item in any other column in such table. For purposes of comparing Levels, (i) Level I is referred to as the lowest Level in each table set forth in the definition of “Applicable Margin” and (ii) Level V as the highest Level in theeach table set forth in clause (A) of the definition of “Applicable Margin” or Level VI as the highest Level in the table set forth in clause (B) of the definition of “Applicable Margin”.

 

Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, hypothecation, pledge, charge, security interest or similar monetary encumbrance in or on such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided, that in no event shall an operating lease or an agreement to sell be deemed to constitute a Lien.

 

Limited Condition Acquisition” shall mean any purchase or other acquisition (including by means of a merger, amalgamation or consolidation or otherwise) of, or Investment by one or more of the Borrower and its Subsidiaries (other than intercompany Investments) in, any assets, business or person the consummation of which is not conditioned on the availability of, or on obtaining, financing.

 

Limited Condition Transaction” shall mean any (a) Limited Condition Acquisition, (b) redemption, prepayment, purchase, repayment, defeasance or satisfaction and discharge of Indebtedness requiring irrevocable advance notice or any irrevocable offer to purchase Indebtedness that is not subject to obtaining financing or (c) any declaration of a distribution or dividend in respect of, or irrevocable advance notice of, or any irrevocable offer to, purchase, redeem or otherwise acquire or retire for value, any Equity Interests of the Borrower that is not subject to obtaining financing.

 

Liquidity” shall mean, at any time, (x) the sum of (i) the Unrestricted Cash Amount, plus (ii) the Revolving Facility Availability, less (y) the sum of (i) the remaining amount of planned capital expenditures related to the Borrower’s extraction, bottling and canning facility located in Conway, Arkansas plus (ii) the remaining amount of planned Investments in the joint venture with Select Milk Producers, Inc. (this prong (ii), the “Select Milk JV Investments”).

 

“Liquidity Cure Right” shall have the meaning assigned to such term in Section 6.09(c).

 

“Liquidity Test Date” shall have the meaning assigned to such term in Section 6.09(c).

 

Loan Documents” shall mean (i) this Agreement, (ii) the Guarantee Agreement, (iii) the Security Documents, (iv) each Incremental Assumption Agreement (including Amendment No. 1), (v) each Extension Amendment, (vi) each Refinancing Amendment, (vii) any Intercreditor Agreement, (viii) any Note issued under Section 2.09(e), and (ix) Amendment No. 2.2 and (x) Amendment No. 3.

 

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Loan Obligations” shall mean (a) the due and punctual payment by the Borrower of (i) the unpaid principal of and interest, and premium, including Applicable Margin, fees and expenses (including interest, premium, Applicable Margin, fees and expenses accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans and Letters of Credit, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrower under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest, fees and expenses thereon (including interest, fees and expenses accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) and obligations to provide Cash Collateral and (iii) all other monetary obligations of the Borrower owed under or pursuant to this Agreement and each other Loan Document or otherwise in respect of the Loans and Letters of Credit, including obligations to pay fees, expense reimbursement obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), and (b) the due and punctual payment of all obligations of each Loan Party under or pursuant to each of the Loan Documents (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding).

 

Loan Parties” shall mean the Borrower and the Guarantors.

 

Loans” shall mean the Term Loans, the Revolving Facility Loans and the Swingline Loans.

 

Local Time” shall mean New York City time (daylight or standard, as applicable).

 

Majority Lenders” of any Facility shall mean, at any time, Lenders under such Facility having Loans and unused Commitments representing more than 50% of the sum of all Loans outstanding under such Facility and unused Commitments under such Facility at such time (subject to the last paragraph of Section 9.08(b)).

 

Management Services Agreement” shall mean the Management Services Agreement, dated February 28, 2020 between the Borrower and Westrock Group, LLC, as in effect on the Closing Date.

 

Management Investors” shall mean the directors, officers, partners, members and employees of any Parent Entity, the Borrower and/or any of their respective subsidiaries who are (directly or indirectly through one or more investment vehicles) holders of Equity Interests in the Borrower or any Parent Entity.

 

Margin Stock” shall have the meaning assigned to such term in Regulation U.

 

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Material Adverse Effect” shall mean any material adverse effect on (a) the business or financial condition of the Borrower and the Subsidiaries, taken as a whole or (b) the rights and remedies of the Administrative Agent and the Lenders under the Loan Documents.

 

Material Indebtedness” shall mean Indebtedness (other than Loans and Letters of Credit) of any one or more of the Borrower or any Subsidiary in an aggregate outstanding principal amount exceeding the greater of (x) $7,000,000 and (y) 10% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time; provided, that in no event shall any Qualified Receivables Facility be considered Material Indebtedness.

 

Material Intellectual Property” shall mean intellectual property that is (x) material to the business or operations of the Borrower and its Restricted Subsidiaries taken as a whole (as reasonably determined in good faith by the Borrower) and (y) transferred to an Unrestricted Subsidiary in a transaction the principal purpose of which is to incur structurally senior debt secured by such intellectual property.

 

“Material Real Property” means (a) any real property owned by a Loan Party on the Amendment No. 3 Effective Date that is set forth on Schedule 3.24, (b) the Borrower’s extraction, bottling and canning facility located in Conway, Arkansas, and (c) any owned real property acquired by any Loan Party following the Amendment No. 3 Effective Date (or owned by any Person that becomes a Loan Party after the Amendment No. 3 Effective Date) located in the United States, in each case, with a fair market value (as reasonably determined by the Borrower in good faith) in excess of $5,000,000.

 

Material Subsidiary” shall mean any Subsidiary, other than an Immaterial Subsidiary.

 

Maximum Rate” shall have the meaning assigned to such term in Section 9.09.

 

Merger Sub I” shall have the meaning assigned to such term in the first recitals hereto.

 

Merger Sub II” shall have the meaning assigned to such term in the first recitals hereto.

 

Merger Subs” shall have the meaning assigned to such term in the first recitals hereto.

 

Minimum L/C Collateral Amount” shall mean, at any time, in connection with any Letter of Credit, (i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 102% of the Revolving L/C Exposure with respect to such Letter of Credit at such time and (ii) otherwise, an amount sufficient to provide credit support with respect to such Revolving L/C Exposure as determined by the Administrative Agent and the Issuing Banks in their sole discretion.

 

“Minimum Liquidity Certificate” shall mean a certificate of a Responsible Officer of the Borrower substantially in the form attached as Exhibit O (with any deviations from such form as may be reasonably acceptable to the Administrative Agent).

 

“Minimum Liquidity Covenant” shall have the meaning assigned to such term in Section 6.09(c).

 

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Moody’s” shall mean Moody’s Investors Service, Inc. or any successor thereto.

 

Mortgaged Properties” shall mean any Material Real Property encumbered by a Mortgage pursuant to Section 5.10 or Section 3 of Amendment No. 3.

 

“Mortgages” shall mean, collectively, the mortgages, trust deeds, deeds of trust, deeds to secure debt, assignments of leases and rents, and other security documents (including amendments, restatements, supplements or other modifications to any of the foregoing) delivered with respect to the Material Real Properties, each substantially in such form as is reasonably acceptable to the Administrative Agent.

 

Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Borrower or any Subsidiary or any ERISA Affiliate (other than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414) is making or accruing an obligation to make contributions, or has within any of the preceding six plan years made or accrued an obligation to make contributions.

 

“Negative-Pledge Real Property” shall mean any fee-owned real property of any Loan Party with a Fair Market Value in excess of $5,000,000.

 

Net Proceeds” shall mean:

 

(a)           100% of the cash proceeds actually received by the Borrower or any Subsidiary (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) from any Asset Sale under Section 6.05(d) (except for any Permitted Sale Lease-Back Transaction described in clause (ii) of the definition thereof) or Section 6.05(g), net of (i) attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer Taxes, deed or mortgage recording Taxes, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (ii) required payments of Indebtedness (other than Indebtedness incurred under the Loan Documents or Other First Lien Debt) and required payments of other obligations relating to the applicable asset to the extent such Indebtedness or other obligations are secured by a Lien permitted hereunder (other than pursuant to the Loan Documents, Other First Lien Debt and other than obligations secured by a Junior Lien), (iii) repayments, redemptions or repurchases of Other First Lien Debt (limited to its proportionate share of such prepayment, redemption or repurchase, based on the amount of such then outstanding debt as a percentage of all then outstanding Indebtedness incurred under the Loan Documents (other than Other Incremental Term Loans and Refinancing Term Loans that rank junior in right of security with the Initial Term Loans) and Other First Lien Debt), (iv) Taxes paid or payable (in the good faith determination of the Borrower) as a result thereof, and (v) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any Taxes deducted pursuant to clause (i) or (iv) above) (x) related to any of the applicable assets and (y) retained by the Borrower or any of the Subsidiaries including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (provided, that (1) the amount of any reduction of such reserve (other than in connection with a payment in respect of any such liability), prior to the date occurring twelve (12) months after the date of the respective Asset Sale, shall be deemed to be cash proceeds of such Asset Sale occurring on the date of such reduction and (2) the amount of any such reserve that is maintained as of the date occurring twelve (12) months after the date of the applicable Asset Sale shall be deemed to be Net Proceeds from such Asset Sale as of such date); provided, that, if the Borrower shall deliver a certificate of a Responsible Officer of the Borrower to the Administrative Agent promptly following receipt of any such proceeds setting forth the Borrower’s intention to use any portion of such proceeds, within twelve (12) months of such receipt, to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of the Borrower and the Subsidiaries or to make Permitted Acquisitions and other Investments permitted hereunder (excluding Permitted Investments or intercompany Investments in Subsidiaries) or to reimburse the cost of any of the foregoing incurred on or after the date on which the Asset Sale giving rise to such proceeds was contractually committed (other than inventory), such portion of such proceeds shall not constitute Net Proceeds except to the extent not, within twelve (12) months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds are not so used within such twelve (12)-month period but within such twelve (12)-month period are contractually committed to be used, then such remaining portion if not so used within six (6) months following the end of such twelve (12)-month period shall constitute Net Proceeds as of such date without giving effect to this proviso); provided, further, (x) no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions shall constitute Net Proceeds under this clause (a) unless such net cash proceeds shall exceed $1,000,000 for such single or series of related transactions and (y) no net cash proceeds shall constitute Net Proceeds under this clause (a) in any fiscal year until the aggregate amount of all such net cash proceeds in such fiscal year shall exceed $5,000,000 (and thereafter only net cash proceeds in excess of such amount shall constitute Net Proceeds under this clause (a)); provided, further, no net cash proceeds from a Permitted Key Account Purchase Program shall constitute Net Proceeds under this clause (a);

 

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(b)           100% of the cash proceeds actually received by the Borrower or any Subsidiary (including casualty insurance settlements and condemnation awards, but only as and when received) from any Recovery Event, net of (i) attorneys’ fees, accountants’ fees, investment banking fees, transfer Taxes, deed or mortgage recording Taxes on such asset, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (ii) required payments of Indebtedness (other than Indebtedness incurred under the Loan Documents or Other First Lien Debt) and required payments of other obligations relating to the applicable asset to the extent such Indebtedness or other obligations are secured by a Lien permitted hereunder (other than pursuant to the Loan Documents, Other First Lien Debt and other than obligations secured by a Junior Lien), (iii) repayments, redemptions or repurchases of Other First Lien Debt (limited to its proportionate share of such prepayment, redemption or repurchase based on the amount of such then outstanding debt as a percentage of all then outstanding Indebtedness incurred under the Loan Documents (other than Other Incremental Term Loans and Refinancing Term Loans that rank junior in right of security with the Initial Term Loans) and Other First Lien Debt, and (iv) Taxes paid or payable (in the good faith determination of the Borrower) as a result thereof; provided, that, if the Borrower shall deliver a certificate of a Responsible Officer of the Borrower to the Administrative Agent promptly following receipt of any such proceeds setting forth the Borrower’s intention to use any portion of such proceeds, within eighteen (18) months of such receipt, to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of the Borrower and the Subsidiaries or to make Permitted Acquisitions and other Investments permitted hereunder (excluding Permitted Investments or intercompany Investments in Subsidiaries) or to reimburse the cost of any of the foregoing incurred on or after the date on which the Recovery Event giving rise to such proceeds was contractually committed (other than inventory, except to the extent the proceeds of such Recovery Event are received in respect of inventory), such portion of such proceeds shall not constitute Net Proceeds except to the extent not, within eighteen (18) months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds are not so used within such eighteen (18)-month period but within such eighteen (18)-month period are contractually committed to be used, then such remaining portion if not so used within one hundred and eighty (180) days following the end of such eighteen (18)-month period shall constitute Net Proceeds as of such date without giving effect to this proviso); provided, further, that (x) no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions shall constitute Net Proceeds under this clause (b) unless such net cash proceeds shall exceed $1,000,000 for such single or series of related transactions and (y) no net cash proceeds shall constitute Net Proceeds under this clause (b) in any fiscal year until the aggregate amount of all such net cash proceeds in such fiscal year shall exceed $5,000,000 (and thereafter only net cash proceeds in excess of such amount shall constitute Net Proceeds under this clause (b)); provided, further, no net cash proceeds from a Permitted Key Account Purchase Program shall constitute Net Proceeds under this clause (b); and

 

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(c)           100% of the cash proceeds from the incurrence, issuance or sale by the Borrower or any Subsidiary of any Indebtedness (other than Excluded Indebtedness, except for Refinancing Notes and Refinancing Term Loans), net of all fees (including investment banking fees), commissions, costs and other expenses, in each case incurred in connection with such issuance or sale.

 

Net Short Lender” shall have the meaning assigned to such term in Section 9.08(h).

 

New Project” shall mean (a) each facility, office or business unit which is either a new facility, office or business unit or an expansion, relocation, remodeling or substantial modernization of an existing facility, office or business unit owned by the Borrower or the Subsidiaries which in fact commences operations and (b) each creation (in one or a series of related transactions) of a business unit, product line or information technology offering to the extent such business unit commences operations or such product line or information technology is offered or each expansion (in one or a series of related transactions) of business into a new market.

 

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Non-Cash Compensation Expense” shall mean any non-cash expenses and costs that result from the issuance of stock-based awards, partnership interest-based awards and similar incentive based compensation awards or arrangements.

 

Non-Consenting Lender” shall have the meaning assigned to such term in Section 2.19(c).

 

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

 

Note” shall have the meaning assigned to such term in Section 2.09(e).

 

NYFRB” shall mean the Federal Reserve Bank of New York.

 

NYFRB Rate” shall mean, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided, that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” shall mean the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

NYFRB’s Website shall mean the website of the NYFRB at http://www.newyorkfed.org, or any successor source.

 

Obligations” shall mean, collectively, (a) the Loan Obligations, (b) obligations of the Borrower or any Subsidiary in respect of any Secured Cash Management Agreement, (c) obligations of any Loan Party in respect of any Secured Hedge Agreement (including, in each case, monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) and (d) obligations of any Loan Party in respect of any Secured Supplier Receivables Agreement.

