As filed with the Securities and Exchange Commission on September 11, 2026.
No. 333-298715
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Accelevation Holdings Corp.
(Exact name of registrant as specified in its charter)
Delaware | 3620 | 42-3222150 |
(State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification No.) |
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Telephone: (937) 258-0616
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Michael Rubiera
Chief Executive Officer
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Telephone: (937) 258-0616
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
Robert M. Hayward, P.C. Robert E. Goedert, P.C. Kirkland & Ellis LLP 333 West Wolf Point Plaza Chicago, Illinois 60654 (312) 862-2000 | David W. Azarkh John G. O’Connell Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, New York 10017 (212) 455-2000 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box:o
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See
the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☐ | Accelerated filer | ☐ | |
Non-accelerated filer | ☒ | Smaller reporting company | ☐ | |
Emerging growth company | ☒ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further
amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until
this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
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EXPLANATORY NOTE
This Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333-298715) of Accelevation
Holdings Corp. is being filed for the purpose of filing certain exhibits as indicated in Part II of this Amendment No.
1. This Amendment No. 1 consists only of the facing page, this explanatory note, Part II of the Registration
Statement, the signature page to the Registration Statement and the filed exhibits. This Amendment No. 1 does not
modify any provision of the prospectus that forms a part of the Registration Statement. Accordingly, the preliminary
prospectus constituting Part I of the Registration Statement has been omitted.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth all costs and expenses, other than the underwriting discounts and commissions
payable by us, in connection with the offer and sale of the securities being registered. All amounts shown are
estimates except for the Securities and Exchange Commission, or SEC, registration fee and the FINRA filing fee.
Amount to be Paid | |
SEC registration fee .............................................................................................................................. | $* |
FINRA filing fee ................................................................................................................................... | * |
Exchange listing fee .............................................................................................................................. | * |
Printing expenses .................................................................................................................................. | * |
Legal fees and expenses ........................................................................................................................ | * |
Accounting fees and expenses .............................................................................................................. | * |
Transfer agent fees and registrar fees ................................................................................................... | * |
Miscellaneous expenses ........................................................................................................................ | * |
Total expenses ....................................................................................................................................... | $* |
__________________
*To be provided by amendment.
Item 14. Indemnification of Directors and Officers
Section 102(b)(7) of the DGCL allows a corporation to provide in its certificate of incorporation that an officer
or director of the corporation will not be personally liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director or officer, except for liability for, (i) with respect to officers and
directors, any breach of the officer’s or director’s duty of loyalty to the corporation or its stockholders, (ii) with
respect to officers and directors, acts or omission not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) with respect to directors, payments of unlawful dividends or unlawful stock
repurchases or redemptions under Section 174 of the DGCL, (iv) with respect to officers and directors, any
transaction from which the officer or director derived an improper personal benefit, or (v) with respect to officers,
any action by or in the right of the corporation. Our certificate of incorporation will provide for this limitation of
liability.
Section 145 of the DGCL (“Section 145”) provides that a Delaware corporation may indemnify any person who
was, is or is threatened to be made party to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason
of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving
at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that
such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the
corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to
believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who were or are a
party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact
that such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity
may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with
the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the corporation’s best interests, provided that no indemnification is
permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action
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referred to above, the corporation must indemnify him or her against the expenses which such officer or director has
actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against
him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not
the corporation would otherwise have the power to indemnify him or her under Section 145.
Our bylaws will provide that we will indemnify our directors and officers to the fullest extent authorized by the
DGCL and must also pay expenses incurred in defending any such proceeding in advance of its final disposition
upon delivery of an undertaking by or on behalf of an indemnified person to repay all amounts so advanced if it
should be determined ultimately that such person is not entitled to be indemnified under this section or otherwise.
Upon completion of this offering, we intend to enter into indemnification agreements with each of our executive
officers and directors. The indemnification agreements will provide the executive officers and directors with
contractual rights to indemnification, expense advancement and reimbursement, to the fullest extent permitted under
the DGCL.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person
may have or hereafter acquire under any statute, provision of our certificate of incorporation or bylaws, agreement,
vote of stockholders or disinterested directors or otherwise.
We will maintain standard policies of insurance that provide coverage (1) to our directors and officers against
loss arising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to
indemnification payments that we may make to such directors and officers. The proposed form of underwriting
agreement to be filed as Exhibit 1.1 to this Registration Statement provides for indemnification of our directors and
officers by the underwriters party thereto against certain liabilities arising under the Securities Act or otherwise.
Item 15. Recent Sales of Unregistered Securities
Set forth below is information regarding securities sold by us within the past three years that were not registered
under the Securities Act. Also included is the consideration, if any, received by us for such securities and
information relating to the section of the Securities Act, or rule of the SEC, under which exemption from registration
was claimed.
Since January 1, 2023, we have made sales of the following unregistered securities:
On June 15, 2026, Accelevation Holdings Corp. issued 1,000 shares of its common stock to Olympus Growth
Fund VIII Parallel L.P. for $10.00. The issuance of such shares of common stock was not registered under the
Securities Act because the shares were offered and sold in a transaction exempt from registration under
Section 4(a)(2) of the Securities Act.
Item 16. Exhibits and Financial Statement Schedules
(i)Exhibits
Exhibit Number | Description | |
1.1 | ||
3.1** | ||
3.2 | ||
3.3** | ||
3.4 |
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Exhibit Number | Description | |
4.1 | ||
5.1* | Opinion of Kirkland & Ellis LLP | |
10.1** | ||
10.2** | ||
10.3** | ||
10.4 | ||
10.5** | ||
10.6+** | ||
10.7+** | ||
10.8+** | ||
10.9+** | ||
10.10+** | ||
10.11+** | ||
10.12 | ||
10.13 | ||
10.14 | ||
10.15 | ||
10.16 | ||
21.1 | ||
23.1* | Consent of Kirkland & Ellis LLP (included in Exhibit 5.1) | |
23.2** | ||
23.3** | ||
23.4** | ||
24.1** | ||
99.1** | ||
99.2** | ||
99.3** | ||
99.4** | ||
99.5** | ||
99.6** | ||
99.7** | ||
107** |
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__________________
*Indicates to be filed by amendment.
**Indicates previously filed.
+ Indicates a management contract or compensatory plan or arrangement.
(ii)Financial statement schedules. No financial statement schedules are provided because the information
called for is not applicable or is shown in the financial statements or notes.
Item 17. Undertakings
The undersigned registrant hereby undertakes to provide to the underwriter at the closing specified in the
underwriting agreement certificates in such denominations and registered in such names as required by the
underwriter to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the provisions referenced in Item 14 of this Registration
Statement, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered hereunder,
the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1)For purposes of determining any liability under the Securities Act, the information omitted from the form
of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this Registration Statement as of the time it was declared effective; and
(2)For the purpose of determining any liability under the Securities Act, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide
offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Miamisburg, State
of Ohio, on September 11, 2026.
Accelevation Holdings Corp. | ||
By: /s/ Michael Rubiera | ||
Name: Michael Rubiera | ||
Title: Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the
following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ Michael Rubiera | Chief Executive Officer and Director (Principal Executive Officer) | September 11, 2026 | ||
Michael Rubiera | ||||
/s/ Kenneth Krause | Chief Financial Officer | September 11, 2026 | ||
Kenneth Krause | (Principal Financial and Accounting Officer) | |||
/s/ Matt Boyd | Director | September 11, 2026 | ||
Matt Boyd |
Exhibit 1.1
[●] Shares
ACCELEVATION HOLDINGS CORP.
CLASS A COMMON STOCK, PAR VALUE $0.0001 PER SHARE
FORM OF UNDERWRITING AGREEMENT
, 2026
, 2026
Morgan Stanley & Co. LLC
J.P. Morgan Securities LLC
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
c/o J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Accelevation Holdings Corp., a Delaware corporation (the “Company”), proposes to
issue and sell to the several Underwriters named in Schedule II hereto (the “Underwriters”), for
whom Morgan Stanley & Co. LLC and J.P. Morgan Securities LLC are acting as representatives
(the “Representatives”) and certain shareholders of the Company (the “Selling Shareholders”
and each a “Selling Shareholder”) named in Schedule I hereto severally propose to sell to the
several Underwriters, an aggregate of [●] shares (the “Firm Shares”) of Class A common stock,
par value $0.0001 per share, of the Company (the “Class A Common Stock”), of which [●]
shares are to be issued and sold by the Company and [●] shares are to be sold by the Selling
Shareholders, each Selling Shareholder selling the amount set forth opposite such Selling
Shareholder’s name in Schedule I hereto.
The Company also proposes to issue and sell to the several Underwriters not more than
an additional [●] shares of Class A Common Stock, and the Selling Shareholders propose to sell
to the several Underwriters not more than an additional [●] shares of Class A Common Stock
(collectively, the “Additional Shares”), if and to the extent that the Representatives shall have
determined to exercise, on behalf of the Underwriters, the right to purchase such Additional
Shares granted to the Underwriters in Section 3. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the “Shares.” The shares of Class A Common Stock and
Class B common stock, par value $0.0001 per share, of the Company (the “Class B Common
Stock”) to be outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to collectively as the “Common Stock.” The Company and the Selling Shareholders are
hereinafter sometimes collectively referred to as the “Sellers.”
In anticipation of the offering contemplated by this Agreement, prior to the Closing Date
(as defined in Section 5), the Company will complete reorganization transactions as described in
the section titled “Organizational Structure–Organizational Transactions” in the Registration
Statement, the Time of Sale Prospectus and the Prospectus (each, as defined below) (the
“Organizational Transactions”).
2
On the date hereof, the business of the Company is conducted through Accelevation LLC,
a Delaware limited liability company (“Accelevation LLC”), and its subsidiaries. In connection
with the offering contemplated by this Agreement, the Organizational Transactions will occur
prior to the Closing Date, pursuant to which the Company will become the sole managing
member of Accelevation Holdings LLC (“Holdings LLC”), a newly formed direct parent entity
of Accelevation LLC. As the sole managing member of Holdings LLC, the Company will
operate and control all of the business and affairs of Holdings LLC and Accelevation LLC, and,
through Holdings LLC and its subsidiaries, conduct its business. The documents set forth on
Schedule IV hereto, which have been, or will be, amended and restated or entered into, as
applicable, pursuant to the Organizational Transactions, are referred to as the “Transaction
Documents.” The Company and Accelevation LLC are each referred to herein as an
“Accelevation Party” and collectively referred to herein as the “Accelevation Parties.”
The Company has filed with the U.S. Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-1 (File No. 333-[●]), including a preliminary
prospectus, relating to the Shares. The registration statement, as amended at the time it becomes
effective, including the information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended (the
“Securities Act”), is hereinafter referred to as the “Registration Statement”; the prospectus in
the form first used to confirm sales of Shares (or in the form first made available to the
Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “Prospectus.” If the Company has filed an
abbreviated registration statement to register additional shares of Common Stock pursuant to
Rule 462(b) under the Securities Act (a “Rule 462 Registration Statement”), then any reference
herein to the term “Registration Statement” shall be deemed to include such Rule 462
Registration Statement.
For purposes of this Agreement, “free writing prospectus” has the meaning set forth in
Rule 405 under the Securities Act, “preliminary prospectus” shall mean each prospectus used
prior to the effectiveness of the Registration Statement, and each prospectus that omitted
information pursuant to Rule 430A under the Securities Act that was used after such
effectiveness and prior to the execution and delivery of this Agreement, “Time of Sale
Prospectus” means the preliminary prospectus contained in the Registration Statement at the
time of its effectiveness together with the documents, pricing information and the free writing
prospectuses, if any, set forth in Schedule III hereto, and “broadly available road show” means
a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has
been made available without restriction to any person. As used herein, the terms “Registration
Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include
the documents, if any, incorporated by reference therein as of the date hereof.
3
1.Representations and Warranties of the Accelevation Parties. Each of the
Accelevation Parties, jointly and severally, represents and warrants to and agrees with each of
the Underwriters that:
(a)The Registration Statement has become effective, no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such
purpose or pursuant to Section 8A under the Securities Act are pending before or, to the
knowledge of the Accelevation Parties, threatened by the Commission.
(b)(i) The Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not, as of the Closing Date or the Option
Closing Date (each, as defined below), as applicable, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and regulations of the
Commission thereunder; (iii) the Time of Sale Prospectus does not, and at the time of
each sale of the Shares in connection with the offering when the Prospectus is not yet
available to prospective purchasers and at the Closing Date, the Time of Sale Prospectus,
as then amended or supplemented by the Company, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; (iv) each broadly available road show, if any, when considered together with
the Time of Sale Prospectus, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (v) the Prospectus, as of
its date, does not contain and, as amended or supplemented, if applicable, will not
contain, as of the Closing Date or the Option Closing Date, as applicable, any untrue
statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this paragraph do
not apply to statements or omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by, or on behalf of, such
Underwriter through the Representatives expressly for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists of the
Underwriter Information (as defined in Section 11(b) of this Agreement).
(c)The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the
Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or
will be, filed with the Commission in accordance with the requirements of the Securities
Act and the applicable rules and regulations of the Commission thereunder. Each free
writing prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act or that was prepared by or on behalf of or used or referred
4
to by the Company complies or will comply in all material respects with the requirements
of the Securities Act and the applicable rules and regulations of the Commission
thereunder. Except for the free writing prospectuses, if any, identified in Schedule III
hereto, and electronic road shows, if any, each furnished to the Representatives before
first use, the Company has not prepared, used or referred to, and will not, without the
Representatives’ prior consent, prepare, use or refer to, any free writing prospectus.
(d)Each of the Accelevation Parties has been duly incorporated, is validly existing as a
corporation or a limited liability company, as applicable, is in good standing under the
laws of the State of Delaware, has the corporate or other business entity power and
authority to own or lease its property and to conduct its business as described in each of
the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good standing would not,
singly or in the aggregate, have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business, operations or prospects of the Accelevation
Parties and their respective subsidiaries, taken as a whole or on the power or ability of the
Accelevation Parties to perform their obligations under this Agreement or to consummate
the transactions contemplated by each of the Registration Statement, the Time of Sale
Prospectus and the Prospectus (a “Material Adverse Effect”).
(e)Each subsidiary of the Company has been duly incorporated, organized or formed, is
validly existing as a corporation or other business entity in good standing under the laws
of the jurisdiction of its incorporation, organization or formation (to the extent the
concept of good standing or any functional equivalent is applicable in such jurisdiction),
has the corporate or other business entity power and authority to own or lease its property
and to conduct its business as described in each of the Registration Statement, the Time
of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction (to the extent the concept of good standing or any
functional equivalent is applicable in such jurisdiction) in which the conduct of its
business or its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not, singly or in the
aggregate, have a Material Adverse Effect; all of the issued shares of capital stock or
other equity interests of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities or claims,
except for such liens, encumbrances, equities or claims that would not be, singly or in the
aggregate, material to the Accelevation Parties and their respective subsidiaries, taken as
a whole.
(f)Each of the documents listed on Schedule IV hereto and this Agreement, and the
performance of the Accelevation Parties and their respective obligations thereunder and
hereunder, have been duly authorized by all necessary corporate action and have been
duly executed and delivered by each of the Accelevation Parties, as applicable.
5
(g)The authorized capital stock of the Company and the authorized membership interests of
Accelevation LLC conform as to legal matters to the description thereof contained in
each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(h)The shares of Common Stock (including the Shares to be sold by the Selling
Shareholders) outstanding prior to the issuance of the Shares to be sold by the Company
have been duly authorized and are validly issued, fully paid and non-assessable. The
membership interests of Accelevation LLC outstanding prior to the consummation of this
offering have been, and the membership interests of Holdings LLC outstanding prior to
the consummation of this offering will be, duly authorized and are validly issued, fully
paid and non-assessable.
(i)The Shares have been duly authorized and, when issued, delivered and paid for in
accordance with the terms of this Agreement, will be validly issued, fully paid and non-
assessable, and the issuance of the Shares will not be subject to any preemptive or similar
rights.
(j)Neither the Accelevation Parties nor any of their respective subsidiaries are currently in
violation of, and the execution and delivery by the Accelevation Parties of, and the
performance by the Accelevation Parties of their obligations under, this Agreement and
the consummation of the transactions contemplated herein, including the Organizational
Transactions, will not contravene (i) any provision of applicable law, (ii) the certificate of
incorporation or bylaws of the Company or the certificate of formation or limited liability
company agreement of Accelevation LLC, (iii) any agreement or other instrument
binding upon the Accelevation Parties or any of their respective subsidiaries that is
material to the Accelevation Parties and their respective subsidiaries, taken as a whole, or
(iv) any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Accelevation Parties or any of their respective subsidiaries, except,
in the cases of clauses (i), (iii) and (iv) as would not, individually or in the aggregate,
have a Material Adverse Effect, and no consent, approval, authorization or order of, or
qualification with, any governmental body, agency or court is required for the
performance by the Accelevation Parties of their obligations under this Agreement,
except such as may be required by the securities or Blue Sky laws of the various states or
the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”)
in connection with the offer and sale of the Shares.
(k)There has not occurred any event, effect or circumstance that, individually or in the
aggregate, has involved or is reasonably likely to involve a material adverse change in the
condition, financial or otherwise, or in the earnings, business, operations or prospects of
the Accelevation Parties and their respective subsidiaries, taken as a whole, from that set
forth in the Time of Sale Prospectus. Other than the Organizational Transactions, there
have been no transactions entered into by the Accelevation Parties or any of their
respective subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Accelevation Parties and their respective subsidiaries taken as
a whole. There has been no dividend or distribution of any kind declared, paid or made
6
by the Company on any class of its capital stock other than in connection with the
Organizational Transactions.
(l)There are no legal, governmental or regulatory investigations, actions, demands, claims,
suits, arbitrations or proceedings pending or, to the knowledge of the Accelevation
Parties, threatened to which the Accelevation Parties or any of their respective
subsidiaries or any officer or director of the Accelevation Parties is a party or to which
any of the properties or assets of the Accelevation Parties or any of their respective
subsidiaries or any officer or director of the Accelevation Parties is subject, other than
proceedings (i) accurately described in all material respects in each of the Registration
Statement, the Time of Sale Prospectus and the Prospectus and (ii) that would not, singly
or in the aggregate, have a Material Adverse Effect. There are no legal or governmental
proceedings that are required to be described in the Registration Statement, the Time of
Sale Prospectus or the Prospectus and are not so described; and there are no statutes,
regulations, contracts or other documents that are required to be described in the
Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as required.
(m)Each preliminary prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities
Act, complied when so filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(n)Neither of the Accelevation Parties is, and after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, neither of the
Accelevation Parties will be, required to register as an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended.
(o)Except as permitted under Regulation M under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), neither the Accelevation Parties nor any affiliate of the
Accelevation Parties has taken, directly or indirectly, any action designed to cause or
result in, or which has constituted or which would reasonably be expected to constitute,
the stabilization or manipulation of the price of any securities of the Company, to
facilitate the sale or resale of the Shares.
(p)(i) The Accelevation Parties and each of their respective subsidiaries (A) are and have
been in compliance with any and all applicable foreign, federal, state and local laws and
regulations relating to pollution, human health and safety, the environment (including,
without limitation, indoor or outdoor air, surface water, groundwater, drinking water
supply, sediment, land surface, or subsurface strata), natural resources, wildlife or
ecosystems, sustainability, or climate change, including, without limitation, laws and
regulations relating to the release or threatened release of, or exposure to, any chemical,
substance, material or waste that is regulated or defined as hazardous, toxic or
radioactive, or as a pollutant or contaminant, or words of similar meaning, in or under
any law or regulation, and any petroleum or petroleum products, asbestos-containing
7
materials, mold, or per- or polyfluoroalkyl substances, (“Hazardous Materials” and any
such laws or regulations, “Environmental Laws”), (B) hold all permits, licenses,
registrations, or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses, (C) are and have been in compliance with all terms
and conditions of any such permit, license, registration or approval, and (D) have not
received, are not a party to, and are not aware of any pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, notices of liability, investigations or
proceedings relating to any Environmental Law or any permit, license, registration or
other approval required thereunder; and (ii) there are no events or circumstances that have
formed the basis of, or would reasonably be expected to form the basis of, an order for
clean-up or remediation, or an action, suit or proceeding by any private party or
governmental body, against or affecting the Accelevation Parties or any of their
respective subsidiaries, relating to Hazardous Materials or any Environmental Laws,
except in the case of any and all of the foregoing (i) and (ii), as would not, singly or in the
aggregate, have a Material Adverse Effect.
(q)There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up; closure of
facilities or properties; compliance with Environmental Laws or any permit, license,
registration or other approval required thereunder; constraints on operating or production
activities; or any potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect.
(r)There are no contracts, agreements or understandings between either of the Accelevation
Parties and any person granting such person the right to require the Accelevation Parties
to file a registration statement under the Securities Act with respect to any securities of
the Accelevation Parties or to require the Accelevation Parties to include such securities
with the Shares registered pursuant to the Registration Statement except those contracts,
agreements and understandings described in the Registration Statement, Time of Sale
Prospectus and the Prospectus.
(s)Neither the Accelevation Parties nor any of their respective subsidiaries or affiliates, nor
any director, officer, or employee thereof, nor, to the knowledge of the Accelevation
Parties, any agent or representative of the Accelevation Parties or of any of their
respective subsidiaries or affiliates, has taken or will take any action in furtherance of an
offer, payment, promise to pay, or authorization or approval of the payment, giving or
receipt of money, property, gifts or anything else of value, directly or indirectly, to any
person to improperly influence official action by that person for the benefit of the
Accelevation Parties or their respective subsidiaries or affiliates, or to otherwise secure
any improper advantage, or to any person in violation of (i) the U.S. Foreign Corrupt
Practices Act of 1977, (ii) the UK Bribery Act 2010, or (iii) any other applicable law,
regulation, order, decree or directive having the force of law and relating to bribery or
corruption (collectively, the “Anti-Corruption Laws”).
8
(t)The operations of the Accelevation Parties and each of their respective subsidiaries are
and have been conducted at all times in compliance with all applicable anti-money
laundering laws, rules, and regulations, including the financial recordkeeping and
reporting requirements contained therein, and including the Bank Secrecy Act of 1970,
applicable provisions of the USA PATRIOT Act of 2001, the Money Laundering Control
Act of 1986, and the Anti-Money Laundering Act of 2020 (collectively, the “Anti-
Money Laundering Laws”).
(u)(i) Neither the Accelevation Parties nor any of their respective subsidiaries, nor any
director, officer, employee, agent, affiliate, or representative of the Accelevation Parties
or any of their respective subsidiaries, is an individual or entity (“Person”) that is, or is
owned or controlled by one or more Persons that are:
(A)the subject of any sanctions administered or
enforced by the United States Government (including the U.S.
Department of the Treasury’s Office of Foreign Assets Control and the
U.S. Department of State), the United Nations Security Council, the
European Union, His Majesty’s Treasury, or any other relevant sanctions
authority (collectively, “Sanctions”), or
(B)located, organized or resident in a country or
territory that is the subject of comprehensive territorial Sanctions
(including, without limitation, the so-called Donetsk People’s Republic,
the so-called Luhansk People’s Republic, or any other Covered Region
of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba,
Iran, and North Korea).
(ii)Each of the Accelevation Parties and their respective subsidiaries
(A) have not, since the more recent of April 24, 2019 or ten years prior to the
date of this Agreement, engaged in, (B) are not now engaged in, and (C) will not
engage in, any dealings or transactions with any Person, or in any country or
territory, that at the time of the dealing or transaction is or was, or whose
government is or was, the subject of Sanctions.
(iii)The Accelevation Parties will not, directly or indirectly, use the
proceeds of the offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other Person:
(A)to fund or facilitate any activities or business of or
with any Person or in any country or territory that, at the time of such
funding or facilitation, is, or whose government is, the subject of
Sanctions;
(B)to fund or facilitate any money laundering or terrorist
financing activities; or
9
(C)in any other manner that would cause or result in a
violation of any Anti-Corruption Laws, Anti-Money Laundering Laws,
or Sanctions by any Person (including any Person participating in the
offering, whether as underwriter, advisor, investor or otherwise).
(v)The Accelevation Parties and their respective subsidiaries have conducted and will
conduct their respective businesses in compliance with the Anti-Corruption Laws, the
Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit
or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Accelevation Parties or any of their respective subsidiaries with
respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws, or Sanctions is
pending or, to the knowledge of the Accelevation Parties, threatened. The Accelevation
Parties and their respective subsidiaries and affiliates have instituted and maintained and
will continue to maintain policies and procedures reasonably designed to promote and
achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws,
Sanctions, and with the representations and warranties contained herein.
(w)The Accelevation Parties represent that, as of the date of this Agreement, neither the
Accelevation Parties nor any of their respective subsidiaries is a “covered foreign
person,” as that term is defined in 31 C.F.R. § 850.209. The Accelevation Parties do not
and will not, and will not permit any of their respective subsidiaries to, (i) be or become a
“covered foreign person”, as that term is defined in the regulations administered and
enforced, together with any related public guidance issued, by the United States Treasury
Department under U.S. Executive Order 14105 of August 9, 2023, or any similar law or
regulation, as of the date of this Agreement, and as codified at 31 C.F.R. §850.101 et seq
(the “Outbound Investment Rules”), or (ii) engage, directly or indirectly, in (A) a
“covered activity” or a “covered transaction”, as each such term is defined in the
Outbound Investment Rules, (B) with respect to any subsidiary of the Accelevation
Parties that is not a U.S. Person (as defined in the Outbound Investment Rules), any
activity that would constitute a “covered activity” or “covered transaction”, as each such
term is defined in the Outbound Investment Rules, if such subsidiary were a U.S. Person,
(C) any other activity that would cause the Underwriters to be in violation of the
Outbound Investment Rules or cause the Underwriters to be legally prohibited by the
Outbound Investment Rules from performing under this Agreement.
(x)Neither the Accelevation Parties, nor any of their respective subsidiaries, directors,
officers, employees or affiliates, nor, to the knowledge of the Accelevation Parties, any
agent or other person acting on behalf of the Accelevation Parties, is the subject of any
pending or threatened enforcement action, administrative proceeding, denial order,
debarment, or other restriction under Export Controls (meaning all export control laws
and regulations administered or enforced by (i) the United States Government (including
by the U.S. Department of Commerce or the U.S. Department of State), including the
Arms Export Control Act (22 U.S.C. § 2778), the Export Control Reform Act of 2018 (50
U.S.C. §§ 4801-4861), the International Traffic in Arms Regulations (22 C.F.R. Parts
120–130), and the Export Administration Regulations (15 C.F.R. Parts 730-774), and (ii)
10
any other relevant governmental authority, including (to the extent applicable) EU
Regulation 2021/821 (as amended), the Export Control Order 2008, or any other
applicable export control legislation or regulation of the United States, European Union,
or United Kingdom). The Accelevation Parties and each of their respective subsidiaries
(a) have not, since five years prior to the date of the Agreement, engaged in, (b) are not
now engaged in, and (c) will not engage in any unauthorized dealings or transactions
involving any Person or item that, at the time of such dealing or transaction, was subject
to restrictions under Export Controls, including any Person identified on a restricted party
list maintained pursuant to Export Controls, or any other lists or regulations administered
or enforced by the U.S. Department of Commerce.
(y)Subsequent to the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, the Accelevation
Parties and their respective subsidiaries, taken as a whole, have not incurred any material
liability or obligation, direct or contingent, nor entered into any material transaction; the
Accelevation Parties have not purchased any class of outstanding capital stock or
membership interests, nor declared, paid or otherwise made any dividend or distribution
of any kind on any class of capital stock or membership interests other than ordinary and
customary dividends; and there has not been any material change in any class of capital
stock or membership interests, short-term debt or long-term debt of the Accelevation
Parties and their respective subsidiaries, taken as a whole, other than in connection with
the Organizational Transactions.
(z)The Accelevation Parties and each of their respective subsidiaries have good and
marketable title to all real property owned by them and good and marketable title to all
other property owned by them which is material to the business of the Accelevation
Parties and their respective subsidiaries, in each case free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions, encumbrances and defects except
such as do not materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Accelevation Parties and their
respective subsidiaries; and any real property and buildings held under lease by the
Accelevation Parties and their respective subsidiaries are held by them in full force and
effect and under valid, subsisting and enforceable leases, and neither the Accelevation
Parties nor any such subsidiary has any notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of the Accelevation Parties or of their
respective subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Accelevation Parties or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or sublease.
(aa)(i) The Accelevation Parties and their respective subsidiaries own or have a valid
and enforceable license to use all patents, inventions, copyrights (including rights in
software), know how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), domain names,
trademarks, service marks, trade names, social media identifiers and accounts and all
other worldwide intellectual property and similar proprietary rights, and any applications
11
or registrations for any of the foregoing, together with all rights to claim priority under
and all goodwill associated with any of the foregoing (collectively, “Intellectual
Property Rights”) used or held for use in any material respect in or reasonably necessary
to the conduct of their businesses as currently conducted and as proposed to be conducted
(“Company IP”); (ii) the Accelevation Parties and their respective subsidiaries solely
and exclusively own all Intellectual Property Rights owned or purported to be owned by
any of them and hold all of their respective rights under all Intellectual Property Rights
owned by, or licensed to, any of them free and clear of all liens, encumbrances and
defects; (iii) the Intellectual Property Rights owned by the Accelevation Parties or any of
their respective subsidiaries and, to the knowledge of the Accelevation Parties, the
Intellectual Property Rights licensed to the Accelevation Parties and any of their
respective subsidiaries, are valid, subsisting and enforceable, and there is no pending or,
to the knowledge of the Accelevation Parties, threatened action, suit, proceeding or claim
by others challenging the validity, ownership, registrability, scope or enforceability of
any Company IP, and neither the Company nor any of its subsidiaries is aware of any
facts which would form a reasonable basis for any such claim; (iv) neither the
Accelevation Parties nor any of their respective subsidiaries have received any notice
alleging any infringement, misappropriation or other violation of Intellectual Property
Rights, and to the knowledge of the Accelevation Parties, no such action, suit, proceeding
or claim is threatened; (v) to the knowledge of the Accelevation Parties, no third party is
infringing, misappropriating or otherwise violating, or has infringed, misappropriated or
otherwise violated, any Company IP; (vi) to the knowledge of the Accelevation Parties
and their respective subsidiaries, neither the Accelevation Parties nor any of their
respective subsidiaries infringe, misappropriate or otherwise violate, or have infringed,
misappropriated or otherwise violated, any Intellectual Property Rights; (vii) the
Accelevation Parties and each of their respective subsidiaries are in compliance with all
licenses and other agreements governing the use of Intellectual Property Rights to which
any of the Accelevation Parties or any of their respective subsidiaries is a party, or under
which any of the Accelevation Parties or any of their respective subsidiaries’ assets are
bound (collectively, the “Intellectual Property Contracts”), and neither the
Accelevation Parties nor any of their respective subsidiaries have received any written
notice alleging any such noncompliance and are unaware of any facts which would form
a reasonable basis for any such claim; (viii) all Intellectual Property Contracts are in full
force and effect; (ix) all Persons (including employees and contractors) engaged in, or
that may engage in, the development of Intellectual Property Rights on behalf of the
Accelevation Parties or any of their respective subsidiaries have executed a valid and
enforceable invention assignment agreement whereby such Persons presently assign all of
their right, title and interest in and to such Intellectual Property Rights to the
Accelevation Parties or the applicable subsidiary, and to the knowledge of the
Accelevation Parties, no such agreement has been breached or violated; (x) the
Accelevation Parties and their respective subsidiaries take, and have taken, all
commercially reasonable steps to appropriately maintain and protect the confidentiality of
all information intended to be maintained as confidential, including any trade secrets and
other material confidential Intellectual Property Rights; and (xi) no university, military,
educational institution, research center, governmental body or other organization has
12
funded, contributed to or sponsored research and development conducted in connection
with the business of the Accelevation Parties or any of their respective subsidiaries that
has any claim of right to, ownership of or other lien on any Company IP or would affect
the proprietary nature of any Company IP or restrict the ability of the Accelevation
Parties or any of their respective subsidiaries to enforce, license or exclude others from
using any Company IP.
(bb)With respect to artificial intelligence, advanced machine learning or other similar
generative models (collectively, “AI Tools”), the Accelevation Parties and their
respective subsidiaries (i) use AI Tools in compliance with all applicable license terms,
consents, agreements and laws; and (ii) have not used AI Tools in a manner that
adversely affects the ownership, validity, or enforceability of any Company IP or any
output created by such AI Tool that the Company intended to own or would have owned
if created without the use of such AI Tool.
(cc)(i) The Accelevation Parties and their respective subsidiaries use and have used any
and all software or other materials under a “free,” “open source,” or similar licensing
model (including but not limited to the MIT License, Apache License, GNU General
Public License, GNU Lesser General Public License and GNU Affero General Public
License) (“Open Source Software”) in compliance with all license terms applicable to
such Open Source Software; (ii) none of the Accelevation Parties nor any of their
respective subsidiaries develop, use or have developed, distributed or have used any
Open Source Software in any manner that requires or has required (A) the Accelevation
Parties or any of their respective subsidiaries to permit reverse engineering of any
software code or other technology owned by the Accelevation Parties or any of their
respective subsidiaries or (B) any software code or other technology owned by the
Accelevation Parties or any of their respective subsidiaries to be (1) disclosed, delivered,
licensed, distributed or otherwise made available to any other person in source code form,
(2) licensed for the purpose of making derivative works or (3) redistributed at no charge;
and (iii) none of the software developed or owned by the Accelevation Parties or any of
their respective subsidiaries is subject to any escrow obligation.
(dd)(i) The Accelevation Parties and each of their respective subsidiaries have complied
and are presently in compliance with all internal and external privacy policies, contractual
obligations, industry standards, applicable laws, statutes, judgments, orders, rules and
regulations of any court or arbitrator or other governmental or regulatory authority and
any other legal obligations, in each case, relating to the collection, use, transfer, handling,
analysis, import, export, storage, protection, disposal, disclosure or other processing by
any of the Accelevation Parties or any of their respective subsidiaries of personal,
personally identifiable, household, sensitive, confidential or regulated data (“Data
Security Obligations,” and such data, “Data”); (ii) neither the Accelevation Parties nor
any of their respective subsidiaries have received any notification of or complaint
regarding and neither the Accelevation Parties nor any of their respective subsidiaries are
aware of any other facts that, individually or in the aggregate, would reasonably indicate
non-compliance in any material respect with any Data Security Obligation; (iii) there is
13
no investigation, inquiry, action, suit or proceeding by or before any court or
governmental agency, authority or body pending or, to the knowledge of the
Accelevation Parties, threatened alleging non-compliance with any Data Security
Obligation; and (iv) the Accelevation Parties and their respective subsidiaries have not
been required to notify any individual or data protection authority of any information
security breach, compromise or incident involving any Data, in each case, as would not,
singly or in the aggregate, have a Material Adverse Effect.
(ee)(i) The Accelevation Parties and each of their respective subsidiaries’ respective
information technology assets and equipment, computers, systems, networks, hardware,
software, websites, applications, technology, data and databases (including Data and the
data of their respective customers, employees, suppliers, vendors and any third party data
maintained, stored or otherwise processed by or on behalf of any of the Accelevation
Parties or any of their respective subsidiaries) used in connection with the operation of
any of their respective businesses (“IT Systems and Data”) are adequate for, and operate
and perform as required in connection with, the operation of such businesses as they are
currently conducted, free and clear of all bugs, errors, defects, Trojan horses, time bombs,
malware and other corruptants; (ii) the Accelevation Parties and each of their respective
subsidiaries have taken all technical and organizational measures necessary to maintain
and protect the IT Systems and Data used in all material respects in connection with the
operation of the Accelevation Parties’ and their respective subsidiaries’ businesses; (iii)
without limiting the foregoing, the Accelevation Parties and their respective subsidiaries
have established, maintained, implemented and complied in all material respects with,
reasonable information technology, information security, cyber security and data
protection controls, policies and procedures, including oversight, access controls,
encryption, technological and physical safeguards and business continuity/disaster
recovery and security plans, consistent with industry standards and practices, and as
required by Data Security Obligations, that are designed to protect against and prevent
breach, destruction, loss, unauthorized distribution, disclosure, use, access, disablement,
misappropriation or modification, or other compromise or misuse of or relating to any of
the IT Systems and Data (“Breach”); and (iv) there has been no such Breach, and the
Accelevation Parties and their respective subsidiaries have not been notified of and have
no knowledge of any event or condition that would reasonably be expected to result in,
any such Breach.
(ff)The Accelevation Parties and their respective subsidiaries have implemented and
maintained policies, practices, and procedures designed to prevent unlawful harassment,
discrimination, or retaliation in the workplace and have taken appropriate steps to ensure
compliance with such policies and procedures, and (i) neither the Accelevation Parties
nor their respective subsidiaries have had any material labor disputes and none currently
exists or, to the knowledge of the Accelevation Parties, is threatened; (ii) neither the
Accelevation Parties nor any of their respective subsidiaries has any knowledge of any
existing, threatened or imminent labor disturbance by the employees of any of its
principal vendors, partners or contractors; and (iii) the Accelevation Parties and their
respective subsidiaries are and have been in material compliance with all applicable laws
14
pertaining to employment and employment practices, wages and hours, terms and
conditions of employment, and immigration.
(gg)Any “Employee Benefit Plan” (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published interpretations
thereunder (collectively, “ERISA”)) established or maintained by the Accelevation
Parties, their respective subsidiaries or their “ERISA Affiliates” (as defined below) (each,
a “Plan”) is and has been operated in compliance with its terms and all applicable laws,
including ERISA and the Internal Revenue Code of 1986, as amended, and the
regulations and published interpretations thereunder (the “Code”), in all material
respects. No “reportable event” (as defined under ERISA) has occurred or is reasonably
expected to occur with respect to any Plan and no Plan, if terminated, would have any
“amount of unfunded benefit liabilities” (as defined under ERISA), as the fair market
value of the assets under each Plan (excluding for these purposes accrued but unpaid
contributions) exceeds the present value of all benefits accrued under such Plan
(determined based on those assumptions used to fund such Plan). Neither the
Accelevation Parties, their respective subsidiaries nor any of their ERISA Affiliates has
incurred or reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any Plan, (ii) Sections 412 and 430, 4971,
4975 or 4980B of the Code or (iii) Sections 302 and 303, 406, 4063 and 4064 of ERISA.
Each Plan that is intended to be qualified under Section 401(a) of the Code is so
qualified, and nothing has occurred, whether by action or failure to act, that would
reasonably be expected to cause the loss of such qualification. There is no pending audit
or investigation by the Internal Revenue Service (“IRS”), the U.S. Department of Labor,
the Pension Benefit Guaranty Corporation or any other governmental or other regulatory
entity or agency with respect to any Plan that could reasonably be expected to result in
liability to the Accelevation Parties or any of their respective subsidiaries. Neither the
Accelevation Parties nor any of their respective subsidiaries have any “accumulated post-
retirement benefit obligations” (within the meaning of Statement of Financial Accounting
Standards 106). “ERISA Affiliate” means, with respect to the Accelevation Parties or
any of their respective subsidiaries, any member of any group of organizations described
in Sections 414(b), (c), (m) or (o) of the Code of which the Accelevation Parties or such
subsidiary is a member.
(hh)The Accelevation Parties and each of their respective subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are engaged;
neither the Accelevation Parties nor any of their respective subsidiaries has been refused
any insurance coverage sought or applied for; and neither the Accelevation Parties nor
any of their respective subsidiaries has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business at a
cost that would not, singly or in the aggregate, have a Material Adverse Effect.
15
(ii)The Accelevation Parties and each of their respective subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, and neither of the
Accelevation Parties nor any of their respective subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
(jj)The financial statements included in each of the Registration Statement, the Time of Sale
Prospectus and the Prospectus, together with the related schedules and notes thereto,
comply as to form in all material respects with the applicable accounting requirements of
the Securities Act and present fairly the consolidated financial position of the
Accelevation Parties and their respective subsidiaries as of the dates shown and its results
of operations and cash flows for the periods shown, and such financial statements have
been prepared in conformity with generally accepted accounting principles in the United
States (“U.S. GAAP”) applied on a consistent basis throughout the periods covered
thereby except for any normal year-end adjustments in Holdings LLC’s quarterly
financial statements. The other financial information included in each of the Registration
Statement, the Time of Sale Prospectus and the Prospectus has been derived from the
accounting records of the Accelevation Parties and their respective consolidated
subsidiaries and presents fairly in all material respects the information shown thereby.
The pro forma financial statements and the related notes thereto included in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus present fairly in
all material respects the information shown therein, have been prepared in accordance
with the Commission’s rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein, and the
Accelevation Parties believe that the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein. The statistical, industry-related and
market-related data included in each of the Registration Statement, the Time of Sale
Prospectus and the Prospectus are based on or derived from sources which the
Accelevation Parties reasonably and in good faith believe are reliable and accurate and
such data is consistent with the sources from which they are derived, in each case in all
material respects.
(kk)Grant Thornton LLP, who have certified certain financial statements of the
Accelevation Parties and their respective subsidiaries and delivered its report with respect
to the audited consolidated financial statements and schedules filed with the Commission
as part of the Registration Statement and included in each of the Registration Statement,
the Time of Sale Prospectus and the Prospectus, is an independent registered public
accounting firm with respect to the Accelevation Parties within the meaning of the
Securities Act and the applicable rules and regulations thereunder adopted by the
Commission and the Public Company Accounting Oversight Board (United States).
16
(ll)(i) The Accelevation Parties and each of their respective subsidiaries maintain a system of
internal accounting controls designed to provide reasonable assurance that transactions
are executed in accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with U.S. GAAP and to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences. Since
the end of the Accelevation Parties’ most recent audited fiscal year, there has been (x) no
material weakness in the Accelevation Parties’ internal control over financial reporting
(whether or not remediated) and (y) no change in the Accelevation Parties’ internal
control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Accelevation Parties’ internal control over financial reporting, other
than as described in the Registration Statement, Time of Sale Prospectus and Prospectus.
(mm)Except as described in the Registration Statement, the Time of Sale Prospectus and
the Prospectus, the Accelevation Parties have not sold, issued or distributed any shares of
Common Stock during the six-month period preceding the date hereof, including any
sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other than
shares issued pursuant to employee benefit plans, qualified stock option plans or other
employee compensation plans or pursuant to outstanding options, rights or warrants.
(nn)The Accelevation Parties and each of their respective subsidiaries have filed all
federal, state, local and foreign tax returns required to be filed through the date of this
Agreement or have requested extensions thereof (except where the failure to file would
not, singly or in the aggregate, have a Material Adverse Effect) and have paid all taxes
required to be paid thereon (except for cases in which the failure to file or pay would not,
singly or in the aggregate, have a Material Adverse Effect, or, except as currently being
contested in good faith and for which reserves required by U.S. GAAP have been created
in the financial statements of the Accelevation Parties), and no tax deficiency has been
determined adversely to the Accelevation Parties or any of their respective subsidiaries
which, singly or in the aggregate, has had (nor do the Accelevation Parties or any of their
respective subsidiaries have any notice or knowledge of any tax deficiency which could
reasonably be expected to be determined adversely to the Accelevation Parties or their
respective subsidiaries and which could reasonably be expected to have) a Material
Adverse Effect.
(oo)From the time of initial confidential submission of the Registration Statement to the
Commission through the date hereof, the Company has been and is an “emerging growth
company,” as defined in Section 2(a) of the Securities Act (an “Emerging Growth
Company”).
(pp)The Accelevation Parties have not alone engaged in any Testing-the-Waters
Communication with any person other than Testing-the-Waters Communications with the
consent of the Representatives with entities that are reasonably believed to be qualified
17
institutional buyers within the meaning of Rule 144A under the Securities Act or
institutions that are reasonably believed to be accredited investors within the meaning of
Rule 501 under the Securities Act and have not authorized anyone other than the
Representatives to engage in Testing-the-Waters Communications. The Accelevation
Parties reconfirm that the Representatives have been authorized to act on their behalf in
undertaking Testing-the-Waters Communications. The Accelevation Parties have not
distributed any Testing-the-Waters Communication that is a written communication
within the meaning of Rule 405 under the Securities Act other than those listed on
Schedule III hereto. “Testing-the-Waters Communication” means any communication
with potential investors undertaken in reliance on Section 5(d) or Rule 163B of the
Securities Act.
(qq)As of the time of each sale of the Shares in connection with the offering when the
Prospectus is not yet available to prospective purchasers, none of (i) the Time of Sale
Prospectus, (ii) any free writing prospectus, when considered together with the Time of
Sale Prospectus, and (iii) any individual Testing-the-Waters Communication, when
considered together with the Time of Sale Prospectus, included, includes or will include
an untrue statement of a material fact or omitted, omits or will omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
2.Representations and Warranties of the Selling Shareholders. Each Selling
Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a)This Agreement has been duly authorized, executed and delivered by or on behalf of such
Selling Shareholder.
(b)The execution and delivery by such Selling Shareholder of, and the performance by such
Selling Shareholder of its obligations under, this Agreement, will not contravene any
provision of applicable law, or the certificate of incorporation or bylaws of such Selling
Shareholder (if such Selling Shareholder is a corporation), or any agreement or other
instrument binding upon such Selling Shareholder or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over such Selling
Shareholder, except as would not, individually or in the aggregate, have a Material
Adverse Effect or material adverse effect on the Selling Shareholders ability to
consummate the transactions contemplated by each of the Registration Statement, the
Time of Sale Prospectus and the Prospectus, and no consent, approval, authorization or
order of, or qualification with, any governmental body, agency or court is required for the
performance by such Selling Shareholder of its obligations under this Agreement, except
such as may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares or the rules and regulations of FINRA.
(c)Such Selling Shareholder has, and on the Closing Date will have (after giving effect to
the Organizational Transactions), valid title to, or a valid “security entitlement” within
the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”)
in respect of, the Shares to be sold by such Selling Shareholder free and clear of all
18
security interests, claims, liens, equities or other encumbrances and the legal right and
power, and all authorization and approval required by law, to enter into this Agreement
and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a
security entitlement in respect of such Shares.
(d)[Reserved.]
(e)Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this
Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co.
(“Cede”) or such other nominee as may be designated by the Depository Trust Company
(“DTC”), registration of such Shares in the name of Cede or such other nominee and the
crediting of such Shares on the books of DTC to securities accounts of the Underwriters
(assuming that neither DTC nor any such Underwriter has notice of any adverse claim
(within the meaning of Section 8-105 of the UCC to such Shares), (i) DTC shall be a
“protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC,
(ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security
entitlement in respect of such Shares and (iii) no action based on any “adverse claim”,
within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against
the Underwriters with respect to such security entitlement; for purposes of this
representation, such Selling Shareholder may assume that when such payment, delivery
and crediting occur, (x) such Shares will have been registered in the name of Cede or
another nominee designated by DTC, in each case on the Company’s share registry in
accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will
be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC
and (z) appropriate entries to the accounts of the several Underwriters on the records of
DTC will have been made pursuant to the UCC.
(f)Such Selling Shareholder has delivered to the Representatives an executed lock-up
agreement in substantially the form attached hereto as Exhibit A.
(g)[Reserved].
(h) The Registration Statement, when it became effective, did not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the Commission thereunder,
the Time of Sale Prospectus does not, and at the time of each sale of the Shares in
connection with the offering when the Prospectus is not yet available to prospective
purchasers and at the Closing Date, the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein in
the light of the circumstances under which they were made, not misleading, each broadly
available road show, if any, when considered together with the Time of Sale Prospectus,
does not contain any untrue statement of a material fact or omit to state a material fact
19
necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading and the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph are limited in all respects to
statements or omissions made in reliance upon and in conformity with the information
relating to such Selling Shareholder furnished to the Company in writing by or on behalf
of such Selling Shareholder expressly for use in the Registration Statement, the Time of
Sale Prospectus or the Prospectus (with respect to each Selling Shareholder, the “Selling
Shareholder Information”).
(i)(i) Neither such Selling Shareholder nor any of its subsidiaries, or, to the knowledge of
such Selling Shareholder, any director, officer, employee, agent, representative, or
affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that
are:
(A)the subject of any Sanctions, or
(B)located, organized or resident in a country or
territory that is the subject of comprehensive territorial Sanctions
(including, without limitation, the so-called Donetsk People’s Republic,
the so-called Luhansk People’s Republic, or any other Covered Region
of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba,
Iran, and North Korea).
(ii)Such Selling Shareholder and each of its subsidiaries (A) have
not, since the more recent of April 24, 2019 or ten years prior to the date of this
Agreement, engaged in, (B) are not now engaged in, and (C) will not engage in,
any dealings or transactions with any Person, or in any country or territory, that
at the time of the dealing or transaction is or was, or whose government is or was,
the subject of Sanctions.
(j)Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other Person:
(i)to fund or facilitate any activities or business of or with any
Person or in any country or territory that, at the time of such funding or
facilitation, is, or whose government is, the subject of Sanctions;
(ii)to fund or facilitate any money laundering or terrorist financing
activities; or
(iii)in any other manner that would cause or result in a violation of
any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any
20
Person (including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise);
provided, however, that the foregoing shall not apply with respect to the distribution of
the proceeds of the offering to any of such Selling Shareholder's indirect limited partners
once such proceeds are no longer under the control of such Selling Shareholder if prior to
such distribution such Selling Shareholder has no knowledge that such proceeds will be
used for any of the foregoing purposes.
(k)Such Selling Shareholder and its subsidiaries have conducted and will conduct their
businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering
Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving
such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption
Laws, the Anti-Money Laundering Laws, or Sanctions is pending or, to the knowledge of
such Selling Shareholder, threatened. Such Selling Shareholder and its subsidiaries and
affiliates have instituted and maintained and will continue to maintain policies and
procedures reasonably designed to promote and achieve compliance with the Anti-
Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the
representations and warranties contained herein.
(l)Such Selling Shareholder will not, and will not permit any of its subsidiaries to, (i) be or
become a “covered foreign person”, as that term is defined in the Outbound Investment
Rules, or (ii) engage, directly or indirectly, in (A) a “covered activity” or a “covered
transaction”, as each such term is defined in the Outbound Investment Rules, (B) with
respect to any subsidiary of the Selling Shareholder that is not a U.S. Person (as defined
in the Outbound Investment Rules), any activity that would constitute a “covered
activity” or “covered transaction”, as each such term is defined in the Outbound
Investment Rules, if such subsidiary were a U.S. Person, (C) any other activity that would
cause the Underwriters to be in violation of the Outbound Investment Rules or cause the
Underwriters to be legally prohibited by the Outbound Investment Rules from performing
under this Agreement.
(m)Such Selling Shareholder represents and warrants that it is not (i) an employee benefit
plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the
Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under
Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
3.Agreements to Sell and Purchase. Each Seller, severally and not jointly, hereby
agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties contained in this Agreement, but subject to the terms and
conditions hereinafter stated, agrees, severally and not jointly, to purchase from such Seller at
$[●] per share (the “Purchase Price”) the number of Firm Shares (subject to such adjustments to
eliminate fractional shares as the Representatives may determine) that bears the same proportion
to the number of Firm Shares to be sold by such Seller (as set forth on Schedule I hereto) as the
1 NTD: Insert date three business days after date of this Agreement.
21
number of Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter
bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, each Seller, severally and not jointly, agrees to sell to the
Underwriters the Additional Shares, and the Underwriters shall have the right to purchase,
severally and not jointly, up to [●] Additional Shares at the Purchase Price, provided, however,
that the amount paid by the Underwriters for any Additional Shares shall be reduced by an
amount per share equal to any dividends declared by the Company and payable on the Firm
Shares but not payable on such Additional Shares. The Representatives may exercise this right
on behalf of the Underwriters in whole or from time to time in part by giving written notice not
later than 30 days after the date of this Agreement. Any exercise notice shall specify the number
of Additional Shares to be purchased by the Underwriters and the allocation of such Additional
Shares among the Sellers shall be as set forth on Schedule I hereto (or, if the option is exercised
in part, pro rata based on each Seller’s proportion of the total Additional Shares), and the date on
which such Additional Shares are to be purchased. Each purchase date must be at least one
business day after the written notice is given and may not be earlier than the Closing Date or
later than ten business days after the date of such notice. Additional Shares may be purchased as
provided in Section 5 hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. On each day, if any, that Additional Shares are
to be purchased (an “Option Closing Date”), each Underwriter agrees, severally and not jointly,
to purchase the number of Additional Shares (subject to such adjustments to eliminate fractional
shares as the Representatives may determine) that bears the same proportion to the total number
of Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares
set forth in Schedule II hereto opposite the name of such Underwriter bears to the total number of
Firm Shares.
4.Terms of Public Offering. The Sellers are advised by the Representatives that the
Underwriters propose to make a public offering of their respective portions of the Shares as soon
after the Registration Statement and this Agreement have become effective as in the
Representatives’ judgment is advisable. The Sellers are further advised by the Representatives
that the Shares are to be offered to the public initially at $[●] per share (the “Public Offering
Price”) and to certain dealers selected by the Representatives at a price that represents a
concession not in excess of $[●] per share under the Public Offering Price, and that any
Underwriter may allow, and such dealers may reallow, a concession, not in excess of $[●] per
share, to any Underwriter or to certain other dealers.
5.Payment and Delivery. Payment for the Firm Shares to be sold by each Seller shall
be made to such Seller in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on [●], 2026, or at such other time on the same or such other
date, not later than [●]1, 2026, as shall be designated in writing by the Representatives. The time
and date of such payment are hereinafter referred to as the “Closing Date.”
2 NTD: Insert date ten business days after expiration of the green shoe option.
22
Payment for any Additional Shares shall be made to such Seller in Federal or other funds
immediately available in New York City against delivery of such Additional Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date
specified in the corresponding notice described in Section 3 or at such other time on the same or
on such other date, in any event not later than [●]2, 2026, as shall be designated in writing by the
Representatives.
The Firm Shares and Additional Shares shall be registered in such names and in such
denominations as the Representatives shall request not later than one full business day prior to
the Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares
and Additional Shares shall be delivered to the Representatives on the Closing Date or an Option
Closing Date, as the case may be, for the respective accounts of the several Underwriters. The
Purchase Price payable by the Underwriters shall be reduced by (i) any transfer taxes paid by, or
on behalf of, the Underwriters in connection with the transfer of the Shares to the Underwriters,
(ii) in the case of Additional Shares, any dividend adjustment pursuant to Section 3, and (iii) any
withholding required by law.
6.Conditions to the Underwriters’ Obligations. The obligations of the Sellers to sell
the Shares to the Underwriters and the several obligations of the Underwriters to purchase and
pay for the Shares on the Closing Date are subject to the condition that the Registration
Statement shall have become effective not later than [●] p.m. (New York City time) on the date
hereof.
The several obligations of the Underwriters are subject to the following further
conditions:
(a)Subsequent to the execution and delivery of this Agreement and prior to the Closing
Date:
(i)no order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceeding for such purpose or pursuant to
Section 8A under the Securities Act shall be pending before or, to the knowledge
of the Accelevation Parties, threatened by the Commission;
(ii)there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the possible
change, in the rating accorded any of the securities of the Accelevation Parties or
any of their respective subsidiaries by any “nationally recognized statistical
rating organization,” as such term is defined in Section 3(a)(62) of the Exchange
Act; and
(iii)there shall not have occurred any event, effect or circumstance
that, individually or in the aggregate, has involved or is reasonably likely to
23
involve a change in the condition, financial or otherwise, or in the earnings,
business, operations or prospects of the Accelevation Parties and their respective
subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus
that, in the Representatives’ judgment, is material and adverse and that makes it,
in the Representatives’ judgment, impracticable to market the Shares on the
terms and in the manner contemplated in the Time of Sale Prospectus.
(b)Prior to the Closing Date:
(i)the Organizational Transactions shall have been duly
consummated at the respective times and on the terms contemplated by this
Agreement, the Registration Statement, the Time of Sale Prospectus and the
Prospectus; and
(ii)the Representatives shall have received a copy of the amended
and restated charter of the Company certified by the Secretary of State of the
State of Delaware, along with executed copies of the documents listed on
Schedule IV hereto, and such other evidence that the Organizational Transactions
have been consummated as the Representatives may reasonably request.
(c)The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of each of the Accelevation Parties, to the effect
set forth in Sections 6(a)(i) and 6(a)(ii), and to the effect that the representations and
warranties of the Accelevation Parties contained in this Agreement are true and correct as
of the Closing Date; and that the Accelevation Parties have complied with all of the
agreements and satisfied all of the conditions on their part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering each such certificate may rely upon the best of his or
her knowledge as to proceedings threatened.
(d)The Underwriters shall have received on the Closing Date an opinion and negative
assurance letter of Kirkland & Ellis LLP, outside counsel for the Company, dated the
Closing Date, each in form and substance reasonably satisfactory to the Representatives.
(e)The Underwriters shall have received on the Closing Date an opinion letter of Kirkland &
Ellis LLP, counsel for the Selling Shareholders, dated the Closing Date, each in form and
substance reasonably satisfactory to the Representatives.
(f)The Underwriters shall have received on the Closing Date an opinion and negative
assurance letter of Simpson Thacher & Bartlett LLP, counsel for the Underwriters, dated
the Closing Date, each in form and substance reasonably satisfactory to the
Representatives.
With respect to the negative assurance letters to be delivered pursuant to Sections 6(d)
and 6(f) above, Kirkland & Ellis LLP and Simpson Thacher & Bartlett LLP may state that their
24
opinions and beliefs are based upon their participation in the preparation of the Registration
Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but are without independent check or
verification, except as specified.
The opinions of Kirkland & Ellis LLP described in Sections 6(d) and 6(e) above shall be
rendered to the Underwriters at the request of the Company or one or more of the Selling
Shareholders, as the case may be, and shall so state therein.
(g)The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Representatives, from Grant Thornton LLP, independent public
accountants, containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement, the Time of Sale
Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall
use a “cut-off date” not earlier than the date hereof.
(h)The Underwriters shall have received, on each of the date hereof and the Closing Date, a
certificate dated the date hereof or the Closing Date, as the case may be, and signed by
the chief financial officer of the Company, in his capacity as such, with respect to certain
financial and accounting information in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, in form and substance reasonably satisfactory to the
Representatives.
(i)The “lock-up” agreements, each substantially in the form attached hereto as Exhibit A
between the Representatives, the Selling Shareholders and certain securityholders,
officers and directors of the Accelevation Parties (the “Lock-Up Agreements”), shall be
in full force and effect on the Closing Date.
(j)The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to the Representatives on the applicable Option Closing Date of
the following:
(i)a certificate, dated the Option Closing Date and signed by an
executive officer of each of the Accelevation Parties, confirming that the
certificate delivered on the Closing Date pursuant to Section 6(c) hereof remains
true and correct as of such Option Closing Date;
(ii)an opinion and negative assurance letter of Kirkland & Ellis
LLP, outside counsel for the Company, dated the Option Closing Date, relating
to the Additional Shares to be purchased on such Option Closing Date and
otherwise to the same effect as the opinion required by Section 6(d) hereof;
(iii)an opinion letter of Kirkland & Ellis LLP, outside counsel for
the Selling Shareholders, dated the Option Closing Date, relating to the
25
Additional Shares to be purchased on such Option Closing Date and otherwise to
the same effect as the opinion required by Section 6(e) hereof;
(iv)an opinion and negative assurance letter of Simpson Thacher &
Bartlett LLP, counsel for the Underwriters, dated the Option Closing Date,
relating to the Additional Shares to be purchased on such Option Closing Date
and otherwise to the same effect as the opinion required by Section 6(f) hereof;
(v)a letter dated the Option Closing Date, in form and substance
satisfactory to the Representatives, from Grant Thornton LLP, independent
public accountants, substantially in the same form and substance as the letter
furnished to the Underwriters pursuant to Section 6(g) hereof; provided that the
letter delivered on the Option Closing Date shall use a “cut-off date” not earlier
than two business days prior to such Option Closing Date;
(vi)a certificate dated the Option Closing Date, in the form and
substance reasonably satisfactory to the Representatives, signed by the chief
financial officer of the Company, and otherwise to the same effect as the
certificate required by Section 6(h) hereof; and
(vii)such other documents as the Representatives may reasonably
request with respect to the good standing of the Accelevation Parties and their
respective subsidiaries, the due authorization and issuance of the Additional
Shares to be sold on such Option Closing Date and other matters related to the
issuance of such Additional Shares.
7.Covenants of the Accelevation Parties. Each of the Accelevation Parties covenants
with each Underwriter as follows, as applicable:
(a)To furnish to the Representatives, without charge, [●] signed copies of the Registration
Statement (including exhibits thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto) and to furnish to
the Representatives in New York City, without charge, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of this Agreement and during the
period mentioned in Section 7(e) or 7(f) below, as many copies of the Time of Sale
Prospectus, the Prospectus and any supplements and amendments thereto or to the
Registration Statement as the Representatives may reasonably request.
(b)Before amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to the Representatives a copy of each such
proposed amendment or supplement and not to file any such proposed amendment or
supplement to which the Representatives reasonably object, and to file with the
Commission within the applicable period specified in Rule 424(b) under the Securities
Act any prospectus required to be filed pursuant to such Rule.
26
(c)To furnish to the Representatives a copy of each proposed free writing prospectus to be
prepared by or on behalf of, used by, or referred to by the Company and not to use or
refer to any proposed free writing prospectus to which the Representatives reasonably
object.
(d)Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free
writing prospectus prepared by or on behalf of the Underwriter that the Underwriter
otherwise would not have been required to file thereunder.
(e)If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall
occur or condition exist as a result of which it is necessary to amend or supplement the
Time of Sale Prospectus in order to make the statements therein, in the light of the
circumstances, not misleading, or if any event shall occur or condition exist as a result of
which the Time of Sale Prospectus conflicts with the information contained in the
Registration Statement then on file, or if, in the opinion of counsel for the Underwriters,
it is necessary to amend or supplement the Time of Sale Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances
when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading
or so that the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale Prospectus, as
amended or supplemented, will comply with applicable law.
(f)If, during such period after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when the Prospectus (or
in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses the Representatives will
furnish to the Company) to which Shares may have been sold by the Representatives on
behalf of the Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or supplemented, will
comply with applicable law.
27
(g)If required by applicable law, to endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request; provided that in no event shall the Company be obligated to qualify
to do business in any jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those arising out of the
offering or sale of the Shares, or taxation in any jurisdiction where it is not now so
subject.
(h)To make generally available to the Company’s security holders and to the
Representatives as soon as practicable an earnings statement covering a period of at least
twelve months beginning with the first fiscal quarter of the Company occurring after the
date of this Agreement which shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder (which may be
satisfied by filing with the Commission’s Electronic Data Gathering Analysis and
Retrieval System).
(i)[Reserved.]
(j)The Company will promptly notify the Representatives if the Company ceases to be an
Emerging Growth Company at any time prior to the later of (i) completion of the
distribution of the Shares within the meaning of the Securities Act and (ii) completion of
the Restricted Period (as defined below).
(k)If at any time following the distribution of any Testing-the-Waters Communication that is
a written communication within the meaning of Rule 405 under the Securities Act there
occurred or occurs an event or development as a result of which such Testing-the-Waters
Communication included or would include an untrue statement of a material fact or
omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at that subsequent time, not misleading,
the Accelevation Parties will promptly notify the Representatives and will promptly
amend or supplement, at their own expense, such Testing-the-Waters Communication to
eliminate or correct such untrue statement or omission.
(l)(i) Each of the Accelevation Parties also covenants with each Underwriter that, without
the prior written consent of the Representatives on behalf of the Underwriters, it will not,
and will not publicly disclose an intention to, during the period commencing on the date
hereof and ending immediately after the close of the Trading Day (as defined below)
occurring on the 180th day after the date of the Prospectus (the “180th Day”) or, if the
180th Day is not a Trading Day, ending immediately after the close of the last Trading
Day immediately preceding the 180th Day (such period of time between the date hereof
and, as the case may be, the 180th Day or the last Trading Day immediately preceding the
180th Day, referred to herein as the “Restricted Period”), (1) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock (collectively, “Lock-Up Securities”),
28
including units of Holdings LLC, or (2) enter into any swap, loan or other arrangement
(including, without limitation, any short sale or the purchase or sale of, or entry into, any
put or call option, or combination thereof, forward or any other derivative transaction or
instrument, however described or defined) that transfers to another, in whole or in part,
directly or indirectly, any of the economic consequences of ownership of any Lock-Up
Securities, whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or such other Lock-Up Securities, in cash or
otherwise or (3) file or confidentially submit any registration statement with the
Commission relating to the offering of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock. For purposes of this
Agreement, a “Trading Day” is a day on which the Nasdaq Stock Market (“Nasdaq”) is
open for the buying and selling of securities.
(ii)The restrictions contained in the preceding paragraph shall not
apply to (A) the Shares to be sold hereunder, (B) the issuance by the Company of
shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof as described in each of
the Time of Sale Prospectus and Prospectus, (C) facilitating the establishment of
a trading plan on behalf of a shareholder, officer or director of the Company
pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of
Class A Common Stock; provided that (1) such plan does not provide for the
transfer of Class A Common Stock during the Restricted Period and (2) no public
announcement, filing or report under the Exchange Act shall be voluntarily made
by any person in connection therewith during the Restricted Period (other than
general disclosure in Company periodic reports to the effect that Company
directors and officers may enter into such trading plans from time to time) and, if
any announcement, filing or report shall be legally required during the Restricted
Period, such announcement, filing or report shall clearly indicate therein that
none of the securities subject to such plan may be transferred, sold, or otherwise
disposed of pursuant to such plan until after expiration of the Restricted Period,
(D) grants of stock options, restricted stock, restricted stock units or other equity
awards and the issuance of shares of Common Stock or securities convertible into
or exercisable or exchangeable for shares of Common Stock (whether upon the
exercise of stock options or otherwise) to the Company’s employees, officers,
directors, advisors or consultants pursuant to the terms of an equity compensation
plan described in the Registration Statement, Time of Sale Prospectus and
Prospectus, (E) the filing of any registration statement on Form S-8 relating to
securities granted or to be granted pursuant to any plan described in the
Registration Statement, Time of Sale Prospectus or Prospectus, (F) any shares or
other equity issued in connection with the Organizational Transactions, (G) any
shares of Class A Common Stock issued pursuant to any non-employee director
stock plan or dividend reinvestment plan referred to in the Registration
Statement, the Time of Sale Prospectus and the Prospectus or (H) the sale or
issuance of or entry into an agreement providing for the sale or issuance of
Common Stock or securities convertible into, exercisable for or which are
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otherwise exchangeable for or represent the right to receive Common Stock in
connection with (x) the acquisition by the Company or any of its subsidiaries of
the securities, business, technology, property or other assets of another person or
entity or pursuant to an employee benefit plan assumed by the Company in
connection with such acquisition, and the issuance of any Common Stock or
securities convertible into, exercisable for or which are otherwise exchangeable
for or represent the right to receive Common Stock pursuant to any such
agreement or (y) the Company’s joint ventures, commercial relationships and
other strategic transactions, provided that the aggregate number of shares of
Common Stock securities convertible into, exercisable for or which are otherwise
exchangeable for or represent the right to receive Common Stock that the
Company may sell or issue or agree to sell or issue pursuant to this clause (H)
shall not exceed 5% of the total number of shares of Common Stock outstanding
as of the Closing Date immediately following the completion of the transactions
contemplated by this Agreement to be completed as of that date, including the
Organizational Transactions, and provided further that all recipients of any such
securities shall enter into a “lock-up” agreement, substantially in the form of
Exhibit A hereto covering the remainder of the Restricted Period.
(iii)If the Representatives, in their sole discretion, agree to release
or waive the restrictions on the transfer of Shares set forth in a Lock-Up
Agreement for an officer or director of the Accelevation Parties and provide the
Company with notice of the impending release or waiver at least three business
days before the effective date of the release or waiver, the Company agrees to
announce the impending release or waiver by a press release substantially in the
form of Exhibit B hereto through a major news service at least two business days
before the effective date of the release or waiver.
(m)The Accelevation Parties will use their best efforts to effect and maintain the listing of the
Shares on the Nasdaq.
(n)The Accelevation Parties will apply the net proceeds from the sale of the Shares in the
manner described under the caption “Use of Proceeds” in each of the Registration
Statement, the Time of Sale Prospectus and the Prospectus.
8.Covenants of the Sellers. Each Seller, severally and not jointly, covenants with each
Underwriter as follows:
(a)Each Seller will deliver to each Underwriter (or its agent), prior to or at the Closing Date,
a properly completed and executed IRS Form W-9 or an IRS Form W-8, as appropriate,
together with all required attachments to such form.
(b)Each Seller that is not an individual will deliver to each Underwriter (or its agent), on or
prior to the date of execution of this Agreement, a properly completed and executed
Certification Regarding Beneficial Owners of Legal Entity Customers, together with
copies of identifying documentation, and each Seller undertakes to provide such
30
additional supporting documentation as each Underwriter may reasonably request in
connection with the verification of the foregoing Certification.
9.Expenses. Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, each of the Accelevation Parties, jointly and
severally, agrees to pay or cause to be paid all expenses incident to the performance of their
obligations under this Agreement (except as otherwise provided herein), including: (i) the fees,
disbursements and expenses of the Accelevation Parties’ counsel and accountants, and counsel
for the Selling Shareholders, in connection with the registration and delivery of the Shares under
the Securities Act and all other fees or expenses in connection with the preparation and filing of
the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the
Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the
Accelevation Parties and amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses
related to the transfer and delivery of the Shares to the Underwriters, including any transfer or
other taxes payable thereon, (iii) the reasonable and documented cost of printing or producing
any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the qualification of the
Shares for offer and sale under state securities laws as provided in Section 7(g), including filing
fees and the reasonable and documented fees and disbursements of counsel for the Underwriters
in connection with such qualification and in connection with the Blue Sky or Legal Investment
memorandum, (iv) all filing fees and the reasonable and documented fees and disbursements of
counsel to the Underwriters incurred in connection with the review and qualification of the
offering of the Shares by FINRA, provided that the amount payable by the Company with
respect to fees and disbursements of counsel for the Underwriters pursuant to subsections (iii)
and (iv) shall not exceed $50,000, (v) all fees and expenses in connection with the preparation
and filing of the registration statement on Form 8-A relating to the Common Stock and all costs
and expenses incident to listing the Shares on the Nasdaq, (vi) the costs and charges of any
transfer agent, registrar or depositary, (vii) the costs and expenses of the Accelevation Parties
relating to investor presentations on any “road show,” as defined in Rule 433(h) under the
Securities Act (a “road show”), undertaken in connection with the marketing of the offering of
the Shares, including, without limitation, expenses associated with the preparation or
dissemination of any electronic road show, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Accelevation Parties and travel and lodging
expenses of the representatives and officers of the Accelevation Parties and any such consultants,
(viii) the document production charges and expenses associated with printing this Agreement and
(ix) all other costs and expenses incident to the performance of the obligations of the
Accelevation Parties hereunder for which provision is not otherwise made in this Section 9. It is
understood, however, that except as provided in this Section 9, Section 11 entitled “Indemnity
and Contribution” and the last paragraph of Section 14 below, the Underwriters will pay all of
their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes
payable on resale of any of the Shares by them and any advertising expenses connected with any
offers they may make and in connection with any road show undertaken in connection with the
31
marketing of the offering and the Shares, the travel, lodging and meal expenses of the
Underwriters; provided, however, that the Representatives and the Accelevation Parties agree
that the Accelevation Parties, jointly, and the Underwriters shall each pay or cause to be paid
50% of the cost of any aircraft chartered or other transportation chartered in connection with
such road show.
The provisions of this Section 9 shall not supersede or otherwise affect any agreement
that the Accelevation Parties and/or the Selling Shareholders may otherwise have for the
allocation of such expenses among themselves.
10.Covenants of the Underwriters. Each Underwriter, severally and not jointly,
covenants with the Accelevation Parties and the Selling Shareholders not to take any action that
would result in the Company being required to file with the Commission under Rule 433(d) a
free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be
required to be filed by the Company thereunder, but for the action of such Underwriter.
11.Indemnity and Contribution. The Accelevation Parties, jointly and severally, agree
to indemnify and hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the
Securities Act and their respective directors, officers, employees and agents from and against any
and all losses, claims, damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any such action or
claim) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof, any preliminary
prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free
writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information
that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act, any road show, the Prospectus or any amendment or supplement thereto, or any Testing-the-
Waters Communication, or arise out of, or are based upon, any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or liabilities arise out of,
or are based upon, any such untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to any Underwriter
furnished to the Accelevation Parties in writing by such Underwriter through the Representatives
expressly for use therein, it being understood and agreed that the only such information furnished
by the Underwriters through the Representatives consists of the information described as such in
paragraph (b) below.
(a)Each Selling Shareholder, severally and not jointly, agrees to indemnify and hold
harmless each Underwriter, each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and
each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act
from and against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with defending
32
or investigating any such action or claim) that arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus or any amendment or supplement thereto, any issuer free writing prospectus
as defined in Rule 433(h) under the Securities Act, any Company information that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act, any road show, the Prospectus or any amendment or supplement thereto, or any
Testing-the-Waters Communication, or arise out of, or are based upon, any omission or
alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only with reference to the Selling
Shareholder Information relating to such Selling Shareholder. The liability of each
Selling Shareholder under the indemnity agreement contained in this paragraph shall be
limited to an amount equal to the aggregate net proceeds (after deducting underwriting
discounts and commissions but before deducting expenses) of the Shares sold by such
Selling Shareholder under this Agreement (with respect to each Selling Shareholder, the
“Selling Shareholder Proceeds”).
(b)Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Accelevation Parties, the Selling Shareholders, the directors of the Company, the officers
of the Company who sign the Registration Statement and each person, if any, who
controls the Accelevation Parties or any Selling Shareholder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Accelevation Parties to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the Accelevation
Parties or the Company in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement, any preliminary prospectus, the Time of
Sale Prospectus, any issuer free writing prospectus, road show, or the Prospectus or any
amendment or supplement thereto, it being understood and agreed that the only such
information furnished by any Underwriter through the Representatives consists of the
following information under the caption “Underwriting” in the Time of Sale Prospectus
and the Prospectus: the concession figures in the [third] paragraph, the information
regarding sales to discretionary accounts in the [seventh] paragraph, the information
regarding stabilization and short positions in the [first, second, sixth, ninth] sentences of
the [tenth] paragraph and the information regarding internet distributions in the [second
and third] sentences of the [twelfth] paragraph (the “Underwriter Information”).
(c)In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to the
preamble to this Section 11, Section 11(a) or Section 11(b), such person (the
“indemnified party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party (for the avoidance of doubt, who shall not, without the consent of the
indemnified party, be the same counsel as counsel to the indemnifying party) to represent
the indemnified party and any others the indemnifying party may designate in such
33
proceeding and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any indemnified
party in connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Underwriters and all persons, if any, who control any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405
under the Securities Act, (ii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within the
meaning of either such Section and (iii) the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Selling Shareholders and all persons, if any,
who control any Selling Shareholder within the meaning of either such Section, and that
all such fees and expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Underwriters and such control persons and affiliates of any
Underwriters, such firm shall be designated in writing by the Representatives. In the case
of any such separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company. In the
case of any such separate firm for the Selling Shareholders and such control persons of
any Selling Shareholders, such firm shall be designated in writing by the Selling
Shareholders. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there
be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding, and does not
34
include a statement as to, or an admission of fault, wrongdoing, culpability or a failure to
act by or on behalf of any indemnified party.
(d)To the extent the indemnification provided for in the preamble to this Section 11, Section
11(a) or Section 11(b) is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause 11(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in
clause 11(d)(i) above but also the relative fault of the indemnifying party or parties on the
one hand and of the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received by the
Accelevation Parties and the Selling Shareholders on the one hand and the Underwriters
on the other hand in connection with the offering of the Shares shall be deemed to be in
the same respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by each Seller and the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the table on
the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares.
The relative fault of the Accelevation Parties and the Selling Shareholders on the one
hand and the Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Accelevation Parties and the Selling Shareholders or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters’ respective obligations to contribute
pursuant to this Section 11 are several in proportion to the respective number of Shares
they have purchased hereunder, and not joint. The liability of the Selling Shareholder
under the contribution agreement contained in this paragraph shall be limited to an
amount equal to the Selling Shareholder Proceeds.
(e)Each of the Accelevation Parties, the Selling Shareholders and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this Section 11 were
determined by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 11(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities referred to in
Section 11(d) shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of
this Section 11, no Underwriter shall be required to contribute any amount in excess of
35
the amount by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 11 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f)The indemnity and contribution provisions contained in this Section 11 and the
representations, warranties and other statements of the Accelevation Parties and the
Selling Shareholders contained in this Agreement shall remain operative and in full force
and effect regardless of any termination of this Agreement, any investigation made by or
on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of
any Underwriter and their respective directors, officers, employees and agents, by or on
behalf of any Selling Shareholder or any person controlling any Selling Shareholder, or
by or on behalf of the Accelevation Parties, their officers or directors or any person
controlling the Accelevation Parties and acceptance of and payment for any of the Shares.
12.Termination. The Underwriters may terminate this Agreement by notice given by
the Representatives to the Company and the Selling Shareholders, if after the execution and
delivery of this Agreement and prior to or on the Closing Date or any Option Closing Date, as
the case may be, (i) trading generally shall have been suspended or materially limited on, or by,
as the case may be, any of the New York Stock Exchange, the NYSE American, the Nasdaq, the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange
or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred, (iv) any moratorium on commercial
banking activities shall have been declared by Federal or New York State authorities or (v) there
shall have occurred any outbreak or escalation of hostilities, or any change in financial markets
or any calamity or crisis that, in the Representatives’ judgment, is material and adverse and
which, singly or together with any other event specified in this clause (v), makes it, in the
Representatives’ judgment, impracticable or inadvisable to proceed with the offer, sale or
delivery of the Shares on the terms and in the manner contemplated in the Time of Sale
Prospectus or the Prospectus.
13.Effectiveness; Defaulting Underwriters. This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of
the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to
purchase hereunder on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall
36
be obligated severally in the proportions that the number of Firm Shares set forth opposite their
respective names in Schedule II bears to the aggregate number of Firm Shares set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided that in no event
shall the number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 13 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares to be purchased on such date, and arrangements satisfactory to
the Representatives, the Company and the Selling Shareholders for the purchase of such Firm
Shares are not made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Company or the Selling Shareholders.
In any such case either the Representatives or the relevant Sellers shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any
other documents or arrangements may be effected. If, on an Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate
number of Additional Shares with respect to which such default occurs is more than one-tenth of
the aggregate number of Additional Shares to be purchased on such Option Closing Date, the
non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to
purchase the Additional Shares to be sold on such Option Closing Date or (ii) purchase not less
than the number of Additional Shares that such non-defaulting Underwriters would have been
obligated to purchase in the absence of such default. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Accelevation Parties or any Selling Shareholder to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the
Accelevation Parties or any Selling Shareholder shall be unable to perform its obligations under
this Agreement, the Accelevation Parties or such Selling Shareholder, as applicable, will
reimburse the Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all reasonable and documented out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by such Underwriters
in connection with this Agreement or the offering contemplated hereunder.
14.Entire Agreement. This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement)
that relate to the offering of the Shares, represents the entire agreement between the Accelevation
Parties and the Selling Shareholders, on the one hand, and the Underwriters, on the other, with
respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the
Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
37
(a)The Accelevation Parties and each Selling Shareholder acknowledge that in connection
with the offering of the Shares: (i) the Underwriters have acted at arm’s length, are not
agents of, and owe no fiduciary duties to, the Accelevation Parties, any of the Selling
Shareholders or any other person; (ii) the Underwriters owe the Accelevation Parties and
each Selling Shareholder only those duties and obligations set forth in this Agreement,
any contemporaneous written agreements and prior written agreements (to the extent not
superseded by this Agreement), if any; (iii) the Underwriters may have interests that
differ from those of the Accelevation Parties and each Selling Shareholder; and (iv) none
of the activities of the Underwriters in connection with the transactions contemplated
herein constitutes a recommendation, investment advice, or solicitation of any action by
the Underwriters with respect to any entity or natural person. The Accelevation Parties
and each Selling Shareholder waive to the full extent permitted by applicable law any
claims any of them may have against the Underwriters arising from an alleged breach of
fiduciary duty in connection with the offering of the Shares.
(b)Each Selling Shareholder further acknowledges and agrees that, although the
Underwriters may provide certain Selling Shareholders with certain Regulation Best
Interest and Form CRS disclosures or other related documentation in connection with the
offering, the Underwriters are not making a recommendation to any Selling Shareholder
to participate in the offering or sell any Shares at the Purchase Price, and nothing set forth
in such disclosures or documentation is intended to suggest that any Underwriter is
making such a recommendation.
15.Recognition of the U.S. Special Resolution Regimes. (a) In the event that any
Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special
Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and
obligation in or under this Agreement, will be effective to the same extent as the transfer would
be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest
and obligation, were governed by the laws of the United States or a state of the United States.
(b)In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such
Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime,
Default Rights under this Agreement that may be exercised against such Underwriter are
permitted to be exercised to no greater extent than such Default Rights could be exercised
under the U.S. Special Resolution Regime if this Agreement were governed by the laws
of the United States or a state of the United States.
For purposes of this Section 15, a “BHC Act Affiliate” has the meaning assigned to the
term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered
Entity” means 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). “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. “U.S. Special Resolution Regime” means each
38
of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title
II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations
promulgated thereunder.
16.Counterparts; Electronic Signatures. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. Counterparts may be delivered via facsimile,
electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of
2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other
applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so
delivered shall be deemed to have been duly and validly delivered and be valid and effective for
all purposes.
17.Applicable Law. This Agreement and any claim, controversy or dispute arising
under or related to this Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York without regard to principles of conflict of laws that would
result in the application of any other law than the laws of the State of New York. Each of the
Representatives, the Accelevation Parties and the Selling Shareholders agrees that any suit or
proceeding arising in respect of this Agreement or any transaction contemplated by this
Agreement will be tried exclusively in the U.S. District Court for the Southern District of New
York or, if that court does not have subject matter jurisdiction, in any state court located in The
City and County of New York and each of the Representatives, the Accelevation Parties and the
Selling Shareholders agrees to submit to the jurisdiction of, and to venue in, such courts.
18.Waiver of Jury Trial. EACH OF THE ACCELEVATION PARTIES, THE
SELLING SHAREHOLDERS AND THE UNDERWRITERS HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
19.Binding Agreement. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Accelevation Parties, the Selling Shareholders and each person
who controls any Accelevation Party, Selling Shareholder or any Underwriter, or any director,
officer, employee, or affiliate of any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or have any right under
or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
20.Tax Disclosures. Notwithstanding anything herein to the contrary, the Accelevation
Parties are authorized to disclose to any persons the U.S. federal and state income tax treatment
and tax structure of the potential transaction and all materials of any kind (including tax opinions
and other tax analyses) provided to the Accelevation Parties relating to that treatment and
structure, without the Underwriters imposing any limitation of any kind. However, any
information relating to the tax treatment and tax structure shall remain confidential (and the
foregoing sentence shall not apply) to the extent necessary to enable any person to comply with
39
securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to
that treatment.
21.Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
22.Notices. All communications hereunder shall be in writing and effective only upon
receipt and if to the Underwriters shall be delivered, mailed or sent to the Representatives in care
of Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Equity
Syndicate Desk, with a copy to the Legal Department and J.P. Morgan Securities LLC, 270 Park
Avenue, New York, New York 10017, Attention: Equity Syndicate Desk; if to the Company
shall be delivered, mailed or sent to 9555 N. Springboro Pike, Suite 400, Miamisburg, Ohio
45342, Attn: Michael Rubiera; and if to the Selling Shareholders shall be delivered, mailed or
sent to c/o Olympus Partners, Metro Center, 4th Floor, One Station Place, Stamford, CT 06902,
Attn: Matt Boyd.
[Signature Pages Follow]
[Signature Page to Underwriting Agreement]
Very truly yours, | |||
ACCELEVATION HOLDINGS CORP. | |||
By: | |||
Name: | |||
Title: | |||
ACCELEVATION LLC | |||
By: | |||
Name: | |||
Title: | |||
[Signature Page to Underwriting Agreement]
The Selling Shareholders named in Schedule I hereto, acting severally | |||
ACCELEVATION PUBCO HOLDINGS LP | |||
By: | |||
Name: | |||
Title: | |||
ACCELEVATION INVESTMENT HOLDINGS LLC | |||
By: | |||
Name: | |||
Title: | |||
Accepted as of the date hereof | |||
Morgan Stanley & Co. LLC J.P. Morgan Securities LLC | |||
Acting severally on behalf of themselves and the several Underwriters named in Schedule II hereto | |||
By: | Morgan Stanley & Co. LLC | ||
By: | |||
Name: | |||
Title: | |||
By: | J.P. Morgan Securities LLC | ||
By: | |||
Name: | |||
Title: | |||
I-1
SCHEDULE I
Selling Shareholder | Number of Firm Shares To Be Sold | [Number of Additional Shares To Be Sold] | |||
Accelevation Pubco Holdings LP | [●] | [●] | |||
Accelevation Investment Holdings LLC | [●] | [●] | |||
Total: | [●] | [●] |
II-1
SCHEDULE II
Underwriter | Number of Firm Shares To Be Purchased | ||
Morgan Stanley & Co. LLC | [●] | ||
J.P. Morgan Securities LLC | [●] | ||
[●] | [●] | ||
[●] | [●] | ||
[●] | [●] | ||
[●] | [●] | ||
Total: | [●] |
III-1
SCHEDULE III
Time of Sale Prospectus
1.Preliminary Prospectus issued [●]
2.[identify all free writing prospectuses filed by the Company under Rule 433(d) of the
Securities Act]
3.[free writing prospectus containing a description of terms that does not reflect final terms,
if the Time of Sale Prospectus does not include a final term sheet]
4.[orally communicated pricing information such as price per share and size of offering if a
Rule 134 pricing term sheet is used at the time of sale instead of a pricing term sheet filed
by the Company under Rule 433(d) as a free writing prospectus]
IV-1
SCHEDULE IV
Transaction Documents
1.Amended and Restated Certificate of Incorporation of the Company.
2.Amended and Restated Operating Agreement of Holdings LLC.
3.Exchange Agreement among the Company, Olympus Accelevation Holdings Aggregator
LLC, Accelevation Management Aggregator LLC and certain other existing owners of
Holdings LLC.
4.Tax Receivable Agreement among the Company, Accelevation Holdings LLC and the
parties listed on Schedule A thereto.
5.[●].
Exhibit A-1
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
[●], 2026
Morgan Stanley & Co. LLC
J.P. Morgan Securities LLC
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, NY 10036
c/o J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
The undersigned understands that Morgan Stanley & Co. LLC and J.P. Morgan Securities
LLC, as representatives (the “Representatives”) of the several Underwriters named in Schedule
II to the Underwriting Agreement, propose to enter into an Underwriting Agreement (the
“Underwriting Agreement”) with Accelevation Holdings Corp., a Delaware corporation (the
“Company”), Accelevation LLC, a Delaware limited liability company, and certain selling
shareholders of the Company named in Schedule I thereto (the “Selling Shareholders”)
providing for the public offering (the “Public Offering”) by the several Underwriters, including
the Representatives (the “Underwriters”), of [●] shares (the “Shares”) of the Class A common
stock, par value $0.0001 per share, of the Company (the “Class A Common Stock”). As used
herein, the term “Common Stock” refers to shares of the Company’s Class A Common Stock
and Class B common stock, par value $0.0001 per share (the “Class B Common Stock”).
To induce the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned hereby agrees that, without the
prior written consent of the Representatives on behalf of the Underwriters, it will not, and will
not publicly disclose an intention to, during the period commencing on the date hereof and
ending immediately after the close of the Trading Day occurring on the 180th day after the date
of the final prospectus (the “Prospectus”) relating to the Public Offering (the “180th Day”) or,
if the 180th Day is not a Trading Day, ending immediately after the close of the last Trading Day
immediately preceding the 180th Day (such period of time between the date hereof and, as the
case may be, the 180th Day or the last Trading Day immediately preceding the 180th Day,
referred to herein as the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock owned or hereafter acquired by the undersigned or with respect to which the
undersigned has or hereafter acquires the power of disposition, including, without limitation,
Exhibit A-2
Common Stock or such other securities which may be deemed to be beneficially owned (as such
term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) and securities which may be issued upon exercise of a stock option or warrant by the
undersigned or any other securities so owned convertible into or exercisable or exchangeable for
Common Stock (collectively, the “Lock-Up Securities”), including units of Accelevation
Holdings LLC (“Holdings LLC”) (the “Units”) or (2) enter into any hedging, swap, loan or
other arrangement (including, without limitation, any short sale or the purchase or sale of, or
entry into, any put or call option, or combination thereof, forward or any other derivative
transaction or instrument, however described or defined) that transfers to another, in whole or in
part, directly or indirectly, any of the economic consequences of ownership of the Lock-Up
Securities, whether any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other Lock-Up Securities, in cash or otherwise. The
undersigned acknowledges and agrees that the foregoing precludes the undersigned from
engaging in any hedging or other transactions designed or intended, or which could reasonably
be expected to lead to or result in, a sale or disposition of any Lock-Up Securities, even if any
such sale or disposition transaction or transactions would be made or executed by or on behalf of
someone other than the undersigned. For purposes of this agreement, a “Trading Day” is a day
on which the Nasdaq Stock Market is open for the buying and selling of securities.
The foregoing shall not apply to the following:
(a)transactions relating to shares of Common Stock or other securities acquired from
the Underwriters in the Public Offering or in open market transactions after the completion of the
Public Offering; provided that no public report or filing with the Securities and Exchange
Commission (the “Commission”) or otherwise is required or voluntarily made during the
Restricted Period;
(b)transfers, dispositions or distributions of Lock-Up Securities: (i) as one or more
bona fide gifts, including, without limitation, to a charitable organization or educational
institution, or for bona fide estate planning purposes, (ii) by will, testamentary document or
intestacy, (iii) by operation of law, such as pursuant to a qualified domestic order, divorce
settlement, divorce decree or separation agreement, (iv) pursuant to an order of a court or
regulatory agency having jurisdiction over the undersigned, (v) to any corporation, partnership,
limited liability company or other entity of which the undersigned or the immediate family
member of the undersigned (as defined in FINRA Rule 5130(i)(5)) are the legal and beneficial
owner of all of the outstanding equity securities or similar interests, (vi) to any nominee or
custodian of a person or entity to whom a disposition or transfer would be permissible under
clauses (i) through (v) above, (vii) to any member of the undersigned’s immediate family or to
any trust, partnership, limited liability company or other entity for the direct or indirect benefit of
the undersigned and/or any member of the undersigned’s immediate family, or if the undersigned
is a trust, to a trustor or beneficiary of the trust or to the estate of the beneficiary of such trust,
(viii) to the Company upon the undersigned’s death, disability or termination of employment or
other service relationship with the Company, (ix) to the Company in connection with the vesting,
settlement or exercise of restricted stock units, options, warrants or other rights to purchase
shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise),
Exhibit A-3
including any transfer to the Company for the payment of tax withholdings or remittance
payments due as a result of the vesting, settlement or exercise of such restricted stock units,
options, warrants or other rights, or the conversion of convertible securities, in all such cases
pursuant to equity awards granted under a stock incentive plan or other equity award plan, each
as described in the Registration Statement; provided that any securities received upon such
vesting, settlement, exercise or conversion shall be subject to the terms of this agreement, or (x)
with the prior written consent of the Representatives on behalf of the Underwriters; provided that
in the case of any transfer, disposition or distribution (1) pursuant to clauses (i), (ii), (iii), (iv),
(v), (vi) and (vii), each donee, devisee, trustee, distributee or transferee, as the case may be, shall
sign and deliver a lock-up agreement substantially in the form of this agreement for the balance
of the Restricted Period, (2) pursuant to clauses (i), (ii), (iii), (v), (vi) and (vii), any such transfer
shall not involve a disposition for value, (3) pursuant to clauses (v), (vi) and (vii), such transfers
are not required to be reported during the Restricted Period in a filing with the Commission
under Section 16(a) of the Exchange Act on Form 4 or Form 5 (or, in the case of clauses (i), (ii),
(iii) and (iv) above, any filing, if required, shall indicate in the footnotes thereto that the filing
relates to circumstances described in the relevant clause), (4) pursuant to clauses (i), (ii), (iii),
(viii) and (ix), the undersigned does not otherwise voluntarily effect any public filing or report
regarding such transfers, and (5) in the case of clauses (viii) and (ix) above, that such Lock-Up
Securities were issued to the undersigned pursuant to an agreement or equity award granted
pursuant to an employee benefit plan, option, warrant or other right disclosed in the Prospectus;
(c)if the undersigned is not an individual, distributions of Lock-Up Securities to: (i)
another corporation, partnership, limited liability company or other business entity that is an
affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended (the
“Securities Act”)) of the undersigned, or to any investment fund or other entity controlling,
controlled by, managing or managed by or under common control with the undersigned or
affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a
partnership, to its general partner or a successor partnership or fund, or any other funds managed
by such partnership), or (ii) as part of a distribution to limited partners, limited liability company
members or stockholders of the undersigned or holders of similar equity interests in the
undersigned; provided that in the case of any distribution pursuant to this clause, (1) each
distributee shall sign and deliver a lock-up agreement substantially in the form of this agreement
for the balance of the Restricted Period, (2) any such transfer shall not involve a disposition for
value, (3) such transfers are not required to be reported during the Restricted Period in a filing
with the Commission under Section 16(a) of the Exchange Act on Form 4 or Form 5, and (4) the
undersigned does not otherwise voluntarily effect any public filing or report regarding such
transfers;
(d)establishing a trading plan pursuant to Rule 10b5-1 under the Exchange Act for
the transfer of shares of Class A Common Stock; provided that (1) such plan does not provide for
the transfer of Class A Common Stock during the Restricted Period and (2) no public
announcement, filing or report under the Exchange Act shall be voluntarily made by any person
in connection therewith during the Restricted Period (other than general disclosure in Company
periodic reports to the effect that Company directors and officers may enter into such trading
plans from time to time) and, if any announcement, filing or report shall be legally required
1 To be included for Accelevation Pubco Holdings LP and Accelevation Investment Holdings LLC.
Exhibit A-4
during the Restricted Period, such announcement, filing or report shall clearly indicate therein
that none of the securities subject to such plan may be transferred, sold, or otherwise disposed of
pursuant to such plan until after expiration of the Restricted Period; [or]
(e)sales pursuant to the terms of the Underwriting Agreement[; or]
(f)[pledging, hypothecating or otherwise granting a security interest in Lock-Up
Securities to one or more banks, financial or lending institutions as collateral or security for any
loan, advance, margin loan or extension of credit or similar financing activity or arrangements
and any transfer upon foreclosure upon or enforcement of such Lock-Up Securities, provided,
that the undersigned or the Company, as the case may be, shall provide the Representatives prior
written notice informing them of any public filing, report or announcement with respect to such
pledge, hypothecation or other grant of a security interest].1
Notwithstanding the foregoing, clause (b)(1) above shall not apply with respect to any
transfer of shares of Common Stock to charitable organization transferees or recipients
(including any direct or indirect member or partner of the undersigned that receives such shares
of Common Stock pursuant to a distribution in-kind to such member or partner) in an aggregate
amount, together with any such transfers by the undersigned and the undersigned’s affiliates
pursuant to any substantially similar lock-up agreement with the Representatives, not to exceed
1.0% of the outstanding shares of Common Stock (treating as outstanding shares of Class A
Common Stock and Class B Common Stock). For the avoidance of doubt, any transfer of shares
of Common Stock to a charitable organization transferee or recipient that has agreed in writing to
be bound by the same terms described in this Lock-Up Agreement to the extent and for the
duration that such terms remain in effect at the time of the transfer shall not count towards the
percentage in the preceding sentence.
The restrictions set forth in this Lock-Up Agreement shall not apply to any exchange,
transfer or sale in connection with, and as contemplated by, the Organizational Transactions (as
such term is defined in the Underwriting Agreement).
In addition, the undersigned agrees that, without the prior written consent of the
Representatives on behalf of the Underwriters, it will not, during the Restricted Period, make any
demand for or exercise any right with respect to, the registration of any shares of Common
Stock, Units or any other security convertible into or exercisable or exchangeable for Common
Stock.
The undersigned also agrees and consents to the entry of stop transfer instructions with
the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of
Lock-Up Securities except in compliance with the foregoing restrictions.
If the undersigned is an officer or director of the Company, (i) the Representatives agree
that, at least three business days before the effective date of any release or waiver of the
foregoing restrictions in connection with a transfer of shares of Class A Common Stock or other
Exhibit A-5
Lock-Up Securities, the Representatives will notify the Company of the impending release or
waiver, and (ii) the Company has agreed in the Underwriting Agreement to announce the
impending release or waiver by press release through a major news service (or such other method
that satisfies the requirements of FINRA Rule 5131(d)(2)) at least two business days before the
effective date of the release or waiver. Any release or waiver granted by the Representatives
hereunder to any such officer or director shall only be effective two business days after the
publication date of such press release. The provisions of this paragraph will not apply if (a) the
release or waiver is effected solely to permit a transfer not for consideration or that is to an
immediate family member as defined in FINRA Rule 5130(i)(5) and (b) the transferee has agreed
in writing to be bound by the same terms described in this agreement to the extent and for the
duration that such terms remain in effect at the time of the transfer.
The undersigned hereby represents and warrants that the undersigned has full power,
capacity and authority to enter into this agreement. The undersigned understands that the
Company and the Underwriters are relying upon this agreement in proceeding toward
consummation of the Public Offering. The undersigned further understands that this agreement
is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors
and assigns.
The undersigned acknowledges and agrees that the Underwriters have not provided any
recommendation or investment advice nor have the Underwriters solicited any action from the
undersigned with respect to the Public Offering and the undersigned has consulted their own
legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate. The
undersigned further acknowledges and agrees that, although the Underwriters may provide
certain Regulation Best Interest and Form CRS disclosures or other related documentation to you
in connection with the Public Offering, the Underwriters are not making a recommendation
to you to participate in the Public Offering or sell any Shares at the price determined in the
Public Offering, and nothing set forth in such disclosures or documentation is intended to suggest
that any Underwriter is making such a recommendation.
Whether or not the Public Offering actually occurs depends on a number of factors,
including market conditions. Any Public Offering will only be made pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between the Company
and the Underwriters.
In the event that a Representative withdraws or is terminated from, or declines to
participate in, the Public Offering, all references in this agreement to the Representatives shall
refer to the remaining Representative. If all Representatives withdraw, are terminated from or
decline to participate in the Public Offering, all references in this agreement to the
Representatives shall refer to the lead left book runner in the Public Offering (“Replacement
Entity”), and in such event, any written consent, waiver or notice given or delivered in
connection with this agreement by or to such Replacement Entity shall be deemed to be
sufficient and effective for all purposes under this agreement.
This agreement shall automatically terminate and be of no further effect upon the earliest
to occur, if any, of: (i) the date of filing with the Commission of a notice of withdrawal of the
Exhibit A-6
registration statement on Form S-1 related to the Public Offering pursuant to Rule 477
promulgated under the Securities Act, prior to its effectiveness, (ii) the date that the Company
advises the Representatives in writing prior to the execution of the Underwriting Agreement that
it has determined not to proceed with the Public Offering, (iii) the date that the Representatives
advise the Company in writing prior to the execution of the Underwriting Agreement that they
have determined not to proceed with the Public Offering, (iv) the date that the Underwriting
Agreement (other than the provisions thereof that survive termination) terminates or is
terminated prior to payment for and delivery of any Shares to be sold thereunder (other than
pursuant to the Underwriters’ option thereunder to purchase Additional Shares), and (v) March
31, 2027, in the event that the Underwriting Agreement has not been executed on or before that
date.
This agreement and any claim, controversy or dispute arising under or related to this
agreement shall be governed by and construed in accordance with the laws of the State of New
York.
This agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute one and the same
agreement. Electronic signatures complying with the New York Electronic Signatures and
Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable
law will be deemed original signatures for purposes of this agreement. Transmission by telecopy,
electronic mail or other transmission method (including .pdf or any electronic signature
complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or
www.echosign.com) of an executed counterpart of this agreement will constitute due and
sufficient delivery of such counterpart.
[Signature Pages Follow]
[Signature Page to Lock-Up Agreement]
Very truly yours, | |
(Name) | |
(Address) |
Exhibit 3.2
FORM OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACCELEVATION HOLDINGS CORP.
* * * * *
Accelevation Holdings Corp., a corporation duly organized and existing under and by virtue of
the provisions of the General Corporation Law of the State of Delaware (the “Corporation”),
DOES HEREBY CERTIFY as follows:
FIRST: The present name of the Corporation is Accelevation Holdings Corp. The original
Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State
of Delaware on June 15, 2026 (the “Certificate of Incorporation”).
SECOND: The Board of Directors of the Corporation, pursuant to a unanimous written consent,
duly adopted resolutions authorizing the Corporation to amend and restate the Certificate of
Incorporation in its entirety to read as set forth in Exhibit A attached hereto and made a part
hereof (the “Amended and Restated Certificate”).
THIRD: The Amended and Restated Certificate restates and integrates and further amends the
Certificate of Incorporation.
FOURTH: The stockholders of the Corporation approved and adopted the Amended and
Restated Certificate by written consent in accordance with Section 228 of the General
Corporation Law of the State of Delaware.
FIFTH: The Amended and Restated Certificate has been duly adopted in accordance with
Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware.
* * * * *
Signature Page to Amended and Restated
Certificate of Incorporation of Accelevation Holdings Corp.
IN WITNESS WHEREOF, Accelevation Holdings Corp. has caused this Amended and Restated
Certificate of Incorporation to be executed by its duly authorized officer on this day
of , 2026.
ACCELEVATION HOLDINGS CORP. | |||
By: | |||
Name: | Michael Rubiera | ||
Title: | Chief Executive Officer | ||
Exhibit A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACCELEVATION HOLDINGS CORP.
ARTICLE ONE
The name of the corporation is Accelevation Holdings Corp. (the “Corporation”).
ARTICLE TWO
The address of the Corporation’s registered office in the State of Delaware is 1209 Orange
Street, in the City of Wilmington, County of New Castle, Delaware 19801. The name of its
registered agent at such address is The Corporation Trust Company.
ARTICLE THREE
The nature and purpose of the business of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation Law of the
State of Delaware (“DGCL”).
ARTICLE FOUR
Section 1.Authorized Shares. The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is shares, consisting of three classes
as follows:
1. shares of Preferred Stock, par value $0.0001 per share (the “Preferred Stock”);
2. shares of Class A common stock, par value $0.0001 per share (the “Class A
Common Stock”); and
3. shares of Class B common stock, par value $0.0001 per share (the “Class B
Common Stock” and together with the Class A Common Stock, the “Common Stock”).
The Preferred Stock and the Common Stock shall have the designations, rights, powers, and
preferences and the qualifications, restrictions, and limitations thereof, if any, set forth below.
Section 2.Preferred Stock. The Board of Directors of the Corporation (the “Board”) is
authorized, subject to limitations prescribed by law, to provide, by resolution or resolutions for
the issuance of shares of Preferred Stock in one or more series, and with respect to each series, to
establish the number of shares to be included in each such series, and to fix the voting powers (if
any), designations, powers, preferences, and relative, participating, optional, or other special
rights, if any, of the shares of each such series, and any qualifications, limitations, or restrictions
thereof, including dividend rights, conversion rights, voting rights, terms of redemption, and
4
liquidation preferences, any or all of which may be greater than the rights of the Common Stock.
The powers (including voting powers), preferences, and relative, participating, optional, and
other special rights of each series of Preferred Stock and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other series at any time
outstanding. Subject to the rights of the holders of any series of Preferred Stock, the number of
authorized shares of Preferred Stock may be increased or decreased (but not below the number of
shares thereof then outstanding), without the separate vote of the holders of the Preferred Stock
as a class, irrespective of the provisions of Section 242(b)(2) of the DGCL. For the avoidance of
doubt, and notwithstanding the foregoing, the Corporation shall be governed by Section 242(d)
of the DGCL.
Section 3.Common Stock.
(a)Voting Rights. Except as otherwise required by the DGCL or as provided
by or pursuant to the provisions of this Certificate of Incorporation (as amended and/or restated
from time to time, including pursuant to any certificate of designation relating to any series of
Preferred Stock, the “Certificate”):
(i)Each holder of Class A Common Stock shall be entitled to one
vote for each share of Class A Common Stock held of record by such holder on all matters to be
voted upon by stockholders of the Corporation.
(ii)Each holder of Class B Common Stock shall be entitled to one vote
for each share of Class B Common Stock held of record by such holder on all matters to be voted
upon by stockholders of the Corporation.
(iii)Except as otherwise required in this Certificate or by applicable
law, the holders of Class A Common Stock and Class B Common Stock shall vote together as a
single class on all matters on which stockholders of the Corporation are generally entitled to vote
(and, if any holders of Preferred Stock are entitled to vote together with the holders of Common
Stock, as a single class with such holders of Preferred Stock); provided, however, that, except as
otherwise required by law or this Certificate, the holders of Common Stock, as such, shall not be
entitled to vote on any amendment to this Certificate (including any certificate of designation
relating to any series of Preferred Stock) that relates solely to the terms of one or more
outstanding series of Preferred Stock if the holders of such affected series are entitled, either
separately or together with the holders of one or more other such series, to vote thereon pursuant
to this Certificate (including any certificate of designation relating to any series of Preferred
Stock) or pursuant to the DGCL. Subject to the rights of the holders of any series of Preferred
Stock, the number of authorized shares of Class A Common Stock or Class B Common Stock
may be increased or decreased (but not below the number of shares thereof then outstanding)
without the separate vote of the holders of the Class A Common Stock or Class B Common
Stock, as applicable, irrespective of the provisions of Section 242(b)(2) of the DGCL. For the
avoidance of doubt, the Corporation does not intend by the foregoing sentence to opt out of the
provisions of Section 242(d) of the DGCL, and intends that Section 242(d) be applicable to the
Corporation.
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(iv)The holders of shares of Common Stock shall not have cumulative
voting rights.
(b)Dividends. Subject to applicable law and the rights, if any, of the holders
of any outstanding series of Preferred Stock or any class or series of stock having a preference
over or the right to participate with the Class A Common Stock with respect to the payment of
dividends in cash, stock, or property of the Corporation, such dividends may be declared and
paid on the Class A Common Stock out of the assets of the Corporation that are by law available
therefor at such times and in such amounts as the Board in its discretion shall determine.
Dividends shall not be declared or paid on the Class B Common Stock.
(c)Liquidation, Dissolution, etc. In the event of any voluntary or involuntary
liquidation, dissolution, or winding up of the affairs of the Corporation, after payment or
provision for payment of the debts and other liabilities of the Corporation as required by law and
of the preferential and other amounts, if any, to which the holders of Preferred Stock or any class
or series of stock having a preference over or the right to participate with the Class A Common
Stock shall be entitled, the holders of all outstanding shares of Class A Common Stock shall be
entitled to participate in the distribution of the remaining assets of the Corporation available for
distribution to holders of Class A Common Stock ratably in proportion to the number of shares
held by each such stockholder. The holders of shares of Class B Common Stock, as such, shall
not be entitled to receive any assets of the Corporation in the event of any voluntary or
involuntary liquidation, dissolution, or winding up of the affairs of the Corporation.
(d)Reclassification. Neither the Class A Common Stock nor the Class B
Common Stock may be subdivided, split, combined, consolidated, reclassified, or otherwise
changed unless contemporaneously therewith the other class of Common Stock and the common
units of Accelevation Holdings LLC, a Delaware limited liability company (such units, the “LLC
Units”), are subdivided, split, combined, consolidated, reclassified, or otherwise changed in the
same proportion and in the same manner.
(e)Exchange. The holders of LLC Units other than the Corporation shall, to
the extent provided in the Exchange Agreement and the LLC Agreement (each, defined below)
and in accordance with the terms and conditions of the Exchange Agreement and the LLC
Agreement, as applicable, have the right to exchange the Class B Common Stock and the LLC
Units held by them for the number of fully paid and nonassessable shares of Class A Common
Stock determined in accordance with the terms of the Exchange Agreement. Upon the exchange
of an LLC Unit for one share of Class A Common Stock in accordance with the terms and
conditions of the Exchange Agreement and the LLC Agreement, as applicable, one share of
Class B Common Stock held by the exchanging holder shall automatically and without further
action on the part of the Corporation be transferred to the Corporation for no consideration, and
shall be automatically retired and cancelled and shall no longer be issued or outstanding and may
not be reissued and shall return to the status of authorized but unissued shares of Class B
Common Stock. The Corporation shall at all times when any shares of Class B Common Stock
and LLC Units shall be outstanding, reserve and keep available out of its authorized but unissued
Class A Common Stock such number of shares of the Class A Common Stock as shall from time
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to time be sufficient to effect the exchange of all outstanding shares of Class B Common Stock
and LLC Units into shares of Class A Common Stock in accordance with the terms of the
Exchange Agreement and the LLC Agreement. If at any time the number of authorized but
unissued shares of Class A Common Stock shall not be sufficient to effect the exchange of all
outstanding LLC Units, the Corporation will take such corporate actions within its power as may,
in the opinion of its counsel, be necessary to cause this Certificate to be amended so as to
increase the number of authorized shares of Class A Common Stock to such number as shall be
sufficient for such purpose. “Exchange Agreement” means that certain Exchange Agreement,
dated on or about the date hereof, among the Corporation, Accelevation Holdings LLC, and
holders of LLC Units party thereto, as it may be amended and/or restated from time to time, a
copy of which is available from the Corporation upon request and without cost. “LLC
Agreement” means that certain Amended and Restated Limited Liability Company Agreement of
Accelevation Holdings LLC, dated on or about the date hereof, as it may be amended and/or
restated from time to time, a copy of which is available from the Corporation upon request and
without cost.
(f)Automatic Transfer. No share of Class B Common Stock may be sold,
exchanged, or otherwise transferred, other than in connection with (i) the original issuance of the
Class B Common Stock to the holders of LLC Units of Accelevation Holdings LLC pursuant to
the Exchange Agreement, (ii) the exchange of an LLC Unit as set forth in Section 3(e) of
ARTICLE FOUR hereof and in the Exchange Agreement and the LLC Agreement, and (iii) the
transfer of an LLC Unit by a holder of LLC Units to “Permitted Transferees” of such holder as
defined in the LLC Agreement. In the event that any outstanding shares of Class B Common
Stock are sold, exchanged, or otherwise transferred other than as provided in the foregoing
clauses (i), (ii), and (iii) or such outstanding shares of Class B Common Stock shall otherwise
cease to be held by a holder of a corresponding number, based on the exchange rate then in
effect, of LLC Units (including a transferee of an LLC Unit) for any reason, such shares of Class
B Common Stock shall upon such sale, exchange, or other transfer, or upon ceasing to be held by
such holder, automatically and without further action on the part of the Corporation or any holder
of Class B Common Stock be transferred to the Corporation for no consideration and thereupon
shall be automatically retired and cancelled and shall no longer be issued or outstanding and may
not be reissued and shall return to the status of authorized but unissued shares of Class B
Common Stock. Certificates representing outstanding shares of Class B Common Stock shall
contain a legend referencing the restrictions of transfers set forth herein.
ARTICLE FIVE
Section 1.Board of Directors. Except as otherwise provided in this Certificate or the DGCL,
the business and affairs of the Corporation shall be managed by or under the direction of the
Board.
Section 2.Number of Directors. Subject to any rights of the holders of any series of
Preferred Stock then outstanding to elect additional directors under specified circumstances or
otherwise, the number of directors which shall constitute the Board shall be nine and, thereafter,
shall be fixed from time to time exclusively by resolution of the Board; provided that, before the
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Board Trigger Date (as defined herein), the size of the Board may also be fixed by the holders of
a majority of the voting power present or represented by proxy at a duly convened meeting of
stockholders or by a consent of stockholders in lieu of a meeting in accordance with Section 228
of the DGCL; provided, further, that the number of directors shall not be increased or decreased
without the prior written consent of the Principal Stockholder (as defined herein) for so long as
the Director Nomination Agreement dated on or about the IPO Date, as amended, restated,
modified, and/or supplemented from time to time (the “Director Nomination Agreement”), a
copy of which is available from the Corporation upon request and without cost, remains in effect.
Section 3.Classes of Directors. The directors of the Corporation, other than those who may
be elected by the holders of any series of Preferred Stock, shall be divided into three classes,
hereby designated Class I, Class II and Class III.
Section 4.Election and Term of Office. Subject to the rights of the holders of any series of
Preferred Stock then outstanding and subject to Section 7 of this ARTICLE FIVE, the directors
shall be elected by a plurality of the votes cast. The term of office of the initial Class I directors
shall expire at the first annual meeting of stockholders following the date the Class A Common
Stock is first publicly traded (the “IPO Date”), the term of office of the initial Class II directors
shall expire at the second annual meeting of stockholders after the IPO Date, and the term of
office of the initial Class III directors shall expire at the third annual meeting of the stockholders
after the IPO Date. The Board may assign directors already in office to Class I, Class II, and
Class III. At each annual meeting of stockholders after the IPO Date, directors elected to replace
those of a class whose terms expire at such annual meeting shall be elected to hold office until
the third succeeding annual meeting after their election and until their respective successors shall
have been duly elected and qualified. Each such director shall hold office until the annual
meeting of stockholders for the year in which such director’s term expires and a successor is duly
elected and qualified or until his or her earlier death, resignation, or removal. Nothing in this
Certificate shall preclude a director from serving consecutive terms. Elections of directors need
not be by written ballot unless the Bylaws of the Corporation (as amended and/or restated, the
“Bylaws”) shall so provide.
Section 5.Newly Created Directorships and Vacancies. Subject to the rights of the holders
of any series of Preferred Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board resulting from
death, resignation, disqualification, removal from office, or any other cause may be filled by the
affirmative vote of the majority of the remaining directors then in office, even if less than a
quorum, or by a sole remaining director, and may not be filled in any other manner; provided
that, before the Board Trigger Date, vacant and newly created directorships may also be filled by
a plurality vote of the stockholders entitled to vote thereon at a duly convened meeting of
stockholders or by a consent of a majority in voting power of the stock entitled to vote thereon in
accordance with Section 228 of the DGCL; and further provided that any vacancy or newly
created directorship relating to a director entitled to be nominated by the Principal Stockholder
pursuant to the Director Nomination Agreement may only be filled with the person nominated by
the Principal Stockholder. A director elected or appointed to fill a vacancy shall serve for the
unexpired term of his or her predecessor in office and until his or her successor is elected and
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qualified or until his or her earlier death, resignation, or removal. A director elected or appointed
to fill a position resulting from an increase in the number of directors shall hold office until the
next election of the class for which such director shall have been elected or appointed and until
his or her successor is elected and qualified, or until his or her earlier death, resignation, or
removal. No decrease in the authorized number of directors shall shorten the term of any
incumbent director.
Section 6.Removal and Resignation of Directors. Notwithstanding any other provision of
this Certificate, (i) prior to the Board Trigger Date, directors may be removed with or without
cause upon the affirmative vote of stockholders representing at least a majority of the Voting
Stock (as defined herein) of the Corporation, voting together as a single class and (ii) on and
after the Board Trigger Date, directors may only be removed for cause and only upon the
affirmative vote of stockholders representing at least 66 2/3% of the voting power of the then
outstanding shares of Voting Stock of the Corporation, voting together as a single class. Any
director may resign at any time upon notice in writing or by electronic transmission to the
Corporation. “Board Trigger Date” means the first date on which the Principal Stockholder and
the Principal Stockholder Affiliates (as defined herein) cease to beneficially own in the aggregate
(directly or indirectly) at least 40% of the outstanding shares of Class A Common Stock
(determined assuming that each LLC Unit owned by holders other than the Corporation were
exchanged for Class A Common Stock in accordance with the terms and conditions of the
Exchange Agreement and the LLC Agreement, as applicable). “Principal Stockholder” means
Olympus Partners, LP. “Principal Stockholder Affiliates” means (a) in respect of the Principal
Stockholder, any entity that controls, is controlled by or is under common control with such
Principal Stockholder (other than the Corporation and any entity that is controlled by the
Corporation) and any investment funds managed by such Principal Stockholder or any of its
affiliates and (b) in respect of the Corporation, any entity controlled by the Corporation.
“Control” is defined in Section 4 of ARTICLE NINE.
Section 7.Rights of Holders of Preferred Stock. Notwithstanding the provisions of this
ARTICLE FIVE, whenever the holders of one or more series of Preferred Stock shall have the
right, voting separately or together by series, to elect directors at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies, and other features of such
directorship shall be subject to the rights of such series of Preferred Stock. During any period
when the holders of any series of Preferred Stock, voting separately as a series or together with
one or more series, have the right to elect additional directors, then upon commencement and for
the duration of the period during which such right continues (i) the then otherwise total
authorized number of directors of the Corporation shall automatically be increased by such
specified number of directors, and the holders of such Preferred Stock shall be entitled to elect
the additional directors so provided for or fixed pursuant to said provisions, and (ii) each such
additional director shall serve until such director’s successor shall have been duly elected and
qualified, or until such director’s right to hold such office terminates pursuant to said provisions,
whichever occurs earlier, subject to his or her earlier death, resignation, disqualification, or
removal. Except as otherwise provided by the Board in the resolution or resolutions establishing
such series, whenever the holders of any series of Preferred Stock having such right to elect
additional directors are divested of such right pursuant to the provisions of such stock, the terms
9
of office of all such additional directors elected by the holders of such stock, or elected to fill any
vacancies resulting from the death, resignation, disqualification, or removal of such additional
directors, shall forthwith terminate (in which case each such director thereupon shall cease to be
qualified as, and shall cease to be, a director), and the total authorized number of directors of the
Corporation shall automatically be reduced accordingly.
Section 8.Advance Notice. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of the stockholders of
the Corporation shall be given in the manner provided in the Bylaws.
Section 9.Chair of the Board. So long as the Principal Stockholder beneficially owns in the
aggregate (directly or indirectly) at least 30% or more of the Voting Stock of the Corporation, the
Chair of the Board shall be designated solely by the Principal Stockholder.
ARTICLE SIX
Section 1.Limitation of Liability.
(a)To the fullest extent permitted by the DGCL as it now exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent such
amendment permits the Corporation to provide broader exculpation than permitted prior thereto),
no director or officer of the Corporation shall be liable to the Corporation or its stockholders for
monetary damages arising from a breach of fiduciary duty as a director or officer.
(b)Any amendment, repeal, or modification of the foregoing paragraph shall
not adversely affect any right or protection of a director or officer of the Corporation existing at
the time of such amendment, repeal, or modification, with respect to any act, omission, or other
matter occurring prior to such amendment, repeal, or modification. Solely for purposes of
Sections 1(a) and 1(b) of this ARTICLE SIX, “officer” has the meaning provided in Section
102(b)(7) of the DGCL.
ARTICLE SEVEN
Section 1.Action by Written Consent. Prior to the first date on which the Principal
Stockholder and the Principal Stockholder Affiliates (as defined herein) cease to beneficially
own in the aggregate (directly or indirectly) at least 35% of the outstanding shares of Class A
Common Stock (determined assuming that each LLC Unit owned by holders other than the
Corporation were exchanged for Class A Common Stock in accordance with the terms and
conditions of the Exchange Agreement and the LLC Agreement, as applicable) (the “Consent
Trigger Date”), any action which is required or permitted to be taken by the Corporation’s
stockholders may be taken without a meeting, without prior notice, and without a vote if a
consent or consents in writing, setting forth the action so taken, is signed by the holders of
outstanding stock having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares of the Corporation’s stock entitled
to vote thereon were present and voted. On and after the Consent Trigger Date, any action
required or permitted to be taken by the Corporation’s stockholders may be taken only at a duly
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called annual or special meeting of the Corporation’s stockholders and the power of stockholders
to act by consent in writing without a meeting is specifically denied; provided, however, that any
action required or permitted to be taken by the holders of Preferred Stock, voting separately as a
series or separately as a class with one or more other such series, may be taken without a
meeting, without prior notice, and without a vote, to the extent expressly so provided in the
resolutions creating such series of Preferred Stock.
Section 2.Special Meetings of Stockholders. Subject to the rights of the holders of any
series of Preferred Stock then outstanding and to the requirements of applicable law, special
meetings of stockholders of the Corporation may be called only (i) by or at the direction of the
Board or the Chair of the Board pursuant to a written resolution adopted by the affirmative vote
of the majority of the total number of directors that the Corporation would have if there were no
vacancies, or (ii) prior to the first date on which the Principal Stockholder and the Principal
Stockholder Affiliates cease to beneficially own in the aggregate (directly or indirectly) at least
35% of the voting power of the then outstanding Voting Stock (“Special Meeting Trigger Date”),
by the Chair of the Board at the request of the Principal Stockholder in the manner provided for
in the Bylaws. Any business transacted at any special meeting of stockholders shall be limited to
the purpose or purposes stated in the notice of the meeting.
ARTICLE EIGHT
Section 1.Certain Acknowledgments. It is hereby acknowledged that:
(a)(i) certain of the directors, partners, principals, officers, members,
managers, employees, operating partners, and/or contractors of the Principal Stockholder or the
Principal Stockholder Affiliates may serve as directors or officers of the Corporation, (ii) the
Principal Stockholder and the Principal Stockholder Affiliates engage and may continue to
engage in the same or similar activities or related lines of business as those in which the
Corporation, directly or indirectly, may engage and/or other business activities that overlap with
or compete with those in which the Corporation, directly or indirectly, may engage, and (iii) the
Corporation and the Principal Stockholder Affiliates may engage in material business
transactions with the Principal Stockholder and the Principal Stockholder Affiliates, and the
Corporation is expected to benefit therefrom;
(b)the provisions of this ARTICLE EIGHT are set forth to regulate to the
fullest extent permitted by law certain affairs of the Corporation as they may involve the
Principal Stockholder and/or the Principal Stockholder Affiliates and/or their respective
directors, partners, principals, officers, members, managers, employees, operating partners, and/
or contractors, including any of the foregoing who serve as officers or directors of the
Corporation (the Principal Stockholder and/or the Principal Stockholder Affiliates and all such
other persons each an “Exempt Person” and collectively, the “Exempt Persons”); and
(c)this ARTICLE EIGHT constitutes the renunciation of corporate
opportunities pursuant to Section 122(17) of the DGCL, which authorizes a corporation to
renounce specified classes and categories of business opportunities.
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Section 2.Renunciation of Corporate Opportunities. To the fullest extent permitted by the
DGCL, but subject to Section 3 of this ARTICLE EIGHT, the Corporation hereby renounces any
interest or expectancy in, or being offered an opportunity to participate in, any and all business
opportunities: (a) originated or acquired by an Exempt Person; (b) in which the Exempt Person
has an interest; or (c) that is received from any person or entity by an Exempt Person. The
business opportunities renounced under this paragraph include any actual or potential investment
or business opportunity or prospective economic advantage in which the Corporation could, but
for this paragraph, have an interest or expectancy (including, without limitation, acquisitions,
dispositions, business combinations, financings, or investment opportunities), whether or not
such opportunities are in the same or similar lines of business in which the Corporation is
engaged or intends to engage.
Section 3.Excluded Opportunities. Notwithstanding the foregoing provisions of this
ARTICLE EIGHT, but subject to Section 4 of this ARTICLE EIGHT, the Corporation does not
renounce any interest or expectancy it may have in any business opportunity that is (a) expressly
offered to a person solely in his or her capacity as a director or officer of the Corporation, and
not in any other capacity; (b) offered to, or acquired by, a person while he or she is a full-time
employee of the Corporation; or (c) that has been developed using the confidential information
of the Corporation or any of its subsidiaries.
Section 4.Certain Matters Deemed Not Corporate Opportunities. In addition to and
notwithstanding the foregoing provisions of this ARTICLE EIGHT, a corporate opportunity shall
not be deemed to belong to the Corporation if it is a business opportunity the Corporation is not
financially able or contractually permitted or legally able to undertake, or that is, from its nature,
not in the line of the Corporation’s business or is of no practical advantage to it or that is one in
which the Corporation has no interest or reasonable expectancy.
Section 5.Amendment of this Article. Notwithstanding anything to the contrary elsewhere
contained in this Certificate, subject to the rights of the holders of any series of Preferred Stock
then outstanding, and in addition to any vote required by applicable law, the affirmative vote of
the Principal Stockholder, so long as the Principal Stockholder and/or the Principal Stockholder
Affiliates continue to beneficially own any outstanding shares of Voting Stock of the
Corporation, shall be required to alter, amend, or repeal, or to adopt any provision inconsistent
with, this ARTICLE EIGHT; provided, however, that, to the fullest extent permitted by law,
neither the alteration, amendment, or repeal of this ARTICLE EIGHT nor the adoption of any
provision of this Certificate inconsistent with this ARTICLE EIGHT shall apply to or have any
effect on the liability or alleged liability of any Exempt Person for or with respect to any
activities or opportunities which such Exempt Person becomes aware of prior to such alteration,
amendment, repeal, or adoption.
Section 6.Deemed Notice. Any person or entity purchasing or otherwise acquiring or
holding any interest in any shares of the Corporation shall be deemed to have notice of and to
have consented to the provisions of this ARTICLE EIGHT.
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ARTICLE NINE
Section 1.Section 203 of the DGCL. The Corporation expressly elects not to be subject to
the provisions of Section 203 of the DGCL.
Section 2.Business Combinations with Interested Stockholders. Notwithstanding any other
provision in this Certificate to the contrary, the Corporation shall not engage in any Business
Combination (as defined herein), at any point in time at which the Common Stock is registered
under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), with any Interested Stockholder (as defined herein) for a period of three years
following the time that such stockholder became an Interested Stockholder, unless:
(a)prior to such time the Board approved either the Business Combination or
the transaction which resulted in such stockholder becoming an Interested Stockholder;
(b)upon consummation of the transaction which resulted in such stockholder
becoming an Interested Stockholder, such stockholder owned at least 85% of the Voting Stock of
the Corporation outstanding at the time the transaction commenced, excluding for purposes of
determining the Voting Stock outstanding (but not the outstanding Voting Stock owned by such
Interested Stockholder) those shares owned (i) by Persons (as defined herein) who are directors
and also officers of the Corporation, and (ii) employee stock plans of the Corporation in which
employee participants do not have the right to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange offer; or
(c)at or subsequent to such time, the Business Combination is approved by
the Board and authorized at an annual or special meeting of stockholders, and not by written
consent, by the affirmative vote of at least 66 2/3% of the outstanding Voting Stock which is not
owned by such Interested Stockholder.
Section 3.Exceptions to Prohibition on Interested Stockholder Transactions. The restrictions
contained in this ARTICLE NINE shall not apply if:
(a)a stockholder becomes an Interested Stockholder inadvertently and (i) as
soon as practicable divests itself of ownership of sufficient shares so that the stockholder ceases
to be an Interested Stockholder, and (ii) would not, at any time within the three-year period
immediately prior to a Business Combination between the Corporation and such stockholder,
have been an Interested Stockholder but for the inadvertent acquisition of ownership; or
(b)the Business Combination is proposed prior to the consummation or
abandonment of and subsequent to the earlier of the public announcement or the notice required
hereunder of a proposed transaction which (i) constitutes one of the transactions described in the
second sentence of this Section 3(b) of ARTICLE NINE, (ii) is with or by a Person who either
was not an Interested Stockholder during the previous three years or who became an Interested
Stockholder with the approval of the Board, and (iii) is approved or not opposed by a majority of
the directors then in office (but not less than one) who were directors prior to any Person
becoming an Interested Stockholder during the previous three years or were recommended for
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election or elected to succeed such directors by a majority of such directors. The proposed
transactions referred to in the preceding sentence are limited to: (x) a merger or consolidation of
the Corporation (except for a merger in respect of which, pursuant to Section 251(f) of the
DGCL, no vote of the stockholders of the Corporation is required); (y) a sale, lease, exchange,
mortgage, pledge, transfer, or other disposition (in one transaction or a series of transactions),
whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or
indirect majority-owned subsidiary of the Corporation (other than to any direct or indirect wholly
owned subsidiary or to the Corporation) having an aggregate market value equal to 50% or more
of either that aggregate market value of all of the assets of the Corporation determined on a
consolidated basis or the aggregate market value of all the outstanding Stock (as defined herein)
of the Corporation; or (z) a proposed tender or exchange offer for 50% or more of the
outstanding Voting Stock of the Corporation. The Corporation shall give not less than 20 days’
notice to all Interested Stockholders prior to the consummation of any of the transactions
described in clause (x) or (y) of the second sentence of this Section 3(b) of ARTICLE NINE.
Section 4.Definitions. As used in this ARTICLE NINE only, and unless otherwise provided
by the express terms of this ARTICLE NINE, the following terms shall have the meanings
ascribed to them as set forth in this Section 4 of ARTICLE NINE and, to the extent such terms
are defined elsewhere in this Certificate, such definitions shall not apply to this ARTICLE NINE:
(a)“Affiliate” means a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with, another Person;
(b)“Associate,” when used to indicate a relationship with any Person, means
(i) any corporation, partnership, unincorporated association, or other entity of which such Person
is a director, officer, or general partner or is, directly or indirectly, the owner of 20% or more of
any class of Voting Stock, (ii) any trust or other estate in which such Person has at least a 20%
beneficial interest or as to which such Person serves as trustee or in a similar fiduciary capacity,
and (iii) any relative or spouse of such Person, or any relative of such spouse, who has the same
residence as such Person;
(c)“Business Combination” means:
(i)any merger or consolidation of the Corporation (other than a
merger effected pursuant to Sections 253 or 267 of the DGCL) or any direct or indirect majority-
owned subsidiary of the Corporation with (A) the Interested Stockholder, or (B) any other
corporation, partnership, unincorporated association, or entity if the merger or consolidation is
caused by the Interested Stockholder and as a result of such merger or consolidation Section 2 of
this ARTICLE NINE is not applicable to the surviving entity;
(ii)any sale, lease, exchange, mortgage, pledge, transfer, or other
disposition (in one transaction or a series of transactions), except proportionately as a
stockholder of the Corporation, to or with the Interested Stockholder, whether as part of a
dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned
subsidiary of the Corporation which assets have an aggregate market value equal to 10% or more
14
of either the aggregate market value of all the assets of the Corporation determined on a
consolidated basis or the aggregate market value of all the outstanding Stock of the Corporation;
(iii)any transaction which results in the issuance or transfer by the
Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any
Stock of the Corporation or of such subsidiary to the Interested Stockholder, except (A) pursuant
to the exercise, exchange, or conversion of securities exercisable for, exchangeable for, or
convertible into Stock of the Corporation or any such subsidiary which securities were
outstanding prior to the time that the Interested Stockholder became such; (B) pursuant to an
exchange of LLC Units into Class A Common Stock, to the extent provided in the Exchange
Agreement and the LLC Agreement, (C) pursuant to a merger under Sections 251(g), 253 or 267
of the DGCL, (D) pursuant to a dividend or distribution paid or made, or the exercise, exchange,
or conversion of securities exercisable for, exchangeable for, or convertible into Stock of the
Corporation or any such subsidiary which security is distributed, pro rata to all holders of a class
or series of Stock of the Corporation subsequent to the time the Interested Stockholder became
such, (E) pursuant to an exchange offer by the Corporation to purchase Stock made on the same
terms to all holders of such Stock, or (F) any issuance or transfer of Stock by the Corporation;
provided, however, that in no case under items (D)-(F) of this Section 4(c)(iii) of ARTICLE
NINE shall there be an increase in the Interested Stockholder’s proportionate share of the Stock
of any class or series of the Corporation or of the Voting Stock of the Corporation;
(iv)any transaction involving the Corporation or any direct or indirect
majority-owned subsidiary of the Corporation which has the effect, directly or indirectly, of
increasing the proportionate share of the Stock of any class or series, or securities convertible
into the Stock of any class or series, of the Corporation or of any such subsidiary which is owned
by the Interested Stockholder, except as a result of immaterial changes due to fractional share
adjustments or as a result of any purchase or redemption of any shares of Stock not caused,
directly or indirectly, by the Interested Stockholder; or
(v)any receipt by the Interested Stockholder of the benefit, directly or
indirectly (except proportionately as a stockholder of the Corporation), of any loans, advances,
guarantees, pledges, or other financial benefits (other than those expressly permitted in Sections
4(c)(i)-(iv) of ARTICLE NINE) provided by or through the Corporation or any direct or indirect
majority-owned subsidiary of the Corporation;
(d)“control,” including the terms “controlling,” “controlled by” and “under
common control with,” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through the ownership
of Voting Stock, by contract or otherwise. A Person who is the owner of 20% or more of the
outstanding Voting Stock of any corporation, partnership, unincorporated association, or other
entity shall be presumed to have control of such entity, in the absence of proof by a
preponderance of the evidence to the contrary; notwithstanding the foregoing, a presumption of
control shall not apply where such Person holds Voting Stock, in good faith and not for the
purpose of circumventing this ARTICLE NINE, as an agent, bank, broker, nominee, custodian,
or trustee for one or more owners who do not individually or as a group (as such term is used in
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Rule 13d-5 under the Exchange Act (“Rule 13d-5”), as such Rule 13d-5 is in effect as of the date
of this Certificate) have control of such entity;
(e)“Interested Stockholder” means any Person (other than the Corporation
and any direct or indirect majority-owned subsidiary of the Corporation) that (i) is the owner of
15% or more of the outstanding Voting Stock of the Corporation, or (ii) is an Affiliate or
Associate of the Corporation and was the owner of 15% or more of the outstanding Voting Stock
of the Corporation at any time within the three-year period immediately prior to the date on
which it is sought to be determined whether such Person is an Interested Stockholder, and the
Affiliates and Associates of such Person. Notwithstanding anything in this ARTICLE NINE to
the contrary, the term “Interested Stockholder” shall not include: (x) the Principal Stockholder or
any of the Principal Stockholder Affiliates, or any other Person with whom any of the foregoing
are acting as a group or in concert for the purpose of acquiring, holding, voting, or disposing of
shares of Stock of the Corporation; (y) any Person who would otherwise be an Interested
Stockholder either in connection with or because of a transfer, sale, assignment, conveyance,
hypothecation, encumbrance, or other disposition of 5% or more of the outstanding Voting Stock
of the Corporation (in one transaction or a series of transactions) by the Principal Stockholder or
any of its Affiliates or Associates to such Person; provided, however, that such Person was not
an Interested Stockholder prior to such transfer, sale, assignment, conveyance, hypothecation,
encumbrance, or other disposition; or (z) any Person whose ownership of shares in excess of the
15% limitation set forth herein is the result of action taken solely by the Corporation; provided
that, for purposes of this clause (z) only, such Person shall be an Interested Stockholder if
thereafter such Person acquires additional shares of Voting Stock of the Corporation, except as a
result of further action by the Corporation not caused, directly or indirectly, by such Person;
provided, that, for the purpose of determining whether a Person is an Interested Stockholder, the
Voting Stock of the Corporation deemed to be outstanding shall include Stock deemed to be
owned by the Person through application of this definition of “owned” but shall not include any
other unissued Stock of the Corporation which may be issuable pursuant to any agreement,
arrangement, or understanding, or upon exercise of conversion rights, warrants, or options, or
otherwise;
(f)“Owner,” including the terms “own” and “owned,” when used with
respect to any Stock, means a Person that individually or with or through any of its Affiliates or
Associates beneficially owns such Stock, directly or indirectly; or has (A) the right to acquire
such Stock (whether such right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement, or understanding, or upon the exercise of conversion
rights, exchange rights, warrants, or options, or otherwise; provided, however, that a Person shall
not be deemed the owner of Stock tendered pursuant to a tender or exchange offer made by such
Person or any of such Person’s Affiliates or Associates until such tendered Stock is accepted for
purchase or exchange, (B) the right to vote such Stock pursuant to any agreement, arrangement,
or understanding; provided, however, that a Person shall not be deemed the owner of any Stock
because of such Person’s right to vote such Stock if the agreement, arrangement, or
understanding to vote such Stock arises solely from a revocable proxy or consent given in
response to a proxy or consent solicitation made to 10 or more Persons, or (C) has any
agreement, arrangement, or understanding for the purpose of acquiring, holding, voting (except
16
voting pursuant to a revocable proxy or consent as described in clause (B) of this Section 4(f) of
ARTICLE NINE), or disposing of such Stock with any other Person that beneficially owns, or
whose Affiliates or Associates beneficially own, directly or indirectly, such Stock;
(g)“Person” means any individual, corporation, partnership, unincorporated
association, or other entity;
(h)“Stock” means, with respect to any corporation, any capital stock of such
corporation and, with respect to any other entity, any equity interest of such entity; and
(i)“Voting Stock” means, with respect to any corporation, Stock of any class
or series entitled to vote generally in the election of directors, and, with respect to any entity that
is not a corporation, any equity interest entitled to vote generally in the election of the governing
body of such entity. Every reference to a percentage of Voting Stock shall refer to such
percentage of the votes of such Voting Stock.
ARTICLE TEN
Section 1.Amendments to the Bylaws. Subject to the rights of holders of any series of
Preferred Stock then outstanding, in furtherance and not in limitation of the powers conferred by
law, prior to the Board Trigger Date, the Bylaws may be amended, altered, rescinded, or
repealed, in whole or in part, and new bylaws may be adopted by (i) the Board, or (ii) in addition
to any vote of the holders of any class or series of capital stock of the Corporation required
herein (including pursuant to any certificate of designation relating to any series of Preferred
Stock) and any other vote otherwise required by applicable law or the Bylaws, the affirmative
vote of the holders of at least a majority of the voting power of all of the then outstanding shares
of Voting Stock of the Corporation, voting together as a single class. On and after the Board
Trigger Date, the Bylaws may be amended, altered, rescinded, or repealed, in whole or in part,
and new bylaws may be adopted by (i) the Board, or (ii) in addition to any vote of the holders of
any class or series of capital stock of the Corporation required herein (including pursuant to any
certificate of designation relating to any series of Preferred Stock), and any other vote otherwise
required by applicable law or the Bylaws, the affirmative vote of the holders of at least 66 2/3%
of the voting power of the then outstanding Voting Stock of the Corporation, voting together as a
single class.
Section 2.Amendments to this Certificate. Subject to the rights of holders of any series of
Preferred Stock then outstanding, and in addition to any other vote required by law or this
Certificate, no provision of ARTICLE FIVE, ARTICLE SIX, ARTICLE SEVEN, ARTICLE
NINE, ARTICLE TEN, or ARTICLE ELEVEN of this Certificate may be altered, amended, or
repealed in any respect, nor may any provision of this Certificate or the Bylaws inconsistent
therewith be adopted, unless (i) prior to the Board Trigger Date, such alteration, amendment,
repeal, or adoption is approved by the affirmative vote of the holders of a majority of the voting
power of all outstanding shares of Voting Stock of the Corporation, voting together as a single
class, and (ii) on and after the Board Trigger Date, such alteration, amendment, repeal, or
adoption is approved by the affirmative vote of holders of at least 66 2/3% of the voting power of
all outstanding shares of Voting Stock of the Corporation, voting together as a single class.
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ARTICLE ELEVEN
Section 1.Exclusive Forum. Unless this Corporation consents in writing to the selection of
an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of
Chancery does not have jurisdiction, the state or federal court located in the State of Delaware
with jurisdiction) shall, to the fullest extent permitted by law, be the sole and exclusive forum for
(i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action
asserting a claim of breach of a fiduciary duty owed by any current or former director, officer,
employee, or stockholder of the Corporation to the Corporation or the Corporation’s
stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or
as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware,
the Certificate or the Bylaws, or (iv) any action asserting a claim governed by the internal affairs
doctrine; provided that, for the avoidance of doubt, this provision, including for any “derivative
action,” will not apply to suits to enforce a duty or liability created by the Securities Act of 1933,
as amended (the “Securities Act”), the Exchange Act, or any other claim for which the federal
courts have exclusive jurisdiction. Unless this Corporation consents in writing to the selection of
an alternative forum, the federal district courts of the United States shall be the exclusive forum
for the resolution of any complaint asserting a cause of action arising under the Securities Act.
Section 2.Notice. Any Person purchasing or otherwise acquiring or holding any interest in
shares of capital stock of the Corporation (including, without limitation, shares of Common
Stock) shall be deemed to have notice of and to have consented to the provisions of this
ARTICLE ELEVEN.
ARTICLE TWELVE
If any provision or provisions of this Certificate shall be held to be invalid, illegal, or
unenforceable as applied to any circumstance for any reason whatsoever, the validity, legality,
and enforceability of such provisions in any other circumstance and of the remaining provisions
of this Certificate (including, without limitation, each portion of any paragraph of this Certificate
containing any such provision held to be invalid, illegal, or unenforceable that is not itself held to
be invalid, illegal, or unenforceable) shall not, to the fullest extent permitted by applicable law,
in any way be affected or impaired thereby.
Exhibit 3.4
FORM OF AMENDED AND RESTATED BYLAWS
OF
ACCELEVATION HOLDINGS CORP.
A Delaware corporation
(Adopted as of , 2026)
ARTICLE I
OFFICES
Section 1.Offices. Accelevation Holdings Corp. (the “Corporation”) may have an
office or offices other than its registered office at such place or places, either within or outside
the State of Delaware, as the Board of Directors of the Corporation (the “Board”) may from time
to time determine or the business of the Corporation may require. The registered office of the
Corporation in the State of Delaware shall be as stated in the Corporation’s certificate of
incorporation as then in effect (as amended, restated, modified, and/or supplemented from time
to time, including by any certificate of designation relating to any series of preferred stock, the
“Certificate of Incorporation”).
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1.Place of Meetings. The Board may designate a place, if any, either within
or outside the State of Delaware, as the place of meeting for any annual meeting or for any
special meeting of stockholders. The Board may, in its sole discretion, determine that meetings
of stockholders shall not be held at any place, but may in addition to or instead be held solely by
means of remote communication (including virtually) in accordance with Section 211(a)(2) of
the General Corporation Law of the State of Delaware (the “DGCL”).
Section 2.Annual Meeting. An annual meeting of the stockholders shall be held at
such date and time as is specified by resolution of the Board. At the annual meeting, stockholders
shall elect directors to succeed those whose terms expire at such annual meeting and transact
such other business as properly may be brought before the annual meeting pursuant to Section 11
of this ARTICLE II of these amended and restated bylaws (as amended, restated, modified, and/
or supplemented from time to time, these “Bylaws”). The Board may postpone, reschedule, or
cancel any annual meeting of stockholders previously scheduled by the Board.
Section 3.Special Meetings. Special meetings of the stockholders may only be called
in the manner provided in the Certificate of Incorporation and may be held at such place, if any,
either within or without the State of Delaware, and at such time and date as the Board or the
Chair of the Board (the “Chair”) or the Chief Executive Officer of the Corporation (the “CEO”)
shall determine and state in the notice of such meeting. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice. The Board may
postpone, reschedule, or cancel any special meeting of stockholders previously scheduled by the
2
Board; provided that prior to the Special Meeting Trigger Date (as defined in the Certificate of
Incorporation), any special meeting called at the request of the Principal Stockholder (as defined
herein) or any Principal Stockholder Affiliate (as defined herein) may not be postponed,
rescheduled, or canceled without the consent of the Principal Stockholder or such Principal
Stockholder Affiliate, as the case may be, at whose request the meeting was originally called.
Section 4.Notice of Meetings. Whenever stockholders are required or permitted to
take action at a meeting, notice of the meeting, which shall state the place, if any, date, and time
of the meeting of the stockholders, the means of remote communications, if any, by which
stockholders and proxyholders not physically present may be deemed to be present in person and
vote at such meeting, the record date for determining the stockholders entitled to vote at the
meeting, if such date is different from the record date for determining stockholders entitled to
notice of the meeting, and, in the case of a special meeting, the purpose or purposes for which the
meeting is called, shall be given, not less than 10 nor more than 60 days before the date on which
the meeting is to be held, to each stockholder entitled to vote at such meeting as of the record
date for determining the stockholders entitled to notice of the meeting, except as otherwise
provided herein or required by law (meaning, here and hereinafter, as required from time to time
by the DGCL) or the Certificate of Incorporation.
(a)Form of Notice. All such notices shall be delivered in writing or by
electronic transmission in the manner provided in Section 232 of the DGCL, or in any other
manner permitted by the DGCL. If mailed, such notice shall be deemed given when deposited in
the United States mail, postage prepaid, addressed to the stockholder at his, her, or its address as
the same appears on the records of the Corporation. If delivered by courier service, notice shall
be deemed given at the earlier of when the notice is received or left at such stockholder’s address
as the same appears on the records of the Corporation. If given by electronic mail, notice shall be
deemed given when directed to such stockholder’s electronic mail address unless the stockholder
has notified the Corporation in writing or by electronic transmission of an objection to receiving
notice by electronic mail or such notice is prohibited by the DGCL. Notice to stockholders may
also be given by other forms of electronic transmission consented to by the stockholder. If given
by facsimile telecommunication, such notice shall be deemed given when directed to a number at
which the stockholder has consented to receive notice by facsimile. If given by a posting on an
electronic network together with separate notice to the stockholder of such specific posting, such
notice shall be deemed given upon the later of: (A) such posting; and (B) the giving of such
separate notice. If notice is given by any other form of electronic transmission, such notice shall
be deemed given when directed to the stockholder. An affidavit of the secretary of the
Corporation (the “Secretary”) or an assistant secretary of the Corporation (the “Assistant
Secretary”), the transfer agent of the Corporation (the “Transfer Agent”), or any other officer,
assistant officer, or agent of the Corporation that the notice has been given shall, in the absence
of fraud, be prima facie evidence of the facts stated therein.
(b)Waiver of Notice. Whenever notice is required to be given under any
provisions of the DGCL, the Certificate of Incorporation, or these Bylaws, a written waiver
thereof, signed by the stockholder entitled to notice, or a waiver by electronic transmission given
by the stockholder entitled to notice, whether before or after the time stated therein, shall be
3
deemed equivalent to notice. Neither the business to be transacted at, nor the purpose of, any
meeting of the stockholders of the Corporation need be specified in any waiver of notice of such
meeting. Attendance of a stockholder of the Corporation at a meeting of such stockholders shall
constitute a waiver of notice of such meeting, except when the stockholder attends for the
express purpose of objecting at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened and does not further participate in the
meeting.
Section 5.List of Stockholders. The Corporation shall prepare, no later than the tenth
day before each meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting; provided, however, if the record date for determining the stockholders entitled to
vote is less than ten days before the meeting date, the list shall reflect the stockholders entitled to
vote as of the tenth day before the meeting date, arranged in alphabetical order and showing the
address of each such stockholder and the number of shares registered in the name of each such
stockholder. Nothing contained in this section shall require the Corporation to include electronic
mail addresses or other electronic contact information on such list. Such list shall be open to the
examination of any stockholder for any purpose germane to the meeting for a period of ten days
prior to the meeting date: (A) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of the meeting; or (B)
during ordinary business hours, at the principal place of business of the Corporation. In the event
the Corporation determines to make the list available on an electronic network, the Corporation
may take reasonable steps to ensure that such information is available only to stockholders of the
Corporation. Except as otherwise provided by law, the list shall be the only evidence as to who
are the stockholders entitled to examine the list of stockholders required by this Section 5 or to
vote in person or by proxy at any meeting of stockholders.
Section 6.Quorum. The holders of a majority in voting power of the outstanding
capital stock entitled to vote at the meeting, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders, except as otherwise provided by law, by
the Certificate of Incorporation or these Bylaws. If a quorum is not present, the chair of the
meeting or the holders of a majority of the voting power present in person or represented by
proxy at the meeting and entitled to vote thereon may adjourn the meeting to another time and/or
place from time to time until a quorum shall be present in person or represented by proxy. When
a specified item of business requires a vote by a class or series (if the Corporation shall then have
outstanding shares of more than one class or series) voting as a separate class or series, the
holders of a majority in voting power of the outstanding stock of such class or series shall
constitute a quorum (as to such class or series) for the transaction of such item of business. A
quorum once established at a meeting shall not be broken by the withdrawal of enough votes to
leave less than a quorum.
Section 7.Adjourned Meetings. Any meeting of stockholders, annual or special, may
adjourn from time to time to reconvene at the same or some other place. When a meeting is
adjourned to another time or place (including an adjournment taken to address a technical failure
to convene or continue a meeting using remote communication), notice need not be given of the
adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if
4
any, by which stockholders and proxy holders may be deemed to be present in person and vote at
such adjourned meeting are (i) announced at the meeting at which the adjournment is taken, (ii)
displayed, during the time scheduled for the meeting, on the same electronic network used to
enable stockholders and proxy holders to participate in the meeting by means of remote
communication or (iii) set forth in the notice of meeting given in accordance with these Bylaws.
At the adjourned meeting, the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than 30 days, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If
after the adjournment a new record date for stockholders entitled to vote is fixed for the
adjourned meeting, the Board shall fix a new record date for notice of such adjourned meeting in
accordance with these Bylaws, and shall give notice of the adjourned meeting to each
stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for
notice of such adjourned meeting.
Section 8.Vote Required. Subject to the rights of the holders of any series of
preferred stock then-outstanding, when a quorum has been established, all matters other than the
election of directors shall be determined by the affirmative vote of the majority of voting power
of capital stock present in person or represented by proxy at the meeting and entitled to vote on
the subject matter, unless by express provisions of the DGCL or other applicable law, the rules of
any stock exchange upon which the Corporation’s securities are listed, any regulation applicable
to the Corporation or its securities, the Certificate of Incorporation, or these Bylaws a minimum
or different vote is required, in which case such minimum or different vote shall be the required
vote for such matter. Except as otherwise provided in the Certificate of Incorporation, directors
shall be elected by a plurality of the votes cast.
Section 9.Voting Rights. Subject to the rights of the holders of any series of
preferred stock then-outstanding, except as otherwise provided by the DGCL or the Certificate of
Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled
to one vote in person or by proxy for each share of capital stock held by such stockholder which
has voting power upon the matter in question. Voting at meetings of stockholders need not be by
written ballot.
Section 10.Proxies. Each stockholder entitled to vote at a meeting of stockholders or
to express consent to corporate action without a meeting may authorize another person or
persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with
an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable
regardless of whether the interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
5
Section 11.Advance Notice of Stockholder Business and Director Nominations.
(a)Nominations of Directors and Other Business at Annual Meetings of
Stockholders.
(i)Only such business, including nominations of persons for election
to the Board, shall be conducted at an annual meeting of the stockholders as shall
have been brought before the meeting: (A) as specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board or any duly
authorized committee thereof; (B) by or at the direction of the Board or any duly
authorized committee thereof; or (C) by any stockholder of the Corporation who
(1) was a stockholder of record at the time of giving of notice provided for in
Section 11(a)(iii) of this ARTICLE II, on the record date for determination of
stockholders of the Corporation entitled to vote at the meeting, and at the time of
the annual meeting, (2) at the time of the meeting, is entitled to vote at the
meeting, and (3) complies with the notice procedures set forth in Section 11(a) of
this ARTICLE II. For the avoidance of doubt, the foregoing clause (C) of this
Section 11(a)(i) of ARTICLE II shall be the exclusive means for a stockholder to
make nominations or propose such business before an annual meeting of
stockholders. Notwithstanding the foregoing or any other provisions in this
Section 11 to the contrary, at any time prior to the date that Olympus Partners, LP
(the “Principal Stockholder”) and any entity that controls, is controlled by or is
under common control with such Principal Stockholder (other than the
Corporation and any entity that is controlled by the Corporation) and any
investment funds managed by such Principal Stockholder or any of its affiliates
(“Principal Stockholder Affiliates”) cease to beneficially own in the aggregate
(directly or indirectly) at least 10% of the voting power of the then outstanding
shares of capital stock of the Corporation then entitled to vote generally in the
election of directors (the “Advance Notice Trigger Date”), none of the notice,
information, or compliance requirements of this Section 11 shall apply to any
nominations or business brought before any annual or special meeting of
stockholders by the Principal Stockholder or Principal Stockholder Affiliates, and
such nominations or business shall be deemed properly brought before such
meeting.
(ii)For nominations or other business to be properly brought before an
annual meeting by a stockholder (any such stockholder of record, as required by
Section 11(a)(i) of this ARTICLE II, proposing business or nominating persons
for election to the Board at a meeting of stockholders, the “Noticing
Stockholder”), the Noticing Stockholder must have given timely notice thereof in
proper written form as described in Section 11(a)(iii) of this ARTICLE II to the
Secretary; any such proposed business other than nominations of persons for
election to the Board must be a proper matter for stockholder action; and the
Noticing Stockholder and any other stockholder, if any, on whose behalf the
business is being proposed or the nomination is being made (collectively with the
6
Noticing Stockholder, the “Holders” and each a “Holder”) must have acted in
accordance with the representations set forth in the Solicitation Statement (as
defined in Section 11(a)(iii) of this ARTICLE II) required by these Bylaws and
otherwise complied with the requirements with respect to such nominations or
business set forth in this ARTICLE II of these Bylaws. To be timely, a
stockholder’s notice for such nominations or other business must be delivered to
and received by the Secretary at the principal executive offices of the Corporation
in proper written form not less than 90 days and not more than 120 days prior to
the first anniversary of the preceding year’s annual meeting of stockholders
(which date shall, for purposes of the Corporation’s first annual meeting of
stockholders after its shares of Class A common stock, par value $0.0001 per
share (the “Class A Common Stock”), are first publicly traded, be deemed to have
occurred on , 2026); provided, however, that if and only if the annual
meeting is not scheduled to be held within a period that commences 30 days
before such anniversary date and ends 70 days after such anniversary date, or if no
annual meeting was held in the preceding year (other than for purposes of the
Corporation’s first annual meeting of stockholders after its shares of Class A
Common Stock are first publicly traded), such stockholder’s notice must be
delivered not earlier than the 120th day prior to the date of such annual meeting
and by the later of: (A) the 10th day following the day the Public Announcement
(as defined in Section 11(i) of this ARTICLE II) of the date of the annual meeting
is first made; or (B) the date which is 90 days prior to the date of the annual
meeting. In no event shall any adjournment or postponement of an annual meeting
or the announcement thereof commence a new time period (or extend any time
period) for the giving of a stockholder’s notice as described above. Notices
delivered pursuant to Section 11(a) of this ARTICLE II will be deemed received
on any given day only if received prior to the Close of Business (as defined in
Section 11(i) of this ARTICLE II) on such day (and otherwise shall be deemed
received on the next succeeding Business Day (as defined in Section 11(i) of this
ARTICLE II)). The number of nominees a stockholder may nominate for election
at the annual meeting on its own behalf (or in the case of one or more
stockholders giving the notice on behalf of a beneficial owner, the number of
nominees such stockholders may collectively nominate for election at the annual
meeting on behalf of such beneficial owner) shall not exceed the number of
directors to be elected at such annual meeting.
(iii)To be in proper written form, a Noticing Stockholder’s notice to
the Secretary must set forth:
(A)as to any business that the Noticing Stockholder (as defined
below) proposes to bring before the meeting:
(1)a brief description of the business desired to be
brought before the meeting;
7
(2)the reasons for conducting such business at the
meeting;
(3)a description of any direct or indirect material
interest of any Holder or Stockholder Associated Person of such
Holder in such business (whether by holdings of securities, or by
virtue of being a creditor or contractual counterparty of the
Corporation or of a third party, or otherwise);
(4)the text of the proposal or business (including the
specific text of any resolutions or actions proposed for
consideration and if such business includes a proposal to amend
these Bylaws, the specific language of the proposed amendment),
which business must be a proper subject for stockholder action;
and
(5)a description of all agreements, arrangements, and
understandings between each Holder and any Stockholder
Associated Person of such Holder and any other person or persons
(including their names) in connection with the proposal of such
business by the Noticing Stockholder;
(B)as to each Holder:
(1)the name, age, citizenship, and address of the
Noticing Stockholder, as they appear on the Corporation’s books,
and, if different from the Corporation’s books, the name and
address of the Noticing Stockholder;
(2)the name, age, citizenship, and address of such
Holder and each Stockholder Associated Person of such Holder;
(3)as of the date of the notice (which information, for
the avoidance of doubt, shall be updated and supplemented
pursuant to Section 11(d)):
a.the class or series and number of shares of
stock of the Corporation which are directly or indirectly
held of record or beneficially owned by such Holder and
each Stockholder Associated Person of such Holder
(provided that, for the purposes of this Section
11(a)(iii)(B)(3), any such person shall in all events be
deemed to beneficially own any shares of stock of the
Corporation as to which such person has a right to acquire
beneficial ownership at any time in the future (whether
8
such right is exercisable immediately or only after the
passage of time or the fulfillment of a condition or both)),
b.a description of all agreements,
arrangements, or understandings between such Holder and
each Stockholder Associated Person of such Holder, on the
one hand, and any other person or persons (naming such
person or persons), on the other hand, in connection with
such proposal of business and/or nomination, excluding
engagements with financial, legal, strategic or other
advisors in the ordinary course of business;
c.a description of any Derivative Instrument
(as defined in Section 11(i) of this ARTICLE II) directly or
indirectly held or beneficially held by such Holder and any
Stockholder Associated Person of such Holder;
d.whether and to the extent to which a
Hedging Transaction (as defined in Section 11(i) of this
ARTICLE II) has been entered into by or on behalf of such
Holder or any Stockholder Associated Person of such
Holder;
e.a description of any proxy, contract,
arrangement, understanding, or relationship (other than a
revocable proxy given in response to a public proxy
solicitation made pursuant to, and in accordance with, the
Securities Exchange Act of 1934, as amended (the
“Exchange Act”)), pursuant to which each Holder and any
Stockholder Associated Person of such Holder has any
right to vote or has granted a right to vote any shares of
stock or any other security of the Corporation;
f.a description of any agreement,
arrangement, or understanding with respect to any rights to
dividends or payments in lieu of dividends on the shares of
the Corporation owned beneficially by each Holder or any
Stockholder Associated Person of such Holder that are
separated or separable pursuant to such agreement,
arrangement, or understanding from the underlying shares
of stock or other security of the Corporation;
g.any direct or indirect legal, economic, or
financial interest (including Short Interest) of each Holder
and each Stockholder Associated Person, if any, of such
Holder in the outcome of any (x) vote to be taken at any
9
annual or special meeting of stockholders of the
Corporation or (y) any meeting of stockholders of any other
entity with respect to any matter that is related, directly or
indirectly, to any nomination or business proposed by any
Holder under these Bylaws; and
h.any material pending or threatened action,
suit, or proceeding (whether civil, criminal, investigative,
administrative, or otherwise) in which any Holder or any
Stockholder Associated Person of such Holder is, or is
reasonably expected to be made, a party or material
participant involving the Corporation or any of its officers,
directors, or employees, or any Affiliate of the Corporation,
or any officer, director, or employee of such Affiliate (the
information required by this subclause (3) shall be referred
to as the “Specified Information”); provided, however, that
the Specified Information shall not include any such
disclosures with respect to the ordinary course business
activities of any broker, dealer, commercial bank, trust
company, or other nominee who otherwise would be
required to disclose Specified Information hereunder solely
as a result of being the stockholder directed to prepare and
submit the notice required by this Section 11(a) on behalf
of a beneficial owner;
(4)a representation by the Noticing Stockholder that
such stockholder is a stockholder of record of the Corporation
entitled to vote at such meeting on the nominations or other
business proposed, that the Noticing Stockholder will continue to
be a stockholder of record of the Corporation entitled to vote at
such meeting on the matter proposed through the date of such
meeting and that such Noticing Stockholder intends to appear in
person or by proxy at such meeting to make such nominations or
propose such business;
(5)all information that would be required to be set
forth in a Schedule 13D filed pursuant to Rule 13d-1(a) or an
amendment pursuant to Rule 13d-2(a) if such a statement were
required to be filed under the Exchange Act and the rules and
regulations promulgated thereunder by each Holder and each
Stockholder Associated Person, if any, of such Holder;
(6)any other information relating to each Holder and
each Stockholder Associated Person, if any, of such Holder that
would be required to be disclosed in a proxy statement and form of
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proxy or other filings required to be made in connection with
solicitations of proxies for, as applicable, the proposal pursuant to
Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder;
(7)a representation by the Noticing Stockholder as to
whether any Holder and/or any Stockholder Associated Person of
such Holder intends or is part of a group which intends (x) to
deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the Corporation’s outstanding capital stock
required to elect the proposed nominee or approve or adopt the
other business being proposed and/or (y) otherwise to solicit
proxies or votes from stockholders in support of such nomination
or other business (such representation, a “Solicitation Statement”);
(8)in connection with a nomination for any persons for
election as director, a representation by the Noticing Stockholder
whether any Holder intends, or is part of a group which intends, (x)
to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the Corporation’s outstanding shares of
capital stock required to approve or adopt the proposal or elect the
nominee and/or (y) otherwise to solicit proxies or votes from
stockholders in support of such proposal or nomination; and, if
applicable, (z) to solicit proxies in support of any proposed
nominee in accordance with Rule 14a-19 promulgated under the
Exchange Act;
(9)a certification by the Noticing Stockholder that each
Holder and any Stockholder Associated Person of such Holder has
complied with all applicable federal, state and other legal
requirements in connection with its acquisition of shares of capital
stock or other securities of the Corporation and/or such person’s
acts or omissions as a stockholder of the Corporation;
(10)with respect to a nomination, the information and
statement required by Rule 14a-19(b) of the Exchange Act (or any
successor provision);
(11)to the extent known after reasonable investigation,
the names and addresses of other stockholders (including
beneficial owners) known by any Holder or Stockholder
Associated Person of such Holder to provide financial support with
respect to such proposal(s) or nomination(s) (it being understood
that delivery of a revocable proxy with respect to such proposal or
nomination shall not in itself require disclosure under this
subclause (11)) and, to the extent known, the class and number of
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all shares of the Corporation’s capital stock owned beneficially or
of record by such other stockholder(s) or other beneficial owner(s);
and
(12)a representation by the Noticing Stockholder as to
the accuracy of the information set forth in the notice.
(C)as to each person whom the Noticing Stockholder proposes
to nominate for election or re-election as a director:
(1)the name, age, citizenship and address (business and
residential) of such person;
(2)a complete biography and statement of such
person’s qualifications, including the principal occupation or
employment of such person (at present and for the past five years);
(3)the Specified Information for such person as if such
person were a Holder (except that no disclosure will be required
hereunder with respect to any Stockholder Associated Person of
any proposed nominee unless such Stockholder Associated Person
is also a Stockholder Associated Person of any Holder);
(4)a complete and accurate description of all
agreements, arrangements, and understandings between each
Holder and any Stockholder Associated Person of such Holder, on
the one hand, and such person, on the other hand, (at present and
for the past three years) including, without limitation, a complete
and accurate description of all direct and indirect compensation
and other monetary agreements, arrangements, and understandings
at present and for the past three years between such person and
such Holder(s) and any Stockholder Associated Person(s) of such
Holder(s) (including all biographical, related party transaction and
other information that would be required to be disclosed pursuant
to the federal and state securities laws, including Item 404
promulgated under Regulation S-K (“Regulation S-K”) under the
Securities Act of 1933, as amended (the “Securities Act”) (or any
successor provision), if any Holder or such Stockholder Associated
Person were the “registrant” for purposes of such rule and such
person were a director or executive officer of such registrant);
(5)any other information relating to such person that
would be required to be disclosed in a proxy statement or any other
filings required to be made in connection with solicitation of
proxies for the election of directors in a contested election or that is
otherwise required pursuant to and in accordance with Section 14
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of the Exchange Act, and the rules and regulations promulgated
thereunder (including such person’s written consent to being
named in the Corporation’s proxy statements and any
accompanying proxy cards as a proposed nominee of the Noticing
Stockholder and to serving as a director if elected); and
(6)a completed and signed questionnaire,
representation, and agreement and any and all other information
required by Section 11(d) of this ARTICLE II.
In addition, any Noticing Stockholder who submits a notice pursuant to Section
11(a) of this ARTICLE II is required to update and supplement the information
disclosed in such notice, if necessary, in accordance with Section 11(c) of this
ARTICLE II.
(iv)Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted or nominations made at an annual meeting except in
accordance with the procedures set forth in Section 11(a) of this ARTICLE II;
provided that the foregoing shall not apply to any nominations or business
brought by the Principal Stockholder or any Principal Stockholder Affiliate at any
time prior to the Advance Notice Trigger Date.
(v)Notwithstanding anything in Section 11(a)(ii) of this ARTICLE II
to the contrary, if the number of directors to be elected to the Board is increased
effective after the time period for which nominations would otherwise be due
under Section 11(a)(ii) of this ARTICLE II and there is no Public Announcement
naming the nominees for additional directorships at least 10 days prior to the last
day a stockholder may deliver a notice of nomination in accordance with Section
11(a)(ii) of this ARTICLE II, a stockholder’s notice required by Section 11(a)(ii)
of this ARTICLE II shall also be considered timely, but only with respect to
nominees for the additional directorships, if it shall be received by the Secretary at
the principal executive offices of the Corporation not later than the Close of
Business on the 10th day following the day on which such Public Announcement
is first made by the Corporation.
(b)Special Meetings of Stockholders. Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the meeting pursuant to
the notice of meeting. Only persons who are nominated in accordance and compliance with the
procedures set forth in this Section 11(b) of ARTICLE II shall be eligible for election to the
Board at a special meeting of stockholders at which directors are to be elected. Nominations of
persons for election to the Board may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the notice of meeting only: (i) by or at the direction of the
Board, any duly authorized committee thereof, or stockholders (if stockholders are permitted to
call a special meeting of stockholders pursuant to Section 2 of ARTICLE SEVEN of the
Certificate of Incorporation); or (ii) provided that the Board or stockholders (if stockholders are
permitted to call a special meeting of stockholders pursuant to Section 2 of ARTICLE SEVEN of
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the Certificate of Incorporation) has determined that directors are to be elected at such special
meeting, by any stockholder of the Corporation who: (A) was a stockholder of record at the time
of giving of notice provided for in this Section 11(b) of ARTICLE II, and at the time of the
special meeting; (B) is entitled to vote at the meeting; and (C) complies with the notice
procedures provided for in this Section 11(b) of ARTICLE II. For nominations to be properly
brought by a stockholder at a special meeting of stockholders, the stockholder must have given
timely notice thereof in proper written form as described in this Section 11(b) of ARTICLE II to
the Secretary. To be timely, a stockholder’s notice for the nomination of persons for election to
the Board must be delivered to and received by the Secretary at the principal executive offices of
the Corporation not earlier than the 120th day prior to such special meeting and not later than the
Close of Business on the later of the 90th day prior to such special meeting or the 10th day
following the day on which a Public Announcement is first made of the date of the special
meeting and of the nominees proposed by the Board to be elected at such meeting. In no event
shall any adjournment or postponement of a special meeting or the announcement thereof
commence a new time period (or extend any time period) for the giving of a stockholder’s notice
as described above. Notices delivered pursuant to this Section 11(b) of ARTICLE II will be
deemed received on any given day if received prior to the Close of Business on such day (and
otherwise, on the next succeeding day). To be in proper written form, such stockholder’s notice
shall set forth all of the information required by, and otherwise be in compliance with, Section
11(a)(iii) of this ARTICLE II. In addition, any stockholder who submits a notice pursuant to this
Section 11(b) of ARTICLE II is required to update and supplement the information disclosed in
such notice, if necessary, in accordance with Section 11(c) of this ARTICLE II and shall comply
with Section 11(e) of this ARTICLE II. The number of nominees a stockholder may nominate
for election at the special meeting on its own behalf (or in the case of one or more stockholders
giving the notice on behalf of a beneficial owner, the number of nominees such stockholders may
collectively nominate for election at the special meeting on behalf of such beneficial owner) shall
not exceed the number of directors to be elected at such special meeting. Notwithstanding the
foregoing or anything else in this Section 11(b), at any time prior to the Advance Notice Trigger
Date, the Principal Stockholder and any Principal Stockholder Affiliate may make nominations
at any special meeting of stockholders at which directors are to be elected without compliance
with the notice, information, or other requirements of this Section 11(b), and any such
nominations shall be deemed properly brought before such meeting
(c)Update and Supplement of Stockholder’s Notice. Any stockholder who
submits a notice of proposal for business or nomination for election pursuant to this Section 11
of ARTICLE II is required to update and supplement the information disclosed in such notice, if
necessary, so that the information provided or required to be provided in such notice shall be true
and correct as of the record date for the meeting of stockholders and as of the date that is 10
Business Days prior to the meeting of stockholders or any adjournment, recess, rescheduling, or
postponement thereof, and such update and supplement shall be delivered to and received by the
Secretary at the principal executive offices of the Corporation not later than five Business Days
after the record date for the meeting of stockholders in the case of the update and supplement
required to be made as of the record date, and not later than eight Business Days prior to the date
for the meeting of stockholders or any adjournment, recess, rescheduling or postponement
thereof in the case of the update and supplement required to be made as of 10 Business Days
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prior to the meeting of stockholders or any adjournment, recess, rescheduling, or postponement
thereof. In addition, if the Noticing Stockholder has delivered to the Corporation a notice relating
to the nomination of directors, the Noticing Stockholder shall deliver to the Corporation not later
than eight Business Days prior to the date of the meeting or any adjournment, recess,
rescheduling, or postponement thereof (or, if not practicable, on the first practicable date prior to
the date to which the annual meeting has been adjourned or postponed) reasonable evidence that
it has complied with the requirements of Rule 14a-19 of the Exchange Act (or any successor
provision). For the avoidance of doubt, the obligation to update and supplement set forth in this
paragraph or any other Section of these Bylaws shall not limit the Corporation’s rights with
respect to any deficiencies in any notice provided by a stockholder, extend any applicable
deadlines hereunder or enable or be deemed to permit a stockholder who has previously
submitted notice hereunder to amend or update any proposal or to submit any new proposal,
including by changing or adding nominees, matters, business and/or resolutions proposed to be
brought before a meeting of the stockholders.
(d)Submission of Questionnaire, Representation, and Agreement. To be
qualified to be a nominee for election or re-election as a director of the Corporation, a person
must deliver (in the case of a person nominated by a stockholder in accordance with Sections
11(a) or 11(b) of this ARTICLE II, in accordance with the time periods prescribed for delivery of
notice under such sections) to the Secretary at the principal executive offices of the Corporation a
written questionnaire with respect to the background and qualification of such person and the
background of any other person or entity on whose behalf the nomination is being made (which
questionnaire shall be provided by the Secretary upon written request of any stockholder of
record identified by name within five Business Days of such written request) and a written
representation and agreement (in the form provided by the Secretary upon written request of any
stockholder of record identified by name within five Business Days of such written request) that
such person: (i) is not and will not become a party to: (A) any agreement, arrangement, or
understanding (whether written or oral) with, and has not given any commitment or assurance to,
any person or entity as to how such person, if elected as a director of the Corporation, will act or
vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the
Corporation; or (B) any Voting Commitment that could limit or interfere with such person’s
ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties
under applicable law; (ii) is not and will not become a party to any agreement, arrangement, or
understanding with any person or entity other than the Corporation with respect to any direct or
indirect compensation, reimbursement, or indemnification in connection with service or action as
a director that has not been disclosed to the Corporation; and (iii) would be in compliance, and if
elected as a director of the Corporation will comply, with all applicable publicly disclosed
corporate governance, conflict of interest, confidentiality, and stock ownership and trading
policies and guidelines of the Corporation that are publicly available.
(e)Update and Supplement of Nominee Information. The Corporation may
also, as a condition to any such nomination or business being deemed properly brought before an
annual meeting of stockholders, require any Holder or any proposed nominee to deliver to the
Secretary, within five Business Days of any such request, such other information as may
reasonably be required by the Board to determine whether such proposed nominee is eligible
15
under the Certificate of Incorporation, these Bylaws, the rules or regulations of any stock
exchange applicable to the Corporation, or any law or regulation applicable to the Corporation to
serve as a director or independent director of the Corporation.
(f)Authority of Chair; General Provisions. Except as otherwise provided by
applicable law, the Certificate of Incorporation, or these Bylaws and subject to the supervision of
the Board, the chair of the meeting shall have the power and duty to determine whether any
nomination or other business proposed to be brought before the meeting was made or brought in
accordance with the procedures set forth in these Bylaws (including whether the Noticing
Stockholder or Stockholder Associated Person or other person, if any, on whose behalf the
nomination or proposal is made or solicited (or is part of a group which solicited) or did not so
solicit, as the case may be, proxies or votes in support of such Noticing Stockholder’s nominee
or proposal in compliance with such Noticing Stockholder’s representation as required by
Section 11(a)(iii)(B)(8) of this ARTICLE II) and, if any nomination or other business is not
made or brought in compliance with these Bylaws, to declare that such nomination or proposal of
other business be disregarded and not acted upon; provided, however, that the foregoing shall not
apply to, and the chair of the meeting shall have no authority to disregard, any nomination or
business brought by the Principal Stockholder or any Principal Stockholder Affiliate at any time
prior to the Advance Notice Trigger Date.
(g)Effect on Other Rights. Nothing in these Bylaws shall be deemed to: (A)
confer upon any stockholder a right to have a nominee or any proposed business included in the
Corporation’s proxy statement, except as set forth in the Certificate of Incorporation or these
Bylaws; (B) affect any rights of the holders of any series of preferred stock to elect directors
pursuant to any applicable provisions of the Certificate of Incorporation; or (C) limit the
exercise, the method, or timing of the exercise of the rights of the Principal Stockholder and the
Principal Stockholder Affiliates granted by the Corporation to nominate directors (pursuant to
that Director Nomination Agreement, dated as of on or about , 2026 (as amended,
restated, modified, and/or supplemented from time to time, the “Director Nomination
Agreement”), by and among the Corporation and the investors named therein), which rights may
be exercised without compliance with the provisions of Section 11 of this ARTICLE II.
(h)Definitions. For purposes of this Section 11 of ARTICLE II, the term:
(i)“Affiliate” has the meaning attributed to such term in Rule 12b-2
under the Exchange Act;
(ii)“Associate” has the meaning attributed to such term in Rule 12b-2
under the Exchange Act;
(iii)“Business Day” shall mean each Monday, Tuesday, Wednesday,
Thursday, and Friday that is not a day on which banking institutions in
Miamisburg, OH or New York, NY are authorized or obligated by law or
executive order to close;
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(iv)“Close of Business” shall mean 5:00 p.m. local time at the
principal executive offices of the Corporation, and if an applicable deadline falls
on the Close of Business on a day that is not a Business Day, then the applicable
deadline shall be deemed to be the Close of Business on the immediately
preceding Business Day;
(v)“Derivative Instrument” means any short position, profits interest,
option, warrant, convertible security, stock appreciation right, or similar right with
an exercise or conversion privilege or a settlement payment or mechanism at a
price related to any class or series of shares of the Corporation or with a value
derived in whole or in part from the value of any class or series of shares of the
Corporation, or any derivative or synthetic arrangement having the characteristics
of a long position in any class or series of shares of the Corporation, or any
contract, derivative, swap, or other transaction or series of transactions designed
to produce economic benefits and risks that correspond substantially to the
ownership of any class or series of shares of the Corporation, including due to the
fact that the value of such contract, derivative, swap, or other transaction or series
of transactions is determined by reference to the price, value, or volatility of any
class or series of shares of the Corporation, whether or not such instrument,
contract, or right shall be subject to settlement in the underlying class or series of
shares of the Corporation, through the delivery of cash or other property, or
otherwise, and without regard to whether the stockholder and any Stockholder
Associated Person may have entered into transactions that hedge or mitigate the
economic effect of such instrument, contract, or right, or any other direct or
indirect opportunity to profit or share in any profit derived from any increase or
decrease in the value of shares of the Corporation;
(vi)“Hedging Transaction” means, with respect to a stockholder or any
Stockholder Associated Person, any hedging or other transaction (such as
borrowed or loaned shares) or series of transactions, or any other agreement,
arrangement, or understanding, the effect or intent of which is to increase or
decrease the voting power or economic or pecuniary interest of such stockholder
or any Stockholder Associated Person with respect to the Corporation’s securities;
(vii)“Public Announcement” means disclosure (a) in a press release
released by the Corporation, provided such press release is released by the
Corporation following its customary procedures, as reported by the Dow Jones
News Service, Associated Press, Business Wire, PR Newswire or a comparable
news service, or is generally available on internet news sites, or (b) in a document
publicly filed by the Corporation with the SEC pursuant to Sections 13, 14 or
15(d) of the Exchange Act;
17
(viii)“Stockholder Associated Person” means, with respect to any
Holder:
(A)any participant (as defined in paragraphs (a)(ii)-(vi) of
Instruction 3 to Item 4 of Schedule 14A of the Exchange Act, or any
successor instructions) with such Holder in a solicitation of proxies in
respect of any business or director nomination proposed by such
stockholder;
(B)any Affiliate or Associate of such Holder; and
(C)any person who is a member of a “group” (as such term is
used in Rule 13d-5 under the Exchange Act (or any successor provision))
with such Holder; and
(ix)“Short Interest” means any agreement, arrangement,
understanding, relationship, or otherwise, including any repurchase or similar so-
called “stock borrowing” agreement or arrangement, involving any stockholder or
any Stockholder Associated Person, the purpose or effect of which is to mitigate
loss to, reduce the economic risk (of ownership or otherwise) of any class or
series of the shares of the Corporation by, manage the risk of share price changes
for, or increase or decrease the voting power of, such stockholder or any
Stockholder Associated Person with respect to any class or series of the shares or
other securities of the Corporation, or which provides, directly or indirectly, the
opportunity to profit or share in any profit derived from any decrease in the price
or value of any class or series of the shares or other securities of the Corporation;
and
(x)For purposes of these Bylaws, the words “include,” “includes” or
“including” are deemed to be followed by the words “without limitation.” Where
a reference in these Bylaws is made to any statute or regulation, such reference
shall be to (1) the statute or regulation as amended from time to time (except as
context may otherwise require) and (2) any rules or regulations promulgated
thereunder.
(i)Proxy Card. Any stockholder directly or indirectly soliciting proxies from
other stockholders must use a proxy card color other than white, which shall be reserved for the
exclusive use by the Board.
Section 12.Requirement to Appear. Notwithstanding anything to the contrary
contained in Section 11, if the Noticing Stockholder that has provided timely notice of a
nomination or item of business in accordance with Section 11 (or a qualified representative of the
Noticing Stockholder) does not appear at the annual or special meeting of stockholders of the
Corporation to present such nomination or item of business, such proposed business shall not be
transacted and such nomination shall be disregarded, notwithstanding that such proposed
business or such nomination is set forth in the notice of meeting or other proxy materials and
18
notwithstanding that proxies or votes in respect of such vote may have been received by the
Corporation. For purposes of these Bylaws, to be considered a qualified representative of the
Noticing Stockholder, a person must be a duly authorized officer, manager or partner of such
Noticing Stockholder or must be authorized by a writing executed by such Noticing Stockholder
or an electronic transmission delivered by such Noticing Stockholder to act for such Noticing
Stockholder as proxy at the meeting of stockholders and such person must produce such writing
or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at
the meeting of stockholders.
Section 13.Fixing a Record Date for Stockholder Meetings. In order that the
Corporation may determine the stockholders entitled to notice of any meeting of stockholders or
any adjournment thereof, the Board may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the Board, and which
record date shall not be more than 60 days nor less than 10 days before the date of such meeting.
If the Board so fixes a date, such date shall also be the record date for determining the
stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes
such record date, that a later date on or before the date of the meeting shall be the date for
making such determination. If no record date is fixed by the Board, the record date for
determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the
close of business on the day next preceding the day on which notice is first given, or, if notice is
waived, at the close of business on the day next preceding the day on which the meeting is held.
A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board
may fix a new record date for the adjourned meeting in conformity herewith; and in such case
shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the
same or an earlier date as that fixed for determination of stockholders entitled to vote in
accordance with the foregoing provisions of this Section 13 of ARTICLE II at the adjourned
meeting.
Section 14.Action by Stockholders Without a Meeting. So long as stockholders of the
Corporation have the right to act by written consent in accordance with Section 1 of ARTICLE
SEVEN of the Certificate of Incorporation, the following provisions shall apply:
(a)Record Date. For the purpose of determining the stockholders entitled to
consent to corporate action without a meeting as may be permitted by the Certificate of
Incorporation or the certificate of designation relating to any outstanding class or series of
preferred stock, the Board may fix a record date, which record date shall not precede the date on
which the resolution fixing the record date is adopted by the Board, and which record date shall
not be more than 10 (or the maximum number permitted by applicable law) days after the date on
which the resolution fixing the record date is adopted by the Board. Any stockholder of record
seeking to have the stockholders authorize or take action by consent in lieu of a meeting shall, by
written notice delivered to the Secretary at the Corporation’s principal place of business during
regular business hours, request that the Board fix a record date, which notice shall include the
text of any proposed resolutions. Notices delivered pursuant to this Section 14(a) of ARTICLE II
will be deemed received on any given day only if received prior to the close of business on such
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day (and otherwise, shall be deemed received on the next succeeding Business Day). The Board
shall promptly, but in all events within 10 days after the date on which such written notice is
properly delivered to and deemed received by the Secretary, adopt a resolution fixing the record
date (unless a record date has previously been fixed by the Board pursuant to the first sentence of
this Section 14(a) of ARTICLE II). If no record date has been fixed by the Board pursuant to this
Section 14(a) or otherwise within 10 days of receipt of a valid request by a stockholder, the
record date for determining stockholders entitled to consent to corporate action without a
meeting, when no prior action by the Board is required pursuant to applicable law, shall be the
first date after the expiration of such 10 day time period on which a signed consent setting forth
the action taken or proposed to be taken is delivered to the Corporation pursuant to Section 14(b)
of this ARTICLE II; provided, however, that if prior action by the Board is required by
applicable law, the record date for determining stockholders entitled to consent to corporate
action without a meeting shall in such an event be at the close of business on the day on which
the Board adopts the resolution taking such prior action.
(b)Generally. No consent shall be effective to take the corporate action
referred to therein unless consents signed by a sufficient number of stockholders to take such
action are delivered to the Corporation, in the manner required by this Section 14 of ARTICLE
II, within 60 (or the maximum number permitted by applicable law) days of the first date on
which a consent is delivered to the Corporation in the manner required by applicable law. The
validity of any consent executed by a proxy for a stockholder pursuant to an electronic
transmission transmitted to such proxy holder by or upon the authorization of the stockholder
shall be determined by or at the direction of the Secretary. A written record of the information
upon which the person making such determination relied shall be made and kept in the records of
the proceedings of the stockholders. Any such consent shall be inserted in the minute book as if
it were the minutes of a meeting of stockholders. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous consent shall be given by the Corporation (at its
expense) to those stockholders as of the record date for the action by consent who have not
consented and who would have been entitled to notice of the meeting if the action had been taken
at such meeting and the record date for the notice of such meeting were the record date for the
action by consent. A consent permitted by this Section 14 shall be delivered: (i) to the principal
place of business of the Corporation; (ii) to an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded; (iii) to the registered
office of the Corporation in the State of Delaware by hand or by certified or registered mail,
return receipt requested; or (iv) subject to the next sentence, in accordance with Section 116 of
the DGCL to an information processing system, if any, designated by the Corporation for
receiving such consents. In the case of delivery pursuant to the foregoing clause (iv), such
consent must set forth or be delivered with information that enables the Corporation to determine
the date of delivery of such consent and the identity of the person giving such consent, and, if
such consent is given by a person authorized to act for a stockholder or member as proxy, such
consent must comply with the applicable provisions of Sections 212(c)(2) and (3) of the DGCL.
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Section 15.Conduct of Meetings.
(a)Generally. Meetings of stockholders shall be presided over by the Chair, if
any, or in the Chair’s absence or disability, by the CEO (if the CEO is not also the Chair), or in
the CEO’s absence or disability, by the President of the Corporation (the “President”), or in the
President’s absence or disability, by a Vice President of the Corporation (the “Vice President”)
(in the order as determined by the Board), or in the absence or disability of the foregoing
persons, by a director or officer designated by the Board, or in the absence or disability of such
person, by a chair chosen at the meeting. The Secretary shall act as secretary of the meeting, but
in the Secretary’s absence or disability, the chair of the meeting may appoint any person to act as
secretary of the meeting.
(b)Rules, Regulations, and Procedures. The Board may adopt by resolution
such rules, regulations, and procedures for the conduct of any meeting of stockholders of the
Corporation as it shall deem appropriate including, without limitation, such guidelines and
procedures as it may deem appropriate regarding the participation by means of remote
communication of stockholders and proxyholders not physically present at a meeting. Except to
the extent inconsistent with such rules, regulations, and procedures as adopted by the Board, the
chair of any meeting of stockholders shall have the right and authority to prescribe such rules,
regulations, and procedures and to do all such acts as, in the judgment of such chair, are
appropriate for the proper conduct of the meeting. Such rules, regulations, or procedures,
whether adopted by the Board or prescribed by the chair of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or order of business for the meeting;
(ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii)
limitations on attendance at or participation in the meeting to stockholders of record of the
Corporation, their duly authorized and constituted proxies, or such other persons as the chair of
the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; (v) limitations on the time allotted to questions or comments by
participants; and (vi) restrictions on the use of mobile phones, audio or video recording devices,
and similar devices at the meeting. The chair of the meeting of stockholders, in addition to
making any other determinations that may be appropriate to the conduct of the meeting, shall, if
the facts warrant, determine and declare to the meeting that a nomination or matter or business
was not properly brought before the meeting and if such chair should so determine, such chair
shall so declare to the meeting and any such matter or business not properly brought before the
meeting shall not be transacted or considered. Unless and to the extent determined by the Board
or the chair of the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure. The chair of the meeting shall announce at
the meeting when the polls for each matter to be voted upon at the meeting will be opened and
closed. After the polls close, no ballots, proxies, or votes or any revocations or changes thereto
may be accepted. The chair of the meeting shall have the power, right, and authority, for any or
no reason, to convene, recess, and/or adjourn any meeting of stockholders.
(c)Inspectors of Elections. The Corporation may, and to the extent required
by law shall, in advance of any meeting of stockholders, appoint one or more inspectors of
election to act at the meeting and make a written report thereof. One or more other persons may
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be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the chair of the meeting shall appoint one or
more inspectors to act at the meeting. Unless otherwise required by law, inspectors may be
officers, employees, or agents of the Corporation. No person who is a candidate for an office at
an election may serve as an inspector at such election. Each inspector, before entering upon the
discharge of such inspector’s duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of such inspector’s ability. The
inspector shall have the duties prescribed by law and, when the vote is completed, shall make a
certificate of the result of the vote taken and of such other facts as may be required by law.
Section 16.Remote Communication. If authorized by the Board in its sole discretion,
and subject to such guidelines and procedures as the Board may adopt, stockholders and
proxyholders not physically present at a meeting of stockholders may, by means of remote
communication:
(a)participate in a meeting of stockholders; and
(b)be deemed present in person and vote at a meeting of stockholders
whether such meeting is to be held at a designated place or solely by means of remote
communication;
provided that
(c)the Corporation shall implement reasonable measures to verify that each
person deemed present and permitted to vote at the meeting by means of remote communication
is a stockholder or proxyholder;
(d)the Corporation shall implement reasonable measures to provide such
stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote
on matters submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings; and
(e)if any stockholder or proxyholder votes or takes other action at the
meeting by means of remote communication, a record of such vote or other action shall be
maintained by the Corporation.
ARTICLE III
DIRECTORS
Section 1.General Powers. Except as otherwise provided in this Certificate of
Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or
under the direction of the Board.