 

OECD” shall mean the Organisation for Economic Co-operation and Development.

 

OFAC” shall mean the Office of Foreign Assets Control of the U.S. Department of the Treasury.

 

Other Connection Taxes” shall mean, with respect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in any other transaction pursuant to or enforced any Loan or Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

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Other First Lien Debt” shall mean obligations secured by Other First Liens.

 

Other First Liens” shall mean Liens on the Collateral that are equal and ratable with the Liens thereon securing the Initial Term Loans (and other Loan Obligations that are secured by Liens on the Collateral ranking equally and ratably with the Initial Term Loans) pursuant to a Permitted First Lien Intercreditor Agreement, which Permitted First Lien Intercreditor Agreement (together with such amendments to the Security Documents and any other Intercreditor Agreements, if any, as are reasonably necessary or advisable (and reasonably acceptable to the Collateral Agent) to give effect to such Liens) shall be entered into in connection with a permitted incurrence of any such Liens (unless a Permitted First Lien Intercreditor Agreement and/or Security Documents (as applicable) covering such Liens are already in effect).

 

Other Incremental Term Loans” shall have the meaning assigned to such term in Section 2.21(a).

 

Other Revolving Facility Commitments” shall mean, collectively, (a) Extended Revolving Facility Commitments to make Extended Revolving Loans and (b) Replacement Revolving Facility Commitments.

 

Other Revolving Loans” shall mean, collectively, (a) Extended Revolving Loans and (b) Replacement Revolving Loans.

 

Other Taxes” shall mean all present or future stamp or documentary Taxes or any other excise, intangible, mortgage recording or similar Taxes arising from any payment made hereunder or under any other Loan Document or from the execution, registration, delivery or enforcement of, consummation or administration of, from the receipt or perfection of security interest under, or otherwise with respect to, the Loan Documents, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment pursuant to a request by the Borrower under Section 2.19(b) or Section 2.19(c)).

 

Other Term Facilities” shall mean the Other Term Loan Commitments and the Other Term Loans made thereunder.

 

Other Term Loan Commitments” shall mean, collectively, (a) Incremental Commitments and (b) commitments to make Refinancing Term Loans.

 

Other Term Loan Installment Date” shall have, with respect to any Class of Other Term Loans established pursuant to an Incremental Assumption Agreement, an Extension Amendment or a Refinancing Amendment, the meaning assigned to such term in Section 2.10(a)(iii).

 

Other Term Loans” shall mean, collectively, (a) Incremental Loans made in respect of Incremental Commitments, (b) Extended Term Loans and (c) Refinancing Term Loans. For the avoidance of doubt, all references in this Agreement to Other Term Loans shall include, at any time after the Amendment No. 1 Delayed Draw Funding Date, the Amendment No. 1 Delayed Draw Term Loans borrowed on such Amendment No. 1 Delayed Draw Funding Date.

 

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Overnight Bank Funding Rate” shall mean, for any day, with respect to any amount, the rate comprised of both overnight federal funds and overnight eurodollar transactions by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time), and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).

 

parent” shall have the meaning assigned to such term in the definition of “subsidiary.”

 

Parent Entity” shall mean any person that is a direct or indirect parent of the Borrower.

 

Participant” shall have the meaning assigned to such term in Section 9.04(c)(i).

 

Participant Register” shall have the meaning assigned to such term in Section 9.04(c)(ii).

 

Payment” shall have the meaning assigned to such term in Section 8.06(c)(i).

 

Payment Notice” shall have the meaning assigned to such term in Section 8.06(c)(ii).

 

PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

 

Perfection Certificate” shall mean the Perfection Certificate with respect to the Borrower and the other Loan Parties in the form attached hereto as Exhibit I, or such other form as is reasonably satisfactory to the Administrative Agent.

 

Permitted Acquisition” shall mean any acquisition by the Borrower or any of its Subsidiaries of all or a portion of the assets or business of, or all or a portion of the Equity Interests not previously held by the Borrower and its Subsidiaries in, or merger, consolidation or amalgamation with, a person or business unit or division or line of business of a person (or any subsequent investment made in a person or business unit or division or line of business previously acquired in a Permitted Acquisition), if (i) subject to Section 1.07, no Event of Default under Sections 7.01(b), (c), (h) or (i) in respect of the Borrower shall have occurred and be continuing immediately after giving effect thereto or would result therefrom; (ii) to the extent required by Section 5.10, any person acquired in such acquisition shall be merged into a Loan Party or become following the consummation of such acquisition a Guarantor; (iii) the aggregate amount of all Permitted Acquisitions by the Borrower or Guarantors (other than Holdings) of Restricted Subsidiaries that are not Guarantors shall not exceed the greater of $25,000,000 and 30% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time; and (iv) the Borrower shall be in pro forma compliance with the Standard Financial Covenants.

 

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Permitted Call Spread Swap Agreements” shall mean (a) a Swap Contract pursuant to which a person acquires a call or a capped call option requiring the counterparty thereto to deliver to such person shares of common stock of person (or other Equity Interests, securities, property or assets following a merger event or other event or circumstance resulting in the common stock of such person generally being converted into, or exchanged for, other Equity Interests, securities, property or assets), the cash value thereof or a combination thereof from time to time upon exercise of such option and (b) if entered into by such person in connection with any Swap Contract described in clause (a) above, a Swap Contract pursuant to which such person issues to the counterparty thereto warrants or other rights to acquire common stock of such person (or other Equity Interests, securities, property or assets following a merger event or other event or circumstance resulting in the common stock of such person generally being converted into, or exchanged for, other Equity Interests, securities, property or assets), whether such warrant or other right is settled in shares (or such other Equity Interests, securities, property or assets), cash or a combination thereof, in each case entered into by such person in connection with the issuance of Permitted Convertible Notes; provided, that the terms, conditions and covenants of each such Swap Contract shall be customary or more favorable than customary for Swap Contracts of such type (as determined by the Borrower in good faith).

 

Permitted Convertible Notes” shall mean any notes issued by Borrower or any Parent Entity that are convertible into common stock of the Borrower or any Parent Entity (or other Equity Interests, securities, property or assets following a merger event or other event or circumstance resulting in the common stock of the Borrower or any Parent Entity generally being converted into, or exchanged for, other Equity Interests, securities, property or assets), cash (the amount of such cash being determined by reference to the price of such common stock or such other Equity Interests, securities, property or assets), or any combination of any of the foregoing, and cash in lieu of fractional shares of common stock; provided, that the issuance of such notes is permitted under Section 6.01.

 

Permitted Debt” shall mean Indebtedness for borrowed money incurred by the Borrower or any Subsidiary; provided, that (i) any such Permitted Debt, if secured by the Collateral, shall be subject to an Intercreditor Agreement reasonably satisfactory to the Administrative Agent; and (ii) such Permitted Debt (other than (x) Permitted Incremental Term Loans and (y) Customary Bridge Financings) shall not mature prior to the date that is the Latest Maturity Date existing at the time of such incurrence, and the Weighted Average Life to Maturity of any such Permitted Debt (other than Customary Bridge Financings) shall be no shorter than the remaining Weighted Average Life to Maturity of the Loans with the Latest Maturity Date at the time of such incurrence.

 

Permitted First Lien Intercreditor Agreement” shall mean, with respect to any Liens on Collateral that are intended to be equal and ratable with the Liens securing the Initial Term Loans (and other Loan Obligations that are secured by Liens on the Collateral ranking equally and ratably with the Liens securing the Initial Term Loans), one or more intercreditor agreements, each of which shall be in form and substance reasonably satisfactory to the Collateral Agent.

 

Permitted Holder” shall mean (a) Closing Date Investors, (b) the Management Investors, (c) their Permitted Transferees and (d) any group of which the persons described in the foregoing clauses (a), (b) and/or (c) are members and any other member of such group; provided, that the persons described in clauses (a), (b) and (c), without giving effect to the existence of such group or any other group, collectively own, directly or indirectly, Voting Equity Interests in such person representing a majority of the aggregate votes entitled to vote for the election of directors of such person having a majority of the aggregate votes on the Board of Directors of such person owned by such group.

 

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Permitted Incremental Term Loans” shall mean (x) any Incremental Term Loans incurred as additional Term Loans with terms identical to a then-existing Class of Term Loans, (y) any Other Incremental Term Loans with amortization in excess of 1.0% per year that are designated as such in the applicable Incremental Assumption Agreement, and (z) any Incremental Term Loans that are primarily syndicated to regulated banks in the primary syndication thereof (as reasonably determined by the Borrower in good faith).

 

Permitted Investments” shall mean:

 

(a)           readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America, any member of the European Union or, in the case of Foreign Subsidiaries or foreign operations, any country that is a member of the OECD, or in each case any agency or instrumentality thereof, with maturities not exceeding two years from the date of acquisition thereof;

 

(b)           (i) time deposits with, or certificates of deposit, money market deposits or banker’s acceptances and other bank deposits of, any commercial bank or (ii) overnight federal funds transactions that are issued or sold by any bank or its holding company or by a commercial banking institution that (A)(1)(x) is a Lender or (y) is organized under the laws of the United States of America, 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 of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (2) issues (or the parent of which issues) commercial paper rated as described in clause (d)(i) of this definition and (3) has combined capital and surplus of at least $250,000,000 or (B) a non-U.S. commercial banking institution organized under the laws of any country (I) that has a combined capital and surplus of at least $100,000,000 (or the dollar equivalent as of the date of determination, as determined by the Borrower) or (II) whose short-term commercial paper rating from S&P is at least A-2 or the equivalent thereof or from Moody’s is at least P-2 or the equivalent thereof, in each case with maturities of not more than one year from the date of acquisition thereof;

 

(c)           repurchase obligations for underlying securities of the types described in clause (a) above entered into with a bank meeting the qualifications described in clause (b) above;

 

(d)           (i) commercial paper, and variable or fixed rate notes, maturing not more than two years after the date of acquisition thereof, issued by any person organized under the laws of any state of the United States of America with a rating at the time as of which any investment therein is made of P-1 (or higher) according to Moody’s, or A-1 (or higher) according to S&P (or such similar equivalent rating or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act)) or (ii) Tax exempt variable rate commercial paper, Tax-exempt adjustable rate option tender bonds and other Tax-exempt bonds or notes issued by municipalities in the United States of America, having a short term rating of at least MIG-1 or VMIG-1 or SP-1 or a long term rating of at least AA by S&P or Aa2 by Moody’s;

 

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(e)           securities with maturities of two years or less from the date of acquisition, issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, or by any corporation, or any asset backed securities of such maturity, in each case rated at least investment grade by S&P or by Moody’s (or such similar equivalent rating or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act));

 

(f)           (i) shares of mutual funds whose investment guidelines restrict 90% of such funds’ investments to those satisfying the provisions of clauses (a) through (l); and (ii) investments with average maturities of 24 months or less from the date of acquisition in mutual funds rated AAA (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s;

 

(g)           Investments, classified in accordance with GAAP as current assets of the Borrower or any of its Subsidiaries, in money market investment programs that are (i) registered under the Investment Company Act of 1940, (ii) rated AA by S&P or Aa2 by Moody’s or (iii) administered by financial institutions having capital of at least $250,000,000;

 

(h)           time deposit accounts, certificates of deposit, money market deposits, banker’s acceptances and other bank deposits in an aggregate face amount not in excess of 0.5% of the total assets of the Borrower and the Subsidiaries, on a consolidated basis, as of the end of the Borrower’s most recently completed fiscal year;

 

(i)           with respect to any Foreign Subsidiary or foreign operations: (i) readily marketable obligations issued by the national government of the country in which such Foreign Subsidiary maintains its chief executive office or such Foreign Subsidiary or foreign operations conduct business provided such country is a member of the OECD, in each case maturing within two years after the date of investment therein, (ii) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office or such Foreign Subsidiary or foreign operations conduct business provided such country is a member of the OECD, and whose short-term commercial paper rating from S&P is at least A-2 or the equivalent thereof or from Moody’s is at least P-2 or the equivalent thereof (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than two years from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank;

 

(j)           instruments equivalent to those referred to in clauses (a) through (i) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above and commonly used by corporations for cash management purposes in any jurisdiction outside the United States of America to the extent reasonably required in connection with any business conducted by the Borrower or any Subsidiary organized in such jurisdiction;

 

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(k)           Dollars, euro, sterling, Australian dollars, Swiss francs, Canadian dollars, yuan or such other currencies held by it from time to time in the ordinary course of business; and

 

(l)           other financial instruments or investments as agreed by the Borrower and the Administrative Agent from time to time.

 

Permitted Junior Intercreditor Agreement” shall mean, with respect to any Liens on Collateral that are intended to be junior to any Liens securing the Initial Term Loans (and other Loan Obligations that are secured by Liens on the Collateral ranking equally and ratably with the Liens securing the Initial Term Loans) (including, for the avoidance of doubt, Junior Liens pursuant to Section 2.21(b)(ii)), one or more intercreditor agreements, each of which shall be in form and substance reasonably satisfactory to the Collateral Agent.

 

Permitted Key Account Purchase Program” shall mean any purchasing program or similar arrangement that is entered into in the ordinary course of business whereby the Borrower and/or one or more Loan Parties will sell accounts receivable and/or invoices from customers directly to the Administrative Agent, a Lender or one of their respective affiliates, subject to customary performance guarantees provided by the Borrower or such Loan Party.

 

Permitted Liens” shall have the meaning assigned to such term in Section 6.02.

 

Permitted Receivables Facility Assets” shall mean Receivables Assets (whether now existing or arising in the future) of the Borrower and its Subsidiaries which are transferred, sold and/or pledged to a Receivables Entity or a bank, other financial institution or a commercial paper conduit or other conduit facility established and maintained by a bank or other financial institution, pursuant to a Qualified Receivables Facility and any related Permitted Receivables Related Assets which are also so transferred, sold and/or pledged to such Receivables Entity, bank, other financial institution or commercial paper conduit or other conduit facility, and all proceeds thereof.

 

Permitted Receivables Facility Documents” shall mean each of the documents and agreements entered into in connection with any Qualified Receivables Facility, including all documents and agreements relating to the sale of receivables, the issuance, funding and/or purchase of certificates and purchased interests or the incurrence of loans, as applicable, in each case as such documents and agreements may be amended, modified, supplemented, refinanced or replaced from time to time so long as the relevant Qualified Receivables Facility would still meet the requirements of the definition thereof after giving effect to such amendment, modification, supplement, refinancing or replacement.

 

Permitted Receivables Related Assets” shall mean any assets that are customarily transferred, sold and/or pledged or in respect of which security interests are customarily granted in connection with asset securitization transactions involving receivables similar to Receivables Assets and any collections or proceeds of any of the foregoing (including lock-boxes, deposit accounts, records in respect of Receivables Assets and collections in respect of Receivables Assets).

 

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Permitted Refinancing Indebtedness” shall mean any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided, that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses) related thereto (including fees, costs and expenses associated with the repayment of the Indebtedness being so Refinanced), (b) except with respect to Section 6.01(i), (i) the final maturity date of such Permitted Refinancing Indebtedness is on or after the earlier of (x) the final maturity date of the Indebtedness being Refinanced and (y) the 91st day following the Latest Maturity Date in effect at the time of incurrence thereof and (ii) the Weighted Average Life to Maturity of such Permitted Refinancing Indebtedness is greater than or equal to the lesser of (x) the Weighted Average Life to Maturity of the Indebtedness being Refinanced and (y) 91 days after the Weighted Average Life to Maturity of the Class of Term Loans then outstanding with the greatest remaining Weighted Average Life to Maturity, (c) if the Indebtedness being Refinanced is by its terms subordinated in right of payment to any Loan Obligations, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to such Loan Obligations on terms in the aggregate not materially less favorable to the applicable Lenders as those contained in the documentation governing the Indebtedness being Refinanced (as determined by the Borrower in good faith), (d) no Permitted Refinancing Indebtedness shall have any borrower which is different than the borrower of the Indebtedness being so Refinanced or have guarantors that are not (or would not have been required to become) guarantors with respect to the Indebtedness being so Refinanced (except that one or more Loan Parties may be added as additional guarantors), (e) if the Indebtedness being Refinanced is secured (and permitted to be secured), such Permitted Refinancing Indebtedness may be secured by Liens on the same (or any subset of the) assets as secured (or would have been required to secure) the Indebtedness being Refinanced on terms in the aggregate that are no less favorable to the Secured Parties than the Indebtedness being refinanced or on terms otherwise permitted by Section 6.02 (as determined by the Borrower in good faith) and (f) if the Indebtedness being Refinanced was subject to a Permitted First Lien Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, and if the respective Permitted Refinancing Indebtedness is to be secured by the Collateral, the Permitted Refinancing Indebtedness shall likewise be subject to a Permitted First Lien Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, as applicable.

 

Permitted Sale Lease-Back Transaction” shall mean (i) any sale and lease-back transaction entered into prior to the Closing Date, (ii) any other sale and lease-back transaction, the proceeds of which do not constitute Net Proceeds pursuant to the proviso of the definition thereof and (iii) any other sale and lease-back transaction, the proceeds of which shall constitute Net Proceeds; provided, that the proceeds of any sale and lease-back transaction related to Negative-Pledge Real Property shall constitute Net Proceeds.

 

Permitted Supplier Receivables Sale Program” shall mean any supply chain financing or structured accounts payable program or similar arrangement that is entered into in the ordinary course between a supplier and a financial institution and provides for the transfer, sale or pledge by the supplier of accounts payable by the Borrower to such supplier.

 

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Permitted Transferees” shall mean, with respect to any person that is a natural person (and any Permitted Transferee of such person), (a) such person’s Immediate Family Members, including his or her spouse, ex-spouse, children, step-children and their respective lineal descendants and (b) without duplication with any of the foregoing, such person’s heirs, legatees, executors and/or administrators upon the death of such person and any other person who was an Affiliate of such person upon the death of such person and who, upon such death, directly or indirectly owned Equity Interests in the Borrower.

 

person” shall mean any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company or government, individual or family trusts, or any agency or political subdivision thereof.

 

Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) that is (i) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA and (ii) in respect of which the Borrower, any Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

Platform” shall have the meaning assigned to such term in Section 9.17.

 

Pledged Collateral” shall have the meaning assigned to such term in the Collateral Agreement.

 

Prepayment-Based Incremental Amount” shall have the meaning assigned to such term in the definition of the term “Incremental Amount.”

 

Pricing Level” shall mean, with respect to the Applicable Margin, at any date, the Level in the table set forth in the definition of “Applicable Margin” that corresponds to the then current Level of the TotalSecured Net Leverage Ratio.

 

primary obligor” shall have the meaning assigned to such term in the definition of the term “Guarantee.”

 

Prime Rate” shall mean, the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.

 

Pro Forma Adjustments” shall have the meaning assigned to such term in the definition of the term “Pro Forma Basis.”

 

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Pro Forma Basis” shall mean, as to any person, for any events as described below that occur subsequent to the commencement of a period for which the financial effect of such events is being calculated, and giving effect to the events for which such calculation is being made, such calculation as will give pro forma effect to such events as if such events occurred on the first day of the most recent Test Period ended on or before the occurrence of such event (the “Reference Period”): (i) any Asset Sale and any asset acquisition, Investment (or series of related Investments), merger, amalgamation, consolidation (including the Transactions) (or any similar transaction or transactions), any dividend, distribution or other similar payment, in each case in excess of $10,000,000, (ii) any operational changes or restructurings of the business of the Borrower or any of its Subsidiaries that the Borrower or any of its Subsidiaries has determined to make and/or made during or subsequent to the Reference Period (including in connection with an Asset Sale or asset acquisition described in clause (i) above) and which are expected to have a continuing impact and are factually supportable, which would include cost savings resulting from head count reduction, closure of facilities and other operational changes and other cost savings in connection therewith; provided, that for the avoidance of doubt, at the Borrower’s option, notwithstanding any classification under GAAP of any Person, property, business or asset as discontinued operations, no pro forma effect shall be given to any discontinued operations (and the income or loss attributable to such Person, property, business or asset shall not be excluded for any purposes hereunder) until such disposition shall have been consummated, (iii) the designation of any Subsidiary as an Unrestricted Subsidiary or of any Unrestricted Subsidiary as a Subsidiary and (iv) any incurrence, repayment, repurchase or redemption of Indebtedness (or any issuance, repurchase or redemption of Disqualified Stock or preferred stock), other than fluctuations in revolving borrowings in the ordinary course of business (and not resulting from a transaction as described in clause (i) above).

 

Pro forma calculations made pursuant to the definition of this term “Pro Forma Basis” shall be determined in good faith by a Responsible Officer of the Borrower. Any such pro forma calculation may include adjustments to reflect operating expense reductions, other operating improvements, cost synergies or such operational changes or restructurings described in clause (ii) of the immediately preceding paragraph (collectively, the “Pro Forma Adjustments”) that are (a) reasonably quantifiable, factually supportable and projected by the Borrower in good faith to result from actions that have been taken or initiated or are expected to be taken (in the good faith determination of the Borrower) in connection with the Transactions or any other pro forma event; provided, that (x) no amount shall be included in any pro forma calculations made pursuant to the definition of this term “Pro Forma Basis” to the extent duplicative of any amounts that are otherwise included in computing Adjusted Consolidated EBITDA for such Reference Period and (y) such Pro Forma Adjustments, together with any Projected Savings included in Adjusted Consolidated EBITDA for such Reference Period pursuant to the definition of “Adjusted Consolidated EBITDA”, shall not exceed (x) 20% of Adjusted Consolidated EBITDA for any relevant Test Period (calculated after giving effect to such capped adjustments) ending on or prior to the date that is twelve (12) months from the Closing Date and (y) 15% for any relevant Test Period ending thereafter. The Borrower shall deliver to the Administrative Agent for any such determination made pursuant to clause (i), (ii), (iii) or (iv) in the first paragraph of this definition, in each case in excess of $10,000,000 a certificate of a Responsible Officer of the Borrower setting forth such demonstrable or additional operating expense reductions and other operating improvements, or cost synergies and information and calculations supporting them in reasonable detail.

 

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If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date on which the relevant calculation is being made had been the applicable rate for the entire period (taking into account any hedging obligations applicable to such Indebtedness if such hedging obligation has a remaining term in excess of twelve (12) months). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a Pro Forma Basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period, except to the extent the outstandings thereunder are reasonably expected to increase as a result of any transactions described in clause (i) of the first paragraph of this definition of “Pro Forma Basis” which occurred during the respective period or thereafter and on or prior to the date of determination. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower may designate.

 

Notwithstanding the foregoing, when calculating the Consolidated TotalSecured Net Leverage Ratio for purposes of (i) the Applicable Rate, (ii) the Applicable Commitment Fee and (iii) determining actual compliance (and not pro forma compliance or compliance on a pro forma basis) with the Financial Covenant, any transaction and any related pro forma adjustment contemplated in this definition of “Pro Forma Basis” (and corresponding provisions of the definition of Adjusted Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given pro forma effect.

 

Pro Forma Entity” shall mean any Acquired Entity or Business or any Converted Restricted Subsidiary.

 

Pro Rata Extension Offers” shall have the meaning assigned to such term in Section 2.22(a).

 

Projected Savings” shall have the meaning assigned to such term in clause (b) of the definition of the term “Adjusted Consolidated EBITDA.”

 

Projections” shall mean the projections of the Borrower and its Subsidiaries included in the Lender Presentation and any other projections and any other forward-looking statements (including statements with respect to booked business) of such entities furnished to the Lenders or the Administrative Agent by or on behalf of the Borrower or any of its Subsidiaries prior to the Closing Date.

 

Protected Person” shall have the meaning assigned to such term in Section 9.05(b)(i).

 

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

 

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Public Company Costs” shall mean costs relating to compliance with the provisions of the Exchange Act (and any similar Requirement of Law under any other applicable jurisdiction), as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity or debt securities, directors’ or managers’ and employees’ compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, listing fees and other costs associated with being a public company.

 

Public Lender” shall have the meaning assigned to such term in Section 9.17.

 

Purchase Offer” shall have the meaning assigned to such term in Section 2.25(a).

 

QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

 

QFC Credit Support” shall have the meaning assigned to such term in Section 9.24.

 

Qualified Equity Interests” shall mean any Equity Interest other than Disqualified Stock.

 

Qualified Receivables Facility” shall mean a receivables or factoring facility or facilities created under the Permitted Receivables Facility Documents and which is designated as a “Qualified Receivables Facility” (as provided below), providing for the transfer, sale and/or pledge by the Borrower and/or one or more other Receivables Sellers of Permitted Receivables Facility Assets (thereby providing financing to the Borrower and/or the Receivables Sellers) to (i) a Receivables Entity (either directly or through another Receivables Seller), which in turn shall transfer, sell and/or pledge interests in the respective Permitted Receivables Facility Assets to third-party lenders or investors pursuant to the Permitted Receivables Facility Documents in return for cash or (ii) a bank or other financial institution, which shall finance, directly or indirectly, the Qualified Receivables Facility, so long as, in the case of each of the foregoing clause (i) and clause (ii), no portion of the Indebtedness or any other obligations (contingent or otherwise) under such receivables facility or facilities (x) is guaranteed by the Borrower or any Subsidiary other than the Receivable Entity (excluding guarantees of obligations pursuant to Standard Securitization Undertakings), (y) is recourse to or obligates the Borrower or any other Subsidiary other than the Receivable Entity in any way (other than pursuant to Standard Securitization Undertakings) or (z) subjects any property or asset (other than Permitted Receivables Facility Assets, Permitted Receivables Related Assets or the Equity Interests of any Receivables Entity) of the Borrower or any other Subsidiary (other than a Receivables Entity), directly or indirectly, contingently or otherwise, to the satisfaction thereof (other than pursuant to Standard Securitization Undertakings). Any such designation shall be evidenced to the Administrative Agent by filing with the Administrative Agent a certificate signed by a Financial Officer of the Borrower certifying that, to the best of such officer’s knowledge and belief after consultation with counsel, such designation complied with the foregoing conditions.

 

Quarterly Borrower Financial Statements” shall mean the unaudited consolidated and consolidating balance sheets and related consolidated and consolidating statements of comprehensive income and cash flows of the Borrower and its Restricted Subsidiaries for the fiscal quarter ended March 31, 2022, and the fiscal quarter ended June 30, 2022.

 

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Rate” shall have the meaning assigned to such term in the definition of the term “Type.”

 

Ratio-Based Incremental Amount” shall have the meaning assigned to such term in the definition of the term “Incremental Amount.”

 

Real Property” shall mean, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned in fee or leased by any Loan Party, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, incidental to the ownership, lease or operation thereof.

 

Reallocated RP/JDRP Amount” shall mean the aggregate amount of unutilized Restricted Payments capacity under Section 6.06(g) that the Borrower has elected to reallocate to Section 6.04(t).

 

Receivables Assets” shall mean (a) any right to payment (including accounts receivable) created by or arising from sales of goods, lease of goods or the rendition of services rendered no matter how evidenced whether or not earned by performance (whether constituting accounts, general intangibles, chattel paper or otherwise) and (b) all collateral securing such right to payment, all contracts and contract rights, guarantees or other obligations in respect of such right to payment, all records with respect to such right to payment and any other assets customarily transferred together with accounts receivable in connection with a non-recourse accounts receivable factoring arrangement.

 

Receivables Entity” shall mean any direct or indirect Wholly Owned Subsidiary of the Borrower which engages in no activities other than in connection with the financing of accounts receivable of the Receivables Sellers and which is designated (as provided below) as a “Receivables Entity” (a) with which neither the Borrower nor any of its Subsidiaries has any contract, agreement, arrangement or understanding (other than pursuant to the Permitted Receivables Facility Documents (including with respect to fees payable in the ordinary course of business in connection with the servicing of accounts receivable and related assets)) on terms less favorable to the Borrower or such Subsidiary than those that might be obtained at the time from persons that are not Affiliates of the Borrower (as determined by the Borrower in good faith) and (b) to which neither the Borrower nor any other Subsidiary has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results (other than pursuant to Standard Securitization Undertakings). Any such designation shall be evidenced to the Administrative Agent by filing with the Administrative Agent an officer’s certificate of the Borrower certifying that, to the best of such officer’s knowledge and belief after consultation with counsel, such designation complied with the foregoing conditions.

 

Receivables Seller” shall mean the Borrower or those Subsidiaries that are from time to time party to the Permitted Receivables Facility Documents (other than any Receivables Entity).

 

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Recovery Event” shall mean any event that gives rise to the receipt by the Borrower or any of its Subsidiaries of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or Real Property (including any improvements thereon).

 

Reference Period” shall have the meaning assigned to such term in the definition of the term “Pro Forma Basis.”

 

Reference Timewith respect to any setting of the then-current Benchmark shall mean (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two Business Days preceding the date of such setting or (2) if such Benchmark is not the Term SOFR Rate, the time determined by the Administrative Agent in its reasonable discretion.

 

Refinance” shall have the meaning assigned to such term in the definition of the term “Permitted Refinancing Indebtedness,” and “Refinanced” and “Refinancing” shall have meanings correlative thereto.

 

Refinanced Term Loans” shall have the meaning assigned to such term in Section 9.08(b).

 

Refinancing Amendment” shall have the meaning assigned to such term in Section 2.23(e).

 

Refinancing Effective Date” shall have the meaning assigned to such term in Section 2.23(a).