Section 2.Regular Meetings and Special Meetings. Regular meetings of the Board
may be held without notice at such time and at such place as shall from time to time be
determined by resolution of the Board and publicized among all directors. Special meetings of
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the Board may be called by: (i) the Chair, if any; (ii) by the Secretary upon the written request of
a majority of the directors then in office; or (iii) if the Board then includes a director nominated
or designated for nomination by the Principal Stockholder or any Principal Stockholder Affiliate,
by any director so nominated or designated, and in each case shall be held at the place, if any, on
the date and at the time as he, she, or they shall fix. Any and all business may be transacted at a
special meeting of the Board.
Section 3.Notice of Meetings. Notice of regular meetings of the Board need not be
given except as otherwise required by law or these Bylaws. Notice of each special meeting of the
Board, and of each regular and annual meeting of the Board for which notice is required, shall be
given by the Secretary as hereinafter provided in this Section 3 of this ARTICLE III. Such notice
shall state the date, time, and place, if any, of the meeting. Notice of any special meeting, and of
any regular or annual meeting for which notice is required, shall be given to each director at
least: (A) 24 hours before the meeting if by telephone or by being personally delivered or sent by
overnight courier, telecopy, electronic transmission, email, or similar means; or (B) five days
before the meeting if delivered by mail to the director’s residence or usual place of business.
Such notice shall be deemed to be delivered when deposited in the United States mail so
addressed, with postage prepaid, or when transmitted if sent by telex, telecopy, electronic
transmission, email, or similar means. Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board need be specified in the notice or waiver of notice of such
meeting.
Section 4.Waiver of Notice. Any director may waive notice of any meeting of
directors by a writing signed by the director or by electronic transmission. Any member of the
Board or any committee thereof who is present at a meeting shall have waived notice of such
meeting except when such member attends for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not lawfully called or
convened and does not further participate in the meeting. Such member shall be conclusively
presumed to have assented to any action taken unless his or her dissent shall be entered in the
minutes of the meeting or unless his or her written dissent to such action shall be filed with the
person acting as the secretary of the meeting before the adjournment thereof or shall be
forwarded by registered mail to the Secretary immediately after the adjournment of the meeting.
Such right to dissent shall not apply to any member who voted in favor of such action.
Section 5.Chair of the Board, Quorum, Required Vote, and Adjournment. Subject to
the provisions regarding the appointment of the Chair in the Certificate of Incorporation, the
Board may elect the Chair. The Chair must be a director and may be a director who is also
currently an officer of the Corporation. Subject to the provisions of these Bylaws and the
direction of the Board, he, she, or they shall perform all duties and have all powers which are
commonly incident to the position of Chair or which are delegated to him or her by the Board,
preside at all meetings of the stockholders and Board at which he or she is present and have such
powers and perform such duties as the Board may from time to time prescribe. If the Chair is not
present at a meeting of the Board, the CEO (if the CEO is a director and is not also the Chair)
shall preside at such meeting, and, if the CEO is not present at such meeting, a majority of the
directors present at such meeting shall elect one of the directors present at the meeting to so
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preside. At all meetings of the Board, a majority of the directors then in office shall constitute a
quorum for the transaction of business, provided, however, that a quorum shall never be less than
one-third the total number of directors. Unless by express provision of an applicable law, the
Certificate of Incorporation, or these Bylaws a different vote is required, the vote of a majority of
directors present at a meeting at which a quorum is present shall be the act of the Board. At any
meeting of the Board, business shall be transacted in such order and manner as the Board may
from time to time determine. If a quorum shall not be present at any meeting of the Board, the
directors present thereat may, to the fullest extent permitted by law, adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present.
Section 6.Committees.
(a)The Board may designate one or more committees, including an executive
committee, consisting of one or more of the directors of the Corporation, and any committees
required by the rules and regulations of such exchange as any securities of the Corporation are
listed. The Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the committee. Except to
the extent restricted by applicable law or the Certificate of Incorporation, each such committee,
to the extent provided by the DGCL and in the resolution creating it, shall have and may exercise
all the powers and authority of the Board. Each such committee shall serve at the pleasure of the
Board. Each committee shall keep regular minutes of its meetings and report the same to the
Board upon request.
(b)Each committee of the Board may fix its own rules of procedure and shall hold its
meetings as provided by such rules, except as may otherwise be provided by a resolution of the
Board designating such committee. Unless otherwise provided in such a resolution, the presence
of at least a majority of the members of the committee shall be necessary to constitute a quorum.
All matters shall be determined by a majority vote of the members present at a meeting at which
a quorum is present. Unless otherwise provided in such a resolution, in the event that a member
and that member’s alternate, if alternates are designated by the Board, of such committee is or
are absent or disqualified, the member or members present at any meeting and not disqualified
from voting, whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board to act at the meeting in place of any such absent or
disqualified member.
Section 7.Action by Written Consent. Unless otherwise restricted by the Certificate
of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of
the Board, or of any committee thereof, may be taken without a meeting if all members of the
Board or such committee, as the case may be, consent thereto in writing or by electronic
transmission. After the action is taken, the consent or consents relating thereto shall be filed with
the minutes of proceedings of the Board or committee in the same paper form or electronic form
as the minutes are maintained.
Section 8.Compensation. The Board shall have the authority to fix the
compensation, including fees, reimbursement of expenses, and equity compensation, of directors
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for services to the Corporation in any capacity, including for attendance of meetings of the Board
or participation on any committees. No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation therefor.
Section 9.Reliance on Books and Records. A member of the Board, or a member of
any committee designated by the Board, shall, in the performance of such member’s duties, be
fully protected in relying in good faith upon records of the Corporation and upon such
information, opinions, reports, or statements presented to the Corporation by any of the
Corporation’s officers or employees, or committees of the Board, or by any other person as to
matters the member reasonably believes are within such other person’s professional or expert
competence and who has been selected with reasonable care by or on behalf of the Corporation.
Section 10.Telephonic and Other Meetings. Unless restricted by the Certificate of
Incorporation, any one or more members of the Board or any committee thereof may participate
in a meeting of the Board or such committee by means of conference telephone or other
communications equipment by means of which all persons participating in the meeting can hear
each other. Participation by such means shall constitute presence in person at a meeting.
ARTICLE IV
OFFICERS
Section 1.Number and Election. Subject to the authority of the CEO to appoint
officers as set forth in Section 11 of this ARTICLE IV, the officers of the Corporation shall be
elected by the Board and may consist of a CEO, a President, one or more Vice Presidents, a
Secretary, a Chief Financial Officer (the “CFO”), a Treasurer (the “Treasurer”), and such other
officers and assistant officers as may be deemed necessary or desirable by the Board. Any
number of offices may be held by the same person. In its discretion, the Board may choose not to
fill any office for any period as it may deem advisable.
Section 2.Term of Office. Each officer shall hold office until a successor is duly
elected and qualified or until his or her earlier death, resignation, or removal as hereinafter
provided.
Section 3.Removal. Any officer or agent of the Corporation may be removed with or
without cause by the Board, a duly authorized committee thereof or by such officers as may be
designated by a resolution of the Board, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Any officer appointed by the CEO in
accordance with Section 11 of this ARTICLE IV may also be removed by the CEO in his or her
sole discretion.
Section 4.Vacancies. Any vacancy occurring in any office because of death,
resignation, removal, disqualification, or otherwise may be filled by the Board or the CEO in
accordance with Section 11 of this ARTICLE IV.
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Section 5.Compensation. Compensation of all executive officers shall be approved
by the Board or a duly authorized committee thereof, and no officer shall be prevented from
receiving such compensation by virtue of his or her also being a director of the Corporation.
Section 6.Chief Executive Officer. The CEO shall have the powers and perform the
duties incident to that position. The CEO shall, in the absence of the Chair (if the CEO is not also
the Chair), or if a Chair shall not have been elected, preside at each meeting of (a) the Board if
the CEO is a director and (b) the stockholders. Subject to the powers of the Board and the Chair,
the CEO shall be in general and active charge of the entire business and affairs of the
Corporation and shall be its chief policy-making officer. The CEO shall have such other powers
and perform such other duties as may be prescribed by the Board or provided in these Bylaws.
The CEO is authorized to execute bonds, mortgages, and other contracts requiring a seal under
the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be expressly delegated by
the Board to some other officer or agent of the Corporation. Whenever the President is unable to
serve, by reason of sickness, absence, or otherwise, the CEO shall perform all the duties and
responsibilities and exercise all the powers of the President.
Section 7.President. The President of the Corporation shall, subject to the powers of
the Board, the Chair, and the CEO, have general charge of the business, affairs, and property of
the Corporation, and, in the absence of the CEO, control over its officers, agents, and employees.
The President shall see that all orders and resolutions of the Board are carried into effect. The
President is authorized, in the absence of the CEO, to execute bonds, mortgages, and other
contracts requiring a seal under the seal of the Corporation, except where required or permitted
by law to be otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board to some other officer or agent of the Corporation. The
President shall, in the absence of the CEO, act with all of the powers and be subject to all of the
restrictions of the CEO. The President shall have such other powers and perform such other
duties as may be prescribed by the Chair, the CEO, the Board, or as may be provided in these
Bylaws or otherwise are incident to the position of President.
Section 8.Vice Presidents. The Vice President, or if there shall be more than one, the
Vice Presidents, in the order determined by the Board or the Chair, shall, perform such duties
and have such powers as the Board, the Chair, the CEO, the President, or these Bylaws may,
from time to time, prescribe or which otherwise are incident to the position of Vice President.
The Vice Presidents may also be designated as Executive Vice Presidents or Senior Vice
Presidents, as the Board may from time to time prescribe.
Section 9.Secretary and Assistant Secretaries. The Secretary shall attend all
meetings of the Board (other than executive sessions thereof) and all meetings of the
stockholders and record all the proceedings of the meetings in a book or books to be kept for that
purpose or shall ensure that his or her designee attends each such meeting to act in such capacity.
Under the Board’s supervision, the Secretary shall give, or cause to be given, all notices required
to be given by these Bylaws or by law; shall have such powers and perform such duties as the
Board, the Chair, the CEO, the President, or these Bylaws may, from time to time, prescribe or
26
which otherwise are incident to the position of Secretary; and shall have custody of the corporate
seal of the Corporation. The Secretary, or an Assistant Secretary, shall have authority to affix the
corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her
signature or by the signature of such Assistant Secretary. The Board may give general authority
to any other officer to affix the seal of the Corporation and to attest the affixing by his or her
signature. The Assistant Secretary, or if there be more than one, any of the Assistant Secretaries,
shall in the absence or disability of the Secretary, perform the duties and exercise the powers of
the Secretary and shall perform such other duties and have such other powers as the Board, the
Chair, the CEO, the President, or Secretary may, from time to time, prescribe.
Section 10.Chief Financial Officer and Treasurer. The CFO shall have the custody of
the corporate funds and securities; shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation as shall be necessary or desirable in
accordance with applicable law or generally accepted accounting principles; shall deposit all
monies and other valuable effects in the name and to the credit of the Corporation as may be
ordered by the Chair or the Board; shall receive, and give receipts for, moneys due and payable
to the Corporation from any source whatsoever; shall cause the funds of the Corporation to be
disbursed when such disbursements have been duly authorized, taking proper vouchers for such
disbursements; and shall render to the Board, at its regular meeting or when the Board so
requires, an account of the financial condition and operations of the Corporation; shall have such
powers and perform such duties as the Board, the Chair, the CEO, the President, or these Bylaws
may, from time to time, prescribe or which otherwise are incident to the position of CFO. The
Treasurer shall in the absence or disability of the CFO, perform the duties and exercise the
powers of the CFO, subject to the power of the Board. The Treasurer, if any, shall perform such
other duties and have such other powers as the Board may, from time to time, prescribe.
Section 11.Appointed Officers. In addition to officers designated by the Board in
accordance with this ARTICLE IV, the CEO shall have the authority to appoint other officers below
the level of Board-appointed Vice President as the CEO may from time to time deem expedient and
may designate for such officers titles that appropriately reflect their positions and responsibilities.
Such appointed officers shall have such powers and shall perform such duties as may be assigned to
them by the CEO or the senior officer to whom they report, consistent with corporate policies. An
appointed officer shall serve until the earlier of such officer’s resignation or such officer’s removal
by the CEO or the Board at any time, either with or without cause.
Section 12.Other Officers, Assistant Officers, and Agents. Officers, assistant officers,
and agents, if any, other than those whose duties are provided for in these Bylaws, shall have
such authority and perform such duties as may from time to time be prescribed by resolution of
the Board and, to the extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board.
Section 13.Officers’ Bonds or Other Security. If required by the Board, any officer of
the Corporation shall give a bond or other security for the faithful performance of such officer’s
duties, in such amount and with such surety as the Board may require.
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Section 14.Delegation of Authority. The Board may by resolution delegate the
powers and duties of such officer to any other officer or to any director, or to any other person
whom it may select.
ARTICLE V
CERTIFICATES OF STOCK
Section 1.Form. The shares of stock of the Corporation shall be represented by
certificates, provided that the Board may provide by resolution that some or all of any or all
classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the Corporation. If
shares are represented by certificates, the certificates shall be in such form as required by
applicable law and as determined by the Board. Each certificate shall certify the number of
shares owned by such holder in the Corporation and shall be signed by, or in the name of the
Corporation by two authorized officers of the Corporation including, but not limited to, the Chair
(if an officer), the CEO (if the CEO is not also the Chair), the President, a Vice President, the
CFO, the Treasurer, the Secretary, and an Assistant Secretary. Any or all signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed, or
whose facsimile signature or signatures have been used on, any such certificate or certificates
shall cease to be such officer, transfer agent, or registrar of the Corporation whether because of
death, resignation, or otherwise before such certificate or certificates have been issued by the
Corporation, such certificate or certificates may nevertheless be issued as though the person or
persons who signed such certificate or certificates or whose facsimile signature or signatures
have been used thereon had not ceased to be such officer, transfer agent, or registrar of the
Corporation at the date of issue. All certificates for shares shall be consecutively numbered or
otherwise identified. The Board may appoint a bank or trust company organized under the laws
of the United States or any state thereof to act as its transfer agent, registrar, or both in
connection with the transfer of any class or series of securities of the Corporation. The
Corporation, or its designated transfer agent or other agent, shall keep a book or set of books to
be known as the stock transfer books of the Corporation, containing the name of each holder of
record, together with such holder’s address and the number and class or series of shares held by
such holder and the date of issue. When shares are represented by certificates, the Corporation
shall issue and deliver to each holder to whom such shares have been issued or transferred,
certificates representing the shares owned by such holder, and shares of stock of the Corporation
shall only be transferred on the books of the Corporation by the holder of record thereof or by
such holder’s attorney duly authorized in writing, upon surrender to the Corporation or its
designated transfer agent or other agent of the certificate or certificates for such shares endorsed
by the appropriate person or persons, with such evidence of the authenticity of such
endorsement, transfer, authorization, and other matters as the Corporation may reasonably
require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty
of the Corporation to issue a new certificate to the person entitled thereto, cancel the old
certificate or certificates, and record the transaction on its books. When shares are not
represented by certificates, shares of stock of the Corporation shall only be transferred on the
books of the Corporation by the holder of record thereof or by such holder’s attorney duly
authorized in writing, with such evidence of the authenticity of such transfer, authorization, and
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other matters as the Corporation may reasonably require, and accompanied by all necessary stock
transfer stamps, and within a reasonable time after the issuance or transfer of such shares, the
Corporation shall, if required by applicable law, send the holder to whom such shares have been
issued or transferred a written statement of the information required by applicable law. Unless
otherwise provided by applicable law, the Certificate of Incorporation, these Bylaws, or any
other instrument, the rights and obligations of the holders of uncertificated stock, and the rights
and obligations of the holders of certificates representing stock of the same class and series shall
be identical.
Section 2.Lost Certificates. The Corporation may issue or direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate or certificates
previously issued by the Corporation alleged to have been lost, stolen, or destroyed, upon the
making of an affidavit of that fact by the owner of the lost, stolen, or destroyed certificate. When
authorizing such issue of a new certificate or certificates or uncertificated shares, the Corporation
may, in its discretion and as a condition precedent to the issuance thereof, require the owner of
such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, to give
the Corporation a bond in such sum as it may direct, sufficient to indemnify the Corporation
against any claim that may be made against the Corporation on account of the alleged loss, theft,
or destruction of any such certificate or the issuance of such new certificate or uncertificated
shares.
Section 3.Registered Stockholders. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its records as the owner of shares of stock to receive
dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of
an owner, except as otherwise required by applicable law. The Corporation shall not be bound to
recognize any equitable or other claim to or interest in such share or shares of stock on the part of
any other person, whether or not it shall have express or other notice thereof, except as otherwise
required by applicable law.
Section 4.Fixing a Record Date for Purposes Other Than Stockholder Meetings or
Actions by Written Consent. In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend, other distribution or allotment, or any rights, or the
stockholders entitled to exercise any rights in respect of any change, conversion, or exchange of
stock, or for the purposes of any other lawful action (other than stockholder meetings and
stockholder consents which are expressly governed by Sections 12, 13, 14, and 15 of ARTICLE
II hereof), the Board may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and which record date shall be not more
than 60 days prior to such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day on which the Board
adopts the resolution relating thereto.
ARTICLE VI
GENERAL PROVISIONS
Section 1.Dividends. Subject to and in accordance with applicable law, the
Certificate of Incorporation and any certificate of designation relating to any series of preferred
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stock, dividends upon the shares of capital stock of the Corporation may be declared and paid by
the Board in accordance with applicable law. Dividends may be paid in cash, in property, or in
shares of the Corporation’s capital stock, subject to the provisions of applicable law and the
Certificate of Incorporation. Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends a reserve or reserves for any proper purpose.
The Board may modify or abolish any such reserves in the manner in which they were created.
Section 2.Checks, Notes, Drafts, Etc. All checks, notes, drafts, or other orders for the
payment of money of the Corporation shall be signed, endorsed, or accepted in the name of the
Corporation by such officer, officers, person, or persons as from time to time may be designated
by the Board, or by an officer or officers authorized by the Board to make such designation.
Section 3.Contracts. In addition to the powers otherwise granted to officers pursuant
to ARTICLE IV, the Board may authorize any officer or officers, or any agent or agents, in the
name and on behalf of the Corporation to enter into or execute and deliver any and all deeds,
bonds, mortgages, contracts, and other obligations or instruments, and such authority may be
general or confined to specific instances.
Section 4.Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution
of the Board.
Section 5.Corporate Seal. The Board may provide a corporate seal which shall be in
the form of a circle and shall have inscribed thereon the name of the Corporation and the words
“Corporate Seal, Delaware.” The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise. Notwithstanding the foregoing, no seal shall be
required by virtue of Section 5 of this ARTICLE VI.
Section 6.Voting Securities Owned By Corporation. Voting securities in any other
corporation or entity held by the Corporation shall be voted by the Chair, CEO, the President, or
the CFO, unless the Board specifically confers authority to vote with respect thereto, which
authority may be general or confined to specific instances, upon some other person or officer.
Any person authorized to vote securities shall have the power to appoint proxies, with general
power of substitution.
Section 7.Facsimile/Electronic Signatures. In addition to the provisions for use of
facsimile signatures elsewhere specifically authorized in these Bylaws, Docusign, facsimile, and
other forms of electronic signatures of any officer or director of the Corporation may be used to
the fullest extent permitted by applicable law.
Section 8.Section Headings. Section headings in these Bylaws are for convenience
of reference only and shall not be given any substantive effect in limiting or otherwise construing
any provision herein.
Section 9.Inconsistent Provisions. In the event that any provision (or part thereof) of
these Bylaws is or becomes inconsistent with any provision of the Certificate of Incorporation,
the DGCL, any other applicable law, or the Director Nomination Agreement, the provision (or
30
part thereof) of these Bylaws shall be construed to be consistent with such other provision or
provisions, and to the extent such provision may not be so construed, such provision shall be
deemed amended to incorporate such other provision so as to eliminate any such inconsistency
and as so amended shall be given full force and effect.
ARTICLE VII
INDEMNIFICATION
Section 1.Right to Indemnification and Advancement. Each person who was or is
made a party or is threatened to be made a party to or is otherwise involved (including
involvement, without limitation, as a witness) in any actual or threatened action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (a “proceeding”), by reason
of the fact that he or she is or was a director or officer of the Corporation or, while a director or
officer of the Corporation, is or was serving at the request of the Corporation as a director,
manager, officer, employee, or agent of another corporation or of a partnership, joint venture,
trust, or other enterprise, including service with respect to an employee benefit plan (an
“indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a
director or officer or in any other capacity while serving as a director or officer, shall be
indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL,
as the same exists or may hereafter be amended, against all expense, liability, and loss (including
attorneys’ fees and related disbursements, judgments, fines, excise taxes, or penalties under the
Employee Retirement Income Security Act of 1974, as amended from time to time (“ERISA”)
and any other penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith, and such indemnification shall continue as
to an indemnitee who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of the indemnitee’s heirs, executors, and administrators; provided, however, that,
except as provided in Section 2 of this ARTICLE VII with respect to proceedings to enforce
rights to indemnification and advance of expenses (as defined herein), the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by
such indemnitee only if such proceeding (or part thereof) was authorized in the specific case by
the Board of the Corporation. In addition to the right to indemnification conferred herein, an
indemnitee shall also have the right, to the fullest extent not prohibited by law, to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of its final
disposition (an “advance of expenses”); provided, however, that if and to the extent that the
DGCL requires, an advance of expenses shall be made only upon delivery to the Corporation of
an undertaking (an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from which there is no
further right to appeal (a “final adjudication”) that such indemnitee is not entitled to be
indemnified for such expenses under Section 1 of this ARTICLE VII or otherwise. The
Corporation may also, by action of its Board, provide indemnification and advancement to
employees and agents of the Corporation. Any reference to an officer of the Corporation in this
ARTICLE VII shall be deemed to refer exclusively to the Chair, CEO, President, CFO,
Secretary, and Treasurer appointed pursuant to ARTICLE IV, and to any Vice President,
Assistant Secretary, assistant treasurer, or other officer of the Corporation appointed by the
Board or the CEO pursuant to ARTICLE IV of these Bylaws, and any reference to an officer of
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any other enterprise shall be deemed to refer exclusively to an officer appointed by the Board or
equivalent governing body of such other entity pursuant to the certificate of incorporation and
bylaws or equivalent organizational documents of such other enterprise. The fact that any person
who is or was an employee of the Corporation or an employee of any other enterprise has been
given or has used the title of “Vice President” or any other title, including any title granted to
such person by the CEO pursuant to Section 11 of ARTICLE IV, that could be construed to
suggest or imply that such person is or may be an officer of the Corporation or of such other
enterprise shall not result in such person being constituted as, or being deemed to be, an officer
of the Corporation or of such other enterprise for purposes of this ARTICLE VII unless such
person’s appointment to such office was approved by the Board pursuant to ARTICLE IV.
Section 2.Procedure for Indemnification. Any claim for indemnification or advance
of expenses by an indemnitee under Section 2 of this ARTICLE VII shall be made promptly, and
in any event within 45 days (or, in the case of an advance of expenses, 20 days, provided that the
director or officer has delivered the undertaking contemplated by Section 1 of this ARTICLE VII
if required), upon the written request of the indemnitee. If the Corporation denies a written
request for indemnification or advance of expenses, in whole or in part, or if payment in full
pursuant to such request is not made within 45 days (or, in the case of an advance of expenses,
20 days, provided that the indemnitee has delivered the undertaking contemplated by Section 1
of this ARTICLE VII if required), the right to indemnification or advances as granted by this
ARTICLE VII shall be enforceable by the indemnitee in any court of competent jurisdiction.
Such person’s costs and expenses incurred in connection with successfully establishing his or her
right to indemnification, in whole or in part, in any such action shall also be indemnified by the
Corporation to the fullest extent permitted by applicable law. It shall be a defense to any such
action (other than an action brought to enforce a claim for the advance of expenses where the
undertaking required pursuant to Section 1 of this ARTICLE VII, if any, has been tendered to the
Corporation) that the claimant has not met the applicable standard of conduct which makes it
permissible under the DGCL for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proof shall be on the Corporation to the fullest extent permitted by
law. Neither the failure of the Corporation (including the Board, a committee thereof,
independent legal counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the DGCL, nor an actual
determination by the Corporation (including the Board, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 3.Insurance. The Corporation may purchase and maintain insurance on its
own behalf and on behalf of any person who is or was or has agreed to become a director,
officer, employee, or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, partner, member, trustee, administrator, employee, or agent of
another corporation, partnership, joint venture, limited liability company, trust, or other
enterprise against any expense, liability, or loss asserted against him or her and incurred by him
or her in any such capacity, or arising out of his or her status as such, whether or not the
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Corporation would have the power to indemnify such person against such expenses, liability, or
loss under the DGCL.
Section 4.Service for Subsidiaries. Any person serving as a director, officer, partner,
member, trustee, administrator, employee, or agent of another corporation, partnership, limited
liability company, joint venture, trust, or other enterprise, at least 50% of whose equity interests
are owned by the Corporation (a “subsidiary” for purposes of this ARTICLE VII) shall be
conclusively presumed to be serving in such capacity at the request of the Corporation.
Section 5.Reliance. Persons who after the date of the adoption of this provision
become or remain directors or officers of the Corporation or who, while a director or officer of
the Corporation, become or remain a director, manager, officer, employee, or agent of a
subsidiary, shall be conclusively presumed to have relied on the rights to indemnity, advance of
expenses, and other rights contained in this ARTICLE VII in entering into or continuing such
service. To the fullest extent permitted by law, the rights to indemnification and to the advance
of expenses conferred in this ARTICLE VII shall apply to claims made against an indemnitee
arising out of acts or omissions which occurred or occur both prior and subsequent to the
adoption hereof. Any amendment, alteration, or repeal of this ARTICLE VII that adversely
affects any right of an indemnitee or its successors shall be prospective only and shall not limit,
eliminate, or impair any such right with respect to any proceeding involving any occurrence or
alleged occurrence of any action or omission to act that took place prior to such amendment or
repeal.
Section 6.Non-Exclusivity of Rights; Continuation of Rights of Indemnification.
The rights to indemnification and to the advance of expenses conferred in this ARTICLE VII
shall not be exclusive of any other right which any person may have or hereafter acquire under
the Certificate of Incorporation or under any statute, bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. All rights to indemnification under this ARTICLE VII shall
be deemed to be a contract between the Corporation and each director or officer of the
Corporation who serves or served in such capacity at any time while this ARTICLE VII is in
effect. Any repeal or modification of this ARTICLE VII or repeal or modification of relevant
provisions of the DGCL or any other applicable laws shall not in any way diminish any rights to
indemnification and advancement of expenses of such director or officer or the obligations of the
Corporation arising hereunder with respect to any proceeding arising out of, or relating to, any
actions, transactions, or facts occurring prior to the final adoption of such repeal or modification.
Section 7.Merger or Consolidation. For purposes of this ARTICLE VII, references
to the “Corporation” shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify
its directors, officers, employees, or agents, so that any person who is or was a director, officer,
employee, or agent of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, shall stand in the same position under this
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ARTICLE VII with respect to the resulting or surviving corporation as he or she would have
with respect to such constituent corporation if its separate existence had continued.
Section 8.Savings Clause. To the fullest extent permitted by law, if this ARTICLE
VII or any portion hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify and advance expenses to each
person entitled to indemnification under Section 1 of this ARTICLE VII as to all expense,
liability, and loss (including attorneys’ fees and related disbursements, judgments, fines, ERISA
excise taxes and penalties, and any other penalties and amounts paid or to be paid in settlement)
actually and reasonably incurred or suffered by such person and for which indemnification and
advancement of expenses is available to such person pursuant to this ARTICLE VII to the fullest
extent permitted by any applicable portion of this ARTICLE VII that shall not have been
invalidated.
ARTICLE VIII
AMENDMENTS
These Bylaws may be amended, altered, changed, or repealed or new Bylaws adopted
only in accordance with Section 1 of ARTICLE TEN of the Certificate of Incorporation.
* * * * *
Exhibit 4.1
ACCELEVATION HOLDINGS CORP.
FORM OF REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of
, 2026 among Accelevation Holdings Corp., a Delaware corporation (the “Company”), each of
the investors listed on the signature pages hereto under the caption “Sponsor Investors” (collectively, the
“Sponsor Investors”), each Person who executes a Joinder as an “Other Investor” (collectively, the “Other
Investors”) and each of the executives who executes a Joinder as an “Executive” (collectively, the
“Executives”). Except as otherwise specified herein, all capitalized terms used in this Agreement are
defined in Exhibit A attached hereto.
In consideration of the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement hereby agree as follows:
Section 1Demand Registrations.
(a)Requests for Registration. At any time and from time to time, the Sponsor
Investors may request registration under the Securities Act of all or any portion of their Registrable
Securities on Form S-1 or any similar long-form registration statement (“Long-Form Registrations”) or on
Form S-3 or any similar short-form registration statement (“Short-Form Registrations”), if available (any
such requested registration, a “Demand Registration”). The Sponsor Investors may request that any
Demand Registration be made pursuant to Rule 415 under the Securities Act (a “Shelf Registration”) and
(if the Company is a WKSI at the time any such request is submitted to the Company or will become one
by the time of the filing of such Shelf Registration) that such Shelf Registration be an automatic shelf
registration statement (as defined in Rule 405 under the Securities Act) (an “Automatic Shelf Registration
Statement”). Each request for a Demand Registration must specify the approximate number or dollar
value of Registrable Securities requested to be registered by the requesting Holders and (if known) the
intended method of distribution. The Sponsor Investors will be entitled to request an unlimited number of
Demand Registrations. The Company will pay all Expenses (as defined and described in Section 5),
whether or not any such registration is consummated.
(b)Notice to Other Holders. Within four (4) Business Days after receipt of any such
request, the Company will give written notice of the Demand Registration to all other Holders and,
subject to the terms of Section 1(e), will include in such Demand Registration (and in all related
registrations and qualifications under state blue sky laws and in any related underwriting) all Registrable
Securities with respect to which the Company has received written requests for inclusion therein within
ten (10) days after the receipt of the Company’s notice; provided that, with the written consent of the
Sponsor Investors, the Company may, or at the written request of the Sponsor Investors, the Company
shall, instead provide notice of the Demand Registration to all other Holders within three (3) Business
Days following the non-confidential filing of the registration statement with respect to the Demand
Registration so long as such registration statement is not an Automatic Shelf Registration Statement.
(c)Form of Registrations. All Long-Form Registrations will be underwritten
registrations unless otherwise approved by the Sponsor Investors. Demand Registrations will be Short-
Form Registrations whenever the Company is permitted to use any applicable short form unless otherwise
requested by the Sponsor Investors.
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(d)Shelf Registrations.
(i)For so long as a registration statement for a Shelf Registration (a “Shelf
Registration Statement”) is and remains effective, the Sponsor Investors will have the right at any
time or from time to time to elect to sell pursuant to an offering (including an underwritten
offering) Registrable Securities available for sale pursuant to such registration statement (“Shelf
Registrable Securities”). If the Sponsor Investors desire to sell Registrable Securities pursuant to
an underwritten offering, then the Sponsor Investors may deliver to the Company a written notice
(a “Shelf Offering Notice”) specifying the number of Shelf Registrable Securities that the
Sponsor Investors desire to sell pursuant to such underwritten offering (the “Shelf Offering”). As
promptly as practicable, but in no event later than two (2) Business Days after receipt of a Shelf
Offering Notice, the Company will give written notice of such Shelf Offering Notice to all other
Holders of Shelf Registrable Securities that have been identified as selling stockholders in such
Shelf Registration Statement and are otherwise permitted to sell in such Shelf Offering, which
such notice shall request that each such Holder specify, within seven (7) days after the
Company’s receipt of the Shelf Offering Notice, the maximum number of Shelf Registrable
Securities such Holder desires to be disposed of in such Shelf Offering. The Company, subject to
Section 1(e) and Section 7, will include in such Shelf Offering all Shelf Registrable Securities
with respect to which the Company has received timely written requests for inclusion. The
Company will, as expeditiously as possible (and in any event within fourteen (14) days after the
receipt of a Shelf Offering Notice), but subject to Section 1(e), use its best efforts to consummate
such Shelf Offering.
(ii)If the Sponsor Investors desire to engage in an underwritten block trade
or bought deal pursuant to a Shelf Registration Statement (either through filing an Automatic
Shelf Registration Statement or through a take-down from an already existing Shelf Registration
Statement) (each, an “Underwritten Block Trade”), then notwithstanding the time periods set
forth in Section 1(d)(i), the Sponsor Investors may notify the Company of the Underwritten Block
Trade not less than two (2) Business Days prior to the day such offering is first anticipated to
commence. If requested by the Sponsor Investors, the Company will promptly notify other
Holders of such Underwritten Block Trade and such notified Holders (each, a “Potential
Participant”) may elect whether or not to participate no later than the next Business Day (i.e. one
(1) Business Day prior to the day such offering is to commence) (unless a longer period is agreed
to by the Sponsor Investors), and the Company will as expeditiously as possible use its best
efforts to facilitate such Underwritten Block Trade (which may close as early as two (2) Business
Days after the date it commences); provided further that, notwithstanding the provisions of
Section 1(d)(i), no Holder (other than Holders of Sponsor Investor Registrable Securities) will be
permitted to participate in an Underwritten Block Trade without the written consent of the
Sponsor Investors. Any Potential Participant’s request to participate in an Underwritten Block
Trade shall be binding on the Potential Participant.
(iii)All determinations as to whether to complete any Shelf Offering and as
to the timing, manner, price and other terms of any Shelf Offering contemplated by this Section
1(d) shall be determined by the Sponsor Investors, and the Company shall use its best efforts to
cause any Shelf Offering to occur in accordance with such determinations as promptly as
practicable.
(iv)The Company will, at the request of the Sponsor Investors, file any
prospectus supplement or any post-effective amendments and otherwise take any action necessary
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to include therein all disclosure and language deemed necessary or advisable by the Sponsor
Investors to effect such Shelf Offering.
(e)Priority on Demand Registrations and Shelf Offerings. The Company will not
include in any Demand Registration any securities that are not Registrable Securities without the prior
written consent of the Sponsor Investors. If a Demand Registration or a Shelf Offering is an underwritten
offering and the managing underwriters advise the Company in writing that in their opinion the number of
Registrable Securities and (if permitted hereunder) other securities requested to be included in such
offering exceeds the number of Registrable Securities and other securities (if any), which can be sold
therein without adversely affecting the marketability, proposed offering price, timing or method of
distribution of the offering, then the Company will include in such offering (prior to the inclusion of any
securities which are not Registrable Securities) the number of Registrable Securities requested to be
included by any Holder which, in the opinion of such underwriters, can be sold, without any such adverse
effect, pro rata among such Holders on the basis of the number of Registrable Securities owned by each
such Holder.
(f)Restrictions on Demand Registration and Shelf Offerings.
(i)The Company may postpone, for up to 60 days (or with the consent of
the Sponsor Investors, a longer period) from the date of the request (the “Suspension Period”), the
filing or the effectiveness of a registration statement for a Demand Registration or suspend the
use of a prospectus that is part of a Shelf Registration Statement (and therefore suspend sales of
the Shelf Registrable Securities) by providing written notice to the Holders if the following
conditions are met: (A) the Company determines that the offer or sale of Registrable Securities
would reasonably be expected to have a material adverse effect on any proposal or plan by the
Company or any Subsidiary to engage in any material acquisition of assets or stock (other than in
the ordinary course of business) or any material merger, consolidation, tender offer,
recapitalization, reorganization, financing or other transaction involving the Company and (B)
upon advice of counsel, the sale of Registrable Securities pursuant to the registration statement
would require disclosure of material non-public information not otherwise required to be
disclosed under applicable law, and either (x) the Company has a bona fide business purpose for
preserving the confidentiality of such transaction or (y) such transaction renders the Company
unable to comply with SEC requirements, in each case under circumstances that would make it
impractical or inadvisable to cause the registration statement (or such filings) to become effective
or to promptly amend or supplement the registration statement on a post effective basis, as
applicable. The Company may delay or suspend the effectiveness of a Demand Registration or
Shelf Registration Statement pursuant to this Section 1(f)(i) only once in any twelve (12)-month
period (for avoidance of doubt, in addition to the Company’s rights and obligations under Section
4(a)(vi)) unless additional delays or suspensions are approved by the Sponsor Investors.
(ii)In the case of an event that causes the Company to suspend the use of a
Shelf Registration Statement as set forth in Section 1(f)(i) above or pursuant to Section 4(a)(vi) (a
“Suspension Event”), the Company will give a notice to the Holders whose Registrable Securities
are registered pursuant to such Shelf Registration Statement (a “Suspension Notice”) to suspend
sales of the Registrable Securities and such notice must state generally the basis for the notice and
that such suspension will continue only for so long as the Suspension Event or its effect is
continuing. Each Holder agrees not to effect any sales of its Registrable Securities pursuant to
such Shelf Registration Statement (or such filings) at any time after it has received a Suspension
Notice from the Company and prior to receipt of an End of Suspension Notice. A Holder may
recommence effecting sales of the Registrable Securities pursuant to the Shelf Registration
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Statement (or such filings) following further written notice to such effect (an “End of Suspension
Notice”) from the Company, which End of Suspension Notice will be given by the Company to
the Holders promptly following the conclusion of any Suspension Event (and in any event during
the permitted Suspension Period).
(g)Selection of Counsel and Underwriters. The Sponsor Investors shall select each
of the legal counsel to the Company, the investment banker(s) and manager(s) to administer any
underwritten offering in connection with any Demand Registration or Shelf Offering.
(h)Other Registration Rights. Except as provided in this Agreement, the Company
will not grant to any Person(s) the right to request the Company or any Subsidiary to register any equity
securities of the Company or any Subsidiary, or any securities convertible or exchangeable into or
exercisable for such securities, without the prior written consent of the Sponsor Investors; provided that,
with the prior approval of the Sponsor Investors, the Company may grant rights to employees of the
Company and its Subsidiaries to participate in Piggyback Registrations so long as they sign a Joinder as
an “Executive” and Holder of “Executive Registrable Securities” hereunder.
(i)Revocation of Demand Notice or Shelf Offering Notice. At any time prior to the
effective date of the registration statement relating to a Demand Registration or the “pricing” of any
offering relating to a Shelf Offering Notice, the Sponsor Investors who initiated such Demand
Registration or Shelf Offering may revoke or withdraw such notice of a Demand Registration or Shelf
Offering Notice on behalf of all Holders participating in such Demand Registration or Shelf Offering
without liability to such Holders (including, for the avoidance of doubt, the other Participating Sponsor
Investors), in each case by providing written notice to the Company.
(j)Confidentiality. Each Holder agrees to treat as confidential the receipt of any
notice hereunder (including notice of a Demand Registration, a Shelf Offering Notice and a Suspension
Notice) and the information contained therein, and not to disclose or use the information contained in any
such notice (or the existence thereof) without the prior written consent of the Company until such time as
the information contained therein is or becomes available to the public generally (other than as a result of
disclosure by such Holder in breach of the terms of this Agreement).
Section 2Piggyback Registrations.
(a)Right to Piggyback. Whenever the Company proposes to register any of its
equity securities under the Securities Act (including primary and secondary registrations, and other than
pursuant to an Excluded Registration) (a “Piggyback Registration”), the Company will give prompt
written notice (and in any event within three (3) Business Days after the public filing of the registration
statement relating to the Piggyback Registration) to all Holders of its intention to effect such Piggyback
Registration and, subject to the terms of Section 2(b) and Section 2(c), will include in such Piggyback
Registration (and in all related registrations or qualifications under blue sky laws and in any related
underwriting) all Registrable Securities with respect to which the Company has received written requests
for inclusion therein within ten (10) days after delivery of the Company’s notice; provided that the
Company shall not be required to provide such notice or include any Registrable Securities in such
registration if the Sponsor Investors elect not to include any Sponsor Investor Registrable Securities in
such registration, unless the Sponsor Investors otherwise consent in writing. Any Participating Sponsor
Investor may withdraw its request for inclusion at any time prior to executing the underwriting agreement,
or if none, prior to the applicable registration statement becoming effective.
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(b)Priority on Primary Registrations. Other than the securities the Company
proposes to register on its own behalf, the Company will not include in any Piggyback Registration any
securities that are not Registrable Securities without the prior written consent of the Sponsor Investors. If
a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be sold in such offering
without adversely affecting the marketability, proposed offering price, timing or method of distribution of
the offering, the Company will include in such registration (i) first, the securities the Company proposes
to sell, (ii) second, the Registrable Securities requested to be included in such registration by any Holder
which, in the opinion of such underwriters, can be sold, without any such adverse effect, pro rata among
such Holders on the basis of the number of Registrable Securities owned by each such Holder and (iii)
third, other securities requested to be included in such registration which, in the opinion of the
underwriters, can be sold without any such adverse effect.
(c)Priority on Secondary Registrations. Other than the securities the Company
proposes to register on its own behalf, the Company will not include in any Piggyback Registration any
securities that are not Registrable Securities without the prior written consent of the Sponsor Investors. If
a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company’s
equity securities (other than pursuant to Section 1 hereof), and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without adversely affecting the
marketability, proposed offering price, timing or method of distribution of the offering, the Company will
include in such registration (i) first, the securities requested to be included therein by the Holders initially
requesting such registration which, in the opinion of the underwriters, can be sold without any such
adverse effect, (ii) second, the Registrable Securities requested to be included in such registration by any
other Holder which, in the opinion of such underwriters, can be sold, without any such adverse effect, pro
rata among such Holders on the basis of the number of Registrable Securities owned by each such Holder
and (iii) third, other securities requested to be included in such registration which, in the opinion of the
underwriters, can be sold without any such adverse effect.
(d)Right to Terminate Registration. The Company will have the right to terminate or
withdraw any registration initiated by it under this Section 2, whether or not any holder of Registrable
Securities has elected to include securities in such registration.
(e)Selection of Counsel and Underwriters. If any Piggyback Registration is an
underwritten offering, the Sponsor Investors shall select each of the legal counsel for the Company, the
investment bank(s) and manager(s) for the offering.
Section 3Stockholder Lock-Up Agreements and Company Holdback Agreement.
(a)Stockholder Lock-up Agreements. In connection with any underwritten Public
Offering, each Holder will enter into any lock-up, holdback or similar agreements requested by the
underwriter(s) managing such offering, in each case with such modifications and exceptions as may be
approved by the Sponsor Investors. Without limiting the generality of the foregoing, each Holder hereby
agrees that in connection with the initial Public Offering and in connection with any Demand
Registration, Shelf Offering or Piggyback Registration that is an underwritten Public Offering, not to (i)
offer, sell, contract to sell, pledge or otherwise dispose of (including sales pursuant to Rule 144), directly
or indirectly, any equity securities of the Company (including equity securities of the Company that may
be deemed to be beneficially owned by such Holder in accordance with the rules and regulations of the
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SEC) (collectively, “Securities”), or any securities, options or rights convertible into or exchangeable or
exercisable for Securities (collectively, “Other Securities”), (ii) enter into a transaction which would have
the same effect as described in clause (i) above, (iii) enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences or ownership of any Securities or Other
Securities, whether such transaction is to be settled by delivery of such Securities or Other Securities, in
cash or otherwise (each of (i), (ii) and (iii) above, a “Sale Transaction”), or (iv) publicly disclose the
intention to enter into any Sale Transaction, commencing on the earlier of (A) the date on which the
Company gives notice to the Holders that a preliminary prospectus for such underwritten Public Offering
has been circulated to potential investors or (B) the “pricing” of such offering, and continuing to the date
that is (x) 180 days following the date of the final prospectus for such underwritten Public Offering in the
case of the initial Public Offering or (y) 90 days following the date of the final prospectus in the case of
any other such underwritten Public Offering (each such period, or such shorter period as agreed to by the
managing underwriters, a “Holdback Period”), in each case with such modifications and exceptions as
may be approved by the Sponsor Investors. The Company may impose stop-transfer instructions with
respect to any Securities or Other Securities subject to the restrictions set forth in this Section 3(a) until
the end of such Holdback Period.
(b)Company Holdback Agreement. The Company (i) will not file any registration
statement for a Public Offering or cause any such registration statement to become effective, or effect any
public sale or distribution of its Securities or Other Securities during any Holdback Period (other than as
part of such underwritten Public Offering, or a registration on Form S-4 or Form S-8 or any successor or
similar form which is (x) then in effect or (y) shall become effective upon the conversion, exchange or
exercise of any then outstanding Other Securities) and (ii) will cause each holder of Securities and Other
Securities (including each of its directors and executive officers) to agree not to effect any Sale
Transaction during any Holdback Period, except as part of such underwritten registration (if otherwise
permitted), unless approved in writing by the Sponsor Investors and the underwriters managing the Public
Offering and to enter into any lock-up, holdback or similar agreements requested by the underwriter(s)
managing such offering, in each case with such modifications and exceptions as may be approved by the
Sponsor Investors.
Section 4Registration Procedures.
(a)Company Obligations. Whenever the Holders have requested that any
Registrable Securities be registered pursuant to this Agreement or have initiated a Shelf Offering, the
Company will use its best efforts to effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(i)prepare and file with (or submit confidentially to) the SEC a registration
statement, and all amendments and supplements thereto and related prospectuses, with respect to
such Registrable Securities and use its best efforts to cause such registration statement to become
effective, all in accordance with the Securities Act and all applicable rules and regulations
promulgated thereunder; provided, that before filing or confidentially submitting a registration
statement or prospectus or any amendments or supplements thereto, the Company will furnish to
the counsel selected by the Sponsor Investors covered by such registration statement copies of all
such documents proposed to be filed or submitted, which documents will be subject to the review
and comment of such counsel;
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(ii)notify each Holder of (A) the issuance by the SEC of any stop order
suspending the effectiveness of any registration statement or the initiation of any proceedings for
that purpose, (B) the receipt by the Company or its counsel of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each
registration statement filed hereunder;
(iii)prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective for a period ending when all of the securities covered
by such registration statement have been disposed of in accordance with the intended methods of
distribution by the sellers thereof set forth in such registration statement (but not in any event
before the expiration of any longer period required under the Securities Act or, if such registration
statement relates to an underwritten Public Offering, such longer period as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in connection with
sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(iv)furnish, without charge, to each seller of Registrable Securities
thereunder and each underwriter, if any, such number of copies of such registration statement,
each amendment and supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus) (in each case including all exhibits and documents
incorporated by reference therein), each amendment and supplement thereto, each Free Writing
Prospectus and such other documents as such seller or underwriter, if any, may reasonably
request in order to facilitate the disposition of the Registrable Securities owned by such seller (the
Company hereby consenting to the use in accordance with all applicable laws of each such
registration statement, each such amendment and supplement thereto, and each such prospectus
(or preliminary prospectus or supplement thereto) or Free Writing Prospectus by each such seller
of Registrable Securities and the underwriters, if any, in connection with the offering and sale of
the Registrable Securities covered by such registration statement or prospectus);
(v)use its best efforts to register or qualify such Registrable Securities under
such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and
do any and all other acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the Registrable Securities
owned by such seller; provided, that the Company will not be required to (A) qualify generally to
do business in any jurisdiction where it would not otherwise be required to qualify but for this
subparagraph, (B) consent to general service of process in any such jurisdiction or (C) subject
itself to taxation in any such jurisdiction;
(vi)notify in writing each seller of such Registrable Securities (A) promptly
after it receives notice thereof, of the date and time when such registration statement and each
post-effective amendment thereto has become effective or a prospectus or supplement to any
prospectus relating to a registration statement has been filed and when any registration or
qualification has become effective under a state securities or blue sky law or any exemption
thereunder has been obtained, (B) promptly after receipt thereof, of any request by the SEC for
the amendment or supplementing of such registration statement or prospectus or for additional
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information, (C) at any time when a prospectus relating thereto is required to be delivered under
the Securities Act, of the happening of any event or of any information or circumstances as a
result of which the prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements therein not
misleading, and, subject to Section 1(f), if required by applicable law or to the extent requested
by the Sponsor Investors, the Company will use its best efforts to promptly prepare and file a
supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus will not contain an untrue statement of a material
fact or omit to state any fact necessary to make the statements therein not misleading and (D) if at
any time the representations and warranties of the Company in any underwriting agreement,
securities sale agreement, or other similar agreement, relating to the offering shall cease to be true
and correct;
(vii)(A) use best efforts to cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company are then listed and, if
not so listed, to be listed on a securities exchange and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as such with respect to such
Registrable Securities with FINRA, and (B) comply (and continue to comply) with the
requirements of any self-regulatory organization applicable to the Company, including without
limitation all corporate governance requirements;
(viii)use best efforts to provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration statement;
(ix)enter into and perform such customary agreements (including, as
applicable, underwriting agreements in customary form) and take all such other actions as the
Sponsor Investors or the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities (including, without limitation, making available the
executive officers of the Company and participating in “road shows,” investor presentations,
marketing events and other selling efforts and effecting a stock or unit split or combination,
recapitalization or reorganization);
(x)make available for inspection by any seller of Registrable Securities, any
underwriter participating in any disposition or sale pursuant to such registration statement and
any attorney, accountant or other agent retained by any such seller or underwriter, all financial
and other records, pertinent corporate and business documents and properties of the Company as
will be necessary to enable them to exercise their due diligence responsibility, and cause the
Company’s officers, directors, employees, agents, representatives and independent accountants to
be available for due diligence discussions and supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such registration
statement and the disposition of such Registrable Securities pursuant thereto;
(xi)take all actions to ensure that any Free Writing Prospectus utilized in
connection with any Demand Registration or Piggyback Registration or Shelf Offering hereunder
complies in all material respects with the Securities Act, is filed in accordance with the Securities
Act to the extent required thereby, is retained in accordance with the Securities Act to the extent
required thereby and, when taken together with the related prospectus, prospectus supplement and
related documents, will not contain any untrue statement of a material fact or omit to state a
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material fact necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading;
(xii)otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve (12) months beginning
with the first day of the Company’s first full calendar quarter after the effective date of the
registration statement, which earnings statement will satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(xiii)permit any Holder which, in its sole and exclusive judgment, might be
deemed to be an underwriter or a controlling person of the Company, to participate in the
preparation of such registration or comparable statement and to allow such Holder to provide
language for insertion therein, in form and substance satisfactory to the Company, which in the
reasonable judgment of such Holder and its counsel should be included;
(xiv)use best efforts to (A) make Short-Form Registrations available for the
sale of Registrable Securities and (B) prevent the issuance of any stop order suspending the
effectiveness of a registration statement, or the issuance of any order suspending or preventing
the use of any related prospectus or suspending the qualification of any Common Equity included
in such registration statement for sale in any jurisdiction, and in the event any such order is
issued, use best efforts to obtain promptly the withdrawal of such order;
(xv)use its reasonable best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers thereof to
consummate the disposition of such Registrable Securities;
(xvi)cooperate with the Holders covered by the registration statement and the
managing underwriter or agent, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing securities to be sold under the
registration statement, or the removal of any restrictive legends associated with any account at
which such securities are held, and enable such securities to be in such denominations and
registered in such names as the managing underwriter, or agent, if any, or such Holders may
request;
(xvii)if requested by any managing underwriter, include in any prospectus or
prospectus supplement updated financial or business information for the Company’s most recent
period or current quarterly period (including estimated results or ranges of results) if required for
purposes of marketing the offering in the view of the managing underwriter;
(xviii)take no direct or indirect action prohibited by Regulation M under the
Exchange Act; provided, however, that to the extent that any prohibition is applicable to the
Company, the Company will take such action as is necessary to make any such prohibition
inapplicable;
(xix)(A) cooperate with each Holder covered by the registration statement and
each underwriter or agent participating in the disposition of such Registrable Securities and their
respective counsel in connection with the preparation and filing of applications, notices,
registrations and responses to requests for additional information with FINRA, the New York
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Stock Exchange, Nasdaq or any other national securities exchange on which the shares of
Common Equity are or are to be listed, and (B) to the extent required by the rules and regulations
of FINRA, retain a Qualified Independent Underwriter acceptable to the managing underwriter;
(xx)in the case of any underwritten offering, use its best efforts to obtain, and
deliver to the underwriter(s), in the manner and to the extent provided for in the applicable
underwriting agreement, one or more cold comfort letters from the Company’s independent
public accountants in customary form and covering such matters of the type customarily covered
by cold comfort letters;
(xxi)use its best efforts to provide (A) a legal opinion of the Company’s
outside counsel, dated the effective date of such registration statement addressed to the Company,
(B) on the date that such Registrable Securities are delivered to the underwriters for sale in
connection with a Demand Registration or Shelf Offering, if such securities are being sold
through underwriters, or, if such securities are not being sold through underwriters, on the closing
date of the applicable sale, (1) one or more legal opinions of the Company’s outside counsel,
dated such date, in form and substance as customarily given to underwriters in an underwritten
public offering or, in the case of a non-underwritten offering, to the broker, placement agent or
other agent of the Holders assisting in the sale of the Registrable Securities, (2) one or more
“negative assurances letters” of the Company’s outside counsel, dated such date, in form and
substance as is customarily given to underwriters in an underwritten public offering or, in the case
of a non-underwritten offering, to the broker, placement agent or other agent of the Holders
assisting in the sale of the Registrable Securities, in each case, addressed to the underwriters, if
any, or, if requested, in the case of a non-underwritten offering, to the broker, placement agent or
other agent of the Holders assisting in the sale of the Registrable Securities and (3) customary
certificates executed by authorized officers of the Company as may be requested by any Holder
or any underwriter of such Registrable Securities;
(xxii)if the Company files an Automatic Shelf Registration Statement covering
any Registrable Securities, use its best efforts to remain a WKSI (and not become an ineligible
issuer (as defined in Rule 405 under the Securities Act)) during the period during which such
Automatic Shelf Registration Statement is required to remain effective;
(xxiii)if the Company does not pay the filing fee covering the Registrable
Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such
time or times as the Registrable Securities are to be sold;
(xxiv)if the Automatic Shelf Registration Statement has been outstanding for at
least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration
Statement covering the Registrable Securities, and, if at any time when the Company is required
to re-evaluate its WKSI status the Company determines that it is not a WKSI, use its best efforts
to refile the Shelf Registration Statement on Form S-3 and, if such form is not available, Form
S-1 and keep such registration statement effective during the period during which such
registration statement is required to be kept effective; and
(xxv)if requested by any Participating Sponsor Investor, cooperate with such
Participating Sponsor Investor and with the managing underwriter or agent, if any, on reasonable
notice to facilitate any Charitable Gifting Event and to prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus used in
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connection therewith as may be necessary to permit any such recipient Charitable Organization to
sell in the underwritten offering if it so elects.
(b)Officer Obligations. Each Holder that is an officer of the Company agrees that if
and for so long as he or she is employed by the Company or any Subsidiary thereof, he or she will
participate fully in the sale process in a manner customary for persons in like positions and consistent
with his or her other duties with the Company, including the preparation of the registration statement and
the preparation and presentation of any road shows.
(c)Automatic Shelf Registration Statements. If the Company files any Automatic
Shelf Registration Statement for the benefit of the holders of any of its securities other than the Holders,
and the Sponsor Investors do not request that their Registrable Securities be included in such Shelf
Registration Statement, the Company agrees that, at the request of the Sponsor Investors, it will include in
such Automatic Shelf Registration Statement such disclosures as may be required by Rule 430B in order
to ensure that the Sponsor Investors may be added to such Shelf Registration Statement at a later time
through the filing of a prospectus supplement rather than a post-effective amendment. If the Company
has filed any Automatic Shelf Registration Statement for the benefit of the holders of any of its securities
other than the Holders, the Company shall, at the request of the Sponsor Investors, file any post-effective
amendments necessary to include therein all disclosure and language necessary to ensure that the holders
of Registrable Securities may be added to such Shelf Registration Statement.
(d)Additional Information. The Company may require each seller of Registrable
Securities as to which any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as the Company may from time to time
reasonably request in writing, as a condition to such seller’s participation in such registration.
(e)In-Kind Distributions. If any Sponsor Investor (and/or any of their Affiliates)
seeks to effectuate an in-kind distribution of all or part of their Registrable Securities to their respective
direct or indirect equityholders, the Company will, subject to any applicable lock-ups, reasonably
cooperate with and assist such stockholder, such equityholders and the Company’s transfer agent to
facilitate such in-kind distribution in the manner reasonably requested by such stockholder (including the
delivery of instruction letters by the Company or its counsel to the Company’s transfer agent, the delivery
of customary legal opinions by counsel to the Company and the delivery of Company Equity without
restrictive legends, to the extent no longer applicable).
(f)Suspended Distributions. Each Person participating in a registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any event of the kind
described in Section 4(a)(vi), such Person will immediately discontinue the disposition of its Registrable
Securities pursuant to the registration statement until such Person’s receipt of the copies of a
supplemented or amended prospectus as contemplated by Section 4(a)(vi), subject to the Company’s
compliance with its obligations under Section 4(a)(vi).
(g)Registrable Securities Transactions. If requested by any Holder in connection
with any transaction involving any Registrable Securities (including any sale or other transfer of such
securities without registration under the Securities Act, any margin loan with respect to such securities
and any pledge of such securities), the Company agrees to provide such Holder with customary and
reasonable assistance to facilitate such transaction, including, without limitation, (i) such action as such
Holder may reasonably request from time to time to enable such Holder to sell Registrable Securities
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without registration under the Securities Act and (ii) entering into an “issuer’s agreement” in connection
with any margin loan with respect to such securities in customary form.
(h)Indemnity in Lieu of Medallion Guarantee. The Company shall, at the request of
any Sponsor Investor, enter into an indemnification agreement in customary form, in favor of the
Company’s transfer agent (or any successor transfer agent) in lieu of any requirement of any Sponsor
Investor or any of their respective Affiliates to provide a medallion guarantee in connection with any sale,
transfer or other disposition of any Registrable Securities by such Sponsor Investor or Affiliates.
(i)Other. To the extent that any of the Participating Sponsor Investors is or may be
deemed to be an “underwriter” of Registrable Securities pursuant to any SEC comments or policies, the
Company agrees that (i) the indemnification and contribution provisions contained in Section 6 shall be
applicable to the benefit of such Participating Sponsor Investor in their role as an underwriter or deemed
underwriter in addition to their capacity as a Holder and (ii) such Participating Sponsor Investor shall be
entitled to conduct the due diligence which they would normally conduct in connection with an offering
of securities registered under the Securities Act, including without limitation receipt of customary
opinions and comfort letters addressed to such Participating Sponsor Investor.
Section 5Expenses.
Except as expressly provided herein, all out-of-pocket expenses incurred by the Company
or any Sponsor Investor in connection with the performance of or compliance with this Agreement and/or
in connection with any sale, transfers, distributions or other disposition of Registrable Securities by any
Sponsor Investor, including pursuant to a Demand Registration, Piggyback Registration or Shelf Offering,
whether or not the same shall become effective, shall be paid by the Company, including, without
limitation: (i) all registration and filing fees, and any other fees and expenses associated with filings
required to be made with the SEC or FINRA, (ii) all fees and expenses in connection with compliance
with any securities or “blue sky” laws, (iii) all expenses associated with filings required to be made with
the SEC by any Sponsor Investors reporting a change in beneficial ownership, (iv) all printing,
duplicating, word processing, messenger, telephone, facsimile and delivery expenses (including expenses
of printing certificates for the Registrable Securities in a form eligible for deposit with The Depository
Trust Company or other depositary and of printing prospectuses and Company Free Writing
Prospectuses), (v) all fees and disbursements of counsel for the Company and of all independent certified
public accountants of the Company (including the expenses of any special audit and cold comfort letters
required by or incident to such performance), (vi) Securities Act liability insurance or similar insurance if
the Company so desires or the underwriters so require in accordance with then-customary underwriting
practice, (vii) all fees and expenses incurred in connection with the listing of the Registrable Securities on
any securities exchange on which similar securities of the Company are then listed (or on which exchange
the Registrable Securities are proposed to be listed in the case of the initial Public Offering), (viii) all
applicable rating agency fees with respect to the Registrable Securities, (ix) all fees and disbursements of
legal counsel for the Company, (x) all reasonable fees and disbursements of one legal counsel for selling
Holders selected by the Sponsor Investors (which may be the same counsel as selected for the Company)
together with any necessary local counsel as may be required by the Sponsor Investors, (xi) any fees and
disbursements of underwriters customarily paid by issuers or sellers of securities, (xii) all fees and
expenses of any special experts or other Persons retained by the Company or the Sponsor Investors in
connection with any Registration, (xiii) all of the Company’s internal expenses (including all salaries and
expenses of its officers and employees performing legal or accounting duties) and (xiv) all expenses
related to the “road-show” for any underwritten offering, including all travel, meals and lodging. All such
expenses are referred to herein as “Expenses.” The Company shall not be required to pay, and each
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Person that sells securities pursuant to a Demand Registration, Shelf Offering or Piggyback Registration
hereunder will bear and pay, all underwriting discounts and commissions applicable to the Registrable
Securities sold for such Person’s account and all transfer taxes (if any) attributable to the sale of
Registrable Securities.
Section 6Indemnification and Contribution.
(a)By the Company. The Company will indemnify and hold harmless, to the fullest
extent permitted by law and without limitation as to time, each Holder, such Holder’s officers, directors
employees, agents, fiduciaries, stockholders, managers, partners, members, Affiliates, direct and indirect
equityholders, consultants and representatives, and any successors and assigns thereof, and each Person
who controls such holder (within the meaning of the Securities Act) (the “Indemnified Parties”) against
all losses, claims, actions, damages, liabilities and expenses (including with respect to actions or
proceedings, whether commenced or threatened, and including reasonable attorney fees and expenses)
(collectively, “Losses”) caused by, resulting from, arising out of, based upon or related to any of the
following (each, a “Violation”) by the Company: (i) any untrue or alleged untrue statement of material
fact contained in (A) any registration statement, prospectus, preliminary prospectus or Free Writing
Prospectus, or any amendment thereof or supplement thereto or (B) any application or other document or
communication (in this Section 6, collectively called an “application”) executed by or on behalf of the
Company or based upon written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify any securities covered by such registration under the “blue sky” or
securities laws thereof, (ii) any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any Violation or alleged
Violation by the Company of the Securities Act or any other similar federal or state securities laws or any
rule or regulation promulgated thereunder applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, qualification or compliance. In
addition, the Company will reimburse such Indemnified Party for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any such Losses.
Notwithstanding the foregoing, the Company will not be liable in any such case to the extent that any
such Losses result from, arise out of, are based upon, or relate to an untrue statement, or omission, made
in such registration statement, any such prospectus, preliminary prospectus or Free Writing Prospectus or
any amendment or supplement thereto, or in any application, in reliance upon, and in conformity with,
written information prepared and furnished in writing to the Company by such Indemnified Party
expressly for use therein or by such Indemnified Party’s failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the Company has furnished such
Indemnified Party with a sufficient number of copies of the same. In connection with an underwritten
offering, the Company will indemnify such underwriters, their officers and directors, and each Person
who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided
above with respect to the indemnification of the Indemnified Parties or as otherwise agreed to in the
underwriting agreement executed in connection with such underwritten offering. Such indemnity and
reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or
on behalf of such Indemnified Party and shall survive the transfer of such securities by such seller.
(b)By Holders. In connection with any registration statement in which a Holder is
participating, each such Holder will furnish to the Company in writing such information and affidavits as
the Company reasonably requests for use in connection with any such registration statement or prospectus
and, to the extent permitted by law, will indemnify the Company, its officers, directors, employees, agents
and representatives, and each Person who controls the Company (within the meaning of the Securities
Act) against any Losses resulting from (as determined by a final and appealable judgment, order or decree
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of a court of competent jurisdiction) any untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any
omission of a material fact required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is contained in any information
or affidavit so furnished in writing by such Holder expressly for use therein; provided that the obligation
to indemnify will be individual, not joint and several, for each Holder and will be limited to the net
amount of proceeds received by such Holder from the sale of Registrable Securities pursuant to such
registration statement.
(c)Claim Procedure. Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give prompt notice will impair any Person’s right to
indemnification hereunder only to the extent such failure has prejudiced the indemnifying party) and (ii)
unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified
and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any liability for any settlement made by the
indemnified party without its consent (but such consent will not be unreasonably withheld, conditioned or
delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by
such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified party and any other of such indemnified
parties with respect to such claim. In such instance, the conflicted indemnified parties will have a right to
retain one separate counsel, chosen by the majority of the conflicted indemnified parties involved in the
indemnification and approved by the Sponsor Investors, at the expense of the indemnifying party.
(d)Contribution. If the indemnification provided for in this Section 6 is held by a
court of competent jurisdiction to be unavailable to, or is insufficient to hold harmless, an indemnified
party or is otherwise unenforceable with respect to any Losses referred to herein, then such indemnifying
party will contribute to the amounts paid or payable by such indemnified party as a result of such Losses,
(i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other hand in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations or (ii) if the allocation
provided by clause (i) of this Section 6(d) is not permitted by applicable law, then in such proportion as is
appropriate to reflect not only such relative fault but also the relative benefit of the Company on the one
hand and of the sellers of Registrable Securities and any other sellers participating in the registration
statement on the other in connection with the statement or omissions which resulted in such Losses, as
well as any other relevant equitable considerations; provided that the maximum amount of liability in
respect of such contribution will be limited, in the case of each seller of Registrable Securities, to an
amount equal to the net proceeds actually received by such seller from the sale of Registrable Securities
effected pursuant to such registration. The relative fault of the indemnifying party and of the indemnified
party will be determined by reference to, among other things, whether the untrue (or, as applicable
alleged) untrue statement of a material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just or equitable if the contribution pursuant to this Section 6(d)
were to be determined by pro rata allocation or by any other method of allocation that does not take into
account such equitable considerations. The amount paid or payable by an indemnified party as a result of
the Losses referred to herein will be deemed to include any legal or other expenses reasonably incurred by
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such indemnified party in connection with investigating or defending against any action or claim which is
the subject hereof. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) will be entitled to contribution from any Person who is not guilty of such fraudulent
misrepresentation.
(e)Release. No indemnifying party will, except with the consent of the indemnified
party, consent to the entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation.
(f)Non-exclusive Remedy; Survival. The indemnification and contribution
provided for under this Agreement will be in addition to any other rights to indemnification or
contribution that any indemnified party may have pursuant to law or contract (and the Company and its
Subsidiaries shall be considered the indemnitors of first resort in all such circumstances to which this
Section 6 applies) and will remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person of such indemnified party
and will survive the transfer of Registrable Securities and the termination or expiration of this Agreement.
Section 7Cooperation with Underwritten Offerings. No Person may participate in
any underwritten registration hereunder unless such Person (i) agrees to sell such Person’s securities on
the basis provided in any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements (including, without limitation, pursuant to the terms of any over-
allotment or “green shoe” option requested by the underwriters; provided that no Holder will be required
to sell more than the number of Registrable Securities such Holder has requested to include in such
registration) and (ii) completes, executes and delivers all questionnaires, powers of attorney, stock
powers, custody agreements, indemnities, underwriting agreements and other documents and agreements
required under the terms of such underwriting arrangements or as may be reasonably requested by the
Company and the lead managing underwriter(s). To the extent that any such agreement is entered into
pursuant to, and consistent with, Section 3, Section 4 and/or this Section 7, the respective rights and
obligations created under such agreement will supersede the respective rights and obligations of the
Holders, the Company and the underwriters created thereby with respect to such registration.
Section 8Joinder. The Company may from time to time (with the prior written
consent of the Sponsor Investors) permit any Person who acquires Common Equity (or rights to acquire
Common Equity) to become a party to this Agreement and to be entitled to and be bound by all of the
rights and obligations as a Holder by obtaining an executed joinder to this Agreement from such Person in
the form of Exhibit B attached hereto (a “Joinder”). Upon the execution and delivery of a Joinder by such
Person, the Common Equity held by such Person shall become the category of Registrable Securities (i.e.,
Sponsor Investor Registrable Securities, Other Investor Registrable Securities or Executive Registrable
Securities), and such Person shall be deemed the category of Holder (i.e., Sponsor Investor, Other
Investor or Executive), in each case as set forth on the signature page to such Joinder.
Section 9General Provisions.
(a)Amendments and Waivers. Except as otherwise provided herein, the provisions
of this Agreement may be amended, modified or waived only with the prior written consent of the
Company and the Sponsor Investors who are then Holders; provided that no such amendment,
modification or waiver that would treat a specific Holder or group of Holders of Registrable Securities
(i.e., Sponsor Investors, Other Investors or Executives) in a manner materially and adversely different
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than any other Holder or group of Holders will be effective against such Holder or group of Holders
without the consent of the holders of a majority of the Registrable Securities that are held by the group of
Holders that is materially and adversely affected thereby. The failure or delay of any Person to enforce
any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and
will not affect the right of such Person thereafter to enforce each and every provision of this Agreement in
accordance with its terms. A waiver or consent to or of any breach or default by any Person in the
performance by that Person of his, her or its obligations under this Agreement will not be deemed to be a
consent or waiver to or of any other breach or default in the performance by that Person of the same or
any other obligations of that Person under this Agreement.
(b)Remedies. The parties to this Agreement will be entitled to enforce their rights
under this Agreement specifically (without posting a bond or other security), to recover damages caused
by reason of any breach of any provision of this Agreement and to exercise all other rights existing in
their favor. The parties hereto agree and acknowledge that a breach of this Agreement would cause
irreparable harm and money damages would not be an adequate remedy for any such breach and that, in
addition to any other rights and remedies existing hereunder, any party will be entitled to specific
performance and/or other injunctive relief from any court of law or equity of competent jurisdiction
(without posting any bond or other security) in order to enforce or prevent violation of the provisions of
this Agreement.
(c)Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited, invalid, illegal or unenforceable in any respect under any applicable
law or regulation in any jurisdiction, such prohibition, invalidity, illegality or unenforceability will not
affect the validity, legality or enforceability of any other provision of this Agreement in such jurisdiction
or in any other jurisdiction, but this Agreement will be reformed, construed and enforced in such
jurisdiction as if such prohibited, invalid, illegal or unenforceable provision had never been contained
herein.
(d)Entire Agreement. Except as otherwise provided herein, this Agreement contains
the complete agreement and understanding among the parties hereto with respect to the subject matter
hereof and supersedes and preempts any prior understandings, agreements or representations by or among
the parties hereto, written or oral, which may have related to the subject matter hereof in any way.
(e)Successors and Assigns. Except as otherwise provided herein, this Agreement
will bind and inure to the benefit and be enforceable by the Company and its successors and permitted
assigns. Each of the Sponsor Investors may assign its rights hereunder to its Affiliates; provided, that such
purchaser or transferee shall, as a condition to the effectiveness of such assignment, be required to cause
such prospective transferee to execute and deliver to the Company a Joinder. Except as otherwise
provided herein, the rights under this Agreement are personal to the Holders and are not assignable
without the prior written consent of each of the Company and the Sponsor Investors.
(f)Notices. Any notice, demand or other communication to be given under or by
reason of the provisions of this Agreement will be in writing and will be deemed to have been given
(i) when delivered personally to the recipient, (ii) when sent by confirmed electronic mail if sent during
normal business hours of the recipient; but if not, then on the next Business Day, (iii) one Business Day
after it is sent to the recipient by reputable overnight courier service (charges prepaid) or (iv) three
Business Days after it is mailed to the recipient by first class mail, return receipt requested. Such notices,
demands and other communications will be sent to the Company at the address specified on the signature
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page hereto or any Joinder and to any holder, or at such address or to the attention of such other Person as
the recipient party has specified by prior written notice to the sending party. Any party may change such
party’s address for receipt of notice by giving prior written notice of the change to the sending party as
provided herein. The Company’s address is:
Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attn: Michael Rubiera
Email: ****
With a copy to:
Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, Illinois 60654
Attn: Robert M. Hayward, P.C.
Robert E. Goedert, P.C.
Email: ****
****
or to such other address or to the attention of such other person as the recipient party has specified by
prior written notice to the sending party.
(g)Business Days. If any time period for giving notice or taking action hereunder
expires on a day that is not a Business Day, the time period will automatically be extended to the Business
Day immediately following such Saturday, Sunday or legal holiday.
(h)Governing Law. The corporate law of the State of Delaware will govern all
issues and questions concerning the relative rights of the Company and its equityholders. All issues and
questions concerning the construction, validity, interpretation and enforcement of this Agreement and the
exhibits and schedules hereto will be governed by, and construed in accordance with, the laws of the State
of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of
the State of Delaware or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
(i)MUTUAL WAIVER OF JURY TRIAL. AS A SPECIFICALLY BARGAINED
FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS
AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL), EACH
PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR
PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE
MATTERS CONTEMPLATED HEREBY.
(j)CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH OF
THE PARTIES IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, FOR THE PURPOSES
OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY
RELATED AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY.
EACH OF THE PARTIES HERETO FURTHER AGREES THAT SERVICE OF ANY PROCESS,
SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO SUCH PARTY’S
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RESPECTIVE ADDRESS SET FORTH ABOVE WILL BE EFFECTIVE SERVICE OF PROCESS FOR
ANY ACTION, SUIT OR PROCEEDING WITH RESPECT TO ANY MATTERS TO WHICH IT HAS
SUBMITTED TO JURISDICTION IN THIS PARAGRAPH. EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF
VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY
RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AND
HEREBY AND THEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(k)No Recourse. Notwithstanding anything to the contrary in this Agreement, the
Company and each Holder agrees and acknowledges that no recourse under this Agreement or any
documents or instruments delivered in connection with this Agreement, will be had against any current or
future director, officer, employee, general or limited partner or member of any Holder or any Affiliate or
assignee thereof, whether by the enforcement of any assessment or by any legal or equitable proceeding,
or by virtue of any statute, regulation or other applicable law, it being expressly agreed and acknowledged
that no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by any current
or future officer, agent or employee of any Holder or any current or future member of any Holder or any
current or future director, officer, employee, partner or member of any Holder or of any Affiliate or
assignee thereof, as such for any obligation of any Holder under this Agreement or any documents or
instruments delivered in connection with this Agreement for any claim based on, in respect of or by
reason of such obligations or their creation.
(l)Descriptive Headings; Interpretation. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this Agreement. The use of
the word “including” in this Agreement will be by way of example rather than by limitation.
(m)No Strict Construction. The language used in this Agreement will be deemed to
be the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction will be applied against any party.
(n)Counterparts. This Agreement may be executed in multiple counterparts, any
one of which need not contain the signature of more than one party, but all such counterparts taken
together will constitute one and the same agreement.
(o)Electronic Delivery. This Agreement, the agreements referred to herein, and
each other agreement or instrument entered into in connection herewith or therewith or contemplated
hereby or thereby, and any amendments hereto or thereto, to the extent executed and delivered by means
of a photographic, photostatic, facsimile or similar reproduction of such signed writing using a facsimile
machine or electronic mail will be treated in all manner and respects as an original agreement or
instrument and will be considered to have the same binding legal effect as if it were the original signed
version thereof delivered in person. At the request of any party hereto or to any such agreement or
instrument, each other party hereto or thereto will re-execute original forms thereof and deliver them to all
other parties. No party hereto or to any such agreement or instrument will raise the use of a facsimile
machine or electronic mail to deliver a signature or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine or electronic mail as a defense
to the formation or enforceability of a contract and each such party forever waives any such defense.
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(p)Further Assurances. In connection with this Agreement and the transactions
contemplated hereby, each Holder agrees to execute and deliver any additional documents and
instruments and perform any additional acts that may be necessary or appropriate to effectuate and
perform the provisions of this Agreement and the transactions contemplated hereby.
(q) Dividends, Recapitalizations, etc. If at any time or from time to time there is any
change in the capital structure of the Company by way of a stock split, stock dividend, combination or
reclassification, or through a merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustment will be made in the provisions hereof so that the rights and privileges
granted hereby will continue.
(r)No Third-Party Beneficiaries. No term or provision of this Agreement is intended
to be, or shall be, for the benefit of any Person not a party hereto, and no such other Person shall have any
right or cause of action hereunder, except as otherwise expressly provided herein.
(s)Current Public Information. At all times after the Company has filed a
registration statement with the SEC pursuant to the requirements of either the Securities Act or the
Exchange Act, the Company will file all reports required to be filed by it under the Securities Act and the
Exchange Act and will take such further action as the Sponsor Investors may reasonably request, all to the
extent required to enable such Holders to sell Registrable Securities pursuant to Rule 144.
* * * * *
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as of the date first written above.
ACCELEVATION HOLDINGS CORP. | |
By: | |
Name: | |
Its: | |
SPONSOR INVESTORS: | |
ACCELEVATION PUBCO HOLDINGS LP | |
By: | |
Name: | |
Its: | |
ACCELEVATION INVESTMENT HOLDINGS LLC | |
By: | |
Name: | |
Its: | |
A-1
EXHIBIT A
DEFINITIONS
Capitalized terms used in this Agreement have the meanings set forth below.
“Affiliate” of any Person means any other Person controlled by, controlling or under
common control with such Person and, in the case of an individual, also includes any member of such
individual’s Family Group; provided, that the Company and its Subsidiaries will not be deemed to be
Affiliates of any holder of Registrable Securities. As used in this definition, “control” (including, with its
correlative meanings, “controlling,” “controlled by” and “under common control with”) will mean
possession, directly or indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of securities, by contract or otherwise).
“Agreement” has the meaning set forth in the preamble.
“Automatic Shelf Registration Statement” has the meaning set forth in Section 1(a).
“Business Day” means a day that is not a Saturday or Sunday or a day on which banks in
New York City are authorized or requested by law to close.
“Charitable Gifting Event” means any transfer by a Sponsor Investor, or any subsequent
transfer by such Holder’s members, partners or other employees, in connection with a bona fide gift to
any Charitable Organization on the date of, but prior to, the execution of the underwriting agreement
entered into in connection with any underwritten offering.
“Charitable Organization” means a charitable organization as described by Section
501(c)(3) of the Internal Revenue Code of 1986, as in effect from time to time.
“Common Equity” means (i) the Company’s Class A common stock, par value $0.0001
per share and (ii) shares of the Company’s Class A common stock issuable upon conversion or in
exchange for LLC Units of Accelevation Holdings LLC. In the event of a Corporate Conversion,
Common Equity will thereafter mean the common stock issued upon conversion or in exchange for the
Company’s Common Equity.
“Company” has the meaning set forth in the preamble and shall include its successor(s).
“Demand Registration” has the meaning set forth in Section 1(a).
“End of Suspension Notice” has the meaning set forth in Section 1(f)(ii).
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, or any successor federal law then in force, together with all rules and regulations promulgated
thereunder.
“Excluded Registration” means any registration (i) pursuant to a Demand Registration
(which is addressed in Section 1(a)), or (ii) in connection with registrations on Form S-4 or S-8
promulgated by the SEC or any successor or similar forms.
“Executives” has the meaning set forth in the recitals.
A-2
“Executive Registrable Securities” means any Common Equity held by the management
employees of the Company who are listed as “Executives” on the signature page hereto or to a Joinder.
“Expenses” has the meaning set forth in Section 5.
“Family Group” means with respect to any individual, such individual’s current or former
spouse, their respective parents, descendants of such parents (whether natural or adopted) and the spouses
of such descendants, any trust, limited partnership, corporation or limited liability company established
solely for the benefit of such individual or such individual’s current or former spouse, their respective
parents, descendants of such parents (whether natural or adopted) or the spouses of such descendants.
“FINRA” means the Financial Industry Regulatory Authority.
“Free Writing Prospectus” means a free writing prospectus, as defined in Rule 405.
“Holdback Period” has the meaning set forth in Section 3(a).
“Holder” means a holder of Registrable Securities who is a party to this Agreement
(including by way of Joinder).
“Indemnified Parties” has the meaning set forth in Section 6(a).
“Joinder” has the meaning set forth in Section 8.
“Long-Form Registrations” has the meaning set forth in Section 1(a).
“Losses” has the meaning set forth in Section 6(a).
“Other Investors” has the meaning set forth in the preamble.
“Other Investor Registrable Securities” means (i) any Common Equity held (directly or
indirectly) by any Other Investors or any of their Affiliates, and (ii) any equity securities of the Company
or any Subsidiary issued or issuable with respect to the securities referred to in clause (i) above by way of
dividend, distribution, split or combination of securities, or any recapitalization, merger, consolidation or
other reorganization.
“Participating Sponsor Investors” means any Sponsor Investor(s) participating in the
request for a Demand Registration, Shelf Offering, Piggyback Registration or Underwritten Block Trade.
“Person” means an individual, a partnership, a corporation, a limited liability company,
an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
“Piggyback Registration” has the meaning set forth in Section 2(a).
“Public Offering” means any sale or distribution by the Company, one of its Subsidiaries
and/or Holders to the public of Common Equity or other securities convertible into or exchangeable for
Common Equity pursuant to an offering registered under the Securities Act.
A-3
“Qualified Independent Underwriter” has the meaning set forth by FINRA in Section
5121(f)(12), or any successor provision thereto.
“Registrable Securities” means Sponsor Investor Registrable Securities, Other Investor
Registrable Securities and Executive Registrable Securities. As to any particular Registrable Securities,
such securities will cease to be Registrable Securities when they have been (a) sold or distributed pursuant
to a Public Offering, (b) sold in compliance with Rule 144 following the consummation of the initial
Public Offering, (c) distributed to the direct or indirect partners or members of a Sponsor Investor or (d)
repurchased by the Company or a Subsidiary of the Company. For purposes of this Agreement, a Person
will be deemed to be a holder of Registrable Securities, and the Registrable Securities will be deemed to
be in existence, whenever such Person has the right to acquire, directly or indirectly, such Registrable
Securities (upon conversion or exercise in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right), whether or not such
acquisition has actually been effected, and such Person will be entitled to exercise the rights of a holder of
Registrable Securities hereunder (it being understood that a holder of Registrable Securities may only
request that Registrable Securities in the form of Common Equity be registered pursuant to this
Agreement). Notwithstanding the foregoing, following the consummation of an initial Public Offering,
any Registrable Securities held by any Person (other than any Sponsor Investor or its Affiliates) that may
be sold under Rule 144(b)(1)(i) without limitation under any of the other requirements of Rule 144 will be
deemed not to be Registrable Securities.
“Rule 144”, “Rule 158”, “Rule 405”, “Rule 415”, “Rule 430B” and “Rule 462” mean, in
each case, such rule promulgated under the Securities Act (or any successor provision) by the SEC, as the
same will be amended from time to time, or any successor rule then in force.
“Sale of the Company” means any transaction or series of transactions pursuant to which
any Person(s) or a group of related Persons (other than any Sponsor Investor and/or its Affiliates) in the
aggregate acquires: (i) Common Equity of the Company entitled to vote (other than voting rights
accruing only in the event of a default, breach, event of noncompliance or other contingency) to elect
directors with a majority of the voting power of the Company’s board of directors (whether by merger,
consolidation, reorganization, combination, sale or transfer of the Company’s Common Equity) or (ii) all
or substantially all of the Company’s and its Subsidiaries’ assets determined on a consolidated basis;
provided that a Public Offering will not constitute a Sale of the Company.
“Sale Transaction” has the meaning set forth in Section 3(a).
“SEC” means the United States Securities and Exchange Commission.
“Securities” has the meaning set forth in Section 3(a).
“Securities Act” means the Securities Act of 1933, as amended from time to time, or any
successor federal law then in force, together with all rules and regulations promulgated thereunder.
“Shelf Offering” has the meaning set forth in Section 1(d)(i).
“Shelf Offering Notice” has the meaning set forth in Section 1(d)(i).
“Shelf Registration” has the meaning set forth in Section 1(a).
“Shelf Registrable Securities” has the meaning set forth in Section 1(d)(i).
A-4
“Shelf Registration Statement” has the meaning set forth in Section 1(d).
“Short-Form Registrations” has the meaning set forth in Section 1(a).
“Sponsor Investors” has the meaning set forth in the recitals; provided that any decision
to be made under this Agreement by the Sponsor Investors shall be made by the holders of a majority of
all Sponsor Investor Registrable Securities
“Sponsor Investor Registrable Securities” means (i) any Common Equity held (directly or
indirectly) by any Sponsor Investor or any of its Affiliates, and (ii) any equity securities of the Company
or any Subsidiary issued or issuable with respect to the securities referred to in clause (i) above by way of
dividend, distribution, split or combination of securities, or any recapitalization, merger, consolidation or
other reorganization.
“Subsidiary” means, with respect to the Company, any corporation, limited liability
company, partnership, association or other business entity of which (i) if a corporation, a majority of the
total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly
or indirectly, by the Company or one or more of the other Subsidiaries of the Company or a combination
thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority
of the limited liability company, partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by the Company or one or more Subsidiaries of the Company
or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a majority
ownership interest in a limited liability company, partnership, association or other business entity if such
Person or Persons will be allocated a majority of limited liability company, partnership, association or
other business entity gains or losses or will be or control the managing director or general partner of such
limited liability company, partnership, association or other business entity.
“Suspension Event” has the meaning set forth in Section 1(f)(ii).
“Suspension Notice” has the meaning set forth in Section 1(f)(ii).
“Suspension Period” has the meaning set forth in Section 1(f)(i).
“Violation” has the meaning set forth in Section 6(a).
“WKSI” means a “well-known seasoned issuer” as defined under Rule 405.
Exhibit 10.4
JOINDER AGREEMENT AND THIRD AMENDMENT TO CREDIT AGREEMENT
JOINDER AGREEMENT AND THIRD AMENDMENT TO CREDIT AGREEMENT,
dated as of February 13, 2026 (this “Amendment”), by and among each of the undersigned Lenders (each,
an “Amendment No. 3 Incremental Lender”), Accelevation Intermediate LLC, a Delaware limited liability
company (“Holdings”), Accelevation Buyer LLC, a Delaware limited liability company (“Intermediate
Holdings”), Accelevation LLC, a Delaware limited liability company (the “Borrower”), and MidCap
Financial Trust, as the Administrative Agent.
RECITALS:
WHEREAS, reference is hereby made to the Credit Agreement, dated as of January 2,
2025 (as amended, restated, supplemented or otherwise modified from time to time, including pursuant to
this Amendment, the “Credit Agreement”), among Holdings, Intermediate Holdings, the Borrower, the
several lenders from time to time parties thereto (each a “Lender” and, collectively, the “Lenders”) and
MidCap Financial Trust, as the Administrative Agent (capitalized terms used but not defined herein having
the meaning provided in the Credit Agreement);
WHEREAS, subject to the terms and conditions of the Credit Agreement, the Borrower
may establish New Term Loan Commitments pursuant to Section 2.14 of the Credit Agreement by, among
other things, entering into one or more Joinder Agreements with New Term Loan Lenders;
WHEREAS, subject to the terms and conditions of the Credit Agreement, the Borrower
may amend the Credit Agreement in the manner contemplated by Section 2 of this Amendment with the
consent of the Amendment No. 3 Incremental Lenders.
NOW, THEREFORE, in consideration of the premises and agreements, provisions and
covenants herein contained, and subject to the satisfaction of the conditions set forth in Section 3 hereof,
the parties hereto agree as follows:
Each New Term Loan Lender (each such Lender, an Amendment No. 3 Incremental
Lender) party hereto hereby agrees to commit to provide its respective New Term Loan Commitment as set
forth on Schedule A annexed hereto (such commitments, the “Amendment No. 3 Incremental Term Loan
Commitments” and such Term Loans in respect thereof, the “Amendment No. 3 Incremental Term Loans”).
Each Amendment No. 3 Incremental Lender (i) confirms that it has received a copy of the
Credit Agreement and the other Credit Documents and the schedules and exhibits attached thereto, together
with copies of the financial statements referred to therein and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii)
agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent,
any Letter of Credit Issuer, any other Amendment No. 3 Incremental Lender, or any other Lender or Agent
and based on such documents and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes
the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Credit Documents as are delegated to the
Administrative Agent or the Collateral Agent, as the case may be, by the terms thereof, together with such
powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it
as a New Term Loan Lender.
Each New Term Loan Lender hereby agrees to make its Amendment No. 3 Incremental
Term Loan in accordance with its respective Amendment No. 3 Incremental Term Loan Commitment on
the following terms and conditions:
1.Terms. The Amendment No.3 Incremental Term Loans shall be “fungible” with the Initial Term
Loans and shall have the same terms as the Initial Term Loans except as expressly set forth in the
Credit Documents. The Term Loans made pursuant to the Amendment No.3 Incremental Term
Loan Commitments shall be added to (and form part of) each Borrowing of outstanding Initial
Term Loans on a pro rata basis (based on the principal amount of each Borrowing) so that each
Term Lender will participate proportionately in each then outstanding Borrowing of Initial Term
Loans. The Amendment No. 3 Incremental Term Loans (x) shall be “Initial Term Loans” and
“Loans” under the Credit Agreement as of the Amendment No. 3 Effective Date (as defined below)
and (y) shall rank equal in right of payment with the Initial Term Loans, shall be secured on a pari
passu basis by the Collateral that secures the Initial Term Loans and shall be guaranteed by the
Guarantors that guarantee the Initial Term Loans. The Borrower hereby directs the Administrative
Agent to apply the proceeds of the Amendment No. 3 Incremental Term Loans to repay certain
outstanding Revolving Credit Loans as of the Amendment No. 3 Effective Date. The Borrower
acknowledges and agrees that the foregoing disbursement and application of such proceeds of
Amendment No. 3 Incremental Term Loans shall constitute delivery of all such proceeds at
Borrower's direction and for Borrower's benefit requested on the date hereof as if all such proceeds
had been advanced to Borrower and the Administrative Agent and the undersigned Amendment
No. 3 Incremental Lenders agree that all required notices for such repayments have been received
or are otherwise waived.
2.Amendments to Credit Agreement; Waiver. Subject to the occurrence of the Amendment No.
3 Effective Date, (i) the 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 underlined text
(indicated textually in the same manner as the following example: underlined text) as set forth in
the pages of the Credit Agreement attached as Exhibit A hereto and (ii) Schedule 1.1(a) to the
Credit Agreement is supplemented by Schedule A hereto.
3.Conditions Precedent. (i) Each Amendment No. 3 Incremental Lender hereby agrees to make its
respective Amendment No. 3 Incremental Term Loan in accordance with its respective Amendment
No. 3 Incremental Term Loan Commitment on the first date on which the conditions set forth in
this Section 3 shall have been satisfied (or waived by the Amendment No. 3 Incremental Lenders)
(the date of such satisfaction or waiver, the “Amendment No. 3 Effective Date”):
(a)The Administrative Agent shall have a counterpart of (i) this Amendment executed by each of
Holdings, Intermediate Holdings and the Borrower, (ii) each of the Amendment No. 3
Incremental Lenders and (iii) a guarantor reaffirmation, substantially in the form attached
hereto as Exhibit B, executed by each Guarantor that was party to the Guarantee on or prior
to the Amendment No. 3 Effective Date (the “Existing Guarantors”).
(b)The Administrative Agent shall have received a solvency certificate of Intermediate
Holdings, substantially in the form delivered on the Closing Date, dated as of the Amendment
No. 3 Effective Date, executed by the Chief Executive Officer, the President, the Chief
Financial Officer, the Treasurer, the Vice President-Finance or any other senior financial
officer of Intermediate Holdings (with “Solvency” defined in accordance with the Credit
Agreement).
(c)The Administrative Agent shall have received an executed written legal opinion, in
customary form, addressed to the Administrative Agent, each Amendment No. 3 Incremental
Lender and each Lender of Kirkland & Ellis LLP, special New York counsel to the Credit
Parties and in form and substance reasonably satisfactory to the Administrative Agent.
(d)The Administrative Agent shall have received a certificate of the Borrower, dated the
Amendment No. 3 Effective Date, in form and substance reasonably satisfactory to the
Administrative Agent with appropriate insertions, executed by an Authorized Officer of the
Borrower, and including or attaching (i) (A) each organizational document of the Borrower
and the other Credit Parties certified, to the extent applicable, as of a recent date by the
applicable Governmental Authority or (B) a certification that there has been no change to
such organizational documents since those delivered on the Closing Date, (ii) (A) signature
and incumbency certificates of the Authorized Officer of the Borrower and the other Credit
Parties executing this Amendment or the guarantor reaffirmation, as applicable, or (B) a
certification that there has been no change to the signature and incumbency certificates since
those delivered on the Closing Date, (iii) resolutions of the board of directors and/or similar
governing bodies of the Borrower and the other Credit Parties approving and authorizing the
execution, delivery and performance of this Amendment or the guarantor reaffirmation, as
applicable, certified as of the Amendment No. 3 Effective Date by its secretary, an assistant
secretary or an Authorized Officer as being in full force and effect, and (iv) a good standing
certificate (to the extent such concept exists) from the applicable Governmental Authority of
the Borrower’s and the other Credit Parties’ jurisdiction of incorporation, organization or
formation, dated a recent date prior to the Amendment No. 3 Effective Date.
(e)All fees required to be paid on the Amendment No. 3 Effective Date pursuant to one or more
fee letters shall, upon the initial borrowing of Amendment No. 3 Incremental Term Loans,
have been paid (which amounts may be offset against the proceeds of Amendment No. 3
Incremental Term Loans).
(f)The Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 2.3 of the Credit Agreement in respect of the Amendment No. 3
Incremental Term Loans one (1) Business Days prior to the Amendment No. 3 Effective
Date.
(g)The Administrative Agent shall have received an officer’s certificate signed by an Authorized
Officer of the Borrower certifying that, as of the Amendment No. 3 Effective Date, (a) no
Default or Event of Default shall have occurred and be continuing and (b) all representations
and warranties made by any Credit Party contained herein or in the other Credit Documents
shall be true and correct in all material respects (provided that any such representations and
warranties which are qualified by materiality, material adverse effect or similar language
shall be true and correct in all respects) with the same effect as though such representations
and warranties had been made on and as of the Amendment No. 3 Effective Date (except where
such representations and warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material respects
(provided that any such representations and warranties which are qualified by materiality,
material adverse effect or similar language shall be true and correct in all respects) as of such
earlier date).
(h)No Default or Event of Default shall exist on the Amendment No. 3 Effective Date.
4.Amendment No. 3 Incremental Lenders. Each Amendment No. 3 Incremental Lender who was
not an existing Lender prior to the Amendment No. 3 Effective Date acknowledges and agrees that
upon its execution of this Amendment and the making of Amendment No. 3 Incremental Term
Loans that such New Term Loan Lender shall become a “Lender” under, and for all purposes of,
the Credit Agreement and the other Credit Documents, and shall be subject to and bound by the
terms thereof, and shall perform all the obligations of and shall have all rights of a Lender
thereunder.
5.Representations and Warranties. Each of the Borrower, Intermediate Holdings and Holdings
hereby represents and warrants as of the Amendment No. 3 Effective Date to the Administrative
Agent and each Amendment No. 3 Incremental Lender as follows:
(a)each of the Borrower, Intermediate Holdings and Holdings is duly organized, validly
existing and (to the extent relevant) in good standing under the Requirements of Law of
the jurisdiction of its organization;
(b)the execution, delivery and performance by the undersigned of this Amendment (and the
performance of the Credit Agreement as modified by this Amendment) are within its
organizational powers and have been duly authorized by all necessary action pursuant to
its organizational documents;
(c)this Amendment constitutes a valid and binding agreement of the Borrower, Intermediate
Holdings and Holdings, enforceable against the Borrower, Intermediate Holdings and
Holdings in accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and
subject to general principles of equity;
(d)no Default or Event of Default has occurred and is continuing; and
(e)all representations and warranties made by any Credit Party contained in the Credit
Agreement and in the other Credit Documents are true and correct in all material respects
(provided that any such representations and warranties which are qualified by materiality,
material adverse effect or similar language shall be true and correct in all respects) with the
same effect as though such representations and warranties had been made on and as of the
Amendment No. 3 Effective Date (except where such representations and warranties
expressly relate to an earlier date, in which case such representations and warranties shall
have been true and correct in all material respects (provided that any such representations
and warranties which are qualified by materiality, material adverse effect or similar
language shall be true and correct in all respects) as of such earlier date).
6.Post-Closing Covenant. Within five (5) Business Days after the Amendment No. 3 Effective Date
(or such later date as the Administrative Agent may agree in its reasonable discretion), the Borrower
shall cause SteelPro LLC, a Mississippi limited liability company, and SteelPro Memphis, LLC, a
Delaware limited liability company, to be joined as Guarantors.
7.Credit Agreement Governs. Except as set forth in this Amendment, the Amendment No. 3
Incremental Term Loans shall otherwise be subject to the provisions of the Credit Agreement and
the other Credit Documents.
8.Notice. For purposes of the Credit Agreement, the initial notice address of each Amendment No. 3
Incremental Lender shall be as set forth below its signature below.
9.Tax Forms. For each relevant Amendment No. 3 Incremental Lender, delivered herewith to the
Administrative Agent are such forms, certificates or other evidence with respect to United States
federal income tax withholding matters as such Amendment No. 3 Incremental Lender may be
required to deliver to the Administrative Agent pursuant to Section 5.4(e) of the Credit Agreement.
10.Recordation of the Incremental Loans. Upon execution and delivery hereof, the Administrative
Agent will record the Amendment No. 3 Incremental Term Loans made by each New Term Loan
Lender in the Register.
11.Amendment, Modification and Waiver. This Amendment may not be amended, modified or
waived except in accordance with the terms of Section 13.1 of the Credit Agreement.
12.Entire Agreement. This Amendment, the Credit Agreement and the other Credit Documents
constitute the entire agreement among the parties with respect to the subject matter hereof and
thereof and supersede all other prior agreements and understandings, both written and verbal,
among the parties or any of them with respect to the subject matter hereof.
13.GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
INTERPRETED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
14.Severability. Any term or provision of this Amendment which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms and provisions of
this Amendment or affecting the validity or enforceability of any of the terms or provisions of this
Amendment in any other jurisdiction. If any provision of this Amendment is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.
15.Credit Document. This Amendment shall constitute a Credit Document.
16.Counterparts. This Amendment may be executed in counterparts (including by facsimile or other
electronic (i.e., “pdf” or “tif” format) transmission), each of which shall be deemed to be an original
and shall be effective as delivery of a manually executed counterpart of this Amendment, but all of
which shall constitute one and the same agreement. 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.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer
to execute and deliver this Amendment as of the date first set forth above.
MIDCAP FINANCIAL TRUST, as a New Term Loan Lender | ||
By: | Apollo Capital Management, L.P., its investment manager | |
By: | Apollo Capital Management GP, LLC, its general partner | |
By: | /s/ Maurice Amsellem | |
Name: Maurice Amsellem | ||
Title: Authorized Signatory | ||
[LENDER SIGNATURE PAGES ON FILE] | ||
ACCELEVATION, LLC | ||
ACCELEVATION BUYER LLC | ||
ACCELEVATION INTERMEDIATE LLC | ||
By: | /s/ Charles Hillman | |
Name: Charles Hillman | ||
Title: Chief Financial Officer | ||
Exhibit A
CREDIT AGREEMENT
dated as of January 2, 2025
as amended by Amendment No. 1, dated as of September 5, 2025, and
Amendment No. 2, dated as of October 6, 2025 and Amendment No. 3, dated as of February 13, 2026
among
ACCELEVATION INTERMEDIATE LLC,
as Holdings,
ACCELEVATION BUYER LLC,
as Intermediate Holdings
ACCELEVATION FINANCING MERGER SUB LLC,
as Merger Sub and as the Borrower prior to the consummation of the Merger
ACCELEVATION LLC,
as the Borrower upon the consummation of the Merger,
the several Lenders from time to time parties hereto
and
MIDCAP FINANCIAL TRUST,
as the Administrative Agent and the Collateral Agent,
_
MIDCAP FINANCIAL TRUST,
and
MONROE CAPITAL, LLC,
as the Joint Lead Arrangers and Bookrunners
and
BARINGS FINANCE LLC,
as Documentation Agent
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TABLE OF CONTENTS
Page | ||
Section 1. | Definitions ............................................................................................................... | 2 |
1.1 | Defined Terms ......................................................................................................... | 2 |
1.2 | Other Interpretive Provisions .................................................................................. | 79 |
1.3 | Accounting Terms ................................................................................................... | 80 |
1.4 | Rounding ................................................................................................................. | 81 |
1.5 | References to Agreements, Laws, Etc ..................................................................... | 81 |
1.6 | Exchange Rates ....................................................................................................... | 81 |
1.7 | Rates ........................................................................................................................ | 81 |
1.8 | Times of Day ........................................................................................................... | 81 |
1.9 | Timing of Payment or Performance ........................................................................ | 82 |
1.10 | Certifications ........................................................................................................... | 82 |
1.11 | Compliance with Certain Sections .......................................................................... | 82 |
1.12 | Pro Forma and Other Calculations .......................................................................... | 82 |
1.13 | Form Intercreditor Agreement ................................................................................. | 85 |
1.14 | Making or Maintaining Benchmark Rate Loans ..................................................... | 86 |
Section 2. | Amount and Terms of Credit ................................................................................... | 88 |
2.1 | Commitments .......................................................................................................... | 88 |
2.2 | Minimum Amount of Each Borrowing; Maximum Number of Borrowings .......... | 91 |
2.3 | Notice of Borrowing ................................................................................................ | 91 |
2.4 | Disbursement of Funds ............................................................................................ | 92 |
2.5 | Repayment of Loans; Evidence of Debt .................................................................. | 93 |
2.6 | Conversions and Continuations ............................................................................... | 95 |
2.7 | Pro Rata Borrowings ............................................................................................... | 96 |
2.8 | Interest ..................................................................................................................... | 96 |
2.9 | Interest Periods ........................................................................................................ | 97 |
2.10 | Increased Costs, Illegality, Etc ................................................................................ | 98 |
2.11 | Compensation .......................................................................................................... | 99 |
2.12 | Change of Lending Office ....................................................................................... | 100 |
2.13 | Notice of Certain Costs ........................................................................................... | 100 |
2.14 | Incremental Facilities .............................................................................................. | 100 |
2.15 | Permitted Debt Exchanges ...................................................................................... | 106 |
2.16 | Defaulting Lenders .................................................................................................. | 108 |
2.17 | Additional Borrowers .............................................................................................. | 110 |
Section 3. | Letters of Credit ....................................................................................................... | 110 |
3.1 | Letters of Credit ....................................................................................................... | 110 |
3.2 | Letter of Credit Requests ......................................................................................... | 112 |
3.3 | Letter of Credit Participations ................................................................................. | 114 |
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3.4 | Agreement to Repay Letter of Credit Drawings ...................................................... | 115 |
3.5 | Increased Costs ........................................................................................................ | 117 |
3.6 | New or Successor Letter of Credit Issuer ................................................................ | 118 |
3.7 | Role of Letter of Credit Issuer ................................................................................. | 119 |
3.8 | Cash Collateral ........................................................................................................ | 120 |
3.9 | Applicability of ISP and UCP ................................................................................. | 120 |
3.10 | Conflict with Issuer Documents .............................................................................. | 121 |
3.11 | Letters of Credit Issued for Restricted Subsidiaries ................................................ | 121 |
3.12 | Provisions Related to Extended Revolving Credit Commitments .......................... | 121 |
Section 4. | Fees .......................................................................................................................... | 121 |
4.1 | Fees .......................................................................................................................... | 121 |
4.2 | Voluntary Reduction of Revolving Credit Commitments and Delayed Draw Term Loan Commitments ................................................................................................... | 123 |
4.3 | Mandatory Termination of Commitments ............................................................... | 123 |
Section 5. | Payments ................................................................................................................. | 124 |
5.1 | Voluntary Prepayments ........................................................................................... | 124 |
5.2 | Mandatory Prepayments .......................................................................................... | 125 |
5.3 | Method and Place of Payment ................................................................................. | 128 |
5.4 | Net Payments ........................................................................................................... | 129 |
5.5 | Computations of Interest and Fees .......................................................................... | 133 |
5.6 | Limit on Rate of Interest .......................................................................................... | 133 |
Section 6. | Conditions Precedent to Initial Borrowing .............................................................. | 134 |
6.1 | Credit Documents .................................................................................................... | 134 |
6.2 | Legal Opinions ........................................................................................................ | 134 |
6.3 | Closing Certificates ................................................................................................. | 135 |
6.4 | Authorization of Proceedings of Holdings and the Borrower; Corporate Documents ... | 135 |
6.5 | Fees .......................................................................................................................... | 135 |
6.6 | Solvency Certificate ................................................................................................ | 135 |
6.7 | Notice of Borrowing ................................................................................................ | 135 |
6.8 | Transactions ............................................................................................................. | 135 |
6.9 | [Reserved] ................................................................................................................ | 135 |
6.10 | Representations and Warranties .............................................................................. | 135 |
6.11 | Patriot Act ................................................................................................................ | 135 |
6.12 | No Material Adverse Effect ..................................................................................... | 136 |
6.13 | Refinancing .............................................................................................................. | 136 |
6.14 | Equity Investment .................................................................................................... | 136 |
Section 7. | Conditions Precedent to All Credit Events after the Closing Date ......................... | 137 |
7.1 | No Default; Representations and Warranties .......................................................... | 137 |
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7.2 | Notice of Borrowing ................................................................................................ | 137 |
7.3 | Leverage .................................................................................................................. | 137 |
Section 8. | Representations and Warranties .............................................................................. | 138 |
8.1 | Corporate Status ...................................................................................................... | 138 |
8.2 | Corporate Power and Authority ............................................................................... | 138 |
8.3 | No Violation ............................................................................................................ | 138 |
8.4 | Litigation ................................................................................................................. | 139 |
8.5 | Margin Regulations ................................................................................................. | 139 |
8.6 | Governmental Approvals ......................................................................................... | 139 |
8.7 | Investment Company Act ........................................................................................ | 139 |
8.8 | True and Complete Disclosure ................................................................................ | 139 |
8.9 | Financial Condition; Financial Statements .............................................................. | 135 |
8.10 | Compliance with Laws ............................................................................................ | 140 |
8.11 | Tax Matters .............................................................................................................. | 140 |
8.12 | Compliance with ERISA ......................................................................................... | 140 |
8.13 | Subsidiaries.............................................................................................................. | 140 |
8.14 | Intellectual Property ................................................................................................ | 141 |
8.15 | Environmental Laws ................................................................................................ | 141 |
8.16 | Properties ................................................................................................................. | 141 |
8.17 | Solvency .................................................................................................................. | 141 |
8.18 | Use of Proceeds ....................................................................................................... | 141 |
8.19 | No Other Liabilities ................................................................................................. | 142 |
8.20 | Labor Matters .......................................................................................................... | 142 |
8.21 | Foreign Assets Control Regulations and Anti-Money Laundering ......................... | 142 |
Section 9. | Affirmative Covenants ............................................................................................ | 142 |
9.1 | Information Covenants ............................................................................................ | 142 |
9.2 | Books, Records, and Inspections ............................................................................. | 146 |
9.3 | Maintenance of Insurance ........................................................................................ | 146 |
9.4 | Payment of Taxes .................................................................................................... | 147 |
9.5 | Preservation of Existence ........................................................................................ | 147 |
9.6 | Compliance with Statutes, Regulations, Etc ............................................................ | 147 |
9.7 | ERISA ..................................................................................................................... | 147 |
9.8 | Maintenance of Properties ....................................................................................... | 148 |
9.9 | [Reserved] ................................................................................................................ | 148 |
9.10 | Additional Guarantors and Grantors ....................................................................... | 148 |
9.11 | Pledge of Additional Stock and Evidence of Indebtedness ..................................... | 148 |
9.12 | Use of Proceeds ....................................................................................................... | 149 |
9.13 | Further Assurances .................................................................................................. | 149 |
9.14 | [Reserved] ................................................................................................................ | 151 |
9.15 | Anti-Corruption, Etc ................................................................................................ | 151 |
Section 10. | Negative Covenants ................................................................................................. | 151 |
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10.1 | Limitation on Indebtedness ..................................................................................... | 151 |
10.2 | Limitation on Liens ................................................................................................. | 156 |
10.3 | Limitation on Fundamental Changes ....................................................................... | 158 |
10.4 | Limitation on Sale of Assets .................................................................................... | 160 |
10.5 | Limitation on Restricted Payments ......................................................................... | 161 |
10.6 | Limitation on Investments ....................................................................................... | 164 |
10.7 | Limitation on Prepayments of Junior Debt ............................................................. | 167 |
10.8 | Limitation on Subsidiary Distributions; Negative Pledge ....................................... | 169 |
10.9 | Consolidated Total Debt to Consolidated EBITDA Ratio ...................................... | 170 |
10.10 | Permitted Activities ................................................................................................. | 170 |
10.11 | Limitation on Changes to Line of Business ............................................................ | 171 |
10.12 | Limitation on Changes to End of Fiscal Years ........................................................ | 171 |
10.13 | [Reserved] ................................................................................................................ | 171 |
10.14 | Transactions with Affiliates .................................................................................... | 171 |
10.15 | Amendment of Organizational Documents; Junior Debt ........................................ | 172 |
Section 11. | Events of Default ..................................................................................................... | 173 |
11.1 | Payments ................................................................................................................. | 173 |
11.2 | Representations, Etc ................................................................................................ | 173 |
11.3 | Covenants ................................................................................................................ | 173 |
11.4 | Default Under Other Agreements ............................................................................ | 173 |
11.5 | Bankruptcy, Etc ....................................................................................................... | 174 |
11.6 | ERISA ..................................................................................................................... | 175 |
11.7 | Guarantee ................................................................................................................. | 175 |
11.8 | Pledge Agreement ................................................................................................... | 175 |
11.9 | Security Agreement ................................................................................................. | 175 |
11.10 | Judgments ................................................................................................................ | 175 |
11.11 | Change of Control ................................................................................................... | 175 |
11.12 | Remedies Upon Event of Default ............................................................................ | 175 |
11.13 | Application of Proceeds .......................................................................................... | 176 |
11.14 | Equity Cure .............................................................................................................. | 177 |
Section 12. | The Agents............................................................................................................... | 178 |
12.1 | Appointment ............................................................................................................ | 178 |
12.2 | Delegation of Duties ................................................................................................ | 179 |
12.3 | Exculpatory Provisions ............................................................................................ | 179 |
12.4 | Reliance by Agents .................................................................................................. | 179 |
12.5 | Notice of Default ..................................................................................................... | 180 |
12.6 | Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders ....... | 180 |
12.7 | Indemnification ........................................................................................................ | 181 |
12.8 | Agents in Their Individual Capacities ..................................................................... | 182 |
12.9 | Successor Agents ..................................................................................................... | 182 |
12.10 | Withholding Tax ...................................................................................................... | 183 |
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12.11 | Agents Under Security Documents and Guarantee ................................................. | 184 |
12.12 | Right to Realize on Collateral and Enforce Guarantee ........................................... | 185 |
12.13 | Intercreditor Agreement Governs ............................................................................ | 186 |
12.14 | Certain ERISA Matters ............................................................................................ | 186 |
12.15 | Erroneous Payment .................................................................................................. | 187 |
Section 13. | Miscellaneous .......................................................................................................... | 190 |
13.1 | Amendments, Waivers, and Releases ...................................................................... | 190 |
13.2 | Notices ..................................................................................................................... | 194 |
13.3 | No Waiver; Cumulative Remedies .......................................................................... | 195 |
13.4 | Survival of Representations and Warranties ........................................................... | 195 |
13.5 | Payment of Expenses; Indemnification ................................................................... | 195 |
13.6 | Successors and Assigns; Participations and Assignments ....................................... | 197 |
13.7 | Replacements of Lenders Under Certain Circumstances ........................................ | 203 |
13.8 | Adjustments; Set-Off ............................................................................................... | 204 |
13.9 | Counterparts ............................................................................................................ | 205 |
13.10 | Severability .............................................................................................................. | 205 |
13.11 | Integration ................................................................................................................ | 205 |
13.12 | GOVERNING LAW ............................................................................................... | 205 |
13.13 | Submission to Jurisdiction; Waivers | 206 |
13.14 | Acknowledgments | 206 |
13.15 | WAIVERS OF JURY TRIAL | 207 |
13.16 | Confidentiality | 207 |
13.17 | Direct Website Communications | 209 |
13.18 | USA PATRIOT Act | 210 |
13.19 | Judgment Currency | 211 |
13.20 | Payments Set Aside | 211 |
13.21 | No Fiduciary Duty | 211 |
13.22 | Nature of Obligations of the Borrower | 212 |
13.23 | Cashless Settlement | 213 |
13.24 | Acknowledgment and Consent to Bail-In of Affected Financial Institutions | 213 |
13.25 | Acknowledgement Regarding Any Supported QFCs | 213 |
SCHEDULES | |
Schedule 1.1(a) | Commitments of Lenders |
Schedule 8.1 | Good Standing |
Schedule 8.13 | Subsidiaries |
Schedule 8.15 | Environmental |
Schedule 8.16 | Mortgaged Properties |
Schedule 9.13 | Post-Closing Actions |
Schedule 10.1 | Closing Date Indebtedness |
Schedule 10.2 | Closing Date Liens |
Schedule 10.4 | Closing Date Factoring Arrangements |
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Schedule 10.6 | Closing Date Investments |
Schedule 13.2 | Notice Addresses |
EXHIBITS | |
Exhibit A | Form of Joinder Agreement |
Exhibit B | Form of Guarantee |
Exhibit C | Form of Pledge Agreement |
Exhibit D | Form of Security Agreement |
Exhibit E | Form of Credit Party Closing Certificate |
Exhibit F | Form of Assignment and Acceptance |
Exhibit G-1 | Form of Promissory Note (Term Loans) |
Exhibit G-2 | Form of Promissory Note (Revolving Loans) |
Exhibit H-1 | Form of Pari Passu Intercreditor Agreement |
Exhibit H-2 | Form of Junior Lien Intercreditor Agreement |
Exhibit I-1 | Form of Non-Bank Tax Certificate (For Non-U.S. Lenders That Are Not Partnerships for U.S. Federal Income Tax Purposes) |
Exhibit I-2 | Form of Non-Bank Tax Certificate (For Non-U.S. Lenders That Are Partnerships for U.S. Federal Income Tax Purposes) |
Exhibit I-3 | Form of Non-Bank Tax Certificate (For Non-U.S. Participants That Are Not Partnerships for U.S. Federal Income Tax Purposes) |
Exhibit I-4 | Form of Non-Bank Tax Certificate (For Non-U.S. Participants That Are Partnerships for U.S. Federal Income Tax Purposes) |
Exhibit J | Form of Notice of Borrowing or Continuation or Conversion |
Exhibit K | Form of Notice of Swingline Loan Borrowing |
Exhibit L-1 | Form of Hedge Bank Designation |
Exhibit L-2 | Form of Cash Management Bank Designation |
Exhibit M | Form of Compliance Certificate |
Exhibit N | Borrower Joinder Agreement |
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CREDIT AGREEMENT
Credit Agreement, dated as of January 2, 2025 (as amended by Amendment No. 1 and as
further amended, restated, supplemented or otherwise modified from time to time, this “Agreement”),
by and among ACCELEVATION INTERMEDIATE LLC, a Delaware limited liability company
(“Holdings”), ACCELEVATION BUYER LLC, a Delaware limited liability company (“Intermediate
Holdings”), ACCELEVATION FINANCING MERGER SUB LLC, a Delaware limited liability
company (the “Merger Sub”), as the initial Borrower hereunder (the “Initial Borrower”), whose rights
and obligations herein will, immediately following the consummation of the Merger (as defined below)
be assigned to and assumed by ACCELEVATION, LLC, a Delaware limited liability company (the
“OpCo”, and following consummation of the Merger, together with any other co-borrower added
pursuant to Section 2.17 of this Agreement, collectively, the “Borrower”), Accelevation Holding
Company LLC, a Delaware limited liability company (“Accelevation Holding”), Accelevation Holdings
Blocker, LLC, a Delaware limited liability company (“Accelevation Holdings Blocker”), Accelevation
Blocker, Inc., a Delaware corporation (“Accelevation Blocker”), Instor Blocker, Inc., a Delaware
corporation (“Instor Blocker” and, together with Holdings, Intermediate Holdings, Accelevation
Holding, Accelevation Holdings Blocker and Accelevation Blocker, the “Parent Guarantors”), the
several lenders from time to time parties hereto (each a “Lender” and, collectively, the “Lenders”), each
Letter of Credit Issuer, and MidCap Financial Trust, as the Swingline Lender, Administrative Agent and
the Collateral Agent (such terms and each other capitalized term used but not defined in this preamble
and the recitals having the meaning provided in Section 1).
WHEREAS, pursuant to that certain Securities Purchase Agreement, dated as of November 8,
2024 (and together with all exhibits and schedules and other attachments thereto, collectively, as
amended, restated, supplemented, waived or otherwise modified in accordance with the terms thereof, the
“Acquisition Agreement”), by and among Intermediate Holdings, Accelevation Holding, as the
Company (in such capacity, the “Company”), the sellers party thereto, LFM Capital Partners III-A L.P.,
a Delaware limited partnership, as Sellers’ Representative, and Accelevation Holdings Blocker, as the
Blocker, Intermediate Holdings will, immediately following the initial funding hereunder (x) acquire,
directly or indirectly, all of the equity interests of the Company (the “Acquisition”) and (y) cause Merger
Sub to merge with and into the OpCo, with the OpCo surviving the merger (the “Merger”).
WHEREAS, in connection with the transactions contemplated by the Acquisition Agreement, the
Borrower has requested that (i) the Lenders extend credit in the form of (A) Initial Term Loans to the
Borrower on the Closing Date in an aggregate principal amount of $200,000,000, (B) Delayed Draw
Term Loans to be made available to the Borrower at any time on and after the Closing Date and from
time to time prior to the Delayed Draw Term Loan Commitment Termination Date in an aggregate
principal amount not in excess of $75,000,000, (C) Revolving Credit Loans to be made available to the
Borrower at any time and from time to time prior to the Revolving Credit Maturity Date in an aggregate
principal amount at any time outstanding not in excess of $50,000,000 less the sum of (1) the aggregate
Letters of Credit Outstanding at such time and (2) the aggregate principal amount of all Swingline Loans
outstanding at such time, (ii) the Letter of Credit Issuers issue Letters of Credit at any time and from time
to time prior to the L/C Facility Maturity Date in an aggregate Stated Amount at any time outstanding not
in excess of $20,000,000 and (iii) the Swingline Lender extend credit in the form of Swingline Loans at
any time and from time to time prior to the Swingline Maturity Date in an aggregate principal amount at
any time outstanding not in excess of $7,500,000;
WHEREAS, the proceeds of the Initial Term Loans will be used, together with proceeds of the
Equity Investment (as defined below), (i) to pay consideration in connection with the Acquisition, (ii) to
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refinance, redeem and/or discharge (a) that certain Credit Agreement, dated as of December 16, 2022 (as
amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and
among, inter alios, the Company, the lenders party thereto, and Abacus Finance Group, LLC, as
administrative agent and sole lead arranger and (b) that certain Senior Subordinated Loan Agreement,
dated as of June 16, 2023 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time), by and among, inter alios, the Company, the lenders party thereto, and
Centerfield Capital Partners V, L.P., as administrative agent ((ii)(a) and (ii)(b), collectively, the
“Existing Credit Agreements”) and (iii) to pay Transaction Expenses;
WHEREAS, the Borrower has requested that the Lenders extend credit in the form of (A)
Amendment No. 1 Incremental Term Loans to the Borrower on the Amendment No. 1 Effective Date in
an aggregate principal amount of $20,000,000 and (B) Amendment No. 1 Incremental Revolving Credit
Commitments to the Borrower on the Amendment No. 1 Effective Date in an aggregate principal amount
of $10,000,000;
WHEREAS, the proceeds of the Amendment No. 1 Incremental Term Loans will be used to
repay Revolving Credit Loans outstanding on the Amendment No. 1 Effective Date; and
WHEREAS, the Borrower has requested that the Lenders extend credit in the form of (A)
Amendment No. 3 Incremental Term Loans to the Borrower on the Amendment No. 3 Effective
Date in an aggregate principal amount of $40,000,000;
WHEREAS, the proceeds of the Amendment No. 3 Incremental Term Loans will be used to
repay Revolving Credit Loans outstanding on the Amendment No. 3 Effective Date; and
WHEREAS, the Lenders and the Letter of Credit Issuer are willing to make available to the
Borrower such Credit Facilities upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants and agreements
contained herein, the parties hereto hereby agree as follows:
Section 1.Definitions.
1.1Defined Terms. As used herein, the following terms shall have the meanings specified in
this Section 1.1 unless the context otherwise requires (it being understood that defined terms in this
Agreement shall include in the singular number the plural and in the plural the singular):
“ABR” shall mean for any day a fluctuating rate per annum equal to the highest of (i) the Federal
Funds Effective Rate plus 1/2 of 1%, (ii) the rate 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), and (iii) the Benchmark Rate
(which rate shall be calculated based on an Interest Period of one month as of such date) plus 1.00% per
annum; provided that, notwithstanding the foregoing, in no event shall the ABR applicable to the Initial
Term Loans and the Revolving Credit Loans at any time be less than 2.00% per annum. Any change in
the ABR due to a change in such rate determined by the Administrative Agent or in the Federal Funds
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Effective Rate, the “Prime Rate” or the Benchmark Rate shall take effect at the opening of business on
the day of such change.
“ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.
“ABR Loan” shall mean each Loan bearing interest based on the ABR.
“Acceptable Intercreditor Agreement” shall mean either (i) an intercreditor agreement
substantially in the form of Exhibit H-1 (with such changes to such form as may be reasonably acceptable
to the Administrative Agent and the Borrower) among the Administrative Agent, the Collateral Agent
and the representatives for purposes thereof for any other Permitted Other Indebtedness Secured Parties
that are holders of Permitted Other Indebtedness Obligations having a Lien on the Collateral ranking pari
passu with the Lien securing the Obligations or (ii) an intercreditor agreement substantially in the form of
Exhibit H-2 (with such changes to such form as may be reasonably acceptable to the Administrative
Agent and the Borrower) among the Administrative Agent, the Collateral Agent and the representatives
for purposes thereof for any other Permitted Other Indebtedness Secured Parties that are holders of
Permitted Other Indebtedness Obligations having a Lien on the Collateral ranking junior to the Lien
securing the Obligations.
“Account” shall mean, as at any date of determination, all “accounts” (as such term is defined in
the UCC) of Intermediate Holdings and its Restricted Subsidiaries as of such date, including, without
limitation, the unpaid portion of the obligation of a customer of Intermediate Holdings or any of its
Restricted Subsidiaries in respect of Inventory purchased by and shipped to such customer and/or the
rendition of services by Intermediate Holdings or such Restricted Subsidiary, as stated on the respective
invoice of Intermediate Holdings or such Restricted Subsidiary, net of any credits, rebates or offsets
owed to such customer.
“Acquired EBITDA” shall mean, with respect to any Acquired Entity or Business or any
Converted Restricted Subsidiary (any of the foregoing, a “Pro Forma Entity”) for any period, the
amount for such period of Consolidated EBITDA of such Pro Forma Entity (determined using such
definitions as if references to Intermediate Holdings and the Restricted Subsidiaries therein were to such
Pro Forma Entity and its Restricted Subsidiaries), all as determined on a consolidated basis for such Pro
Forma Entity in accordance with GAAP.
“Acquired Entity or Business” shall have the meaning provided in the definition of the term
Consolidated EBITDA.
“Acquired Indebtedness” shall mean, with respect to any specified Person, (i) Indebtedness of
any other Person existing at the time such other Person is merged, consolidated, or amalgamated with or
into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in
connection with, or in contemplation of, such other Person merging, consolidating, or amalgamating with
or into or becoming a Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by a
Lien encumbering any asset acquired by such specified Person.
“Acquisition” shall have the meaning provided in the recitals to this Agreement.
“Acquisition Agreement” shall have the meaning provided in the recitals to this Agreement.
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“Additional Borrower” shall mean any Guarantor (other than Holdings) as may be requested by
the Borrower to become an additional borrower (and/or a co-borrower) of any Credit Facility hereunder
in accordance with Section 2.17.
“Additional Revolving Credit Commitments” shall have the meaning provided in
Section 2.14(a).
“Additional Revolving Credit Loan” shall have the meaning provided in Section 2.14(b).
“Additional Revolving Loan Lender” shall have the meaning provided in Section 2.14(b).
“Additional Term Loans” shall have the meaning provided in Section 2.14(a).
“Adjusted Daily Simple SOFR” shall mean an interest rate per annum equal to (a) the Daily
Simple SOFR, plus (b) the related Benchmark Replacement Adjustment; provided that, if the Adjusted
Daily Simple SOFR rate as so determined would be less than the Floor, such rate shall be deemed to be
equal to the Floor for the purposes of this Agreement.
“Adjusted Total Revolving Credit Commitment” shall mean, at any time, the Total Revolving
Credit Commitment less the aggregate Revolving Credit Commitments of all Defaulting Lenders at such
time.
“Adjusted Total Term Loan Commitment” shall mean, at any time, the Total Term Loan
Commitment less the Term Loan Commitments of all Defaulting Lenders at such time.
“Administrative Agent” shall mean MidCap Financial Trust, as the administrative agent for the
Lenders under this Agreement and the other Credit Documents, or any successor administrative agent
pursuant to Section 12.9.
“Administrative Agent’s Office” shall mean the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 13.2 or such other address or account as the Administrative
Agent may from time to time notify the Borrower and the Lenders.
“Administrative Questionnaire” shall have the meaning provided in Section 13.6(b)(ii)(D).
“Advisory Services Agreement” shall mean that certain advisory agreement dated as of January
2, 2025 among Accelevation Topco LLC, a Delaware limited liability company, Accelevation Parent
LLC, a Delaware limited liability company, Holdings, Intermediate Holdings, the Borrower and Olympus
Advisors, LLC, a Delaware limited liability company, as amended, restated, supplemented or otherwise
modified in accordance with the terms hereof.
“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with such Person. A Person shall
be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct
or cause the direction of the management and policies of such other Person, whether through the
ownership of voting securities, by contract or otherwise.
“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK
Financial Institution.
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“Affiliated Institutional Lender” shall mean any Affiliate of the Sponsor (other than Holdings,
Intermediate Holdings, the Borrower, or any other Subsidiary of Holdings) that is a bona fide diversified
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 and similar extensions of
credit or securities and that exercises independent discretion from the private equity business of the
Sponsor and whose managers have fiduciary duties to third-party investors that are independent of their
duties to the direct or indirect equity holders of Holdings.
“Affiliated Lender” shall mean a Lender that is the Sponsor or any Affiliate thereof (other than
Holdings, Intermediate Holdings, the Borrower, any other Subsidiary of Holdings or any Affiliated
Institutional Lender).
“Agent Parties” and “Agent Party” shall have the meanings provided in Section 13.17(b).
“Agents” shall mean the Administrative Agent, the Collateral Agent and each of the Joint Lead
Arrangers and Bookrunners.
“Agreement” shall mean this Credit Agreement.
“AHYDO Payments” shall mean any payment, including any subordinated debt obligations, in
each case to the extent required to be made to avoid the application of Section 163(e)(5) of the Code.
“Amendment No. 1” shall mean the Joinder Agreement and First Amendment to Credit
Agreement, dated as of the Amendment No. 1 Effective Date, by and among the Borrower, Holdings,
Intermediate Holdings, the Administrative Agent, the Lenders party thereto and the other parties thereto.
“Amendment No. 1 Effective Date” shall mean September 5, 2025.
“Amendment No. 1 Fee Letter” shall mean that certain fee letter, dated as of the Amendment
No. 1 Effective Date, by and among the Borrower and the Administrative Agent.
“Amendment No. 1 Incremental Revolving Credit Commitment” has the meaning given to
such term in Amendment No. 1.
“Amendment No. 1 Incremental Revolving Credit Lender” has the meaning given to such
term in Amendment No. 1.
“Amendment No. 1 Incremental Revolving Loan” has the meaning given to such term in
Amendment No. 1.
“Amendment No. 1 Incremental Term Loan” has the meaning given to such term in
Amendment No. 1.
“Amendment No. 1 Incremental Term Loan Commitment” has the meaning given to such
term in Amendment No. 1.
“Amendment No. 1 Incremental Term Loan Lender” has the meaning given to such term in
Amendment No. 1.
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“Amendment No. 2” shall mean the Second Amendment to Credit Agreement, dated as of
the Amendment No. 2 Effective Date, by and among the Borrower, Holdings, Intermediate
Holdings, the Administrative Agent, the Lenders party thereto and the other parties thereto.
“Amendment No. 2 Effective Date” shall mean October 6, 2025.
“Amendment No. 3” shall mean the Joinder Agreement and Third Amendment to Credit
Agreement, dated as of the Amendment No. 3 Effective Date, by and among the Borrower,
Holdings, Intermediate Holdings, the Administrative Agent, the Lenders party thereto and the
other parties thereto.
“Amendment No. 3 Effective Date” shall mean February 13, 2026.
“Amendment No. 3 Fee Letter” shall mean that certain fee letter, dated as of the
Amendment No. 3 Effective Date, by and among the Borrower and the Administrative Agent.
“Amendment No. 3 Incremental Lender” has the meaning given to such term in
Amendment No. 3.
“Amendment No. 3 Incremental Term Loan” has the meaning given to such term in
Amendment No. 3.
“Amendment No. 3 Incremental Term Loan Commitment” has the meaning given to such
term in Amendment No. 3.
“Anti-Corruption Laws” shall have the meaning provided in Section 8.10.
“Anti-Money Laundering Laws” shall mean the Bank Secrecy Act, as amended by the Patriot
Act, and any other similar laws or regulations of any jurisdiction concerning or relating to terrorism
financing or money laundering.
“Applicable Margin” shall mean a percentage per annum equal to (x) until delivery of financial
statements and a related Compliance Certificate for the first full fiscal quarter commencing after the
Closing Date pursuant to Section 9.1, (1) for Benchmark Rate Loans that are Initial Term Loans,
Revolving Credit Loans or Delayed Draw Term Loans, 5.00% per annum and (2) for ABR Loans that are
Initial Term Loans, Revolving Credit Loans or Delayed Draw Term Loans, 4.00% per annum, and (y)
thereafter, in connection with Initial Term Loans, Revolving Credit Loans or Delayed Draw Term Loans,
the percentage per annum set forth in the table below, based upon the Consolidated First Lien Secured
Debt to Consolidated EBITDA Ratio as set forth in the most recent Compliance Certificate reporting
such ratio received by the Administrative Agent pursuant to Section 9.1:
Pricing Level | Ratio Level | ABR | Benchmark Rate | |
I | > 4.50 to 1.00 | 4.00% | 5.00% | |
II | < 4.50 to 1.00 and > 4.00 to 1.00 | 3.75% | 4.75% | |
III | < 4.00 to 1.00 | 3.50% | 4.50% |
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Any increase or decrease in the Applicable Margin for Revolving Credit Loans, Initial Term
Loans or Delayed Draw Term Loans resulting from a change in the Consolidated First Lien Secured Debt
to Consolidated EBITDA Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate reporting such ratio is delivered pursuant to Section 9.1(d).
In the event that any financial statement or Compliance Certificate delivered pursuant to Section
9.1 is inaccurate, and such inaccuracy, if corrected, would have led to the imposition of a different
Applicable Margin for any period than the Applicable Margin applied for that period, then (i)
Intermediate Holdings shall immediately deliver to Administrative Agent a corrected financial statement
and a corrected Compliance Certificate for that period (the “Corrected Financials Date”), (ii) the
Applicable Margin shall be determined based on the corrected Compliance Certificate for that period, and
(iii)(A) if the Applicable Margin based on the corrected Compliance Certificate would have been higher
than the Applicable Margin that was based on the incorrect Compliance Certificate, Intermediate
Holdings shall immediately pay to Administrative Agent (for the account of the Lenders that hold the
Commitments and Loans at the time such payment is received, regardless of whether those Lenders held
the Commitments and Loans during the relevant period) the accrued additional interest owing as a result
of such increased Applicable Margin for that period; provided, for the avoidance of doubt, such
deficiency shall be due and payable as at such Corrected Financials Date and no Default or Event of
Default under Section 11.1(a) shall be deemed to have occur with respect to such deficiency prior to such
date and (B) if the Applicable Margin based on the corrected Compliance Certificate would have been
lower than the Applicable Margin that was based on the incorrect Compliance Certificate, the amount of
the relevant overpayment shall be deducted from the amount of any required interest payment for the
next succeeding Interest Period. This paragraph shall not limit the rights of Administrative Agent or the
Lenders with respect to Section 2.8(c) and Section 11 hereof and shall survive the termination of this
Agreement until the payment in full in cash of the aggregate outstanding principal balance of the Loans.
In addition, at the option of the Required Lenders at any time during which Intermediate Holdings
shall have failed to deliver the Compliance Certificate pursuant to Section 9.1(d) by the applicable date
required under Section 9.1(d), then the Consolidated First Lien Secured Debt to Consolidated EBITDA
Ratio shall be deemed to be above 4.50 to 1.00 for the purposes of determining the Applicable Margin
(but only for so long as such failure continues, after which such ratio shall be determined based on the
then existing Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio).
Notwithstanding the foregoing, (a) the Applicable Margin in respect of any Class of Extended
Revolving Credit Commitments, any Extended Revolving Credit Loans or any Extended Term Loans
shall be the applicable percentages per annum set forth in the relevant Extension Amendment, (b) the
Applicable Margin in respect of any Class of any Incremental Loans shall be the applicable percentages
per annum set forth in the relevant Joinder Agreement, (c) the Applicable Margin in respect of any Class
of Replacement Facilities shall be the applicable percentages per annum set forth in the relevant
agreement, (d) the Applicable Margin in respect of any Class of Refinancing Indebtedness that would
constitute Revolving Credit Commitments shall be the applicable percentages per annum set forth in the
relevant agreement and (e) in the case of any Loans, the Applicable Margin shall be increased as, and to
the extent, necessary to comply with the provisions of Section 2.14.
“Approved Foreign Bank” shall have the meaning provided in the definition of the term “Cash
Equivalents”.
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“Approved Fund” shall mean any Fund that is administered or managed by (i) a Lender, (ii) an
Affiliate of a Lender, or (iii) an entity or an Affiliate of an entity that administers, advises or manages a
Lender.
“Asset Sale” shall mean:
(i)the sale, conveyance, transfer, or other disposition, whether in a single
transaction or a series of related transactions, of property or assets (including by way of a Sale
Leaseback) (each a “disposition”) of Intermediate Holdings or any Restricted Subsidiary, or
(ii)the issuance or sale of Equity Interests of any Restricted Subsidiary (other than
preferred stock of Restricted Subsidiaries issued in compliance with Section 10.1), whether in a
single transaction or a series of related transactions,
in each case, other than:
(a)any disposition of cash, Cash Equivalents or Investment Grade Securities or
obsolete, worn out or surplus property or property (including leasehold property interests) that is
no longer economically practical in its business or commercially desirable to maintain or no
longer used or useful equipment in the ordinary course of business or any disposition of
inventory, immaterial assets, or goods (or other assets) in the ordinary course of business;
(b)the disposition of all or substantially all of the assets of Intermediate Holdings in
a manner permitted pursuant to Section 10.3;
(c)the incurrence of Liens that are permitted to be incurred pursuant to Section 10.2
or the making of any Restricted Payment or Permitted Investment (other than pursuant to clause
(a) of Section 10.6) that is permitted to be made, and is made, pursuant to Section 10.5 or Section
10.6;
(d)any disposition of property or assets or issuance of securities by (1) a Restricted
Subsidiary to Intermediate Holdings or (2) by Intermediate Holdings or a Restricted Subsidiary
to another Restricted Subsidiary;
(e)to the extent allowable under Section 1031 of the Code, or any comparable or
successor provision, any exchange of like property (excluding any boot thereon) for use in a
Similar Business;
(f)[reserved];
(g)foreclosures, condemnation, casualty or any similar action on assets (including
dispositions in connection therewith);
(h)any financing transaction with respect to property built or acquired by
Intermediate Holdings or any Restricted Subsidiary after the Closing Date, including Sale
Leasebacks and asset securitizations permitted by this Agreement;
(i)(1) any surrender or waiver of contractual rights or the settlement, release, or
surrender of contractual rights or other litigation claims, (2) the termination or collapse of cost
sharing agreements with Intermediate Holdings or any Subsidiary and the settlement of any
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crossing payments in connection therewith, or (3) the settlement, discount, write off, forgiveness,
or cancellation of any Indebtedness owing by any present or former consultants, directors,
officers, or employees of Intermediate Holdings (or any direct or indirect parent company of
Intermediate Holdings) or any Subsidiary or any of their successors or assigns;
(j)the disposition or discount of inventory, accounts receivable, or notes receivable
in the ordinary course of business or the conversion of accounts receivable to notes receivable;
(k)the licensing, cross-licensing or sublicensing of Intellectual Property or other
general intangibles in the ordinary course of business;
(l)the unwinding of any Hedging Obligations or obligations in respect of Cash
Management Services;
(m)sales, transfers, and other dispositions of Investments in joint ventures to the
extent required by, or made pursuant to, customary buy/sell arrangements between the joint
venture parties set forth in joint venture arrangements and similar binding arrangements;
(n)the expiration, lapse, ceasing to enforce, allowing to lapse abandonment or
invalidation of, discontinued use, prosecution or maintenance of, putting into the public domain,
abandonment of Intellectual Property in the ordinary course of business, which in the reasonable
business judgment of Intermediate Holdings is not material to the conduct of the business of
Intermediate Holdings and the Restricted Subsidiaries, taken as a whole;
(o)the issuance of directors’ qualifying shares and shares issued to foreign nationals
as required by applicable law;
(p)dispositions of property to the extent that (1) such property is exchanged for
credit (of comparable or greater Fair Market Value as determined in good faith by Intermediate
Holdings) against the purchase price of similar replacement property that is purchased within 365
days thereof or (2) the proceeds of such disposition are promptly applied to the purchase price of
such replacement property (which replacement property is actually purchased within 365 days
thereof);
(q)leases, assignments, subleases, licenses, or sublicenses (other than with respect
to Intellectual Property), in each case in the ordinary course of business and which do not
materially interfere with the business of Intermediate Holdings and the Restricted Subsidiaries,
taken as a whole;
(r)dispositions of non-core assets acquired in connection with any Permitted
Acquisition or Investment permitted hereunder (including to obtain the approval of any applicable
antitrust authority); provided that the Fair Market Value of the assets so disposed in any such
disposition shall not exceed a de minimis amount (as determined by Intermediate Holdings in
good faith) of the Fair Market Value of the total assets acquired in such Permitted Acquisition or
other Investment;
(s)any swap of assets in exchange for services or other assets in the ordinary course
of business of comparable or greater Fair Market Value or usefulness to the business of
Intermediate Holdings and its Restricted Subsidiaries, as a whole, as determined in good faith by
Intermediate Holdings;
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(t)any transfer of Accounts in connection with customary factoring arrangements
pursuant to (x) arrangements in effect on the Closing Date and set forth on Schedule 10.4 hereof
or an amended or modified facility or replacement thereof and (y) similar arrangements to those
in effect on or prior to the Closing Date entered into in the ordinary course of business on market
terms generating Net Cash Proceeds, not to exceed an aggregate maximum permitted amount for
all such arrangements described in the foregoing subclauses (x) and (y) at any time in effect
equal to the greater of $14,000,000 and 35% of Consolidated EBITDA for the most recently
ended Test Period (calculated on a Pro Forma Basis) at any time outstanding (each, a “Permitted
Receivables Financing”); and
(u)other dispositions with a Fair Market Value not to exceed the greater of (x)
$16,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period
(calculated on a Pro Forma Basis) in the aggregate since the Closing Date.
“Asset Sale Prepayment Event” shall mean any Asset Sale, or series of related Asset Sales,
subject to the Reinvestment Period allowed in Section 10.4; provided, that with respect to any Asset Sale
Prepayment Event, the Borrower shall not be obligated to make any prepayment otherwise required by
Section 5.2 unless the aggregate amount of Net Cash Proceeds from such Asset Sale Prepayment Event,
after giving effect to the reinvestment rights set forth herein, exceeds the greater of (i) $2,000,000 and (ii)
5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis).
“Assignment and Acceptance” shall mean (i) an assignment and acceptance substantially in the
form of Exhibit F, or such other form as may be approved by the Administrative Agent and (ii) in the
case of any assignment of Term Loans in connection with a Permitted Debt Exchange conducted in
accordance with Section 2.15, such form of assignment (if any) as may be agreed by the Administrative
Agent and the Borrower in accordance with Section 2.15(a).
“Assignment Taxes” shall have the meaning provided in the definition of “Other Taxes”.
“Auction Agent” shall mean (i) the Administrative Agent or (ii) any other financial institution or
advisor employed by a Parent Guarantor, the Borrower, or any Subsidiary (whether or not an Affiliate of
the Administrative Agent) to act as an arranger in connection with any Permitted Debt Exchange
pursuant to Section 2.15 or Dutch auction pursuant to Section 13.6(h); provided that none of the Parent
Guarantors or the Borrower shall designate the Administrative Agent as the Auction Agent without the
written consent of the Administrative Agent (it being understood that the Administrative Agent shall be
under no obligation to agree to act as the Auction Agent); provided, further, that neither Holdings nor any
of its Subsidiaries may act as the Auction Agent.
“Authorized Officer” shall mean, with respect to any Person, any individual holding the
position of chairman of the board (if an officer), the Chief Executive Officer, President, the Chief
Financial Officer, the Treasurer, the Controller, the Vice President-Finance, a Senior Vice President, a
Director, a Manager, the Secretary, the Assistant Secretary or any other senior officer or agent with
express authority to act on behalf of such Person designated as such by the board of directors or other
managing authority of such Person.
“Auto-Extension Letter of Credit” shall have the meaning provided in Section 3.2(d).
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“Available Amount” shall mean, at any time, an amount (which shall not be less than zero)
equal to:
(a)the greater of (i) $14,000,000 and (ii) 35% of Consolidated EBITDA for the most
recently ended Test Period (calculated on a Pro Forma Basis), plus
(b)Retained Excess Cash Flow (which amount shall be deemed to be zero for each Fiscal
Quarter if the Consolidated Net Income for such Fiscal Quarter is less than zero) (this
clause (b), the “Available Amount Builder Component”), plus
(c)100% of the aggregate net cash proceeds and the Fair Market Value of marketable
securities or other property received by Intermediate Holdings since immediately after
the Closing Date from the issue or sale of (x) Equity Interests of Intermediate Holdings
(other than Disqualified Stock and other than any Cure Amount) or (y) Indebtedness of
Intermediate Holdings or a Restricted Subsidiary that has been converted into or
exchanged for such Equity Interests of Intermediate Holdings or any direct or indirect
parent company of Intermediate Holdings, plus
(d)100% of the aggregate amount of cash and the Fair Market Value of marketable
securities or other property contributed to the capital of Intermediate Holdings or
received by Intermediate Holdings after the sale of equity by Holdings (or its direct or
indirect Parent Entity) following the Closing Date that is not otherwise applied (other
than Disqualified Stock and other than any Cure Amount), plus
(e)100% of the aggregate amount received in cash and the Fair Market Value of
marketable securities or other property received by Intermediate Holdings by means of
(A) the sale or other disposition (other than to Intermediate Holdings or a Restricted
Subsidiary) of Investments made by Intermediate Holdings and the Restricted
Subsidiaries pursuant to Section 10.6(s) and repurchases and redemptions of such
Investments from Intermediate Holdings and the Restricted Subsidiaries and
repayments of loans or advances, and releases of guarantees, which constitute
Investments made by Intermediate Holdings or the Restricted Subsidiaries pursuant to
Section 10.6(s), in each case, after the Closing Date and not in excess of the amount of
such original Investment; (B) returns, profits, distributions and similar amounts
received by Intermediate Holdings and the Restricted Subsidiaries on Investments
made pursuant to Section 10.6(s) and not in excess of the amount of such original
Investment; or (C) the sale (other than to Intermediate Holdings or a Restricted
Subsidiary) of the stock of an Unrestricted Subsidiary or a distribution from an
Unrestricted Subsidiary or a dividend from an Unrestricted Subsidiary after the
Closing Date, plus
(f)[reserved], plus
(g)[reserved]; minus
(h)an amount equal to the sum of (i) Restricted Payments made pursuant to
Section 10.5(i), plus (ii) Investments made pursuant to Section 10.6(s), plus
(iii) payments or distributions in respect of Junior Debt made pursuant to Section
10.7(e), in each case, made after the Closing Date and prior to such time, or
contemporaneously therewith.
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“Available Amount Builder Component” shall have the meaning set forth in the definition of
“Available Amount”.
“Available Commitment” shall mean, at any time, an amount equal to the excess, if any, of
(i) the amount of the Total Revolving Credit Commitment over (ii) the sum of the aggregate principal
amount of, without duplication, (a) all Revolving Credit Loans then outstanding and (b) the aggregate
Letters of Credit Outstanding at such time.
“Available Tenor” shall mean, as of any date of determination and with respect to the
then-current Benchmark, as applicable, 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 Section 1.14.
“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 have the meaning provided in Section 11.5.
“Benchmark” or “Benchmark Rate” shall mean, initially, for any Interest Period for a
Benchmark Rate Loan, Term SOFR; provided that, if a Benchmark Transition Event, and the related
Benchmark Replacement Date have occurred with respect to Term SOFR or the then-current Benchmark
Rate, then “Benchmark Rate” means the applicable Benchmark Replacement to the extent that such
Benchmark Replacement has replaced such prior Benchmark rate pursuant to Section 1.14; provided,
further, that, notwithstanding the foregoing, the Benchmark Rate shall at no time be less than the Floor.
“Benchmark Rate Borrowing” shall mean a Borrowing comprised of Benchmark Rate Loans.
“Benchmark Rate Loan” shall mean a Loan bearing interest at a rate determined by reference to
the Benchmark Rate.
“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
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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 dollar-denominated syndicated credit facilities at such time.
“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 Adjusted Daily Simple SOFR;
(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 (i) any selection or recommendation of a replacement
Benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii)
any evolving or then-prevailing market convention for determining a Benchmark rate as a replacement
for the then-current Benchmark for dollar-denominated syndicated credit facilities at such time in the
United States and (b) the related Benchmark Replacement Adjustment;
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 the purposes of this
Agreement and the other Credit 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
(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 Interest Rate Determination Date in respect of any
determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Interest
Rate Determination Date for such determination and (ii) the “Benchmark Replacement Date” will be
deemed to have occurred in the case of clause (1) or (2) 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).
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“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 Board
of Governors, the Federal Reserve Bank of New York, the 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.
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, the period (if any) (a) beginning at the time
that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has
replaced the then-current Benchmark for all purposes hereunder and under any Credit Document in
accordance with Section 1.14(e) and (b) ending at the time that a Benchmark Replacement has replaced
the then-current Benchmark for all purposes hereunder and under any Credit Document in accordance
with Section 1.14(e).
“Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership
required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” shall mean 31 C.F.R. §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”.
“Benefited Lender” shall have the meaning provided in Section 13.8(a).
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“BHC Act Affiliate” of a party shall mean an “affiliate” 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
(or any successor).
“Bonding Obligations” shall have the meaning provided in the definition of the term
“Consolidated Total Debt”.
“Borrower” shall have the meaning provided in the preamble to this Agreement.
“Borrower Joinder Agreement” shall mean the joinder hereto by any Additional Borrower, as a
new Borrower pursuant to a joinder agreement in substantially the form of Exhibit N hereto, among such
Additional Borrower, the Borrower and the Administrative Agent.
“Borrower Materials” shall have the meaning provided in Section 13.17(b).
“Borrowing” shall mean (i) Loans of the same Class and Type, made, converted, or continued on
the same date and, in the case of Benchmark Rate Loans, as to which a single Interest Period is in effect
or (ii) a Swingline Loan.
“Business Day” shall mean any day excluding Saturday, Sunday, and any other day on which
banking institutions in New York City are authorized by law or other governmental actions to close.
“Capital Expenditures” shall mean, for any period, the aggregate of all expenditures (whether
paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under
Capital Leases) by Intermediate Holdings and the Restricted Subsidiaries during such period that, in
conformity with GAAP, are or are required to be included as additions during such period to property,
plant, or equipment reflected in the consolidated balance sheet of Intermediate Holdings and the
Restricted Subsidiaries (including capitalized software expenditures, website development costs, website
content development costs, customer acquisition costs and incentive payments, conversion costs, and
contract acquisition costs).
“Capital Lease” shall mean, as applied to any Person, any lease of any property (whether real,
personal, or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to be,
accounted for as a capital lease on the balance sheet of that Person, subject to Section 1.12.
“Capital Stock” shall mean (i) in the case of a corporation, corporate stock, (ii) in the case of an
association or business entity, any and all shares, interests, participations, rights, or other equivalents
(however designated) of corporate stock, (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited), and (iv) any other interest or
participation that confers on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person (it being understood and agreed, for the avoidance of doubt,
that “cash-settled phantom appreciation programs” in connection with employee benefits that do not
require a dividend or distribution shall not constitute Capital Stock).
“Capitalized Lease Obligation” 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 a balance sheet (excluding the footnotes thereto) prepared in
accordance with GAAP, subject to Section 1.12.
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“Cash Collateral” shall have a meaning correlative to the immediately succeeding paragraph
and shall include the proceeds of such cash collateral and other credit support.
“Cash Collateralize” shall mean to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of one or more of the Letter of Credit Issuers or the Revolving Credit Lenders
(including the Swingline Lender), as collateral for L/C Obligations or obligations of the Revolving Credit
Lenders (including those of the Swingline Lender) to fund participations in respect of L/C Obligations,
cash or deposit account balances or, if the Administrative Agent and the Letter of Credit Issuer shall
agree in their sole discretion, other credit support.
“Cash Equivalents” shall mean:
(i)Dollars,
(ii)(a) Euro, Pounds Sterling, Yen, Swiss Francs, Canadian Dollars, or any national
currency of any member state in the European Union or (b) local currencies held from time to
time in the ordinary course of business,
(iii)securities issued or directly and fully and unconditionally guaranteed or insured
by the United States government or any country that is a member state of the European Union or
any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a
full faith and credit obligation of such government with maturities of 24 months or less from the
date of acquisition,
(iv)certificates of deposit, time deposits, and eurodollar time deposits with maturities
of one year or less from the date of acquisition, bankers’ acceptances with maturities not
exceeding one year, and overnight bank deposits, in each case with any commercial bank having
capital and surplus of not less than $100,000,000,
(v)repurchase obligations for underlying securities of the types described in
clauses (iii), (iv), and (ix) entered into with any financial institution meeting the qualifications
specified in clause (iv) above,
(vi)commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P and in
each case maturing within 24 months after the date of creation thereof,
(vii)marketable short-term money market and similar securities having a rating of at
least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s
nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized
ratings agency) and in each case maturing within 24 months after the date of creation or
acquisition thereof,
(viii)readily marketable direct obligations issued by any state, commonwealth, or
territory of the United States or any political subdivision or taxing authority thereof having one
of the two highest rating categories obtainable from either Moody’s or S&P with maturities of 24
months or less from the date of acquisition,
(ix)indebtedness or preferred stock issued by Persons with a rating of “A” or higher
from S&P or “A2” or higher from Moody’s with maturities of 24 months or less from the date of
acquisition,
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(x)solely with respect to any Foreign Subsidiary: (a) obligations of the national
government of the country in which such Foreign Subsidiary maintains its chief executive office
and principal place of business provided such country is a member of the Organization for
Economic Cooperation and Development, in each case maturing within one year after the date of
investment therein, (b) 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 and principal place of business
provided such country is a member of the Organization for Economic Cooperation and
Development, 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 24
months from the date of acquisition, and (c) the equivalent of demand deposit accounts which are
maintained with an Approved Foreign Bank, in each case, customarily used by corporations for
cash management purposes in any jurisdiction outside the United States to the extent reasonably
required in connection with any business conducted by such Foreign Subsidiary organized in
such jurisdiction,
(xi)in the case of investments by any Foreign Subsidiary or investments made in a
country outside the United States, Cash Equivalents shall also include investments of the type
and maturity described in clauses (i) through (ix) above of foreign obligors, which investments
have ratings, described in such clauses or equivalent ratings from comparable foreign rating
agencies, and
(xii)investment funds investing 90% of their assets in securities of the types
described in clauses (i) through (ix) above.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in
currencies other than those set forth in clauses (i) and (ii) above; provided that such amounts are
converted into any currency listed in clauses (i) and (ii) as promptly as practicable and in any event
within ten Business Days following the receipt of such amounts.
For the avoidance of doubt, any items identified as Cash Equivalents under this definition will be
deemed to be Cash Equivalents for all purposes under the Credit Documents regardless of the treatment
of such items under GAAP.
“Cash Management Agreement” shall mean any agreement or arrangement to provide Cash
Management Services.
“Cash Management Bank” shall mean (i) any Person that, at the time it enters into a Cash
Management Agreement with Holdings, Intermediate Holdings, the Borrower or any Restricted
Subsidiary, is an Agent or a Lender or an Affiliate of an Agent or a Lender or (ii) any Person that is
designated by Intermediate Holdings as a “Cash Management Bank” by written notice to the
Administrative Agent substantially in the form of Exhibit L-2 or such other form reasonably acceptable
to the Administrative Agent.
“Cash Management Services” shall mean any one or more of the following types of services or
facilities: (i) commercial credit cards, merchant card services, purchase or debit cards, including non-card
e-payables services, or electronic funds transfer services, (ii) treasury management services (including
controlled disbursement, overdraft automatic clearing house fund transfer services, return items, and
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interstate depository network services), (iii) any other demand deposit or operating account relationships
or other cash management services, including pursuant to any Cash Management Agreements and
(iv) and other services related, ancillary or complementary to the foregoing.
“Casualty Event” shall mean, with respect to any property of any Person, any loss of or damage
to, or any condemnation or other taking by a Governmental Authority of, such property for which such
Person or any of its Restricted Subsidiaries receives insurance proceeds or proceeds of a condemnation
award in respect of any equipment, fixed assets, or real property (including any improvements thereon) to
replace or repair such equipment, fixed assets, or real property; provided, that with respect to any
Casualty Event or series of related Casualty Events, the Borrower shall not be obligated to make any
prepayment otherwise required by Section 5.2 unless the aggregate amount of Net Cash Proceeds from
such Casualty Event or series of related Casualty Events, as applicable, after giving effect to the
reinvestment rights set forth herein, exceeds the greater of (i) $2,000,000 and (ii) 5% of Consolidated
EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis).
“CFC” shall mean a direct or indirect Subsidiary of Intermediate Holdings that is a “controlled
foreign corporation” within the meaning of Section 957 of the Code.
“CFC Holding Company” shall mean any direct or indirect Subsidiary of Intermediate Holdings
that has no material assets other than (as determined in the good faith of Intermediate Holdings) (a)
Capital Stock and/or Stock Equivalents (including, for this purpose, any debt or other instrument treated
as equity for U.S. federal income tax purposes) of one or more Foreign Subsidiaries that are CFCs or one
or more other CFC Holding Companies and (b) immaterial amounts of cash or Cash Equivalents and
other immaterial assets being held on a temporary basis incidental to the ownership of such assets
described in clause (a) hereof.
“Change in Law” shall mean (i) the adoption of any law, treaty, order, policy, rule, or regulation
after the Closing Date, (ii) any change in any law, treaty, order, policy, rule, or regulation or in the
interpretation or application thereof by any Governmental Authority after the Closing Date or
(iii) compliance by any Lender, Letter of Credit Issuer or L/C Participant with any guideline, request,
directive, or order issued or made after the Closing Date by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law), including, for avoidance of doubt,
any such adoption, change or compliance in respect of (a) the Dodd-Frank Wall Street Reform and
Consumer Protection Act and all requests, rules, regulations, guidelines, or directives thereunder or
issued in connection therewith and (b) all requests, rules, guidelines, requirements, or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or
any successor or similar authority), or the United States or foreign regulatory authorities pursuant to
Basel III in each case, regardless of the date enacted, adopted or issued.
“Change of Control” shall mean and be deemed to have occurred if (i) at any time prior to an
IPO, the Permitted Holders shall at any time not own, in the aggregate, directly or indirectly, beneficially
and of record, at least 50% of the voting power of the outstanding Voting Stock of Holdings; (ii) at any
time after an IPO, any Person, entity, or “group” (within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act), other than the Permitted Holders, shall at any time have acquired direct or
indirect beneficial ownership of a percentage of the voting power of the outstanding Voting Stock of
Holdings that exceeds 35% thereof or the amount held by Permitted Holders, unless, in case of clause (i)
or clause (ii) above, the Permitted Holders have, at such time, the right or the ability by voting power,
contract, or otherwise to elect or designate for election at least a majority of the board of directors or
other managing authority of Holdings; (iii) Holdings shall cease to beneficially own, directly or indirectly,
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100% of the issued and outstanding equity interests of Intermediate Holdings; or (iv) Intermediate
Holdings shall cease to beneficially own, directly or indirectly, 100% of the issued and outstanding equity
interests of Borrower. For the purpose of clauses (i), (ii) and (iii), at any time when a majority of the
outstanding Voting Stock of Holdings is directly or indirectly owned by a Parent Entity or, if applicable,
a Parent Entity acts as the manager, managing member or general partner of Holdings, references in this
definition to “Holdings”, shall be deemed to refer to the ultimate Parent Entity that directly or indirectly
owns such Voting Stock or acts as (or, if applicable, is a Parent Entity that directly or indirectly owns a
majority of the outstanding Voting Stock of) such manager, managing member or general partner. For
purposes of this definition, (i) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5
under the Securities Exchange Act, (ii) the phrase Person or “group” is within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act, but excluding any employee benefit plan of such Person or
“group” and its subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan, (iii) if any Person or “group” includes one or more Permitted Holders, the
issued and outstanding Equity Interests of Holdings, the IPO Entity or Intermediate Holdings, as
applicable, directly or indirectly owned by the Permitted Holders that are part of such Person or “group”
shall not be treated as being owned by such Person or “group” for purposes of determining whether clause
(ii) of this definition is triggered, and (iv) a Person or group shall not be deemed to beneficially own
Voting Stock subject 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 such Voting Stock in connection with the transactions contemplated
by such agreement.
“Claims” shall have the meaning provided in the definition of “Environmental Claims”.
“Class” (i) when used in reference to any Loan or Borrowing, shall refer to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Credit Loans, Additional Revolving Credit
Loans, New Revolving Credit Loans, Extended Revolving Credit Loans (of the same Extension Series),
Initial Term Loans, Delayed Draw Term Loans, New Term Loans (of each Series), Extended Term Loans
(of the same Extension Series) or Indebtedness under Replacement Facilities (of the same Series) or
Swingline Loans and (ii) when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Credit Commitment, an Additional Revolving Credit Commitment, a New
Revolving Credit Commitment, an Extended Revolving Credit Commitment (of the same Extension
Series), an Initial Term Loan Commitment, an Amendment No. 1 Incremental Term Loan Commitment,
aand Amendment No. 3 Incremental Term Loan Commitment, a Delayed Draw Term Loan
Commitment, a Replacement Facility Commitment, or a New Term Loan Commitment.
“Closing Date” shall mean January 2, 2025.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” shall mean all property pledged or mortgaged or purported to be pledged or
mortgaged pursuant to the Security Documents, excluding in all events Excluded Property.
“Collateral Agent” shall mean MidCap, as collateral agent under the Security Documents, or
any successor collateral agent pursuant to Section 12.9, and any Affiliate or designee of MidCap, may act
as the Collateral Agent under any Credit Document.
“Commitment Fee” shall have the meaning provided in Section 4.1(a).
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“Commitment Fee Rate” shall mean a rate per annum equal to 0.50%. Notwithstanding the
foregoing, (a) the Commitment Fee Rate in respect of any Class of Extended Revolving Credit
Commitments or any Extended Revolving Credit Loans shall be the applicable percentages per annum set
forth in the relevant Extension Amendment and (b) the Commitment Fee Rate in respect of any Class of
Refinancing Indebtedness that would constitute Revolving Credit Commitments shall be the applicable
percentages per annum set forth in the relevant agreement.
“Commitments” shall mean, with respect to each Lender (to the extent applicable), such
Lender’s Initial Term Loan Commitment, Amendment No. 1 Incremental Term Loan Commitment,
Amendment No. 3 Incremental Term Loan Commitment, Delayed Draw Term Loan Commitment, New
Term Loan Commitment, Revolving Credit Commitment, Amendment No. 1 Incremental Revolving
Credit Commitment, New Revolving Credit Commitment, Extended Revolving Credit Commitment,
Additional Revolving Credit Commitment, or Incremental Revolving Credit 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 have the meaning provided in Section 13.17. “Company” shall have
the meaning provided in the preamble to this Agreement.
“Compliance Certificate” shall mean a certificate of a responsible financial or accounting officer
or director of Intermediate Holdings substantially in the form of Exhibit M delivered pursuant to Section
9.1(d) for the applicable Test Period.
“Confidential Information” shall have the meaning provided in Section 13.16.
“Conforming Changes” shall mean, with respect to either the use or administration of Term
SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any
technical, administrative or operational changes (including changes to the definition of “ABR,” the
definition of “Business Day,” the definition of “US Government Securities Business Day,” the definition
of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest
period”), timing and frequency of determining rates and making payments of interest, timing of
borrowing requests or prepayment, conversion or continuation notices, the applicability and length of
lookback periods, the applicability of Section 2.11 and other technical, administrative or operational
matters) that the Administrative Agent, in consultation with the Borrower, decides may be appropriate to
reflect the adoption and implementation of any such rate or to permit the use and administration thereof
by the Administrative Agent in a manner substantially consistent with market practice (or, if the
Administrative Agent, in consultation with the Borrower, decides that adoption of any portion of such
market practice is not administratively feasible or if the Administrative Agent, in consultation with the
Borrower, determines that no market practice for the administration of any such rate exists, in such other
manner of administration as the Administrative Agent, in consultation with the Borrower, decides is
reasonably necessary in connection with the administration of this Agreement and the other Credit
Documents).
“Consolidated Depreciation and Amortization Expense” shall mean with respect to any Person
for any period, the total amount of depreciation and amortization expense, including the amortization of
deferred financing fees or costs, debt issuance costs, commissions, fees, and expenses, capitalized
expenditures (including capitalized software expenditures), customer acquisition costs, the amortization
of original issue discount resulting from the issuance of Indebtedness at less than par and incentive
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payments, conversion costs, and contract acquisition costs of such Person and its Restricted Subsidiaries
for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated EBITDA” shall mean, with respect to any Person and its Restricted Subsidiaries
on a consolidated basis for any period, the Consolidated Net Income of such Person for such period:
(i)increased (without duplication) and to the extent not already included in
Consolidated Net Income by:
(a)provision for taxes based on gross receipts or income or profits or capital,
including, without limitation, U.S. federal, state, non-U.S., franchise, excise, value added,
and similar taxes and foreign withholding taxes of such Person paid or accrued during
such period deducted, including any penalties and interest related to such taxes or arising
from any tax examinations (and not added back) in computing Consolidated Net Income,
plus
(b)Fixed Charges of such Person for such period (including net losses on
Hedging Obligations or other derivative instruments entered into for the purpose of
hedging interest rate risk to the extent included in Fixed Charges), together with items
excluded from the definition of Consolidated Interest Expense and any non-cash interest
expense, in each case to the extent the same were deducted (and not added back) in
calculating such Consolidated Net Income, plus
(c)Consolidated Depreciation and Amortization Expense of such Person for
such period to the extent the same were deducted (and not added back) in computing
Consolidated Net Income, plus
(d)any expenses, fees, charges, or losses (other than depreciation or
amortization expense) related to any Equity Offering, Permitted Investment, Restricted
Payment, acquisition, disposition, recapitalization, or the incurrence of Indebtedness
permitted to be incurred by this Agreement (including a refinancing thereof) (whether or
not successful and including any such transaction consummated prior to the Closing
Date), including (1) such fees, expenses, or charges related to the incurrence of the Loans
hereunder and all Transaction Expenses, (2) such fees, expenses, or charges related to the
offering of the Credit Documents and any other credit facilities or debt issuances, and (3)
any amendment or other modification of the Loans hereunder or other Indebtedness, and,
in each case, deducted (and not added back) in computing Consolidated Net Income, plus
(e)any other non-cash charges, including any write offs, write downs,
expenses, losses, any effects of adjustments resulting from the application of purchase
accounting, purchase price accounting (including any step-up in inventory and loss of
profit on the acquired inventory) or other items to the extent the same were deducted
(and not added back) in computing Consolidated Net Income (provided that if any such
non-cash charges represent an accrual or reserve for potential cash items in any future
period, the cash payment in respect thereof in such future period shall be deducted from
Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item
that was paid in a prior period), plus
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(f)the amount of any net income (loss) attributable to non-controlling
interests in any non-Wholly-Owned Subsidiary deducted (and not added back) in such
period in calculating Consolidated Net Income, plus
(g)the amount of management, monitoring, consulting and advisory fees
(including termination fees) and related indemnities and expenses paid or accrued in such
period to the Sponsor or its Affiliates and permitted to be paid or accrued pursuant to the
terms of this Agreement; plus
(h)costs of surety bonds incurred in such period in connection with
financing activities, plus
(i)the amount of any “run rate” cost savings, operating expense reductions,
operating enhancements and other cost synergies (in each case, net of the amount of
actual benefits realized prior to or during such period from such actions and costs
incurred to achieve the same) that are reasonably identifiable and factually supportable
related to (A) the Transactions and (B) mergers and other business combinations,
acquisitions, dispositions and other specified transactions, restructurings, cost savings
initiatives and other initiatives (including in respect of the pro forma adjustments and
addbacks set forth in clause (v)(B) below and including any charges and expenses
incurred in connection with Capital Expenditures for future expansion and business
optimization projects which cost savings, operating expense reductions, operating
enhancements and other cost synergies shall be calculated on a Pro Forma Basis as
though such cost savings, operating expense reductions, operating enhancements and
cost synergies had been realized on the first day of such period); provided that such cost
savings, operating expense reductions, operating enhancements and other cost synergies
are projected by Intermediate Holdings in good faith to result from actions that have been
either taken, with respect to which substantial steps have been taken or are committed to
be taken or planned to be taken within (x) 24 months of the Closing Date with respect to
clause (A) above and (y) 24 months of such merger or other business combination,
acquisition, disposition or other specified transaction, restructuring, cost savings initiative
or other initiative with respect to clause (B) above; plus
(j)any costs or expense incurred by Intermediate Holdings or a Restricted
Subsidiary pursuant to any management equity plan or stock option or phantom equity
plan or any other management or employee benefit plan or agreement or any stock
subscription or shareholder agreement, to the extent that such cost or expenses are
funded with cash proceeds contributed to the capital of Intermediate Holdings or net cash
proceeds of an issuance of Equity Interests of Intermediate Holdings (other than
Disqualified Stock), plus
(k)the amount of expenses relating to payments made to option, phantom
equity or profits interest holders of Intermediate Holdings or any of its any direct or
indirect subsidiaries or parent companies in connection with, or as a result of, any
distribution being made to equity holders 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 equity holders at the time of, and entitled
to share in, such distribution, in each case to the extent permitted under this Agreement
and expenses relating to distributions made to equity holders of such Person or its direct
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or indirect parent companies resulting from the application of Financial Accounting
Standards Codification Topic 718—Compensation—Stock Compensation (formerly
Financial Accounting Standards Board Statement No. 123 (Revised 2004)), plus
(l)with respect to any joint venture that is not a Restricted Subsidiary, an
amount equal to the proportion of those items described in clauses (a) and (c) above
relating to such joint venture corresponding to Intermediate Holdings and the Restricted
Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income
(determined as if such joint venture were a Restricted Subsidiary), plus
(m)cash receipts (or any netting arrangements resulting in reduced cash
expenses) not included in Consolidated EBITDA in any period solely to the extent that
the corresponding non-cash gains relating to such receipts were deducted in the
calculation of Consolidated EBITDA pursuant to clause (ii) below for any previous
period and not added back, plus
(n)any expenses and charges that are reimbursed by indemnification or
other similar provisions in connection with any investment or any sale, conveyance,
transfer, or other disposition of assets (in each case, to the extent covered by contractual
indemnification or reimbursement agreements) and (1) to the extent covered by
insurance and actually reimbursed or otherwise paid, or, (2) so long as Intermediate
Holdings has made a determination that there exists reasonable evidence that such
amount will in fact be reimbursed by the indemnitor, third party counter party or insurer
and only to the extent that such amount is (A) not denied by the applicable indemnitor or
counterparty or carrier in writing within 180 days and (B) in fact reimbursed within 365
days of the date of the determination by Intermediate Holdings that there exists such
evidence (with a deduction for any amount so added back to the extent not so reimbursed
within such 365 days) or reimbursed by a third party, expenses with respect to liability or
casualty events or business interruption, plus
(o)charges, expenses and other items (x) described in the Financial Model
and (y) described in the quality of earnings report delivered to the Lead Arrangers prior to
the Closing Date, plus
(p)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 Topic 715—Compensation—Retirement Benefits, and any other
items of a similar nature, plus
(q)retention, recruiting, relocation, expansion and signing bonuses or
completion bonuses and expenses, stock option and other equity-based compensation
expenses, expenses related to cost savings initiatives, severance costs, transaction fees
and expenses and management, monitoring, consulting and advisory fees, indemnities
and related expenses paid or accrued in such Test Period to (or on behalf of) the Sponsor
pursuant to the Advisory Services Agreement, including, without limitation, any one
time expenses relating to enhanced accounting functions or other transaction costs,
including those associated with becoming a standalone entity or a public company;
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provided that any fees payable to Sponsor shall be limited to such amounts permitted to
be paid pursuant to the terms of this Agreement; plus
(r)other accruals and expenses (including rationalization, legal, tax,
structuring and other costs and expenses) related to the Transactions, Permitted
Acquisitions, Investments, Restricted Payments and dispositions or issuance of debt or
equity, whether or not consummated and all cash dividends (and non-cash dividend
expenses) on any series of preferred stock to the extent paid; plus
(s)adjustments set forth in any quality of earnings reports delivered to the
Administrative Agent in connection with Permitted Acquisitions or similar Investments
consummated after the Closing Date that are prepared by a nationally recognized firm or
other firm reasonably acceptable to the Administrative Agent (it being understood and
agreed that Forvis Mazars, LLP and any of the “Big Four” accounting firms are
acceptable); plus
(t)non-recurring litigation or claim settlement charges or expenses; plus
(u)pre-opening expenses and “start-up costs” (as determined by
Intermediate Holdings) related to the acquisition, opening and organizing of any new
facility or new business line and all other location-specific costs with respect to any such
new facility or new business line, in each case (i) incurred prior to the first day any such
new facility or new business is determined by Intermediate Holdings to be open for
business or operation and/or (ii) costs associated with the construction of any new
facility to the extent incurred within four Fiscal Quarters following the opening of such
new facilities (without duplication of amounts in subclause (i) above); plus
(v)(A) severance, relocation costs, integration and facilities’ or bases’
opening costs, costs related to closure/consolidation of facilities and other business
optimization expenses (including related to new product introductions and other strategic
or cost savings initiatives), (B) restructuring charges and related charges, accruals or
reserves (including restructuring and integration costs related to acquisitions and
adjustments to existing reserves), whether or not classified as restructuring expense on
the consolidated financial statements, and (C) signing costs, retention or completion
bonuses, other executive recruiting and retention costs, transition costs, costs related to
closure/consolidation of facilities or bases 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);
plus
(w)[reserved]; plus
(x)one-time integration, separation or carve-out charges, expenses or losses
in an aggregate amount not to exceed 15% of Consolidated EBITDA for such period; plus
provided, that the aggregate amount included in Consolidated EBITDA pursuant to clauses (i),
(u) and (v)(B) (other than any amounts included pursuant to adjustments consistent with
Regulation S-X (as in effect prior to January 1, 2021)) of this definition for any period shall not
exceed 35% of Consolidated EBITDA for such period (with such calculation being made after
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giving effect to all add-backs and adjustments and, for the avoidance of doubt, after giving Pro
Forma Effect to any action or transaction);
(ii)decreased by (without duplication) non-cash gains increasing Consolidated Net
Income of such Person for such period, excluding any non-cash gains which represent the
reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced Consolidated
EBITDA in any prior period other than non-cash gains relating to the application of Financial
Accounting Standards Codification Topic 840— Leases (formerly Financial Accounting
Standards Board Statement No. 13); provided that, to the extent non-cash gains are deducted
pursuant to this clause (ii) for any previous period and not otherwise added back to Consolidated
EBITDA, Consolidated EBITDA shall be increased by the amount of any cash receipts (or any
netting arrangements resulting in reduced cash expenses) in respect of such non-cash gains
received in subsequent periods to the extent not already included therein,
(iii)increased or decreased by (without duplication):
(a)any net gain or loss resulting in such period from currency gains or
losses related to Indebtedness, intercompany balances, and other balance sheet items, plus
or minus, as the case may be, and
(b)any net gain or loss resulting in such period from Hedging Obligations,
and the application of Financial Accounting Standards Codification Topic 815—
Derivatives and Hedging (ASC 815) (formerly Financing Accounting Standards Board
Statement No. 133), and its related pronouncements and interpretations, or the equivalent
accounting standard under GAAP or an alternative basis of accounting applied in lieu of
GAAP.
For the avoidance of doubt:
(i)to the extent included in Consolidated Net Income, there shall be excluded in
determining Consolidated EBITDA for any period any adjustments resulting from the application of ASC
815 and its related pronouncements and interpretations, or the equivalent accounting standard under
GAAP or an alternative basis of accounting applied in lieu of GAAP,
(ii)there shall be included in determining Consolidated EBITDA for any period,
without duplication, (1) the Acquired EBITDA of any Person or business, or attributable to any property,
store or other asset acquired by Intermediate Holdings or any Restricted Subsidiary during such period
(but not the Acquired EBITDA of any related Person or business or any Acquired EBITDA attributable
to any assets or property, in each case to the extent not so acquired) to the extent not subsequently sold,
transferred, abandoned, or otherwise disposed by Intermediate Holdings or such Restricted Subsidiary
during such period (each such Person, business, property, or asset acquired 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”), based on the actual Acquired EBITDA of such Acquired Entity or Business or
Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such
acquisition or conversion) and (2) an adjustment in respect of each Acquired Entity or Business equal to
the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period
(including the portion thereof occurring prior to such acquisition); and
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(iii)to the extent included in Consolidated Net Income, there shall be excluded in
determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, store,
business, or asset sold, transferred, abandoned, or otherwise disposed of, closed or classified as
discontinued operations by Intermediate Holdings or any Restricted Subsidiary during such period (each
such Person, property, store business, or asset so sold or disposed of, a “Sold Entity or Business”), and
the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary
during such period (each, a “Converted Unrestricted Subsidiary”) based on the actual 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, or disposition or conversion);
provided that, for the avoidance of doubt, (i) notwithstanding any classification under GAAP of any
Person or business in respect of which a definitive agreement for the disposition thereof has been entered
into as discontinued operations, the Disposed EBITDA of such Person or business shall not be excluded
pursuant to this paragraph until such disposition shall have been consummated and (ii) Consolidated
EBITDA of any property, store or business that is relocated or whose territory is otherwise covered by an
existing store or planned to be covered by a new store within one year shall not be excluded pursuant to
this paragraph.
Notwithstanding anything to the contrary contained herein, for purposes of determining
Consolidated EBITDA under this Agreement for any Test Period that includes any of the fiscal quarters
listed below, Consolidated EBITDA for such fiscal quarters shall be as set forth below, in each case as
may be subject to addbacks and adjustments (without duplication) above set forth in clause (a)(i) and
sections relating to pro forma adjustments for the applicable Test Period.
Fiscal Quarter ending: | Consolidated EBITDA |
December 31, 2023 | $6,742,456 |
March 31, 2024 | $4,355,683 |
June 30, 2024 | $11,948,915 |
September 30, 2024 | $10,017,992 |
“Consolidated First Lien Secured Debt” shall mean Consolidated Total Debt that is secured by
a Lien on the Collateral that ranks on an equal priority basis (but without regard to the control of
remedies) with Liens on the Collateral securing the Obligations.
“Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio” shall mean, as of any
date of determination, the ratio of (a) Consolidated First Lien Secured Debt as of such date of
determination, to (b) Consolidated EBITDA of Intermediate Holdings for the Test Period most recently
ended on or prior to such date of determination.
“Consolidated Interest Expense” shall mean the sum of (1) cash interest expense (including
that attributable to Capitalized Lease Obligations), net of cash interest income of such Person and its
Restricted Subsidiaries with respect to all outstanding Indebtedness of such Person and its Restricted
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, but excluding, for
the avoidance of doubt, (a) amortization of deferred financing costs, debt issuance costs, commissions,
fees and expenses and any other amounts of non-cash interest (including as a result of the effects of
acquisition method accounting or pushdown accounting), (b) non-cash interest expense attributable to the
movement of the mark-to-market valuation of Indebtedness or obligations under Hedging Obligations or
other derivative instruments pursuant to FASB Accounting Standards Codification Topic 815—
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Derivatives and Hedging, (c) any one-time cash costs associated with breakage in respect of hedging
agreements for interest rates, (d) any “additional interest” owing pursuant to a registration rights
agreement with respect to any securities, (e) any payments with respect to make-whole premiums or other
breakage costs of any Indebtedness, including, without limitation, any Indebtedness issued in connection
with the Transactions, (f) penalties and interest relating to taxes, (g) accretion or accrual of discounted
liabilities not constituting Indebtedness, (h) interest expense attributable to a direct or indirect Parent
Entity resulting from push-down accounting, (i) any expense resulting from the discounting of
Indebtedness in connection with the application of recapitalization or purchase accounting, and (j) 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 thereto and with respect to the Transactions, any
acquisition or Investment permitted hereunder, all as calculated on a consolidated basis.
For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to
accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP.
“Consolidated Net Income” shall mean, with respect to any Person for any period, the aggregate
of the Net Income, of such Person and its Restricted Subsidiaries for such period, on a consolidated basis,
and on an after-tax basis to the extent appropriate, and otherwise determined in accordance with GAAP;
provided that, without duplication,
(i)extraordinary, non-recurring or unusual gains or losses (less all fees and
expenses relating thereto) or expenses (including 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 extraordinary, non-recurring or unusual items), shall be excluded,
(ii)the Net Income for such period shall not include 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, shall be excluded,
(iii)any gain (loss) (less all fees and expenses relating thereto) on asset sales,
disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary
course of business) or discontinued operations (but if such operations are classified as
discontinued due to the fact that they are subject to an agreement to dispose of such operations,
only when and to the extent such operations are actually disposed of), shall be excluded,
(iv)any effect of gains or losses (less all fees and expenses relating thereto)
attributable to asset dispositions or abandonments other than in the ordinary course of business, as
determined in good faith by the sole member or similar governing body of Intermediate Holdings,
shall be excluded,
(v)the Net Income for such period of any Person that is not, Intermediate Holdings
or a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of
accounting, shall be excluded; provided that Consolidated Net Income of Intermediate Holdings
shall be increased by the amount of dividends or distributions or other payments that are actually
paid in cash (or to the extent converted into cash or Cash Equivalents) to the referent Person or a
Restricted Subsidiary thereof in respect of such period,
(vi)effects of adjustments (including the effects of such adjustments pushed down to
Intermediate Holdings and the Restricted Subsidiaries) in any line item in such Person’s
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consolidated financial statements required or permitted by Financial Accounting Standards
Codification Topic 805 – Business Combinations and Topic 350 – Intangibles-Goodwill and
Other (ASC 805 and ASC 350) (formerly Financial Accounting Standards Board Statement Nos.
141 and 142, respectively) resulting from the application of purchase accounting, including in
relation to the Transactions and any acquisition that is consummated after the Closing Date or the
amortization or write-off of any amounts thereof, net of taxes, shall be excluded,
(vii)(a) any effect of income (loss) from the early extinguishment of Indebtedness or
Hedging Obligations or other derivative instruments (including deferred financing costs written
off and premiums paid), (b) any non-cash income (or loss) related to currency gains or losses
related to Indebtedness, intercompany balances, and other balance sheet items and to Hedging
Obligations pursuant to ASC 815 (or such successor provision), and (c) any non-cash expense,
income, or loss attributable to the movement in mark-to-market valuation of foreign currencies,
Indebtedness, or derivative instruments pursuant to GAAP, shall be excluded,
(viii)any impairment charge, asset write-off, or write-down pursuant to ASC 350 and
Financial Accounting Standards Codification Topic 360 – Impairment and Disposal of Long-
Lived Assets (ASC 360) (formerly Financial Accounting Standards Board Statement No. 144)
and the amortization of intangibles arising pursuant to ASC 805 shall be excluded,
(ix)(a) any non-cash compensation expense recorded from or in connection with any
share-based compensation arrangements including stock appreciation or similar rights, phantom
equity, stock options, restricted stock, capital or profits interests or other rights to officers,
directors, managers, or employees and (b) non-cash income (loss) attributable to deferred
compensation plans or trusts, shall be excluded,
(x)any fees and expenses incurred during such period, or any amortization thereof
for such period, in connection with any acquisition, Investment, recapitalization, asset sale,
issuance, or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or
amendment or 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 shall be excluded,
(xi)accruals and reserves (including contingent liabilities) that are established or
adjusted within twelve months after the Closing Date that are so required to be established as a
result of the Transactions in accordance with GAAP, or changes as a result of adoption or
modification of accounting policies, shall be excluded,
(xii)to the extent covered by insurance or indemnification and actually reimbursed,
or, so long as Intermediate Holdings has made a determination that there exists reasonable
evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and
only to the extent that such amount is (a) not denied by the applicable carrier or indemnifying
party in writing within 180 days and (b) in fact reimbursed within 365 days of the date of the
determination by Intermediate Holdings that there exists such evidence (with a deduction for any
amount so added back to the extent not so reimbursed within 365 days) or reimbursed by a third
party, losses and expenses with respect to liability or casualty events or business interruption shall
be excluded,
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(xiii)any deferred tax expense associated with tax deductions or net operating losses
arising as a result of the Transactions, or the release of any valuation allowance related to such
items, shall be excluded, and
(xiv)any costs or expenses incurred during such period relating to environmental
remediation, litigation, or other disputes in respect of events and exposures that occurred prior to
the Closing Date shall be excluded.
“Consolidated Senior Secured Debt” shall mean Consolidated Total Debt that is secured by a
Lien on the Collateral.
“Consolidated Senior Secured Debt to Consolidated EBITDA Ratio” shall mean, as of any
date of determination, the ratio of (a) Consolidated Senior Secured Debt as of such date of determination,
to (b) Consolidated EBITDA of Intermediate Holdings for the Test Period most recently ended on or
prior to such date of determination.
“Consolidated Total Assets” shall mean, as of any date of determination, the amount that
would, in conformity with GAAP, be set forth opposite the caption “total assets” (or any like caption) on
the most recent consolidated balance sheet of Intermediate Holdings and the Restricted Subsidiaries at
such date.
“Consolidated Total Debt” shall mean, as at any date of determination, (a) an amount equal to
the sum of the aggregate amount of all outstanding Indebtedness of Intermediate Holdings and its
Restricted Subsidiaries on a consolidated basis in accordance with GAAP consisting only of third party
Indebtedness for borrowed money, obligations in respect of surety, performance or similar bonds or
instruments issued in the ordinary course of business or consistent with past practice or industry norm
(such obligations, “Bonding Obligations”), Capitalized Lease Obligations, debt obligations evidenced
by promissory notes and similar instruments and purchase money Indebtedness (and excluding, for the
avoidance of doubt, (i) any intercompany Indebtedness of the Borrower and its Restricted Subsidiaries,
(x) Hedging Obligations and (iii) Indebtedness incurred pursuant to Section 10.1(r) with a term not
exceeding one year); provided that Consolidated Total Debt shall not include (x) letters of credit
(including Letters of Credit), except to the extent of unreimbursed amounts thereunder or hereunder and
(y) Bonding Obligations; provided, further, that (x) any unreimbursed amount under letters of credit shall
not be counted as Consolidated Total Debt until one (1) Business Day after such amount is drawn and (y)
any Bonding Obligations shall not be counted as Consolidated Total Debt until five (5) Business Days
after such amount becomes due and payable in full and is not paid by such time, minus (b) unrestricted
cash and Cash Equivalents of Intermediate Holdings and the Restricted Subsidiaries.
“Consolidated Total Debt to Consolidated EBITDA Ratio” shall mean, as of any date of
determination, the ratio of (i) Consolidated Total Debt as of such date of determination, to (ii)
Consolidated EBITDA of Intermediate Holdings for the Test Period most recently ended on or prior to
such date of determination.
“Consolidated Working Capital” shall mean, at any date, the excess of (i) the sum of all
amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth
opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of
Intermediate Holdings and the Restricted Subsidiaries at such date excluding the current portion of
current and deferred income taxes over (ii) the sum of all amounts that would, in conformity with GAAP,
be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance
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sheet of Intermediate Holdings and the Restricted Subsidiaries on such date, but excluding (for purposes
of both clauses (i) and (ii) above), without duplication, (a) the current portion of any Funded Debt, (b) all
Indebtedness consisting of Loans and Letter of Credit Exposure and Capital Leases to the extent
otherwise included therein, (c) the current portion of interest, (d) the current portion of current and
deferred income taxes, (e) any liabilities that are not Indebtedness and will not be settled in cash or Cash
Equivalents during the next succeeding twelve month period after such date, (f) the effects from applying
purchase accounting, (g) any accrued professional liability risks, (h) restricted marketable securities, and
(i) deferred revenue reflected within current liabilities; provided that, for purposes of calculating Excess
Cash Flow, increases or decreases in working capital (A) arising from acquisitions or dispositions by
Intermediate Holdings and the Restricted Subsidiaries shall be measured from the date on which such
acquisition or disposition occurred and (B) shall exclude (I) the impact of non-cash adjustments
contemplated in the Excess Cash Flow calculation, (II) the impact of adjusting items in the definition of
“Consolidated Net Income” and (III) any changes in current assets or current liabilities as a result of
(x) the effect of fluctuations in the amount of accrued or contingent obligations, assets or liabilities under
hedging agreements or other derivative obligations, (y) any reclassification, other than as a result of the
passage of time, in accordance with GAAP of assets or liabilities, as applicable, between current and
noncurrent or (z) the effects of acquisition method accounting.
“Contingent Obligations” shall mean, with respect to any Person, any obligation of such Person
guaranteeing any leases, dividends, or other payment obligations that do not constitute Indebtedness
(“primary obligation”) of any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (a) for the purchase or payment of any such primary obligation or (b) to
maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor, or (iii) to purchase property, securities, or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation against loss in respect thereof.
“Contract Consideration” shall have the meaning provided in clause (ii)(j) of the definition of
Excess Cash Flow.
“Contractual Requirement” shall have the meaning provided in Section 8.3.
“Controlled Investment Affiliate” shall mean, as to any Person, any other Person (other than
any Permitted Holder) who directly or indirectly controls, is controlled by, or is under common control
with such Person and is organized by such Person (or any Person controlling such Person) primarily for
making direct or indirect equity investments in the Borrower and/or any Parent Entity.
“Converted Restricted Subsidiary” shall have the meaning provided in the definition of the
term “Consolidated EBITDA”.
“Converted Unrestricted Subsidiary” shall have the meaning provided in the definition of the
term “Consolidated EBITDA”.
“Corresponding Tenor” shall mean, with respect to any Available Tenor means, 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.
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“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 provided in Section 13.25.