 

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Refinancing Notes” shall mean any secured or unsecured notes or loans issued by the Borrower or any Guarantor (whether under an indenture, a credit agreement or otherwise) and the Indebtedness represented thereby; provided, that (a) 100% of the Net Proceeds of such Refinancing Notes are used to permanently reduce Loans and/or replace Commitments substantially simultaneously with the issuance thereof; (b) the principal amount (or accreted value, if applicable) of such Refinancing Notes does not exceed the principal amount (or accreted value, if applicable) of the aggregate portion of the Loans so reduced and/or Commitments so replaced (plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses); (c) the final maturity date of such Refinancing Notes is on or after the Term Facility Maturity Date or the Revolving Facility Maturity Date, as applicable of the Term Loans so reduced or the Revolving Facility Commitments so replaced; (d) the Weighted Average Life to Maturity of such Refinancing Notes is greater than or equal to the Weighted Average Life to Maturity of the Term Loans so repaid or the Revolving Facility Commitments so replaced; (e) the terms of such Refinancing Notes do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the Term Facility Maturity Date of the Term Loans so reduced or the Revolving Facility Maturity Date of the Revolving Facility Commitments so replaced, as applicable (other than (x) in the case of notes, customary offers to repurchase or mandatory prepayment provisions upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default and (y) in the case of loans, customary amortization and mandatory and voluntary prepayment provisions which are, when taken as a whole, consistent in all material respects with, or not materially less favorable to the Borrower and its Subsidiaries than, those applicable to the Initial Term Loans and/or Revolving Facility Commitments, as the case may be, with such Indebtedness to provide that any such mandatory prepayments as a result of asset sales, events of loss, or excess cash flow shall be allocated on a pro rata basis, a less than pro rata basis or solely with respect to Indebtedness being refinanced that participates on a greater than pro rata basis as compared to any other Class of Term Loans, a greater than pro rata basis (but only to the same extent that such refinanced Indebtedness participates on a greater than pro rata basis as compared to any other Class of Term Loans) than the Loans outstanding pursuant to this Agreement); (f) there shall be no obligor with respect thereto that is not a Loan Party; (g) if such Refinancing Notes are secured by an asset of any Subsidiary, any Unrestricted Subsidiary or any Affiliate of the foregoing, the security agreements relating to such assets shall not extend to any assets not constituting Collateral and shall be no more favorable to the secured party or parties, taken as a whole (determined by the Borrower in good faith) than the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent); (h) if such Refinancing Notes are secured, such Refinancing Notes shall be secured by all or a portion of the Collateral, but shall not be secured by any assets of the Borrower or its Subsidiaries other than the Collateral; (i) Refinancing Notes that are secured by Collateral shall be subject to the provisions of a Permitted First Lien Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, as applicable (and in any event shall be subject to a Permitted Junior Intercreditor Agreement if the Indebtedness being Refinanced is secured on a junior lien basis to any of the Obligations); and (j) all other terms applicable to such Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the provisions set forth in this clause (j)) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans so reduced or the Revolving Facility Commitments so replaced (except to the extent such other terms apply solely to any period after the Latest Maturity Date, the Borrower elects to add such more restrictive terms for the benefit of the Initial Term Loans and the Revolving Facility, or such other terms are otherwise reasonably acceptable to the Administrative Agent).

 

Refinancing Term Loans” shall have the meaning assigned to such term in Section 2.23(a).

 

Refunding Capital Stock” shall have the meaning assigned to such term in Section 6.06(l).

 

Register” shall have the meaning assigned to such term in Section 9.04(b)(iii).

 

Regulated Bank” shall mean an Approved Commercial Bank that is (i) a U.S. depository institution the deposits of which are insured by the Federal Deposit Insurance Corporation; (ii) a corporation organized under section 25A of the U.S. Federal Reserve Act of 1913; (iii) a branch, agency or commercial lending company of a foreign bank operating pursuant to approval by and under the supervision of the Board of Governors of the Federal Reserve System under 12 CFR part 211; (iv) a non-U.S. branch of a foreign bank managed and controlled by a U.S. branch referred to in clause (iii) above; or (v) any other U.S. or non-U.S. depository institution or any branch, agency or similar office thereof supervised by a bank regulatory authority in any jurisdiction.

 

Regulation T” shall mean Regulation T of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

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Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

Related Fund” shall mean, with respect to any Lender that is a fund that invests in bank or commercial loans and similar extensions of credit, any other fund that invests in bank or commercial loans and similar extensions of credit and is administered or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity (or an Affiliate of such entity) that administers or manages such Lender.

 

Related Parties” shall mean, with respect to any specified person, such person’s controlled and controlling Affiliates and the respective directors, trustees, officers, employees, agents, advisors and members of such person and such person’s controlled and controlling Affiliates.

 

Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, emanating or migrating in, into, onto or through the Environment.

 

Relevant Governmental Body” shall mean the Federal Reserve Board and/or the NYFRB, the CME Term SOFR Administrator, as applicable, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.

 

Replacement Revolving Facilities” shall have the meaning assigned to such term in Section 2.23(c).

 

Replacement Revolving Facility Commitments” shall have the meaning assigned to such term in Section 2.23(c).

 

Replacement Revolving Facility Effective Date” shall have the meaning assigned to such term in Section 2.23(c).

 

Replacement Revolving Loans” shall have the meaning assigned to such term in Section 2.23(c).

 

Replacement Term Loans” shall have the meaning assigned to such term in Section 9.08(b).

 

Reportable Event” shall mean any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30-day notice period referred to in Section 4043(c) of ERISA has been waived, with respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code).

 

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Required Lenders” shall mean, at any time, Lenders having outstanding Term Loans (including the Amendment No. 1 Delayed Draw Term Loans and any Amendment No. 1 Delayed Draw Term Loan Commitments) and Revolving Facility Commitments (or, if the Revolving Facility Commitments have terminated, Revolving Facility Credit Exposure) that, taken together, represent more than 50% of the sum of (x) all Term Loans (including the Amendment No. 1 Delayed Draw Term Loans and any Amendment No. 1 Delayed Draw Term Loan Commitments) and (y) all Revolving Facility Commitments (or, if the Revolving Facility Commitments have terminated, Revolving Facility Credit Exposure) outstanding at such time; provided, that the Term Loans, Amendment No. 1 Delayed Draw Term Loans, Amendment No. 1 Delayed Draw Term Loan Commitments, Revolving Facility Commitments and Revolving Facility Credit Exposure, of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

 

Required Delayed Draw Term Loan Lenders” means, at any time, Amendment No. 1 Delayed Draw Term Loan Lenders holding in the aggregate more than 50% of (a) if the Amendment No. 1 Delayed Draw Term Loan Commitments have not been terminated, the Amendment No. 1 Delayed Draw Term Loan Commitments and the aggregate principal amount of the outstanding Amendment No. 1 Delayed Draw Term Loans at such time or (b) if the Amendment No. 1 Delayed Draw Term Loan Commitments have been terminated, the aggregate principal amount of the outstanding Amendment No. 1 Delayed Draw Term Loans at such time; provided, however, that if any Amendment No. 1 Delayed Draw Term Loan Lender shall be a Defaulting Lender at such time, then there shall be excluded from the determination of Required Delayed Draw Term Loan Lenders, the Amendment No. 1 Delayed Draw Term Loans owing to such Defaulting Lender and such Defaulting Lender’s Amendment No. 1 Delayed Draw Term Loan Commitments, or after termination of the Amendment No. 1 Delayed Draw Term Loan Commitments, the principal balance of the Amendment No. 1 Delayed Draw Term Loans owing to such Defaulting Lender.

 

Required Revolving Facility Lenders” shall mean, at any time, Revolving Facility Lenders having outstanding Revolving Facility Commitments (or if the Revolving Facility Commitments have terminated, Revolving Facility Credit Exposure) that, taken together, represent more than 50% of all Revolving Facility Commitments (or, if the Revolving Facility Commitments have terminated, Revolving Facility Credit Exposure at such time) outstanding at such time; provided, that the Revolving Facility Commitments and Revolving Facility Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Revolving Facility Lenders at any time.

 

Requirement of Law” shall mean, as to any person, any law, treaty, rule, regulation, statute, order, ordinance, decree, judgment, consent decree, writ, injunction, settlement agreement, official administrative pronouncement or governmental requirement enacted, promulgated or imposed or entered into or agreed by any Governmental Authority, in each case applicable to or binding upon such person or any of its property or assets or to which such person or any of its property or assets is subject.

 

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

 

Responsible Officer” of any person shall mean any manager, executive officer or Financial Officer of such person and any other officer or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement, or any other duly authorized employee or signatory of such person.

 

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Restricted Payments” shall have the meaning assigned to such term in Section 6.06. The amount of any Restricted Payment made other than in the form of cash or cash equivalents shall be the Fair Market Value thereof.

 

Restricted Subsidiary” shall mean any Subsidiary other than an Unrestricted Subsidiary.

 

Retired Capital Stock” shall have the meaning assigned to such term in Section 6.06(l).

 

Revolving Commitment Fee” shall have the meaning assigned to that term in Section 2.12(a).

 

Revolving Facility” shall mean the Revolving Facility Commitments of any Class and the extensions of credit made hereunder by the Revolving Facility Lenders of such Class and, for purposes of Section 9.08(b), shall refer to all such Revolving Facility Commitments as a single Class.

 

“Revolving Facility Availability” shall mean, at any time, an amount equal to the remainder of (x) the sum of the Revolving Facility Commitments of each of the Lenders in effect at such time less (y) the sum of (i) the aggregate principal amount of all Revolving Facility Loans outstanding at such time plus (ii) the aggregate amount of all Letters of Credit outstanding at such time.

 

Revolving Facility Borrowing” shall mean a Borrowing comprised of Revolving Facility Loans of the same Class and currency.

 

Revolving Facility Commitment” shall mean, with respect to each Revolving Facility Lender, the commitment of such Revolving Facility Lender to make Revolving Facility Loans pursuant to Section 2.01(b), expressed as an amount representing the maximum aggregate permitted amount of such Revolving Facility Lender’s Revolving Facility Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08, (b) reduced or increased from time to time pursuant to assignments by or to such Lender under Section 9.04, and (c) increased, extended or replaced as provided under Section 2.21, 2.22 or 2.23. The initial amount of each Lender’s Revolving Facility Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance, Incremental Assumption Agreement, Extension Amendment or Refinancing Amendment pursuant to which such Lender shall have assumed its Revolving Facility Commitment, as applicable. The aggregate amount of the Lenders’ Revolving Facility Commitments on the Closing Date is $175,000,000. On the Closing Date, there is only one Class of Revolving Facility Commitments. After the Closing Date, additional Classes of Revolving Facility Commitments may be added or created pursuant to Extension Amendments or Refinancing Amendments.

 

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Revolving Facility Credit Exposure” shall mean, at any time with respect to any Class of Revolving Facility Commitments, the sum of (a) the aggregate principal amount of the Revolving Facility Loans of such Class outstanding at such time, (b) the Swingline Exposure applicable to such Class at such time and (c) the Revolving L/C Exposure applicable to such Class at such time minus, for the purpose of Section 6.09 only, the amount of Letters of Credit that have been Cash Collateralized in an amount equal to the Minimum L/C Collateral Amount at such time. The Revolving Facility Credit Exposure of any Revolving Facility Lender at any time shall be the product of (x) such Revolving Facility Lender’s Revolving Facility Percentage of the applicable Class and (y) the aggregate Revolving Facility Credit Exposure of such Class of all Revolving Facility Lenders, collectively, at such time.

 

Revolving Facility Lender” shall mean a Lender (including an Incremental Revolving Facility Lender, and a Lender providing Extended Revolving Facility Commitments or Replacement Revolving Facility Commitments) with a Revolving Facility Commitment or with outstanding Revolving Facility Loans.

 

Revolving Facility Loan” shall mean a Loan made by a Revolving Facility Lender pursuant to Section 2.01(b). Unless the context otherwise requires, the term “Revolving Facility Loans” shall include the Other Revolving Loans. The term “Revolving Facility Loans” shall include Standard Revolving Loans and Sustainability Loans, as applicable.

 

Revolving Facility Maturity Date” shall mean, as the context may require, (a) with respect to the Revolving Facility in effect on the Closing Date, the fifth anniversary of the Closing Date and (b) with respect to any other Classes of Revolving Facility Commitments, the maturity dates specified therefor in the applicable Extension Amendment or Refinancing Amendment.

 

Revolving Facility Percentage” shall mean, with respect to any Revolving Facility Lender of any Class, the percentage of the total Revolving Facility Commitments of such Class represented by such Lender’s Revolving Facility Commitment of such Class. If the Revolving Facility Commitments of such Class have terminated or expired, the Revolving Facility Percentages of such Class shall be determined based upon the Revolving Facility Commitments of such Class most recently in effect, giving effect to any assignments pursuant to Section 9.04.

 

Revolving Facility Termination Event” shall have the meaning assigned to such term in Section 2.05(k).

 

Revolving L/C Exposure” of any Class shall mean at any time the sum of (a) the aggregate undrawn amount of all Letters of Credit applicable to such Class outstanding at such time and (b) the aggregate principal amount of all L/C Disbursements applicable to such Class that have not yet been reimbursed at such time. The Revolving L/C Exposure of any Class of any Revolving Facility Lender at any time shall mean its applicable Revolving Facility Percentage of the aggregate Revolving L/C Exposure applicable to such Class at such time. 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 International Standard Practices, International Chamber of Commerce No. 590, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, that with respect to any Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

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RVAC” shall have the meaning assigned to such term in the first recitals hereto.

 

S&P” shall mean Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw Hill Companies, Inc. or any successor thereto.

 

Sanctioned Country” shall mean, at any time, a country, region or territory which is itself the subject or target of any Sanctions (on the Closing Date, Crimea, Cuba, Iran, North Korea, Russia, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and Syria).

 

Sanctioned Person” shall mean, at any time, (a) any person listed in any Sanctions-related list of designated persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, HerHis Majesty’s Treasury of the United Kingdom, (b) any person operating, organized or resident in a Sanctioned Country or (c) any person owned or controlled by any such person or persons described in the foregoing clauses (a) or (b).

 

Sanctions” shall mean all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union, any European Union member state, HerHis Majesty’s Treasury of the United Kingdom.

 

SEC” shall mean the Securities and Exchange Commission or any successor thereto.

 

Secured Cash Management Agreement” shall mean any Cash Management Agreement that is entered into by and between the Borrower or any Subsidiary and any Cash Management Bank, including any such Cash Management Agreement that is in effect on the Closing Date, unless when entered into such Cash Management Agreement is designated in writing by the Borrower and such Cash Management Bank to the Administrative Agent to not be included as a Secured Cash Management Agreement.

 

Secured Hedge Agreement” shall mean any Hedging Agreement that is entered into by and between any Loan Party and any Hedge Bank, including any such Hedging Agreement that is in effect on the Closing Date, unless when entered into such Hedging Agreement is designated in writing by the Borrower and such Hedge Bank to the Administrative Agent to not be included as a Secured Hedge Agreement. Notwithstanding the foregoing, for all purposes of the Loan Documents, any Guarantee of, or grant of any Lien to secure, any obligations in respect of a Secured Hedge Agreement by a Guarantor shall not include any Excluded Swap Obligations with respect to such Guarantor.