“Credit Documents” shall mean this Agreement, each Joinder Agreement, each Extension
Amendment, each Permitted Repricing Amendment, the Guarantees, the Security Documents, the Fee
Letter, the Amendment No. 1 Fee Letter, anythe Amendment No. 3 Fee Letter, Amendment No. 1,
Amendment No. 2, Amendment No. 3, any Letter of Credit, any promissory notes issued by the
Borrower pursuant hereto and any other document expressly designated by the Administrative Agent or a
Lender and any Credit Party as a “Credit Document”.
“Credit Event” shall mean and include the making (but not the conversion or continuation) of a
Loan and/or the issuance of a Letter of Credit (and any amendment, renewal or extension that increases
the Stated Amount thereof).
“Credit Facilities” shall mean, collectively, each category of Commitments and each extension
of credit hereunder.
“Credit Facility” shall mean a category of Commitments and extensions of credit thereunder
(e.g., the Initial Term Loan Commitment, the Delayed Draw Term Loan Commitment and the Revolving
Credit Commitments).
“Credit Party” shall mean Holdings, Intermediate Holdings, the Borrower and the other
Guarantors.
“Cure Amount” shall have the meaning provided in Section 11.14. “Cure Right” shall have the
meaning provided in Section 11.14.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), SOFR, with the conventions
for this rate (which will include a lookback) being established by the Administrative Agent in accordance
with the conventions for this rate selected or recommended by the Relevant Governmental Body for
determining “Daily Simple SOFR” for syndicated business loans; provided that if the Administrative
Agent decides that any such convention is not administratively feasible for the Administrative Agent,
then the Administrative Agent may establish another convention in its reasonable discretion.
“Debt Incurrence Prepayment Event” shall mean any issuance or incurrence by Holdings,
Intermediate Holdings or any of the Restricted Subsidiaries of any Indebtedness (excluding any
Indebtedness permitted to be issued or incurred under Section 10.1 other than Section 10.1(u)).
“Declined Proceeds” shall have the meaning provided in Section 5.2(f).
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“Default” shall mean any event, act, or condition that with notice or lapse of time, or both, would
constitute an Event of Default.
“Default Rate” shall have the meaning provided in Section 2.8(c).
“Default Right” shall have the meaning provided 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 any Lender whose acts or failure to act, whether directly or
indirectly, cause it to meet any part of the definition of Lender Default.
“Deferred Net Cash Proceeds” shall have the meaning provided in the definition of “Net Cash
Proceeds”.
“Deferred Net Cash Proceeds Payment Date” shall have the meaning provided in the
definition of “Net Cash Proceeds”.
“Delayed Draw Term Loan Availability Period” shall mean the period beginning on the
Closing Date and ending on the Delayed Draw Term Loan Commitment Termination Date.
“Delayed Draw Term Loan Commitment Termination Date” shall mean the earlier to occur
of (x) the twenty-four (24) month anniversary of the Closing Date (or, if such anniversary is not a
Business Day, the next succeeding Business Day) and (y) the date on which the Delayed Draw Term
Loan Commitments are reduced to zero or otherwise terminated pursuant to the terms of this Agreement;
provided that any reference to the Delayed Draw Term Loan Commitment Termination Date with respect
to Delayed Draw Term Loan Commitments that have been extended pursuant to the terms of this
Agreement shall be deemed to be a reference to the date to which such Delayed Draw Term Loan
Commitment Termination Date shall have been so extended.
“Delayed Draw Term Loan Commitments” shall mean, with respect to each Term Loan
Lender with a Delayed Draw Term Loan Commitment, the commitment, if any, of such Term Loan
Lender to make Delayed Draw Term Loans, expressed as an amount representing the maximum principal
aggregate amount of such Delayed Draw Term Loans to be made by such Term Loan Lender hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section 4.2 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section 13.6. The
initial amount of each Term Loan Lender’s Delayed Draw Term Loan Commitment is set forth on
Schedule 1.1(a) or in the Assignment and Assumption Agreement pursuant to which such Lender shall
have assumed its Delayed Draw Term Loan Commitment, as the case may be. References to the
“Delayed Draw Term Loan Commitments” shall mean the Delayed Draw Term Loan Commitment of
each Lender taken together. The initial aggregate principal amount of the Lenders’ Delayed Draw Term
Loan Commitments on the Closing Date is $75,000,000.
“Delayed Draw Term Loan Funding Date” shall have the meaning provided in Section 2.1(a).
“Delayed Draw Term Loan Lender” shall mean a Lender with a Delayed Draw Term Loan
Commitment or an outstanding Delayed Draw Term Loan.
“Delayed Draw Term Loans” shall have the meaning provided in Section 2.1(a).
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“Delayed Draw Term Loan Repayment Date” shall have the meaning provided in
Section 2.5(b).
“Derivative Counterparty” shall have the meaning provided in Section 13.16.
“Designated Jurisdiction” shall mean any country or territory to the extent that such country or
territory itself is the subject of any comprehensive Sanctions (currently Cuba, Iran, North Korea, Syria,
the Crimea region of Ukraine, the so-called Donetsk People’s Republic and the so-called Luhansk
People’s Republic).
“Designated Non-Cash Consideration” shall mean the Fair Market Value of non-cash
consideration received by Intermediate Holdings or a Restricted Subsidiary in connection with an Asset
Sale that is so designated as Designated Non-Cash Consideration pursuant to a certificate of an
Authorized Officer of Intermediate Holdings, setting forth the basis of such valuation, executed by either
a senior vice president or the principal financial officer of Intermediate Holdings, less the amount of cash
or Cash Equivalents received in connection with a subsequent sale of or collection on or other disposition
of such Designated Non-Cash Consideration. A particular item of Designated Non-Cash Consideration
will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or
otherwise retired or sold or otherwise disposed of in compliance with Section 10.4.
“Designated Preferred Stock” shall mean preferred stock of the Borrower or any direct or
indirect parent company of the Borrower (in each case other than Disqualified Stock) that is issued for
cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by
Intermediate Holdings or any of its Subsidiaries) and is so designated as Designated Preferred Stock,
pursuant to an officer’s certificate executed by the principal financial officer of the Borrower or parent
company thereof, as the case may be, on the issuance date thereof.
“Disposed EBITDA” shall mean, with respect to any Sold Entity or Business or any Converted
Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such
Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to Intermediate
Holdings and the Restricted Subsidiaries in the definition of “Consolidated EBITDA” were references to
such Sold Entity or Business or Converted Unrestricted Subsidiary and its respective Subsidiaries), all as
determined on a consolidated basis for such Sold Entity or Business or Converted Unrestricted
Subsidiary, as the case may be.
“Discretionary Domestic Guarantor” shall have the meaning assigned such term in the
definition of Guarantors.
“Discretionary Foreign Guarantor” shall have the meaning assigned such term in the definition
of Guarantors.
“Discretionary Guarantor” shall have the meaning assigned such term in the definition of
Guarantors.
“disposition” shall have the meaning assigned such term in clause (i) of the definition of Asset
Sale.
“Disqualified Lenders” shall mean (i) banks, financial institutions and other institutional
lenders (or related funds of such institutional lenders), in each case as identified in writing by the
Sponsor, Holdings, Intermediate Holdings or the Borrower to the Joint Lead Arrangers and Bookrunners
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and Administrative Agent on or prior to November 6, 2024, (ii) competitors of the Borrower and its
Subsidiaries identified in writing by the Sponsor or the Borrower to the Administrative Agent prior to
November 6, 2024 and from time to time and (iii) are an Affiliate of any Person referred to in clauses (i)
or (ii) above (which, for the avoidance of doubt, shall not include any bona fide debt investment funds
that are Affiliates of the persons referenced in clause (ii) above) so long as such Affiliate is (x) identified
in writing to the Administrative Agent by the Borrower or Sponsor from time to time or (y) clearly
identifiable as an Affiliate of such a Person on the basis of such Affiliate’s name; provided that such
designations shall not apply retroactively to disqualify any Persons that have previously validly acquired
an assignment or participation interest in the Loans and Commitments.
“Disqualified Stock” shall mean, with respect to any Person, any Capital Stock of such Person
which, by its terms, or by the terms of any security into which it is convertible or for which it is puttable
or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than
solely for Qualified Stock), other than as a result of a change of control, asset sale, condemnation event
or similar event, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof (other than solely for Qualified Stock), other than as a result of a change of control, asset
sale, condemnation event or similar event, in whole or in part, in each case, prior to the date that is
91 days after the Latest Term Loan Maturity Date hereunder; provided that if such Capital Stock is
issued to any plan for the benefit of employees of Intermediate Holdings or its Subsidiaries or by any such
plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may
be required to be repurchased by Intermediate Holdings or its Subsidiaries in order to satisfy applicable
statutory or regulatory obligations or as a result of such employee’s termination, death, or disability.
“Distressed Person” shall have the meaning provided in the definition of the term
Lender-Related Distress Event.
“Dollars” and “$” shall mean dollars in lawful currency of the United States.
“Domestic Subsidiary” shall mean each Subsidiary of Holdings that is organized under the laws
of the United States, any state thereof, or the District of Columbia, other than a CFC Holding Company
or a Subsidiary of either a CFC or a CFC Holding Company.
“EEA Financial Institution” shall mean (a) any credit institution or investment firm established
in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b)
any entity established in an EEA Member Country which is a parent of an institution described in clause
(a) of this definition, or (c) any financial institution established in an EEA Member Country which is a
subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated
supervision with its parent.
“EEA Member Country” shall mean any of the member states of the European Union, Iceland,
Liechtenstein and Norway.
“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.
“Effective Yield” shall mean, as to any Indebtedness, the effective yield on such Indebtedness in
the reasonable determination of the Administrative Agent in consultation with the Borrower and
consistent with generally accepted financial practices, taking into account the applicable interest rate
margins, any interest rate floors (the effect of which floors shall be determined in a manner set forth in
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the proviso below), upfront or similar fees or original issue discount (amortized over the shorter of (i) the
remaining weighted average life to maturity of such Indebtedness and (ii) the four years following the
date of incurrence thereof) payable generally to Lenders or other institutions providing such Indebtedness
in connection with the initial primary syndication thereof, but excluding any customary arrangement,
underwriting, structuring, commitment, or any fees or closing payments similar to any one of the
foregoing (regardless of whether such fees are paid to or shared in whole or in part with any lender);
provided that with respect to any Indebtedness that includes a “Benchmark Rate floor” or “ABR
floor,” (a) to the extent that the Benchmark Rate (with an Interest Period of three months) or ABR
(without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield
is being calculated is less than such floor, the amount of such difference shall be deemed added to the
interest rate margin for such Indebtedness for the purpose of calculating the Effective Yield and (b) to the
extent that the Benchmark Rate (with an Interest Period of three months) or ABR (without giving effect to
any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is
greater than such floor, then the floor shall be disregarded in calculating the Effective Yield.
“Environmental Claims” shall mean any and all actions, suits, orders, decrees, demand letters,
claims, notices of noncompliance or potential responsibility or violation, or proceedings pursuant to any
Environmental Law or pursuant to any permit issued, or any approval of any Governmental Authority
given, under any such Environmental Law (other than reports prepared by or on behalf of any Credit
Party or any of its Subsidiaries (a) in the ordinary course of such Person’s business or (b) as required in
connection with a financing transaction or an acquisition or disposition of real estate) (hereinafter,
“Claims”), including, without limitation, (i) any and all Claims by Governmental Authorities for
enforcement, investigation, cleanup, removal, response, remedial, or other actions or damages pursuant to
any Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation, or injunctive relief relating to the presence, Release or
threatened Release of Hazardous Materials or arising from alleged injury or threat of injury to human
health or safety (to the extent relating to human exposure to Hazardous Materials) or protection of the
environment including, without limitation, ambient air, indoor air, surface water, groundwater, soil, land
surface and subsurface strata, and natural resources such as wetlands, flora and fauna.
“Environmental Law” shall mean any applicable federal, state, foreign, or local statute, law,
rule, regulation, ordinance, code, and rule of common law now or hereafter in effect and in each case as
amended, and any legally binding judicial or administrative interpretation thereof, including any legally
binding judicial or administrative order, consent decree, or judgment, relating to pollution or protection
of the environment, including, without limitation, ambient air, indoor air, surface water, groundwater,
soil, land surface and subsurface strata and natural resources such as flora, fauna, or wetlands, or
protection of human health or safety (to the extent relating to human exposure to Hazardous Materials)
and including those relating to the generation, storage, treatment, transport, Release, or threat of Release
of Hazardous Materials.
“Equity Interest” shall mean Capital Stock and all warrants, options, or other rights to acquire
Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
“Equity Investment” shall mean the new cash equity contributions made by the Sponsor and
certain other investors arranged by and/or designated by the Sponsor and certain of the Sponsor’s
Affiliates (including its Controlled Investment Affiliates and members of the Intermediate Holdings’
management) (collectively, the “Investors”), in Intermediate Holdings or a direct or indirect parent
thereof (which equity investment in the Intermediate Holdings or such direct or indirect parent shall be in
the form of common equity or, if other than common equity, will be on terms reasonably acceptable to
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the Administrative Agent and the Lenders) in an aggregate amount of at least 50% of the sum of (x) the
aggregate net proceeds of Term Loans and Revolving Credit Loans funded to the Borrower under the
Initial Term Loan Commitment and the Revolving Credit Facility, respectively, on the Closing Date (but
excluding the net proceeds of any Revolving Credit Loans funded to the Borrower on the Closing Date to
fund working capital needs or to backstop or cash collateralize existing letters of credit or incurred for
working capital purposes) and (y) the equity capitalization of Holdings and its Subsidiaries on the
Closing Date, in each case, after giving effect to the Transaction.
“Equity Offering” shall mean any public or private sale of common stock or preferred stock of
the Borrower or any direct or indirect parent company of the Borrower (excluding Disqualified Stock),
other than issuances to any Subsidiary of Intermediate Holdings.
“Equityholding Vehicle” shall mean any Parent Entity and any equity holder thereof through
which former, current officers or future officers, directors, employees or managers of the Borrower or
any of its Subsidiaries or Parent Entities hold Capital Stock of such Parent Entity.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from
time to time.
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together
with any Credit Party, is treated as a single employer under Section 414 (b) or (c) of the Code (and
Sections 414(m) and (o) of the Code solely for purposes of Section 412 of the Code).
“ERISA Event” shall mean (i) the existence with respect to any Plan of a Prohibited Transaction
with respect to a Plan which is not exempt under Section 408 of ERISA or otherwise; (ii) any Reportable
Event; (iii) the failure of any Credit Party or ERISA Affiliate to make by its due date a required
installment under Section 430(j) of the Code with respect to any Pension Plan or any failure by any
Pension Plan to satisfy the minimum funding standards (within the meaning of Section 412 of the Code
or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; (iv) a determination
that any Pension Plan is in “at risk” status (within the meaning of Section 430 of the Code or Section 303
of ERISA); (v) 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 Pension Plan; (vi) the
termination of, or the appointment of a trustee to administer, any Pension Plan under Section 4042 of
ERISA or the incurrence by any Credit Party or any of its ERISA Affiliates of any liability under Title IV
of ERISA with respect to the termination of any Pension Plan (other than for PBGC premiums due but
not delinquent under Section 4007 of ERISA), including but not limited to the imposition of any Lien in
favor of the PBGC or any Pension Plan; (vii) the receipt by any Credit Party or any of its ERISA
Affiliates from the PBGC or a plan administrator of any notice to terminate any Pension Plan under
Section 4041 of ERISA or to appoint a trustee to administer any Pension Plan under Section 4042 of
ERISA; (viii) the failure by any Credit Party or any of its ERISA Affiliates to make any required
contribution to a Multiemployer Plan; (ix) the incurrence by any Credit Party or any of its ERISA
Affiliates of any liability with respect to the withdrawal from any Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a “substantial employer” (within the meaning of
Section 4001(a)(2) of ERISA), or a cessation of operations that is treated as such a withdrawal under
Section 4062(e) of ERISA, or the complete or partial withdrawal (within the meaning of Section 4203 or
4205 of ERISA) from any Multiemployer Plan; (x) the receipt by any Credit Party or any of its ERISA
Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, Insolvent, in “endangered” or “critical” status (within the
meaning of Section 432 of the Code or Section 305 of ERISA), or terminated (within the meaning of
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Section 4041A of ERISA); or (xi) the failure by any Credit Party or any of its ERISA Affiliates to pay
when due (after expiration of any applicable grace period) any installment payment with respect to
Withdrawal Liability under Section 4201 of ERISA.
“Erroneous Payment” shall have the meaning provided in Section 12.15(a).
“Erroneous Payment Deficiency Assignment” shall have the meaning provided in
Section 12.15(d)(i).
“Erroneous Payment Impacted Class” shall have the meaning provided in Section 12.15(d)(i).
“Erroneous Payment Return Deficiency” shall have the meaning provided in Section 12.15(d)(i).
“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 provided in Section 11.
“Excess Cash Flow” shall mean, for any period, an amount equal to the excess of:
(i) the sum, without duplication (in each case, for Intermediate Holdings and the Restricted
Subsidiaries on a consolidated basis), of:
(a)Consolidated Net Income for such period,
(b)an amount equal to the amount of all non-cash charges to the extent deducted in
arriving at such Consolidated Net Income and cash receipts to the extent excluded in arriving at
such Consolidated Net Income,
(c)an amount equal to the aggregate net non-cash loss on asset sales by Intermediate
Holdings and the Restricted Subsidiaries during such period (other than asset sales in the ordinary
course of business) to the extent deducted in arriving at such Consolidated Net Income, and
(d)decreases in Consolidated Working Capital for such period (other than (1)
reclassification of items from short term to long term or vice versa and (2) any such decreases
arising from acquisitions or asset sales by Intermediate Holdings and the Restricted Subsidiaries
completed during such period or the application of purchase accounting);
over (ii) the sum, without duplication, of:
(a)an amount equal to the amount of all non-cash credits included in arriving at
such Consolidated Net Income, cash charges to the extent excluded in arriving at such
Consolidated Net Income, and Transaction Expenses to the extent not deducted in arriving at such
Consolidated Net Income and paid in cash during such period;
(b)without duplication of amounts deducted pursuant to clause (k) below in prior
periods, the amount of Capital Expenditures or acquisitions of Intellectual Property accrued or
made in cash during such period, except to the extent that such Capital Expenditures or
acquisitions were financed (directly or indirectly) with the proceeds of long-term Indebtedness of
Intermediate Holdings or the Restricted Subsidiaries (unless such Indebtedness has been repaid
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other than with the proceeds of long-term indebtedness) other than intercompany loans or
Revolving Loans;
(c)the aggregate amount of all principal payments of Indebtedness of Intermediate
Holdings and the Restricted Subsidiaries (including (1) the principal component of payments in
respect of Capitalized Lease Obligations, (2) the amount of any scheduled repayment of Term
Loans pursuant to Section 2.5, and (3) the amount of a mandatory prepayment of Term Loans
pursuant to Section 5.2(a) to the extent required due to an asset sale that resulted in an increase to
Consolidated Net Income and not in excess of the amount of such increase, but excluding (A) all
other prepayments of Term Loans and (B) all prepayments of Incremental Loans, Revolving
Loans (and any other revolving loans (unless there is an equivalent permanent reduction in
commitments thereunder)) made during such period, except to the extent financed with the
proceeds of other long-term Indebtedness (other than Revolving Loans) of Intermediate Holdings
or the Restricted Subsidiaries;
(d)an amount equal to the aggregate net non-cash gain on asset sales by Intermediate
Holdings and the Restricted Subsidiaries during such period (other than asset sales in the ordinary
course of business) to the extent included in arriving at such Consolidated Net Income;
(e)payments in cash by Intermediate Holdings and the Restricted Subsidiaries
during such period in respect of any purchase price holdbacks, earn-out obligations, and
long-term liabilities of Intermediate Holdings and the Restricted Subsidiaries other than
Indebtedness, to the extent not already deducted from Consolidated Net Income;
(f)the aggregate amount of cash consideration paid by Intermediate Holdings and
the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including
acquisitions, but excluding investments in cash or Cash Equivalents and Investments in any
Restricted Subsidiary) made during such period pursuant to Section 10.6 to the extent that such
Investments were not financed with the proceeds received from (1) the issuance or incurrence of
long-term Indebtedness (other than Revolving Loans or intercompany loans) or (2) the issuance
of Capital Stock;
(g)the amount of dividends paid in cash during such period (on a consolidated
basis) by Intermediate Holdings and the Restricted Subsidiaries, to the extent such dividends were
not financed with the proceeds received from (1) the issuance or incurrence of long-term
Indebtedness (other than Revolving Loans or intercompany loans) or (2) the issuance of Capital
Stock;
(h)the aggregate amount of expenditures actually made by Intermediate Holdings
and the Restricted Subsidiaries in cash during such period (including expenditures for the
payment of financing fees and cash restructuring charges) to the extent that such expenditures are
not expensed during such period and are not deducted in calculating Consolidated Net Income;
(i)the aggregate amount of any premium, make-whole, or penalty payments
actually paid in cash by Intermediate Holdings and the Restricted Subsidiaries during such period
that are made in connection with any prepayment of Indebtedness to the extent that such
payments are not deducted in calculating Consolidated Net Income;
(j)without duplication of amounts deducted from Excess Cash Flow in other
periods, (1) the aggregate consideration required to be paid in cash by Intermediate Holdings or
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any of its Restricted Subsidiaries pursuant to binding contracts, commitments, letters of intent or
purchase orders (the “Contract Consideration”) entered into prior to or during such period and
(2) any planned cash expenditures by Intermediate Holdings or any of the Restricted Subsidiaries
(the “Planned Expenditures”), in the case of each of clauses (1) and (2), relating to Permitted
Acquisitions (or other Investments (including in joint ventures)), Capital Expenditures,
Restricted Payments, or acquisitions of Intellectual Property or other assets to be consummated
or made during the period of four consecutive fiscal quarters of Intermediate Holdings following
the end of such period (except to the extent financed with any of the proceeds received from
(A) the issuance or incurrence of long-term Indebtedness (other than Revolving Loans or
intercompany loans) or (B) the issuance of Equity Interests); provided that, to the extent that the
aggregate amount of cash actually utilized to finance such Permitted Acquisitions (or other
Investments), Capital Expenditures, or acquisitions of Intellectual Property or other assets during
such following period of four consecutive fiscal quarters is less than the Contract Consideration
and Planned Expenditures, the amount of such shortfall shall be added to the calculation of
Excess Cash Flow, at the end of such period of four consecutive fiscal quarters;
(k)the amount of taxes (including penalties and interest) paid in cash or tax reserves
set aside or payable (without duplication) in such period plus without duplication of the
foregoing amounts, the amount of Tax Distributions paid in cash pursuant to Section 10.5(s), and
the amount of withholding Taxes paid or reasonably estimated to be payable in connection with
the repatriation of income of any Foreign Subsidiary, in each case, to the extent they exceed the
amount of tax expense deducted in determining Consolidated Net Income for such period,
(l)cash expenditures in respect of Hedge Agreements during such period to the
extent not deducted in arriving at such Consolidated Net Income; and
(m)increases in Consolidated Working Capital for such period (other than (1)
reclassification of items from short term to long term or vice versa and (2) any such increases
arising from acquisitions or asset sales by Intermediate Holdings and the Restricted Subsidiaries
completed during such period or the application of purchase accounting).
“Excluded Property” shall have the meaning set forth in the Security Agreement.
“Excluded Stock and Stock Equivalents” shall mean (i) any Capital Stock or Stock Equivalents
with respect to which, in the reasonable judgment of the Administrative Agent and Intermediate Holdings
(as agreed to in writing), the cost or other consequences of pledging such Capital Stock or Stock
Equivalents in favor of the Secured Parties under the Security Documents shall be excessive in view of
the benefits to be obtained by the Lenders therefrom, (ii) solely in the case of any pledge of Capital Stock
and Stock Equivalents of any (a) CFC (except in the case of a Discretionary Foreign Guarantor) or (b)
CFC Holding Company (except in the case of a Discretionary Domestic Guarantor), (1) any Voting Stock
or Stock Equivalents of any class of such CFC or CFC Holding Company directly held by a Credit Party
in excess of 65% of the outstanding Voting Stock of such class and (2) any Voting Stock or Stock
Equivalents of any class of such CFC or CFC Holding Company not directly held by a Credit Party, (iii)
any Capital Stock or Stock Equivalents of any direct or indirect Subsidiary that is a direct or indirect
Subsidiary of a CFC or CFC Holding Company (in each case, except in the case of a Discretionary
Foreign Guarantor or Discretionary Domestic Guarantor), (iv) any Capital Stock or Stock Equivalents to
the extent the pledge thereof would violate any applicable Requirements of Law (including any legally
effective requirement to obtain the consent of any Governmental Authority unless such consent has been
obtained), (v) in the case of (A) any Capital Stock or Stock Equivalents of any Subsidiary to the extent
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such Capital Stock or Stock Equivalents are subject to a Lien permitted by Section 10.2(d) or (B) any
Capital Stock or Stock Equivalents of any Subsidiary that is not a Wholly-Owned Subsidiary of Holdings
and its Subsidiaries at the time such Subsidiary becomes a Subsidiary, any Capital Stock or Stock
Equivalents of each such Subsidiary described in clause (A) or (B) to the extent (I) that a pledge thereof
to secure the Obligations is prohibited by any applicable Contractual Requirement (other than customary
anti-assignment provisions which are ineffective under the Uniform Commercial Code or other
applicable law and other than proceeds thereof the assignment of which is expressly deemed effective
under the Uniform Commercial Code or other applicable law notwithstanding such prohibition or
restriction), (II) any Contractual Requirement prohibits such a pledge without the consent of any other
party; provided that this clause (II) shall not apply if (x) such other party is a Credit Party or
Wholly-Owned Subsidiary or (y) consent has been obtained to consummate such pledge (it being
understood that the foregoing shall not be deemed to obligate Holdings or any Subsidiary to obtain any
such consent) and for so long as such Contractual Requirement or replacement or renewal thereof is in
effect, or (III) a pledge thereof to secure the Obligations would give any other party (other than a Credit
Party or Wholly-Owned Subsidiary) to any contract, agreement, instrument, or indenture governing such
Capital Stock or Stock Equivalents the right to terminate its obligations thereunder (other than customary
anti-assignment provisions which are ineffective under the Uniform Commercial Code or other
applicable law and other than proceeds thereof the assignment of which is expressly deemed effective
under the Uniform Commercial Code or other applicable law notwithstanding such prohibition or
restriction), (vi) any Capital Stock or Stock Equivalents of any Subsidiary to the extent that the pledge of
such Capital Stock or Stock Equivalents would result in materially adverse tax consequences to any
Parent Guarantor, the Borrower or any Subsidiary as reasonably determined by Intermediate Holdings in
consultation with the Administrative Agent, (vii) any Capital Stock or Stock Equivalents that are margin
stock, and (viii) any Capital Stock and Stock Equivalents of any Subsidiary that is not a Material
Subsidiary or is an Unrestricted Subsidiary, a captive insurance Subsidiary, an SPV or any special
purpose entity.
“Excluded Subsidiary” shall mean (i) each Subsidiary, in each case, for so long as any such
Subsidiary does not (on (x) a consolidated basis with its Restricted Subsidiaries, if determined on the
Closing Date by reference to the Historical Financial Statements or (y) a consolidated basis with its
Restricted Subsidiaries, if determined after the Closing Date by reference to the financial statements
delivered to the Administrative Agent pursuant to Sections 9.1(a) and (b)) constitute a Material
Subsidiary, (ii) each Subsidiary that is not a Wholly-Owned Subsidiary on any date such Subsidiary
would otherwise be required to become a Guarantor pursuant to the requirements of Section 9.10 (for so
long as such Subsidiary remains a non-Wholly-Owned Restricted Subsidiary), (iii) any direct or indirect
Subsidiary of Intermediate Holdings that is a CFC (except a Discretionary Foreign Guarantor) or CFC
Holding Company (except a Discretionary Domestic Guarantor), (iv) any direct or indirect Subsidiary of
a CFC (except a Discretionary Foreign Guarantor) or CFC Holding Company (except a Discretionary
Domestic Guarantor), (v) any Foreign Subsidiary (except a Discretionary Foreign Guarantor), (vi) each
Subsidiary that is prohibited by any applicable Contractual Requirement or Requirements of Law from
guaranteeing or granting Liens to secure the Obligations on the Closing Date (or, if later, the date it
becomes a Restricted Subsidiary and, in the case of a contractual obligation, not entered into in
contemplation thereof) (and for so long as such restriction or any replacement or renewal thereof is in
effect) or which would require governmental (including regulatory) consent, approval, license or
authorization to provide a Guarantee unless such consent, approval, license or authorization has been
received, (vii) each Subsidiary with respect to which, as reasonably determined by Holdings, the
consequence of providing a Guarantee of the Obligations would adversely affect the ability of any Parent
Guarantor, the Borrower and their respective Subsidiaries to satisfy applicable Requirements of Law,
(viii) each Subsidiary with respect to which, as reasonably determined by Intermediate Holdings in
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consultation with the Administrative Agent, providing such a Guarantee would result in material adverse
tax consequences, (ix) any other Subsidiary with respect to which the Administrative Agent and
Intermediate Holdings reasonably agree that the cost of providing a Guarantee of the Obligations shall be
excessive in relation to the value afforded therefrom, (x) each Unrestricted Subsidiary, (xi) each other
Restricted Subsidiary acquired pursuant to a Permitted Acquisition with pre-existing secured
Indebtedness permitted to be assumed hereunder, and each Restricted Subsidiary acquired in such
Permitted Acquisition hereunder that guarantees such Indebtedness, in each case to the extent that, and
for so long as, the documentation relating to such Indebtedness to which such Subsidiary is a party
prohibits such Subsidiary from guaranteeing the Obligations and such prohibition was not created, and
such Indebtedness was not incurred, in contemplation of such Permitted Acquisition, (xii) each SPV,
not-for-profit Subsidiary and captive insurance company and (xiii) in the case of any Swap Obligation,
any Subsidiary of Holdings that is not an “Eligible Contract Participant” as defined under the Commodity
Exchange Act.
“Excluded Swap Obligation” shall mean, with respect to any Credit Party, (a) any Swap
Obligation if, and to the extent that, all or a portion of the Obligations of such Credit Party of, or the
grant by such Credit Party of a security interest to secure, such Swap Obligation (or any Obligations
thereof) is or becomes illegal or unlawful 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) or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such
Guarantor as specified in any agreement between the relevant Credit Parties and Hedge Bank applicable
to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one
swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps
for which such Obligation or security interest is or becomes illegal or unlawful.
“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, or any
other recipient of any payment to be made by or on account of any obligation of any Credit Party
hereunder or under any other Credit Document, (i) Taxes imposed on or measured by its overall net
income (however denominated), branch profits and franchise (and similar) Taxes imposed on it, in each
case by a jurisdiction (including any political subdivision thereof) as a result of such recipient being
organized in, having its principal office in, or in the case of any Lender, having its applicable lending
office in, such jurisdiction, or as a result of any other present or former connection with such jurisdiction
(other than any such connection arising from such recipient having executed, delivered, become a party
to, performed its obligations under, received payments under, received or perfected a security interest
under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned
an interest in any Loan or Credit Document), (ii) any U.S. federal withholding Tax imposed on any
payment by or on account of any obligation of any Credit Party hereunder or under any Credit Document
that is required to be imposed on amounts payable to or for the account of a Lender pursuant to laws in
force at the time such Lender acquires an interest in any Credit Document (or designates a new lending
office), other than in the case of a Lender that is an assignee pursuant to a request by the Borrower under
Section 13.7 (or that designates a new lending office pursuant to a request by the Borrower), 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 from the Credit Parties with respect to
such withholding Tax pursuant to Section 5.4, (iii) any Taxes attributable to a recipient’s failure to
comply with Section 5.4(e), or (iv) any withholding Tax imposed under FATCA.
“Existing Class” shall mean any Existing Term Loan Class and any Existing Revolving Credit
Class.
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“Existing Credit Agreements” shall have the meaning provided in the recitals to this
Agreement.
“Existing Debt Facilities Refinancing” shall mean repayment, redemption and/or discharge in
full of all Indebtedness under the Existing Credit Agreements.
“Existing Revolving Credit Class” shall have the meaning provided in Section 2.14(g)(ii).
“Existing Revolving Credit Commitment” shall have the meaning provided in Section
2.14(g)(ii).
“Existing Revolving Credit Loans” shall have the meaning provided in Section 2.14(g)(ii).
“Existing Term Loan Class” shall have the meaning provided in Section 2.14(g)(i).
“Expiring Credit Commitment” shall have the meaning provided in Section 2.1(d).
“Extended Repayment Date” shall have the meaning provided in Section 2.5(d).
“Extended Revolving Credit Commitments” shall have the meaning provided in
Section 2.14(g)(ii).
“Extended Revolving Credit Loans” shall have the meaning provided in Section 2.14(g)(ii).
“Extended Revolving Loan Maturity Date” shall mean the date on which any tranche of
Extended Revolving Credit Loans matures.
“Extended Term Loan Repayment Amount” shall have the meaning provided in
Section 2.5(d).
“Extended Term Loans” shall have the meaning provided in Section 2.14(g)(i).
“Extending Lender” shall have the meaning provided in Section 2.14(g)(iii).
“Extension Amendment” shall have the meaning provided in Section 2.14(g)(iv).
“Extension Date” shall have the meaning provided in Section 2.14(g)(v).
“Extension Election” shall have the meaning provided in Section 2.14(g)(iii).
“Extension Request” shall mean a Term Loan Extension Request.
“Extension Series” shall mean all Extended Term Loans and Extended Revolving Credit
Commitments that are established pursuant to the same Extension Amendment (or any subsequent
Extension Amendment to the extent such Extension Amendment expressly provides that the Extended
Term Loans or Extended Revolving Credit Commitments, as applicable, provided for therein are
intended to be a part of any previously established Extension Series) and that provide for the same interest
margins, extension fees, and amortization schedule.
“Fair Market Value” shall mean with respect to any asset or group of assets on any date of
determination, the value of the consideration obtainable in a sale of such asset at such date of
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determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and
arranged in an orderly manner over a reasonable period of time having regard to the nature and
characteristics of such asset, as determined in good faith by Intermediate Holdings or the applicable
Restricted Subsidiary.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement
(or any amended or successor version that is substantively comparable and not materially more onerous
to comply with), any current or future regulations or official interpretations thereof, any agreements
entered into pursuant to Section 1471(b)(1) of the Code as of the date of this Agreement (or any amended
or successor version described above), any intergovernmental agreements implementing the foregoing,
and any laws, fiscal or regulatory legislation, rules, guidance notes and practices adopted pursuant to any
intergovernmental agreement, treaty or convention among Governmental Authorities entered into in
connection with the implementation of the foregoing.
“FCPA” shall have the meaning provided in Section 8.10.
“Federal Funds Effective Rate” shall mean, for any day, the weighted average of the per annum
rates on overnight federal funds transactions as published on the next succeeding Business Day by the
Federal Reserve Bank of New York; provided that (i) if such day is not a Business Day, the Federal
Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate
charged to the Administrative Agent on such day on such transactions as determined by the
Administrative Agent; provided, further, that if the Federal Funds Effective Rate would otherwise be
negative, it shall be deemed to be 0% per annum.
“Fee Letter” shall mean that certain Fee Letter, dated as of November 8, 2024, among the
Merger Sub, the Joint Lead Arrangers and Bookrunners and the other Persons party thereto.
“Fees” shall mean all amounts payable pursuant to, or referred to in, Section 4.1.
“Financial Model” shall mean the financial model of the Borrower delivered to the
Administrative Agent prior to November 8, 2024.
“Fixed Amounts” shall have the meaning provided in Section 1.12(a).
“Fixed Charges” shall mean, with respect to any Person for any period, the sum of:
(i)Consolidated Interest Expense of such Person and its Restricted Subsidiaries on
a consolidated basis for such period,
(ii)all cash dividend payments (excluding items eliminated in consolidation) on any
series of preferred stock (including any Designated Preferred Stock) of such Person made during
such period, and
(iii)all cash dividend payments (excluding items eliminated in consolidation) on any
series of Disqualified Stock made during such period.
“Flood Insurance Laws” shall mean, collectively, (i) the National Flood Insurance Reform Act
of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster
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Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood
Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the
Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute
thereto.
“Floor” shall mean 0.75% per annum.
“Foreign Subsidiary” shall mean each Subsidiary of Holdings that is not a Domestic Subsidiary.
“Foreign Subsidiary Prepayment Event” shall have the meaning provided in Section 5.2(a)(iv).
“Forward-Looking Information” shall have the meaning provided in Section 8.8(a).
“Fronting Exposure” shall mean, at any time there is a Defaulting Lender, (a) with respect to
the Letter of Credit Issuer, such Defaulting Lender’s Revolving Credit Commitment Percentage of the
outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with
the terms hereof and (b) with respect to the Swingline Lender, such Defaulting Lender’s Revolving
Credit Commitment Percentage of Swingline Loans other than Swingline Loans as to which such
Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized
in accordance with the terms hereof.
“Fronting Fee” shall have the meaning provided in Section 4.1(d).
“Fund” shall mean any Person (other than a natural Person) that is engaged or advises funds or
other investment vehicles that are engaged in making, purchasing, holding, or investing in commercial
loans and similar extensions of credit in the ordinary course.
“Funded Debt” shall mean all Indebtedness of Intermediate Holdings and the Restricted
Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures
within one year from such date that is renewable or extendable, at the option of Intermediate Holdings or
any Restricted Subsidiary, to a date more than one year from the date of its creation or arises under a
revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period
of more than one year from such date (including all amounts of such Funded Debt required to be paid or
prepaid within one year from the date of its creation), and, in the case of the Credit Parties, Indebtedness
in respect of the Loans.
“GAAP” shall mean generally accepted accounting principles in the United States, as in effect
from time to time; provided, however, that if Intermediate Holdings notifies the Administrative Agent
that Intermediate Holdings requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Closing Date in GAAP or in the application thereof on the operation of such
provision, regardless of whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith. Furthermore, at any time after the
Closing Date, Intermediate Holdings may elect to apply International Financial Reporting Standards
(“IFRS”) accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP
and GAAP concepts shall thereafter be construed to refer to IFRS and corresponding IFRS concepts
(except as otherwise provided in this Agreement); provided any such election, once made, shall be
irrevocable; provided, further, that any calculation or determination in this Agreement that requires the
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application of GAAP for periods that include fiscal quarters ended prior to Intermediate Holdings’
election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP.
Notwithstanding any other provision contained herein, the amount of any Indebtedness under GAAP with
respect to Capitalized Lease Obligations shall be determined in accordance with the definition of
Capitalized Lease Obligations.
“Governmental Authority” shall mean any nation, sovereign, or government, any state,
province, territory, or other political subdivision thereof, and any entity or authority exercising executive,
legislative, judicial, taxing, regulatory, or administrative functions of or pertaining to government,
including a central bank or stock exchange (including any supranational body exercising such powers or
functions, such as the European Union or the European Central Bank).
“Granting Lender” shall have the meaning provided in Section 13.6(g).
“Guarantee” shall mean (i) the Guarantee made by Holdings and each other Guarantor in favor
of the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit B, and
(ii) any other guarantee of the Obligations made by a Restricted Subsidiary in form and substance
reasonably acceptable to the Administrative Agent.
“guarantee obligations” shall mean, as to any Person, any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness of any primary obligor in any manner, whether
directly or indirectly, including any obligation of such Person, whether or not contingent, (i) to purchase
any such Indebtedness or any property constituting direct or indirect security therefor, (ii) to advance or
supply funds (a) for the purchase or payment of any such Indebtedness or (b) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities, or services primarily for the purpose of assuring the owner
of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness, or
(iv) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof;
provided, however, that the term guarantee obligations shall not include endorsements of instruments for
deposit or collection in the ordinary course of business or customary and reasonable indemnity
obligations or product warranties in effect on the Closing Date or entered into in connection with any
acquisition or disposition of assets permitted under this Agreement (other than such obligations with
respect to Indebtedness). The amount of any guaranteed obligation shall be deemed to be an amount
equal to the stated or determinable amount of the Indebtedness in respect of which such guaranteed
obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in
good faith.
“Guarantors” shall mean (i) each Subsidiary of Holdings (other than the Borrower with respect
to its Obligations only) that is party to the Guarantee on the Closing Date, (ii) each Subsidiary of
Holdings that becomes a party to the Guarantee after the Closing Date pursuant to Section 9.10 or
otherwise, and (iii) Holdings; provided that in no event shall any Excluded Subsidiary be required to be a
Guarantor (unless such Subsidiary is no longer an Excluded Subsidiary). For the avoidance of doubt,
Intermediate Holdings, in its sole discretion, may cause any Restricted Subsidiary that is not a Guarantor
to Guarantee the Obligations by causing such Restricted Subsidiary to execute and deliver to the
Administrative Agent a supplement to the Guarantee, and any Restricted Subsidiary shall thereafter be a
Guarantor and a Credit Party hereunder for all purposes and shall comply with the requirements of
Section 9.13 (any such Restricted Subsidiary organized in any State of the United States of America or
the District of Columbia, a “Discretionary Domestic Guarantor”); provided that with respect to any
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Restricted Subsidiary that is a Foreign Subsidiary (a “Discretionary Foreign Guarantor”), the
jurisdiction of such Subsidiary shall be reasonably satisfactory to the Administrative Agent; it being
understood and agreed that Canada, as such jurisdiction exists without giving effect to any Change in
Law which may occur after the Closing Date, shall be deemed reasonably satisfactory to the
Administrative Agent; provided further that, if the Administrative Agent reasonably determines that such
subsidiary is organized under the laws of a jurisdiction where (i) the amount and enforceability of the
contemplated guarantee that may be entered into by a person organized in the relevant jurisdiction is
materially and adversely limited by applicable law or contractual limitations, (ii) the security interests
(and the enforceability thereof) that may be granted with respect to assets (or various classes of assets)
located in the relevant jurisdiction is materially and adversely limited by applicable law or (iii) there is
any reasonably identifiable and material adverse political risk to the Lenders or the Administrative Agent
associated with such jurisdiction), such shall be deemed a reasonable basis for not permitting such
Restricted Subsidiary to become a Guarantor.
“Hazardous Materials” shall mean (i) any petroleum or petroleum byproducts, radioactive
materials, asbestos, polychlorinated biphenyls, and radon gas; (ii) any chemicals, materials, wastes, or
substances defined as or included in the definition of “hazardous substances,” “hazardous waste,”
“hazardous materials,” “extremely hazardous waste,” “restricted hazardous waste,” “toxic substances,”
“toxic pollutants,” “contaminants,” or “pollutants,” or words of similar meaning and regulatory effect,
under any Environmental Law; and (iii) any other chemical, material, waste, or substance, which is
prohibited or regulated due to its dangerous or deleterious properties or characteristics, by any
Environmental Law.
“Hedge Agreements” shall mean (i) 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 (ii) 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 (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master Agreement.
“Hedge Bank” shall mean (i) (a) any Person that, at the time it enters into a Hedge Agreement
with Holdings, Intermediate Holdings, the Borrower or any Restricted Subsidiary, is a Lender, an Agent
or an Affiliate of a Lender or an Agent and (b) with respect to any Hedge Agreement entered into prior to
the Closing Date, any Person that is a Lender or an Agent or an Affiliate of a Lender or an Agent on the
Closing Date and (ii) any other Person that is designated by Intermediate Holdings as a “Hedge Bank” by
written notice to the Administrative Agent substantially in the form of Exhibit L-1 or such other form
reasonably acceptable to the Administrative Agent and Intermediate Holdings.
“Hedging Obligations” shall mean, with respect to any Person, the obligations of such Person
under any Hedge Agreements.
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“Historical Audited Financial Statements” shall have the meaning given to such term in the
definition of “Historical Financial Statements”.
“Historical Interim Financial Statements” shall have the meaning given to such term in the
definition of “Historical Financial Statements”.
“Historical Financial Statements” shall mean (a) the audited consolidated balance sheets of the
Company and its Subsidiaries as of December 31, 2023 and December 31, 2022 and the related
consolidated statements of income and cash flows for the year ended 2023 and for the period from
August 9, 2022 to December 31, 2022 (the financial statements referred to in this clause (a), the
“Historical Audited Financial Statements”) and (b) the unaudited consolidated balance sheet of the
Company and its Subsidiaries as of August 31, 2024 and the related unaudited consolidated statements of
income of the Company and its Subsidiaries for the eight months period then ended and (the financial
statements referred to in this clause (b), the “Historical Interim Financial Statements”).
“HMT” shall have the meaning provided in the definition of the term “Sanctions”.
“Holdings” shall have the meaning provided in the preamble to this Agreement.
“ICC” shall have the meaning given to such term in the definition of “UCP”.
“IFRS” shall have the meaning given to such term in the definition of “GAAP”.
“Immediate Family Members” shall mean, with respect to any individual, such individual’s
child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former
spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law
(including adoptive relationships) and any trust, partnership or other bona fide estate-planning vehicle the
only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is
controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is
the donor.
“Impacted Loans” shall have the meaning provided in Section 2.10(a).
“Increased Amount Date” shall mean, with respect to any New Loan Commitments, the date on
which such New Loan Commitments shall be effective.
“Incremental Loans” shall have the meaning provided in Section 2.14(c).
“Incremental Revolving Credit Commitments” shall have the meaning provided in Section
2.14(a).
“Incremental Revolving Credit Loan” shall have the meaning provided in Section 2.14(b).
“Incremental Revolving Credit Maturity Date” shall mean the date on which any tranche of
Revolving Credit Loans made pursuant to the Lenders’ Incremental Revolving Credit Commitments
matures.
“Incremental Revolving Loan Lender” shall have the meaning provided in Section 2.14(b).
“incur” and “incurrence” shall have the meanings provided in Section 10.1.
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“Incurrence Based Amounts” shall have the meaning provided in Section 1.12(a).
“Indebtedness” shall mean, with respect to any Person, (i) any indebtedness (including principal
and premium) of such Person, whether or not contingent (a) in respect of borrowed money, (b) evidenced
by bonds, notes, debentures, or similar instruments or letters of credit or bankers’ acceptances (or,
without double counting, reimbursement agreements in respect thereof), (c) representing the balance
deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), or
(d) representing any Hedging Obligations, if and to the extent that any of the foregoing Indebtedness
(other than letters of credit and Hedging Obligations) would appear as a net liability upon a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with GAAP; provided that
Indebtedness of any direct or indirect parent company appearing upon the balance sheet of Intermediate
Holdings solely by reason of push down accounting under GAAP (other than in respect of any IPO
Reorganization Transaction) shall be excluded, (ii) to the extent not otherwise included, any obligation by
such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the obligations of the type
referred to in clause (i) of another Person (whether or not such items would appear upon the balance sheet
of such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the
ordinary course of business, (iii) to the extent not otherwise included, all obligations of such Person in
respect of Disqualified Stock and (iv) to the extent not otherwise included, the obligations of the type
referred to in clause (i) of another Person secured by a Lien on any asset owned by such Person, whether
or not such Indebtedness is assumed by such Person; provided that, notwithstanding the foregoing,
Indebtedness shall be deemed not to include (1) Contingent Obligations incurred in the ordinary course of
business, (2) prepaid or deferred revenue arising in the ordinary course of business, (3) purchase price
holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an
asset to satisfy warrants or other unperformed obligations of the seller of such asset, (4) any balance that
constitutes a trade payable or similar obligation to a trade creditor, accrued in the ordinary course of
business, (5) any earn-out obligation until such obligation, within 60 days of becoming due and payable,
has not been paid and such obligation is reflected as a liability on the balance sheet of such Person in
accordance with GAAP, (6) 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,
(7) accrued expenses and royalties or (8) asset retirement obligations and obligations in respect of
workers’ compensation (including pensions and retiree medical care) that are not overdue by more than
60 days. The amount of Indebtedness of any Person for purposes of clause (iii) above shall (unless such
Indebtedness has been assumed by such Person) be deemed to be equal to the lesser of (x) the aggregate
unpaid amount of such Indebtedness and (y) the Fair Market Value of the property encumbered thereby
as determined by such Person in good faith. For all purposes hereof, the Indebtedness of Intermediate
Holdings and the other Restricted Subsidiaries shall exclude all intercompany Indebtedness arising from
cash management, tax and/or accounting operations made in the ordinary course of business or consistent
with past practice.
“Indemnified Liabilities” shall have the meaning provided in Section 13.5(a).
“Indemnified Person” shall have the meaning provided in Section 13.5(a).
“Indemnified Taxes” shall mean (a) all Taxes imposed on or with respect to any payment made
by or on account of any obligation of any Credit Party under any Credit Document, other than Excluded
Taxes and (b) to the extent not otherwise described in (a), Other Taxes.
“Initial Revolving Credit Commitments” shall have the meaning provided in the definition of
the term “Revolving Credit Commitment”.
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“Initial Term Loan” shall have the meaning provided in Section 2.1(a).
“Initial Term Loan Commitment” shall mean, in the case of each Lender that is a Lender on
the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(a) as such Lender’s
Initial Term Loan Commitment. The aggregate amount of the Initial Term Loan Commitments as of the
Closing Date is $200,000,000.
“Initial Term Loan Lender” shall mean a Lender with an Initial Term Loan Commitment or an
outstanding Initial Term Loan.
“Initial Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).
“Inside Maturity Debt Exclusion” shall mean (x) any customary bridge facility, so long as the
long-term debt into which any such customary bridge facility is to be converted satisfies any otherwise
applicable limitations on maturity and weighted average life or (y) Indebtedness subject to escrow
arrangements, subject to customary conditions to release (or no conditions) over Indebtedness that
satisfies any otherwise applicable limitations on maturity and weighted average life.
“Insolvent” shall mean, with respect to any Multiemployer Plan, the condition that such
Multiemployer Plan is “insolvent” within the meaning of Section 4245 of ERISA.
“Intellectual Property” shall mean all intellectual property rights, including all (i) (a) patents,
inventions, designs, processes, developments, technology, and know-how; (b) copyrights and works of
authorship in any media, including graphics, advertising materials, labels, package designs, and
photographs; (c) trademarks, service marks, trade names, brand names, corporate names, Internet domain
names, logos, trade dress, and other source indicators, and the goodwill of any business symbolized
thereby; (d) trade secrets; and (ii) all registrations, issuances, applications, renewals, extensions,
substitutions, continuations, continuations-in-part, divisionals, re-issues, re-examinations, or similar legal
protections related to the foregoing.
“Interest Period” shall mean, with respect to any Loan, the interest period applicable thereto, as
determined pursuant to Section 2.9.
“Interest Rate Determination Date” shall have the meaning set forth in the definition of Term
SOFR.
“Inventory” shall mean all of the “inventory” (as such term is defined in the UCC) of
Intermediate Holdings and its Subsidiaries, including, but not limited to, all merchandise, raw materials,
parts, supplies, work in process and finished goods intended for sale, together with all the containers,
packing, packaging, shipping and similar materials related thereto, and including such inventory as is
temporarily out of Intermediate Holdings’ or such Subsidiary’s custody or possession, including
inventory on the premises of others and items in transit.
“Investment” shall mean, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the form of loans (including guarantees), advances, or capital
contributions (excluding accounts receivable, trade credit, advances to customers, commission, travel,
and similar advances to officers and employees, in each case made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity Interests, or other securities
issued by any other Person and investments that are required by GAAP to be classified on the
consolidated balance sheet (excluding the footnotes) of Intermediate Holdings in the same manner as the
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other investments included in this definition to the extent such transactions involve the transfer of cash or
other property; provided that Investments shall not include, in the case of Intermediate Holdings and the
other Restricted Subsidiaries, intercompany loans (including guarantees), advances, or Indebtedness
arising from cash management, tax and/or accounting operations made in the ordinary course of business
or consistent with past practice.
For purposes of the definition of Unrestricted Subsidiary and Section 10.6,
(i)Investments shall include the portion (proportionate to Intermediate Holdings’
equity interest in such Subsidiary) of the Fair Market Value of the net assets of a Subsidiary of
Intermediate Holdings at the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, Intermediate
Holdings shall be deemed to continue to have a permanent Investment in an Unrestricted
Subsidiary in an amount (if positive) equal to (a) Intermediate Holdings’ Investment in such
Subsidiary at the time of such redesignation less (b) the portion (proportionate to Intermediate
Holdings’ equity interest in such Subsidiary) of the Fair Market Value of the net assets of such
Subsidiary at the time of such redesignation; and
(ii)any property transferred to or from an Unrestricted Subsidiary shall be valued at
its Fair Market Value at the time of such transfer.
The amount of any Investment outstanding at any time shall be the original cost of such
Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment, or other
amount received by Intermediate Holdings or a Restricted Subsidiary in respect of such Investment
(provided that, with respect to amounts received other than in the form of Cash Equivalents, such amount
shall be equal to the Fair Market Value of such consideration).
“Investment Grade Rating” shall mean a rating equal to or higher than Baa3 (or the equivalent)
by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other rating agency.
“Investment Grade Securities” shall mean:
(i)securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (other than Cash Equivalents),
(ii)debt securities or debt instruments with an Investment Grade Rating, but
excluding any debt securities or instruments constituting loans or advances among Intermediate
Holdings and its Subsidiaries,
(iii)investments in any fund that invest at least 90% in investments of the type
described in clauses (i) and (ii) which fund may also hold immaterial amounts of cash pending
investment or distribution, and
(iv)corresponding instruments in countries other than the United States customarily
utilized for high-quality investments.
“Investor” shall have the meaning provided in the definition of the term “Equity Investment”.
“IPO” shall mean (a) the initial underwritten public offering (other than a public offering
pursuant to a registration statement on Form S-8) of common equity interests in Holdings, Intermediate
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Holdings, the Borrower, any Parent Entity or any IPO Listco, (b) any transaction or series of transactions
that results in any common equity interests of Holdings, Intermediate Holdings, the Borrower, any Parent
Entity or any IPO Listco that Holdings will distribute to its direct or indirect parent in connection with an
IPO (an “IPO Entity”) being publicly-traded on any United States national securities exchange or over
the counter market, or any analogous exchange or market in Canada, Ireland, the United Kingdom or any
country of the European Union or (c) the acquisition, purchase, merger or combination of Holdings,
Intermediate Holdings, the Borrower or any Parent Entity, by, or with, a publicly-traded special
acquisition company.
“IPO Entity” shall have the meaning set forth in the definition of “IPO”.
“IPO Listco” shall mean a wholly-owned subsidiary of Holdings formed in contemplation of an
IPO to become the IPO Entity; provided that Holdings shall, promptly following its formation, notify the
Administrative Agent of the formation of any IPO Listco.
“IPO Reorganization Transactions” shall mean, collectively, the transactions taken in
connection with and reasonably related to consummating an IPO, including (a) formation and ownership
of IPO Shell Companies, (b) entry into, and performance of, (i) a reorganization agreement among any of
Holdings, its Subsidiaries and/or IPO Shell Companies implementing IPO Reorganization Transactions
and other reorganization transactions in connection with an IPO and (ii) customary underwriting
agreements in connection with an IPO and any future follow-on underwritten public offerings of common
Equity Interests in the IPO Entity, including the provision by IPO Entity and Holdings of customary
representations, warranties, covenants and indemnification to the underwriters thereunder, (c) the merger
of one or more IPO Subsidiaries with one or more direct or indirect holders of Equity Interests in
Holdings with the surviving entity in any such merger holding Equity Interests in Holdings, and the
merger of such entities with any IPO Shell Company or IPO Subsidiary, (d) the issuance of Equity
Interests of IPO Shell Companies to holders of Equity Interests of Holdings in connection with any IPO
Reorganization Transactions, (e) the entry into an exchange agreement, pursuant to which holders of
Equity Interests of Holdings will be permitted to exchange such interests for certain economic/voting
Equity Interests in IPO Listco, and (f) the entry into, and performance of, any tax receivables agreements
by any IPO Shell Company or IPO Subsidiary, in each case of clauses (a) through (f), so long as after
giving Pro Forma Effect to any IPO Reorganization Transactions, the security interests of the Lenders in
the Collateral and the Guarantees of the Obligations, taken as a whole, would not be materially impaired.
“IPO Shell Company” shall mean each of IPO Listco and IPO Subsidiary.
“IPO Subsidiary” shall mean a wholly-owned subsidiary of IPO Listco formed in contemplation
of, and to facilitate, IPO Reorganization Transactions and an IPO. Holdings shall, promptly following its
formation, notify the Administrative Agent of the formation of an IPO Subsidiary.
“ISP” shall mean, with respect to any Letter of Credit, the “International Standby Practices 1998”
as published by the Institute of International Banking Law & Practice (or such later version thereof as
may be in effect at the time of issuance).
“Issuer Documents” shall mean, with respect to any Letter of Credit, the Letter of Credit
Request and any other document, agreement, and instrument entered into by the Letter of Credit Issuer
and the Borrower (or any other Restricted Subsidiary or any Parent Guarantor) or in favor of the Letter of
Credit Issuer and relating to such Letter of Credit.
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“Joinder Agreement” shall mean an agreement substantially in the form of Exhibit A, which
may include additional provisions to ensure fungibility of the Loans and to provide for mechanics for
borrowings in currencies other than Dollars.
“Joint Lead Arrangers and Bookrunners” shall mean MidCap and Monroe.
“judgment currency” shall have the meaning provided in Section 13.19.
“Junior Debt” shall mean any Indebtedness for borrowed money (other than any permitted
intercompany Indebtedness owing to Intermediate Holdings or any Restricted Subsidiary) that is
Subordinated Indebtedness, junior lien secured Indebtedness or unsecured Indebtedness.
“Latest Term Loan Maturity Date” shall mean, at any date of determination, the latest maturity
or expiration date applicable to any Term Loan hereunder at such time, including the latest maturity or
expiration date of any New Term Loan or any Extended Term Loan, in each case as extended in
accordance with this Agreement from time to time.
“L/C Borrowing” shall mean an extension of credit resulting from a drawing under any Letter of
Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.
“L/C Facility Maturity Date” shall mean the date that is five Business Days prior to the
Revolving Credit Maturity Date; provided that the L/C Facility Maturity Date may be extended beyond
such date with the consent of the applicable Letter of Credit Issuer.
“L/C Obligations” shall mean, as at any date of determination, the aggregate amount available to
be drawn under all outstanding Letters of Credit plus the aggregate of all Unpaid Drawings, including all
L/C Borrowings. 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 Standby Practices (ISP98), 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.
“L/C Participant” shall have the meaning provided in Section 3.3(a).
“L/C Participation” shall have the meaning provided in Section 3.3(a).
“L/C Sublimit” shall mean $20,000,000.
“LCT Election” shall have the meaning provided in Section 1.12(c).
“LCT Test Date” shall have the meaning provided in Section 1.12(c).
“Lender” or “Lenders” shall have the meanings provided in the preamble to this Agreement.
“Lender Default” shall mean (i) the refusal or failure of any Lender to make available its
portion of any incurrence of Loans, which refusal or failure is not cured within one Business Days after
the date of such refusal or failure, unless such Lender notifies the Administrative Agent in writing that
such refusal or failure is the result of such Lender’s good faith determination that one or more conditions
precedent to funding (each of which conditions precedent, together with any applicable default, shall be
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specifically identified in writing) has not been satisfied, (ii) the failure of any Lender to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by it hereunder within
one Business Day of the date when due, unless the subject of a good faith dispute, (iii) a Lender has
notified, in writing, the Borrower or the Administrative Agent that it does not intend to comply with its
funding obligations under this Agreement or has made a public statement to that effect with respect to its
funding obligations under this Agreement, or a Lender has publicly announced that it does not intend to
comply with its funding obligations under other loan agreements, credit agreements or similar facilities
generally, (iv) a Lender has failed to confirm in a manner reasonably satisfactory to the Administrative
Agent that it will comply with its funding obligations under this Agreement (v) a Distressed Person has
admitted in writing that it is insolvent or such Distressed Person becomes subject to a Lender-Related
Distress Event or (vi) a Lender has become the subject of a Bail-In Action; provided that no Lender
Default shall occur solely by virtue of the ownership or acquisition of any Equity Interest in that Lender
or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership
interest does not result in or provide such Lender with immunity from the jurisdiction of courts within
the United States or from the enforcement of judgments or writs of attachment on its assets or permit
such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or
disaffirm any contracts or agreements made with such Lender.
“Lender-Related Distress Event” shall mean, with respect to any Lender or any other Person
that directly or indirectly controls such Lender (each, a “Distressed Person”), other than via an
Undisclosed Administration, a voluntary or involuntary case with respect to such Distressed Person
under any debt relief law, or a custodian, conservator, receiver, or similar official is appointed for such
Distressed Person or any substantial part of such Distressed Person’s assets, or such Distressed Person, or
any Person that directly or indirectly controls such Distressed Person or is subject to a forced liquidation
or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise
adjudicated as, or determined by any Governmental Authority having regulatory authority over such
Distressed Person or its assets to be, insolvent or bankrupt; provided that a Lender-Related Distress
Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity
interests in any Lender or any Person that directly or indirectly controls such Lender by a Governmental
Authority or an instrumentality thereof so long as such ownership interest does not result in or provide
such Lender with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made
with such Lender.
“Letter of Credit” shall mean each letter of credit issued pursuant to Section 3.1 or renewed,
extended or amended hereunder.
“Letter of Credit Commitment” shall mean, with respect to each Letter of Credit Issuer, such
Letter of Credit Issuer’s pro rata share of the L/C Sublimit (calculated based on such Letter of Credit
Issuer’s (or, in the case of a Letter of Credit Issuer that is a Support Agreement Bank, MidCap’s) pro rata
share of the Revolving Credit Commitments), as may be reduced from time to time pursuant to Section
3.1.
“Letter of Credit Expiration Date” shall mean the day that is five Business Days prior to the
scheduled Maturity Date then in effect for the Revolving Credit Facility.
“Letter of Credit Exposure” shall mean, with respect to any Lender, at any time, the sum of (i)
the amount of the principal amount of any Unpaid Drawings in respect of which such Lender has made
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(or is required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a) at such
time and (ii) such Lender’s Revolving Credit Commitment Percentage of the Letters of Credit
Outstanding at such time (excluding the portion thereof consisting of Unpaid Drawings in respect of
which the Lenders have made (or are required to have made) payments to the Letter of Credit Issuer
pursuant to Section 3.4(a)).
“Letter of Credit Fee” shall have the meaning provided in Section 4.1(b).
“Letter of Credit Issuer” shall mean any Revolving Lender that agrees to act in such capacity
that procures through one or more banks, trust companies or other Persons, in each case (a) expressly
identified by the Administrative Agent or such other Revolving Lender from time to time and (b)
approved by the Borrower for purposes of issuing one or more Letters of Credit hereunder pursuant to LC
Support Agreements (such banks, trust companies or other Person, each, a “Support Agreement
Bank”). In the event that there is more than one Letter of Credit Issuer at any time, references herein and
in the other Credit Documents to the Letter of Credit Issuer shall be deemed to refer to the Letter of Credit
Issuer in respect of the applicable Letter of Credit or to all Letter of Credit Issuers, as the context requires.
“Letter of Credit Request” shall mean a notice executed and delivered by the Borrower pursuant
to Section 3.2, and substantially in a form which is acceptable to the Letter of Credit Issuer in its
reasonable discretion.
“Letters of Credit Outstanding” shall mean, at any time the sum of, without duplication, (i) the
aggregate Stated Amount of all outstanding Letters of Credit and (ii) the aggregate amount of the
principal amount of all Unpaid Drawings at such time.
“Lien” shall mean, with respect to any asset, any mortgage, lien, pledge, hypothecation, charge,
security interest, preference, priority, or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a
security interest in, and any filing of, or agreement to, give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating
lease or a license, sub-license or cross-license to Intellectual Property be deemed to constitute a Lien.
“Limited Condition Transaction” shall mean (i) any Permitted Acquisition by Intermediate
Holdings or one or more of its Restricted Subsidiaries whose consummation is not conditioned on the
availability of, or on obtaining, third party financing or (ii) any redemption, repurchase, satisfaction and
discharge or repayment of Indebtedness requiring irrevocable notice in advance thereof.
“Loan” shall mean any Revolving Loan, Swingline Loan, Term Loan or any other loan made by
any Lender pursuant to this Agreement.
“Market Capitalization” shall mean an amount equal to (i) the total number of issued and
outstanding shares of Equity Interests of the Borrower (or any successor entity) or any direct or indirect
parent of the Borrower on the date of the declaration or making of the relevant Restricted Payment
multiplied by (ii) the arithmetic mean of the closing prices per share of such Equity Interests for the 30
consecutive trading days immediately preceding the date of declaration or making of such Restricted
Payment.
“Management Investors” shall mean the former, current or future officers, directors, employees
and managers (and Controlled Investment Affiliates and Immediate Family Members of the foregoing) of
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Holdings, any Restricted Subsidiary or any Parent Entity who are or become direct or indirect investors
in Holdings, any Parent Entity or any Equityholding Vehicle, including any such officers, directors,
employees and managers owning through an Equityholding Vehicle.
“Mandatory Borrowing” shall have the meaning provided in Section 2.1(b).
“Master Agreement” shall have the meaning provided in the definition of the term “Hedge
Agreements”.
“Material Adverse Effect” shall mean (i) on the Closing Date, a Company Group Material
Adverse Effect (as defined in the Acquisition Agreement) and (ii) after the Closing Date, a circumstance
or condition affecting the business, assets, operations, properties, or financial condition of Intermediate
Holdings and its Subsidiaries, taken as a whole, that would, individually or in the aggregate, materially
adversely affect (i) the ability of the Borrower and the other Credit Parties, taken as a whole, to perform
their payment obligations under this Agreement or any of the other Credit Documents or (ii) the rights
and remedies of the Administrative Agent and the Lenders under the Credit Documents.
“Material Intellectual Property” shall mean Intellectual Property that is owned by and used in
the business of the Borrower or any Guarantor, the loss of which would reasonably be expected to result
in a material adverse effect on the business of the Borrower and the Guarantors, taken as a whole, in each
case.
“Material Subsidiary” shall mean, at any date of determination, each Restricted Subsidiary
(i) whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal
period for which Section 9.1 Financials have been delivered were equal to or greater than 5.00% of the
Consolidated Total Assets of Intermediate Holdings and the Restricted Subsidiaries at such date or
(ii) whose revenues during such Test Period were equal to or greater than 5.00% of the consolidated
revenues of Intermediate Holdings and the Restricted Subsidiaries for such period, in each case
determined in accordance with GAAP; provided that if, at any time and from time to time after the
Closing Date, Restricted Subsidiaries that are not Material Subsidiaries (other than Subsidiaries that are
Excluded Subsidiaries by virtue of any of clauses (ii) through (xiii) of the definition of “Excluded
Subsidiary”) have, in the aggregate, (a) total assets at the last day of such Test Period equal to or greater
than 10.00% of the Consolidated Total Assets of Intermediate Holdings and the Restricted Subsidiaries at
such date or (b) revenues during such Test Period equal to or greater than 10.00% of the consolidated
revenues of Intermediate Holdings and the Restricted Subsidiaries for such period, in each case
determined in accordance with GAAP, then Intermediate Holdings shall, on the date on which financial
statements for such quarter are delivered pursuant to this Agreement, designate in writing to the
Administrative Agent one or more of such Restricted Subsidiaries as Material Subsidiaries for each fiscal
period until this proviso is no longer applicable.
“Maturity Date” shall mean the Revolving Credit Maturity Date, the Extended Revolving Loan
Maturity Date, any Incremental Revolving Credit Maturity Date, the Term Loan Maturity Date, the New
Term Loan Maturity Date or the maturity date of an Extended Term Loan, as applicable.
“Maximum Incremental Facilities Amount” shall mean, at any date of determination, (i) the
sum of (a) (x) the greater of (1) $40,000,000 and (2) 100% of Consolidated EBITDA for the most
recently ended Test Period (calculated on a Pro Forma Basis) minus (y) the sum of (A) the aggregate
principal amount of New Loan Commitments incurred pursuant to Section 2.14(a) in reliance on
clause (i) of this definition prior to such date, (B) the aggregate principal amount of Permitted Other
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Indebtedness issued or incurred (including any unused commitments obtained) pursuant to
Section 10.1(v)(i) in reliance on clause (i) of this definition prior to such date and (C) the aggregate
principal amount of Indebtedness issued or incurred (including any unused commitment obtained) in
reliance on clause (A)(i) of Section 10.1(x) plus (b) the aggregate amount of voluntary prepayments of
Term Loans (including New Term Loans), Permitted Other Indebtedness secured by a Lien on a pari
passu basis with the Liens securing the Obligations and any other Indebtedness secured by a Lien on the
Collateral ranking equal with the Liens securing the Obligations and, to the extent accompanied by
permanent optional reductions of Revolving Credit Commitments, Revolving Loans (including purchases
of any Loans by Intermediate Holdings and its Subsidiaries at or below par, in which case the amount of
voluntary prepayments or any repayments or reductions (including by assignment in connection with the
replacement of a non-consenting Lender pursuant to Section 13.7) of Loans shall be equal to the face
amount thereof) in each case, other than from proceeds of the incurrence of long-term Indebtedness
(other than the proceeds of any revolving indebtedness (including the Revolving Credit Facility)), in each
case after giving effect to any reclassification of amounts previously incurred under this clause (i)(b) as
incurred under the immediately following clause (ii) plus (ii) an amount such that, after giving effect to
the incurrence of such amount the Borrower would be in compliance on a Pro Forma Basis (including
any adjustments required by such definition as a result of a contemplated Permitted Acquisition, but
excluding any concurrent incurrence of Indebtedness pursuant to clause (i) above and assuming the
Incremental Revolving Credit Commitments at such time are fully drawn) with (I) if such Indebtedness is
secured by a Lien on an pari passu basis with the Liens on the Collateral securing the Obligations, the
Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio, shall not exceed 5.00 to 1.00, (II)
if such Indebtedness is secured by a Lien on a junior priority basis with the Liens on the Collateral
securing the Obligations, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio, shall
not exceed 5.50 to 1.00 and (III) if such Indebtedness is unsecured, the Consolidated Total Debt to
Consolidated EBITDA Ratio, shall not exceed 6.00 to 1.00 (in each case excluding for the purposes of
calculating such ratios, any cash proceeds concurrently drawn (including Revolving Loans)) (it being
understood that (I) unless otherwise elected by the Borrower, the Borrower shall be deemed to have used
amounts under clause (ii) (to the extent compliant therewith) prior to utilization of amounts under clause
(i), (II) loans may be incurred under both clauses (i) and (ii) above, and proceeds from any such
incurrence under both clauses (i) and (ii) above, may be utilized in a single transaction by first
calculating the incurrence under clause (ii) above and then calculating the incurrence under clause (i)
above and (III) any Indebtedness originally designated as incurred under clause (i) shall be automatically
redesignated as having been incurred under clause (ii) at any time the Borrower would be permitted to
incur under clause (ii) the aggregate principal amount of Indebtedness being so redesignated (for
purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to
incur Indebtedness under clause (i) as of the date of such redesignation by the amount of Indebtedness so
redesignated)).
“Merger Sub” shall have the meaning provided in the preamble to this Agreement.
“MFN Parameters” means term loans or notes that are not widely-placed (as determined by
Intermediate Holdings in good faith) (in each case, excluding customary bridge loans), in each case that
are pari passu with the Initial Term Loans funded on the Closing Date in right of payment and security
and denominated in Dollars.
“MFN Protection” shall have the meaning set forth in the proviso to Section 2.14(d)(iii).
“MidCap” means MidCap Financial Trust.
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“Minimum Borrowing Amount” shall mean (i) with respect to a Borrowing of Benchmark Rate
Loans, $1,000,000 (or, if less, the entire remaining applicable Commitments at the time of such
Borrowing) and (ii) with respect to a Borrowing of ABR Loans, $1,000,000 (or, if less, the entire
remaining applicable Commitments at the time of such Borrowing).
“Minimum Collateral Amount” shall mean, at any time, (i) with respect to Cash Collateral
consisting of cash or Cash Equivalents or deposit account balances provided to reduce or eliminate
Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 103% of the Fronting
Exposure of the Letter of Credit Issuer with respect to Letters of Credit issued and outstanding at such
time and (ii) with respect to Cash Collateral consisting of cash or Cash Equivalents or deposit account
balances provided in accordance with the provisions of Section 3.8(a)(i), (a)(ii) or (a)(iii), an amount
equal to 103% of the outstanding amount of all L/C Obligations.
“Minimum Tender Condition” shall have the meaning provided in Section 2.15(b).
“Monroe” means Monroe Capital, LLC
“Moody’s” shall mean Moody’s Investors Service, Inc. or any successor by merger or
consolidation to its business.
“Mortgage” shall mean a mortgage, deed of trust, deed to secure debt, trust deed, or other
security document entered into by the owner of a Mortgaged Property for the benefit of the Collateral
Agent and the Secured Parties in respect of that Mortgaged Property to secure the Obligations, in form
and substance reasonably acceptable to the Collateral Agent and Intermediate Holdings, together with
such terms and provisions as may be required by local laws.
“Mortgaged Property” shall mean, initially, each parcel of real estate and the improvements
thereto owned in fee by, as of the Closing Date, a Credit Party and identified on Schedule 8.16, and each
other owned parcel of real property and improvements thereto with respect to which a Mortgage is
granted pursuant to Section 9.13.
“Multiemployer Plan” shall mean a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which any Credit Party or ERISA Affiliate makes or is obligated to make contributions, or
during the five preceding calendar years, has made or been obligated to make contributions.
“Net Cash Proceeds” shall mean, with respect to any Prepayment Event and any incurrence of
Permitted Other Indebtedness, (i) the gross cash proceeds (including payments from time to time in
respect of installment obligations, if applicable, but only as and when received) received by or on behalf
of Intermediate Holdings or any of its Restricted Subsidiaries in respect of such Prepayment Event or
incurrence of Permitted Other Indebtedness, as the case may be, less (ii) the sum of:
(a)the amount, if any, of all taxes (including in connection with any repatriation of
funds) paid or estimated to be payable by Intermediate Holdings or any of its Restricted
Subsidiaries and any Tax Distributions in connection with such Prepayment Event or incurrence
of Permitted Other Indebtedness,
(b)the amount of any reasonable reserve established in accordance with GAAP
against any liabilities (other than any taxes deducted pursuant to clause (a) above) (1) associated
with the assets that are the subject of such Prepayment Event and (2) retained by Intermediate
Holdings or any of the Restricted Subsidiaries; provided that the amount of any subsequent
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reduction of such reserve (other than in connection with a payment in respect of any such
liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event occurring on the
date of such reduction,
(c)the amount of any Indebtedness (other than the Loans and Permitted Other
Indebtedness) secured by a Lien on the assets that are the subject of such Prepayment Event to the
extent that the instrument creating or evidencing such Indebtedness requires that such
Indebtedness be repaid upon consummation of such Prepayment Event,
(d)in the case of any Asset Sale Prepayment Event or Casualty Event, the amount of
any proceeds of such Prepayment Event that Intermediate Holdings or any Restricted Subsidiary
has reinvested (or intends to reinvest within the Reinvestment Period or has entered into a
binding commitment prior to the last day of the Reinvestment Period to reinvest) in the business
of Intermediate Holdings or any of the Restricted Subsidiaries; provided that any portion of such
proceeds that has not been so reinvested within such Reinvestment Period (with respect to such
Prepayment Event, the “Deferred Net Cash Proceeds”) shall, unless Intermediate Holdings or a
Restricted Subsidiary has entered into a binding commitment prior to the last day of such
Reinvestment Period to reinvest such proceeds no later than 180 days following the last day of
such Reinvestment Period, (i) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment
Event or Casualty Event occurring on the last day of such Reinvestment Period or, if later, 180
days after the date Intermediate Holdings or such Restricted Subsidiary has entered into such
binding commitment, as applicable (such last day or 180th day, as applicable, the “Deferred Net
Cash Proceeds Payment Date”), and (ii) be applied to the repayment of Term Loans in
accordance with Section 5.2(a)(i);
(e)in the case of any Asset Sale Prepayment Event or Casualty Event by a
non-Wholly-Owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof
(calculated without regard to this clause (e)) attributable to non-controlling interests and not
available for distribution to or for the account of Intermediate Holdings or a Wholly-Owned
Restricted Subsidiary as a result thereof;
(f)in the case of any Asset Sale Prepayment Event, any funded escrow established
pursuant to the documents evidencing any such sale or disposition to secure any indemnification
obligations or adjustments to the purchase price associated with any such sale or disposition;
provided that the amount of any subsequent reduction of such escrow (other than in connection
with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such
a Prepayment Event occurring on the date of such reduction solely to the extent that Intermediate
Holdings and/or any Restricted Subsidiaries receives cash in an amount equal to the amount of
such reduction; and
(g)all fees and out-of-pocket expenses paid by Intermediate Holdings or a
Restricted Subsidiary in connection with any of the foregoing (for the avoidance of doubt,
including, (i) in the case of the issuance of Permitted Other Indebtedness, any fees, underwriting
discounts, premiums, and other costs and expenses incurred in connection with such issuance and
(ii) attorney’s fees, investment banking fees, survey costs, title insurance premiums, and related
search and recording charges, transfer taxes, deed or mortgage recording taxes, underwriting
discounts and commissions, other customary expenses, and brokerage, consultant, accountant and
other customary fees), in each case, only to the extent not already deducted in arriving at the
amount referred to in clause (i) above.
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“Net Income” shall mean, with respect to any Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of preferred stock dividends.
“New Loan Commitments” shall have the meaning provided in Section 2.14(a).
“New Revolving Credit Commitments” shall have the meaning provided in Section 2.14(a).
“New Revolving Credit Loan” shall have the meaning provided in Section 2.14(b).
“New Revolving Loan Lender” shall have the meaning provided in Section 2.14(b).
“New Revolving Loan Repayment Amount” shall have the meaning provided in
Section 2.5(d).
“New Revolving Loan Repayment Date” shall have the meaning provided in Section 2.5(d).
“New Term Loan” shall have the meaning provided in Section 2.14(c).
“New Term Loan Commitments” shall have the meaning provided in Section 2.14(a).
“New Term Loan Lender” shall have the meaning provided in Section 2.14(c).
“New Term Loan Maturity Date” shall mean the date on which a New Term Loan matures.
“New Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(d).
“New Term Loan Repayment Date” shall have the meaning provided in Section 2.5(d).
“Non-Bank Tax Certificate” shall have the meaning provided in Section 5.4(e)(ii)(B)(3).
“Non-Consenting Lender” shall have the meaning provided in Section 13.7(b).
“Non-Defaulting Lender” shall mean and include each Lender other than a Defaulting Lender.
“Non-Extension Notice Date” shall have the meaning provided in Section 3.2(d).
“Non-Expiring Credit Commitments” shall have the meaning provided in Section 2.1(d).
“Non-U.S. Lender” shall mean any Lender that is not a “United States person” as defined by
Section 7701(a)(30) of the Code.
“Notice of Borrowing” shall have the meaning provided in Section 2.3(a).
“Notice of Conversion or Continuation” shall have the meaning provided in Section 2.6(a).
“Notice of Intent to Cure” shall have the meaning provided in Section 11.14(c).
“Obligations” shall mean all advances to, and debts, liabilities, obligations, covenants and duties
of, any Credit Party arising under any Credit Document or otherwise with respect to any Revolving
Credit Commitment, Loan or Letter of Credit or under any Secured Cash Management Agreement or
Secured Hedge Agreement (other than with respect to any Credit Party’s obligations that constitute
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Excluded Swap Obligations solely with respect to such Credit Party), in each case, entered into with
Intermediate Holdings or any of the Restricted Subsidiaries, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising
and including interest and fees that accrue after the commencement by or against any Credit Party or any
Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the
debtor in such proceeding, regardless of whether such interest and fees are allowed or allowable claims
in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Credit
Parties under the Credit Documents (and any of their Subsidiaries to the extent they have obligations
under the Credit Documents) include the obligation (including guarantee obligations) to pay principal,
interest, charges, expenses, fees, attorney costs, indemnities and other amounts payable by any Credit
Party under any Credit Document and all obligations, liabilities and indebtedness of any Credit Party
arising from or in connection with all LC Support Agreements.
“OFAC” shall have the meaning provided in Section 8.10.
“OpCo” shall have the meaning provided in the preamble to this Agreement.
“Original Revolving Credit Commitments” shall mean all Revolving Credit Commitments,
Existing Revolving Credit Commitments and Extended Revolving Credit Commitments, other than any
New Revolving Credit Commitments (and any Extended Revolving Credit Commitments related thereto).
“Other Taxes” shall mean all present or future stamp, court or documentary Taxes or any other
intangible, recording, filing or similar Taxes arising from any payment made hereunder or under any
other Credit Document or from the execution, delivery, performance, enforcement or registration of, from
the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any
other Credit Document; provided that such term shall not include any Taxes that result from an
assignment, (“Assignment Taxes”) to the extent such Assignment Taxes are imposed as a result of a
connection between the Lender and the taxing jurisdiction (other than a connection arising solely from
any Credit Documents or any transactions contemplated thereunder), except to the extent that any such
action described in this proviso is requested or required by the Borrower.
“Overnight Rate” shall mean, for any day, the greater of (a) the Federal Funds Effective Rate
and (b) an overnight rate determined by the Administrative Agent, the Swingline Lender or the Letter of
Credit Issuer, as the case may be, in accordance with banking industry rules on interbank compensation.
“Parent Entity” shall mean any Person that is a direct or indirect parent company (which may be
organized as, among other things, a partnership), including any managing member, of Holdings,
Intermediate Holdings and/or the Borrower.
“Parent Guarantors” shall have the meaning provided in the preamble to this Agreement.
“Participant” shall have the meaning provided in Section 13.6(c)(i).
“Participant Register” shall have the meaning provided in Section 13.6(c)(ii).
“Patriot Act” shall have the meaning provided in Section 13.18.
“Payment Recipient” shall have the meaning provided in Section 12.15(a).
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“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
“Pension Plan” shall mean any “employee pension benefit plan” (as defined in Section 3(2) of
ERISA, but excluding any Multiemployer Plan) that is subject to Title IV of ERISA, Section 302 of
ERISA or Section 412 of the Code, in respect of which any Credit Party or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4062 or Section 4069 of ERISA, be deemed to be) an
“employer” as defined in Section 3(5) of ERISA.
“Permitted Acquisition” shall have the meaning provided in Section 10.6(c).
“Permitted Asset Swap” shall mean the concurrent purchase and sale or exchange of Related
Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between
Intermediate Holdings or a Restricted Subsidiary and another Person; provided that such assets purchased
or received in such an exchange (taking into account any cash or Cash Equivalents exchanged in such
transaction) are of comparable or greater Fair Market Value or usefulness to the business of Intermediate
Holdings and its Restricted Subsidiaries, as a whole, as determined in good faith by Intermediate
Holdings; provided, further, that any cash or Cash Equivalents received must be applied in accordance
with Section 10.4.
“Permitted Debt Exchange” shall have the meaning provided in Section 2.15(a).
“Permitted Debt Exchange Notes” shall have the meaning provided in Section 2.15(a).
“Permitted Debt Exchange Offer” shall have the meaning provided in Section 2.15(a).
“Permitted Holders” shall mean each of (a) Investors as of the Closing Date, (b) the
Management Investors (including any Management Investors holding Equity Interests through a direct or
indirect parent or management investment vehicle) and their Permitted Transferees, (c) any Person who
is acting solely as an underwriter in connection with a public or private offering of Equity Interests of
Holdings or any of its direct or indirect parent companies, acting in such capacity, (d) any group (within
the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date) of which
any of the foregoing are members and any member of such group; provided, that in the case of such
group and without giving effect to the existence of such group or any other group, the Sponsor shall have
beneficial ownership of more than 50% of the total voting power of the issued and outstanding Equity
Interests of Holdings or any of its direct or indirect parent companies held by such group, (e) any direct
or indirect Parent Entity formed not in connection with, or in contemplation of, a transaction (other than
the Transactions or IPO Reorganization Transactions) that, assuming such parent was not formed after
giving effect thereto, would constitute a Change of Control and (f) any entity (other than a Parent Entity)
through which a Parent Entity described in clause (e) directly or indirectly holds Equity Interests of the
Borrower and has no other material operations other than those incidental thereto.
“Permitted Investment” shall have the meaning provided in Section 10.6.
“Permitted Liens” shall mean, with respect to any Person:
(i)Liens for taxes, assessments or other governmental charges or levies not yet due
(or not delinquent) or which are being contested in good faith by appropriate action and for
which adequate reserves have been maintained in accordance with GAAP;
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(ii)Liens in connection with workers’ compensation, unemployment insurance or
other social security, old age pension or public liability obligations not yet due or which are
being contested in good faith by appropriate action and for which adequate reserves have been
maintained in accordance with GAAP;
(iii)operators’, vendors’, carriers’, warehousemen’s, repairmen’s, mechanics’,
workers’, materialmen’s, construction or other like Liens arising by operation of law in the
ordinary course of business or landlord’s liens, each of which is in respect of obligations that
have not been outstanding more than 90 days or which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been maintained in accordance
with GAAP;
(iv)any Liens reserved in leases for rent or royalties and for compliance with the
terms of the leases in the case of leasehold estates, to the extent that any such Lien referred to in
this clause does not materially impair the use of the property covered by such Lien for the
purposes for which such property is held by Intermediate Holdings or any Restricted Subsidiary
or materially impair the value of such property subject thereto;
(v)encumbrances (other than to secure the payment of borrowed money or the
deferred purchase price of property or services), easements, restrictions, servitudes, permits,
conditions, covenants, exceptions or reservations in any rights of way or other property of
Intermediate Holdings or any Restricted Subsidiary for the purpose of roads, pipelines,
transmission lines, transportation lines, distribution lines for the removal of gas, oil, coal or other
minerals or timber, and other like purposes, or for the joint or common use of real estate, rights
of way, facilities and equipment, and defects, irregularities, zoning restrictions, encroachments
and deficiencies in title of any rights of way or other property which in the aggregate do not
materially impair the use of such rights of way or other property for the purposes of which such
rights of way and other property are held by Intermediate Holdings or any Restricted Subsidiary
or materially impair the value of such property subject thereto;
(vi)Liens pursuant to the Security Documents;
(vii)Liens arising out of judgments, attachments or awards not resulting in an Event
of Default under Section 11.5 or Section 11.10;
(viii)Liens (other than any Lien imposed by ERISA) (x) imposed by a Governmental
Authority or deposits made in connection therewith in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other types of social
security legislation, (y) incurred in the ordinary course of business to secure the performance of
tenders, statutory obligations (other than excise taxes), surety, stay, customs and appeal bonds,
statutory bonds, bids, leases, government contracts, trade contracts, performance and return of
money bonds and other similar obligations (exclusive of obligations for the payment of borrowed
money) or (z) arising by virtue of deposits made in the ordinary course of business to secure
liability for premiums to insurance carriers; provided that (A) with respect to clauses (x), (y) and
(z) of this clause (viii), such Liens are for amounts not yet due and payable or delinquent or, to
the extent such amounts are so due and payable, such amounts are being contested in good faith
by appropriate proceedings for which adequate reserves have been established in accordance with
GAAP and (B) to the extent such Liens are not imposed by a Governmental Authority, such Liens
shall in no event encumber any property other than cash and cash equivalents;
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(ix)Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by any Restricted Subsidiary in the ordinary
course of business in accordance with the past practices of such Restricted Subsidiary;
(x)bankers’ Liens, rights of setoff and other similar Liens existing solely with
respect to cash and Cash Equivalents on deposit in one or more accounts maintained by any
Restricted Subsidiary, in each case granted in the ordinary course of business in favor of the bank
or banks with which such accounts are maintained, securing amounts owing to such bank with
respect to cash management and operating account arrangements, including those involving
pooled accounts and netting arrangements; provided that, unless such Liens are nonconsensual
and arise by operation of law, in no case shall any such Liens secure (either directly or indirectly)
the repayment of any Indebtedness;
(xi)licenses, sub-licenses or cross license of Intellectual Property granted in the
ordinary course of business;
(xii)the filing of UCC financing statements solely as a precautionary measure in
connection with (i) operating leases or consignment of goods and (ii) in connection with the sales
of Accounts pursuant to any Permitted Receivables Financing;
(xiii)leases, licenses, subleases or sublicenses granted to others in the ordinary course
of business;
(xiv)Liens (x) on cash advances in favor of the seller of any property to be acquired in
an Investment permitted pursuant to Section 10.6 to be applied against the purchase price for such
Investment and (y) consisting of an agreement to dispose of any property in an asset sale, in each
case, solely to the extent such Investment or disposition, as the case may be, would have been
permitted on the date of the creation of such Lien;
(xv)Liens (a) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code or any comparable or successor provision on items in the course of collection,
(b) attaching to commodity trading accounts or other commodity brokerage accounts incurred in
the ordinary course of business, and (c) in favor of banking or other financial institutions or other
electronic payment service providers arising as a matter of law encumbering deposits (including
the right of set-off) and which are within the general parameters customary in the banking or
finance industry;
(xvi)Liens encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in
the ordinary course of business and not for speculative purposes;
(xvii)Liens (a) solely on any cash earnest money deposits made by Intermediate
Holdings or any of the Restricted Subsidiaries in connection with any letter of intent or purchase
agreement permitted under this Agreement or (b) consisting of an agreement to dispose of any
property pursuant to a disposition permitted hereunder;
(xviii)rights reserved or vested in any Person by the terms of any lease, license,
franchise, grant or permit held by Intermediate Holdings or any of the Restricted Subsidiaries or
by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to
require annual or periodic payments as a condition to the continuance thereof;
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(xix)restrictive covenants affecting the use to which real property may be put;
provided that the covenants are complied with;
(xx)security given to a public utility or any municipality or governmental authority
when required by such utility or authority in connection with the operations of that Person in the
ordinary course of business;
(xxi)(a) Liens on Equity Interests in joint ventures; provided that any such Lien is in
favor of a creditor of such joint venture and such creditor is not an Affiliate of any partner to
such joint venture and (b) purchase options, call and similar rights of, and restrictions for the
benefit of, a third party with respect to Equity Interests held by Intermediate Holdings or any
Restricted Subsidiary in joint ventures;
(xxii)Liens on cash and Cash Equivalents that are earmarked to be used to satisfy or
discharge Indebtedness; provided (a) such cash and/or Cash Equivalents are deposited into an
account from which payment is to be made, directly or indirectly, to the Person or Persons
holding the Indebtedness that is to be satisfied or discharged, (b) such Liens extend solely to the
account in which such cash and/or Cash Equivalents are deposited and are solely in favor of the
Person or Persons holding the Indebtedness (or any agent or trustee for such Person or Persons)
that is to be satisfied or discharged, and (c) the satisfaction or discharge of such Indebtedness is
expressly permitted hereunder;
(xxiii)with respect to any Foreign Subsidiary, other Liens and privileges arising
mandatorily by any Requirements of Law;
(xxiv)to the extent arising pursuant to a Requirement of Law, Liens on cash or Cash
Equivalents securing Hedge Agreements in the ordinary course of business; and
(xxv)other Liens; provided that the aggregate outstanding face amount of obligations
secured by Liens existing in reliance on this clause (xxv) shall not exceed the greater of
$20,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period
(calculated on a Pro Forma Basis) as of such time of incurrence.
“Permitted Other Indebtedness” shall mean Indebtedness consisting of one or more series of
secured or unsecured bonds, notes or debentures (including in a public offering, Rule 144A or other
private placement) or secured or unsecured loans (including a bridge facility or syndicated loan
financing) (which Indebtedness if secured, must be secured either by Liens that are pari passu with the
Liens on the Collateral securing the Obligations or be secured by Liens that are junior to the Liens on the
Collateral securing the Obligations), in each case issued or incurred by the Borrower or a Guarantor
(other than Holdings); provided that (a) except in the case of any Inside Maturity Debt Exclusion, the
maturity date of such Indebtedness shall be no earlier than the Term Loan Maturity Date and such
Indebtedness shall not have a shorter weighted average life to maturity than the existing Initial Term
Loans, (b) if such Indebtedness is incurred pursuant to Section 10.1(v)(i), such Indebtedness shall be
subject to the same terms and conditions set forth in Section 2.14 that are applicable to New Term Loans,
except the covenants, events of default and mandatory prepayments either, at the option of Intermediate
Holdings, (i) shall be not materially more restrictive (taken as a whole) (other than with respect to
economic terms and prepayment or redemption provisions) to Intermediate Holdings and its Restricted
Subsidiaries than the covenants, events of default and mandatory prepayment provisions applicable to the
Initial Term Loans, unless (x) the Lenders of the Term Loans receive the benefit of such more restrictive
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terms or (y) any such provisions apply after the Term Loan Maturity Date or (ii) reflect market terms and
conditions (taken as a whole) at the time of incurrence or issuance (as determined by Intermediate
Holdings in good faith), (c) with respect to such Indebtedness, no Subsidiary of Holdings (other than
Intermediate Holdings or a Guarantor) shall be an obligor, (d) that, if such Indebtedness is secured, such
Indebtedness shall not be secured by a Lien on any assets other than the Collateral and (e) such
Indebtedness shall be subject to an Acceptable Intercreditor Agreement or other intercreditor
documentation reasonably acceptable to the Administrative Agent and the Borrower, if applicable.
“Permitted Other Indebtedness Documents” shall mean any document or instrument (including
any guarantee, security agreement or mortgage and which may include any or all of the Credit
Documents) issued or executed and delivered with respect to any Permitted Other Indebtedness by any
Credit Party.
“Permitted Other Indebtedness Obligations” shall mean, if any Permitted Other Indebtedness
is issued or incurred, all advances to, and debts, liabilities, obligations, covenants and duties of, any
Credit Party arising under any Permitted Other Indebtedness Document, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to become due, now existing or
hereafter arising, and including interest and fees that accrue after the commencement by or against any
Credit Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming
such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed or
allowable claims in such proceeding. Without limiting the generality of the foregoing, the Permitted
Other Indebtedness Obligations of the applicable Credit Parties under the Permitted Other Indebtedness
Documents (and any of their Restricted Subsidiaries to the extent they have obligations under the
Permitted Other Indebtedness Documents) include the obligation (including guarantee obligations) to pay
principal, interest, charges, expenses, fees, attorney costs, indemnities and other amounts payable by any
such Credit Party under any Permitted Other Indebtedness Document.
“Permitted Other Provision” shall have the meaning provided in Section 2.14(g)(i).
“Permitted Receivables Financing” shall have the meaning provided in the definition of the
term “Asset Sale”.
“Permitted Repricing Amendment” shall have the meaning provided in Section 13.1.
“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, 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 Holdings or any other IPO
Entity.
“Permitted Sale Leaseback” shall mean any Sale Leaseback consummated by Intermediate
Holdings or any of the Restricted Subsidiaries after the Closing Date; provided that any such Sale
Leaseback that is not between (a) a Credit Party and another Credit Party or (b) a Restricted Subsidiary
that is not a Credit Party and another Restricted Subsidiary that is not a Credit Party must be
consummated for Fair Market Value as determined at the time of consummation in good faith by (i)
Intermediate Holdings or such Restricted Subsidiary or (ii) in the case of any Sale Leaseback (or series of
related Sale Leasebacks) the aggregate proceeds of which exceed the greater of (a) $10,000,000 and
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(b) 25% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma
Basis) at the time of the incurrence of such Sale Leaseback, the sole member (or analogous governing
body) of Intermediate Holdings or such Restricted Subsidiary (which such determination may take into
account any retained interest or other Investment of Intermediate Holdings or such Restricted Subsidiary
in connection with, and any other material economic terms of, such Sale Leaseback).
“Person” shall mean any individual, partnership, joint venture, firm, corporation, limited liability
company, association, trust, or other enterprise or any Governmental Authority.
“Plan” shall mean, other than any Multiemployer Plan, any “employee benefit plan” (as defined
in Section 3(3) of ERISA), including any “employee welfare benefit plan” (as defined in Section 3(1) of
ERISA), any “employee pension benefit plan” (as defined in Section 3(2) of ERISA), and any plan which
is both an employee welfare benefit plan and an employee pension benefit plan, and in respect of which
any Credit Party or, with respect to any such plan that is that is subject to Title IV of ERISA, Section 302
of ERISA or Section 412 of the Code, any ERISA Affiliate is (or, if such Plan were terminated, would
under Section 4062 or Section 4069 of ERISA be reasonably likely to be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.
“Planned Expenditures” shall have the meaning provided in the definition of the term “Excess
Cash Flow”.
“Platform” shall have the meaning provided in Section 13.17(a).
“Pledge Agreement” shall mean the Pledge Agreement entered into by the Credit Parties party
thereto and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of
Exhibit C.
“Post-Acquisition Period” shall mean, with respect to any Permitted Acquisition, the period
beginning on the date such Permitted Acquisition is consummated and ending on the last day of the eighth
full consecutive fiscal quarter immediately following the date on which such Permitted Acquisition is
consummated.
“Prepayment Event” shall mean any Asset Sale Prepayment Event, Debt Incurrence
Prepayment Event or Casualty Event.
“Prepayment Trigger” shall have the meaning provided in the definition of the term “Asset Sale
Prepayment Event”.
“primary obligation” shall have the meaning provided such term in the definition of “Contingent
Obligations”.
“primary obligor” shall have the meaning provided in the definition of “Contingent
Obligations”.
“Pro Forma Adjustment” shall mean, for any Test Period that includes all or any part of a fiscal
quarter included in any Post-Acquisition Period, with respect to the Acquired EBITDA of the applicable
Acquired Entity or Business or Converted Restricted Subsidiary or the Consolidated EBITDA of
Intermediate Holdings, the pro forma increase or decrease in such Acquired EBITDA or such
Consolidated EBITDA, as the case may be, projected by Intermediate Holdings in good faith as a result
of (i) actions taken during such Post-Acquisition Period for the purposes of realizing reasonably
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identifiable and factually supportable cost savings, operating expenses reductions and operating
enhancements or (ii) any additional costs incurred during such Post-Acquisition Period, in each case, in
connection with the combination of the operations of such Acquired Entity or Business or Converted
Restricted Subsidiary with the operations of Intermediate Holdings and the Restricted Subsidiaries;
provided that (a) at the election of Intermediate Holdings, such Pro Forma Adjustment shall not be
required to be determined for any Acquired Entity or Business or Converted Restricted Subsidiary to the
extent the aggregate consideration paid in connection with such acquisition was less than $10,000,000;
and (b) so long as such actions are taken during such Post-Acquisition Period or such costs are incurred
during such Post-Acquisition Period, as applicable, it may be assumed, for purposes of projecting such
pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case
may be, that the applicable amount of such cost savings, operating expenses reductions and operating
enhancements will be realizable during the entirety of such Test Period, or the applicable amount of such
additional costs, as applicable, will be incurred during the entirety of such Test Period; provided, further,
that any such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA,
as the case may be, shall be without duplication for, and subject to applicable caps and limitations set
forth in such defined terms in respect of, cost savings or additional costs or other items already included
in such Acquired EBITDA, such Consolidated EBITDA or Section 1.12, as the case may be, for such Test
Period.
“Pro Forma Basis,” “Pro Forma Compliance,” and “Pro Forma Effect” shall mean, with
respect to compliance with any test, financial ratio or covenant hereunder, that (i) to the extent
applicable, the Pro Forma Adjustment shall have been made and (ii) all Specified Transactions and the
following transactions in connection therewith shall be deemed to have occurred as of the first day of the
applicable period of measurement in such test or covenant: (a) income statement items (whether positive
or negative) attributable to the property or Person subject to such Specified Transaction, (1) in the case of
a sale, transfer or other disposition of all or substantially all Capital Stock in any Subsidiary of
Intermediate Holdings or any division, product line, or facility used for operations of Intermediate
Holdings or any of its Subsidiaries, shall be excluded, and (2) in the case of a Permitted Acquisition or
Investment described in the definition of “Specified Transaction”, shall be included, (b) any retirement of
Indebtedness, and (c) other than as set forth in the definition of “Maximum Incremental Facilities
Amount”, any incurrence or assumption of Indebtedness by Intermediate Holdings or any of the
Restricted Subsidiaries in connection therewith (it being agreed that if such Indebtedness has a floating
or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for
purposes of this definition determined by utilizing the rate that is or would be in effect with respect to
such Indebtedness as at the relevant date of determination); provided that, without limiting the
application of the Pro Forma Adjustment pursuant to clause (a) above, the foregoing pro forma
adjustments may be applied to any such test or covenant solely to the extent that such adjustments are
consistent with the definition of Consolidated EBITDA and give effect to operating expense reductions
and operating enhancements that are (x) (1) directly attributable to such transaction, (2) expected to have
a continuing impact on Intermediate Holdings or any of the other Restricted Subsidiaries and (3)
factually supportable or (y) otherwise consistent with the definition of Pro Forma Adjustment.
“Pro Forma Entity” shall have the meaning provided such term in the definition of “Acquired
EBITDA”.
“Prohibited Transaction” shall have the meaning assigned to such term in Section 406 of
ERISA and Section 4975(c) of the Code.
“Projections” shall have the meaning provided in Section 9.1(c).
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“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.
“QFC” shall have the meaning of “qualified financial contract” set forth in, and shall be
interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” shall have the meaning provided in Section 13.25.
“Qualified Stock” of any Person shall mean Capital Stock of such Person other than
Disqualified Stock of such Person.
“Real Estate” shall have the meaning provided in Section 9.1(g).
“refinance” shall have the meaning provided in Section 10.1(l).
“Refinanced Facility” shall have the meaning provided in Section 13.1.
“Refinancing Indebtedness” shall have the meaning provided in Section 10.1(l).
“Register” shall have the meaning provided in Section 13.6(b)(iv).
“Regulation T” shall mean Regulation T of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
“Regulation U” shall mean Regulation U of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
“Regulation X” shall mean Regulation X of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
“Reimbursement Date” shall have the meaning provided in Section 3.4(a).
“Reimbursement Obligations” shall mean the Borrower’s obligations to reimburse Unpaid
Drawings pursuant to Section 3.4(a).
“Reinvestment Period” shall mean eighteen months following the date of receipt of Net Cash
Proceeds of an Asset Sale Prepayment Event or Casualty Event.
“Rejection Notice” shall have the meaning provided in Section 5.2(f).
“Related Business Assets” shall mean assets (other than cash or Cash Equivalents) used or
useful in a Similar Business; provided that any assets received by Intermediate Holdings or the Restricted
Subsidiaries in exchange for assets transferred by Intermediate Holdings or a Restricted Subsidiary shall
not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt
of the securities of such Person, such Person would become a Restricted Subsidiary.
“Related Fund” shall mean, with respect to any Lender that is a Fund, any other Fund that is
advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of
such entity that administers, advises or manages such Lender.
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“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and
the directors, officers, employees, agents, trustees, servicers and advisors of such Person and any Person
that possesses, directly or indirectly, the power to direct or cause the direction of the management or
policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.
“Release” shall mean any release, spill, emission, discharge, disposal, escaping, leaking,
pumping, pouring, dumping, emptying, injection, or leaching into or migration through the environment
(but excluding migration of naturally occurring substances).
“Relevant Governmental Body” the Board of Governors, the Federal Reserve Bank of New
York and/or the Term SOFR Administrator, as applicable, or a committee officially endorsed or
convened by the Board of Governors and/or the Federal Reserve Bank of New York or, in each case, any
successor thereto.
“Removal Effective Date” shall have the meaning provided in Section 12.9(b).
“Repayment Amount” shall mean the Term Loan Repayment Amount, a New Term Loan
Repayment Amount with respect to any Series or an Extended Term Loan Repayment Amount with
respect to any Extension Series, as applicable.
“Replacement Facility Commitment” shall mean the commitments of the Lenders to make
Replacement Facilities.
“Replacement Facilities” shall have the meaning provided in Section 13.1.
“Reportable Event” shall mean any “reportable event”, as defined in Section 4043(c) of ERISA
or the regulations issued thereunder, with respect to a Pension Plan (other than a Pension 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), other than those events as to which notice is waived pursuant to PBGC Reg.
§ 4043.
“Required Lenders” shall mean, at any date, (a) Non-Defaulting Lenders having or holding a
majority of the sum of (i) the Adjusted Total Revolving Credit Commitment at such date, (ii) the
Adjusted Total Term Loan Commitment at such date and (iii) the aggregate outstanding principal amount
of the Term Loans (excluding Term Loans held by Defaulting Lenders) at such date or (b) if the Total
Revolving Credit Commitment and the Total Term Loan Commitment have been terminated or for the
purposes of acceleration pursuant to Section 11, Non-Defaulting Lenders having or holding a majority of
the outstanding principal amount of the Loans and Letter of Credit Exposure (excluding the Loans and
Letter of Credit Exposure of Defaulting Lenders) in the aggregate at such date; provided that, at all times
when there are two or more Lenders that are not Affiliates or Approved Funds of each other, Required
Lenders must include at least two Lenders that are not Affiliates or Approved Funds of each other.
“Required DDTL Lenders” means, at any time, Term Loan Lenders (other than Defaulting
Lenders) having unused Delayed Draw Term Loan Commitments representing more than 50% of the
aggregate unused Delayed Draw Term Loan Commitments at such time; provided that for any Required
DDTL Lenders’ vote, (x) Delayed Draw Term Loans held by Debt Fund Affiliates and Non-Debt Fund
Affiliates, in the aggregate, may not account for more than 49.9% of the amounts included in determining
whether the Required DDTL Lenders have consented to any amendment, waiver or other action and (y)
no Defaulting Lender shall be included in the calculation of Required DDTL Lenders; provided that, at
all times when there are two or more Term Loan Lenders having unused Delayed Draw Term Loan
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Commitments that are not Affiliates or Approved Funds of each other, Required DDTL Lenders must
include at least two Term Loan Lenders having unused Delayed Draw Term Loan Commitments that are
not Affiliates or Approved Funds of each other.
“Requirements of Law” shall mean, as to any Person, the certificate of incorporation and
by-laws or other organizational or governing documents of such Person, and any law, treaty, rule, or
regulation or determination of an arbitrator or a court or other 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.
“Resignation Effective Date” shall have the meaning provided in Section 12.9(a).
“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK
Financial Institution, a UK Resolution Authority.
“Restricted Debt Payments” shall have the meaning provided in Section 10.7.
“Restricted Payments” shall mean any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in Intermediate Holdings, any other
Parent Guarantor, the Borrower or any Restricted Subsidiary, or any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such Equity Interests in Intermediate Holdings,
any other Parent Guarantor, the Borrower or any Restricted Subsidiary or any option, warrant or other
right to acquire any such Equity Interests in Intermediate Holdings, any other Parent Guarantor, the
Borrower or any Restricted Subsidiary.
“Restricted Person” and/or “Restricted Persons” shall have the meaning provided in Section
13.16.
“Restricted Subsidiary” shall mean any Subsidiary of Intermediate Holdings (including, for the
avoidance of doubt, the Borrower) other than an Unrestricted Subsidiary.
“Retained Excess Cash Flow” shall mean commencing with the fiscal year ended December 31,
2025, Excess Cash Flow (but not less than zero in any period) in respect of any fiscal year not required to
be applied in prepayment pursuant to Section 5.2(a)(ii) (but excluding the amount of any Excess Cash
Flow not required to be applied in prepayment as a result of the deductions to any such prepayment
amount pursuant to clause (y) of such Section 5.2(a)(ii) or the application of Section 5.2(a)(iv))).
“Revolving Credit Commitment” shall mean, as to each Revolving Credit Lender, (a) its
obligation to make Revolving Credit Loans to the Borrower pursuant to Section 2.1(b), in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth, and opposite such
Lender’s name on Schedule 1.1(a) under the caption “Revolving Credit Commitment,” Schedule A to
Amendment No. 1 under the caption “Amendment No. 1 Incremental Revolving Credit Commitment or in
the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable, as
such amount may be adjusted from time to time in accordance with this Agreement (including Section
2.14) and (b) if applicable, Replacement Facility Commitment with respect to any Series. The aggregate
Revolving Credit Commitments of all Revolving Credit Lenders shall be $50,000,000 on the Closing
Date (the “Initial Revolving Credit Commitments”); provided that such Initial Revolving Credit
Commitments shall be increased in the amount of the Amendment No. 1 Incremental Revolving Credit
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Commitment on the Amendment No. 1 Effective Date and may be further adjusted from time to time in
accordance with the terms of this Agreement.
“Revolving Credit Commitment Percentage” shall mean at any time, for each Lender, the
percentage obtained by dividing (i) such Lender’s Revolving Credit Commitment at such time by (ii) the
amount of the Total Revolving Credit Commitment at such time; provided that, at any time when the
Total Revolving Credit Commitment shall have been terminated, each Lender’s Revolving Credit
Commitment Percentage shall be the percentage obtained by dividing (a) such Lender’s Revolving Credit
Exposure at such time by (b) the Revolving Credit Exposure of all Lenders at such time.
“Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum of
(i) the aggregate principal amount of Revolving Credit Loans of such Lender then outstanding, (ii) such
Lender’s Letter of Credit Exposure at such time and (iii) such Lender’s Revolving Credit Commitment
Percentage of the aggregate principal amount of all outstanding Swingline Loans at such time.
“Revolving Credit Facility” shall mean, at any time, the aggregate amount of the Revolving
Credit Lenders’ Revolving Credit Commitments at such time.
“Revolving Credit Lender” shall mean, at any time, any Lender that has a Revolving Credit
Commitment, Incremental Revolving Credit Commitment or Extended Revolving Credit Commitment at
such time.
“Revolving Credit Loan” shall have the meaning provided in Section 2.1(b).
“Revolving Credit Maturity Date” shall mean the earlier of (i) January 2, 2031 or, if such date
is not a Business Day, the immediately preceding Business Day and (ii) the date on which the Revolving
Credit Commitments shall terminate in accordance with the provisions of this Agreement.
“Revolving Credit Termination Date” shall mean the date on which the Revolving Credit
Commitments shall have terminated or no Revolving Credit Loans or Swingline Loans shall be
outstanding and the Letters of Credit Outstanding shall have been reduced to zero or Cash Collateralized.
“Revolving Loan” shall mean, collectively or individually as the context may require, any (i)
Revolving Credit Loan (including, for the avoidance of doubt, any Amendment No. 1 Incremental
Revolving Loan), (ii) Extended Revolving Credit Loan, (iii) New Revolving Credit Loan and (iv)
Additional Revolving Credit Loan, in each case made pursuant to and in accordance with the terms and
conditions of this Agreement.
“S&P” shall mean S&P Global Ratings or any successor by merger or consolidation to its
business.
“Sale Leaseback” shall mean any arrangement with any Person directly or indirectly providing
for the leasing by Intermediate Holdings or any Restricted Subsidiary of any real or tangible personal
property, which property has been or is to be sold or transferred by Intermediate Holdings or such
Restricted Subsidiary to such Person in contemplation of such leasing.
“Sanctions” shall mean any economic or financial sanctions or trade embargoes administered or
enforced by the government of the United States (including without limitation, OFAC and the U.S.
Department of State), the United Nations Security Council, the European Union (or its member states),
the United Kingdom (including His Majesty’s Treasury (“HMT”)) or other relevant sanctions authority.
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“SDN List” shall have the meaning provided in Section 8.21.
“SEC” shall mean the Securities and Exchange Commission or any successor thereto.
“Section 2.14 Additional Amendment” shall have the meaning provided in Section 2.14(g)(iv).
“Section 9.1 Financials” shall mean the financial statements delivered, or required to be
delivered, pursuant to Section 9.1(a) or (b) together with the accompanying officer’s certificate delivered,
or required to be delivered, pursuant to Section 9.1(d).
“Secured Cash Management Agreement” shall mean any Cash Management Agreement that is
entered into by and between Holdings, Intermediate Holdings, the Borrower or any of the Restricted
Subsidiaries and any Cash Management Bank, which is specified in writing by Intermediate Holdings to
the Administrative Agent as constituting a Secured Cash Management Agreement hereunder.
“Secured Cash Management Obligations” shall mean Obligations under Secured Cash
Management Agreements.
“Secured Hedge Agreement” shall mean any Hedge Agreement that is entered into by and
between Holdings, Intermediate Holdings, the Borrower or any Restricted Subsidiary and any Hedge
Bank, which is specified in writing by Intermediate Holdings to the Administrative Agent as constituting
a “Secured Hedge Agreement” hereunder. For purposes of the preceding sentence, Intermediate
Holdings may deliver one notice designating all Hedge Agreements entered into pursuant to a specified
Master Agreement as “Secured Hedge Agreements”. Notwithstanding anything to the contrary, a Hedge
Agreement entered into by a Restricted Subsidiary shall remain a Secured Hedge Agreement
notwithstanding that such Restricted Subsidiary is subsequently designated an Unrestricted Subsidiary
(but not any Hedge Agreement entered into after the date of such designation), unless otherwise agreed
between such Restricted Subsidiary and Hedge Bank.
“Secured Hedge Obligations” shall mean Obligations under Secured Hedge Agreements.
“Secured Parties” shall mean the Administrative Agent, the Collateral Agent, the Letter of
Credit Issuer and each Lender, in each case with respect to the Credit Facilities, each Hedge Bank that is
party to any Secured Hedge Agreement with Holdings, Intermediate Holdings or any Restricted
Subsidiary, each Cash Management Bank that is party to a Secured Cash Management Agreement with
Holdings, Intermediate Holdings or any Restricted Subsidiary and each subagent pursuant to Section 12
appointed by the Administrative Agent with respect to matters relating to the Credit Facilities or the
Collateral Agent with respect to matters relating to any Security Document.
“Securities Exchange Act” shall mean Securities Exchange Act of 1934, as amended.
“Security Agreement” shall mean the Security Agreement entered into by the Credit Parties
party thereto and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of
Exhibit D.
“Security Documents” shall mean, collectively, the Pledge Agreement, the Security Agreement,
the Mortgages, intellectual property security agreements and each other security agreement or other
instrument or document executed and delivered pursuant to Sections 9.10, 9.11, or 9.13 or pursuant to
any other such Security Documents to secure the Obligations or to govern the lien priorities of the
holders of Liens on the Collateral.
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“Series” shall have the meaning provided in Section 2.14(a).
“Similar Business” shall mean any business conducted or proposed to be conducted by
Holdings, Intermediate Holdings, the Borrower and the Restricted Subsidiaries (after giving effect to the
Acquisition) on the Closing Date or any business that is similar, reasonably related, synergistic,
incidental or ancillary thereto.
“SOFR” shall mean a rate equal to the secured overnight financing rate as administered by the
SOFR Administrator.
“SOFR Administrator” shall mean the Federal Reserve Bank of New York (or a successor
administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” shall mean the Federal Reserve Bank of New York’s
website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight
financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Rate Day” shall have the meaning provided in the definition of Daily Simple SOFR.
“Sold Entity or Business” shall have the meaning provided in the definition of the term
“Consolidated EBITDA”.
“Solvent” shall mean, after giving effect to the consummation of the Transactions, (i) the sum of
the debt (including contingent liabilities) of Intermediate Holdings and its Subsidiaries, on a consolidated
basis, does not exceed the present fair saleable value of the present assets of Intermediate Holdings and
its Subsidiaries, on a consolidated basis, (ii) the capital of Intermediate Holdings and its Subsidiaries, on
a consolidated basis, is not unreasonably small in relation to their business as contemplated on the date
hereof, (iii) Intermediate Holdings and its Subsidiaries, on a consolidated basis, have not incurred and do
not intend to incur, or believe that they will incur, debts, including current obligations, beyond their
ability to pay such debts as they become due (whether at maturity or otherwise) or (iv) Intermediate
Holdings and its Subsidiaries, on a consolidated basis, are “solvent” within the meaning given to that
term and similar terms under applicable laws relating to fraudulent transfers and conveyances.
“Specified Acquisition Agreement Representations” shall mean the representations and
warranties made by the Company with respect to the Company and its Subsidiaries in the Acquisition
Agreement as are material to the interests of the Secured Parties, but only to the extent that Intermediate
Holdings (or any of its Affiliates) has the right to terminate its (or their) obligations pursuant to the
Acquisition Agreement as a result of a breach or inaccuracy of such representations and warranties in the
Acquisition Agreement.
“Specified Existing Revolving Credit Commitment” shall have the meaning provided in
Section 2.14(g)(ii).
“Specified Representations” shall mean the representations and warranties set forth in Sections
8.1, 8.2, 8.3(c), 8.5, 8.7, 8.16 (as it relates to the creation, validity, perfection and priority of the security
interests in the Collateral), 8.17 and 8.18.
“Specified Transaction” shall mean, with respect to any period, any Investment (including a
Permitted Acquisition), any asset sale, incurrence or repayment of Indebtedness, Restricted Payment,
Subsidiary designation, New Term Loan, Incremental Revolving Credit Commitment or other event or
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action that in each case by the terms of this Agreement requires Pro Forma Compliance with a test or
covenant hereunder or requires such test or covenant to be calculated on a Pro Forma Basis.
“Sponsor” shall mean Olympus Growth Fund VIII, L.P and Olympus Growth Fund VIII Parallel,
L.P., together with their respective managed funds and/or managed accounts and any Affiliates of the
foregoing (other than any other operating portfolio company).
“Spot Rate” for any currency shall mean the rate determined by the Administrative Agent to be
the rate quoted by the Administrative Agent as the spot rate for the purchase by the Administrative Agent
of such currency with another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign
exchange computation is made; provided that the Administrative Agent may obtain such spot rate from
another financial institution designated by the Administrative Agent if it does not have as of the date of
determination a spot buying rate for any such currency.
“SPV” shall have the meaning provided in Section 13.6(g).
“Stated Amount” of any Letter of Credit shall mean the maximum amount from time to time
available to be drawn thereunder, determined without regard to whether any conditions to drawing could
then be met; provided, however, that with respect to any Letter of Credit that by its terms or the terms of
any Issuer Document provides for one or more automatic increases in the stated amount thereof, the
Stated Amount 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.
“Stock Equivalents” shall mean all securities convertible into or exchangeable for Capital Stock
and all warrants, options or other rights to purchase or subscribe for any Capital Stock, whether or not
presently convertible, exchangeable or exercisable.
“Subordinated Indebtedness” shall mean Indebtedness of Intermediate Holdings or any other
Guarantor that is by its terms subordinated in right of payment to the obligations Intermediate Holdings or
such Guarantor, as applicable, under this Agreement or the Guarantee, as applicable.
“Subsidiary” of any Person shall mean and include (i) any corporation more than 50% of whose
Capital Stock of any class or classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether or not at the time Capital Stock of
any class or classes of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or indirectly through
Subsidiaries, or (ii) any limited liability company, partnership, association, joint venture, or other entity of
which such Person directly or indirectly through Subsidiaries has more than a 50% equity interest at the
time. Unless otherwise expressly provided, all references herein to a Subsidiary shall mean a Subsidiary
of Intermediate Holdings.
“Successor Borrower” shall have the meaning provided in Section 10.3(a).
“Supported QFC” shall have the meaning provided in Section 13.25.
“Swap 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 any similar transaction or any
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combination of these transactions; 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
Intermediate Holdings or the Subsidiaries shall be a Swap Agreement.
“Swap Obligation” shall mean, with respect to any Credit Party, any obligation to pay or
perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of
Section 1(a)(47) of the Commodity Exchange Act.
“Swingline Commitment” shall mean the lesser of (i) $7,500,000 and (ii) the remaining portion
of the Revolving Credit Commitment. The Swingline Commitment is part of and not in addition to the
Revolving Credit Commitment.
“Swingline Exposure” shall mean, at any time, the aggregate principal amount at such time of
all outstanding Swingline Loans. The Swingline Exposure of any Revolving Credit Lender at any time
shall equal its Revolving Credit Commitment Percentage of the aggregate Swingline Exposure at such
time.
“Swingline Lender” shall mean MidCap, in its capacity as lender of Swingline Loans hereunder
or, upon the resignation of MidCap as Agent hereunder, either (i) any Lender (or Affiliate or Approved
Fund of any Lender) that agrees, with the approval of Agent (or, if there is no such successor Agent, the
Required Lenders) and, so long as no Event of Default under Sections 11.1 or 11.5 is continuing, the
Borrower (not to be unreasonably withheld, delayed or conditioned), to act as the Swing Lender or (ii) to
the extent a successor Agent has been appointed in accordance with Section 12.9(d), such successor
Agent.
“Swingline Loans” shall have the meaning provided in Section 2.1(c).
“Swingline Maturity Date” shall mean, with respect to any Swingline Loan, the Revolving
Credit Maturity Date.
“Taxes” shall mean any and all present or future taxes, duties, levies, imposts, assessments,
deductions, withholdings (including backup withholding), fees or other similar charges imposed by any
Governmental Authority and any interest, fines, penalties or additions to tax with respect to the foregoing.
“Tax Distributions” shall have the meaning provided in Section 10.5(s).
“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
Term SOFR.
“Term Loan Commitment” shall mean, with respect to each Lender, such Lender’s Initial Term
Loan Commitment, Amendment No. 1 Incremental Term Loan Commitment, Amendment No. 3 Term
Loan Commitment and/or Delayed Draw Term Loan Commitment and, if applicable, New Term Loan
Commitment with respect to any Series and, if applicable, Replacement Facility Commitment with
respect to any Series.
“Term Loan Extension Request” shall have the meaning provided in Section 2.14(g)(i).
“Term Loan Increases” shall have the meaning provided in Section 2.14(a).
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“Term Loan Lender” shall mean, at any time, any Lender that has a Term Loan Commitment,
Delayed Draw Term Loan Commitment or an outstanding Term Loan at such time.
“Term Loan Maturity Date” shall mean January 2, 2031 or, if such date is not a Business Day,
the immediately preceding Business Day.
“Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b).
“Term Loans” shall mean the Initial Term Loans, the Delayed Draw Term Loans, any New Term
Loans, any applicable Replacement Facilities, and any Extended Term Loans, collectively.
“Term SOFR” shall mean (a) with respect to any Benchmark Rate Borrowing and for any tenor
comparable to the applicable Interest Period, the Term SOFR Reference Rate published two US
Government Securities Business Days prior to the commencement of the applicable Interest Period (such
date, the “Interest Rate Determination Date”) and (b) with respect to any ABR Borrowing, the Term
SOFR Reference Rate for a tenor of one month published two US Government Securities Business Days
prior to the commencement of the applicable Interest Period.
“Term SOFR Administrator” shall mean CME Group Benchmark Administration Limited
(CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative
Agent in its reasonable discretion).
“Term SOFR Reference Rate” shall mean, for any tenor comparable to the applicable Interest
Period, the rate per annum determined by the Administrative Agent as the forward-looking term rate
based on SOFR; provided, however, that if as of 5:00 p.m. (New York City time) on any Interest Rate
Determination Date the Term SOFR Reference Rate for the applicable tenor has not been published by
the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR
Reference Rate has not occurred, then the Term SOFR Reference Rate will be the Term SOFR Reference
Rate for such tenor as published by the Term SOFR Administrator on the first preceding US Government
Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the
Term SOFR Administrator so long as such first preceding US Government Securities Business Day is not
more than three (3) US Government Securities Business Days prior to such Interest Rate Determination
Date.
“Test Period” shall mean, for any determination under this Agreement, the four consecutive
fiscal quarters of Intermediate Holdings most recently ended on or prior to such date of determination and
for which Section 9.1 Financials shall have been delivered (or were required to be delivered) to the
Administrative Agent, including (except for purposes of determining compliance with Section 10.9), at
the election of Intermediate Holdings, financial statements for the most recent period of four fiscal
quarters which are internally available at the time of determination (so long as such financial statements
are delivered to the Administrative Agent prior to or concurrently with such determination and such
financial statements shall be as of month end, in reasonable detail and delivered together with a
certificate substantially consistent with those required under Section 9.1(d)) (or, before the first delivery
of Section 9.1 Financials, the most recent period of four fiscal quarters at the end of which financial
statements are available).
“Threshold Amount” shall mean the greater of (x) $12,000,000 and (y) 30% of Consolidated
EBITDA for the most recently ended Test Period.
“Title Policy” shall have the meaning provided in Section 9.13(c).
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“Total Credit Exposure” shall mean, at any date, the sum, without duplication, of (i) the Total
Revolving Credit Commitment at such date (or, if the Total Revolving Credit Commitment shall have
terminated on such date, the aggregate Revolving Credit Exposure of all Lenders at such date), (ii) the
Total Term Loan Commitment at such date, and (iii) without duplication of clause (ii), the aggregate
outstanding principal amount of all Term Loans at such date.
“Total Initial Term Loan Commitment” shall mean the sum of the Initial Term Loan
Commitments of all Lenders.
“Total Revolving Credit Commitment” shall mean the sum of the Revolving Credit
Commitments of all the Lenders.
“Total Term Loan Commitment” shall mean the sum of (i) the Initial Term Loan
Commitments, (ii) the Amendment No. 1 Incremental Term Loan Commitments, (iii) the Amendment
No. 3 Incremental Term Loan Commitments, (iv) the Delayed Draw Term Loan Commitments and
(ivv) the New Term Loan Commitments, if applicable, of all the Lenders.
“Transaction Expenses” shall mean any fees, costs, or expenses incurred or paid by Holdings,
Intermediate Holdings, the Borrower, or any of their respective Affiliates in connection with the
Transactions, this Agreement, and the other Credit Documents, and the transactions contemplated hereby
and thereby.
“Transactions” shall mean, collectively, the Acquisition, the other transactions contemplated by
this Agreement, the Acquisition Agreement, the Equity Investment, the Existing Debt Facilities
Refinancing and the consummation of any other transactions in connection with the foregoing.
“Transferee” shall have the meaning provided in Section 13.6(e).
“Transformative Transaction” shall mean any transaction of Intermediate Holdings or any
Restricted Subsidiary of a target that is either (a) for consideration in excess of $30,000,000 after giving
Pro Forma Effect to such transaction, (b) not permitted by the terms of this Agreement immediately prior
to the consummation of such transaction or (c) if permitted by the terms of this Agreement immediately
prior to the consummation of such transaction, would not provide Holdings, Intermediate Holdings, the
Borrower and the other Restricted Subsidiaries with adequate flexibility under the Credit Documents for
the continuation and/or expansion of their combined operations following such consummation, as
determined by Intermediate Holdings acting in good faith.
“Type” shall mean as to any Loan, its nature as an ABR Loan or a Benchmark Rate Loan.
“UCP” shall mean, with respect to any Letter of Credit, the Uniform Customs and Practice for
Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later
version thereof as may be in effect at the time of issuance).
“UK Financial Institutions” shall mean any BRRD Undertaking 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.
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“UK Resolution Authority” shall 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.
“Undisclosed Administration” shall mean in relation to a Lender or its parent company, the
appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other
similar official by a supervisory authority or regulator under or based on the law in the country where
such Lender or such parent company is subject to home jurisdiction supervision if applicable law
requires that such appointment is not to be publicly disclosed.
“Uniform Commercial Code” shall mean the Uniform Commercial Code or any successor
provision thereof as the same may from time to time be in effect in the State of New York or the
Uniform Commercial Code or any successor provision thereof (or similar code or statute) of another
jurisdiction, to the extent it may be required to apply to any item or items of Collateral.
“Unpaid Drawing” shall have the meaning provided in Section 3.4(a).
“Unrestricted Subsidiary” shall mean (i) any Subsidiary of Intermediate Holdings which at the
time of determination is an Unrestricted Subsidiary (as designated by the sole member, or similar
governing body, of Intermediate Holdings, as provided below) and (ii) any Subsidiary of an Unrestricted
Subsidiary.
The sole member, or similar governing body, of Intermediate Holdings may designate any
Subsidiary of Intermediate Holdings (including any existing Subsidiary and any newly acquired or newly
formed Subsidiary) other than any Borrower to be an Unrestricted Subsidiary, unless such Subsidiary or
any of its Subsidiaries owns any Material Intellectual Property or directly or indirectly owns any Equity
Interests or Indebtedness of, or owns or holds any Lien on, any property of, Intermediate Holdings or any
Subsidiary of Intermediate Holdings (other than any Subsidiary of the Subsidiary to be so designated or
an Unrestricted Subsidiary); provided that:
(a)at the time of and immediately after giving effect to such designation, no Event
of Default shall have occurred and be continuing; and
(b)the designation of any Subsidiary as an Unrestricted Subsidiary after the Closing
Date shall constitute an Investment subject to Section 10.6 by Intermediate Holdings therein (and
no such designation shall be permitted unless such investment is permitted by Section 10.6) at
the date of designation in an amount equal to the Fair Market Value of the Intermediate
Holdings’ or the Subsidiary’s (as applicable) investment therein.
The sole member, or similar governing body, of Intermediate Holdings may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to
such designation, no Event of Default shall have occurred and be continuing; provided, further, that such
designation shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such
Subsidiary existing at such time.
Any such designation by the sole member, or similar governing body, of Intermediate Holdings
shall be notified by Intermediate Holdings to the Administrative Agent by promptly delivering to the
Administrative Agent a copy of the board resolution giving effect to such designation and a certificate of
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an Authorized Officer of Intermediate Holdings certifying that such designation complied with the
foregoing provisions.
“U.S.” and “United States” shall mean the United States of America.
“U.S. Lender” shall have the meaning provided in Section 5.4(e)(ii)(A).
“US Government Securities Business Day” shall mean any day except for (a) a Saturday, (b) a
Sunday or (c) 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. Special Resolution Regime” shall have the meaning provided in Section 13.25.
“Voting Stock” shall mean, with respect to any Person as of any date, the Capital Stock of such
Person that is at the time entitled to vote in the election of the board of directors or other managing
authority of such Person.
“Wholly-Owned Restricted Subsidiary” of any Person shall mean a Restricted Subsidiary of
such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly-Owned
Subsidiaries of such Person.
“Wholly-Owned Subsidiary” of any Person shall mean a Subsidiary of such Person, 100% of
the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying
shares) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such
Person.
“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 Title IV of ERISA.
“Withholding Agent” shall mean any Credit Party, the Administrative Agent and, in the case of
any U.S. federal withholding Tax, any other applicable withholding agent.
“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, 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.
1.2Other Interpretive Provisions. With reference to this Agreement and each other Credit
Document, unless otherwise specified herein or in such other Credit Document:
(a)The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.
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(b)The words “herein”, “hereto”, “hereof”, and “hereunder” and words of similar import
when used in any Credit Document shall refer to such Credit Document as a whole and not to any
particular provision thereof.
(c)Section, Exhibit, and Schedule references are to the Credit Document in which such
reference appears.
(d)The term “including” is by way of example and not limitation.
(e)The term “documents” includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings, however evidenced, whether in
physical or electronic form.
(f)In the computation of periods of time from a specified date to a later specified date, the
word “from” shall mean “from and including”; the words “to” and “until” each mean “to but excluding”;
and the word “through” shall mean “to and including”.
(g)Section headings herein and in the other Credit Documents are included for convenience
of reference only and shall not affect the interpretation of this Agreement or any other Credit Document.
(h)The words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
(i)All references to “knowledge” or “awareness” of any Credit Party or any Restricted
Subsidiary thereof shall mean the actual knowledge of an Authorized Officer of such Credit Party or such
Restricted Subsidiary.
(j)Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation,
assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division or plan of
division of or by a limited liability company under Delaware law (or any comparable event under a
different jurisdiction’s laws), or an allocation of assets to a series of a limited liability company (or the
unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation,
consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a
separate Person. Any division of a limited liability company shall constitute a separate Person hereunder
(and each division of any limited liability company that is a Subsidiary, joint venture or any other like
term shall also constitute such a Person or entity) and such separate Person shall be deemed to have been
organized on the first date of its existence by the holders of its Equity Interests at such time.
1.3Accounting Terms.
(a)Except as expressly provided herein, all accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data (including financial ratios and
other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP, applied in a consistent manner.
(b)Notwithstanding anything to the contrary herein, for purposes of determining compliance
with any test or covenant contained in this Agreement with respect to any period during which any
Specified Transaction occurs, the Consolidated Total Debt to Consolidated EBITDA Ratio, the
Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio and the Consolidated Senior
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Secured Debt to Consolidated EBITDA Ratio shall each be calculated with respect to such period and
such Specified Transaction on a Pro Forma Basis.
(c)Where reference is made to “Intermediate Holdings and the Restricted Subsidiaries on a
consolidated basis” or similar language, such consolidation shall not include any Subsidiaries of
Intermediate Holdings other than Restricted Subsidiaries.
1.4Rounding. Any financial ratios required to be maintained by Intermediate Holdings
pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under
this Agreement) shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed herein
and rounding the result up or down to the nearest number.
1.5References to Agreements, Laws, Etc. Unless otherwise expressly provided herein,
(a) references to organizational documents, agreements (including the Credit Documents), and other
Contractual Requirements shall be deemed to include all subsequent amendments, restatements,
amendment and restatements, extensions, supplements, modifications, replacements, refinancings,
renewals, or increases, but only to the extent that such amendments, restatements, amendment and
restatements, extensions, supplements, modifications, replacements, refinancings, renewals, or increases
are not prohibited by any Credit Document; and (b) references to any Requirements of Law shall include
all statutory and regulatory provisions consolidating, amending, replacing, supplementing, or interpreting
such Requirements of Law.
1.6Exchange Rates. Notwithstanding the foregoing, for purposes of any determination
under Section 2.14, Section 9, Section 10 or Section 11 or any determination under any other provision
of this Agreement expressly requiring the use of a current exchange rate, all amounts incurred,
outstanding, or proposed to be incurred or outstanding in currencies other than Dollars shall be translated
into Dollars at the Spot Rate; provided, however, that for purposes of determining compliance with
Section 2.14 or Section 10 with respect to the amount of any Indebtedness, Investment, Lien, Asset Sale,
or Restricted Payment in a currency other than Dollars, no Default or Event of Default shall be deemed to
have occurred solely as a result of changes in rates of exchange occurring after the time such
Indebtedness, Lien or Investment is incurred or after such Asset Sale or Restricted Payment is made;
provided that, for the avoidance of doubt, the foregoing provisions of this Section 1.6 shall otherwise
apply to such Sections, including with respect to determining whether any Indebtedness, Lien, or
Investment may be incurred or Asset Sale or Restricted Payment made at any time under such Sections.
For purposes of any determination of Consolidated Total Debt, Consolidated Senior Secured Debt or
Consolidated First Lien Secured Debt, amounts in currencies other than Dollars shall be translated into
Dollars at the currency exchange rates used in preparing the most recently delivered Section 9.1
Financials.
1.7Rates. The Administrative Agent does not warrant, nor accept responsibility, nor shall
the Administrative Agent have any liability with respect to the administration, submission, or any other
matter related to the rates in the definition of Benchmark Rate or with respect to any comparable or
successor rate thereto.
1.8Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).
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1.9Timing of Payment or Performance. Except as otherwise 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 (or before) a day which is not a Business Day, the date of such payment (other
than as described in the definition of “Interest Period”) or performance shall extend to the immediately
succeeding Business Day, and such extension of time shall be reflected in computing interest or fees, as
the case may be.
1.10Certifications. All certifications to be made hereunder by an officer or representative of a
Credit Party shall be made by such a Person in his or her capacity solely as an officer or a representative
of such Credit Party, on such Credit Party’s behalf and not in such Person’s individual capacity.
1.11Compliance with Certain Sections. In the event that any Lien, Investment, Indebtedness
(whether at the time of incurrence or upon application of all or a portion of the proceeds thereof),
disposition, Restricted Payment, Affiliate transaction, Contractual Requirement, or prepayment of
Indebtedness meets the criteria of one or more than one of the categories of transactions then permitted
pursuant to any clause or subsection of Sections 10.1, 10.2, 10.3, 10.4, 10.5, 10.6 (other than Section
10.6(z)(ii)), 10.7 or 10.14, then such transaction (or portion thereof) at any time shall be allocated to one
or more of such clauses or subsections within the relevant sections as determined by Intermediate
Holdings in its sole discretion at such time. In addition, Intermediate Holdings shall be permitted to later
(on one or more occasions) re-divide and/or reclassify any such transactions as occurring under one or
more of the clauses within the relevant sections as determined by Intermediate Holdings in its sole
discretion at such time, including to reclassify utilization of any Fixed Amounts as incurred under any
Incurrence Based Amounts, including any financial incurrence tests; provided, that if any financial
incurrence tests would be satisfied in any subsequent fiscal quarter following the utilization of any Fixed
Amounts or other Incurrence Based Amounts, such reclassifications shall be deemed to have
automatically occurred if not elected by Intermediate Holdings.
1.12Pro Forma and Other Calculations.
(a)For purposes of calculating the Consolidated First Lien Secured Debt to Consolidated
EBITDA Ratio, Consolidated Senior Secured Debt to Consolidated EBITDA Ratio, Consolidated Total
Debt to Consolidated EBITDA Ratio, Investments, acquisitions, dispositions, mergers, consolidations,
and disposed operations (as determined in accordance with GAAP) that have been made by Intermediate
Holdings or any Restricted Subsidiary during the Test Period or subsequent to such Test Period and on or
prior to or simultaneously with the date of determination shall be calculated on a Pro Forma Basis
assuming that all such Investments, acquisitions, dispositions, mergers, consolidations, and disposed
operations (and the change in any associated fixed charge obligations and the change in Consolidated
EBITDA resulting therefrom) had occurred on the first day of the Test Period; provided that when
calculating the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio for purposes of the
definition of “Applicable Margin” or, except as expressly set forth therein, Section 5.2(a)(ii) and the
Consolidated Total Debt to Consolidated EBITDA Ratio for purposes of determining actual compliance
with Section 10.9 (and not pro forma compliance, compliance on a Pro Forma Basis or determining
compliance giving Pro Forma Effect to a transaction), any such transactions occurring subsequent to the
end of the applicable Test Period shall not be given pro forma effect. If, since the beginning of such
period, any Person (that subsequently became a Restricted Subsidiary or was merged with or into
Intermediate Holdings or any Restricted Subsidiary since the beginning of such period) shall have made
any Investment, acquisition, disposition, merger, consolidation, or disposed operation that would have
required adjustment pursuant to this definition, then the Consolidated First Lien Secured Debt to
Consolidated EBITDA Ratio, Consolidated Senior Secured Debt to Consolidated EBITDA Ratio, and
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Consolidated Total Debt to Consolidated EBITDA Ratio shall be calculated giving Pro Forma Effect
thereto for such Test Period as if such Investment, acquisition, disposition, merger, consolidation, or
disposed operation had occurred at the beginning of the Test Period. Notwithstanding anything to the
contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in
reliance on a provision of this Agreement that does not require compliance with a financial ratio or test
(including, without limitation, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio,
the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio and Consolidated Total Debt to
Consolidated EBITDA Ratio) (any such amounts, the “Fixed Amounts”) substantially concurrently with
any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this
Agreement that requires compliance with any such financial ratio or test (any such amounts, the
“Incurrence Based Amounts”), it is understood and agreed that 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 substantially concurrent incurrence. For the
avoidance of doubt, for purposes of calculating any Consolidated First Lien Secured Debt to
Consolidated EBITDA Ratio, Consolidated Senior Secured Debt to Consolidated EBITDA Ratio, or
Consolidated Total Debt to Consolidated EBITDA Ratio required to be satisfied as a condition to the
incurrence of any Indebtedness, the proceeds of any Indebtedness being incurred in reliance on such ratio
shall not be netted (but Intermediate Holdings may give Pro Forma Effect to, among other things, the
repayment of any Indebtedness to be repaid with such proceeds).
(b)Whenever Pro Forma Effect is to be given to a transaction, the pro forma calculations
shall be made in good faith by a responsible financial or accounting officer of Intermediate Holdings (and
may include, for the avoidance of doubt and without duplication, cost savings, operating expense
reductions, operating enhancements and other cost synergies (in each case net of amounts actually
realized and costs incurred to achieve the same) resulting from such Investment, acquisition, merger, or
consolidation which is being given Pro Forma Effect; provided that such costs savings, operating expense
reductions, operating enhancements and other synergies (in each case net of amounts actually realized
and costs incurred to achieve the same) are made in compliance with the definition of Pro Forma
Adjustment). 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 of determination
had been the applicable rate for the entire period (taking into account for such entire period, any Hedging
Obligation applicable to such Indebtedness with a remaining term of 12 months or longer, and in the case
of any Hedging Obligation applicable to such Indebtedness with a remaining term of less than 12 months,
taking into account such Hedging Obligation to the extent of its remaining term). 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 Intermediate Holdings 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 (or, if lower, the greater of (i) maximum commitments under such revolving credit facilities as of
the date of determination and (ii) the aggregate principal amount of loans outstanding under such
revolving credit facilities on such date). 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 Intermediate Holdings may designate. For the avoidance of doubt, in connection
with the incurrence of any Indebtedness under Section 2.14, the definition of Required Lenders shall be
calculated on a Pro Forma Basis in accordance with this Section 1.12, Section 2.14 and the definition of
Maximum Incremental Facilities Amount.
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(c)In connection with any action being taken solely in connection with a Limited Condition
Transaction, for purposes of:
(i)determining compliance with any provision of this Agreement which requires the
calculation of the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio, Consolidated
Senior Secured Debt to Consolidated EBITDA Ratio or Consolidated Total Debt to Consolidated
EBITDA Ratio;
(ii)determining the accuracy of representations and warranties in Section 8 and/or
whether a Default or Event of Default shall have occurred and be continuing under Section 11; or
(iii)testing availability under baskets set forth in this Agreement (including baskets
measured as a percentage of Consolidated EBITDA or Consolidated Total Assets); in each case, at the
option of Intermediate Holdings (Intermediate Holdings’ 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 the date the definitive agreements for such
Limited Condition Transaction are entered into (or, in respect of any transaction described in clause (ii) of
the definition of a Limited Condition Transaction, delivery of irrevocable notice or similar event) (the
“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 (to the extent reasonably necessary to
consummate such Investment, acquisition, merger, consolidation or similar transaction or repayment,
repurchase or refinancing of Indebtedness) (including any incurrence of Indebtedness and the use of
proceeds thereof and any Disposition of assets contemplated in connection therewith) as if they had
occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date, Intermediate
Holdings could have taken such action on the relevant LCT Test Date in compliance with such ratio or
basket, such ratio or basket shall be deemed to have been complied with; provided, that, no Event of
Default under Section 11.1 or 11.5 shall exist at the time of consummation of such Limited Condition
Transaction. For the avoidance of doubt, if Intermediate Holdings has made an LCT Election and any of
the ratios or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded
as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated
EBITDA of Intermediate Holdings or the Person subject to such Limited Condition Transaction, at or
prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed
to have been exceeded as a result of such fluctuations. If Intermediate Holdings has made an LCT
Election for any Limited Condition Transaction, then in connection with any subsequent calculation of
any ratio or basket availability with respect to the incurrence of Indebtedness or Liens, or the making of
Restricted Payments, mergers, the conveyance, lease or other transfer of all or substantially all of the
assets of Intermediate Holdings, the prepayment, redemption, purchase, defeasance or other satisfaction
of Indebtedness, or the designation of an Unrestricted Subsidiary on or following the relevant LCT Test
Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated
or (ii) the date that the definitive agreement for such Limited Condition Transaction is entered into
without consummation of such Limited Condition Transaction, any such ratio or basket shall be
calculated on a Pro Forma Basis (x) in all cases, assuming such Limited Condition Transaction and other
transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds
thereof) have been consummated and (y) solely in connection with any proposed Restricted Payment or
prepayment of Junior Debt, assuming such Limited Condition Transaction and other Pro Forma events in
connection therewith (including any incurrence of Indebtedness and Liens) have not been consummated.
(d)Notwithstanding anything to the contrary in this Section 1.12 or in any classification
under GAAP of any Person, business, assets or operations in respect of which a definitive agreement for
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the disposition thereof has been entered into as discontinued operations, no Pro Forma Effect shall be
given to any discontinued operations (and the Consolidated EBITDA attributable to any such Person,
business, assets or operations shall not be excluded for any purposes hereunder) until such disposition
shall have been consummated.
(e)Any determination of Consolidated Total Assets shall be made by reference to the last
day of the Test Period most recently ended on or prior to the relevant date of determination.
(f)Except as otherwise specifically provided herein, all computations of Excess Cash Flow,
Consolidated Total Assets, Available Amount, Consolidated First Lien Secured Debt to Consolidated
EBITDA Ratio, Consolidated Senior Secured Debt to Consolidated EBITDA Ratio, Consolidated Total
Debt to Consolidated EBITDA Ratio and other financial ratios and financial calculations (and all
definitions (including accounting terms) used in determining any of the foregoing) and all computations
and all definitions (including accounting terms) used in determining compliance with Section 10.9 shall
be calculated, in each case, with respect to Intermediate Holdings and the Restricted Subsidiaries on a
consolidated basis and (ii) shall exclude the application of ASC 606.
(g)All leases of any Person that are or would have been characterized as operating leases in
accordance with GAAP immediately prior to December 15, 2018 (whether or not such leases were in
effect on such date) shall be accounted for as operating leases (and not as Capital Leases) for purposes of
this Agreement regardless of any change in GAAP following December 15, 2018 that would otherwise
require such leases to be recharacterized as Capital Leases, to the extent that financial reporting shall not
be affected hereby; provided, however, that, solely for the purposes of determining whether a lease
constitutes Indebtedness for the purposes of Section 10.1(d), any obligations relating to a lease that was
accounted for by Intermediate Holdings and/or its Subsidiaries as an operating lease as of December 15,
2018 and any similar lease assumed or entered into after December 15, 2018 shall be accounted for as an
operating lease and not a Capitalized Lease Obligation for all purposes thereunder; provided, further, that
notwithstanding any other provision contained herein, any lease that is or would be characterized as an
operating lease for purposes of GAAP prior to the issuance of FASB ASU No. 2016-02 shall continue to
be accounted for as an operating lease for purposes of this Agreement (whether or not such operating
lease was in effect on such date) notwithstanding the fact that such lease is required in accordance with
the ASU (on a prospective or retroactive basis or otherwise) to be treated as a Capitalized Lease in the
financial statements to be delivered pursuant to Section 9.1. All Capital Leases that were assumed by
Intermediate Holdings or a Restricted Subsidiary in connection with any Permitted Acquisition or were
in existence at the time any Person became a Restricted Subsidiary as a result of a Permitted Acquisition
(and not, in each case, incurred or created in contemplation of such Permitted Acquisition) shall be
treated as operating leases for the purpose of calculating Consolidated EBITDA, the Consolidated First
Lien Secured Debt to Consolidated EBITDA Ratio, the Consolidated Senior Secured Debt to
Consolidated EBITDA Ratio, the Consolidated Total Debt to Consolidated EBITDA Ratio or any other
financial definition or ratio in any Credit Document and, in the case of any Indebtedness or Liens initially
incurred in reliance on an amount calculated based on a percentage of Consolidated EBITDA, such
Indebtedness or Liens may be refinanced in a manner that is otherwise in accordance with the provisions
of this Agreement in an amount not in excess of the original principal amount therefor (without giving
effect to any fees, premiums, original issue discount or similar amounts, but giving effect to any
capitalized interest or other amounts that increase such principal), notwithstanding that Consolidated
EBITDA may no longer permit the initial incurrence of such amount at such time.
1.13Form Intercreditor Agreement. Notwithstanding anything to the contrary herein, an
Acceptable Intercreditor Agreement shall be deemed to be reasonable and acceptable to the
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Administrative Agent and the Lenders, and the Administrative Agent and the Lenders shall be deemed to
have consented to the use of each such intercreditor agreement (and to the Administrative Agent’s
execution thereof) in connection with any Indebtedness permitted to be incurred, issued and/or assumed
by Intermediate Holdings or any of its Subsidiaries pursuant to Section 10.1.
1.14Making or Maintaining Benchmark Rate Loans.
(a)Inability to Determine Applicable Interest Rate. Subject to clauses (b), (c), (d), (e) and
(f) of this Section 1.14, if:
(1)the Administrative Agent determines (which determination shall
be conclusive absent manifest error) prior to the commencement of any Interest Period for a Term
Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining Term SOFR
(including because the Term SOFR Reference Rate is not available or published on a current basis), for
such Interest Period; or
(2)the Administrative Agent is advised by the Required Lenders
that prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted
Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders
(or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period; then the Administrative Agent will promptly so notify the Borrower and each Lender.
Upon notice thereof by the Administrative Agent to the Borrower, any obligation of the Lenders to make
Benchmark Rate Loans, and any right of the Borrower to continue Benchmark Rate Loans or to convert
ABR Loans to Benchmark Rate Loans, shall be suspended (to the extent of the affected Benchmark Rate
Loans or affected Interest Periods) until the Administrative Agent (with respect to clause (ii), at the
instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) the Borrower
may revoke any pending request for a borrowing of, conversion to or continuation of Benchmark Rate
Loans (to the extent of the affected Benchmark Rate Loans or affected Interest Periods) or, failing that,
the Borrower will be deemed to have converted any such request into a request for a Borrowing of or
conversion to ABR Loans in the amount specified therein and (ii) any outstanding affected Benchmark
Rate Loans will be deemed to have been converted into ABR Loans at the end of the applicable Interest
Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so
converted, together with any additional amounts required pursuant to Section 2.11. Subject to this
Section 1.14, if the Administrative Agent determines (which determination shall be conclusive and
binding absent manifest error) that Term SOFR cannot be determined pursuant to the definition thereof on
any given day, the interest rate on ABR Loans shall be determined by the Administrative Agent without
reference to clause (iii) of the definition of “ABR” until the Administrative Agent revokes such
determination.
(b)Notwithstanding anything to the contrary herein or in any other Credit Document, if a
Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior any
setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance
with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date,
such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any
Credit Document in respect of such Benchmark setting and subsequent Benchmark settings without any
amendment to, or further action or consent of any other party to, this Agreement or any other Credit
Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the
definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark
Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in
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respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business
Day after the date notice of such Benchmark Replacement is provided to the Lenders without any
amendment to, or further action or consent of any other party to, this Agreement or any other Credit
Document so long as the Administrative Agent has not received, by such time, written notice of objection
to such Benchmark Replacement from Lenders comprising the Required Lenders. If the Benchmark
Replacement is Adjusted Daily Simple SOFR, all interest payments will be payable on a monthly basis.
(c)In connection with the use, administration, adoption or implementation of a Benchmark
Replacement, the Administrative Agent will have the right to make Conforming Changes from time to
time and, notwithstanding anything to the contrary herein or in any other Credit Document, any
amendments implementing such Conforming Changes will become effective without any further action
or consent of any other party to this Agreement or any other Credit Document.
(d)The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the
implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in
connection with the use, administration, adoption or implementation of a Benchmark Replacement. The
Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a
Benchmark pursuant to Section 1.14 and (y) the commencement of any Benchmark Unavailability
Period. Any determination, decision or election that may be made by the Administrative Agent or, if
applicable, any Lender (or group of Lenders) pursuant to this Section 1.14, including any determination
with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event,
circumstance or date and any decision to take or refrain from taking any action or any selection, will be
conclusive and binding absent manifest error and may be made in its or their sole discretion and without
consent from any other party to this Agreement or any other Credit Document, except, in each case, as
expressly required pursuant to this Section 1.14.
(e)Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein
or in any other Credit Document, at any time (including in connection with the implementation of a
Benchmark Replacement), (i) if the then-current Benchmark Rate is a term rate (including Term SOFR)
and either (A) any tenor for such Benchmark Rate is not displayed on a screen or other information
service that publishes such rate from time to time as selected by the Administrative Agent, in
consultation with the Borrower and in its reasonable discretion or (B) the Term SOFR Administrator or
the regulatory supervisor for the administrator of such Benchmark Rate has provided a public statement
or publication of information announcing that any tenor for such Benchmark Rate is not or will not be
representative or in compliance with or aligned with the International Organization of Securities
Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent may modify
the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark Rate
settings at or after such time to remove such unavailable, non-representative, non-compliant or
non-aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is
subsequently displayed on a screen or information service for a Benchmark Rate (including a Benchmark
Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be
representative or in compliance with or aligned with the International Organization of Securities
Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark Rate (including a
Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest
Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to
reinstate such previously removed tenor.
(f)Upon the Borrower’s receipt of notice of the commencement of a Benchmark
Unavailability Period, the Borrower may revoke any pending request for a Benchmark Rate Borrowing
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of, conversion to or continuation of Benchmark Rate Loans to be made, converted or continued during
any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted
any such request into a request for a Borrowing of or conversion to ABR Loans. During a Benchmark
Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available
Tenor, the component of ABR based upon the then-current Benchmark Rate or such tenor for such
Benchmark Rate, as applicable, will not be used in any determination of ABR.
(g)Reserves on Benchmark Rate Loans. The Borrower shall pay to each Lender, as long as
such Lender shall be required under regulations of the Federal Reserve Board to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known
as “Eurocurrency liabilities”), additional costs on the unpaid principal amount of each Benchmark Rate
Loan equal to actual costs of such reserves allocated to such Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive absent demonstrable error), payable on
each date on which interest is payable on such Loan provided the Borrower shall have received at least
fifteen (15) days’ prior written notice (with a copy to the Administrative Agent) of such additional
interest from the Lender. If a Lender fails to give notice fifteen (15) days prior to the relevant Interest
Payment Date, such additional interest shall be payable fifteen (15) days from receipt of such notice.
Section 2.Amount and Terms of Credit.
2.1Commitments.
(a)Subject to and upon the terms and conditions herein set forth, (i) each Lender having an
Initial Term Loan Commitment severally agrees to make a loan or loans denominated in Dollars (each, an
“Initial Term Loan”) to the Borrower on the Closing Date, in an amount that does not exceed (A) for
any such Lender, the Initial Term Loan Commitment of such Lender as of the Closing Date and (B)
$200,000,000 in the aggregate, (ii) each Amendment No. 1 Incremental Term Loan Lender severally
agrees to make a loan or loans denominated in Dollars (each, an “Amendment No. 1 Incremental Term
Loan”) to the Borrower, in an amount that does not exceed (A) for any such Lender, the Amendment No.
1 Term Loan Commitment of such Lender as of the Amendment No. 1 Effective Date and (B) the
Amendment No. 1 Term Loan Commitment in the aggregate, and (iii) each LenderAmendment No. 3
Incremental Lender severally agrees to make a loan or loans denominated in Dollars (each, an
“Amendment No. 3 Incremental Term Loan”) to the Borrower, in an amount that does not exceed
(A) for any such Lender, the Amendment No. 3 Term Loan Commitment of such Lender as of the
Amendment No. 3 Effective Date and (B) the Amendment No. 3 Term Loan Commitment in the
aggregate and (iv) each Lender having a Delayed Draw Term Loan Commitment severally agrees to
make a loan or loans denominated in Dollars (each, a “Delayed Draw Term Loan”) to the Borrower
from time to time during the Delayed Draw Term Loan Availability Period in Dollars (such date, a
“Delayed Draw Term Loan Funding Date”), which Delayed Draw Term Loans shall not exceed for
any such Lender the Delayed Draw Term Loan Commitment of such Lender and in the aggregate shall
not exceed $75,000,000. All Delayed Draw Term Loans, from and after the date of funding thereof shall,
unless otherwise elected by the Borrower, be their own Class or may become part of and be deemed to be
of the same Class as the Initial Term Loan or any other Class of existing Term Loans. Term Loans
(i) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans
or Benchmark Rate Loans; provided that all Term Loans made by each of the Lenders pursuant to the
same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Term Loans of
the same Type, (ii) may be repaid or prepaid (without premium or penalty other than as set forth in
Section 5.1(b)) in accordance with the provisions hereof, but once repaid or prepaid, may not be
reborrowed, (iii) shall not exceed for any such Lender the Initial Term Loan Commitment of such
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Lender, (iv) shall not exceed for any such Lender the Amendment No. 1 Incremental Term Loan
Commitment of such Lender, (v) shall not exceed for any such Lender the Amendment No. 3
Incremental Term Loan Commitment of such Lender, (vi) shall not exceed for any such Lender the
Delayed Draw Term Loan Commitment of such Lender and (vivii) shall not exceed in the aggregate the
Total Term Loan Commitment. On the Term Loan Maturity Date, all then unpaid Initial Term Loans,
Amendment No. 1 Incremental Term Loans, Amendment No. 3 Incremental Term Loans and Delayed
Draw Term Loans shall be repaid in full in Dollars.
Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender
severally agrees to make Revolving Credit Loans denominated in Dollars to the Borrower from its
applicable lending office (each, including any refinancing thereof, a “Revolving Credit Loan”) in an
aggregate principal amount not to exceed at any time outstanding the amount of such Revolving Credit
Lender’s Revolving Credit Commitment, provided that such Revolving Credit Loans (A) shall be made at
any time and from time to time on (subject to the proviso at the end of this Section 2.1(b)) and after the
Closing Date and prior to the Revolving Credit Maturity Date, (B) may, at the option of the Borrower be
incurred and maintained as, and/or converted into, ABR Loans or Benchmark Rate Loans that are
Revolving Credit Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant
to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving
Credit Loans of the same Type, (C) may be repaid (without premium or penalty) and reborrowed in
accordance with the provisions hereof, (D) shall not, for any Lender at any time, after giving effect
thereto and to the application of the proceeds thereof, result in such Revolving Credit Lender’s
Revolving Credit Exposure in respect of any Class of Revolving Loans at such time exceeding such
Revolving Credit Lender’s Revolving Credit Commitment in respect of such Class of Revolving Loan at
such time and (E) shall not, after giving effect thereto and to the application of the proceeds thereof,
result at any time in the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Exposures
at such time exceeding the Total Revolving Credit Commitment then in effect or the aggregate amount of
the Revolving Credit Lenders’ Revolving Credit Exposures of any Class of Revolving Loans at such time
exceeding the aggregate Revolving Credit Commitment with respect to such Class. The Revolving Credit
Loan (exclusive of Letter of Credit usage) will be made available on the Closing Date to finance (i) the
Transactions, purchase price adjustments, Transaction Expenses and general corporate purposes in an
amount not to exceed $5,000,000 in the aggregate and (ii) working capital needs (including, without
limitation, to pay for working capital adjustments under the Acquisition Agreement).
Subject to and upon the terms and conditions herein set forth, the Swingline Lender, in its
individual capacity, agrees, at any time and from time to time on and after the Closing Date and prior to
the Swingline Maturity Date, to make a loan or loans denominated in Dollars (each, a “Swingline Loan”
and, collectively the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be ABR
Loans, (ii) shall have the benefit of the provisions of this Section 2.1(c), (iii) shall not exceed at any time
outstanding the Swingline Commitment, (iv) shall not, after giving effect thereto and to the application of
the proceeds thereof, result at any time in (1) the aggregate principal amount of all Revolving Credit
Loans and Swingline Loans held by the Swingline Lender (and if the Swingline Lender is not also a
Revolving Credit Lender, by each of its Affiliates that is a Revolving Credit Lender) would exceed the
Revolving Credit Commitment of such Swingline Lender (and such Affiliates, if any) or (2) the aggregate
amount of the Revolving Credit Lenders’ Revolving Credit Exposures at such time exceeding the Total
Revolving Credit Commitments at such time and (v) may be repaid and reborrowed in accordance with
the provisions hereof. So long as any Lender is a Defaulting Lender, the Swingline Lender may require,
in its sole discretion, as a condition precedent to the issuance, amendment or increase of any Swingline
Loan, that the Borrower Cash Collateralize such Swingline Loan in an amount equal to the Swingline
Lender’s Fronting Exposure immediately prior to, or simultaneously with, the issuance, amendment or
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increase of such Swingline Loan. On the Swingline Maturity Date, all Swingline Loans shall be repaid in
full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from
Holdings, Intermediate Holdings, the Borrower, the Administrative Agent or the Required Lenders
stating that one or more applicable conditions contained in Section 7 shall not be satisfied to the extent
required thereby until such time as the Swingline Lender shall have received written notice of
(x) rescission of all such notices from the party or parties originally delivering such notice or (y) the
waiver of such Default or Event of Default or other conditions in accordance with the provisions of
Section 13.1.
(b)On any Business Day, the Swingline Lender may, in its sole discretion, give notice to
each Revolving Credit Lender that all then-outstanding Swingline Loans shall be funded with a
Borrowing of Revolving Credit Loans (provided that, if no such notice is given by the Swingline Lender
within seven days of making any Swingline Loan, notice to each Revolving Credit Lender shall be
deemed to be provided by the Swingline Lender in accordance with this Section 2.1(d), in which case
(i) Revolving Credit Loans constituting ABR Loans shall be made on the immediately succeeding
Business Day (each such Borrowing, a “Mandatory Borrowing”) by each Revolving Credit Lender pro
rata based on each Revolving Credit Lender’s Revolving Credit Commitment Percentage, and the
proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such
outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such
Revolving Credit Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the
amount and in the manner specified in the preceding sentence and on the date specified to it in writing by
the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply
with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions
specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is
continuing, (iv) the date of such Mandatory Borrowing, or (v) any reduction in the Total Revolving
Credit Commitment after any such Swingline Loans were made. In the event that, in the sole judgment
of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including as a result of the commencement of a proceeding under the Bankruptcy Code
in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase
from the Swingline Lender (without recourse or warranty) such participation of the outstanding
Swingline Loans as shall be necessary to cause the Lenders to share in such Swingline Loans ratably
based upon their respective Revolving Credit Commitment Percentages; provided that all principal and
interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date
the respective participation is purchased and, to the extent attributable to the purchased participation,
shall be payable to such Lender purchasing same from and after such date of purchase.
(c)If any Revolving Credit Lender fails to make available to the Administrative Agent for
the account of the Swingline Lender any amount required to be paid by such Lender pursuant to the
Section 2.1(d) by the date specified for such payment, the Swingline Lender shall be entitled to recover
from such Lender (acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on which such payment is
immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal
Funds Effective Rate and a rate determined by the Swingline Lender in accordance with banking industry
rules on interbank compensation, plus any administrative, processing or similar fees customarily charged
by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such Lender’s committed Loan
included in the relevant committed Borrowing or funded participation in the relevant Swingline Loan, as
the case may be. A certificate of the Swingline Lender submitted to any Lender (through the
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Administrative Agent) with respect to any amounts owing under this clause (e) shall be conclusive absent
manifest error.
(d)If the maturity date shall have occurred in respect of any tranche of Revolving Credit
Commitments (the “Expiring Credit Commitment”) at a time when another tranche or tranches of
Revolving Credit Commitments is or are in effect with a longer maturity date (collectively, the
“Non-Expiring Credit Commitments”), then with respect to each outstanding Swingline Loan, if
consented to by the Swingline Lender (such consent not to be unreasonably withheld, conditioned or
delayed), on the earliest occurring maturity date such Swingline Loan shall be deemed reallocated to the
tranche or tranches of the Non-Expiring Credit Commitments on a pro rata basis; provided that (x) to the
extent that the amount of such reallocation would cause the aggregate credit exposure to exceed the
aggregate amount of such Non-Expiring Credit Commitments, immediately prior to such reallocation the
amount of Swingline Loans to be reallocated equal to such excess shall be repaid or Cash Collateralized
and (y) notwithstanding the foregoing, if a Default or Event of Default has occurred and is continuing,
the Borrower shall still be obligated to pay Swingline Loans allocated to the Revolving Credit Lenders
holding the Expiring Credit Commitments at the maturity date of the Expiring Credit Commitment or if
the Loans have been accelerated prior to the maturity date of the Expiring Credit Commitment. Upon the
maturity date of any tranche of Revolving Credit Commitments, the sublimit for Swingline Loans may be
reduced as agreed between the Swingline Lender and the Borrower, without the consent of any other
Person.
2.2Minimum Amount of Each Borrowing; Maximum Number of Borrowings. The
aggregate principal amount of each Borrowing of (i) Term Loans shall be in a minimum amount of at
least the Minimum Borrowing Amount for such Type of Loans and in a multiple of $100,000 in excess
thereof, (ii) Revolving Loans shall be in a minimum amount of at least the Minimum Borrowing Amount
for such Type of Loans and in a multiple of $100,000 in excess thereof and (iii) Swingline Loans shall be
in a minimum amount of $50,000 and in a multiple of $100,000 in excess thereof (except that Mandatory
Borrowings shall be made in the amounts required by Section 2.1(d) and Revolving Credit Loans to
reimburse such Letter of Credit Issuer with respect to any Unpaid Drawing shall be made in the amounts
required by Section 3.3 or Section 3.4, as applicable). More than one Borrowing may be incurred on any
date; provided that at no time shall there be outstanding more than five Borrowings of Benchmark Rate
Loans that are Term Loans and five Borrowings of Benchmark Rate Loans that are Revolving Loans;
provided, further, that for each additional Class of Term Loans, an additional two Interest Periods, and
for each additional Class of Revolving Loans, an additional three Interest Periods, for a maximum of
fifteen Interest Periods.
2.3Notice of Borrowing.
(a)The Borrower shall give the Administrative Agent at the Administrative Agent’s Office
(i) in the case of a Borrowing of ABR Loans (other than Delayed Draw Term Loans), prior to 12:00 p.m.
(New York City time) at least one Business Days’ prior to the requested funding date, (ii) in the case of a
Borrowing of Benchmark Rate Loans (other than Delayed Draw Term Loans), prior to 12:00 p.m. (New
York City time) at least three Business Days’ prior to the requested funding date (or, the case of a
Borrowing of Initial Term Loans to be made on the Closing Date, one Business Day) and (iii) in the case
of a Borrowing of Delayed Draw Term Loans, (A) in the case of a Borrowing of Benchmark Rate Loans,
prior to 11:00 a.m. (New York City time) at least three Business Days prior to the requested funding date
and (B) in the case of a Borrowing of ABR Loans, prior to 11:00 a.m. (New York City time) at least one
Business Days prior to the requested funding date. Such notice (a “Notice of Borrowing”) shall specify
(A) the aggregate principal amount of the Term Loans to be made, (B) the date of the Borrowing (which,
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in the case of a Borrowing of Initial Term Loans, shall be the Closing Date) and (C) whether the Term
Loans shall consist of ABR Loans and/or Benchmark Rate Loans and, if the Term Loans are to include
Benchmark Rate Loans, the Interest Period to be initially applicable thereto. If no election as to the Type
of Borrowing is specified in any such notice, then the requested Borrowing shall be an ABR Borrowing.
If no Interest Period with respect to any Borrowing of Benchmark Rate Loans is specified in any such
notice, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
The Administrative Agent shall promptly advise the applicable Lenders of any notice given pursuant to
this Section 2.3(a) (and the contents thereof), and of each Lender’s pro rata share of the requested
Borrowing.
(b)Whenever the Borrower desires to incur Revolving Credit Loans (other than borrowings
to repay Unpaid Drawings), then the Borrower shall give the Administrative Agent at the Administrative
Agent’s Office, (i) prior to 11:00 a.m. (New York City time) at least three Business Days’ prior written
notice of each Borrowing of Benchmark Rate Loans that are Revolving Credit Loans and (ii) prior to
11:00 a.m. (New York City time) at least one Business Days’ prior written notice of each Borrowing of
ABR Loans that are Revolving Credit Loans. Each such Notice of Borrowing, except as otherwise
expressly provided in Section 2.10, shall specify (A) the aggregate principal amount of the Revolving
Credit Loans to be made pursuant to such Borrowing, (B) the date of Borrowing (which shall be a
Business Day) and (C) whether the respective Borrowing shall consist of ABR Loans or Benchmark Rate
Loans that are Revolving Credit Loans and, if Benchmark Rate Loans that are Revolving Credit Loans,
the Interest Period to be initially applicable thereto. The Administrative Agent shall promptly give each
Revolving Credit Lender written notice of each proposed Borrowing of Revolving Credit Loans, of such
Lender’s Revolving Credit Commitment Percentage thereof, of the identity of the Borrower and of the
other matters covered by the related Notice of Borrowing.
(c)Whenever the Borrower desires to incur Swingline Loans hereunder, the Borrower shall
give the Swingline Lender written notice in the form of Exhibit K with a copy to the Administrative
Agent of each Borrowing of Swingline Loans prior to 12:00 p.m. (New York City time) on the date of
such Borrowing. Each such notice shall specify (x) the aggregate principal amount of the Swingline
Loans to be made pursuant to such Borrowing and (y) the date of Borrowing (which shall be a Business
Day).
(d)Mandatory Borrowings shall be made upon the notice specified in Section 2.1(d), with
the Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of Mandatory
Borrowings as set forth in such Section.
(e)Borrowings to reimburse Unpaid Drawings shall be made upon the notice specified in
Section 3.4(a).
(f)Without in any way limiting the obligation of the Borrower to confirm in writing any
notice it shall give hereunder by telephone (which obligation is absolute), the Administrative Agent may
act prior to receipt of written confirmation without liability upon the basis of such telephonic notice
believed by the Administrative Agent in good faith to be from an Authorized Officer of the Borrower.
2.4Disbursement of Funds.
(a)No later than 2:00 p.m. (New York City time) on the date specified in each Notice of
Borrowing (including Mandatory Borrowings but not any Borrowing of Swingline Loans), each Lender
shall make available its pro rata portion, if any, of each Borrowing requested to be made on such date in
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the manner provided below; provided that on the Closing Date, such funds may be made available at such
earlier time as may be agreed among the Lenders, the Borrower and the Administrative Agent for the
purpose of consummating the Transactions; provided, further, that all Swingline Loans shall be made
available to the Borrower in the full amount thereof by the Swingline Lender no later than 4:00 p.m.
(New York City time).
(b)Each Lender shall make available all amounts it is to fund to the Borrower under any
Borrowing for its applicable Commitments, and in immediately available funds, to the Administrative
Agent at the Administrative Agent’s Office and the Administrative Agent will (except in the case of
Borrowings to repay Unpaid Drawings) make available to the Borrower, by depositing to an account
designated by the Borrower to the Administrative Agent the aggregate of the amounts so made available
in Dollars. Unless the Administrative Agent shall have been notified by any Lender prior to the date of
any such Borrowing that such Lender does not intend to make available to the Administrative Agent its
portion of the Borrowing or Borrowings to be made on such date, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole discretion
and without any obligation to do so) make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent by such Lender and the
Administrative Agent has made available such amount to the Borrower, the Administrative Agent shall
be entitled to recover such corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent’s demand therefor the Administrative
Agent shall promptly notify the Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent in Dollars. The Administrative Agent shall also be entitled to recover
from such Lender or the Borrower interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to
(i) if paid by such Lender, the Overnight Rate or (ii) if paid by the Borrower, the then-applicable
rate of interest or fees, calculated in accordance with Section 2.8, for the respective Loans.
(c)Nothing in this Section 2.4 shall be deemed to relieve any Lender from its obligation to
fulfill its commitments hereunder or to prejudice any rights that the Borrower may have against any
Lender as a result of any default by such Lender hereunder (it being understood, however, that no Lender
shall be responsible for the failure of any other Lender to fulfill its commitments hereunder).
2.5Repayment of Loans; Evidence of Debt.
(a)The Borrower shall repay to the Administrative Agent, for the benefit of the Initial Term
Loan Lenders, on the Term Loan Maturity Date, the then outstanding Initial Term Loans. The Borrower
shall repay to the Administrative Agent for the benefit of the Delayed Draw Term Loan Lenders, on the
Term Loan Maturity Date, the then outstanding Delayed Draw Term Loans. The Borrower shall repay to
the Administrative Agent for the benefit of the Revolving Credit Lenders, on the Revolving Credit
Maturity Date, the then outstanding Revolving Credit Loans. The Borrower shall repay to the
Administrative Agent for the benefit of the Revolving Credit Lenders, on each Extended Revolving Loan
Maturity Date, the then outstanding amount of Extended Revolving Credit Loans. The Borrower shall
repay to the Administrative Agent for the benefit of the Incremental Revolving Loan Lenders, on each
Incremental Revolving Credit Maturity Date, the then outstanding amount of Incremental Revolving
Credit Loans. The Borrower shall repay to the Swingline Lender, on the Swingline Maturity Date, the
then outstanding Swingline Loans.
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(b)The Borrower shall repay to the Administrative Agent, (A)(i) for the benefit of the Initial
Term Loan Lenders, on the last Business Day of each of March, June, September and December,
commencing with the fiscal quarter ending on September 30, 2025 (each such date, an “Initial Term
Loan Repayment Date”), a principal amount of Term Loans equal to the aggregate outstanding
principal amount of Initial Term Loans as of the Amendment No. 1 Effective Date multiplied by
0.25%equal to $650,502.51 and (ii) with respect to any Delayed Draw Term Loans funded on or after
the Closing Date, for the benefit of the Delayed Draw Term Loan Lenders, on the last Business Day of
each of March, June, September and December, commencing with the first fiscal quarter ended after the
date that such Delayed Draw Term Loans are funded (but, for the avoidance of doubt, no such payment
shall be required earlier than September 30, 2025) (each such date, an “Delayed Draw Term Loan
Repayment Date” and together with each Initial Term Loan Repayment Date, a “Term Loan
Repayment Date”), in an amount equal to 0.25% per quarter of the original principal amount of such
Delayed Draw Term Loans and (B) on the Term Loan Maturity Date, any remaining outstanding amount
of Initial Term Loans and Delayed Draw Term Loans (the repayment amounts in clauses (A)(i) and (ii)
above, each, a “Term Loan Repayment Amount”). The Administrative Agent may, in consultation with
the Borrower and at the time of incurrence thereof, adjust the amortization payment to be made to any
Term Loan Lender in conjunction with the incurrence of any Delayed Draw Term Loans (in each case,
solely to the extent such Delayed Draw Term Loans otherwise have the same terms and conditions as
existing Initial Term Loans) in order to ensure fungibility with the other Term Loans and to maintain the
pro rata allocation of amortization payments between and among the Initial Term Loans and the Delayed
Draw Term Loans that otherwise have the same terms and conditions but are incurred on different dates.
With respect to any Delayed Draw Term Loan, such amortization payment shall be as notified to the
Lenders by the Administrative Agent.
(c)[Reserved].
(d)In the event that any New Term Loans are made, such New Term Loans shall, subject to
Section 2.14(d), be repaid by the Borrower in the amounts (each, a “New Term Loan Repayment
Amount”) and on the dates (each a “New Term Loan Repayment Date”) set forth in the applicable
Joinder Agreement and subject to any adjustment to ensure fungibility with the other Term Loans. In the
event that any Incremental Revolving Credit Loans are made, such Incremental Revolving Credit Loans
shall, subject to Section 2.14(e), be repaid by the Borrower in the amounts (each, a “New Revolving
Loan Repayment Amount”) and on the dates (each a “New Revolving Loan Repayment Date”) set
forth in the applicable Joinder Agreement. In the event that any Extended Term Loans are established,
such Extended Term Loans shall, subject to Section 2.14(g), be repaid by the Borrower in the amounts
(each such amount with respect to any Extended Repayment Date, an “Extended Term Loan
Repayment Amount”) and on the dates (each, an “Extended Repayment Date”) set forth in the
applicable Extension Amendment.
(e)Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the Indebtedness of the Borrower to the appropriate lending office of such Lender resulting
from each Loan made by such lending office of such Lender from time to time, including the amounts of
principal and interest payable and paid to such lending office of such Lender from time to time under this
Agreement.
(f)The Administrative Agent shall maintain the Register pursuant to Section 13.6(b), and a
subaccount for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the
amount of each Loan made hereunder, whether such Loan is an Initial Term Loan, Delayed Draw Term
Loan, New Term Loan, Revolving Credit Loan, New Revolving Credit Loan, Additional Revolving
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Credit Loan, Incremental Revolving Credit Loan or Swingline Loan, the Type of each Loan made, the
names of the Borrower 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) the amount of any sum received by the Administrative Agent hereunder from the Borrower and
each Lender’s share thereof.
(g)The entries made in the Register and accounts and subaccounts maintained pursuant to
clauses (e) and (f) of this Section 2.5 shall, to the extent permitted by applicable law, be prima facie
evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided,
however, that, in the event of any inconsistency between the Register and any such account or
subaccount, the Register shall govern; provided, further, that the failure of any Lender or the
Administrative Agent or Swingline Lender to maintain such account, such Register or subaccount, as
applicable, or any error therein, shall not in any manner affect the obligation of the Borrower to repay
(with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms
of this Agreement.
(h)The Borrower hereby agrees that, upon request of any Lender at any time and from time
to time after the Borrower has made an initial borrowing hereunder, the Borrower shall provide to such
Lender, at the Borrower’s own expense, a promissory note, substantially in the form of Exhibit G-1 or
Exhibit G-2, as applicable, evidencing the Initial Term Loans, Delayed Draw Term Loans, New Term
Loans, Swingline Loans and Revolving Loans owing to such Lender. 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 13.6) be represented by one or more promissory
notes in such form payable to the Lender named therein (or, if requested by such Lender, to such Lender
and its registered assigns).
2.6Conversions and Continuations.
(a)Subject to the penultimate sentence of this clause (a), (x) the Borrower shall have the
option on any Business Day to convert all or a portion equal to at least $1,000,000 of the outstanding
principal amount of Term Loans of one Type or at least the Minimum Borrowing Amount for Revolving
Credit Loans of one Type into a Borrowing or Borrowings of another Type and (y) the Borrower shall
have the option on any Business Day to continue the outstanding principal amount of any Benchmark
Rate Loans as Benchmark Rate Loans for an additional Interest Period; provided that (i) no partial
conversion of Benchmark Rate Loans shall reduce the outstanding principal amount of Benchmark Rate
Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount, (ii) ABR
Loans may not be converted into Benchmark Rate Loans if an Event of Default is in existence on the date
of the conversion and the Administrative Agent has or the Required Lenders have determined in its or
their sole discretion not to permit such conversion, (iii) Benchmark Rate Loans may not be continued as
Benchmark Rate Loans for an additional Interest Period if an Event of Default is in existence on the date
of the proposed continuation and the Administrative Agent has or the Required Lenders have determined
in its or their sole discretion not to permit such continuation, and (iv) Borrowings resulting from
conversions pursuant to this Section 2.6 shall be limited in number as provided in Section 2.2. Each such
conversion or continuation shall be effected by the Borrower by giving the Administrative Agent prior
written notice at the Administrative Agent’s Office prior to (i) 11:00 a.m. (New York City time) at least
three Business Days prior, in the case of a continuation of or conversion to Benchmark Rate Loans (other
than in the case of a notice delivered on the Closing Date, which shall be deemed to be effective on the
Closing Date), or (ii) 10:00 a.m. (New York City time) at least one Business Day prior to the proposed
day of a conversion into ABR Loans (each, a “Notice of Conversion or Continuation” substantially in
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the form of Exhibit J) specifying the Loans to be so converted or continued, the Type of Loans to be
converted or continued into and, if such Loans are to be converted into or continued as Benchmark Rate
Loans, the Interest Period to be initially applicable thereto. If no Interest Period is specified in any such
notice with respect to any conversion to or continuation as a Benchmark Rate Loan or if no Notice of
Conversion or Continuation is delivered with respect to any Loan, the Borrower shall be deemed to have
elected that such Loan be converted into or continued as a Benchmark Rate Loan with an Interest Period
of one month’s duration. The Administrative Agent shall give each applicable Lender notice as promptly
as practicable of any such proposed conversion or continuation affecting any of its Loans.
(b)If any Event of Default is in existence at the time of any proposed continuation of any
Benchmark Rate Loans denominated in Dollars and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion not to permit such continuation, such Benchmark
Rate Loans shall be automatically converted on the last day of the current Interest Period into ABR
Loans. If upon the expiration of any Interest Period in respect of Benchmark Rate Loans, the Borrower
has failed to elect a new Interest Period to be applicable thereto as provided in clause (a), the Borrower
shall be deemed to have elected to convert such Borrowing of Benchmark Rate Loans into a Borrowing of
ABR Loans, effective as of the expiration date of such current Interest Period.
2.7Pro Rata Borrowings. Each Borrowing of Initial Term Loans under this Agreement shall
be made by the Lenders pro rata on the basis of their then-applicable Initial Term Loan Commitments.
Each Borrowing of Amendment No. 1 Incremental Term Loans under this Agreement shall be made by
the Lenders pro rata on the basis of their then-applicable Amendment No. 1 Incremental Term Loan
Commitments. Each Borrowing of Amendment No. 3 Incremental Term Loans under this
Agreement shall be made by the Lenders pro rata on the basis of their then-applicable Amendment
No. 3 Incremental Term Loan Commitments. Each Borrowing of Delayed Draw Term Loans under this
Agreement shall be made by the Lenders pro rata on the basis of their then-applicable Delayed Draw
Term Loan Commitments. Each Borrowing of Revolving Credit Loans under this Agreement shall be
made by the Lenders pro rata on the basis of their then-applicable Revolving Credit Commitment
Percentages. Each Borrowing of New Term Loans under this Agreement shall be made by the Lenders
pro rata on the basis of their then-applicable New Term Loan Commitments.Each Borrowing of
Incremental Revolving Credit Loans under this Agreement shall be made by the Lenders pro rata on the
basis of their then-applicable Incremental Revolving Credit Commitments. It is understood that (a) no
Lender shall be responsible for any default by any other Lender in its obligation to make Loans
hereunder and that each Lender severally but not jointly shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Lender to fulfill its commitments
hereunder and (b) other than as expressly provided herein with respect to a Defaulting Lender, failure by
a Lender to perform any of its obligations under any of the Credit Documents shall not release any
Person from performance of its obligation, under any Credit Document.
2.8Interest.
(a)The unpaid principal amount of each ABR Loan shall bear interest from the date of the
Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate per annum that shall at
all times be the Applicable Margin for ABR Loans plus the ABR, in each case, in effect from time to
time.
(b)The unpaid principal amount of each Benchmark Rate Loan shall bear interest from the
date of the Borrowing thereof until maturity thereof (whether by acceleration or otherwise) at a rate per
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annum that shall at all times be the Applicable Margin for Benchmark Rate Loans plus the relevant
Benchmark Rate.
(c)If an Event of Default has occurred and is continuing under Section 11.1 or Section 11.5
hereto (but after giving effect to any grace period set forth therein), if all or a portion of (i) the principal
amount of any Loan or (ii) any interest payable thereon or any other amount payable hereunder shall not
be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount
shall be payable on demand and bear interest at a rate per annum (the “Default Rate”) that is (x) in the
case of overdue principal, the rate that would otherwise be applicable thereto plus 2.00% per annum or
(y) in the case of any other overdue amount, including overdue interest, to the extent permitted by
applicable law, the rate described in Section 2.8(a) for the applicable Class plus 2.00% per annum from
the date of such non-payment to the date on which such amount is paid in full (after as well as before
judgment).
(d)Interest on each Loan shall accrue from and including the date of any Borrowing to but
excluding the date of any repayment thereof and shall be payable in Dollars; provided that any Loan that
is repaid on the same date on which it is made shall bear interest for one day. Except as provided below,
interest shall be payable (i) in respect of each ABR Loan, quarterly in arrears on the last Business Day of
each fiscal quarter of the Borrower, (ii) in respect of each Benchmark Rate Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each
date occurring at three-month intervals after the first day of such Interest Period, and (iii) in respect of
each Loan, (A) on any prepayment in respect thereof, (B) at maturity (whether by acceleration or
otherwise), and (C) after such maturity, on demand.
(e)All computations of interest hereunder shall be made in accordance with Section 5.5.
(f)The Administrative Agent, upon determining the interest rate for any Borrowing of
Benchmark Rate Loans, shall promptly notify the Borrower and the relevant Lenders thereof. Each such
determination shall, absent clearly demonstrable error, be final and conclusive and binding on all parties
hereto.
2.9Interest Periods. At the time the Borrower gives a Notice of Borrowing or Notice of
Conversion or Continuation in respect of the making of, or conversion into or continuation as, a
Borrowing of Benchmark Rate Loans in accordance with Section 2.6(a), the Borrower shall give the
Administrative Agent written notice of the Interest Period applicable to such Borrowing, which Interest
Period shall, at the option of the Borrower, be a one, three or six month period (or if approved by all the
Lenders making such Benchmark Rate Loans as determined by such Lenders in good faith based on
prevailing market conditions, a twelve month or shorter period).
Notwithstanding anything to the contrary contained above:
(a)the initial Interest Period for any Borrowing of Benchmark Rate Loans shall commence
on the date of such Borrowing (including the date of any conversion from a Borrowing of ABR Loans)
and each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on
which the next preceding Interest Period expires;
(b)if any Interest Period relating to a Borrowing of Benchmark Rate Loans begins on the
last Business Day of a calendar month or begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end
on the last Business Day of the calendar month at the end of such Interest Period;
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(c)if any Interest Period would otherwise expire on a day that is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day; provided that if any Interest Period in
respect of a Benchmark Rate Loan would otherwise expire on a day that is not a Business Day but is a
day of the month after which no further Business Day occurs in such month, such Interest Period shall
expire on the immediately preceding Business Day; and
(d)the Borrower shall not be entitled to elect any Interest Period in respect of any
Benchmark Rate Loan if such Interest Period would extend beyond the Maturity Date of such Loan.
2.10Increased Costs, Illegality, Etc.
(a)In the event that (x) in the case of clause (i) below, the Administrative Agent and (y) in
the case of clauses (ii), (iii) and (iv) below, any Lender, as applicable, shall have reasonably determined
(which determination shall, absent clearly demonstrable error, be final and conclusive and binding upon
all parties hereto):
(i)[reserved];
(ii)[reserved];
(iii)that, due to a Change in Law, which shall subject any such Lender to any Tax
(other than (1) Indemnified Taxes or (2) Excluded Taxes) on its loans, loan principal, letters of credits,
commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
or
(iv)[reserved];
(such Loans, “Impacted Loans”), then, and in any such event, such Lender (or the Administrative
Agent, in the case of clause (i) above) shall within a reasonable time thereafter give notice (if by
telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination
(which notice the Administrative Agent shall promptly transmit to each of the other Lenders).
Thereafter in the case of subclause (iii) above, the Borrower shall take one of the actions specified in
subclause (x) or (y), as applicable, of Section 2.10(b) promptly and, in any event, within the time period
required by law.
(b)At any time that any Benchmark Rate Loan is affected by the circumstances described in
Section 2.10(a)(iii), the Borrower shall either (x) if a Notice of Borrowing or Notice of Conversion or
Continuation with respect to the affected Benchmark Rate Loan has been submitted pursuant to
Section 2.3 or Section 2.6 but the affected Benchmark Rate Loan has not been funded or continued,
cancel such requested Borrowing by giving the Administrative Agent written notice thereof on the same
date that the Borrower were notified by Lenders pursuant to Section 2.10(a)(iii) or (y) if the affected
Benchmark Rate Loan is then outstanding, upon at least three Business Days’ notice to the
Administrative Agent, require the affected Lender to convert each such Benchmark Rate Loan into an
ABR Loan; provided that if more than one Lender is affected at any time, then all affected Lenders must
be treated in the same manner pursuant to this Section 2.10(b).
(c)If, after the Closing Date, any Change in Law relating to capital adequacy or liquidity of
any Lender or compliance by any Lender or its parent with any Change in Law relating to capital
adequacy or liquidity occurring after the Closing Date, has or would have the effect of reducing the
actual rate of return on such Lender’s or its parent’s or its Affiliate’s capital or assets as a consequence of
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such Lender’s commitments or obligations hereunder to a level below that which such Lender or its
parent or its Affiliate could have achieved but for such Change in Law (taking into consideration such
Lender’s or its parent’s policies with respect to capital adequacy or liquidity), then from time to time,
promptly after written demand by such Lender (with a copy to the Administrative Agent), the Borrower
shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its
parent for such actual reduction, it being understood and agreed, however, that a Lender shall not be
entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or
directive to comply with, any law, rule or regulation as in effect on the Closing Date or to the extent such
Lender is not imposing such charges on, or requesting such compensation from, borrowers (similarly
situated to the Borrower hereunder) under comparable syndicated credit facilities similar to the Credit
Facilities. Each Lender, upon determining in good faith that any additional amounts will be payable
pursuant to this Section 2.10(c), will give prompt written notice thereof to the Borrower, which notice
shall set forth in reasonable detail the basis of the calculation of such additional amounts, although the
failure to give any such notice shall not, subject to Section 2.13, release or diminish the Borrower’s
obligations to pay additional amounts pursuant to this Section 2.10(c) promptly following receipt of such
notice.