 

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Secured Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (A) (i) the sum of, without duplication, (x) the aggregate principal amount of any Consolidated Debt of the Borrower and its Restricted Subsidiaries secured by assets of the Borrower or its Restricted Subsidiaries and (y) the aggregate principal amount of any other Consolidated Debt of the Borrower and its Subsidiaries outstanding as of the last day of the Test Period most recently ended as of such date that is then secured by Liens on the Collateral, less (ii) the Unrestricted Cash Amount as of the last day of such Test Period, to (B) Adjusted Consolidated EBITDA for such Test Period, all determined on a consolidated basis in accordance with GAAP.

 

“Secured Net Leverage Ratio Financial Covenant” shall have the meaning assigned to such term in Section 6.09(a)(i).

 

Secured Parties” shall mean, collectively, the Administrative Agent, the Collateral Agent, each Lender, each Issuing Bank, each Swingline Lender or each Hedge Bank that is party to any Secured Hedge Agreement, each Cash Management Bank that is party to any Secured Cash Management Agreement, each Supplier Receivables Bank that is party to any Secured Supplier Receivables Agreement and each Subagent appointed pursuant to Section 8.02 by the Administrative Agent with respect to matters relating to the Loan Documents or by the Collateral Agent with respect to matters relating to any Security Document.

 

Secured Supplier Receivables Agreement” shall mean any agreement related to a Permitted Supplier Receivables Sale Program entered into with a Supplier Receivables Bank.

 

Securities Act” shall mean the Securities Act of 1933, as amended.

 

Security Documents” shall mean the Collateral Agreement, each Notice of Grant of Security Interest in Intellectual Property (as defined in the Collateral Agreement), the Mortgages, and each other security agreement, pledge agreement or other instruments or documents executed and delivered pursuant to the foregoing or entered into or delivered after the Closing Date to the extent required by this Agreement or any other Loan Document, including pursuant to Section 5.10.

 

Similar Business” shall mean (i) any business the majority of whose revenues are derived from business or activities conducted by the Borrower and its Subsidiaries on the Closing Date, (ii) any business that is a natural outgrowth or reasonable extension, development or expansion of any such business or any business similar, reasonably related, incidental, complementary or ancillary to any of the foregoing or (iii) any business that in the Borrower’s good faith business judgment constitutes a reasonable diversification of businesses conducted by the Borrower and its Subsidiaries.

 

SOFR” shall mean, with respect to any Business Day, a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

 

SOFR Administrator” shall mean the NYFRB (or a successor administrator of the secured overnight financing rate).

 

SOFR Determination Date” shall have the meaning assigned to such term in the definition of “Daily Simple SOFR.”

 

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SOFR Rate Day” shall have the meaning assigned to such term in the definition of “Daily Simple SOFR.”

 

Sold Entity or Businessshall have the meaning assigned to such term in clause (II) of the definition of the term “Adjusted Consolidated EBITDA.”

 

SPAC Merger” shall have the meaning assigned to such term in the first recitals hereto.

 

Special Flood Hazard Area” shall have the meaning assigned to such term in Section 5.02(b).

 

Specified Equity Contribution” shall mean any cash common equity contribution in the Borrower during the relevant fiscal quarter or on or prior to the day that is fifteen (15) Business Days after the day on which financial statements are required to be delivered pursuant to Section 5.04(a) or 5.04(b) for such fiscal quarter, which will, at the request of the Borrower by written notice to the Administrative Agent of the intention to make such Specified Equity Contribution, be included in the calculation of Adjusted Consolidated EBITDA for purposes of determining compliance with the Financial Covenants for the applicable fiscal quarter and applicable subsequent periods that include such fiscal quarter; provided, that (a) in each consecutive four fiscal quarter period, there will be a period of two (2) fiscal quarters in which no Specified Equity Contribution is made, and only five (5) Specified Equity Contributions may be made during the term of the Facilities, (b) the amount of any Specified Equity Contribution will not exceed the amount required to cause the Borrower to be in compliance with such Financial Covenants, (c) all Specified Equity Contributions will be disregarded for purposes of determining the availability of any baskets with respect to the covenants contained herein and for purposes of netting calculations and (d) there shall be no reduction in Indebtedness pursuant to a “cash netting” provision with the proceeds of any Specified Equity Contribution for purposes of determining compliance with the Financials Covenants for the fiscal quarter for which such Specified Equity Contribution was made.

 

Specified Representations” shall mean those representations and warranties with respect to the Borrower and the Guarantors set forth in (A) Sections 3.01(a), 3.01(d) (limited to the Loan Documents), 3.02(a), 3.02(b)(i)(B), and 3.03, (B) Sections 3.10, 3.11, 3.17 (subject to the limitations set forth in the last paragraph of the definition of “Collateral and Guarantee Requirement”) and 3.18, and (C) Section 3.22 and the second sentence of Section 3.23; provided, that the Specified Representations applicable to any Incremental Facility or Other Term Loans shall be as agreed by the Lenders participating in such Incremental Facility or Other Term Loans, as applicable.

 

Specified Transaction” shall mean, with respect to any period, any Investment, Disposition, incurrence or repayment of Indebtedness, Restricted Payment, subsidiary designation or other event or occurrence that by the terms of the Loan Documents requires pro forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a “Pro Forma Basis.”

 

Standard Financial Covenants” shall have the meaning assigned to such term in Section 6.09(b).

 

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Standard Revolving Loan” shall mean a Revolving Facility Loan other than a Sustainability Loan.

 

Standard Securitization Undertakings” shall mean representations, warranties, covenants and indemnities entered into by the Borrower or any Subsidiary thereof in connection with a Qualified Receivables Facility which are reasonably customary (as determined in good faith by the Borrower) in an accounts receivable financing transaction in the commercial paper, term securitization or structured lending market.

 

Standby Letters of Credit” shall have the meaning assigned to such term in Section 2.05(a).

 

Step-Up Election” shall have the meaning assigned to such term in Section 6.09(a).

 

Subagent” shall mean any trustee, co-trustee, collateral co-agent, collateral subagent or attorneys in-fact appointed by an Agent with respect to all or any part of the Collateral.

 

subsidiary” shall mean, with respect to any person (referred to in this definition as the “parent”), any corporation, limited liability company, partnership, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, directly or indirectly, owned, Controlled or held, or (b) that is, at the time any determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

 

Subsidiary” shall mean, unless the context otherwise requires, a subsidiary of the Borrower. Notwithstanding the foregoing (and except for purposes of the definition of “Unrestricted Subsidiary” contained herein) an Unrestricted Subsidiary shall be deemed not to be a Subsidiary of the Borrower or any of its Subsidiaries for purposes of this Agreement and any reference to Subsidiary hereunder shall refer to a Restricted Subsidiary unless such Subsidiary is expressly referred to as an Unrestricted Subsidiary.

 

Subsidiary Redesignation” shall have the meaning provided in the definition of the term “Unrestricted Subsidiary.”

 

Successor Borrower” shall have the meaning assigned to such term in Section 6.05(n).

 

Supplier Receivables Bank” shall mean any person that (i) is (or any Affiliate of any person that is) an Agent, an Arranger or a Lender on the Closing Date (in the case of any Secured Supplier Receivables Agreement in existence on the Closing Date) and that enters into or is a party to a Secured Supplier Receivables Agreement with the Borrower or any of its Subsidiaries, in each case, in its capacity as a party to such Secured Supplier Receivables Agreement or (ii) is (or any Affiliate of any person that is) an Agent, an Arranger or a Lender at the time it enters into a Secured Supplier Receivables Agreement (in the case of any Secured Supplier Receivables Agreement entered into after the Closing Date) with the Borrower or any of its Subsidiaries, in each case, in its capacity as a party to such Secured Supplier Receivables Agreement.

 

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Supported QFC” shall have the meaning assigned to such term in Section 9.24.

 

Sustainability Financing Framework” shall mean the terms set forth in Schedule 1.01(b).

 

Sustainability Loan” shall mean any Revolving Facility Loan requested by the Borrower in compliance with the Sustainability Financing Framework and meeting the Sustainability Use of Proceeds Investment Criteria.

 

Sustainability Loan Report” shall have the meaning set forth in Schedule 1.01(b).

 

Sustainability Margin Adjustment” shall have the meaning set forth in Schedule 1.01(b).

 

Sustainability Structuring Agent” shall have the meaning assigned to such term in the introductory paragraph of this Agreement, together with its permitted successors and assigns.

 

Sustainability Use of Proceeds Investment Criteria” shall have the meaning set forth on Schedule 1.01(b).

 

Swap Contract” shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, including any obligations or liabilities under any such master agreement.

 

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

 

Sweep Arrangement” shall have the meaning assigned to such term in Section 2.04(b).

 

Swingline Borrowing” shall mean a Borrowing comprised of Swingline Loans.

 

Swingline Borrowing Request” shall mean a request by the Borrower substantially in the form of Exhibit D-3 or such other form as shall be approved by the Swingline Lender.

 

Swingline Commitment” shall mean, the commitment of the Swingline Lender to make Swingline Loans pursuant to Section 2.04. The aggregate amount of the Swingline Commitments is $25,000,000. The Swingline Commitment is part of, and not in addition to, the Revolving Facility Commitments.

 

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Swingline Exposure” shall mean at any time the aggregate principal amount of all outstanding Swingline Borrowings at such time. The Swingline Exposure of any Revolving Facility Lender at any time shall mean its applicable Revolving Facility Percentage of the aggregate Swingline Exposure at such time.

 

Swingline Lender” shall mean Wells Fargo Bank, National Association, in its capacity as a lender of Swingline Loans hereunder and its permitted successors and assigns. The Swingline Lender may, in its discretion, arrange for one or more Swingline Loans to be made by Affiliates of the Swingline Lender, in which case the term “Swingline Lender” shall include any such Affiliate with respect to Swingline Loans made by such Affiliate.

 

Swingline Loans” shall mean the swingline loans made to the Borrower pursuant to Section 2.04.

 

Taxes” shall mean all present or future taxes, duties, levies, imposts, assessments, deductions, withholdings or other similar charges imposed by any Governmental Authority, whether computed on a separate, consolidated, unitary, combined or other basis and any interest, fines, penalties or additions to tax with respect to the foregoing.

 

Term Benchmark” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted Term SOFR Rate.

 

Term Facility” shall mean the Initial Term Facility and/or any or all of the Other Term Facilities.

 

Term Facility Commitment” shall mean the commitment of a Term Lender to make Term Loans, including the Term Facility Commitment and/or Other Term Loans.

 

Term Facility Maturity Date” shall mean, as the context may require, (a) with respect to the Initial Term Loans and the Amendment No. 1 Delayed Draw Term Loans, the Initial Term Facility Maturity Date and (b) with respect to any other Class of Term Loans, the maturity dates specified therefor in the applicable Incremental Assumption Agreement, Extension Amendment or Refinancing Amendment.

 

Term Lender” shall mean, at any time, any Lender that holds Term Facility Commitments or Term Loans at such time.

 

Term Loan Installment Date” shall mean any Initial Term Loan Installment Date, Amendment No. 1 Delayed Draw Term Loan Installment Date or any Other Term Loan Installment Date.

 

Term Loans” shall mean the Initial Term Loans, any Incremental Term Loans (including, after any borrowing thereof, the Amendment No. 1 Delayed Draw Term Loans) in the form of additional Term Loans made by the Incremental Term Lenders to the Borrower pursuant to Section 2.01(c) and any Other Term Loans.

 

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Term SOFR Determination Day” has the meaning assigned to it under the definition of “Term SOFR Reference Rate.”

 

Term SOFR Rate” shall mean, with respect to any Term Benchmark Borrowing for any Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such Interest Period, as such rate is published by the CME Term SOFR Administrator; provided, that if the Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed equal to the Floor for the purposes of this Agreement.

 

Term SOFR Rate Loan” shall mean a Loan bearing interest based upon the Term SOFR Rate.

 

Term SOFR Reference Rate” shall mean, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Borrowing for any Interest Period, the rate per annum determined by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding Business Day is not more than five (5) Business Days prior to such Term SOFR Determination Day.

 

Termination Date” shall mean the date on which (a) all Commitments shall have been terminated, (b) the principal of and interest on each Loan, all Fees, all other expenses or amounts payable under any Loan Document and all other Loan Obligations shall have been paid in full in cash (other than in respect of contingent indemnification and expense reimbursement claims not then due) and (c) all Letters of Credit (other than those that have been Cash Collateralized with the Minimum L/C Collateral Amount in accordance with Section 2.05(k)) have been cancelled or have expired and all amounts drawn or paid thereunder have been reimbursed in full in cash.

 

Test Period” shall mean, on any date of determination, the period of four consecutive fiscal quarters of the Borrower then most recently ended (taken as one accounting period) for which financial statements have been (or were required to be) delivered pursuant to Section 5.04(a) or 5.04(b); provided, that prior to the first date financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), the Test Period in effect shall be the most recently ended full four fiscal quarter period prior to the Closing Date for which financial statements would have been required to be delivered hereunder had the Closing Date occurred prior to the end of such period.

 

Third Party Funds” shall mean any accounts or funds, or any portion thereof, received by the Borrower or any of its Subsidiaries as agent on behalf of third parties (other than Loan Parties) in accordance with a written agreement that imposes a duty upon the Borrower or one or more of its Subsidiaries to collect and remit those funds to such third parties.

 

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Total Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Total Net Debt outstanding as of the last day of the Test Period most recently ended as of such date to (b) Adjusted Consolidated EBITDA for such Test Period, all determined on a consolidated basis in accordance with GAAP.

 

“Total Net Leverage Ratio Financial Covenant” shall have the meaning assigned to such term in Section 6.09(a)(i).

 

Trade Date” shall have the meaning assigned to such term in Section 9.04(i)(i).

 

Trade Letters of Credit” shall have the meaning assigned to such term in Section 2.05(a).

 

Transaction Agreement” shall mean that Transaction Agreement, dated as of April 4, 2022, by and among Holdings, Merger Sub I, Merger Sub II and RVAC (including, but not limited to, all schedules and exhibits thereto).

 

Transaction Costs” shall mean any fees or expenses incurred or paid by any holder of Equity Interests in any Parent Entity, the Borrower or any Subsidiary in connection with the Transactions, this Agreement and any other Loan Documents and the Transactions contemplated hereby and thereby.

 

Transaction Documents” shall mean the Transaction Agreement and the Loan Documents.

 

Transactions” shall mean, collectively (a) the consummation of the SPAC Merger, (b) the Closing Date Refinancing; (c) the incurrence of the Initial Term Loans; (d) the other transactions to occur pursuant to or in connection with the Transaction Documents; and (e) the payment of all fees and expenses to be paid and owing in connection with the foregoing (including the Transaction Costs).

 

Type” shall mean, when used in respect of any Loan or Borrowing, the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, the term “Rate” shall include the applicable Term Benchmark and the ABR.

 

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

 

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

 

Unadjusted Benchmark Replacement” shall mean the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

 

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Uniform Commercial Code” shall mean the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.

 

United States” shall mean the United States of America.

 

Unpaid Amount” shall have the meaning assigned to such term in Section 6.06(n).

 

Unreimbursed Amount” shall have the meaning assigned to such term in Section 2.05(e).

 

Unrestricted Cash Amount” shall mean, on any date, the amount of cash or Permitted Investments of the Borrower or any of its Subsidiaries that would not appear as “restricted” on a consolidated balance sheet of the Borrower or any of its Subsidiaries; provided, that, solely in connection with the calculation of Consolidated Total Net Debt and the Secured Net Leverage Ratio, the Unrestricted Cash Amount shall not be deemed to be greater than (A) for the first 24 months following the Closing Date, the greater of (i) the excess of the Unrestricted Cash Amount (calculated without regard to this proviso) over $20 million and (ii) 100% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time and (B) thereafter, 100% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time.

 

Unrestricted Subsidiary” shall mean (1) any Subsidiary set forth on Schedule 1.01(a), (2) any Subsidiary of the Borrower, whether now owned or acquired or created after the Closing Date, that is designated on or after the Closing Date by the Borrower as an Unrestricted Subsidiary hereunder by written notice to the Administrative Agent; provided, that the Borrower shall only be permitted to so designate a new Unrestricted Subsidiary on or after the Closing Date so long as (a) no Default or Event of Default has occurred and is continuing or would result therefrom, (b) immediately after giving effect to such designation, the Borrower shall be in pro forma compliance with the Standard Financial Covenants as of the last day of the then most recently ended Test Period, (c) all Investments in such Unrestricted Subsidiary at the time of designation (as contemplated by the immediately following sentence) are permitted in accordance with the relevant requirements of Section 6.04, (d) such Subsidiary being designated as an “Unrestricted Subsidiary” shall also, concurrently with such designation and thereafter, constitute an “unrestricted subsidiary” under any Material Indebtedness issued or incurred on or after the Closing Date and (e) if such designation is on the Closing Date, the designation shall not occur until the conditions set forth in Section 4.01 are satisfied (or waived in accordance with Section 9.08) and the funding of the Initial Term Loans has occurred; and (3) any subsidiary of an Unrestricted Subsidiary (unless transferred to such Unrestricted Subsidiary or any of its subsidiaries by the Borrower or one or more of its Subsidiaries after the date of the designation of the parent entity as an “Unrestricted Subsidiary” hereunder, in which case the subsidiary so transferred would be required to be independently designated in accordance with the preceding clause (2)). The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower (or its Subsidiaries) therein at the date of designation in an amount equal to the Fair Market Value of the Borrower’s (or its Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 6.04 (and not as an Investment permitted thereby in a Subsidiary). The Borrower may designate any Unrestricted Subsidiary to be a Subsidiary for purposes of this Agreement (each, a “Subsidiary Redesignation”); provided, that other than with respect to Unrestricted Subsidiaries designated on the Closing Date, (i) no Default or Event of Default has occurred and is continuing or would result therefrom (after giving effect to the provisions of the immediately succeeding sentence), (ii) immediately after giving effect to such redesignation, the Borrower shall be in pro forma compliance with the Standard Financial Covenants as of the last day of the most recently ended Test Period and (iii) the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by a Responsible Officer of the Borrower, certifying to the best of such officer’s knowledge, compliance with the requirements of the preceding clause (i). The designation of any Unrestricted Subsidiary as a Subsidiary on or after the Closing Date shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a return on any Investment by the applicable Loan Party (or its relevant Subsidiaries) in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the Fair Market Value at the date of such designation of such Loan Party’s (or its relevant Subsidiaries’) Investment in such Subsidiary.

 

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

 

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

 

U.S. Special Resolution Regimes” shall have the meaning assigned to such term in Section 9.24.

 

U.S. Tax Compliance Certificate” shall have the meaning assigned to such term in Section 2.17(d)(ii)(A)(3).

 

USA PATRIOT Act” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107 56 (signed into law October 26, 2001)).

 

Voting Equity Interests” shall mean Equity Interests that are entitled to vote generally for the election of directors to the Board of Directors of the issuer thereof. Shares of preferred stock that have the right to elect one or more directors to the Board of Directors of the issuer thereof only upon the occurrence of a breach or default by such issuer thereunder shall not be considered Voting Equity Interests as long as the directors that may be elected to the Board of Directors of the issuer upon the occurrence of such a breach or default represent a minority of the aggregate voting power of all directors of Board of Directors of the issuer. The percentage of Voting Equity Interests of any issuer thereof beneficially owned by a person shall be determined by reference to the percentage of the aggregate voting power of all Voting Equity Interests of such issuer that are represented by the Voting Equity Interests beneficially owned by such person.

 

Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

 

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Wholly Owned Domestic Subsidiary” shall mean a Wholly Owned Subsidiary that is also a Domestic Subsidiary.

 

Wholly Owned Subsidiary” of any person shall mean a subsidiary of such person, all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such person or another Wholly Owned Subsidiary of such person. Unless the context otherwise requires, “Wholly Owned Subsidiary” shall mean a Subsidiary of the Borrower that is a Wholly Owned Subsidiary of the Borrower.

 

Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

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

 

Section 1.02          Terms Generally; GAAP. The definitions set forth or referred to in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Any reference herein to any person shall be construed to include such person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof. Except as otherwise expressly provided herein, any reference in this Agreement to any Loan Document shall mean such document as amended, restated, amended and restated, supplemented or otherwise modified from time to time. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided, that if at any time, any change in GAAP would affect the computation of any financial ratio or requirement in the Loan Documents and the Borrower notifies the Administrative Agent that the Borrower requests an amendment (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment), the Administrative Agent, the Lenders and the Borrower shall, at no cost to the Borrower, negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such financial ratio or requirement shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such provision is amended in accordance herewith. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value,” as defined therein, (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof and (iii) for the avoidance of doubt, except as provided in the definition of “Consolidated Net Income,” without giving effect to the financial condition, results and performance of the Unrestricted Subsidiaries.

 

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Section 1.03          Interest Rates; Benchmark Notifications. The interest rate on a Loan may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 2.14(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

 

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Section 1.04          Timing of Payment or Performance. Except as otherwise expressly provided herein, when the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day.

 

Section 1.05          Times of Day. Unless otherwise specified herein, all references herein to times of day shall be references to Local Time.

 

Section 1.06          Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., an “Initial Term Loan”) or by Type (e.g., a “Term Benchmark Loan”) or by Class and Type (e.g., a “Term Benchmark Initial Term Loan”). Borrowings also may be classified and referred to by Class (e.g., an “Initial Term Loan Borrowing”) or by Type (e.g., a “Term Benchmark Borrowing”) or by Class and Type (e.g., an “Term Benchmark Initial Term Loan Borrowing”).

 

Section 1.07          Certain Conditions, Calculations and Tests.

 

(a)           In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of:

 

(i)            determining compliance with any provision of this Agreement which requires the calculation of Adjusted Consolidated EBITDA (including, without limitation, tests measured as a percentage of Adjusted Consolidated EBITDA), the First Lien Secured Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio or the Interest Coverage Ratio (other than for purposes of any Applicable Margin);

 

(ii)           determining the accuracy of representations and warranties and/or whether a Default or Event of Default shall have occurred and be continuing (or any subset of Defaults or Events of Default); or

 

(iii)          testing availability under baskets set forth in this Agreement (including, without limitation, baskets measured as a percentage of Adjusted Consolidated EBITDA or by reference to the First Lien Secured Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio or the Interest Coverage Ratio),

 

in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be (i) in the case of a Limited Condition Acquisition, the date of the definitive agreements for such Limited Condition Acquisition are entered into or solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers (or similar law or regulation) applies, the date on which a “Rule 2.7 announcement” (or similar announcement) of a firm intention to make an offer is published on a regulatory information service in respect of a target of a Limited Condition Transaction, (ii) in the case of any redemption or repayment of Indebtedness requiring irrevocable advance notice or any irrevocable offer to purchase Indebtedness that is not subject to obtaining financing, the date of such irrevocable advance notice or irrevocable offer and (iii) in the case of any declaration of a distribution or dividend in respect of, or irrevocable advance notice of, or any irrevocable offer to, purchase, redeem or otherwise acquire or retire for value any Equity Interests of, the Borrower that is not subject to obtaining financing, the date of such declaration, irrevocable advance notice or irrevocable offer (each, an “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Test Period ended prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such test, ratio or basket, calculated on a Pro Forma Basis, then such test, ratio or basket shall be deemed to have been complied with; provided, that, if financial statements for one or more subsequent fiscal quarters shall have become available, the Borrower may, in its sole discretion, redetermine all such tests, ratios or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicable LCT Test Date for purposes of such test, ratio or basket. If the Borrower has made an LCT Election and any of the tests, ratios or baskets for which compliance was determined or tested as of the LCT Test Date are subsequently exceeded as a result of fluctuations in any such test, ratio or basket, including due to fluctuations in Adjusted Consolidated EBITDA of the Borrower and its Subsidiaries, at or prior to the consummation of the relevant transaction or action, such tests, baskets or ratios will be deemed not to have been exceeded as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken; however, if any ratios improve or baskets increase as a result of such fluctuations, such improved ratios or baskets may be utilized. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any test, ratio or basket availability (other than the testing of any ratio for purposes of the definition of “Applicable Margin”) on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the definitive agreement/announcement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio, basket or amount shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence or discharge of Indebtedness and/or Liens and the use of proceeds thereof) have been consummated.

 

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In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of determining compliance with any provision of this Agreement which requires that no Event of Default or Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Borrower, be deemed satisfied, so long as no Event of Default or Default, as applicable, exists on the LCT Test Date. If the Borrower has exercised its option under this Section 1.07 and any Event of Default or Default occurs following the LCT Test Date and prior to the consummation of the applicable transaction, any such Event of Default or Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Transaction is permitted hereunder.

 

(b)           Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision or covenant of this Agreement that does not require compliance with a financial ratio or test (including any First Lien Secured Net Leverage Ratio, the Secured Net Leverage Ratio, Total Net Leverage Ratio and/or Interest Coverage Ratio) (any such amounts, the “Fixed Amounts”) substantially concurrently or in a series of related transactions with any amounts incurred or transactions entered into (or consummated) in reliance on a provision or covenant of this Agreement that does require compliance with any such financial ratio or test (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (x) the Fixed Amounts (and any cash proceeds thereof) shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts in connection with such incurrence and (y) the entire transaction (or series of related transactions) shall be calculated on a Pro Forma Basis (including the use of proceeds of all Indebtedness to be incurred and any repayments, repurchases, redemptions or other retirements of Indebtedness). Notwithstanding anything herein to the contrary, if at any time any applicable ratio or financial test for any category based on an Incurrence-Based Amount permits Indebtedness, Liens, Restricted Payments, Junior Debt Restricted Payments, Asset Sales and Investments, as applicable, previously incurred under a category based on a Fixed Amount, such Indebtedness, Liens, Restricted Payments, Junior Debt Restricted Payments, Asset Sales and Investments, as applicable, shall be deemed to have been automatically reclassified as incurred under such category based on an Incurrence-Based Amount.

 

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Section 1.08          Effectuation of Transactions. Each of the representations and warranties of the Borrower contained in this Agreement (and all corresponding definitions) are made after giving effect to the Transactions.

 

Article II.

 

The Credits

 

Section 2.01          Commitments. Subject to the terms and conditions set forth herein:

 

(a)           each Initial Term Lender agrees to make Initial Term Loans in Dollars to the Borrower on the Closing Date in an aggregate principal amount equal to such Initial Term Lender’s Initial Term Loan Commitment,

 

(b)           each Revolving Facility Lender agrees, severally and not jointly, to make Revolving Facility Loans to the Borrower from time to time during the Availability Period in an aggregate principal amount that will not result in (i) such Revolving Facility Lender’s Revolving Facility Credit Exposure of such Class exceeding such Revolving Facility Lender’s Revolving Facility Commitment of such Class or (ii) the Revolving Facility Credit Exposure of such Class exceeding the total Revolving Facility Commitments of such Class. Revolving Facility Loans may be Standard Revolving Loans or Sustainability Loans, as elected by the Borrower. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Facility Loans,

 

(c)           each Lender having an Incremental Commitment agrees, severally and not jointly, subject to the terms and conditions set forth in the applicable Incremental Assumption Agreement, to make Incremental Loans to the Borrower, in an aggregate principal amount not to exceed its Incremental Commitment, and

 

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(d)           the full amount of the Initial Term Loans must be drawn in a single drawing on the Closing Date and amounts of such Initial Term Loans borrowed under Section 2.01(a) that are repaid or prepaid may not be reborrowed.

 

Section 2.02          Loans and Borrowings.

 

(a)            Each Loan shall be made as part of a Borrowing consisting of Loans under the same Facility and of the same Type made by the Lenders ratably in accordance with their respective Commitments under the applicable Facility (or, in the case of Swingline Loans, in accordance with their respective Swingline Commitments); provided, however, that Revolving Facility Loans of any Class shall be made by the Revolving Facility Lenders of such Class ratably in accordance with their respective Revolving Facility Percentages on the date such Loans are made hereunder. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

 

(b)           Subject to Section 2.14(b), each Borrowing (other than a Swingline Borrowing) shall be comprised entirely of ABR Loans or Term Benchmark Loans as the Borrower may request in accordance herewith. Each Borrowing of Initial Revolving Loans shall be comprised entirely of Standard Revolving Loans or Sustainability Loans as the Borrower may request in accordance herewith. Each Swingline Borrowing shall be comprised of the Types of Loans set forth in Section 2.04. Each Lender at its option may make any Term Benchmark Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided, that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

 

(c)            [Reserved].

 

(d)           At the commencement of each Interest Period for any Term Benchmark Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided, that a Term Benchmark Borrowing under the Revolving Facility may be in an aggregate amount that is equal to the entire unused available balance of the Revolving Facility Commitments or that is required to finance the reimbursement of an L/C Disbursement as contemplated by Section 2.05(e). At the time that each ABR Revolving Facility Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided, that an ABR Revolving Facility Borrowing may be in an aggregate amount that is equal to the entire unused available balance of the Revolving Facility Commitments or that is required to finance the reimbursement of an L/C Disbursement as contemplated by Section 2.05(e). Each Swingline Borrowing shall be in an amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum. Borrowings of more than one Type and Class may be outstanding at the same time; provided, however, that the Borrower shall not be entitled to request any Borrowing that, if made, would result in more than (i) 10 Term Benchmark Borrowings outstanding under all Term Facilities at any time or (ii) 10 Term Benchmark Borrowings outstanding under all Revolving Facilities at any time. Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.

 

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(e)            Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing of any Class if the Interest Period requested with respect thereto would end after the Revolving Facility Maturity Date or Term Facility Maturity Date for such Class, as applicable.