(d)If the Administrative Agent shall have received notice from the Required Lenders that
the Benchmark Rate determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (as certified by such Lender) of making or maintaining its affected
Benchmark Rate Loans during such Interest Period, the Administrative Agent shall give telecopy or
telephonic notice thereof to the Borrower and the Lenders as soon as practicable thereafter (which notice
shall include supporting calculations in reasonable detail). If such notice is given, (i) any Benchmark
Rate Loan requested to be made on the first day of such Interest Period shall be made an ABR Loan,
(ii) any Loans that were to have been converted on the first day of such Interest Period to Benchmark
Rate Loans shall be continued as an ABR Loan and (iii) any outstanding Benchmark Rate Loans shall be
converted, on the first day of such Interest Period, to ABR Loans. Until such notice has been withdrawn
by the Administrative Agent, no further Benchmark Rate Loans shall be made or continued as such, nor
shall the Borrower have the right to convert ABR Loans to Benchmark Rate Loans.
(e)Failure or delay on the part of the Administrative Agent or any such Lender to demand
compensation pursuant to this Section 2.10 shall not constitute a waiver of the Administrative Agent’s or
such Lender’s right to demand such compensation; provided that the Credit Parties shall not be required
to compensate the Administrative Agent or such Lender pursuant to the foregoing provisions of this
Section 2.10 for any increased costs incurred or reductions suffered more than nine (9) months prior to the
date that the Administrative Agent or any such Lender notifies the Credit Parties of the event giving rise
to such increased costs or reductions and of the Administrative Agent’s or such Lender’s intention to
claim compensation therefor (except that, if the event giving rise to such increased costs or reductions is
retroactive, then the nine (9) month period referred to above shall be extended to include the period of
retroactive effect thereof).
2.11Compensation. If (a) any payment of principal of any Benchmark Rate Loan is made by
the Borrower to or for the account of a Lender other than on the last day of the Interest Period for such
Benchmark Rate Loan as a result of a payment or conversion pursuant to Sections 2.5, 2.6, 2.10, 5.1, 5.2
or 13.7, as a result of acceleration of the maturity of the Loans pursuant to Section 11 or for any other
reason, (b) any Borrowing of Benchmark Rate Loans is not made as a result of a withdrawn Notice of
Borrowing or a failure to satisfy borrowing conditions, (c) any ABR Loan is not converted into a
Benchmark Rate Loan as a result of a withdrawn Notice of Conversion or Continuation, (d) any
Benchmark Rate Loan is not continued as a Benchmark Rate Loan, as the case may be, as a result of a
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withdrawn Notice of Conversion or Continuation or (e) any prepayment of principal of any Benchmark
Rate Loan is not made as a result of a withdrawn notice of prepayment pursuant to Sections 5.1 or 5.2,
the Borrower shall, after receipt of a written request by such Lender (which request shall set forth in
reasonable detail the basis for requesting such amount), promptly pay to the Administrative Agent for the
account of such Lender any amounts required to compensate such Lender for any additional losses, costs
or expenses that such Lender may reasonably incur as a result of such payment, failure to convert, failure
to continue or failure to prepay, including any loss, cost or expense (excluding loss of anticipated profits)
actually incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Benchmark Rate Loan. A certificate of a Lender setting forth the
amount or amounts necessary to compensate such Lender as specified in this Section 2.11 and setting
forth in reasonable detail the manner in which such amount or amounts were determined shall be
delivered to the Borrower and shall be conclusive, absent manifest error. The obligations of the Borrower
under this Section 2.11 shall survive the payment in full of the Loans and the termination of this
Agreement.
2.12Change of Lending Office. Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of Sections 2.10(a)(ii), 2.10(a)(iii), 2.10(b), 3.5 or 5.4 with respect to such
Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans affected by such event;
provided that such designation is made on such terms that such Lender and its lending office suffer no
unreimbursed cost or other material economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of any such Section. Nothing in this
Section 2.12 shall affect or postpone any of the obligations of the Borrower or the right of any Lender
provided in Sections 2.10, 3.5 or 5.4.
2.13Notice of Certain Costs. Notwithstanding anything in this Agreement to the contrary, to
the extent any notice required by Sections 2.11, 3.5 or 5.4 is given by any Lender more than 120 days
after such Lender has knowledge (or should have had knowledge) of the occurrence of the event giving
rise to the additional cost, reduction in amounts, loss or other additional amounts described in such
Sections, such Lender shall not be entitled to compensation under Sections 2.11, 3.5 or 5.4, as the case
may be, for any such amounts incurred or accruing prior to the 121st day prior to the giving of such notice
to the Borrower.
2.14Incremental Facilities.
(a)The Borrower may, by written notice to Administrative Agent, elect to request the
establishment of one or more (x) additional tranches of term loans (“Additional Term Loans”) or
increases in Term Loans of any Class (“Term Loan Increases”, the commitments thereto and to
Additional Term Loans, the “New Term Loan Commitments”), (y) increases in Revolving Credit
Commitments of any Class (the “New Revolving Credit Commitments”) and/or (z) additional tranches
of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together
with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”;
together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New
Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities
Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be
approved by the Administrative Agent or (y) shall constitute the difference between the Maximum
Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date);
provided that the aggregate principal amount of Incremental Revolving Credit Commitments established
after the Closing Date shall not exceed $25,000,000. The Borrower may approach any Lender or any
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Person (other than a natural Person or, solely with respect to any Incremental Revolving Credit
Commitments, an Affiliated Lender) to provide all or a portion of the New Loan Commitments, subject,
if applicable, to the proviso to Section 2.14(b); provided that any Lender offered or approached to
provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to
provide a New Loan Commitment. In each case, on each applicable Increased Amount Date (subject to
Section 1.12), such New Loan Commitments shall be subject to (i) no Event of Default (provided that, in
connection with a Limited Condition Transaction, no Event of Default shall exist on the LCT Test Date
and no Event of Default under Section 11.1 or Section 11.5 shall exist on the date such New Loan
Commitments are funded) shall exist on such Increased Amount Date before or after giving effect to such
New Loan Commitments, as applicable, (ii) the New Loan Commitments shall be effected pursuant to
one or more Joinder Agreements executed and delivered by the Borrower (a copy of which shall be
provided to the Administrative Agent), and each of which shall be recorded in the Register and shall be
subject to the requirements set forth in Section 5.4(e), and (iii) the Borrower shall make any payments
required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No
Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New
Term Loans shall, at the election of the Borrower and agreed to by Lenders providing such New Term
Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all
purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this
Agreement. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be
designated a separate Series of Revolving Credit Loans for all purposes of this Agreement.
(b)On any Increased Amount Date on which Incremental Revolving Credit Commitments
are effected, (a) with respect to New Revolving Credit Commitments, each of the Lenders with
Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit
Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders
shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the
principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased
Amount Date as shall be necessary in order that, after giving effect to all such assignments and
purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders
and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of
such Class after giving effect to the addition of such New Revolving Credit Commitments to the
Revolving Credit Commitments, and (b) with respect to any Incremental Revolving Credit Commitments,
(i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit
Commitment, and each Loan made under a New Revolving Credit Commitment (a “New Revolving
Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional
Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving
Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving
Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional
Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental
Revolving Loan Lenders”) shall become a Lender with respect to the Incremental Revolving Credit
Commitment and all matters relating thereto; provided that the Administrative Agent and the Letter of
Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or
Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the
extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving
Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan
Lender.
(c)New Term Loan Commitments of any Series shall be subject to the satisfaction of the
foregoing and following terms and conditions: (i) each Lender with a New Term Loan Commitment
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(each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term
Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an
amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender
of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such
Series and the New Term Loans of such Series made pursuant thereto.
(d)The terms and provisions of the New Term Loans and New Term Loan Commitments of
any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the
Borrower; provided that (x) with respect to a Term Loan Increase, such Term Loan Increase shall be on
the exact same terms and pursuant to the exact same documentation applicable to the Initial Term Loans
and the Delayed Draw Term Loans; provided that economic terms, voluntary prepayment provisions and
amortization schedule applicable to any Term Loan Increases shall be determined by the Borrower and
the Lenders thereunder and (y) with respect to any Additional Term Loans (i) except in the case of any
Inside Maturity Debt Exclusion, the applicable New Term Loan Maturity Date of each Series shall be no
earlier than the Term Loan Maturity Date; (ii) except in the case of any Inside Maturity Debt Exclusion,
the weighted average life to maturity of all Additional Term Loans shall be no shorter than the weighted
average life to maturity of the then existing Initial Term Loans and the Delayed Draw Term Loans;
(iii) the economic terms, voluntary prepayment provisions and amortization schedule applicable to any
Additional Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that,
with respect to Additional Term Loans, solely to the extent that such Additional Term Loans meet the
MFN Parameters and if the Effective Yield for Benchmark Rate Loans or ABR Loans in respect of such
Additional Term Loans exceeds the Effective Yield for Benchmark Rate Loans or ABR Loans in respect
of the then existing Initial Term Loans or the Delayed Draw Term Loans by more than 0.50% (calculated
as of the Closing Date or the Delayed Draw Term Loan Funding Date, as applicable (other than with
respect to the Benchmark Rate component of such calculation)), the Applicable Margin for Benchmark
Rate Loans or ABR Loans in respect of the then existing Initial Term Loans and the Delayed Draw Term
Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans and/
or Delayed Draw Term Loans, as applicable is equal to the Effective Yield for Benchmark Rate Loans or
ABR Loans in respect of the Additional Term Loans minus 0.50% (this proviso to this clause (iii), the
“MFN Protection”); (iv) except as otherwise set forth in this Section 2.14, such terms and documentation
shall be as determined by the Borrower and the providers of the Additional Term Loans; provided that,
to the extent the terms of any Additional Term Loans are not consistent with the then-existing
Initial Term Loans and Delayed Draw Term Loans (except as permitted under this Section 2.14), such
terms shall be reasonably satisfactory to the Administrative Agent (it being understood that (i) to the
extent any financial maintenance covenant is added for the benefit of any Indebtedness, no consent
shall be required by the Administrative Agent or any of the Lenders if such financial maintenance
covenant is also added for the benefit of any corresponding Initial Term Loans and Delayed Draw Term
Loans remaining outstanding after the issuance or incurrence of such Indebtedness and (ii) no consent
shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions
are only applicable after the Term Loan Maturity Date applicable to the Initial Term Loans and Delayed
Draw Term Loans); and (v) any Additional Term Loans shall (A) (x) rank pari passu or subordinate in
right of payment with the Obligations and (y) will either (1) be secured on a pari passu basis with, and by
the same Collateral as, the Obligations, (2) be secured on a junior basis with the Credit Facilities by the
same Collateral securing the Obligations or (3) be unsecured, (B) not be guaranteed by entities other than
the Guarantors and (C) to the extent secured on a junior basis, be subject to an Acceptable Intercreditor
Agreement or other intercreditor arrangements in form and substance reasonably acceptable to the
Administrative Agent and the Borrower; and (vi) no Affiliated Lender shall be a lender under any
Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans and Affiliated
Lenders providing any portion of any Additional Term Loans or Term Loan Increases shall be subject to
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the limitations set forth in Section 13.6(h) as if the provision of such Additional Term Loans or Term
Loan Increases were an assignment of such Loans to such Affiliated Lender. The terms and provisions of
any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be identical
to the Class of Commitments and related Revolving Loans subject to increase by such New Revolving
Credit Commitments and New Revolving Credit Loans; provided, that underwriting, arrangement,
structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith
that may be agreed to among the Borrower and the lender(s) providing and/or arranging such New
Revolving Credit Commitments may be paid in connection with such New Revolving Credit
Commitments.
(e)Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans
shall be on the exact same terms and pursuant to the exact same documentation applicable to the Initial
Revolving Credit Commitments and the related Revolving Credit Loans; provided that, as appropriate,
the economic terms, voluntary prepayment provisions and amortization schedule applicable to any
Incremental Revolving Credit Commitments shall be determined by the Lenders and Borrower
thereunder.
(f)Each Joinder Agreement may, without the consent of any other Lenders, effect technical
and corresponding amendments to this Agreement and the other Credit Documents as may be necessary
or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provision of this
Section 2.14.
(g)(i) The Borrower may at any time, and from time to time, request that all or a portion of
the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled
maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of
such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and
to provide for other terms consistent with this Section 2.14(g). In order to establish any Extended Term
Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such
notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be
offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed
terms of the Extended Term Loans to be established, which shall not be materially more restrictive to the
Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of
the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such
applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such
provisions apply after the Term Loan Maturity Date (a “Permitted Other Provision”); provided,
however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled
amortization payments of principal of the Extended Term Loans may be delayed to later dates than the
scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such
delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in
Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan
Class from which such Extended Term Loans were converted, in each case as more particularly set forth
in paragraph (iv) of this Section 2.14(g) below), (y) (A) the interest margins with respect to the Extended
Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term
Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation payments
may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any
increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the
applicable Extension Amendment and to the extent that any Permitted Other Provision (including a
financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be
required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also
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added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence
of such Indebtedness or if such Permitted Other Provision applies only after the Term Loan Maturity
Date. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term
Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which
they were converted is repaid in full. No Lender shall have any obligation to agree to have any of its
Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any
Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class
of Term Loans from the Existing Term Loan Class from which they were converted.
(ii)The Borrower may at any time and from time to time request that all or a portion
of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or
any Incremental Revolving Credit Commitments, each existing at the time of such request (each, an
“Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing
Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving
Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend
the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect
to all or a portion of any principal amount of Loans related to such Existing Revolving Credit
Commitments (any such Existing Revolving Credit Commitments which have been so extended,
“Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit
Loans”) and to provide for other terms consistent with this Section 2.14(g). In order to establish any
Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative
Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing
Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting
forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall
not be materially more restrictive to the Credit Parties (as determined in good faith by the Borrower),
when taken as a whole, than the terms of the applicable Existing Revolving Credit Commitments (the
“Specified Existing Revolving Credit Commitment”) unless (x) the Lenders providing Existing
Revolving Credit Loans receive the benefit of such more restrictive terms or (y) any such provisions
apply after the Revolving Credit Termination Date, in each case, to the extent provided in the applicable
Extension Amendment; provided, however, that (w) all or any of the final maturity dates of such
Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of
the Specified Existing Revolving Credit Commitments, (x) (A) the interest margins with respect to the
Extended Revolving Credit Commitments may be higher or lower than the interest margins for the
Specified Existing Revolving Credit Commitments and/or (B) additional fees and premiums may be
payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu
of any increased margins contemplated by the preceding clause (A) and (y) the Revolving Credit
Commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or
lower than the Revolving Credit Commitment fee rate for the Specified Existing Revolving Credit
Commitment; provided that, notwithstanding anything to the contrary in this Section 2.14(g) or
otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and
termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall
be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) assignments
and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans
shall be governed by the same assignment and participation provisions applicable to Revolving Credit
Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6.
No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving
Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit
Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended
Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving
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credit commitments from the Specified Existing Revolving Credit Commitments and from any other
Existing Revolving Credit Commitments (together with any other Extended Revolving Credit
Commitments so established on such date).
(iii)Any Lender (an “Extending Lender”) wishing to have all or a portion of its
Term Loans, Revolving Credit Commitments, Incremental Revolving Credit Commitment or Extended
Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension
Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as
applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date
specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments,
Incremental Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing
Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended
Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate
amount of Term Loans, Revolving Credit Commitments, Incremental Revolving Credit Commitment or
Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension
Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as
applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments,
Incremental Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing
Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or
Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term
Loans, Revolving Credit Commitments, Incremental Revolving Credit Commitment or Extended
Revolving Credit Commitment included in each such Extension Election. Notwithstanding the
conversion of any Existing Revolving Credit Commitment into an Extended Revolving Credit
Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other
Original Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in
respect of Letters of Credit under Section 3, except that the applicable Extension Amendment may
provide that the L/C Facility Maturity Date may be extended and the related obligations to issue Letters
of Credit may be continued so long as the Letter of Credit Issuers, as applicable, have consented to such
extensions in their sole discretion (it being understood that no consent of any other Lender shall be
required in connection with any such extension).
(iv)Extended Term Loans or Extended Revolving Credit Commitments, as
applicable, shall be established pursuant to an amendment (an “Extension Amendment”) to this
Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this
Section 2.14(g)(iv) and, notwithstanding anything to the contrary set forth in Section 13.1, shall not
require the consent of any Lender other than the Extending Lenders with respect to the Extended Term
Loans or Extended Revolving Credit Commitments, as applicable, established thereby) executed by the
Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall
provide for any tranche of Extended Term Loans or Extended Revolving Credit Commitments in an
aggregate principal amount that is less than $5,000,000. In addition to any terms and changes required or
permitted by Section 2.14(g)(i) or 2.14(g)(ii), each Extension Amendment (x) shall amend the scheduled
amortization payments pursuant to Section 2.5 or the applicable Joinder Agreement with respect to the
Existing Term Loan Class from which the Extended Term Loans were converted to reduce each
scheduled Repayment Amount for the Existing Term Loan Class in the same proportion as the amount of
Term Loans of the Existing Term Loan Class is to be converted pursuant to such Extension Amendment
(it being understood that the amount of any Repayment Amount payable with respect to any individual
Term Loan of such Existing Term Loan Class that is not an Extended Term Loan shall not be reduced as
a result thereof) and (y) may, but shall not be required to, impose additional requirements (not
inconsistent with the provisions of this Agreement in effect at such time) with respect to the final
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maturity and weighted average life to maturity of New Term Loans incurred following the date of such
Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14(g) and without
limiting the generality or applicability of Section 13.1 to any Section 2.14 Additional Amendments, any
Extension Amendment may provide for additional terms and/or additional amendments other than those
referred to or contemplated above (any such additional amendment, a “Section 2.14 Additional
Amendment”) to this Agreement and the other Credit Documents; provided that such Section 2.14
Additional Amendments are within the requirements of Section 2.14(g)(i) and do not become effective
prior to the time that such Section 2.14 Additional Amendments have been consented to (including,
without limitation, pursuant to (1) consents applicable to holders of New Term Loans or Extended
Revolving Credit Commitments provided for in any Joinder Agreement and (2) consents applicable to
holders of any Extended Term Loans or Extended Revolving Credit Commitments provided for in any
Extension Amendment) by such of the Lenders, Credit Parties and other parties (if any) as may be
required in order for such Section 2.14 Additional Amendments to become effective in accordance with
Section 13.1.
(v)Notwithstanding anything to the contrary contained in this Agreement, (A) on
any date on which any Existing Class is converted to extend the related scheduled maturity date(s) in
accordance with clauses (i) and/or (ii) above (an “Extension Date”), (I) in the case of the existing Term
Loans of each Extending Lender, the aggregate principal amount of such existing Term Loans shall be
deemed reduced by an amount equal to the aggregate principal amount of Extended Term Loans so
converted by such Lender on such date, and the Extended Term Loans shall be established as a separate
Class of Term Loans (together with any other Extended Term Loans so established on such date), and (II)
in the case of the Specified Existing Revolving Credit Commitments of each Extending Lender, the
aggregate principal amount of such Specified Existing Revolving Credit Commitments shall be deemed
reduced by an amount equal to the aggregate principal amount of Extended Revolving Credit
Commitments so converted by such Lender on such date, and such Extended Revolving Credit
Commitments shall be established as a separate Class of revolving credit commitments from the
Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit
Commitments (together with any other Extended Revolving Credit Commitments so established on such
date) and (B) if, on any Extension Date, any Loans of any Extending Lender are outstanding under the
applicable Specified Existing Revolving Credit Commitments, such Loans (and any related
participations) shall be deemed to be allocated as Extended Revolving Credit Loans (and related
participations) and Existing Revolving Credit Loans (and related participations) in the same proportion
as such Extending Lender’s Specified Existing Revolving Credit Commitments to Extended Revolving
Credit Commitments.
(vi)The Administrative Agent and the Lenders hereby consent to the consummation
of the transactions contemplated by this Section 2.14 (including, for the avoidance of doubt, payment of
any interest, fees or premium in respect of any Extended Term Loans and/or Extended Revolving Credit
Commitments on such terms as may be set forth in the relevant Extension Amendment) and hereby waive
the requirements of any provision of this Agreement (including, without limitation, any pro rata payment
or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such
extension or any other transaction contemplated by this Section 2.14.
2.15Permitted Debt Exchanges.
(a)Notwithstanding anything to the contrary contained in this Agreement, pursuant to one or
more offers (each, a “Permitted Debt Exchange Offer”) made from time to time by the Borrower to all
Lenders of a given Class, the Borrower may from time to time following the Closing Date consummate
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one or more exchanges of Term Loans for Permitted Other Indebtedness in the form of notes (such notes,
“Permitted Debt Exchange Notes,” and each such exchange a “Permitted Debt Exchange”), so long as
the following conditions are satisfied: (i) no Event of Default shall have occurred and be continuing at
the time the final offering document in respect of a Permitted Debt Exchange Offer is delivered to the
relevant Lenders, (ii) the aggregate principal amount (calculated on the face amount thereof) of Term
Loans exchanged shall equal no more than the aggregate principal amount (calculated on the face amount
thereof) of Permitted Debt Exchange Notes issued in exchange for such Term Loans; provided that the
aggregate principal amount of the Permitted Debt Exchange Notes may include accrued interest and
premium (if any) under the Term Loans exchanged and underwriting discounts, fees, commissions and
expenses in connection with the issuance of such Permitted Debt Exchange Notes, (iii) the aggregate
principal amount (calculated on the face amount thereof) of all Term Loans exchanged under each
applicable Class by the Borrower pursuant to any Permitted Debt Exchange shall automatically be
cancelled and retired by the Borrower on the date of the settlement thereof (and, if requested by the
Administrative Agent, any applicable exchanging Lender shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, or such other form as may be reasonably requested by the
Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest in
the Term Loans being exchanged pursuant to the Permitted Debt Exchange to the Borrower for
immediate cancellation), (iv) if the aggregate principal amount of all Term Loans of a given Class
(calculated on the face amount thereof) tendered by Lenders in respect of the relevant Permitted Debt
Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which
exceeds the principal amount thereof of the applicable Class actually held by it) shall exceed the
maximum aggregate principal amount of Term Loans of such Class offered to be exchanged by the
Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange Term
Loans subject to such Permitted Debt Exchange Offer tendered by such Lenders ratably up to such
maximum amount based on the respective principal amounts so tendered, (v) all documentation in respect
of such Permitted Debt Exchange shall be consistent with the foregoing, and all written communications
generally directed to the Lenders in connection therewith shall be in form and substance consistent with
the foregoing and made in consultation with the Borrower and the Auction Agent, and (vi) any applicable
Minimum Tender Condition shall be satisfied.
(b)With respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this
Section 2.15, (i) such Permitted Debt Exchanges (and the cancellation of the exchanged Term Loans in
connection therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes
of Section 5.1 or 5.2, and (ii) such Permitted Debt Exchange Offer shall be made for not less than
$5,000,000 in aggregate principal amount of Term Loans; provided that, subject to the foregoing
clause (ii), the Borrower may at its election specify as a condition (a “Minimum Tender Condition”) to
consummating any such Permitted Debt Exchange that a minimum amount (to be determined and
specified in the relevant Permitted Debt Exchange Offer in the Borrower’s discretion) of Term Loans of
any or all applicable Classes be tendered.
(c)In connection with each Permitted Debt Exchange, the Borrower and the Auction Agent
shall mutually agree to such procedures as may be necessary or advisable to accomplish the purposes of
this Section 2.15 and without conflict with Section 2.15(d); provided that the terms of any Permitted Debt
Exchange Offer shall provide that the date by which the relevant Lenders are required to indicate their
election to participate in such Permitted Debt Exchange shall be not less than a reasonable period (in the
discretion of the Borrower and the Auction Agent) of time following the date on which the Permitted
Debt Exchange Offer is made.
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(d)The Borrower shall be responsible for compliance with, and hereby agrees to comply
with, all applicable securities and other laws in connection with each Permitted Debt Exchange, it being
understood and agreed that (x) none of the Auction Agent, the Administrative Agent nor any Lender
assumes any responsibility in connection with the Borrower’s compliance with such laws in connection
with any Permitted Debt Exchange and (y) each Lender shall be solely responsible for its compliance with
any applicable “insider trading” laws and regulations to which such Lender may be subject under the
Securities Exchange Act.
2.16Defaulting Lenders.
(a)Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if
any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting
Lender, to the extent permitted by applicable Requirements of Law:
(i)Waivers and Amendments. Such Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set
forth in the definition of “Required Lenders” and Section 13.1.
(ii)Defaulting Lender Waterfall. Any payment of principal, interest, fees or other
amounts received by the Administrative Agent for the account of such Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise) or received by the
Administrative Agent from a Defaulting Lender pursuant to Section 13.8 shall be applied at such time or
times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts
owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a
pro rata basis of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or
Swingline Lender hereunder; third, to Cash Collateralize the Letter of Credit Issuer’s Fronting Exposure
with respect to such Defaulting Lender in accordance with Section 3.8; fourth, as the Borrower may
request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting
Lender has failed to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in
a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future
funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Letter of
Credit Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future
Letters of Credit issued under this Agreement, in accordance with Section 3.8; sixth, to the payment of
any amounts owing to the Borrower, the Lenders, the Swingline Lender or the Letter of Credit Issuer as a
result of any judgment of a court of competent jurisdiction obtained by the Borrower, any Lender, the
Swingline Lender or the Letter of Credit Issuer against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to such Defaulting
Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is
a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting
Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of
Credit were issued at a time when the conditions set forth in Section 7 were satisfied or waived, such
payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting
Lenders on a pro rata basis prior to being applied to the payment of any Loans of, and L/C Obligations
owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in
L/C Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the
Commitments hereunder without giving effect to Section 2.16(a)(iv). Any payments, prepayments or
other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a
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Defaulting Lender or to post Cash Collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid to
and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)Certain Fees.
(A)No Defaulting Lender shall be entitled to receive any fee payable under
Section 4 for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be
required to pay any such fee that otherwise would have been required to have been paid to that Defaulting
Lender).
(B)Each Defaulting Lender shall be entitled to receive Letter of Credit Fees
for any period during which that Lender is a Defaulting Lender only to the extent allocable to its
applicable percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral
pursuant to Section 3.8.
(C)With respect to any Letter of Credit Fee not required to be paid to any
Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each
Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with
respect to such Defaulting Lender’s participation in L/C Obligations that has been reallocated to such
Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Letter of Credit Issuer the amount of
any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Letter of
Credit’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining
amount of any such fee.
(iv)Reallocation of Applicable Percentages to Reduce Fronting Exposure. All or
any part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be
reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Credit
Commitment Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only
to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any
Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. Subject to Section 13.23,
no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against
a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of
a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such
reallocation.
(v)Cash Collateral, Repayment of Swingline Loans. If the reallocation described in
clause (a)(iv) above cannot, or can only partially, be effected, the Borrower shall (x) first, prepay
Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure and (y) second, Cash
Collateralize the Letter of Credit Issuers’ Fronting Exposure in accordance with the procedures set forth
in Section 3.8.
(b)Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline
Lender and the Letter of Credit Issuer agree in writing that a Lender is no longer a Defaulting Lender, the
Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in
such notice and subject to any conditions set forth therein (which may include arrangements with respect
to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of
outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may
determine to be necessary to cause the Revolving Credit Loans and funded and unfunded participations
in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with
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their Revolving Credit Commitment Percentages (without giving effect to Section 2.16(a)(iv)),
whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that
Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly
agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a
waiver or release of any claim of any party hereunder arising from that Lender’s having been a
Defaulting Lender.
2.17Additional Borrowers
(a)The Borrower may, at any time and from time to time, designate any Guarantor (other
than Holdings) organized in a State of the United States of America or the District of Columbia to be an
Additional Borrower by having such Additional Borrower execute a Borrower Joinder Agreement and
provide the Administrative Agent and each Lender with all reasonably requested documentation and
other information (which, in the case of each Lender, shall be requested through the Administrative
Agent) regarding the Additional Borrower requested in connection with applicable “know your
customer” and anti-money laundering rules and regulations, to the extent requested within three (3)
Business Days of the Administrative Agent being provided written notice of the Additional Borrower
designation (which the Administrative Agent shall promptly share with the Lenders). From and after such
designation, such Guarantor shall become a “Borrower” under the applicable Credit Facility for all
purposes of this Agreement and the other Credit Documents and will have the right to directly request
Loans in accordance with Article II hereof. The Borrower and the Administrative Agent shall be
authorized to amend this Agreement and the other Credit Documents to reflect the existence of more than
one Borrower hereunder and thereunder.
(b)The Borrower may, for accounting, tax or other purposes, designate any portion of any
Loan under a Credit Facility with one or more Additional Borrowers to be incurred by the Borrower or
one or more of such Additional Borrowers; provided that this Section 2.17(b) shall in no way limit the
obligations of such Additional Borrower under the Guarantee.
(c)At any time and from time to time, an Additional Borrower may resign as a Borrower
under any Credit Facility, so long as after such resignation, the Borrower remains a Borrower under such
Credit Facility or concurrently with such resignation, all Loans under such Credit Facility shall be repaid
in full and all Commitments thereunder shall be terminated.
Section 3.Letters of Credit
3.1Letters of Credit.
(a)Subject to and upon the terms and conditions herein set forth, at any time and from time
to time after the Closing Date and prior to the L/C Facility Maturity Date, (i) each Letter of Credit Issuer
agrees and (ii) the Administrative Agent agrees (including through its Affiliates) to arrange for a Support
Agreement Bank, through a guarantee, reimbursement or similar support agreement, in each case, to the
extent approved by the Borrower to the extent that such agreement would impose additional obligations
on the Borrower (each, an “LC Support Agreement”), in each case in reliance upon the agreements of
the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Closing Date
through the L/C Facility Maturity Date for the account of the Borrower (or, so long as the Borrower is
the primary obligors and signatories to the Letter of Credit Request, for the account of the Borrower or
any Restricted Subsidiary (other than the Borrower)) letters of credit (the “Letters of Credit” and each, a
“Letter of Credit”), which Letters of Credit shall not at any time exceed (i) the Letter of Credit Issuer’s
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Letter of Credit Commitment, and (ii) the L/C Sublimit, in such form as may be approved by the Letter of
Credit Issuer in its reasonable discretion.
(b)Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount
of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit
Commitment then in effect (or with respect to any Letter of Credit Issuer, exceed such Letter of Credit
Issuer’s Letter of Credit Commitment (ii) no Letter of Credit shall be issued the Stated Amount of which
would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance
thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) each Letter of Credit shall
have an expiration date occurring no later than one year after the date of issuance thereof (except as set
forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C
Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent, the
Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized or backstopped (in
the case of a backstop only, on terms reasonably satisfactory to such Letter of Credit Issuer), the
Revolving Credit Lenders; (iv) the Letter of Credit shall be denominated in Dollars; (v) no Letter of
Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of
Credit to have a Letter of Credit issued in its favor; and (vi) no Letter of Credit shall be issued by a Letter
of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent
stating that one or more applicable conditions contained in Section 6 (solely with respect to any Letter of
Credit issued on the Closing Date) or Section 7 shall not be satisfied to the extent required thereby until
such time as such Letter of Credit Issuer shall have received a written notice of (x) rescission of such
notice from the party or parties originally delivering such notice or (y) the waiver of such Default or
Event of Default in accordance with the provisions of Section 13.1 and (vii) each Letter of Credit shall be
a standby letter of credit unless otherwise agreed by the applicable Letter of Credit Issuer.
(c)Upon at least two Business Days’ prior written notice to the Administrative Agent and
the Letter of Credit Issuer (which notice the Administrative Agent shall promptly transmit to each of the
Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of
Credit Commitment in whole or in part; provided that, after giving effect to such termination or
reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment (or with
respect to a Letter of Credit Issuer, the Letters of Credit Outstanding with respect to Letters of Credit
issued by such Letter of Credit Issuer shall not exceed such Letter of Credit Issuer’s Letter of Credit
Commitment, unless otherwise agreed by such Letter of Credit Issuer and the Borrower).
(d)The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit
if:
(i)any order, judgment or decree of any Governmental Authority or arbitrator shall
by its terms enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law
applicable to such Letter of Credit Issuer or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over such Letter of Credit Issuer shall prohibit,
or request that such Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon such Letter of Credit Issuer with respect to such Letter
of Credit any restriction, reserve or capital requirement (in each case, for which such Letter of Credit
Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon
such Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which such Letter of Credit Issuer in good faith deems material to it;
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(ii)the issuance of such Letter of Credit would violate one or more policies of such
Letter of Credit Issuer applicable to letters of credit generally;
(iii)except as otherwise agreed by the Letter of Credit Issuer, such Letter of Credit is
in an initial Stated Amount less than $10,000;
(iv)such Letter of Credit is denominated in a currency other than Dollars;
(v)such Letter of Credit contains any provisions for automatic reinstatement of the
Stated Amount after any drawing thereunder; or
(vi)a default of any Revolving Credit Lender’s obligations to fund under Section 3.3
exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each
case, the Borrower has entered into arrangements reasonably satisfactory to the Letter of Credit Issuer to
eliminate such Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender or such risk has
been reallocated in accordance with Section 2.16.
(e)The Letter of Credit Issuer shall not increase the Stated Amount of any Letter of Credit if
the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its
amended form under the terms hereof.
(f)The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if
(A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.
(g)The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with
respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of
Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in
Section 12 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 12
included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the Letter of Credit Issuer.
3.2Letter of Credit Requests.
(a)Whenever the Borrower desires that a Letter of Credit be issued or amended, the
Borrower shall give the Administrative Agent and the Letter of Credit Issuer a Letter of Credit Request by
no later than 1:00 p.m. (New York City time) at least ten Business Days (or such other period as may be
agreed upon by the Borrower, the Administrative Agent and the Letter of Credit Issuer) prior to the
proposed date of issuance or amendment. Each Letter of Credit Request shall be executed by the
Borrower. Such Letter of Credit Request may be sent by facsimile, by United States mail, by overnight
courier, by electronic transmission using the system provided by the Letter of Credit Issuer, by personal
delivery or by any other means acceptable to the Letter of Credit Issuer. Each Letter of Credit request
shall be made to the applicable Letter of Credit Issuer (with a copy to the Administrative Agent) to issue
a Letter of Credit in principal amount equal to its then applicable ratable portion of Revolving Credit
Commitments.
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(b)In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit
Request shall specify in form and detail reasonably satisfactory to the Letter of Credit Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the Stated
Amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the identity of the
applicant; and (H) such other matters as the Letter of Credit Issuer may reasonably require. In the case of
a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Request shall
specify in form and detail reasonably satisfactory to the Letter of Credit Issuer (I) the Letter of Credit to
be amended; (II) the proposed date of amendment thereof (which shall be a Business Day); (III) the
nature of the proposed amendment; and (IV) such other matters as the Letter of Credit Issuer may
reasonably require. Additionally, the Borrower shall furnish to the Letter of Credit Issuer and the
Administrative Agent such other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the Letter of Credit Issuer or the
Administrative Agent may reasonably require.
(c)Unless the Letter of Credit Issuer has received written notice from any Revolving Credit
Lender, the Administrative Agent or any Credit Party, at least one Business Day prior to the requested
date of issuance or amendment of the Letter of Credit, that one or more applicable conditions contained
in Section 6 (solely with respect to any Letter of Credit issued on the Closing Date) or Section 7 shall not
then be satisfied to the extent required thereby, then, subject to the terms and conditions hereof, the
Letter of Credit Issuer shall, on the requested date, issue a Letter of Credit for the account of the
Borrower (or, so long as the Borrower are the primary obligors, for the account of the Borrower or a
Restricted Subsidiary) or enter into the applicable amendment, as the case may be, in each case in
accordance with each such Letter of Credit Issuer’s usual and customary business practices.
(d)If the Borrower so requests in any Letter of Credit Request, the Letter of Credit Issuer
shall agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Letter of
Credit Issuer to prevent any such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof and the
Borrower not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to
be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Letter of
Credit Issuer, the Borrower shall not be required to make a specific request to the Letter of Credit Issuer
for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be
deemed to have authorized (but may not require) the Letter of Credit Issuer to permit the extension of
such Letter of Credit at any time to an expiry date not later than the L/C Facility Maturity Date, unless
otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer; provided, however,
that the Letter of Credit Issuer shall not permit any such extension if (A) the Letter of Credit Issuer has
reasonably determined that it would not be permitted, or would have no obligation, at such time to issue
such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions
of Section 3.1(b) or otherwise), or (B) it has received written notice on or before the day that is seven
Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in Section 7 are not then satisfied, and
in each such case directing the Letter of Credit Issuer not to permit such extension.
(e)Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit
to an advising bank with respect thereto or to the beneficiary thereof, the Letter of Credit Issuer will also
deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit
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or amendment. On the first Business Day of each month, the Letter of Credit Issuer shall provide the
Administrative Agent a list of all Letters of Credit issued by it that are outstanding at such time.
(f)The making of each Letter of Credit Request shall be deemed to be a representation and
warranty by the Borrower that the Letter of Credit may be issued in accordance with, and will not violate
the requirements of, Section 3.1(b).
3.3Letter of Credit Participations.
(a)Immediately upon the issuance by the Letter of Credit Issuer of any Letter of Credit, (i)
in the case of a Letter of Credit that is not issued by a Support Agreement Bank, the Letter of Credit
Issuer shall be deemed to have sold and transferred to each Revolving Credit Lender and (ii) in the case of
a Letter of Credit that is issued by a Support Agreement Bank, the Administrative Agent shall be deemed
to have sold and transferred to each Revolving Credit Lender (each such Revolving Credit Lender
referred to in the foregoing clauses (i) and (ii), in its capacity under this Section 3.3, an “L/C
Participant”), and each such L/C Participant shall be deemed irrevocably and unconditionally to have
purchased and received from the Letter of Credit Issuer or the Administrative Agent, as applicable,
without recourse or warranty, an undivided interest and participation (each an “L/C Participation”), to
the extent of such L/C Participant’s Revolving Credit Commitment Percentage in each Letter of Credit,
each substitute therefor, each drawing made thereunder and the obligations of the Borrower under this
Agreement with respect thereto, and any security therefor or guaranty pertaining thereto; provided that the
Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the L/C
Participants as provided in Section 4.1(b) and the L/C Participants shall have no right to receive any
portion of any Fronting Fees.
(b)In determining whether to pay under any Letter of Credit, the relevant Letter of Credit
Issuer shall have no obligation relative to the L/C Participants other than to confirm that any documents
required to be delivered under such Letter of Credit have been delivered and that they appear to comply
on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by
the relevant Letter of Credit Issuer under or in connection with any Letter of Credit issued by it, if taken
or omitted in the absence of gross negligence or willful misconduct as determined in the final
non-appealable judgment of a court of competent jurisdiction, shall not create for the Letter of Credit
Issuer any resulting liability. In furtherance of the foregoing and without limiting the generality thereof,
the parties agree that, with respect to documents presented that appear on their face to be in substantial
compliance with the terms of a Letter of Credit, a Letter of Credit Issuer may, in its sole discretion, either
accept and make payment upon such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such Letter of Credit, and any
such acceptance or refusal shall be deemed not to constitute gross negligence or willful misconduct.
(c)In the event that the Letter of Credit Issuer makes any payment under any Letter of
Credit issued by it and the Borrower shall not have repaid such amount in full to the respective Letter of
Credit Issuer through the Administrative Agent pursuant to Section 3.4(a), the Administrative Agent shall
promptly notify each L/C Participant of such failure, and each L/C Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of the Letter of Credit Issuer, the amount
of such L/C Participant’s Revolving Credit Commitment Percentage of such unreimbursed payment in
Dollars and in immediately available funds. If and to the extent such L/C Participant shall not have so
made its Revolving Credit Commitment Percentage of the amount of such payment available to the
Administrative Agent for the account of the Letter of Credit Issuer, such L/C Participant agrees to pay to
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the Administrative Agent for the account of the Letter of Credit Issuer, forthwith on demand, such
amount, together with interest thereon for each day from such date until the date such amount is paid to
the Administrative Agent for the account of the Letter of Credit Issuer at a rate per annum equal to the
Overnight Rate from time to time then in effect, plus any administrative, processing or similar fees that
are reasonably and customarily charged by the Letter of Credit Issuer in connection with the foregoing.
The failure of any L/C Participant to make available to the Administrative Agent for the account of the
Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under any Letter of
Credit shall not relieve any other L/C Participant of its obligation hereunder to make available to the
Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment
Percentage of any payment under such Letter of Credit on the date required, as specified above, but no L/
C Participant shall be responsible for the failure of any other L/C Participant to make available to the
Administrative Agent such other L/C Participant’s Revolving Credit Commitment Percentage of any such
payment.
(d)Whenever the Administrative Agent receives a payment in respect of an unpaid
reimbursement obligation as to which the Administrative Agent has received for the account of the Letter
of Credit Issuer any payments from the L/C Participants pursuant to clause (c) above, the Administrative
Agent shall promptly pay to each L/C Participant that has paid its Revolving Credit Commitment
Percentage of such reimbursement obligation, in Dollars and in immediately available funds, an amount
equal to such L/C Participant’s share (based upon the proportionate aggregate amount originally funded
by such L/C Participant to the aggregate amount funded by all L/C Participants) of the amount so paid in
respect of such reimbursement obligation and interest thereon accruing after the purchase of the
respective L/C Participations at the Overnight Rate.
(e)The obligations of the L/C Participants to make payments to the Administrative Agent for
the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not
subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement under all circumstances.
(f)If any payment received by the Administrative Agent for the account of the Letter of
Credit Issuer pursuant to Section 3.3(c) is required to be returned, each Lender shall pay to the
Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment
Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. The obligations of the Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this Agreement.
3.4Agreement to Repay Letter of Credit Drawings.
(a)The Borrower hereby agrees to reimburse (i) the Letter of Credit Issuer, by making
payment with respect to any drawing under any Letter of Credit in the same currency in which such
drawing was made unless the Letter of Credit Issuer (at its option) shall have specified in the notice of
drawing that it will require reimbursement in Dollars and (ii) the Administrative Agent (or its Affiliate)
for any payment pursuant to an LC Support Agreement to any Support Agreement Bank (a “Support
Agreement Payment”), by making payment with respect to any such payment in the same currency in
which such payment was made under the LC Support Agreement unless the Administrative Agent (at its
option) shall have specified in the notice of drawing that it will require reimbursement in Dollars. Any
such reimbursement shall be made by the Borrower to the Administrative Agent in immediately available
funds for any LC Support Agreement Payment or any payment or disbursement made by the Letter of
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Credit Issuer under any Letter of Credit (each such amount so paid until reimbursed, an “Unpaid
Drawing”) no later than the date that is one Business Day after the date on which the Borrower receives
written notice of such payment or disbursement (the “Reimbursement Date”), with interest on the LC
Support Agreement Payment or the amount so paid or disbursed by the Letter of Credit Issuer, to the
extent not reimbursed prior to 5:00 p.m. (New York City time) on the Reimbursement Date, from the
Reimbursement Date to the date the LC Support Agreement Payment is reimbursed or the Letter of
Credit Issuer is reimbursed, as applicable, therefor at a rate per annum that shall at all times be the
Applicable Margin for ABR Loans that are Revolving Credit Loans plus the ABR as in effect from time
to time, provided that, notwithstanding anything contained in this Agreement to the contrary, (i) unless
the Borrower has notified the Administrative Agent and the relevant Letter of Credit Issuer prior to 11:00
a.m. (New York City time) on the Reimbursement Date that the Borrower intends to reimburse the
relevant Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of
Loans, the Borrower shall be deemed to have given a Notice of Borrowing requesting that, with respect
to Letters of Credit, the Revolving Credit Lenders make Revolving Credit Loans (which shall be
denominated in Dollars and which shall be ABR Loans) on the Reimbursement Date in the amount of
such drawing and (ii) the Administrative Agent shall promptly notify each L/C Participant of such
drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each L/C
Participant shall be irrevocably obligated to make a Revolving Credit Loan to the Borrower in Dollars in
the manner deemed to have been requested in the amount of its Revolving Credit Commitment
Percentage of the applicable Unpaid Drawing by 2:00 p.m. (New York City time) on such
Reimbursement Date by making the amount of such Revolving Credit Loan available to the
Administrative Agent. Such Revolving Credit Loans shall be made without regard to the Minimum
Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans
solely for purpose of reimbursing the Letter of Credit Issuer for the related Unpaid Drawing or
reimbursing the Administrative Agent (or its Affiliate) for the LC Support Agreement Payment, as
applicable. In the event that the Borrower fails to Cash Collateralize any Letter of Credit that is
outstanding on the L/C Facility Maturity Date, the full amount of the Letters of Credit Outstanding in
respect of such Letter of Credit shall be deemed to be an Unpaid Drawing subject to the provisions of
this Section 3.4 except that the Letter of Credit Issuer or the Administrative Agent, as applicable, shall
hold the proceeds received from the L/C Participants as contemplated above as cash collateral for such
Letter of Credit to reimburse any Unpaid Drawing under such Letter of Credit and shall use such proceeds
first, to reimburse itself for any Unpaid Drawings made in respect of such Letter of Credit following the
L/C Facility Maturity Date, second, to the extent such Letter of Credit expires or is returned undrawn
while any such cash collateral remains, to the repayment of obligations in respect of any Revolving Credit
Loans that have not been paid at such time and third, to the Borrower or as otherwise directed by a court
of competent jurisdiction. Nothing in this Section 3.4(a) shall affect the Borrower’s obligation to repay
all outstanding Revolving Credit Loans when due in accordance with the terms of this Agreement.
(b)The obligation of the Borrower to reimburse the Letter of Credit Issuer for each drawing
under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i)any lack of validity or enforceability of this Agreement or any of the other Credit
Documents;
(ii)the existence of any claim, set-off, defense or other right that the Borrower may
have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit
(or any Person for whom any such transferee may be acting), the Administrative Agent, the Letter of
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Credit Issuer, any Lender or other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated transactions (including any underlying
transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii)any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under such Letter of Credit;
(iv)waiver by the Letter of Credit Issuer of any requirement that exists for the Letter
of Credit Issuer’s protection and not the protection of the Borrower (or other Restricted Subsidiary) or any
waiver by the Letter of Credit Issuer which does not in fact materially prejudice the Borrower (or the
Borrower or other Restricted Subsidiary);
(v)any payment made by the Letter of Credit Issuer in respect of an otherwise
complying item presented after the date specified as the expiration date of, or the date by which
documents must be received under, such Letter of Credit if presentation after such date is authorized by
the Uniform Commercial Code, the ISP or the UCP, as applicable;
(vi)any payment by the Letter of Credit Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit;
or any payment made by the Letter of Credit Issuer under such Letter of Credit to any Person purporting
to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding under the Bankruptcy Code;
(vii)honor of a demand for payment presented electronically even if such Letter of
Credit requires that demand be in the form of a draft;
(viii)any adverse change in any relevant exchange rates or in the relevant currency
markets generally; or
(ix)any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense available to, or
a discharge of, the Borrower (or other Restricted Subsidiary) (other than the defense of payment or
performance).
(c)The Borrower shall not be obligated to reimburse the Letter of Credit Issuer for any
wrongful payment made by the Letter of Credit Issuer under the Letter of Credit issued by it as a result of
acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit
Issuer as determined in the final non-appealable judgment of a court of competent jurisdiction.
3.5Increased Costs. If, after the Closing Date, any Change in Law shall (x) impose, modify
or make applicable any reserve, deposit, capital adequacy, liquidity or similar requirement against letters
of credit issued by the Letter of Credit Issuer, or any L/C Participant’s L/C Participation therein or (y)
impose on the Letter of Credit Issuer or any L/C Participant any other conditions or costs affecting its
obligations under this Agreement in respect of Letters of Credit or L/C Participations therein or any
Letter of Credit or such L/C Participant’s L/C Participation therein (other than (1) Indemnified Taxes or
(2) Excluded Taxes) on its loans, loan principal, letters of credits, commitments or other obligations, or
its deposits, reserves, other liabilities or capital attributable thereto, and the result of any of the foregoing
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is to increase the actual cost to the Letter of Credit Issuer or such L/C Participant of issuing, maintaining
or participating in any Letter of Credit or to reduce the actual amount of any sum received or receivable
by the Letter of Credit Issuer or such L/C Participant hereunder in respect of Letters of Credit or L/C
Participations therein, then, promptly after receipt of written demand to the Borrower by the Letter of
Credit Issuer or such L/C Participant, as the case may be (a copy of which notice shall be sent by the
Letter of Credit Issuer or such L/C Participant to the Administrative Agent (with respect to a Letter of
Credit issued on account of the Borrower (or other Restricted Subsidiary))), the Borrower shall pay to the
Letter of Credit Issuer or such L/C Participant such actual additional amount or amounts as will
compensate the Letter of Credit Issuer or such L/C Participant for such increased cost or reduction, it
being understood and agreed, however, that the Letter of Credit Issuer or an L/C Participant shall not be
entitled to such compensation as a result of such Person’s compliance with, or pursuant to any request or
directive to comply with, any law, rule or regulation as in effect on the Closing Date. A certificate
submitted to the Borrower by the relevant Letter of Credit Issuer or an L/C Participant, as the case may
be (a copy of which certificate shall be sent by the Letter of Credit Issuer or such L/C Participant to the
Administrative Agent) setting forth in reasonable detail the basis for the determination of such actual
additional amount or amounts necessary to compensate the Letter of Credit Issuer or such L/C Participant
as aforesaid, shall be conclusive and binding on the Borrower absent clearly demonstrable error. The
obligations of the Borrower under this Section 3.5 shall survive the payment in full of the Obligations
and the termination of this Agreement.
3.6New or Successor Letter of Credit Issuer.
(a)The Letter of Credit Issuer may resign as the Letter of Credit Issuer upon 60 days’ prior
written notice to the Administrative Agent, the Lenders and the Borrower. The Borrower may replace
any Letter of Credit Issuer for any reason upon written notice to the Administrative Agent and such
Letter of Credit Issuer. The Borrower may add Letter of Credit Issuers at any time upon notice to the
Administrative Agent. If the Letter of Credit Issuer shall resign or be replaced, or if the Borrower shall
decide to add a new Letter of Credit Issuer under this Agreement, then the Borrower may appoint from
among the Lenders a successor issuer of Letters of Credit or a new Letter of Credit Issuer, as the case
may be, or, with the consent of the Administrative Agent (such consent not to be unreasonably withheld
or delayed), another successor or new issuer of Letters of Credit, whereupon such successor issuer
accepting such appointment shall succeed to the rights, powers and duties of the replaced or resigning
Letter of Credit Issuer under this Agreement and the other Credit Documents, or such new issuer of
Letters of Credit accepting such appointment shall be granted the rights, powers and duties of the Letter
of Credit Issuer hereunder, and the term Letter of Credit Issuer shall mean such successor or such new
issuer of Letters of Credit effective upon such appointment. At the time such resignation or replacement
shall become effective, the Borrower shall pay to the resigning or replaced Letter of Credit Issuer all
accrued and unpaid fees applicable to the Letters of Credit pursuant to Sections 4.1(b) and 4.1(d). The
acceptance of any appointment as the Letter of Credit Issuer hereunder whether as a successor issuer or
new issuer of Letters of Credit in accordance with this Agreement, shall be evidenced by an agreement
entered into by such new or successor issuer of Letters of Credit, in a form reasonably satisfactory to the
Borrower and the Administrative Agent and, from and after the effective date of such agreement, such
new or successor issuer of Letters of Credit shall become the Letter of Credit Issuer hereunder. After the
resignation or replacement of the Letter of Credit Issuer hereunder, the resigning or replaced Letter of
Credit Issuer shall remain a party hereto and shall continue to have all the rights and obligations of the
Letter of Credit Issuer under this Agreement and the other Credit Documents with respect to Letters of
Credit issued by it prior to such resignation or replacement but shall not be required to issue additional
Letters of Credit. In connection with any resignation or replacement pursuant to this clause (a) (but, in
case of any such resignation, only to the extent that a successor issuer of Letters of Credit shall have been
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appointed), either (i) the Borrower, the resigning or replaced Letter of Credit Issuer and the successor
issuer of Letters of Credit shall arrange to have any outstanding Letters of Credit issued by the resigning
or replaced Letter of Credit Issuer replaced with Letters of Credit issued by the successor issuer of
Letters of Credit or (ii) the Borrower shall cause the successor issuer of Letters of Credit, if such
successor issuer is reasonably satisfactory to the replaced or resigning Letter of Credit Issuer, to issue
“back-stop” Letters of Credit naming the resigning or replaced Letter of Credit Issuer as beneficiary for
each outstanding Letter of Credit issued by the resigning or replaced Letter of Credit Issuer, which new
Letters of Credit shall be denominated in the same currency as, and shall have a face amount equal to, the
Letters of Credit being back-stopped and the sole requirement for drawing on such new Letters of Credit
shall be a drawing on the corresponding back-stopped Letters of Credit. After any resigning or replaced
Letter of Credit Issuer’s resignation or replacement as Letter of Credit Issuer, the provisions of this
Agreement relating to the Letter of Credit Issuer shall inure to its benefit as to any actions taken or
omitted to be taken by it (A) while it was the Letter of Credit Issuer under this Agreement or (B) at any
time with respect to Letters of Credit issued by such Letter of Credit Issuer.
(b)To the extent there are, at the time of any resignation or replacement as set forth in clause
(a) above, any outstanding Letters of Credit, nothing herein shall be deemed to impact or impair any
rights and obligations of any of the parties hereto with respect to such outstanding Letters of Credit
(including, without limitation, any obligations related to the payment of Fees or the reimbursement or
funding of amounts drawn), except that the Borrower, the resigning or replaced Letter of Credit Issuer and
the successor issuer of Letters of Credit shall have the obligations regarding outstanding Letters of Credit
described in clause (a) above.
3.7Role of Letter of Credit Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the Letter of Credit Issuer shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the Letter of Credit Issuer, the
Administrative Agent, any of their respective Affiliates nor any correspondent, participant or assignee of
the Letter of Credit Issuer shall be liable to any Lender for (i) any action taken or omitted in the absence
of gross negligence or willful misconduct as determined in the final non-appealable judgment of a court
of competent jurisdiction or (ii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrower’s
pursuit of such rights and remedies as it may have against the beneficiary or transferee at law or under
any other agreement. None of the Letter of Credit Issuer, the Administrative Agent, any of their
respective Affiliates nor any correspondent, participant or assignee of the Letter of Credit Issuer shall be
liable or responsible for any of the matters described in Section 3.3(b); provided that anything in such
Section to the contrary notwithstanding, the Borrower may have a claim against a Letter of Credit Issuer,
and a Letter of Credit Issuer may be liable to the Borrower, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by such Letter of Credit Issuer’s willful misconduct or gross negligence or such
Letter of Credit Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter
of Credit in each case as determined in the final non-appealable judgment of a court of competent
jurisdiction. In furtherance and not in limitation of the foregoing, the Letter of Credit Issuer may accept
documents that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the Letter of Credit Issuer shall not be
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responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason.
The Letter of Credit Issuer may send a Letter of Credit or conduct any communication to or from
the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (SWIFT) message
or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
3.8Cash Collateral.
(a)Certain Credit Support Events. Upon the written request of the Administrative Agent or
the Letter of Credit Issuer, if (i) as of the L/C Facility Maturity Date, any L/C Obligation for any reason
remains outstanding, (ii) the Borrower shall be required to provide Cash Collateral pursuant to
Section 11.13 or (iii) the provisions of Section 2.16(a)(v) are in effect, the Borrower shall immediately
(in the case of clause (ii) above) or within one Business Day (in all other cases), following any written
request by the Administrative Agent or the Letter of Credit Issuer, provide Cash Collateral in an amount
not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral
provided pursuant to clause (iii) above, after giving effect to Section 2.16(a)(iv) and any Cash Collateral
provided by the Defaulting Lender).
(b)Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting
Lender, such Defaulting Lender, hereby grant to (and subject to the control of) the Administrative Agent,
for the benefit of the Administrative Agent, the Letter of Credit Issuer and the Revolving Credit Lenders,
and agree to maintain, a first priority security interest in all such cash, deposit accounts and all balances
therein as described in Section 3.8(a), and all other property so provided as collateral pursuant hereto,
and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may
be applied pursuant to Section 3.8(c). If at any time the Administrative Agent determines that Cash
Collateral is subject to any right or claim of any Person other than the Administrative Agent or the Letter
of Credit Issuer as herein provided, other than Permitted Liens, or that the total amount of such Cash
Collateral is less than the Minimum Collateral Amount (including, without limitation, as a result of
exchange rate fluctuations), the Borrower will, promptly upon written demand by the Administrative
Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to
eliminate such deficiency. Cash Collateral shall be maintained in blocked, interest-bearing deposit
accounts with the Administrative Agent. The Borrower shall pay on demand therefor from time to time
all customary account opening, activity and other administrative fees and charges in connection with the
maintenance and disbursement of Cash Collateral.
(c)Application. Notwithstanding anything to the contrary contained in this Agreement,
Cash Collateral provided under any of this Section 3.8 or Sections 2.16, 5.2 or 11.13 in respect of Letters
of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund
participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest
accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to
any other application of such property as may otherwise be provided for herein.
(d)Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting
Exposure or to secure other obligations shall be released promptly following (i) the elimination of the
applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of
Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance
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with Section 13.6(b)(ii)) or there is no longer existing an Event of Default) or (ii) the determination by
the Administrative Agent and the Letter of Credit Issuer that there exists excess Cash Collateral.
3.9Applicability of ISP and UCP. Unless otherwise expressly agreed by the Letter of Credit
Issuer and the Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each
standby Letter of Credit and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce at the time of issuance, shall
apply to each commercial Letter of Credit. Notwithstanding the foregoing, the Letter of Credit Issuer
shall not be responsible to the Borrower for, and the Letter of Credit Issuer’s rights and remedies against
the Borrower shall not be impaired by, any action or inaction of the Letter of Credit Issuer required or
permitted under any law, order or practice that is required or permitted to be applied to any Letter of
Credit or this Agreement, including the applicable law or any order of a jurisdiction where the Letter of
Credit Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the
decisions, opinions, practice statements or official commentary of the ICC Banking Commission, the
Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA),
or the Institute of International Banking Law & Practice, whether or not any Letter of Credit Issuer
chooses such law or practice.
3.10Conflict with Issuer Documents. In the event of any conflict between the terms hereof
and the terms of any Issuer Document, the terms hereof shall control and any grant of security interest in
any Issuer Documents shall be void.
3.11Letters of Credit Issued for Restricted Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, the
Borrower or a Restricted Subsidiary, the Borrower shall be obligated to reimburse the Letter of Credit
Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby
acknowledges that the issuance of Letters of Credit for the account of the Borrower or any other
Restricted Subsidiaries inures to the benefit of the Borrower and that the Borrower’s business derives
substantial benefits from the businesses of the Borrower and the other Restricted Subsidiaries.
3.12Provisions Related to Extended Revolving Credit Commitments. If the Letter of Credit
Expiration Date in respect of any tranche of Revolving Credit Commitments occurs prior to the expiry
date of any Letter of Credit, then (i) if consented to by the Letter of Credit Issuer which issued such
Letter of Credit, if one or more other tranches of Revolving Credit Commitments in respect of which the
Letter of Credit Expiration Date shall not have so occurred are then in effect, such Letters of Credit for
which consent has been obtained shall automatically be deemed to have been issued (including for
purposes of the obligations of the Revolving Credit Lenders to purchase participations therein and to
make Revolving Credit Loans and payments in respect thereof pursuant to Sections 3.3 and 3.4) under
(and ratably participated in by Lenders pursuant to) the Revolving Credit Commitments in respect of
such non-terminating tranches up to an aggregate amount not to exceed the aggregate amount of the
unutilized Revolving Credit Commitments thereunder at such time (it being understood that no partial
face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant
to immediately preceding clause (i), the Borrower shall Cash Collateralize any such Letter of Credit in
accordance with Section 3.8. Upon the maturity date of any tranche of Revolving Credit Commitments,
the sublimit for Letters of Credit may be reduced as agreed between the Letter of Credit Issuer and the
Borrower, without the consent of any other Person.
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Section 4. Fees
4.1Fees.
(a)Without duplication, the Borrower agrees to pay to the Administrative Agent in Dollars,
for the account of each Revolving Credit Lender (in each case pro rata according to the respective
Revolving Credit Commitments of all such Lenders), a commitment fee (the “Commitment Fee”) for
each day from the Closing Date to the Revolving Credit Termination Date. Each Commitment Fee shall
be payable (x) quarterly in arrears on the last Business Day of each fiscal quarter of the Borrower (for the
quarterly period (or portion thereof) ended on such day for which no payment has been received) and
(y) on the Revolving Credit Termination Date (for the period ended on such date for which no payment
has been received pursuant to clause (x) above), and shall be computed for each day during such period at
a rate per annum equal to the Commitment Fee Rate in effect on such day on the Available Commitment
in effect on such day.
(b)Without duplication, the Borrower agrees to pay to the Administrative Agent in Dollars
for the account of the Revolving Credit Lenders pro rata on the basis of their respective Letter of Credit
Exposure, a fee in respect of each Letter of Credit issued on the Borrower’s or any of the other Restricted
Subsidiaries’ behalf (the “Letter of Credit Fee”), for the period from the date of issuance of such Letter
of Credit to the termination date of such Letter of Credit computed at the per annum rate for each day
equal to the Applicable Margin for Benchmark Rate Revolving Credit Loans. Except as provided below,
such Letter of Credit Fees shall be due and payable (x) quarterly in arrears on the last Business Day of
each fiscal quarter of the Borrower and (y) on the date upon which the Total Revolving Credit
Commitment terminates and the Letters of Credit Outstanding shall have been reduced to zero.
(c)Without duplication, the Borrower agrees to pay to the Administrative Agent in Dollars,
for its own account, administrative agent fees as have been previously agreed in writing or as may be
agreed in writing from time to time.
(d)Without duplication, the Borrower agrees to pay to the Letter of Credit Issuer a fronting
fee in Dollars in respect of each Letter of Credit issued by it to the Borrower (the “Fronting Fee”) (i)
with respect to each commercial Letter of credit, equal to 0.125% of the amount of such Letter of Credit
or such other amount to be agreed in writing between the Borrower and such Letter of Credit Issuer and
(ii) with respect to each standby Letter of Credit, for the period from the date of issuance of such Letter
of Credit to the termination date of such Letter of Credit, computed at the rate for each day equal to
0.125% on the average daily Stated Amount of such Letter of Credit (or at such other rate per annum as
agreed in writing between the Borrower and the Letter of Credit Issuer). Such Fronting Fees shall be due
and payable (x) quarterly in arrears on the last Business Day of each fiscal quarter of the Borrower and
(y) on the date upon which the Total Revolving Credit Commitment terminates and the Letters of Credit
Outstanding shall have been reduced to zero.
(e)Without duplication, the Borrower shall pay to each Letter of Credit Issuer, as
appropriate, on demand, such Letter of Credit Issuer’s other customary fees at then prevailing rates,
without duplication of fees otherwise payable hereunder (including all per annum fees), charges and
expenses of such Letter of Credit Issuer in respect of the application for, and the issuance, negotiation,
acceptance, amendment, transfer and payment of, each Letter of Credit or otherwise payable pursuant to
the application and related documentation under which such Letter of Credit is issued.
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(f)During the period commencing on the Closing Date and ending on, and including, the
Delayed Draw Term Loan Commitment Termination Date, the Borrower agrees to pay to the
Administrative Agent, for the account of each Delayed Draw Term Loan Lender with an outstanding
Delayed Draw Term Loan Commitment, a ticking fee equal to 1.00% per annum of the average daily
unused amount of such Delayed Draw Term Loan Lender’s Delayed Draw Term Loan Commitments in
effect during such period. Ticking fees that have accrued pursuant to this Section 4.1(f) to the last day of
March, June, September, and December of each year (and, with respect to the payment to be made on the
Delayed Draw Term Loan Commitment Termination Date, ticking fees that have accrued to such date)
shall be payable in arrears on the last day of March, June, September, and December of each year and on
the Delayed Draw Term Loan Commitment Termination Date, with such first payment being due on
March 31, 2025; provided that no such ticking fee shall accrue on the Delayed Draw Term Loan
Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. All ticking fees
shall be computed on the basis of a year of three hundred sixty (360) days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last day).
(g)Notwithstanding the foregoing, the Borrower shall not be obligated to pay any amounts
to any Defaulting Lender pursuant to this Section 4.1, except to the extent provided in Section
2.16(a)(iii).
4.2Voluntary Reduction of Revolving Credit Commitments and Delayed Draw Term Loan
Commitments. Upon at least two Business Days’ prior written notice to the Administrative Agent at the
Administrative Agent’s Office (which notice the Administrative Agent shall promptly transmit to each of
the Lenders), the Borrower has the right, without premium or penalty, on any day, permanently to
terminate or reduce the Delayed Draw Term Loan Commitments and/or the Revolving Credit
Commitments, as applicable, in whole or in part; provided that (a) any such reduction shall apply
proportionately and permanently to reduce the Delayed Draw Term Loan Commitments and/or the
Revolving Credit Commitment, as applicable, of each of the Lenders of any applicable Class, except that
(i) notwithstanding the foregoing, in connection with the establishment on any date of any Extended
Revolving Credit Commitments pursuant to Section 2.14(g), the Revolving Credit Commitments of any
one or more Lenders providing any such Extended Revolving Credit Commitments on such date shall be
reduced in an amount equal to the amount of Revolving Credit Commitments so extended on such date
(provided that (x) after giving effect to any such reduction and to the repayment of any Revolving Credit
Loans made on such date, the Revolving Credit Exposure of any such Lender does not exceed the
Revolving Credit Commitment thereof and (y) for the avoidance of doubt, any such repayment of
Revolving Credit Loans contemplated by the preceding clause shall be made in compliance with the
requirements of Section 5.3(a) with respect to the ratable allocation of payments hereunder, with such
allocation being determined after giving effect to any conversion pursuant to Section 2.14(g) of
Revolving Credit Commitments and Revolving Credit Loans into Extended Revolving Credit
Commitments and Extended Revolving Credit Loans pursuant to Section 2.14(g) prior to any reduction
being made to the Revolving Credit Commitment of any other Lender) and (ii) the Borrower may at its
election permanently reduce the Revolving Credit Commitment of a Defaulting Lender to $0 without
affecting the Revolving Credit Commitments of any other Lender, (b) any partial reduction pursuant to
this Section 4.2 shall be in the amount of at least $5,000,000, and (c) after giving effect to such
termination or reduction and to any prepayments of the Loans made on the date thereof in accordance
with this Agreement, the aggregate amount of the Lenders’ Revolving Credit Exposures shall not exceed
the Total Revolving Credit Commitment and the aggregate amount of the Lenders’ Revolving Credit
Exposures in respect of any Class shall not exceed the aggregate Revolving Credit Commitment of such
Class.
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4.3Mandatory Termination of Commitments.
(a)The Initial Term Loan Commitments shall terminate on the Closing Date upon the
Borrowing of the Initial Term Loans. The Amendment No. 1 Incremental Term Loan Commitments shall
terminate on the Amendment No. 1 Effective Date upon the Borrowing of the Amendment No. 1
Incremental Term Loans. The Amendment No. 3 Incremental Term Loan Commitments shall
terminate on the Amendment No. 3 Effective Date upon the Borrowing of the Amendment No. 3
Incremental Term Loans.
(b)Unless previously terminated or extended, the Delayed Draw Term Loan Commitments
shall terminate on the Delayed Draw Term Loan Commitment Termination Date and the Delayed Draw
Term Loan Commitments of each Lender shall be reduced by the aggregate principal amount of Delayed
Draw Term Loans funded by such Lender.
(c)[Reserved].
(d)The Revolving Credit Commitment shall terminate at 5:00 p.m. (New York City time) on
the Revolving Credit Maturity Date.
(e)The Swingline Commitment shall terminate at 5:00 p.m. (New York City time) one
Business Day prior to the Swingline Maturity Date.
(f)The New Loan Commitment for any Series shall, unless otherwise provided in the
applicable Joinder Agreement, terminate at 5:00 p.m. (New York City time) on the Increased Amount
Date for such Series.
Section 5. Payments
5.1Voluntary Prepayments.
(a)The Borrower has the right to prepay Loans, including Term Loans and Revolving Credit
Loans, as applicable, in each case, other than as set forth in Section 5.1(b), without premium or penalty,
in whole or in part from time to time on the following terms and conditions: (1) the Borrower shall give
the Administrative Agent at the Administrative Agent’s Office written notice of its intent to make such
prepayment, the amount of such prepayment and (in the case of Benchmark Rate Loans) the specific
Borrowing(s) pursuant to which made, which notice shall be given by the Borrower no later than 12:00
noon (New York City time) (i) in the case of Benchmark Rate Loans, three Business Days prior to, (ii) in
the case of ABR Loans (other than Swingline Loans), one Business Day prior to the date of such
prepayment and shall promptly be transmitted by the Administrative Agent to each of the Lenders and
(iii) in the case of Swingline Loans, on the date of such prepayment and shall be transmitted by the
Administrative Agent to each of the Lenders or the Swingline Lender, as the case may be; (2) each partial
prepayment of (i) any Borrowing of Benchmark Rate Loans shall be in a minimum amount of $1,000,000
and in multiples of $1,000,000 in excess thereof, (ii) any ABR Loans (other than Swingline Loans) shall
be in a minimum amount of $1,000,000 and in multiples of $1,000,000 in excess thereof and (iii)
Swingline Loans shall be in a minimum of $500,000 and in multiples of $100,000 in excess thereof,
provided that no partial prepayment of Benchmark Rate Loans made pursuant to a single Borrowing shall
reduce the outstanding Benchmark Rate Loans made pursuant to such Borrowing to an amount less than
the applicable Minimum Borrowing Amount for such Benchmark Rate Loans, and (3) in the case of any
prepayment of Benchmark Rate Loans pursuant to this Section 5.1 on any day other than the last day of
an Interest Period applicable thereto, the Borrower shall, promptly after receipt of a written request by
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any applicable Lender (which request shall set forth in reasonable detail the basis for requesting such
amount), pay to the Administrative Agent for the account of such Lender any amounts required pursuant
to Section 2.11. Each prepayment in respect of any Term Loans pursuant to this Section 5.1 shall be
(a) applied to the Class or Classes of Term Loans as the Borrower may specify and (b) applied to reduce
Term Loan Repayment Amounts, any New Term Loan Repayment Amounts, and, subject to
Section 2.14(g), Extended Term Loan Repayment Amounts, as the case may be, in each case, in such
order as the Borrower may specify; provided that, if the Borrower does not specify the application of
prepayments in respect of any Term Loans, such prepayments shall be applied ratably to reduce the
Initial Term Loans, Delayed Draw Term Loans and New Term Loans in direct order of maturity.
(b)In the event that, prior to the first anniversary of the Closing Date, the Borrower makes
any prepayment of Initial Term Loans or Delayed Draw Term Loans pursuant to Section 5.1(a), Section
5.2(a)(i), Section 13.7 or the Loans are accelerated pursuant to Section 11, the Borrower shall pay to the
Administrative Agent, for the ratable account of each of the applicable Lenders, a prepayment premium
of (i) 1.00% of the principal amount of the Initial Term Loans or Delayed Draw Term Loans, as
applicable, being so prepaid or accelerated, and (ii) thereafter, 0.00%; provided that any prepayment made
in connection with a Change of Control, IPO or Transformative Transaction shall not be subject to this
clause (b) and not require any prepayment premium.
5.2Mandatory Prepayments.
(a)Term Loan Prepayments.
(i)On each occasion that a Prepayment Event occurs, the Borrower shall, within
three Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other
than one covered by clause (iii) below) and within ten Business Days after the occurrence of any other
Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the
Deferred Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans
with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment
Event; provided that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event or
Casualty Event, in each case solely to the extent with respect to any Collateral, the Borrower may use a
portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness (and with such
prepaid or repurchased Permitted Other Indebtedness permanently extinguished) with a Lien on the
Collateral ranking equal with the Liens securing the Obligations to the extent any applicable Permitted
Other Indebtedness Document requires the issuer of such Permitted Other Indebtedness to prepay or make
an offer to purchase such Permitted Other Indebtedness with the proceeds of such Prepayment Event, in
each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds multiplied
by (y) a fraction, the numerator of which is the outstanding principal amount of the Permitted Other
Indebtedness with a Lien on the Collateral ranking equal with the Liens securing the Obligations and with
respect to which such a requirement to prepay or make an offer to purchase exists and the denominator of
which is the sum of the outstanding principal amount of such Permitted Other Indebtedness and the
outstanding principal amount of Term Loans.
(ii)Not later than ten Business Days after the date on which financial statements are
required to be delivered pursuant to Section 9.1(a) for any fiscal year (commencing with the fiscal year
ending December 31, 2025), the Borrower shall prepay (or cause to be prepaid), in accordance with
clause (c) below, Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such
fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the
Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to
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giving effect thereto but at the election of the Borrower, giving effect to any prepayment described in
clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test
Period ended prior to such prepayment date is less than or equal to 4.50 to 1.00 but greater than 4.00 to
1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the
Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to
giving effect thereto but, at the election of the Borrower, giving effect to any prepayment described in
clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test
Period ended prior to such prepayment date is less than or equal to 4.00 to 1.00, minus, at the election of
the Borrower (y) (i) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 or
Section 13.6 or, voluntary prepayments of Permitted Other Indebtedness or other Indebtedness secured
by a Lien on the Collateral ranking equal with the Liens securing the Obligations (in each case, including
purchases of such Indebtedness by Intermediate Holdings and its Subsidiaries at, equal to or below par,
in which case the amount of voluntary prepayments shall be deemed equal to the face amount of such
Indebtedness being retired) during such fiscal year subject to the immediately succeeding proviso or after
such fiscal year and prior to the date of the required Excess Cash Flow payment (provided that, at the
election of the Borrower, any such voluntary prepayments in respect of the Term Loans that have not
been applied to reduce the payments which may be due from time to time pursuant to this Section
5.2(a)(ii) shall be carried over to the immediately succeeding periods, and may reduce the payments due
from time to time pursuant to this Section 5.2(a)(ii) during such subsequent periods, until such time as
such voluntary prepayments reduce such payments which may be due from time to time) and (ii) to the
extent accompanied by permanent optional reductions of Revolving Credit Commitments, Extended
Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable, Revolving
Credit Loans, Swingline Loans, Extended Revolving Credit Loans, Incremental Revolving Credit Loans,
in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt
(other than Revolving Credit Loans) or from any Cure Amount; provided that, prior to the making of
such Excess Cash Flow prepayment, any such prepayment amount shall, in each case without duplication
of any such reduction from the definition of “Excess Cash Flow” by such amounts, be reduced on a
dollar-for-dollar basis for such fiscal year by the aggregate amount of clauses (ii)(b), (f), (g), (h) and (j)
of the definition of “Excess Cash Flow” for such fiscal year); provided, further, that prepayments under
this Section 5.2(a)(ii) shall only be required if the required prepayment is in excess of the greater of
(x) $4,000,000 and (y) 10% of Consolidated EBITDA (calculated on a Pro Forma Basis), in the aggregate
and solely to the amount of such required prepayment in excess thereof.
(iii)On each occasion that Permitted Other Indebtedness is issued or incurred
pursuant to Section 10.1(u), the Borrower shall within three Business Days of receipt of the Net Cash
Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below, Term Loans
with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of
Permitted Other Indebtedness.
(iv)Notwithstanding any other provisions of this Section 5.2, (A) to the extent that
any or all of the Net Cash Proceeds of any Prepayment Event by a Foreign Subsidiary giving rise to a
prepayment pursuant to clause (i) above (a “Foreign Subsidiary Prepayment Event”) or Excess Cash
Flow are prohibited or delayed by any Requirements of Law from being repatriated to the Credit Parties,
an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be
required to be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may
be, but only so long as the applicable Requirements of Law will not permit repatriation to the Credit
Parties (the Credit Parties hereby agreeing to cause the applicable Subsidiary to promptly take all
commercially reasonable actions available under the applicable Requirements of Law to permit
repatriation and/or minimize any such delays in order to make the relevant prepayment), and once a
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repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the
applicable Requirements of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will
be promptly (and in any event not later than ten Business Days after such repatriation is permitted)
applied (net of any taxes that would be payable or reserved against if such amounts were actually
repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and
(ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that
repatriation of any of or all the Net Cash Proceeds of any Foreign Subsidiary Prepayment Event or
Excess Cash Flow would have a material adverse tax consequence with respect to such Net Cash
Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so
affected may be retained by the applicable Subsidiary; provided that in the case of this clause (B), on or
before the date on which any Net Cash Proceeds from any Foreign Subsidiary Prepayment Event so
retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to
clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months
after the date an amount equal to such Excess Cash Flow would have so required to be applied to
prepayments pursuant to clause (ii) above unless previously actually repatriated in which case such
repatriated, Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans
pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or
Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash
Flow had been received by the Credit Parties rather than such Subsidiary, less the amount of any taxes
that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had
been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if
received by such Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the
repayment of Indebtedness of a Subsidiary that is not a Credit Party. For the avoidance of doubt, nothing
in this Agreement, including Section 5 shall be construed to require any Subsidiary to repatriate cash.
(b)Repayment of Revolving Credit Loans. If on any date the aggregate amount of the
Lenders’ Revolving Credit Exposures in respect of any Class of Revolving Loans for any reason exceeds
100% of the Revolving Credit Commitment of such Class then in effect, the Borrower shall forthwith
repay on such date Revolving Loans of such Class in an amount equal to such excess. If after giving
effect to the prepayment of all outstanding Revolving Loans of such Class, the Revolving Credit
Exposures of such Class exceed the Revolving Credit Commitment of such Class then in effect, the
Borrower shall Cash Collateralize the Letters of Credit Outstanding in relation to such Class to the extent
of such excess.
(c)Application to Repayment Amounts. Subject to Section 5.2(f), each prepayment of Term
Loans required by Section 5.2(a)(i) or (ii) shall be allocated pro rata among the Initial Term Loans, the
Delayed Draw Term Loans, the New Term Loans and the Extended Term Loans based on the applicable
remaining Repayment Amounts due thereunder and shall be applied within each Class of Term Loans in
respect of such Term Loans in direct order of maturity thereof; provided that the Borrower may allocate a
lesser proportion of such prepayment in its sole discretion to any later maturing Class or tranche of Term
Loans (including New Term Loans and/or Extended Term Loans, but excluding the Initial Term Loans
and the Delayed Draw Term Loans) than to any Class or tranche of Term Loans maturing on any earlier
date. Subject to Section 5.2(f), with respect to each such prepayment, the Borrower will, not later than
the date specified in Section 5.2(a) for making such prepayment, give the Administrative Agent written
notice which shall include a calculation of the amount of such prepayment to be applied to each Class of
Term Loans requesting that the Administrative Agent provide notice of such prepayment to each Initial
Term Loan Lender, Delayed Draw Term Loan Lender, New Term Loan Lender or Lender of Extended
Term Loans, as applicable.
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(d)Application to Term Loans. With respect to each prepayment of Term Loans required by
Section 5.2(a), the Borrower may, if applicable, designate the Types of Loans that are to be prepaid and
the specific Borrowing(s) pursuant to which made; provided, that if any Lender has provided a Rejection
Notice in compliance with Section 5.2(f), such prepayment shall be applied with respect to the Term
Loans to be prepaid on a pro rata basis across all outstanding Types of such Term Loans in proportion to
the percentage of such outstanding Term Loans to be prepaid represented by each such Class. In the
absence of a Rejection Notice or a designation by the Borrower as described in the preceding sentence,
the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion
with a view, but no obligation, to minimize breakage costs owing under Section 2.11.
(e)Application to Revolving Credit Loans. With respect to each prepayment of Revolving
Credit Loans, the Borrower may designate (i) the Types of Loans that are to be prepaid and the specific
Borrowing(s) pursuant to which made and (ii) the Revolving Loans to be prepaid; provided that (y) each
prepayment of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans; and
(z) notwithstanding the provisions of the preceding clause (y), no prepayment of Revolving Loans shall
be applied to the Revolving Credit Loans of any Defaulting Lender unless otherwise agreed in writing by
the Borrower. In the absence of a designation by the Borrower as described in the preceding sentence,
the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion
with a view, but no obligation, to minimize breakage costs owing under Section 2.11.
(f)Rejection Right. The Borrower shall notify the Administrative Agent in writing of any
mandatory prepayment of Term Loans required to be made pursuant to Section 5.2(a) at least three
Business Days prior to the date of such prepayment. Each such notice shall specify the date of such
prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The
Administrative Agent will promptly notify each Lender holding Term Loans of the contents of such
prepayment notice and of such Lender’s pro rata share of the prepayment. Each Term Loan Lender may
reject all (but not less than all) of its pro rata share of any mandatory prepayment other than any such
mandatory prepayment with respect to a Debt Incurrence Prepayment Event under Section 5.2(a)(i) or
Permitted Other Indebtedness under Section 5.2(a)(iii) (such declined amounts, the “Declined
Proceeds”) of Term Loans required to be made pursuant to Section 5.2(a) by providing written notice
(each, a “Rejection Notice”) to the Administrative Agent no later than 5:00 p.m. (New York City time)
two Business Days after the date of such Lender’s receipt of notice from the Administrative Agent
regarding such prepayment. If a Lender fails to deliver a Rejection Notice to the Administrative Agent
within the time frame specified above, any such failure will be deemed an acceptance of the total amount
of such mandatory prepayment of Term Loans. Any Declined Proceeds remaining shall thereafter be
retained by the Borrower.
5.3Method and Place of Payment.
(a)Except as otherwise specifically provided herein, all payments under this Agreement
shall be made by the Borrower, without set-off, counterclaim or deduction of any kind, to the
Administrative Agent for the ratable account of the Lenders entitled thereto (or, in the case of the
Swingline Loans to the Swingline Lender) or the Letter of Credit Issuer entitled thereto, as the case may
be, not later than 12:00 noon (New York City time), in each case, on the date when due and shall be made
in immediately available funds at the Administrative Agent’s Office or at such other office as the
Administrative Agent shall specify for such purpose by notice to the Borrower (or in the case of the
Swingline Loans, at such office as the Swingline Lender shall specify for such purpose by Notice to the
Borrower), it being understood that written or facsimile notice by the Borrower to the Administrative
Agent to make a payment from the funds in the Borrower’s account(s) at the Administrative Agent’s
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Office shall constitute the making of such payment to the extent of such funds held in such account. All
repayments or prepayments of any Loans (whether of principal, interest or otherwise) hereunder shall be
made in the currency in which such Loans are denominated and all other payments under each Credit
Document shall, unless otherwise specified in such Credit Document, be made in Dollars. The
Administrative Agent will thereafter cause to be distributed on the same day (if payment was actually
received by the Administrative Agent prior to 12:00 noon (New York City time) or, otherwise, on the
next Business Day in the Administrative Agent’s sole discretion) like funds relating to the payment of
principal or interest or Fees ratably to the Lenders entitled thereto.
(b)Any payments under this Agreement that are made later than 12:00 noon (New York City
time) may be deemed to have been made on the next succeeding Business Day in the Administrative
Agent’s sole discretion for purposes of calculating interest thereon (or, in the case of the Swingline
Loans, at the Swingline Lender’s sole discretion). Except as otherwise provided herein, whenever any
payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect immediately prior to such
extension.
5.4Net Payments.
(a)Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i)Any and all payments by or on account of any obligation of any Credit Parties
hereunder or under any other Credit Document shall, except as required by applicable laws, be made free
and clear of and without reduction or withholding for any Taxes.
(ii)If any Withholding Agent shall be required by applicable law (as determined in
the good faith discretion of such Withholding Agent) to withhold or deduct any Taxes from any payment,
then (A) such Withholding Agent shall be entitled to withhold or make such deductions as are reasonably
determined by such Withholding Agent to be required by applicable law, (B) such Withholding Agent
shall timely pay the full amount withheld or deducted to the relevant Governmental Authority, and (C) to
the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable
by the applicable Credit Party shall be increased as necessary so that after any required withholding or
deductions have been made (including withholding or deductions applicable to additional sums payable
under this Section 5.4) each Lender (or, in the case of a payment to the Administrative Agent for its own
account, the Administrative Agent) receives an amount equal to the sum it would have received had no
such withholding or deductions been made.
(b)Payment of Other Taxes by the Credit Parties. Without limiting or duplicating the
provisions of subsection (a) above, the Credit Parties shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law or timely reimburse the Administrative Agent
or any Lender for the payment of any Other Taxes.
(c)Indemnification by the Credit Parties. Without limiting or duplicating the provisions of
subsection (a) or (b) above, the Credit Parties shall indemnify the Administrative Agent and each Lender,
and shall make payment in respect thereof within 15 days after demand therefor, for the full amount of
Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts
payable under this Section 5.4) payable or paid by the Administrative Agent or such Lender, or required
to be withheld or deducted from a payment to the Administrative Agent or such Lender, as the case may
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be, and any reasonable expenses arising therefrom or with respect thereto whether or not such
Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of any such payment or liability (along with a written statement setting
forth in reasonable detail the basis and calculation of such amounts) delivered to the Borrower by a
Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error. If the Borrower reasonably believes that
any such Indemnified Taxes were not correctly or legally asserted, the Administrative Agent and/or each
affected Lender will use reasonable efforts to cooperate with the Borrower in pursuing a refund of such
Indemnified Taxes so long as such efforts would not, in the sole determination of the Administrative
Agent or affected Lender, result in any additional costs, expenses or risks or be otherwise
disadvantageous to it.
(d)Evidence of Payments. As soon as practicable after any payment of Taxes by any Credit
Party or the Administrative Agent to a Governmental Authority as provided in this Section 5.4, such
Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of any return required by laws to
report such payment or other evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e)Status of Lenders and Tax Documentation.
(i)Each Lender shall deliver to the Borrower and to the Administrative Agent, at
such time or times reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the Borrower or the
Administrative Agent, as the case may be, to determine (A) whether or not any payments made hereunder
or under any other Credit Document are subject to backup withholding or information reporting
requirements, (B) if applicable, the required rate of withholding or deduction and (C) such Lender’s
entitlement to any available exemption from, or reduction of, applicable Taxes in respect of any
payments to be made to such Lender by any Credit Party pursuant to any Credit Document or otherwise
to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction.
Notwithstanding anything to the contrary in the preceding sentence, the completion, execution and
submission of such documentation (other than such documentation set forth in Sections 5.4(e)(ii)(A),
(B)(1), (B)(2), (B)(3), (B)(4), and (C) below) shall not be required if in such Lender’s or the
Administrative Agent’s reasonable judgment such completion, execution or submission would subject
such Lender or the Administrative Agent to any material unreimbursed cost or expense or would
materially prejudice the legal or commercial position of such Lender or the Administrative Agent. Any
documentation and information required to be delivered by a Lender pursuant to this Section 5.4(e)
(including any specific documentation set forth in subsection (ii) below) shall be delivered by such
Lender (i) on or prior to the Closing Date (or on or prior to the date it becomes a party to this
Agreement), (ii) on or before any date on which such documentation expires or becomes obsolete or
invalid, (iii) after the occurrence of any change in the Lender’s circumstances requiring a change in the
most recent documentation previously delivered by it to the Borrower and the Administrative Agent, and
(iv) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent,
and each such Lender shall promptly notify in writing the Borrower and the Administrative Agent if such
Lender is no longer legally eligible to provide any documentation previously provided.
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(ii)Without limiting the generality of the foregoing:
(A)any Lender that is a “United States person” within the meaning of
Section 7701(a)(30) of the Code (a “U.S. Lender”) shall deliver to the Borrower and the Administrative
Agent executed originals or copies of Internal Revenue Service Form W-9 (or any successor form
thereto) or such other documentation or information prescribed by applicable laws or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative
Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or
information reporting requirements;
(B)each Non-U.S. Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of U.S. federal withholding tax with respect to any payments
hereunder or under any other Credit Document shall deliver to the Borrower and the Administrative
Agent (in such number of copies as shall be requested by the recipient) whichever of the following is
applicable:
(1)executed originals or copies of Internal Revenue Service Form
W-8BEN or Form W-8BEN-E (or any applicable successor form) claiming eligibility for benefits of an
income tax treaty to which the United States is a party;
(2)executed originals or copies of Internal Revenue Service Form
W-8ECI (or any successor form thereto);
(3)in the case of a Non-U.S. Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate, substantially in the
form of Exhibit I-1 (a “Non-Bank Tax Certificate”), to the effect that such Non-U.S. Lender is not (A) a
“bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10-percent shareholder” of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” related to the Borrower described in Section 881(c)(3)(C) of the Code, and that no payments
under any Credit Document are effectively connected with such Non-U.S. Lender’s conduct of a United
States trade or business and (y) executed originals or copies of Internal Revenue Service Form W-8BEN
or Form W-8BEN-E (or any applicable successor form);
(4)where such Lender is a partnership (for U.S. federal income tax
purposes) or otherwise not a beneficial owner (e.g., where such Lender has sold a participation), Internal
Revenue Service Form W-8IMY (or any successor form thereto), and to the extent necessary,
accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN,
Internal Revenue Service Form W 8BEN-E, a Non-Bank Tax Certificate (substantially in the form of
Exhibit I-2 or Exhibit I-3, as applicable), Internal Revenue Service Form W-9, and/or other certification
documents from each beneficial owner, as applicable (provided that, if the Non-U.S. Lender is a
partnership, not a participating Lender and one or more beneficial direct or indirect partners of such
Lender are claiming the portfolio interest exemption, the Non-Bank Tax Certificate(s) (substantially in
the form of Exhibit I-4) may be provided by the Non-U.S. Lender on behalf of the direct or indirect
partner(s)); or
(5)executed originals or copies of any other form prescribed by
applicable laws as a basis for claiming exemption from or a reduction in U.S. federal withholding tax
together with such supplementary documentation as may be prescribed by applicable laws to permit the
Borrower or the Administrative Agent to determine the withholding or deduction required to be made;
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(C)each Lender and the Administrative Agent shall deliver to the Borrower
and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably
requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower
and the Administrative Agent to comply with their obligations under FATCA, to determine whether such
Lender or Administrative Agent has complied with such Lender or Administrative Agent’s obligations
under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for
purposes of this clause (C), “FATCA” shall include any amendments made to FATCA after the date of
this Agreement; and
(D)if the Administrative Agent is a “United States person” (as defined in
Section 7701(a)(30) of the Code), it shall provide the Borrower on or prior to the date that it becomes a
party to this Agreement (or from time to time thereafter upon the reasonable request of the Borrower)
with two duly completed copies of Internal Revenue Service Form W-9 with respect to fees received on
its own behalf, certifying that it is exempt from federal backup withholding. If the Administrative Agent
is not a “United States person” (as defined in Section 7701(a)(30) of the Code), it shall provide, on or
prior to the date that it becomes a party to this Agreement (and from time to time thereafter upon the
reasonable request for the Borrower), (1) executed originals or copies of Internal Revenue Service Form
W-8ECI, with respect to any amounts payable to the Administrative Agent for its own account and any
other documentation prescribed by applicable law that would allow the Borrower to make such payments
without deduction or withholding of any U.S. federal withholding Taxes, and (2) executed originals or
copies of United States Internal Revenue Service Form W-8IMY certifying on Part I and Part VI of such
Form W-8IMY that it is either (a) a “qualified intermediary” assuming primary withholding
responsibility under Chapters 3 and 4 of the Code and primary Form 1099 reporting and backup
withholding responsibility for payments it receives for the accounts of others, or (b) a U.S. branch that has
agreed to be treated as a U.S. person for United States federal withholding tax purposes with respect to
payments received by it from the Borrower and that the payments it receives for the account of others are
not effectively connected with the conduct of a trade or business in the United States, and that it is using
such form as evidence of its agreement with the Borrower to be treated as a U.S. person with respect to
such payments (and the Borrower and the Administrative Agent agree to so treat the Administrative
Agent as a U.S. person with respect to such payments as contemplated by Treasury Regulations Section
1.1441-1(b)(2)(iv)(A)). The Administrative Agent shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide the certification described in the prior sentence.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete
or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower
and the Administrative Agent in writing of its legal inability to do so.
(f)Treatment of Certain Refunds. If the Administrative Agent or any Lender determines, in
its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes as to
which it has been indemnified by any Credit Party or with respect to which any Credit Party has paid
additional amounts pursuant to this Section 5.4, the Administrative Agent or such Lender (as applicable)
shall promptly pay to the Borrower an amount equal to such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by the Credit Parties under this Section 5.4 with respect to
the Indemnified Taxes giving rise to such refund), net of all out-of-pocket expenses (including any
Taxes) incurred by the Administrative Agent or such Lender, as the case may be, and without interest
(other than any interest paid by the relevant Governmental Authority with respect to such refund);
provided that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay
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the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such Governmental Authority.
In such event, the Administrative Agent or such Lender, as the case may be, shall, at the Borrower’s
request, provide the Borrower with a copy of any notice of assessment or other evidence of the
requirement to repay such refund received from the relevant taxing authority (provided that the
Administrative Agent or such Lender may delete any information therein that it deems confidential).
Notwithstanding anything to the contrary in this paragraph (f), in no event will the Administrative Agent
or any Lender be required to pay any amount to an indemnifying party pursuant to this paragraph (f) the
payment of which would place the Administrative Agent or any Lender in a less favorable net after-Tax
position than the Administrative Agent or any Lender would have been in if the Tax subject to
indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and
the indemnification payments or additional amounts with respect to such Tax had never been paid. This
subsection shall not be construed to require the Administrative Agent or any Lender to make available its
Tax returns (or any other information relating to its Taxes that it deems confidential) to any Credit Party
or any other Person.
(g)For the avoidance of doubt, for purposes of this Section 5.4, the term “Lender” includes
any Letter of Credit Issuer and the term “applicable law” includes FATCA.