 

Section 2.03           Requests for Borrowings. To request a Revolving Facility Borrowing and/or Term Loan Borrowing, the Borrower shall notify the Administrative Agent of such request (a) in the case of a Term Benchmark Borrowing, not later than 12:00 p.m., Local Time, three (3) Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 p.m., Local Time, on the Business Day of the proposed Borrowing; provided, that, to request a Term Benchmark Borrowing or ABR Borrowing on the Closing Date, the Borrower shall notify the Administrative Agent of such request no later than 5:00 p.m., Local Time, one (1) Business Day prior to such date (or such later time as the Administrative Agent may agree). Each such Borrowing Request shall be irrevocable (other than in the case of any notice given in respect of the Closing Date, which may be conditioned upon the consummation of the SPAC Merger). Each such Borrowing Request shall specify the following information in compliance with Section 2.02:

 

(i)             whether such Borrowing is to be a Borrowing of Initial Term Loans, Other Term Loans or Revolving Facility Loans of a particular Class, as applicable;

 

(ii)           the aggregate amount of the requested Borrowing;

 

(iii)          the date of such Borrowing, which shall be a Business Day;

 

(iv)          whether such Borrowing is to be an ABR Borrowing or a Term Benchmark Borrowing;

 

(v)           in the case of a Term Benchmark Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”;

 

(vi)          in the case of a Revolving Facility Borrowing, whether such Borrowing is to be for Standard Revolving Loans or Sustainability Loans; and

 

(vii)         the location and number of the Borrower’s account to which funds are to be disbursed.

 

If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Term Benchmark Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one (1) month’s duration. In the case of a Revolving Facility Borrowing, if no election is made pursuant to clause (vi) above then the Borrower shall be deemed to have selected Standard Revolving Loans. Promptly following receipt of a Borrowing Request in accordance with this Section 2.03, the Administrative Agent shall advise each applicable Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

 

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Section 2.04          Swingline Loans.

 

(a)            Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans in Dollars to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding the Swingline Commitment, (ii) the aggregate amount of Swingline Loans, Letters of Credit and Revolving Facility Loans outstanding issued by the Swingline Lender exceeding the Swingline Lender’s Revolving Facility Commitment or (iii) the Revolving Facility Credit Exposure of the applicable Class exceeding the total Revolving Facility Commitments of such Class; provided, that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Borrowing. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. For the avoidance of doubt, Swingline Loans will not be Sustainability Loans.

 

(b)           To request a Swingline Borrowing, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request by telephone (confirmed by a Swingline Borrowing Request by electronic means if requested by the Administrative Agent or the Swingline Lender), not later than 2:00 p.m., Local Time, on the day of a proposed Swingline Borrowing. Each such notice and Swingline Borrowing Request shall be irrevocable and shall specify (i) the requested date of such Swingline Borrowing (which shall be a Business Day) and (ii) the amount of the requested Swingline Borrowing. The Swingline Lender shall consult with the Administrative Agent as to whether the making of the Swingline Loan is in accordance with the terms of this Agreement prior to the Swingline Lender funding such Swingline Loan. The Swingline Lender and the Borrower shall agree upon the interest rate applicable to such Swingline Loan; provided, that if such agreement cannot be reached prior to 2:00 p.m., Local Time, on the day of such proposed Swingline Loan, then such Swingline Loan shall bear interest at the Daily Simple SOFR Rate plus the Applicable Margin for Term Benchmark Loans plus 0.50%. Any funding of a Swingline Loan by the Swingline Lender shall be made on the proposed date thereof by wire transfer of immediately available funds by 3:00 p.m., Local Time, to the account of the Borrower identified by the Borrower to the Swingline Lender (or, in the case of a Swingline Borrowing made to finance the reimbursement of an L/C Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank).

 

Subject to the terms and conditions hereof, the Borrower may borrow, repay and reborrow Swingline Loans hereunder until the Revolving Facility Maturity Date or if earlier, the date of termination of the Swingline Commitment pursuant to Section 2.08. Notwithstanding any provision herein to the contrary, the Swingline Lender and the Borrower may agree (at the sole discretion of the Borrower) that the Swingline Loans may be automatically drawn and repaid (subject to the limitations set forth herein) pursuant to cash management arrangements between the Borrower and the Swingline Lender (the “Sweep Arrangement”). Principal and interest on Swingline Loans deemed requested pursuant to the Sweep Arrangement shall be paid pursuant to the terms and conditions agreed to between the Borrower and the Swingline Lender (without any deduction, set-off or counterclaim whatsoever). The borrowing and disbursement provisions set forth in Section 2.03 and any other provision hereof with respect to the timing or amount of payments on the Swingline Loans shall not be applicable to Swingline Loans made and prepaid pursuant to the Sweep Arrangement. Unless sooner paid pursuant to the provisions hereof or the provisions of the Sweep Arrangement, the principal amount of the Swingline Loans shall be paid in full, together with accrued interest thereon, on the Revolving Credit Maturity Date.

 

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(c)            The Swingline Lender may, by written notice given to the Administrative Agent not later than 1:00 p.m., Local Time, on any Business Day, require the Revolving Facility Lenders of the applicable Class to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans made by it. Such notice shall specify the aggregate amount of such Swingline Loans in which the Revolving Facility Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each such Lender, specifying in such notice such Revolving Facility Lender’s applicable Revolving Facility Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender hereby absolutely and unconditionally agrees, promptly upon receipt of notice as provided above (and in any event, (i) if such notice is received by 1:00 p.m., Local Time, on a Business Day, then no later than 5:00 p.m. Local Time on such Business Day and (ii) if such notice is received at or after 1:00 p.m., Local Time, on a Business Day, then no later than 10:00 a.m. Local Time on the immediately succeeding Business Day), to pay to the Administrative Agent for the account of the Swingline Lender, such Revolving Facility Lender’s applicable Revolving Facility Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender acknowledges and agrees that its respective obligation to acquire participations in Swingline Loans pursuant to this paragraph (c) is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination of any Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Facility Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Revolving Facility Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Facility Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph (c), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Facility Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided, that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.

 

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(d)            Notwithstanding anything herein to the contrary, if there at any time exists a Defaulting Lender, unless such Lender’s Fronting Exposure has been reallocated to other Lenders in accordance with Section 2.24(a), before making any Swingline Loans, the Swingline Lender may condition the provision of such Swingline Loans on its entering into arrangements satisfactory to the Swingline Lender with the Borrower or such Defaulting Lender to eliminate the Swingline Lender’s Fronting Exposure.

 

Section 2.05          Letters of Credit.

 

(a)            General. Subject to the terms and conditions set forth herein, the Borrower may request the issuance of one or more letters of credit denominated in Dollars in the form of (x) trade letters of credit in support of trade obligations of the Borrower and its Subsidiaries incurred in the ordinary course of business (such letters of credit issued for such purposes, “Trade Letters of Credit”) and (y) standby letters of credit issued for any other lawful purposes of the Borrower and its Subsidiaries (such letters of credit issued for such purposes, “Standby Letters of Credit”; each such letter of credit issued hereunder, a “Letter of Credit” and collectively, the “Letters of Credit”) for its own account or for the account of any Subsidiary (in which case such Letter of Credit shall be deemed issued for the joint and several account of the Borrower and such Subsidiary) in a form reasonably acceptable to the applicable Issuing Bank, at any time and from time to time during the applicable Availability Period and prior to the date that is five (5) Business Days prior to the applicable Revolving Facility Maturity Date. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Notwithstanding anything herein to the contrary: (x) the Issuing Banks shall have no obligation hereunder to issue, and shall not issue, any Letter of Credit the proceeds of which would be made available to any person (i) to fund any activity or business of or with any Sanctioned Person, or in any country or territory that, at the time of such funding, is the subject of any Sanctions or (ii) in any manner that would result in a violation of any Sanctions by any party to this Agreement and (y) no Issuing Bank shall at any time be obligated to issue any Letter of Credit hereunder if (i) such issuance would violate one or more of the policies and procedures of such Issuing Bank applicable to letters of credit generally or (ii) such Issuing Bank does not as of the issuance date of the requested Letter of Credit issue Letters of Credit in the requested currency.

 

(b)            Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal (other than an automatic extension in accordance with paragraph (c) of this Section 2.05) or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable Issuing Bank and the Administrative Agent (at least three (3) Business Days in advance of the requested date of issuance, amendment or extension or such shorter period as the Administrative Agent and the Issuing Bank in their sole discretion may agree) a notice in the form of Exhibit D-2 requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended or extended, and specifying the date of issuance, amendment or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section 2.05), the amount of such Letter of Credit, the name and address of the beneficiary thereof, whether such Letter of Credit constitutes a Standby Letter of Credit or a Trade Letter of Credit and such other information as shall be necessary to issue, amend or extend such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form and related documents in connection with any request for a Letter of Credit and in connection with any request for a Letter of Credit to be amended, renewed, modified or extended. A Letter of Credit shall be issued, amended or extended only if (and upon issuance, amendment or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment or extension, (i) the Revolving Facility Credit Exposure shall not exceed the Revolving Facility Commitments, (ii) unless the applicable Issuing Bank otherwise agrees, the stated amount of all outstanding Letters of Credit issued by such Issuing Bank shall not exceed the Letter of Credit Individual Sublimit of such Issuing Bank then in effect, (iii) unless the applicable Issuing Bank otherwise agrees, with respect to such Issuing Bank, the sum of the aggregate face amount of outstanding Letters of Credit issued by such Issuing Bank, when aggregated with the outstanding Revolving Facility Loans and Swingline Loans funded by such Issuing Bank, shall not exceed its Revolving Facility Commitment and (iv) the Revolving L/C Exposure shall not exceed the applicable Letter of Credit Sublimit.

 

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(c)            Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year (unless otherwise mutually agreed upon by the Borrower and the applicable Issuing Bank) after the date of the issuance of such Letter of Credit (or, in the case of any extension thereof, one year (unless otherwise mutually agreed upon by the Borrower and the applicable Issuing Bank) after such renewal or extension) and (ii) the date that is five (5) Business Days prior to the applicable Revolving Facility Maturity Date; provided, that any Letter of Credit may provide for automatic renewal or extension thereof for an additional period of up to twelve (12) months (which, in no event, shall extend beyond the date referred to in subclause (ii) of this clause (c), except to the extent Cash Collateralized or backstopped pursuant to an arrangement reasonably acceptable to the relevant Issuing Bank) so long as such Letter of Credit (any such Letter of Credit, an “Auto Renewal Letter of Credit”) permits the Issuing Bank to prevent any such extension at least once in each twelve (12)-month period (commencing with the date of issuance of such Auto Renewal Letter of Credit) by giving prior notice to the beneficiary thereof within a time period during such twelve (12)-month period to be agreed upon at the time such Auto Renewal Letter of Credit is issued; provided, further, that if the Issuing Bank consents in its sole discretion, the expiration date on any Letter of Credit may extend beyond the date referred to in subclause (ii) above but the participations of the Lenders with Revolving Facility Commitments of the applicable Class shall terminate on the applicable Revolving Facility Maturity Date. If any such Letter of Credit is outstanding or is issued under the Revolving Facility Commitments of any Class after the date that is five (5) Business Days prior to the Revolving Facility Maturity Date for such Class the Borrower shall provide Cash Collateral pursuant to documentation reasonably satisfactory to the Collateral Agent and the relevant Issuing Bank in an amount equal to the face amount of each such Letter of Credit on or prior to the date that is five (5) Business Days prior to such Revolving Facility Maturity Date or, if later, such date of issuance. Unless otherwise directed by the applicable Issuing Bank, the Borrower shall not be required to make a specific request to such Issuing Bank for any such renewal. Once an Auto Renewal Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the applicable Issuing Bank to permit the renewal of such Letter of Credit at any time to an expiry date not later than such Revolving Facility Maturity Date (except as otherwise provided in the second proviso to this clause (c)).

 

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(d)           Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) under the Revolving Facility Commitments of any Class and without any further action on the part of the applicable Issuing Bank or the Revolving Facility Lenders, such Issuing Bank hereby grants to each Revolving Facility Lender under such Class, and each such Revolving Facility Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Facility Lender’s applicable Revolving Facility Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Facility Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Revolving Facility Lender’s applicable Revolving Facility Percentage of each L/C Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section 2.05, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Facility Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

 

(e)            Reimbursement. If the applicable Issuing Bank shall make any L/C Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such L/C Disbursement by paying to the Administrative Agent an amount equal to such L/C Disbursement not later than 12:00 noon, Local Time, on the day that is one (1) Business Day after notice of such L/C Disbursement is received by the Borrower, together with accrued interest thereon from the date of such L/C Disbursement at the rate applicable to ABR Revolving Loans of the applicable Class; provided, that the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or Section 2.04 that such payment be financed with an ABR Revolving Facility Borrowing or a Swingline Borrowing of the applicable Class, as applicable, and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Borrowing (and with interest owing thereon from the date of the respective L/C Disbursement). If the Borrower fails to reimburse any L/C Disbursement when due, then the Administrative Agent shall promptly notify the applicable Issuing Bank and each other applicable Revolving Facility Lender of the applicable L/C Disbursement, the payment then due from the Borrower in respect thereof (the “Unreimbursed Amount”) and, in the case of a Revolving Facility Lender, such Lender’s Revolving Facility Percentage thereof. Promptly following receipt of such notice, each Revolving Facility Lender with a Revolving Facility Commitment of the applicable Class shall pay to the Administrative Agent its Revolving Facility Percentage of the Unreimbursed Amount in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Facility Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from the Revolving Facility Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this clause (e), the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Facility Lenders have made payments pursuant to this clause (e) to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any payment made by a Revolving Facility Lender pursuant to this clause (e) to reimburse an Issuing Bank for any L/C Disbursement (other than the funding of an ABR Revolving Loan or a Swingline Borrowing as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligations to reimburse such L/C Disbursement.

 

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(f)            Obligations Absolute. The Borrower’s obligation to reimburse L/C Disbursements as provided in clause (e) of this Section 2.05 shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.05, constitute a legal or equitable discharge of, or provide a right of set-off against, the Borrower’s obligations hereunder.

 

(g)            Disbursement Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by electronic means) of any such demand for payment under a Letter of Credit and whether such Issuing Bank has made or will make an L/C Disbursement thereunder; provided, that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligations to reimburse such Issuing Bank and the Revolving Facility Lenders with respect to any such L/C Disbursement.

 

(h)            Interim Interest. If an Issuing Bank shall make any L/C Disbursement, then, unless the Borrower reimburses such L/C Disbursement in full on the date such L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such L/C Disbursement is made to but excluding the date that the Borrower reimburses such L/C Disbursement, at the rate per annum then applicable to ABR Revolving Loans of the applicable Class; provided, that, if such L/C Disbursement is not reimbursed by the Borrower when due pursuant to clause (e) of this Section 2.05, then Section 2.13(d) shall apply. Interest accrued pursuant to this clause (h) shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Facility Lender pursuant to clause (e) of this Section 2.05 to reimburse such Issuing Bank shall be for the account of such Revolving Facility Lender to the extent of such payment.

 

(i)             Replacement of an Issuing Bank. An Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Revolving Facility Lenders of any such replacement of an Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12. From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of such Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement but shall not be required to issue additional Letters of Credit.

 

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(j)             Cash Collateralization Following Certain Events. If and when the Borrower is required to Cash Collateralize any Revolving L/C Exposure relating to any outstanding Letters of Credit pursuant to any of Section 2.11(d), 2.11(e), 2.24(a)(v) or 7.01, the Borrower shall deposit in an account with or at the direction of the Collateral Agent, in the name of the Collateral Agent and for the benefit of the Revolving Facility Lenders, an amount in cash equal to 102% of the Revolving L/C Exposure as of such date plus any accrued but unpaid interest thereon (or, in the case of Sections 2.11(d), 2.11(e) and 2.24(a)(v), the portion thereof required by such Sections). Each deposit of Cash Collateral (x) made pursuant to this paragraph or (y) made by the Administrative Agent pursuant to Section 2.24(a)(ii), in each case, shall be held by the Collateral Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. The Collateral Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account and the Borrower hereby grants the Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in such account. Other than any interest earned on the investment of such deposits, which investments shall be made (unless an Event of Default shall be continuing) at the Borrower’s request in Permitted Investments and at the risk and expense of the Borrower, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Collateral Agent to reimburse each Issuing Bank for L/C Disbursements for which such Issuing Bank has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the Revolving L/C Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with Revolving L/C Exposure representing greater than 50% of the total Revolving L/C Exposure), be applied to satisfy other Loan Obligations. If the Borrower is required to provide an amount of Cash Collateral hereunder as a result of the occurrence of an Event of Default or the existence of a Defaulting Lender or the occurrence of a limit under Sections 2.11(d) or (e) being exceeded, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of Default have been cured or waived or the termination of the Defaulting Lender status or the limits under Sections 2.11(d) and (e) no longer being exceeded, as applicable.

 

(k)            Cash Collateralization Following Termination of the Revolving Facility. Notwithstanding anything to the contrary herein, in the event of the prepayment in full of all outstanding Revolving Facility Loans and the termination of all Revolving Facility Commitments (a “Revolving Facility Termination Event”) in connection with which the Borrower notifies any one or more Issuing Banks that it intends to maintain one or more Letters of Credit initially issued under this Agreement in effect after the date of such Revolving Facility Termination Event (each, a “Continuing Letter of Credit”), then the security interest of the Collateral Agent in the Collateral under the Security Documents may be terminated in accordance with Section 9.18 if each such Continuing Letter of Credit is Cash Collateralized (in the same currency in which such Continuing Letter of Credit is denominated) in an amount equal to the Minimum L/C Collateral Amount, which shall be deposited with or at the direction of each such Issuing Bank.

 

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(l)            Additional Issuing Banks. From time to time, the Borrower may by notice to the Administrative Agent designate any Lender (in addition to the initial Issuing Banks) which agrees (in its sole discretion) to act in such capacity and is reasonably satisfactory to the Administrative Agent as an Issuing Bank. Each such additional Issuing Bank shall execute a counterpart of this Agreement upon the approval of the Administrative Agent, the Issuing Banks and the Swingline Lender (which approval shall not be unreasonably withheld) and shall thereafter be an Issuing Bank hereunder for all purposes.

 

(m)          Reporting. Unless otherwise requested by the Administrative Agent, each Issuing Bank (other than the Administrative Agent or its Affiliates) shall (i) provide to the Administrative Agent copies of any notice received from the Borrower pursuant to Section 2.05(b) no later than the next Business Day after receipt thereof and (ii) report in writing to the Administrative Agent (A) on or prior to each Business Day on which such Issuing Bank expects to issue, amend or extend any Letter of Credit, the date of such issuance, amendment or extension, and the aggregate face amount of the Letters of Credit to be issued, amended or extended by it and outstanding after giving effect to such issuance, amendment or extension occurred (and whether the amount thereof changed), and the Issuing Bank shall be permitted to issue, amend or extend such Letter of Credit if the Administrative Agent shall not have advised the Issuing Bank that such issuance, amendment or extension would not be in conformity with the requirements of this Agreement, (B) on each Business Day on which such Issuing Bank makes any L/C Disbursement, the date of such L/C Disbursement and the amount of such L/C Disbursement and (C) on any other Business Day, such other information with respect to the outstanding Letters of Credit issued by such Issuing Bank as the Administrative Agent shall reasonably request.

 

Section 2.06          Funding of Borrowings.

 

(a)            Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 1:00 p.m., Local Time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided, that Swingline Loans shall be made as provided in Section 2.04. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower as specified in the applicable Borrowing Request; provided, that Borrowings made to finance the reimbursement of an L/C Disbursement and reimbursements as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.

 

(b)           Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with clause (a) of this Section 2.06 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of (A) the NYFRB Rate and (B) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of a payment to be made by the Borrower, the interest rate then applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing. The foregoing shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

 

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Section 2.07          Interest Elections.

 

(a)            Each Borrowing initially shall be of the Type, and under the applicable Class, specified in the applicable Borrowing Request and, in the case of a Term Benchmark Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Term Benchmark Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.07. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. Standard Revolving Loans may not be converted to Sustainability Loans or vice versa. This Section 2.07 shall not apply to Swingline Loans, which may not be converted or continued. Notwithstanding any other provision of this Section 2.07, the Borrower shall not be permitted to change the Class of any Borrowing.

 

(b)            To make an election pursuant to this Section 2.07, the Borrower shall notify the Administrative Agent of such election by delivery of a written Interest Election Request signed by the Borrower by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type and Class resulting from such election to be made on the effective date of such election. Each such Interest Election Request shall be irrevocable. Notwithstanding any contrary provision herein, this Section 2.07 shall not be construed to permit the Borrower to (i) elect an Interest Period for Term Benchmark Loans that, in either case, does not comply with Section 2.02(d) or (ii) convert any Borrowing to a Borrowing of a Type not available under the Class of Commitments or Loans pursuant to which such Borrowing was made.

 

(c)            Each Interest Election Request shall specify the following information in compliance with Section 2.02:

 

(i)             the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to subclauses (iii) and (iv) below shall be specified for each resulting Borrowing);

 

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(ii)           the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

 

(iii)          whether the resulting Borrowing is to be an ABR Borrowing or a Term Benchmark Borrowing; and

 

(iv)          if the resulting Borrowing is a Term Benchmark Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which Interest Period shall be a period contemplated by the definition of the term “Interest Period.”

 

If any such Interest Election Request requests a Term Benchmark Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one (1) month’s duration. If less than all the outstanding principal amount of any Borrowing shall be converted or continued, then each resulting Borrowing shall be in an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum and satisfy the limitations specified in Section 2.02(d) regarding the maximum number of Borrowings of the relevant Type.

 

(d)            Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender to which such Interest Election Request relates of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

(e)            If the Borrower fails to deliver a timely Interest Election Request with respect to a Term Benchmark Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be continued as a Term Benchmark Borrowing, as applicable, with an Interest Period of one (1) month’s duration. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the written request (including a request through electronic means) of (A) in the case of any such Loans other than Amendment No. 1 Delayed Draw Term Loans, the Required Lenders or (B) in the case of Amendment No. 1 Delayed Draw Term Loans, the Required Delayed Draw Term Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Term Benchmark Borrowing and (ii) unless repaid, each Term Benchmark Borrowing shall be converted to an ABR Borrowing denominated in Dollars.

 

Section 2.08           Termination and Reduction of Commitments.

 

(a)            Unless previously terminated, the Revolving Facility Commitments of each Class shall automatically and permanently terminate on the applicable Revolving Facility Maturity Date for such Class. On the Closing Date (after giving effect to the funding of the requested amount of Initial Term Loans by the Initial Term Lenders), the Initial Term Loan Commitments of the Initial Term Lenders will automatically and permanently terminate. The Amendment No. 1 Delayed Draw Term Loan Commitments will be permanently reduced ratably among the Amendment No. 1 Delayed Draw Term Loan Lenders on a dollar-for-dollar basis upon each making of Amendment No. 1 Delayed Draw Term Loans. The Amendment No. 1 Delayed Draw Term Loan Commitment of each Amendment No. 1 Delayed Draw Term Loan Lender shall be automatically and permanently reduced to zero upon the Amendment No. 1 Delayed Draw Termination Date, whether or not the full amount of available Amendment No. 1 Delayed Draw Term Loan Committed Amounts are borrowed.

 

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(b)           The Borrower may at any time terminate, or from time to time reduce, the Revolving Facility Commitments of any Class; provided, that (i) each reduction of the Revolving Facility Commitments of any Class shall be in an amount that is an integral multiple of $5,000,000 and not less than $10,000,000 (or, if less, the remaining amount of the Revolving Facility Commitments of such Class) and (ii) the Borrower shall not terminate or reduce the Revolving Facility Commitments of any Class if, after giving effect to any concurrent prepayment of the Revolving Facility Loans in accordance with Section 2.11 and any Cash Collateralization of Letters of Credit in accordance with Section 2.05(j) or (k), as applicable, the Revolving Facility Credit Exposure of such Class (excluding any Cash Collateralized Letter of Credit, to the extent so Cash Collateralized) would exceed the total Revolving Facility Commitments of such Class.

 

(c)            The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Facility Commitments of any Class under clause (b) of this Section 2.08 at least three (3) Business Days prior to the effective date of such termination or reduction (or such shorter period acceptable to the Administrative Agent), specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the applicable Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section 2.08 shall be irrevocable; provided, that a notice of termination or reduction of the Revolving Facility Commitments of any Class delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, indentures or similar agreements or other transactions, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied or waived by the Borrower. Any termination or reduction of the Commitments shall be permanent. Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Commitments of such Class.

 

(d)            The Borrower shall have the right to terminate or permanently reduce the unused portion of the Amendment No. 1 Delayed Draw Term Loan Commitments, without premium or penalty (except with respect to the payment of the applicable Amendment No. 1 Delayed Draw Commitment Fee pursuant to Section 2.12(d))at any time or from time to time upon not less than three (3) Business Days’ prior written notice to the Administrative Agent (who shall notify the Lenders thereof as soon as practicable) of each such termination or reduction, which notice shall specify the effective date thereof and the amount of any such reduction which shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000 or, if less, the entire remaining outstanding amount of Amendment No. 1 Delayed Draw Term Loan Commitments. Each notice delivered pursuant to this Section 2.08(d) shall be revocable by the Borrower (by notice to the Administrative Agent on or prior to the proposed termination or reduction date specified therein). Any termination or reduction of the Amendment No. 1 Delayed Draw Term Loan Commitments shall be permanent. Each reduction of the Amendment No. 1 Delayed Draw Term Loan Commitments shall be made ratably to the Amendment No. 1 Delayed Draw Term Loan Commitments of each Lender.

 

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Section 2.09          Repayment of Loans; Evidence of Debt.

 

(a)            The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Revolving Facility Lender the then unpaid principal amount of each Revolving Facility Loan on the Revolving Facility Maturity Date applicable to such Revolving Facility Loans, (ii) to the Administrative Agent for the account of each Term Lender the then unpaid principal amount of each Term Loan of such Term Lender as provided in Section 2.10 and (iii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan applicable to any Class of Revolving Facility Commitments on the Revolving Facility Maturity Date for such Class.

 

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

 

(c)            The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Facility, Class and Type thereof and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) any amount received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

 

(d)           The entries made in the accounts maintained pursuant to clause (a) or (b) of this Section 2.09 shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided, that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.

 

(e)            Any Lender may request that Loans made by it be evidenced by a promissory note (a “Note”). In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in the form attached hereto as Exhibit H, or in another form approved by such Lender, the Administrative Agent and the Borrower in their sole discretion. Thereafter, unless otherwise agreed to by the applicable Lender, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the payee named therein (or, if requested by such payee, to such payee and its registered assigns).

 

Section 2.10           Repayment of Term Loans and Revolving Facility Loans.

 

(a)           Subject to the other clauses of this Section 2.10 and to Section 9.08(e):

 

(i)             the Borrower shall repay principal of outstanding Initial Term Loans on the last day of each March, June, September and December of each year (commencing on December 31, 2022) and on the Initial Term Facility Maturity Date or, if any such date is not a Business Day, on the immediately preceding Business Day (each such date being referred to as an “Initial Term Loan Installment Date”), in an aggregate principal amount of such Initial Term Loans equal to (A) in the case of any Initial Term Loan Installment Date prior to the Initial Term Facility Maturity Date, (i) for the first Initial Term Loan Installment Date through the twelfth Initial Term Loan Installment Date, 1.25% of the aggregate principal amount of the Initial Term Loans incurred on the Closing Date, (ii) for the thirteenth Initial Term Loan Installment Date through the sixteenth Initial Term Loan Installment Date, 1.875% of the aggregate principal amount of the Initial Term Loans incurred on the Closing Date and (iii) for the seventeenth Initial Term Loan Installment Date through the twentieth Initial Term Loan Installment Date, 2.5% of the aggregate principal amount of the Initial Term Loans incurred on the Closing Date and (B) in the case of such payment due on the Initial Term Facility Maturity Date, an amount equal to the then unpaid principal amount of such Initial Term Loans outstanding;

 

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(ii)           the Borrower shall repay principal of outstanding Amendment No. 1 Delayed Draw Term Loans on the last day of each March, June, September and December of each year (commencing on June 30, 2024) and on the Amendment No. 1 Delayed Draw Maturity Date or, if any such date is not a Business Day, on the immediately preceding Business Day (each such date being referred to as an “Amendment No. 1 Delayed Draw Term Loan Installment Date”), in an aggregate principal amount of such Amendment No. 1 Delayed Term Loans equal to (A) in the case of any Amendment No. 1 Delayed Term Loan Installment Date prior to the Amendment No. 1 Delayed Draw Maturity Date, (i) for the first Amendment No. 1 Delayed Draw Term Loan Installment Date through the sixth Amendment No. 1 Delayed Draw Term Loan Installment Date, 1.25% of the aggregate principal amount of the Amendment No. 1 Delayed Draw Term Loans then outstanding, (ii) for the seventh Amendment No. 1 Delayed Draw Term Loan Installment Date through the tenth Amendment No. 1 Delayed Draw Term Loan Installment Date, 1.875% of the aggregate principal amount of the Amendment No. 1 Delayed Draw Term Loans then outstanding and (iii) for the eleventh Amendment No. 1 Delayed Draw Term Loan Installment Date through the fourteenth Amendment No. 1 Delayed Draw Term Loan Installment Date, 2.5% of the aggregate principal amount of the Amendment No. 1 Delayed Draw Term Loans then outstanding; provided that the Borrower will be permitted from time to time to re-establish the amortization schedule to make any Amendment No. 1 Delayed Draw Term Loan fungible with any Amendment No. 1 Delayed Draw Term Loans then outstanding, and (B) in the case of such payment due on the Amendment No. 1 Delayed Draw Maturity Date, an amount equal to the then unpaid principal amount of such Amendment No. 1 Delayed Draw Term Loans outstanding;

 

(iii)          in the event that any O