(h)Each party’s obligations under this Section 5.4 shall survive the resignation or
replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender,
the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under
the Credit Documents.
5.5Computations of Interest and Fees.
(a)Except as provided in the next succeeding sentence, interest on Benchmark Rate Loans
shall be calculated on the basis of a 360-day year for the actual days elapsed. Interest on ABR Loans shall
be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed.
(b)Fees and the average daily Stated Amount of Letters of Credit shall be calculated on the
basis of a 360-day year for the actual days elapsed.
5.6Limit on Rate of Interest.
(a)No Payment Shall Exceed Lawful Rate. Notwithstanding any other term of this
Agreement, the Borrower shall not be obliged to pay any interest or other amounts under or in connection
with this Agreement or otherwise in respect of the Obligations in excess of the amount or rate permitted
under or consistent with any applicable law, rule or regulation.
(b)Payment at Highest Lawful Rate. If the Borrower is not obliged to make a payment that
it would otherwise be required to make, as a result of Section 5.6(a), the Borrower shall make such
payment to the maximum extent permitted by or consistent with applicable laws, rules and regulations.
(c)Adjustment if Any Payment Exceeds Lawful Rate. If any provision of this Agreement or
any of the other Credit Documents would obligate the Borrower to make any payment of interest or other
amount payable to any Lender in an amount or calculated at a rate that would be prohibited by any
applicable law, rule or regulation, then notwithstanding such provision, such amount or rate shall be
deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the
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case may be, as would not be so prohibited by law, such adjustment to be effected, to the extent
necessary, by reducing the amount or rate of interest required to be paid by the Borrower to the affected
Lender under Section 2.8; provided that to the extent lawful, the interest or other amounts that would
have been payable but were not payable as a result of the operation of this Section 5.6 shall be cumulated
and the interest payable to such Lender in respect of other Loans or periods shall be increased (but not
above such maximum amount or rate of interest therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by
such Lender.
Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if
any Lender shall have received from the Borrower an amount in excess of the maximum permitted by any
applicable law, rule or regulation, then the Borrower shall be entitled, by notice in writing to the
Administrative Agent, to obtain reimbursement from that Lender in an amount equal to such excess, and
pending such reimbursement, such amount shall be deemed to be an amount payable by that Lender to
the Borrower.
Section 6. Conditions Precedent to Initial Borrowing
The initial Borrowing under this Agreement is subject to the satisfaction of the following
conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent:
6.1Credit Documents.
(a)The Administrative Agent (or its counsel) shall have received:
(i)this Agreement, executed and delivered by a duly Authorized Officer of the
Parent Guarantors and the Borrower;
(ii)the Guarantee, executed and delivered by a duly Authorized Officer of Holdings
and each other Guarantor;
(iii)the Pledge Agreement, executed and delivered by a duly Authorized Officer of
Holdings and each other Credit Party; and
(iv)the Security Agreement, executed and delivered by a duly Authorized Officer of
Holdings and each other Credit Party.
(b)All outstanding Equity Interests, regardless of the form of the Equity Interests, in
Intermediate Holdings and all other Restricted Subsidiaries, in each case required to be pledged as of the
Closing Date pursuant to the Pledge Agreement shall have been pledged pursuant thereto.
(c)The Collateral Agent shall have received the certificates representing the Equity Interests
in and of Intermediate Holdings and all other Restricted Subsidiaries, in each case to the extent required
to be delivered under the Security Documents and pledged under the Security Documents, in each case,
as of the Closing Date to the extent certificated, accompanied by instruments of transfer and undated
stock powers or allonges endorsed in blank.
(d)All Uniform Commercial Code financing statements required to be filed, registered or
recorded to create the Liens intended to be created by any Security Document and perfect such Liens to
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the extent required by such Security Document shall have been delivered to the Collateral Agent, and
shall be in proper form, for filing, registration or recording.
6.2Legal Opinions. The Administrative Agent (or its counsel) shall have received the
executed legal opinions, in customary form, of (i) Kirkland & Ellis LLP, special New York counsel to the
Credit Parties and (ii) Taft Stettinius & Hollister LLP, Ohio counsel to the Credit Parties. The Borrower
hereby instructs such counsel to deliver such legal opinion.
6.3Closing Certificates. The Administrative Agent (or its counsel) shall have received a
certificate of each of the Parent Guarantors, the Borrower and the other Guarantors, dated as of the
Closing Date, substantially in the form of Exhibit E, with appropriate insertions, executed by any
Authorized Officers of the Borrower and each Guarantor, as applicable, and attaching the documents
referred to in Section 6.4.
6.4Authorization of Proceedings of the Borrower and the Guarantors; Corporate Documents.
The Administrative Agent (or its counsel) shall have received (i) a copy of the resolutions of the board
of directors (or a duly authorized committee thereof) or managing member, as applicable, of the Parent
Guarantors, the Borrower and each other Guarantor authorizing (a) the execution, delivery and
performance of the Credit Documents (and any agreements relating thereto) to which it is a party and
(b) in the case of the Borrower, the extensions of credit contemplated hereunder, (ii) the Certificate of
Incorporation and By-Laws, Certificate of Formation and Operating Agreement or other comparable
organizational documents, as applicable, of the Parent Guarantors, the Borrower and each other
Guarantor, and (iii) signature and incumbency certificates (or other comparable documents evidencing
the same) of the Authorized Officers of the Parent Guarantors, the Borrower and each other Guarantor
executing the Credit Documents to which it is a party.
6.5Fees. The Agents and Lenders shall have received, substantially simultaneously with the
funding of the Initial Term Loans, fees required to be paid under the Fee Letter and, to the extent
invoiced at least three Business Days prior to the Closing Date (except as otherwise reasonably agreed by
the Borrower) expenses in the amounts previously agreed in writing to be paid on the Closing Date
(which amounts may, at the Borrower’s option, be offset against the proceeds of the Initial Term Loans).
6.6Solvency Certificate. On the Closing Date, the Administrative Agent (or its counsel)
shall have received a certificate from the Chief Executive Officer, the President, the Chief Financial
Officer, the Treasurer, the Vice President-Finance or any other senior financial officer of Intermediate
Holdings to the effect that after giving effect to the consummation of the Transactions, Intermediate
Holdings and the Restricted Subsidiaries on a consolidated basis are Solvent.
6.7Notice of Borrowing. The Administrative Agent (or its counsel) shall have received a
Notice of Borrowing meeting the requirements of Section 2.3 with respect to the Initial Term Loans or
any Revolving Loans to be borrowed on the Closing Date.
6.8Transactions. Substantially concurrently with the Borrowing of the Initial Term Loans,
the Acquisition shall have been consummated in all material respects in accordance with the terms of the
Acquisition Agreement.
6.9[Reserved].
6.10Representations and Warranties. The Specified Acquisition Agreement Representations
and the Specified Representations shall be true and correct in all material respects; provided, that to the
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extent any Specified Representation is qualified by or subject to a “material adverse effect”, “material
adverse change” or similar term or qualification, the definition thereof shall be the definition of
“Company Group Material Adverse Effect” (as defined in the Acquisition Agreement) for purposes of the
making or deemed making of such Specified Representation on or as of the Closing Date (or any date
prior thereto).
6.11Patriot Act. The Administrative Agent shall have received at least three Business Days
prior to the Closing Date such documentation and information as is reasonably requested in writing at
least ten Business Days prior to the Closing Date by the Administrative Agent about the Credit Parties to
the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including, without limitation, the Patriot Act. No later than three
Business Days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the
Beneficial Ownership Regulation, then the Borrower shall have delivered to the Administrative Agent a
Beneficial Ownership Certification in relation to the Borrower to the extent requested in writing at least
10 Business Days prior to the Closing Date.
6.12No Material Adverse Effect. Since November 8, 2024, there shall not have been any
Company Group Material Adverse Effect (as defined in the Acquisition Agreement).
6.13Refinancing. Substantially simultaneously with the Borrowing of the Initial Term Loans,
the Existing Debt Facilities Refinancing shall be consummated.
6.14Equity Investment. Substantially simultaneously with the Borrowing of the Initial Term
Loans, the Equity Investment shall have been consummated.
For purposes of determining compliance with the conditions specified in this Section 6 on the Closing
Date, each Lender that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be consented to or
approved by, or acceptable or satisfactory to, a Lender unless the Administrative Agent shall have
received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Notwithstanding anything to the contrary contained herein, neither (a) the making or accuracy of any
representation under Section 8, the making or accuracy of any such representation or any supplement
thereto (other than the Specified Representations and/or the Specified Acquisition Agreement
Representations) nor (b) the absence of any breach of any covenant hereunder or the absence of any
occurrence of any Default or Event of Default hereunder, shall constitute a condition precedent to the
availability and/or initial Borrowings on the Closing Date, and the only conditions (express or implied) to
the availability of the Credit Facilities on the Closing Date are those expressly set forth in this Section 6,
and such conditions shall be subject in all respects to the provisions of this Section 6 (it being understood
that, to the extent any security interest in any Collateral is not or cannot be provided and/or perfected on
the Closing Date (other than the perfection of the security interests in the certificated equity interests of
Intermediate Holdings and each of its direct, wholly-owned, domestic Restricted Subsidiaries (provided
that, to the extent that Intermediate Holdings has used commercially reasonable efforts to procure the
delivery of such certificated equity interests), together with undated powers executed in blank, prior to
the Closing Date, certificated equity interests of the Company and the subsidiaries of the Company will
only be required to be delivered on the Closing Date pursuant to the terms set forth above if such
certificated equity interests, together with undated powers executed in blank, are received from the
Company prior to the Closing Date) and any assets pursuant to which a lien may be perfected by the
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filing of a financing statement under the Uniform Commercial Code) after Intermediate Holdings’ use of
commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or
perfection of a security interest in such Collateral shall not funding and/or availability of the Credit
Facilities on the Closing Date, but instead shall be required to be delivered after the Closing Date
pursuant to arrangements and timing to be mutually agreed by the Administrative Agent and Intermediate
Holdings, in each case, acting reasonably (but, in any event, not earlier than 90 days after the Closing
Date (or, in the case of stock certificates, 10 Business Days)).
For avoidance of doubt, nothing under this Agreement or the Security Documents shall be construed as a
requirement to enter into any source code escrow arrangement, an obligation to register or apply for the
registration of or obtain any issuance of Intellectual Property in any jurisdiction, or an obligation to make
any filings or take any actions to record or to perfect the Agents’ lien on or security interest in (I) any
Intellectual Property other than UCC filings and the filing of documents effecting the recordation of
security interests in the United States Copyright Office and United States Patent and Trademark Office or
(II) any Intellectual Property subsisting outside of the United States.
Section 7. Conditions Precedent to All Credit Events after the Closing Date.
After the Closing Date, subject to, in the case of Section 7.1 and Section 7.3 below, the terms of
Section 1.12(c), to the extent the proceeds of any Loan are being used to finance a Limited Condition
Transaction, the agreement of each Lender to make any Loan requested to be made by it (excluding
Revolving Credit Loans required to be made by the Revolving Credit Lenders in respect of Unpaid
Drawings pursuant to Sections 3.3 and 3.4) and the obligation of the Letter of Credit Issuer to issue
Letters of Credit on any date is subject to the satisfaction (or waiver) of the following conditions
precedent:
7.1No Default; Representations and Warranties. At the time of each Credit Event and also
after giving effect thereto (other than any Credit Event on the Closing Date or made pursuant to
Section 2.14 or 2.15 (which shall be subject to the applicable terms of Section 6, 2.14 or 2.15, as
applicable)) (a) no Default or Event of Default shall have occurred and be continuing and (b) all
representations and warranties made by any Credit Party contained herein or in the other Credit
Documents shall be true and correct in all material respects (provided that any such representations and
warranties which are qualified by materiality, material adverse effect or similar language shall be true and
correct in all respects) with the same effect as though such representations and warranties had been made
on and as of the date of such Credit Event (except where such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties shall have been true and correct
in all material respects (provided that any such representations and warranties which are qualified by
materiality, material adverse effect or similar language shall be true and correct in all respects) as of such
earlier date).
7.2Notice of Borrowing.
(a)Prior to the making of each Term Loan after the Closing Date, the Administrative Agent
shall have received a Notice of Borrowing meeting the requirements of Section 2.3.
(b)Prior to the making of each Revolving Credit Loan (other than any Revolving Credit
Loan made pursuant to Section 3.4(a)) and each Swingline Loan, the Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 2.3.
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(c)Prior to the issuance of each Letter of Credit the Administrative Agent and the Letter of
Credit Issuer shall have received a Letter of Credit Request meeting the requirements of Section 3.2(a).
7.3Leverage. Solely in the case of any Borrowing of Delayed Draw Term Loans, the
Consolidated Total Debt to Consolidated EBITDA Ratio, after giving effect to the incurrence of such
Delayed Draw Term Loans and the use of proceeds thereof (and all related acquisitions, Investments and
other transactions consummated or to be consummated in connection therewith and all other appropriate
pro forma adjustments), on a Pro Forma Basis, as of the last day of the then most recently ended Test
Period, shall not exceed 5.00:1.00 (calculated without netting the cash proceeds of such funding of
Delayed Draw Term Loans); provided that, in the case of any Delayed Draw Term Loan that is being
used to finance a Limited Condition Transaction, such condition may, subject to the terms of Section
1.12(c), be tested as of the LCT Test Date with respect to such Limited Condition Transaction.
The acceptance of the benefits of each Credit Event (other than any Credit Event in connection with a
New Loan Commitment, which shall be subject to the terms of Section 2.14) shall constitute a
representation and warranty by each Credit Party to each of the Lenders that all the applicable conditions
specified in clauses (a) and (b) of Section 7.1 and, solely with respect to a Borrowing of Delayed Draw
Term Loans, Section 7.3 above have been satisfied as of that time.
Section 8. Representations and Warranties
In order to induce the Lenders to enter into this Agreement and to make the Loans and issue or
participate in Letters of Credit as provided for herein, Intermediate Holdings makes the following
representations and warranties to the Lenders, all of which shall survive the execution and delivery of this
Agreement, the making of the Loans and the issuance of the Letters of Credit:
8.1Corporate Status. Each of the Credit Parties and each of their respective Restricted
Subsidiaries (a) is a duly organized and/or incorporated and validly existing corporation, limited liability
company or other entity in good standing (if applicable) under the laws of the jurisdiction of its
organization and/or incorporation and has the corporate, limited liability company or other organizational
power and authority to own its property and assets and to transact the business in which it is engaged and
(b) has duly qualified and is authorized to do business and is in good standing (if applicable) in all
jurisdictions where it is required to be so qualified, except where the failure to be so qualified would not
reasonably be expected to result in a Material Adverse Effect; provided that it is understood and agreed
that in no event shall any representation or warranty made in respect of this Section 8.1 be untrue or
incorrect to the extent made on or prior to the date that is thirty days after the Closing Date (or such
longer period as the Administrative Agent may agree in its reasonable discretion) as a result of the failure
of the Restricted Subsidiaries set forth on Schedule 8.1 to fail to be in good standing.
8.2Corporate Power and Authority. Each of the Credit Parties and each of their respective
Restricted Subsidiaries has the corporate or other organizational power and authority to execute, deliver
and carry out the terms and provisions of the Credit Documents to which it is a party and has taken all
necessary corporate or other organizational action to authorize the execution, delivery and performance
of the Credit Documents to which it is a party. Each of the Credit Parties has duly executed and delivered
each Credit Document to which it is a party and each such Credit Document constitutes the legal, valid
and binding obligation of such Credit Party, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, liquidation, winding-up, dissolution,
strike-off or similar laws affecting creditors’ rights generally and subject to general principles of equity.
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8.3No Violation. Neither the execution, delivery or performance by any Credit Party of the
Credit Documents to which it is a party nor compliance with the terms and provisions thereof and the
other transactions contemplated hereby will (a) contravene any applicable provision of any law, statute,
rule, regulation, order, writ, injunction or decree of any court or governmental instrumentality, other than
any such contravention that would not reasonably be expected to result in a Material Adverse Effect,
(b) result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any
of the property or assets of such Credit Party or any of the Restricted Subsidiaries (other than Liens
created under the Credit Documents or Permitted Liens) pursuant to the terms of any indenture, loan
agreement, lease agreement, mortgage, deed of trust, agreement or other instrument to which such Credit
Party or any of the Restricted Subsidiaries is a party or by which it or any of its property or assets is
bound (any such term, covenant, condition or provision, a “Contractual Requirement”) other than any
such breach, default or Lien that would not reasonably be expected to result in a Material Adverse Effect
or (c) violate any provision of the certificate of incorporation, by-laws, memorandum and articles of
association or other organizational documents of such Credit Party or any of the Restricted Subsidiaries.
8.4Litigation. There are no actions, suits, investigations or proceedings pending or, to the
knowledge of Intermediate Holdings, threatened in writing against Holdings, Intermediate Holdings or
any of the Restricted Subsidiaries that would reasonably be expected to be determined adversely and, if
so, to result in a Material Adverse Effect.
8.5Margin Regulations. Neither the making of any Loan hereunder nor the use of the
proceeds thereof will violate the provisions of Regulation T, Regulation U or Regulation X of the Board.
8.6Governmental Approvals. The execution, delivery and performance of each Credit
Document does not require any consent or approval of, registration or filing with, or other action by, any
Governmental Authority, except for (i) such as have been obtained or made and are in full force and
effect, (ii) filings, consents, approvals, registrations and recordings in respect of the Liens created
pursuant to the Security Documents (and to release existing Liens), and (iii) such licenses, approvals,
authorizations, registrations, filings or consents the failure of which to obtain or make would not
reasonably be expected to result in a Material Adverse Effect.
8.7Investment Company Act. None of Holdings, Intermediate Holdings or any other
Restricted Subsidiary is an “investment company” within the meaning of the Investment Company Act of
1940, as amended.
8.8True and Complete Disclosure.
(a)None of the written factual information and written data (taken as a whole) heretofore or
contemporaneously furnished by or on behalf of Intermediate Holdings, any of the other Restricted
Subsidiaries or any of their respective authorized representatives to the Administrative Agent, any Joint
Lead Arranger and Bookrunner and/or any Lender on or before the Closing Date (including all such
written information and data contained in the Credit Documents) for purposes of or in connection with
this Agreement or any transaction contemplated herein contained any untrue statement of any material
fact or omitted to state any material fact necessary to make such information and data (taken as a whole)
not materially misleading at such time in light of the circumstances under which such information or data
was furnished (after giving effect to all supplements and updates), it being understood and agreed that for
the purposes of this Section 8.8(a), such factual information and data shall not include (i) pro forma
financial information, projections, estimates (including financial estimates, forecasts and other
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forward-looking information) or other forward-looking information, (ii) information of a general
economic or general industry nature and (iii) third-party memos or reports.
8.9Financial Condition; Financial Statements.
(a)The Historical Financial Statements, in each case, present fairly in all material respects
the consolidated financial position of the Company at the respective dates of said information, statements
and results of operations for the respective periods covered thereby. The Historical Financial Statements
were prepared in accordance with GAAP, except as may be disclosed in the notes to such Historical
Financial Statements or, in the case of the Historical Interim Financial Statements, for normal recurring
year-end adjustment (none of which would reasonably be expected to be material individually or in the
aggregate) and the absence of notes or other information not required by GAAP to be included in interim
financial statements (none of which, if presented, would reasonably be expected to materially differ from
those in the Historical Audited Financial Statements).
(b)There has been no Material Adverse Effect since the Closing Date.
Each Lender and the Administrative Agent hereby acknowledges and agrees that Intermediate Holdings
and its Subsidiaries may be required to restate historical financial statements as the result of the
implementation of changes in GAAP or IFRS, or the respective interpretation thereof, and that such
restatements will not result in a Default or an Event of Default under the Credit Documents.
8.10Compliance with Laws.
(a)Each Credit Party is in compliance with all Requirements of Law applicable to it or its
property, except to the extent any failure to comply would reasonably be expected to result in a Material
Adverse Effect.
(b)Each Credit Party and its Subsidiaries and each of the respective directors and officers
and, with respect to clauses (a) and (b) of this Section 8.10, to the knowledge of such Credit Parties,
employees, agents and representatives of each Credit Party or any of its Subsidiaries (in each case in their
capacity as such), (a) is in compliance with (i) applicable Sanctions and (ii) the United States Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations promulgated thereunder, (the
“FCPA”) and other applicable anti-corruption laws (collectively with the FCPA, the “Anti-Corruption
Laws”), in all material respects, (b) is not located, organized or resident in a Designated Jurisdiction and
(c) is in compliance with the Anti-Money Laundering Laws in all material respects.
8.11Tax Matters. Except as would not reasonably be expected to have a Material Adverse
Effect, (a) each of Holdings, Intermediate Holdings and the Restricted Subsidiaries has filed all Tax
returns required to be filed by it and has timely paid all Taxes payable by it (whether or not shown on a
Tax return and including in its capacity as withholding agent) that have become due and payable, other
than those being contested in good faith and by proper proceedings if it has maintained adequate reserves
(in the good faith judgment of management of Holdings, Intermediate Holdings or such Restricted
Subsidiary, as applicable) with respect thereto in accordance with GAAP and it can lawfully withhold
such payment and (b) each of Holdings, Intermediate Holdings and the Restricted Subsidiaries has
provided adequate reserves (in the good faith judgement of management of Holdings, Intermediate
Holdings or such Restricted Subsidiary, as applicable) in accordance with GAAP for the payment of all
Taxes not yet due and payable. There is no current or proposed Tax assessment, deficiency or other
claim against Holdings, Intermediate Holdings or any Restricted Subsidiary that would reasonably be
expected to result in a Material Adverse Effect.
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8.12Compliance with ERISA. Except as would not reasonably be expected to have a Material
Adverse Effect, (i) each Plan is in compliance with the terms of such Plan and the applicable provisions
of ERISA, the Code and the regulations thereunder, and (ii) no ERISA Event has occurred or is
reasonably expected to occur.
8.13Subsidiaries. Schedule 8.13 lists each Subsidiary of Holdings and Intermediate Holdings
(and the direct and indirect ownership interest, of Holdings and Intermediate Holdings therein), in each
case existing on the Closing Date after giving effect to the Acquisition.
8.14Intellectual Property. Each of Intermediate Holdings and the other Restricted
Subsidiaries own or have the right to use all Intellectual Property that is used in or otherwise necessary
for the operation of their respective businesses as currently conducted, except where the failure to own or
have a right to use such Intellectual Property would not reasonably be expected to have a Material
Adverse Effect. To the knowledge of Intermediate Holdings, the operation of their respective businesses
by each of Intermediate Holdings and the other Restricted Subsidiaries does not infringe upon,
misappropriate, violate or otherwise conflict with the Intellectual Property of any third party, except as
would not reasonably be expected to have a Material Adverse Effect.
8.15Environmental Laws.
(a)Except as set forth on Schedule 8.15, or as would not reasonably be expected to have a
Material Adverse Effect: (i) each of Intermediate Holdings and the other Restricted Subsidiaries and their
respective operations and properties is in compliance with all applicable Environmental Laws; (ii) none
of Intermediate Holdings or any Restricted Subsidiary is subject to any pending, or, to the knowledge of
Intermediate Holdings, threatened Environmental Claim; and (iii) none of Intermediate Holdings or any
Restricted Subsidiary is conducting any investigation, removal, remedial or other corrective action
pursuant to any Environmental Law at any location.
(b)Except as set forth on Schedule 8.15, none of Intermediate Holdings or any of the
Restricted Subsidiaries has treated, stored, transported, Released or arranged for disposal or transport for
disposal or treatment of Hazardous Materials at, on, under or from any property currently or formerly
owned or operated by Intermediate Holdings or any of the Restricted Subsidiaries nor, to the knowledge
of Intermediate Holdings, has there been any other Release of Hazardous Materials at, on, under or from
any such properties, in each case, as would reasonably be expected to have a Material Adverse Effect.
8.16Properties.
(a)(i) Each of Intermediate Holdings and the other Restricted Subsidiaries has good and
valid record title to, valid leasehold interests in, or rights to use, all properties that are necessary for the
operation of their respective businesses as currently conducted and as proposed to be conducted, free and
clear of all Liens (other than any Liens permitted by this Agreement) and except where the failure to
have such good title or interest, or rights to use, would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect and (ii) no Mortgage encumbers improved Real Estate that
is located in an area that has been identified by the Secretary of Housing and Urban Development as an
area having special flood hazards within the meaning of the Flood Insurance Laws unless flood insurance
available under such Flood Insurance Laws has been obtained in accordance with Section 9.3(b).
(b)Set forth on Schedule 8.16 is a list of each parcel of real estate and the improvements
thereto owned in fee by a Credit Party as of the Closing Date having a Fair Market Value in excess of
$5,000,000.
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8.17Solvency. On the Closing Date (after giving effect to the Transactions) immediately
following the making of the Loans and after giving effect to the application of the proceeds of such
Loans, Intermediate Holdings and the Restricted Subsidiaries on a consolidated basis will be Solvent.
8.18Use of Proceeds. The Borrower will not use the proceeds of the Loans and/or Letters of
Credit to violate applicable Sanctions or, in any material respect, any Anti-Money Laundering Laws, or
Anti-Corruption Laws.
8.19No Other Liabilities. None of Intermediate Holdings and the Restricted Subsidiaries have
any material contingent liability required under GAAP to be reflected or disclosed and not reflected or
disclosed in the most recent financial statements delivered by Intermediate Holdings pursuant to Section
9.1 (or, prior to the first delivery of such financial statements, the Historical Financial Statements), other
than liabilities (including any liabilities in connection with any litigation and investigations) and
contingent liabilities permitted to be incurred under this Agreement that would not reasonably be
expected to have a Material Adverse Effect.
8.20Labor Matters. Except as could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect, there are no strikes or similar union labor disputes against any
of Intermediate Holdings or the Restricted Subsidiaries pending or, to the knowledge of Intermediate
Holdings or the Restricted Subsidiaries, overtly threatened in writing.
8.21Foreign Assets Control Regulations and Anti-Money Laundering. No Credit Party and no
Subsidiary of a Credit Party (i) is a Person designated by the U.S. government on the list of the Specially
Designated Nationals and Blocked Persons (the “SDN List”) or on any other similar Sanctions-related
list of designated Persons, (ii) is a Person who is otherwise the subject of Sanctions, (iii) is domiciled
or resident in a Designated Jurisdiction or (iv) is directly or indirectly owned or controlled (as such terms
are defined by Sanctions) by (including without limitation by virtue of such person being a director or
owning voting shares or interests), or acts for or on behalf of, any person or entity on the SDN List or a
foreign government that is the target of U.S. economic sanctions prohibitions such that the entry into, or
performance under, this Agreement or any other Credit Document would be prohibited under U.S. law.
As of the Closing Date, the information included in the Beneficial Ownership Certification, if applicable,
is true and correct in all material respects.
Section 9. Affirmative Covenants.
Intermediate Holdings, each of Intermediate Holdings’ Restricted Subsidiaries and, as
applicable, Holdings, hereby covenant and agree that on the Closing Date and thereafter, until the
Commitments, the Swingline Commitment and each Letter of Credit have terminated or been Cash
Collateralized in accordance with the terms of this Agreement and the Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations incurred hereunder (other than contingent indemnity
obligations as to which no valid demand has been made, Secured Hedge Obligations, Secured Cash
Management Obligations and Letters of Credit Cash Collateralized in accordance with the terms of this
Agreement), are paid in full:
9.1Information Covenants. Intermediate Holdings will furnish to the Administrative Agent
(which shall promptly make such information available to the Lenders in accordance with its customary
practice):
(a)Annual Financial Statements. As soon as available and in any event within 120 days after
the end of each fiscal year of Intermediate Holdings (commencing with the fiscal year ending December
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31, 2024 (and, within 150 days of the end of the each of the fiscal years ended Decemebr 31, 2024 and
December 31, 2025) (in each case, which deadlines may be extended by the Administrative Agent in its
sole discretion by an additional 30 days), the consolidated balance sheet of Intermediate Holdings and the
Restricted Subsidiaries as at the end of each fiscal year and the related consolidated statements of income
or operations, shareholders’ equity and cash flows for such fiscal year, and, commencing with the
financial statements for the fiscal year ended December 31, 2026, setting forth comparative consolidated
figures for the preceding fiscal year, all in reasonable detail and prepared in accordance with GAAP, and,
in each case, certified by an independent certified public accountant of recognized national standing
whose opinion shall not be qualified as to the scope of audit or as to the status of Intermediate Holdings or
any of the Restricted Subsidiaries as a going concern (other than any qualification, that is expressly solely
with respect to, or expressly resulting solely from, (i) an upcoming maturity date under any Indebtedness,
(ii) any actual or potential inability to satisfy a financial maintenance covenant at such time or on a future
date or in a future period or (iii) the activities, operations, financial results, assets or liabilities of any
Unrestricted Subsidiary).
(b)Quarterly Financial Statements. As soon as available and in any event on or before the
date that is 60 days after the end of each fiscal quarter of each fiscal year of Intermediate Holdings (and
within 90 days for the fiscal quarters ended March 31, 2025, June 30, 2025 and September 30, 2025) (in
each case, which deadlines may be extended by the Administrative Agent in its sole discretion by an
additional 30 days), the consolidated balance sheets of Intermediate Holdings and the Restricted
Subsidiaries as at the end of such fiscal quarter and the related consolidated statements of income for
such fiscal quarter and for the elapsed portion of the fiscal year ended with the last day of such fiscal
quarter, and the related consolidated statement of cash flows for the elapsed portion of the fiscal year
ended with the last day of such fiscal quarter, and, commencing with the financial statements for the fiscal
quarter ended March 31, 2026, setting forth comparative consolidated figures for the related periods in
the prior fiscal year or, in the case of such consolidated balance sheet, for the last day of the related period
in the prior fiscal year, which shall be accompanied by customary management discussion and analysis of
operating results, all of which shall be certified by an Authorized Officer of Intermediate Holdings as
fairly presenting in all material respects the financial condition, results of operations and cash flows of
Intermediate Holdings and its Restricted Subsidiaries in accordance with a modified cash-basis
accounting method (except as noted therein), subject to changes resulting from normal year-end
adjustments and the absence of footnotes.
(c)Budgets. Prior to an IPO, within 120 days after the commencement of each fiscal year of
Intermediate Holdings (and, for the fiscal year ending December 31, 2025, within 150 days after the
commencement of such fiscal year), a consolidated budget of Intermediate Holdings in reasonable detail
on an annual basis for such fiscal year as customarily prepared by management of Intermediate Holdings
for its internal use consistent in scope with the financial statements provided pursuant to Section 9.1(a),
setting forth the principal assumptions upon which such budget is based (collectively, the “Projections”)
and, commencing with the consolidated budget of Intermediate Holdings for the fiscal year ending
December 31, 2026, setting forth comparative figures for the prior fiscal year, which Projections shall in
each case be accompanied by a certificate of an Authorized Officer of Intermediate Holdings stating that
such Projections have been prepared in good faith on the basis of the assumptions stated therein, which
assumptions were believed to be reasonable at the time of preparation of such Projections, it being
understood and agreed that such Projections and assumptions as to future events are not to be viewed as
facts or a guarantee of performance, are subject to significant uncertainties and contingencies, many of
which are beyond the control of Intermediate Holdings and its Subsidiaries and that actual results during
the period or periods covered by any such Projections may differ from the projected results and such
differences may be material.
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(d)Compliance Certificates. Not later than five days after the delivery of the financial
statements provided for in Sections 9.1(a) and (b) (in the case of the first three fiscal quarters of any fiscal
year only), a Compliance Certificate signed by an Authorized Officer of Intermediate Holdings to the
effect that no Default or Event of Default exists or, if any Default or Event of Default does exist,
specifying the nature and extent thereof, as the case may be, which certificate shall set forth (i) a
specification of any change in the identity of the Restricted Subsidiaries and Unrestricted Subsidiaries as
at the end of such fiscal year or period, as the case may be, from the Restricted Subsidiaries and
Unrestricted Subsidiaries, respectively, provided to the Lenders on the Closing Date or the most recent
fiscal year or period, as the case may be, (ii) commencing with the fiscal quarter ending June 30, 2025,
the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio and the Consolidated Total
Debt to Consolidated EBITDA Ratio and underlying calculations in connection therewith and (iii)
together with any financial statements provided for in Section 9.1(a) for any fiscal year, a reconciliation
of the financial statements prepared and delivered for the four fiscal quarter period ending on December
31 of the applicable year prepared using a modified cash-basis accounting method to the financial
statements for such fiscal year prepared in accordance with GAAP. At the time of the delivery of the
financial statements provided for in Section 9.1(a), a certificate of an Authorized Officer of Intermediate
Holdings setting forth changes to the legal name, jurisdiction of formation, type of entity and
organizational number (or equivalent) to the Person organized in a jurisdiction where an organizational
identification number is required to be included in a Uniform Commercial Code financing statement, in
each case for each Credit Party or confirming that there has been no change in such information since the
Closing Date or the date of the most recent certificate delivered pursuant to this clause (d), as the case
may be.
(e)Bonding Reports. As soon as available and in any event on or before the date that is 60
days after the end of each fiscal quarter of each fiscal year of Intermediate Holdings (and within 90 days
for the fiscal quarters ended March 31, 2025, June 30, 2025, and September 30, 2025) a report regarding
outstanding Bonding Obligations substantially in the form agreed in writing by the parties hereto prior to
the Closing Date.
(f)Notice of Default or Litigation Promptly after an Authorized Officer of Intermediate
Holdings or any of the Restricted Subsidiaries obtains knowledge thereof, notice of (i) the occurrence of
any event that constitutes a Default or Event of Default, which notice shall specify the nature thereof, the
period of existence thereof and what action Intermediate Holdings proposes to take with respect thereto
and (ii) any litigation or governmental proceeding pending against Intermediate Holdings or any of the
Restricted Subsidiaries that would reasonably be expected to be determined adversely and, if so
determined, to result in a Material Adverse Effect.
(g)Environmental Matters. Promptly after an Authorized Officer of Intermediate Holdings
or any of the Restricted Subsidiaries obtains actual knowledge of any one or more of the following
environmental matters, unless such environmental matters would not reasonably be expected to result in a
Material Adverse Effect, notice of:
(i)any pending or threatened Environmental Claim against any Credit Party or any
Real Estate; and
(ii)the conduct of any investigation, or any removal, remedial or other corrective
action in response to the actual or alleged presence, Release or threatened Release of any Hazardous
Material on, at, under or from any Real Estate.
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All such notices shall describe in reasonable detail the nature of the claim, investigation or
removal, remedial or other corrective action in response thereto. The term “Real Estate” shall mean land,
buildings, facilities and improvements currently owned or leased by any Credit Party.
(h)Other Information. Promptly upon filing thereof, copies of any filings (including on
Form 10-K, 10-Q or 8-K) or registration statements (other than drafts of pre-effective versions of
registration statements) with, and reports to, the SEC or any analogous Governmental Authority in any
relevant jurisdiction by Intermediate Holdings or any of the Restricted Subsidiaries (other than
amendments to any registration statement (to the extent such registration statement, in the form it
becomes effective, is delivered to the Administrative Agent), exhibits to any registration statement and, if
applicable, any registration statements on Form S-8) and copies of all financial statements, proxy
statements, notices, and reports that Intermediate Holdings or any of the Restricted Subsidiaries shall
send to the holders of any publicly issued debt of Intermediate Holdings and/or any of the Restricted
Subsidiaries, in their capacity as such holders, lenders or agents (in each case to the extent not
theretofore delivered to the Administrative Agent pursuant to this Agreement) and, with reasonable
promptness, such other information (financial or otherwise, including information required under
applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot
Act and the Beneficial Ownership Regulation) as the Administrative Agent on its own behalf or on
behalf of any Lender (acting through the Administrative Agent) may reasonably request in writing from
time to time; provided that neither Intermediate Holdings nor any other Restricted Subsidiary will be
required to disclose or permit the inspection or discussion of any document, information or other matter
(i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of
which disclosure to the Administrative Agent or any Lender (or their respective contractors) is prohibited
by law, or any binding agreement or (iii) that is subject to attorney client or similar privilege or
constitutes attorney work product.
Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 9.1 may be
satisfied with respect to financial information of Intermediate Holdings and its Restricted Subsidiaries by
furnishing (A) the applicable financial statements of any direct or indirect parent of Intermediate
Holdings or (B) Intermediate Holdings’ (or any direct or indirect parent thereof), as applicable, Form
10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to each of subclauses (A) and
(B) of this paragraph, to the extent such information relates to a parent of Intermediate Holdings, such
information is accompanied by consolidating or other information that explains in reasonable detail the
differences between the information relating to such parent, on the one hand, and the information relating
to Intermediate Holdings and the Restricted Subsidiaries on a standalone basis, on the other hand.
Documents required to be delivered pursuant to clauses (a), (b), and (g) of this Section 9.1 (to the
extent any such documents are included in materials otherwise filed with the SEC) may be delivered
electronically and, if so delivered, shall be deemed to have been delivered on the earliest date on which (i)
Intermediate Holdings posts such documents, or provides a link thereto on Intermediate Holdings’
website on the Internet; (ii) such documents are posted on Intermediate Holdings’ behalf on
IntraLinks/IntraAgency or another website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by the Administrative
Agent), or (iii) such financial statements and/or other documents are posted on the SEC’s website on the
internet at www.sec.gov; provided that (A) Intermediate Holdings shall, at the request of the
Administrative Agent, continue to deliver copies (which delivery may be by electronic transmission) of
such documents to the Administrative Agent and (B) Intermediate Holdings shall notify (which
notification may be by facsimile or electronic transmission) the Administrative Agent of the posting of
any such documents on any website described in this paragraph. Each Lender shall be solely responsible
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for timely accessing posted documents or requesting delivery of paper copies of such documents from the
Administrative Agent and maintaining its copies of such documents.
Each Credit Party hereby acknowledges and agrees that, unless Intermediate Holdings notifies
the Administrative Agent in advance, all financial statements and certificates furnished pursuant to
Sections 9.1(a), (b) and (d) above are hereby deemed to be suitable for distribution, and to be made
available, to all Lenders and may be treated by the Administrative Agent and the Lenders as not
containing any material nonpublic information; provided that any failure by Intermediate Holdings to so
notify the Administrative Agent shall not constitute a Default or Event of Default.
9.2Books, Records, and Inspections. Intermediate Holdings will, and will cause each
Restricted Subsidiary to, permit officers and designated representatives of the Administrative Agent or
the Required Lenders to visit and inspect any of the properties or assets of Intermediate Holdings and any
such Restricted Subsidiary in whomsoever’s possession to the extent that it is within such party’s control
to permit such inspection (and shall use commercially reasonable efforts to cause such inspection to be
permitted to the extent that it is not within such party’s control to permit such inspection), and to
examine the books and records of Intermediate Holdings and any such Restricted Subsidiary and discuss
the affairs, finances and accounts of Holdings, Intermediate Holdings and of any such Restricted
Subsidiary with, and be advised as to the same by, its and their officers and independent accountants, all
at such reasonable times and intervals and to such reasonable extent as the Administrative Agent or the
Required Lenders may desire (and subject, in the case of any such meetings or advice from such
independent accountants, to such accountants’ customary policies and procedures); provided that,
excluding any such visits and inspections during the continuation of an Event of Default, (a) only the
Administrative Agent on behalf of the Required Lenders may exercise rights of the Administrative Agent
and the Lenders under this Section 9.2, (b) the Administrative Agent shall not exercise such rights more
than one time in any calendar year, which such visit will be at the Intermediate Holdings’ expense, and
(c) notwithstanding anything to the contrary in this Section 9.2, none of Intermediate Holdings or any of
the Restricted Subsidiaries will be required to disclose, permit the inspection, examination or making
copies or abstracts of, or discussion of, any document, information or other matter that (i) constitutes
non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to
the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited
by law or any agreement binding on a third party or (iii) is subject to attorney-client or similar privilege or
constitutes attorney work product; provided, further, that when an Event of Default exists, the
Administrative Agent (or any of its respective representatives or independent contractors) or any
representative of the Required Lenders may do any of the foregoing at the expense of Intermediate
Holdings at any time during normal business hours and upon reasonable advance notice. The
Administrative Agent and the Required Lenders shall give Intermediate Holdings the opportunity to
participate in any discussions with Intermediate Holdings’ independent public accountants.
9.3Maintenance of Insurance. (a) Intermediate Holdings will, and will cause each Restricted
Subsidiary to, at all times maintain in full force and effect, pursuant to self-insurance arrangements or
with insurance companies that Intermediate Holdings believes (in the good faith judgment of the
management of Intermediate Holdings) are financially sound and responsible at the time the relevant
coverage is placed or renewed, insurance in at least such amounts (after giving effect to any self-
insurance which Intermediate Holdings believes (in the good faith judgment of management of
Intermediate Holdings) is reasonable and prudent in light of the size and nature of its business and the
availability of insurance on a cost-effective basis) and against at least such risks (and with such risk
retentions) as Intermediate Holdings believes (in the good faith judgment of management of Intermediate
Holdings) is reasonable and prudent in light of the size and nature of its business and the availability of
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insurance on a cost-effective basis; and will furnish to the Administrative Agent, promptly following
written request from the Administrative Agent, information presented in reasonable detail as to the
insurance so carried and (b) with respect to any improved Mortgaged Property located in a special flood
hazard area, Intermediate Holdings will obtain flood insurance in such total amount as required by the
Flood Insurance Laws and shall otherwise comply with the Flood Insurance Laws. Each such policy of
insurance shall (i) name the Collateral Agent, on behalf of the Secured Parties as an additional insured
thereunder as its interests may appear and (ii) in the case of each casualty insurance policy, contain a loss
payable clause or endorsement that names the Collateral Agent, on behalf of the Secured Parties, as the
loss payee thereunder.
9.4Payment of Taxes. Each of Holdings and Intermediate Holdings will pay and discharge
or cause to be paid and discharged, and will cause each of the Restricted Subsidiaries to pay and
discharge, all material Taxes imposed upon it (including in its capacity as a withholding agent) or upon
its income or profits, or upon any properties belonging to it, prior to the date on which penalties attach
thereto, and all lawful material claims in respect of any Taxes imposed, assessed or levied that, if unpaid,
would reasonably be expected to become a material Lien (other than a Permitted Lien) upon any
properties of Holdings, Intermediate Holdings or any of the Restricted Subsidiaries; provided that none of
Holdings, Intermediate Holdings nor any of the Restricted Subsidiaries shall be required to pay any such
Tax that (i) is being contested in good faith and by proper proceedings if it has maintained adequate
reserves (in the good faith judgment of management of Holdings, Intermediate Holdings or such
Restricted Subsidiaries) with respect thereto in accordance with GAAP and it can lawfully withhold such
payment or (ii) the failure to pay would not reasonably be expected to result in a Material Adverse
Effect.
9.5Preservation of Existence. Intermediate Holdings will, and will cause each Restricted
Subsidiary to, take all actions necessary (a) to preserve and keep in full force and effect its existence,
organizational rights and authority and (b) to maintain its rights, privileges (including its good standing
(if applicable)), permits, licenses and franchises necessary in the normal conduct of its business, in each
case, except to the extent that the failure to do so would not reasonably be expected to have a Material
Adverse Effect; provided, however, that Intermediate Holdings and its respective Subsidiaries may
consummate any transaction that is a Permitted Investment and under Section 10.2, 10.3, 10.4 or 10.5.
9.6Compliance with Statutes, Regulations, Etc. Intermediate Holdings will, and will cause
each Restricted Subsidiary to, (a) comply with all applicable laws, rules, regulations, and orders
applicable to it or its property and all governmental approvals or authorizations required to conduct its
business, and to maintain all such governmental approvals or authorizations in full force and effect,
(b) comply with, and use commercially reasonable efforts to ensure compliance by its tenants and
subtenants, if any, with, all Environmental Laws and obtain and comply with and maintain, and use
commercially reasonable efforts to ensure that its tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations or permits required by
Environmental Laws and (c) conduct and complete all investigations, studies, sampling and testing, and
all remedial, removal and other actions, in each case, to the extent required under Environmental Laws
and promptly comply with all orders and directives having the force and effect of law of all
Governmental Authorities regarding Environmental Laws, other than such orders and directives which are
being timely contested in good faith by proper proceedings, except in each case of (a), (b) and (c) of this
Section 9.6, where the failure to do so would not reasonably be expected to result in a Material Adverse
Effect.
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9.7ERISA. Where applicable, (a) Intermediate Holdings will furnish to the Administrative
Agent promptly following the receipt thereof, copies of any documents described in Sections 101(k) or
101(l) of ERISA that any Credit Party or any of its Subsidiaries may request with respect to any
Multiemployer Plan to which a Credit Party or any of its Subsidiaries is obligated to contribute; provided
that if the Credit Parties or any of their Subsidiaries have not requested such documents or notices from
the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the
Administrative Agent, the Credit Parties or their Subsidiaries shall promptly make a request for such
documents or notices from such administrator or sponsor and Intermediate Holdings shall provide copies
of such documents and notices to the Administrative Agent promptly after receipt thereof; provided,
further, that the rights granted to the Administrative Agent in this Section 9.7 shall be exercised not more
than once during a 12-month period, and (b) Intermediate Holdings will notify the Administrative Agent
promptly following the occurrence of an ERISA Event that, alone or together with any other ERISA
Events that have occurred, would reasonably be expected to result in liability of any Credit Party that
would reasonably be expected to have a Material Adverse Effect.
9.8Maintenance of Properties. Intermediate Holdings will, and will cause each of the
Restricted Subsidiaries to, keep and maintain all tangible property material to the conduct of its business
in good working order and condition, ordinary wear and tear, casualty and condemnation excepted,
except to the extent that the failure to do so would not reasonably be expected to have a Material Adverse
Effect.
9.9[Reserved].
9.10Additional Guarantors and Grantors. Subject to any applicable limitations set forth in
the Security Documents, Intermediate Holdings will cause each direct or indirect Restricted Subsidiary
(other than any Excluded Subsidiary) formed or otherwise purchased or acquired after the Closing Date
(including pursuant to a Permitted Acquisition), and each other Restricted Subsidiary that ceases to
constitute an Excluded Subsidiary, within 60 days from the date of such formation, acquisition or
cessation, as applicable (or such longer period as the Administrative Agent may agree in its reasonable
discretion), and Intermediate Holdings may at its option cause any other Restricted Subsidiary, to execute
a supplement to each of the Guarantee, the Pledge Agreement, the Security Agreement and any other
Security Document, as applicable, in order to become a Guarantor under the Guarantee and a grantor
under such Security Documents and take all other action reasonably requested by the Collateral Agent to
grant a perfected security interest in its assets to substantially the same extent as created and perfected by
the Credit Parties on the Closing Date and pursuant to Section 9.13(d) in the case of such Credit Parties.
For the avoidance of doubt, notwithstanding anything to the contrary in any Credit Document, neither
Intermediate Holdings nor any Restricted Subsidiary shall be required to take any action outside the
United States to perfect any security interest in the Collateral (including the execution of any agreement,
document or other instrument governed by the law of any jurisdiction other than the United States or any
state or political subdivision thereof or the District of Columbia); provided that, for the avoidance of
doubt, Intermediate Holdings, in its sole discretion, may designate Restricted Subsidiaries as
Discretionary Foreign Guarantors in accordance with this Agreement and, in connection with any such
designation, Intermediate Holdings and Administrative Agent shall enter into such additional Credit
Documents and take such additional actions outside the United States as shall be reasonably agreed by
Intermediate Holdings and the Administrative Agent.
9.11Pledge of Additional Stock and Evidence of Indebtedness. Subject to any applicable
limitations set forth in the Security Documents and other than (x) when in the reasonable determination
of the Administrative Agent and Intermediate Holdings (as agreed to in writing), the cost or other
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consequences of doing so would be excessive in view of the benefits to be obtained by the Lenders
therefrom or (y) to the extent doing so would result in material adverse tax consequences as reasonably
determined by Intermediate Holdings in consultation with the Administrative Agent, Holdings and
Intermediate Holdings will cause (i) all certificates representing Capital Stock and Stock Equivalents of
any Restricted Subsidiary (other than any Excluded Stock and Stock Equivalents) held directly by
Holdings, Intermediate Holdings or any other Credit Party, (ii) all evidences of Indebtedness in excess of
$5,000,000 and (iii) any promissory notes executed after the Closing Date evidencing Indebtedness in
excess of $5,000,000 of Holdings, Intermediate Holdings or any Subsidiary that is owing to Holdings,
Intermediate Holdings or any other Credit Party, in each case, to be delivered to the Collateral Agent as
security for the Obligations, accompanied by undated instruments of transfer executed in blank pursuant
to the terms of the Security Documents. Notwithstanding the foregoing, any promissory note among
Holdings, Intermediate Holdings and/or its Restricted Subsidiaries need not be delivered to the Collateral
Agent, so long as (i) a global intercompany note superseding such promissory note has been delivered to
the Collateral Agent, (ii) such promissory note is not delivered to any other party other than Holdings or
any other Credit Party, in each case, owed money thereunder, and (iii) such promissory note indicates on
its face that it is subject to the security interest of the Collateral Agent.
9.12Use of Proceeds.
(a)The Borrower will use the proceeds of the Initial Term Loans, the Revolving Loans (if
any), the Equity Investment and, at its option, cash on hand, on the date the Acquisition is consummated
to effect the Transactions and to pay Transaction Expenses.
(b)The Borrower will use Letters of Credit, Swingline Loans and Revolving Loans for
working capital and for other general corporate purposes, including permitted Investments, acquisitions,
Restricted Payments, capital expenditures and any other transaction not prohibited by the Credit
Documents.
(c)The proceeds of the Delayed Draw Term Loans will be used, directly or indirectly, (i) for
Permitted Acquisitions and similar Investments (including the payment of any fees, costs and expenses,
earn-outs and other deferred or contingent acquisition consideration (including, for the avoidance of
doubt, any seller note) and holdbacks related thereto), (ii) to replenish balance sheet cash or repay
Revolving Loans used to fund any such Permitted Acquisition or other similar Investment pursuant to
clause (i) above, so long as, in each case, such Delayed Draw Term Loans are incurred for the purposes
described in this clause (ii) within one hundred and twenty (120) days after the consummation of such
Permitted Acquisition or other similar Investment, (iii) for capital expenditures and (iv) for payment of
any fees, costs and expenses in connection with the clauses (i) through (iii).
(d)The Borrower will use the proceeds of the Amendment No. 1 Incremental Term Loans to
repay Revolving Credit Loans outstanding on the Amendment No. 1 Effective Date.
(e)The Borrower will use the proceeds of the Amendment No. 3 Incremental Term
Loans to repay Revolving Credit Loans outstanding on the Amendment No. 3 Effective Date.
9.13Further Assurances.
(a)Subject to the terms of Sections 9.10 and 9.11, this Section 9.13 and the Security
Documents, Intermediate Holdings will, and will cause each other Credit Party to, execute any and all
further documents, financing statements, intellectual property security agreements, agreements, and
instruments, and take all such further actions (including the filing and recording of financing statements,
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intellectual property security agreements, fixture filings, mortgages, deeds of trust, and other documents)
that may be required under any applicable law, or that the Collateral Agent or the Required Lenders may
reasonably request, in order to grant, preserve, protect, and perfect the validity and priority of the security
interests created or intended to be created by the applicable Security Documents, all at the expense of
Intermediate Holdings and the Restricted Subsidiaries. For avoidance of doubt, nothing under this
Agreement or the Security Documents shall be construed as a requirement to enter into any source code
escrow arrangement, an obligation to register or apply for the registration of or obtain any issuance of
Intellectual Property in any jurisdiction, or an obligation to make any filings or take any actions to record
or to perfect the Agents’ lien on or security interest in (I) any Intellectual Property other than UCC filings
and the filing of documents effecting the recordation of security interests in the United States Copyright
Office and United States Patent and Trademark Office or (II) any Intellectual Property subsisting outside
of the United States.
(b)Subject to any applicable limitations set forth in the Security Documents and other than
(x) when in the reasonable determination of the Administrative Agent and Intermediate Holdings (as
agreed to in writing), the cost or other consequences of doing so would be excessive in view of the
benefits to be obtained by the Lenders therefrom or (y) to the extent doing so would result in material
adverse tax consequences as reasonably determined by Intermediate Holdings in consultation with the
Administrative Agent, if any assets (other than Excluded Property) (including any real estate or
improvements thereto or any interest therein but excluding Capital Stock and Stock Equivalents of any
Subsidiary) are acquired by Intermediate Holdings or any other Credit Party after the Closing Date (other
than assets constituting Collateral under a Security Document that become subject to the Lien of the
applicable Security Document upon acquisition thereof) that are of a nature secured by a Security
Document or that constitute a fee interest in real property in the United States having a Fair Market
Value in excess of $5,000,000, Intermediate Holdings will notify the Collateral Agent, and, if requested
by the Collateral Agent, Intermediate Holdings will cause such assets to be subjected to a Lien securing
the Obligations (provided, however, that in the event any Mortgage delivered pursuant to this clause (b)
shall incur any mortgage recording tax or similar charges in connection with the recording thereof, such
Mortgage shall not secure an amount in excess of the Fair Market Value of the applicable Mortgaged
Property) and will take, and cause the other applicable Credit Parties to take, such actions as shall be
necessary or reasonably requested by the Collateral Agent, as soon as commercially reasonable but in no
event later than 90 days after such acquisition, unless waived or extended by the Administrative Agent in
its sole discretion, to grant and perfect such Liens consistent with the applicable requirements of the
Security Documents, including actions described in clause (a) of this Section 9.13.
(c)Any Mortgage delivered to the Administrative Agent in accordance with the preceding
clause (b) shall, if requested by the Collateral Agent, be received as soon as commercially reasonable but
in no event later than 90 days (except as set forth in the preceding clause (b)), unless waived or extended
by the Administrative Agent acting reasonably and accompanied by (x) a policy or policies (or an
unconditional binding commitment therefor to be replaced by a final title policy) of title insurance issued
by a nationally recognized title insurance company (each such policy, a “Title Policy”), in such amounts
as reasonably acceptable to the Administrative Agent not to exceed the Fair Market Value of the
applicable Mortgaged Property, insuring the Lien of each Mortgage as a valid first Lien on the
Mortgaged Property described therein, free of any other Liens except as expressly permitted by
Section 10.2 or as otherwise permitted by the Administrative Agent and otherwise in form and substance
reasonably acceptable to the Administrative Agent and Intermediate Holdings, together with such
endorsements, co-insurance and reinsurance as the Administrative Agent may reasonably request but
only to the extent such endorsements are (i) available in the relevant jurisdiction (provided in no event
shall the Administrative Agent request a creditors’ rights endorsement) and (ii) available at commercially
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reasonable rates, (y) an opinion of local counsel to the applicable Credit Party in form and substance
reasonably acceptable to the Administrative Agent, (z) a completed “Life-of-Loan” Federal Emergency
Management Agency Standard Flood Hazard Determination, and if any improvements on such
Mortgaged Property are located in a special flood hazard area, (i) a notice about special flood hazard area
status and flood disaster assistance duly executed by the applicable Credit Parties and (ii) certificates of
insurance evidencing the insurance required by Section 9.3 in form and substance reasonably satisfactory
to the Administrative Agent, and (aa) an ALTA survey in a form and substance reasonably acceptable to
the Collateral Agent or such existing survey together with a no-change affidavit sufficient for the title
company to remove all standard survey exceptions from the Title Policy related to such Mortgaged
Property and issue the endorsements required in (x) above.
(d)Post-Closing Covenant. Each of Holdings and Intermediate Holdings agrees that it will,
or will cause its relevant Restricted Subsidiaries to, complete each of the actions described on
Schedule 9.13 as soon as commercially reasonable and by no later than the date set forth on
Schedule 9.13 with respect to such action or such later date as the Administrative Agent may reasonably
agree.
9.14[Reserved].
9.15Anti-Corruption, Etc. Within 90 days of commencing material business operations
outside of the United States, Intermediate Holdings shall adopt and maintain in effect policies and
procedures reasonably designed to promote and achieve compliance by Intermediate Holdings, its
Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws
and applicable Sanctions, and Intermediate Holdings, its Subsidiaries and their respective officers and
directors and, to the knowledge of Intermediate Holdings, employees and agents, shall comply with Anti-
Corruption Laws in all material respects and with applicable Sanctions. Holdings, Intermediate Holdings
and its Subsidiaries shall not use any Loan or Letter of Credit or the proceeds thereof in violation of any
Anti-Corruption Law or applicable Sanctions or in any other manner that would constitute or give rise to
a violation of Sanctions by any Lender.
Section 10. Negative Covenants.
Intermediate Holdings and its Restricted Subsidiaries (and solely with respect to Section 10.10,
Holdings) hereby covenants and agrees that on the Closing Date and thereafter, until the Commitments,
the Swingline Commitment and each Letter of Credit have terminated or been Cash Collateralized in
accordance with the terms of this Agreement and the Loans and Unpaid Drawings, together with interest,
Fees and all other Obligations incurred hereunder (other than contingent indemnity obligations as to
which no valid demand has been made, Secured Hedge Obligations, Secured Cash Management
Obligations and Letters of Credit Cash Collateralized in accordance with the terms of this Agreement),
are paid in full:
10.1Limitation on Indebtedness. Intermediate Holdings will not, and will not permit any of
its Restricted Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable,
contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any
Indebtedness (including Acquired Indebtedness), except that the foregoing limitations will not apply to:
(a)Indebtedness arising under the Credit Documents;
(b)[reserved];
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(c)Indebtedness outstanding on the Closing Date (including any unused commitment, any
Capitalized Lease Obligations, intercompany Indebtedness, letter of credit obligations and Indebtedness
permitted to be outstanding on the Closing Date under the Acquisition Agreement) listed on
Schedule 10.1 (together with any Refinancing Indebtedness in respect thereof);
(d)(i) Indebtedness (including Capitalized Lease Obligations and purchase money
Indebtedness) to finance the purchase, lease, construction, installation, maintenance, replacement or
improvement of property (real or personal) or equipment that is used or useful in a Similar Business,
whether through the direct purchase of assets or the Capital Stock of any Person owning such assets and
Indebtedness arising from the conversion of the obligations of Intermediate Holdings or any Restricted
Subsidiary under or pursuant to any “synthetic lease” transactions to on-balance sheet Indebtedness of
Intermediate Holdings or such Restricted Subsidiary, in an aggregate principal amount not to exceed the
greater of (x) $14,000,000 and (y) 35% of Consolidated EBITDA for the most recently ended Test Period
(calculated on a Pro Forma Basis) at the time of incurrence (together with any Refinancing Indebtedness
in respect thereof and all accrued interest, fees and expenses), (ii) Capitalized Lease Obligations assumed
in connection Permitted Acquisitions that are not incurred in contemplation of such Permitted
Acquisition (together with any Refinancing Indebtedness in respect thereof and all accrued interest, fees
and expenses) and (iii) Indebtedness arising out of Permitted Sale Leasebacks;
(e)Indebtedness (including letter of credit obligations consistent with past practice
constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of
business), in respect of workers’ compensation claims, deferred compensation, performance or surety
bonds, health, disability or other employee benefits or property, casualty or liability insurance or
self-insurance or other Indebtedness with respect to reimbursement or indemnification type obligations
regarding workers’ compensation claims, performance or surety bonds, health, disability or other
employee benefits or property, casualty or liability insurance or self-insurance;
(f)Indebtedness arising from agreements of Intermediate Holdings or a Restricted
Subsidiary providing for indemnification, adjustment of purchase price, earn-out or similar obligations,
in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets
or a Subsidiary or other Person, other than guarantees of Indebtedness incurred by any Person acquiring
all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(g)Indebtedness of Intermediate Holdings or a Restricted Subsidiary owing to Intermediate
Holdings or another Restricted Subsidiary; provided that, if Intermediate Holdings or a Guarantor incurs
such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor, such Indebtedness is
subordinated in right of payment to the Guarantee of such Guarantor as the case may be on terms
reasonably satisfactory to the Administrative Agent (it being understood that any such Indebtedness
under this paragraph (g) shall be permitted to the extent permitted as an Investment pursuant to
Section 10.6); provided, further, that any subsequent issuance or transfer of any Capital Stock or any other
event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other
subsequent transfer of any such Indebtedness (except to Intermediate Holdings or another Restricted
Subsidiary) shall be deemed, in each case, to be an incurrence of such Indebtedness not permitted by this
clause;
(h)shares of preferred stock of a Restricted Subsidiary issued to Intermediate Holdings or
another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or
any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or
any other subsequent transfer of any such shares of preferred stock (except to Intermediate Holdings or
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another Restricted Subsidiary) shall be deemed in each case to be an issuance of such shares of preferred
stock not permitted by this clause;
(i)Hedging Obligations entered into in the ordinary course of business (excluding Hedging
Obligations entered into for speculative purposes);
(j)(i) obligations in respect of self-insurance and similar obligations provided by
Intermediate Holdings or any Restricted Subsidiary in the ordinary course of business or consistent with
past practice, (ii) Bonding Obligations of Intermediate Holdings or any Restricted Subsidiary incurred in
the ordinary course of business or consistent with past practice or industry norm or (iii) obligations in
respect of letters of credit, bank guarantees or similar instruments related thereto in the ordinary course
of business or consistent with past practice; provided that the face amount of such Bonding Obligations
under clause (ii) hereof shall not exceed $100,000,000 in the aggregate.
(k)Indebtedness not otherwise permitted hereunder in an aggregate principal amount not to
exceed (together with any Refinancing Indebtedness in respect thereof) the greater of (x) $20,000,000
and (y) 50% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro
Forma Basis) at the time of incurrence;
(l)Indebtedness incurred or issued to refinance any Indebtedness incurred under clause (c)
or (d) or (k) above, this clause (l), and clauses (m), (q), (v) (subject to the terms set forth in clause (v)),
(x), (y), and (dd) below or any Indebtedness incurred or issued to so refinance, replace, refund, extend,
renew, defease, restructure, amend, restate or otherwise modify (collectively, “refinance”) such
Indebtedness (the “Refinancing Indebtedness”) prior to its respective maturity; provided that such
Refinancing Indebtedness (1) has a weighted average life to maturity at the time such Refinancing
Indebtedness is incurred which is not less than the remaining weighted average life to maturity of the
Indebtedness being refinanced, (2) to the extent such Refinancing Indebtedness refinances (i)
Indebtedness that is unsecured or secured by a Lien ranking junior to the Liens securing the Obligations,
such Refinancing Indebtedness is unsecured or secured by a Lien ranking junior to the Liens securing the
Obligations and (ii) Indebtedness subordinated to the Obligations, such Refinancing Indebtedness is
subordinated to the Obligations at least to the same extent as the Indebtedness being refinanced, (3) shall
not include Indebtedness of a Subsidiary of Intermediate Holdings that is not a Guarantor that refinances
Indebtedness of Intermediate Holdings or a Guarantor, (4) shall not be in a principal amount that exceeds
the amount of loans and commitments so refinanced (unless such additional amount constitutes a
utilization of a then available basket), plus fees, expenses, commissions, underwriting discounts and
premiums payable in connection therewith and (5) shall be subject to an Acceptable Intercreditor
Agreement or other customary intercreditor agreements, as applicable, that are entered into in form and
substance reasonably satisfactory to Intermediate Holdings and the Administrative Agent;
(m)Indebtedness of Persons that are acquired by Intermediate Holdings or any Restricted
Subsidiary or merged into or consolidated with Intermediate Holdings or a Restricted Subsidiary in
accordance with the terms hereof (including in connection with a Permitted Acquisition or through
designating an Unrestricted Subsidiary a Restricted Subsidiary); provided that (x) such Indebtedness
existed at the time of such acquisition, merger, consolidation or designation and was not incurred in
contemplation of such acquisition, merger, consolidation or designation, after giving effect to any such
acquisition, merger, consolidation or designation, (y) such Indebtedness is not (A) secured by any
property or assets other than the property or assets acquired or (B) guaranteed by any Credit Party (other
than a person acquired in a Permitted Acquisition or other investment or any person who merges with or
acquires the assets of such Person in connection with such Permitted Acquisition or other investment)
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and (z) at the time such Indebtedness is incurred, Intermediate Holdings is in Pro Forma Compliance with
the financial covenant set forth in Section 10.9;
(n)Indebtedness arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument drawn against insufficient funds in the ordinary course of business;
(o)(i) Indebtedness supported by a letter of credit, in a principal amount not in excess of the
stated amount of such letter of credit so long as such letter of credit is otherwise permitted to be incurred
pursuant to this Section 10.1, (ii) obligations in respect of letters of support, guarantees or similar
obligations issued, made or incurred for the benefit of any Subsidiary of Intermediate Holdings to the
extent required by law or in connection with any statutory filing or the delivery of audit opinions
performed in jurisdictions other than within the United States or (iii) Indebtedness in respect of letters of
credit obtained other than pursuant to this Agreement, so long as the aggregate undrawn face amount
thereof does not exceed $750,000 at any time outstanding;
(p)(1) any guarantee by Intermediate Holdings or a Restricted Subsidiary of Indebtedness or
other obligations of any Restricted Subsidiary so long as in the case of a guarantee of Indebtedness by a
Restricted Subsidiary that is not a Guarantor, such Indebtedness could have been incurred directly by the
Restricted Subsidiary providing such guarantee or (2) any guarantee by a Restricted Subsidiary of
Indebtedness of Intermediate Holdings;
(q)Indebtedness of Restricted Subsidiaries that are not Guarantors in the aggregate not to
exceed (together with any Refinancing Indebtedness in respect thereof) the greater of (x) $16,000,000
and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro
Forma Basis) at the time of incurrence;
(r)Indebtedness of Intermediate Holdings or any of the Restricted Subsidiaries consisting of
(i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements in
each case, incurred in the ordinary course of business or consistent with past practice;
(s)(i) Indebtedness of Intermediate Holdings or any of the Restricted Subsidiaries
undertaken in connection with cash management and related activities with respect to any Subsidiary or
joint venture in the ordinary course of business, including with respect to financial accommodations of the
type described in the definition of “Cash Management Services” and (ii) Indebtedness owed on a short
term basis of no longer than 30 days to banks and other financial institutions incurred in the ordinary
course of business of Intermediate Holdings and its Restricted Subsidiaries with such banks or financial
institutions that arises in connection with ordinary banking arrangements to manage cash balances of
Intermediate Holdings and its Restricted Subsidiaries;
(t)Indebtedness consisting of Indebtedness issued by Intermediate Holdings or any of the
Restricted Subsidiaries to future, current or former officers, directors, managers and employees thereof,
their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of
Equity Interests of Intermediate Holdings or any direct or indirect parent company of Intermediate
Holdings to the extent permitted by Sections 10.5 and 10.6;
(u)Indebtedness in respect of (i) Permitted Other Indebtedness to the extent that the Net
Cash Proceeds therefrom are applied to the prepayment of Term Loans in the manner set forth in Section
5.2(a)(iii) and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in
subclause (i) above; provided that (x) the principal amount of any such Indebtedness is not increased
above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal
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or extension (except for any original issue discount thereon and the amount of fees, expenses, and
premium and accrued and unpaid interest in connection with such refinancing) and (y) such Indebtedness
otherwise complies with the definition of Permitted Other Indebtedness;
(v)so long as no Event of Default has occurred or is continuing at the time of incurrence of
such Indebtedness (or, if such Indebtedness is incurred in connection with a Limited Condition
Transaction, so long as no Event of Default shall exist at the time of execution of the definitive
documentation governing such Limited Condition Transaction and so long as no Event of Default under
Section 11.1 or Section 11.5 exists on the date such Indebtedness is incurred), Indebtedness in respect of
(i) Permitted Other Indebtedness; provided that the aggregate principal amount of all such Permitted
Other Indebtedness issued or incurred pursuant to this subclause (i) (together with any Refinancing
Indebtedness in respect thereof) shall not exceed the Maximum Incremental Facilities Amount, (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above to the
extent permitted pursuant to clause (l) above; provided further that, in each case under this clause (v), (x)
such Indebtedness otherwise complies with the definition of Permitted Other Indebtedness and (y) any
such Indebtedness that meets the MFN Parameters shall be subject to the MFN Protection and ((A) (x)
rank pari passu or subordinate in right of payment with the Obligations;
(w)(i) Indebtedness in respect of Permitted Debt Exchange Notes incurred pursuant to a
Permitted Debt Exchange in accordance with Section 2.15 (and which does not generate any additional
proceeds) and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in
subclause (i) above; provided that (x) the principal amount of any such Indebtedness is not increased
above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal
or extension (except for any original issue discount thereon and the amount of fees, expenses, and
premium and accrued and unpaid interest in connection with such refinancing) and (y) such Indebtedness
otherwise complies with the definition of Permitted Other Indebtedness;
(x)Indebtedness (including Indebtedness incurred to consummate a Permitted Acquisition or
other Investment and Acquired Indebtedness incurred in connection with or in contemplation of a
Permitted Acquisition or other Investment), subject to an Acceptable Intercreditor Agreement or other
applicable intercreditor arrangements (if any) applicable to the priority of Indebtedness contemplated
thereby, in an unlimited amount so long as (i) in the case of Indebtedness secured by Liens on the
Collateral on a pari passu basis with Liens on the Collateral securing the Obligations, the Consolidated
First Lien Secured Debt to Consolidated EBITDA Ratio (calculated on a Pro Forma Basis) shall be less
than or equal to 5.00:1.00; provided, however, that any Indebtedness that meets the MFN Parameters
incurred pursuant to this clause (i) (and any Refinancing Indebtedness in respect thereof) shall be subject
to the MFN Protection, (ii) in the case of Indebtedness secured by Liens on the Collateral on a junior lien
basis with the Liens on the Collateral securing the Obligations, the Consolidated Senior Secured Debt to
Consolidated EBITDA Ratio (calculated on a Pro Forma Basis) shall be less than or equal to 5.50:1.00
and (iii) in the case of Indebtedness that is unsecured or secured by assets other than Collateral, the
Consolidated Total Debt to Consolidated EBITDA Ratio (calculated on a Pro Forma Basis) shall be less
than or equal to 6.00:1.00; provided that the amount of Indebtedness that may be incurred pursuant to this
clause (x) by Restricted Subsidiaries that are not Guarantors (together with Refinancing Indebtedness in
respect thereof) shall not exceed the greater of (x) $16,000,000 and (y) 40% of Consolidated EBITDA
for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence;
provided, further, that any such Indebtedness otherwise complies with the definition of Permitted Other
Indebtedness;
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(y)unsecured Indebtedness, Disqualified Stock and preferred stock of Intermediate Holdings
or any Restricted Subsidiary in an aggregate principal amount (together with any Refinancing
Indebtedness in respect thereof) up to 100% of the net cash proceeds received by Intermediate Holdings
since immediately after the Closing Date from the issue or sale of Equity Interests of Intermediate
Holdings or cash contributed to the capital of Intermediate Holding (in each case, other than proceeds of
Cure Amounts, Disqualified Stock or sales of Equity Interests to Intermediate Holdings or any of its
Subsidiaries) as determined in accordance with clauses (c) and (d) of the definition of “Available
Amount” to the extent such net cash proceeds or cash have not been applied pursuant to such clauses to
make Restricted Payments, Investments or prepayments of Junior Debt pursuant to Section 10.5, 10.6 or
10.7;
(z)unsecured Indebtedness that represents accrued (or deferred) and unpaid management
fees to the Sponsor or its Affiliates; provided, that the payment of such management fees in respect of
such Indebtedness is not otherwise prohibited under Section 10.5;
(aa)Accounts payable (for the deferred purchase price of property or services) from time to
time incurred in the ordinary course of business;
(bb)Indebtedness arising in connection with endorsement of instruments for deposit in the
ordinary course of business;
(cc)Indebtedness representing deferred compensation to employees of Intermediate Holdings
or the Restricted Subsidiaries or similar arrangements (including, without limitation, Indebtedness issued
in connection with Restricted Payments permitted under Section 10.5(d));
(dd)Indebtedness consisting of local lines of credit, asset based facilities or other ordinary
course working capital facilities of Foreign Subsidiaries that are non-recourse to Intermediate Holdings
or any Guarantor in an aggregate amount not to exceed (together with any Refinancing Indebtedness in
respect thereof) the greater of $10,000,000 and 25% of Consolidated EBITDA for the most recently
ended Test Period (calculated on a Pro Forma Basis); and
(ee)Indebtedness of any Subsidiary incurred pursuant to a Permitted Receivables Financing.
Accrual of interest (including “paid-in-kind” interest) or dividends, the accretion of accreted value, the
accretion or amortization of original issue discount and the payment of interest or dividends in the form of
additional Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes of this
covenant. Any Refinancing Indebtedness and any Indebtedness incurred to refinance Indebtedness
incurred pursuant to clauses (a) and (y) above shall be deemed to include additional Indebtedness incurred
to pay premiums (including reasonable tender premiums), defeasance costs, fees and expenses in
connection with such refinancing.
10.2Limitation on Liens. Intermediate Holdings will not, and will not permit any of its
Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any property or assets of
any kind (real or personal, tangible or intangible) of Intermediate Holdings or any Restricted Subsidiary,
whether now owned or hereafter acquired, except:
(a)Liens securing the Obligations pursuant to the Security Documents;
(b)Permitted Liens;
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(c)Liens in existence on the Closing Date and disclosed on Schedule 10.2;
(d)Liens existing at the time such property is acquired on property acquired by Intermediate
Holdings or any of the Restricted Subsidiaries after the Closing Date or Liens existing on Property of a
Person immediately prior to such Person being consolidated with or merged into Intermediate Holdings
or any of the Restricted Subsidiaries or such Person becoming a Restricted Subsidiary; provided that (a)
no such Lien shall have been created or assumed in contemplation of such acquisition, consolidation or
merger or such Person’s becoming a Restricted Subsidiary, (b) each such Lien shall at all times be
confined solely to the Property so acquired and (c) the incurrence of any Indebtedness secured by such
Liens will not otherwise cause a Default hereunder;
(e)Liens to extend or renew Liens permitted by clauses (c) and (d) above so long as such
Liens do not extend to any property not subject to the original Lien;
(f)Liens securing Indebtedness incurred pursuant to Section 10.1(d); provided that any such
Liens attach only to the property being financed pursuant to such Indebtedness and do not encumber any
other property of Intermediate Holdings or any of its Restricted Subsidiaries;
(g)Liens securing Indebtedness on a pari passu or junior basis on the Collateral securing the
Obligations and outstanding pursuant to Section 10.1(k), subject to an Acceptable Intercreditor
Agreement or other applicable intercreditor arrangements (if any) applicable to the priority of
Indebtedness contemplated thereby, or Section 10.1(o)(iii) (including first priority liens on cash collateral
securing such Indebtedness);
(h)Liens securing Indebtedness outstanding pursuant to clauses (i), (l), (m), (q) (provided
such Liens shall be limited to Liens on the assets of the Restricted Subsidiaries that are not Guarantors),
(u), (v), (w), (x), (dd) (provided such Lien shall be limited to Liens secured by the assets of Restricted
Subsidiaries that are not Guarantors) or (gg) of Section 10.1, subject to an Acceptable Intercreditor
Agreement or other applicable customary intercreditor arrangements (if any) applicable to the priority of
Indebtedness contemplated thereby on terms reasonably acceptable to the Administrative Agent and
Intermediate Holdings;
(i)Liens securing Hedging Obligations and Cash Management Services, so long as the
related Indebtedness is, and is permitted hereunder to be, secured by a Lien on the same property
securing such Hedging Obligations and Cash Management Services;
(j)(i) Deposits securing liability to insurance carriers under insurance plans and (ii) pledges
and deposits securing liability for reimbursement or indemnification obligations of (including obligations
in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property,
casualty or liability insurance to Intermediate Holdings or any Restricted Subsidiary;
(k)Liens solely on any cash earnest money deposits made by Intermediate Holdings or any
of the Restricted Subsidiaries in connection with any letter of intent or purchase agreement in connection
with a Permitted Acquisition;
(l)Liens on securities that are the subject of repurchase agreements constituting Cash
Equivalents;
(m)Liens that are contractual rights of set-off (a) relating to the establishment of depository
relations with banks not given in connection with the issuance of Indebtedness, (b) relating to pooled
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deposits or sweep accounts of Intermediate Holdings or any of the Restricted Subsidiaries to permit
satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Intermediate
Holdings and the Restricted Subsidiaries or (c) relating to purchase orders and other agreements entered
into with customers in the ordinary course of business;
(n)Liens in favor of a Credit Party;
(o)Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to
Intermediate Holdings or any Restricted Subsidiary permitted to be incurred in accordance with Section
10.1;
(p)Liens to secure any refinancing, refunding, extension, renewal or replacement (or
successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in clauses (a), (f), (g), (h), (n) and (o) of this Section 10.2;
provided that (a) such new Lien shall be limited to all or part of the same property that secured the
original Lien (plus improvements on such property), and (b) the Indebtedness secured by such Lien at
such time is not increased to any amount greater than the sum of (1) the outstanding principal amount or,
if greater, the committed amount of the Indebtedness described in clauses (a), (f), (g), (h), (n) and (o) at
the time the original Lien became permitted under this Agreement, and (2) an amount necessary to pay
any fees and expenses, including premiums and accrued and unpaid interest, related to such refinancing,
refunding, extension, renewal, or replacement;
(q)Liens granted by any Restricted Subsidiary pursuant to a Permitted Receivables
Financing securing debt incurred pursuant to Section 10.1(ee); and
(r)Liens securing Bonding Obligations incurred in the ordinary course of business or
consistent with past practice or industry norm and permitted under Section 10.1(j)(ii).
10.3Limitation on Fundamental Changes. Intermediate Holdings will not, and will not permit
any of its Restricted Subsidiaries to, enter into any merger, consolidation or amalgamation, or liquidate,
wind up, strike-off or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all its business units, assets or other
properties, except that:
(a)so long as no Event of Default has occurred and is continuing or would result therefrom,
any Subsidiary of Intermediate Holdings or any other Person may be merged, amalgamated or
consolidated with or into the Borrower; provided that (A) the Borrower shall be the continuing or
surviving corporation or (B) if the Person formed by or surviving any such merger, amalgamation or
consolidation is not the Borrower (such other Person, the “Successor Borrower”), (1) the Successor
Borrower shall be an entity organized or existing under the laws of the United States, any state thereof,
the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all
the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a
supplement hereto or thereto or in a form otherwise reasonably satisfactory to the Administrative Agent,
(3) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have,
by a supplement to the Guarantee, confirmed that its guarantee thereunder shall apply to any Successor
Borrower’s obligations under this Agreement, (4) each Subsidiary grantor and each Subsidiary pledgor,
unless it is the other party to such merger, amalgamation or consolidation, shall have, by a supplement to
any applicable Security Document, affirmed that its obligations thereunder shall apply to its Guarantee as
reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party
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to such merger, amalgamation or consolidation, shall have affirmed that its obligations under the
applicable Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause (3), and (6) the
Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating
that such merger, amalgamation, or consolidation and such supplements preserve the enforceability of the
Guarantee and the perfection and priority of the Liens under the applicable Security Documents, (y) if
requested by the Administrative Agent, an opinion of counsel to the effect that such merger,
amalgamation, or consolidation does not violate this Agreement or any other Credit Document and that
the provisions set forth in the preceding clauses (3) through (5) preserve the enforceability of the
Guarantee and the perfection of the Liens created under the applicable Security Documents (it being
understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted
for, the Borrower under this Agreement) and (z) all reasonably requested documentation and other
information regarding the Successor Borrower requested in connection with applicable “know your
customer” and anti-money laundering rules and regulations, to the extent requested within three (3)
Business Days of the Administrative Agent being provided written notice of the Successor Borrower
transaction;
(b)so long as no Event of Default has occurred and is continuing or would result therefrom,
any Subsidiary of Intermediate Holdings or any other Person (in each case, other than the Borrower) may
be merged, amalgamated or consolidated with or into any one or more Subsidiaries of Intermediate
Holdings; provided that (i) in the case of any merger, amalgamation or consolidation involving one or
more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or
(B) the Borrower shall cause the Person formed by or surviving any such merger, amalgamation or
consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of
any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the
continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or
consolidation and if the surviving Person is not already a Guarantor, such Person shall execute a
supplement to the Guarantee and the relevant Security Documents in form and substance reasonably
satisfactory to the Administrative Agent in order to become a Guarantor and pledgor, mortgagor and
grantor, as applicable, thereunder for the benefit of the Secured Parties, and (iii) the Borrower shall have
delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or
consolidation and any such supplements to any Security Document preserve the enforceability of the
Guarantees and the perfection and priority of the Liens under the applicable Security Documents;
(c)the Transactions may be consummated;
(d)(i) any Restricted Subsidiary that is not a Credit Party may convey, sell, lease, assign,
transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or dissolution or
otherwise) to Intermediate Holdings or any Restricted Subsidiary or (ii) any Credit Party (other than the
Borrower, Intermediate Holdings or Holdings) may convey, sell, lease, assign, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or dissolution or otherwise) to any other
Credit Party;
(e)any Subsidiary (other than the Borrower, Intermediate Holdings or Holdings) may
convey, sell, lease, assign, transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or dissolution or otherwise) to a Credit Party; provided that the consideration for any such
disposition by any Person other than a Guarantor shall not exceed the fair value of such assets (as
determined by Intermediate Holdings in good faith);
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(f)Intermediate Holdings and the Restricted Subsidiaries may consummate a merger,
dissolution, liquidation, consolidation, investment or conveyance, sale, lease, assignment or disposition,
the purpose of which is to effect an Asset Sale permitted by Section 10.4 or an investment permitted
pursuant to Section 10.6; and
(g)undertaking or consummating any IPO Reorganization Transactions.
10.4Limitation on Sale of Assets. Intermediate Holdings will not, and will not permit any of
its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(a)(i) Intermediate Holdings or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined in
good faith by Intermediate Holdings at the time of contractually agreeing to such Asset Sale) of the assets
sold or otherwise disposed of and (ii) no Event of Default shall have occurred and be continuing at the
time of execution of the definitive documentation in respect of such Asset Sale and no Event of Default
pursuant to Sections 11.1 or 11.5 (with respect to the Borrower) shall have occurred and be continuing at
the time of consummation of such Asset Sale;
(b)Intermediate Holdings or such Restricted Subsidiary may consummate any Asset Sale
required by the U.S. Department of Justice as a condition to anti-trust clearance; and
(c)except in the case of a Permitted Asset Swap (but subject to the last sentence of this
clause), if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of the
greater of $2,000,000 and 5% of Consolidated EBITDA for the most recently ended Test Period
(calculated on a Pro Forma Basis), at least 75% of the consideration therefor received by Intermediate
Holdings or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents;
provided that the amount of:
(i)any liabilities (as reflected on Intermediate Holdings’ most recent consolidated
balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance
sheet, such liabilities that would have been reflected on Intermediate Holdings’ consolidated balance
sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of
such consolidated balance sheet, as determined in good faith by Intermediate Holdings) of Intermediate
Holdings, other than liabilities that are by their terms subordinated to the Loans, that are assumed by the
transferee of any such assets (or are otherwise extinguished in connection with the transactions relating
to such Asset Sale) and for which Intermediate Holdings and all such Restricted Subsidiaries have been
validly released by all applicable creditors in writing;
(ii)any securities, notes or other obligations or assets received by Intermediate
Holdings or such Restricted Subsidiary from such transferee that are converted by Intermediate Holdings
or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied
for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within
180 days following the closing of such Asset Sale;
(iii)Indebtedness, other than liabilities that are by their terms subordinated to the
Loans, that are of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such
Asset Sale, to the extent that Intermediate Holdings and all Restricted Subsidiaries have been validly
released from any Guarantee of payment of such Indebtedness in connection with such Asset Sale;
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(iv)any Designated Non-Cash Consideration received by Intermediate Holdings or
such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together
with all other Designated Non-Cash Consideration received pursuant to this clause (iv) that is at that time
outstanding, not to exceed the greater of $8,000,000 and 20% of Consolidated EBITDA for the most
recently ended Test Period (calculated on a Pro Forma Basis) at the time of the receipt of such
Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash
Consideration being measured at the time received and without giving effect to subsequent changes in
value, shall be deemed to be cash for purposes of this clause (c) of this provision and for no other
purpose; and
(v)no Event of Default shall have occurred and be continuing at the execution of
definitive documentation in respect of such Asset Sale and no Event of Default under Sections 11.1 or
11.5 shall have occurred and be continuing at the consummation of such Asset Sale.
Within the Reinvestment Period after Intermediate Holdings’ or any Restricted Subsidiary’s
receipt of the Net Cash Proceeds of any Asset Sale (including any cash or Cash Equivalents received by
the Borrower or Restricted Subsidiary in connection with any Permitted Asset Swap), Intermediate
Holdings or such Restricted Subsidiary shall apply the Net Cash Proceeds from such Asset Sale:
(A)(x) to prepay Loans or Permitted Other Indebtedness in accordance with
Section 5.2(a)(i); and/or
(B)to make investments in Intermediate Holdings and its Subsidiaries;
provided that Intermediate Holdings and the Restricted Subsidiaries will be deemed to have complied
with this clause (B) if and to the extent that, within the Reinvestment Period after the Asset Sale that
generated the Net Cash Proceeds, Intermediate Holdings or such Restricted Subsidiary has entered into
and not abandoned or rejected a binding agreement or letter of intent to consummate any such investment
described in this clause (B) with the good faith expectation that such Net Cash Proceeds will be applied
to satisfy such commitment within 180 days of such commitment and, in the event any such commitment
is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection
therewith, Intermediate Holdings or such Restricted Subsidiary prepays the Loans in accordance with
Section 5.2(a)(i).
(d)Pending the final application of any Net Cash Proceeds pursuant to this covenant,
Intermediate Holdings or the applicable Restricted Subsidiary may apply such Net Cash Proceeds
temporarily to reduce Indebtedness outstanding under the Revolving Credit Facility or any other
revolving credit facility or otherwise invest such Net Cash Proceeds in any manner not prohibited by this
Agreement.
10.5Limitation on Restricted Payments. The Borrower will not, and will not permit any of its
Restricted Subsidiaries to, declare, pay or make any Restricted Payment, except:
(a)the Borrower may declare and pay dividends with respect to its Equity Interests payable
solely in additional shares of its common stock;
(b)Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity
Interests;
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(c)the Borrower may make Restricted Payments pursuant to and in accordance with stock
option plans or other benefit plans for management, employees or independent consultants of the
Borrower and the Restricted Subsidiaries;
(d)the Borrower may make Restricted Payments to pay for the repurchase, retirement or
other acquisition or retirement for value of Equity Interests of the Borrower or any direct or indirect
Parent Entity or management investment vehicle held by any future, present or former employee,
director, manager or consultant of the Borrower or any of its Subsidiaries, or their estates, descendants,
family, spouse or former spouse pursuant to any management equity plan or stock option or phantom
equity plan or any other management or employee benefit plan or agreement, or any stock subscription or
shareholder agreement; provided that the aggregate Restricted Payments made under this clause (d)
subsequent to the Closing Date do not exceed $7,500,000 in any calendar year;
(e)the Borrower may purchase, redeem or otherwise acquire Equity Interests issued by it
with the proceeds received from the substantially concurrent issuance of its Equity Interests;
(f)the Borrower may repurchase fractional shares of its Equity Interests arising out of stock
dividends, splits or combinations, business combinations or conversions of convertible securities;
(g)the Borrower or any Subsidiary may receive or accept the return to the Borrower or any
Restricted Subsidiary of Equity Interests of the Borrower or any Subsidiary constituting a portion of the
purchase price consideration in settlement of indemnification claims;
(h)the Borrower or any Subsidiary may make payments or distributions to dissenting
stockholders pursuant to applicable law;
(i)the Borrower or any Restricted Subsidiary may make Restricted Payments in an amount
not to exceed the Available Amount; provided that no Event of Default shall have occurred and be
continuing or would result therefrom and, solely with respect to Restricted Payments made in reliance on
the Available Amount Builder Component, after giving effect thereto on a Pro Forma Basis, the
Consolidated Total Debt to Consolidated EBITDA Ratio is not greater than 4.25 to 1.00;
(j)[Reserved];
(k)the declaration and payment of dividends by or the making of loans to the Borrower or
any direct or indirect parent company of the Borrower in amounts required for any direct or indirect
parent company to pay (A) franchise, excise and other similar taxes, and other fees and expenses,
required, in each case, to maintain its organizational existence, (B) customary salary, bonus and other
benefits payable to officers, employees, directors, and managers of any direct or indirect parent company
of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership
or operation of the Borrower and its Restricted Subsidiaries, including the Borrower’s proportionate share
of such amount relating to such Parent Entity being a public company, (C) general corporate or other
operating (including, without limitation, expenses related to filing, auditing or other accounting matters)
and overhead costs and expenses of any direct or indirect Parent Entity to the extent such costs and
expenses are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries,
including the Borrower’s proportionate share of such amount relating to such Parent Entity being a public
company and (D) amounts required for any direct or indirect Parent Entity to pay fees and expenses
incurred by any direct or indirect Parent Entity related to (i) the maintenance by such parent entity of its
corporate or other entity existence and (ii) transactions of such Parent Entity of the type described in
clause (x) of the definition of Consolidated Net Income;
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(l)the Borrower may make Restricted Payments to Holdings or any direct or indirect parent
company that are used by the Borrower or such parent company to satisfy its obligations pursuant to its
organizational documents, in each case, as in effect on the Closing Date with respect to indemnifying its
direct or indirect parent company, managing member, officers and directors, with respect to liabilities
incurred in performing work for the benefit of the Borrower and the other Restricted Subsidiaries;
(m)so long as no Event of Default shall have occurred and be continuing at the time of
payment thereof, the Borrower or any Restricted Subsidiary may make additional Restricted Payments,
so long as, after giving effect thereto on a Pro Forma Basis, the Consolidated Total Debt to Consolidated
EBITDA Ratio is not greater than 4.00:1.00;
(n)(A) the declaration and payment of dividends to the Borrower in respect of Designated
Preferred Stock (other than Disqualified Stock) issued by the Borrower after the Closing Date or (B) the
declaration and payment of dividends to any direct or indirect parent company of the Borrower, the
proceeds of which will be used to fund the payment of dividends to holders of any class or series of
Designated Preferred Stock (other than Disqualified Stock) of such parent company issued after the
Closing Date; provided that the amount of dividends paid pursuant to this clause (B) shall not exceed the
aggregate amount of cash actually contributed to the Borrower from the sale of such Designated
Preferred Stock;
(o)(i) payments made or expected to be made by the Borrower or any Restricted Subsidiary
in respect of withholding or similar Taxes (for the avoidance of doubt, excluding any income or similar
Taxes) payable upon exercise of Equity Interests by any future, present or former employee, director,
manager or consultant and repurchases of Equity Interests deemed to occur upon exercise of stock
options or warrants if such Equity Interests represent a portion of the exercise price of such options or
warrants and (ii) payments or other adjustments to outstanding Equity Interests in accordance with any
management equity plan, stock option plan or any other similar employee benefit plan, agreement or
arrangement in connection with any Restricted Payment;
(p)after an IPO, the declaration and payment of dividends on the Borrower’s common
Equity Interests (or the payment of dividends to any direct or indirect parent of the Borrower to fund the
payment by any direct or indirect parent of the Borrower of dividends on such entity’s common Equity
Interests) of the greater of (x) up to 7.0% per annum of the cash proceeds net of underwriting fees
received by the Borrower from any public offering of Equity Interests or contributed to the Borrower by
any direct or indirect parent of the Borrower from any public offering of Equity Interests and (y) an
aggregate amount per annum not to exceed 7.0% of Market Capitalization;
(q)the Borrower or any Restricted Subsidiary may purchase the Equity Interests of the
Borrower or any Restricted Subsidiary;
(r)so long as no Event of Default shall have occurred or be continuing at the time of
payment thereof, other Restricted Payments, taken together with all other Restricted Payments made
pursuant to this clause, in an aggregate amount not to exceed the greater of (x) $14,000,000 and (y) 35%
of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis);
(s)for any taxable period for which the Borrower is treated as a partnership, disregarded
entity or other pass-through entity for U.S. federal income tax purposes (other than any such entity that is
wholly-owned (directly or indirectly) by a C corporation for U.S. federal income tax purposes, the
Borrower may make cash distributions (the “Tax Distributions”) to its direct and indirect equity holders
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to pay U.S. federal, state and/or local income taxes (as the case may be) attributable to the income of the
Borrower and its Subsidiaries that are pass-through entities for such tax purposes for any such taxable
period in an aggregate amount not to exceed the product of (1) the total net taxable income of the
Borrower and such Subsidiaries for such taxable period and (2) the highest combined federal, state and
local income tax rate applicable to any such direct or indirect owner for such taxable period (taking into
account (a) character of the income and deductibility of state and local taxes (subject to any applicable
limitations on deductibility) and (b) any net operating loss carryovers attributable to the Borrower and its
Subsidiaries, as the case may be, for taxable periods (or portion thereof) beginning after the Closing
Date, to the extent such carryforwards are available to offset the taxable income of the Borrower and its
Subsidiaries for such taxable year under applicable law, but excluding (x) allocations under Section
704(c) of the Code) and (y) any adjustment resulting from the step-up to the tax basis of property at the
equity holder level pursuant to Section 734, 743, or 754 of the Code and any comparable provision of
state and local income tax law, net of any payments already made or withheld by the Borrower or such
Subsidiaries for such taxes; provided, that dividends and distributions for this purpose with respect to any
Unrestricted Subsidiary shall be permitted solely to the extent of the amount of cash received from such
Unrestricted Subsidiary for such purpose;
(t)to the extent constituting Restricted Payments, the Borrower and its Restricted
Subsidiaries may enter into and consummate transactions expressly permitted by any provision of
Section 10.3, Section 10.6 or Section 10.14;
(u)(i) any Restricted Payment made in connection with the Transactions (including to
holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in
connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or
actions (whether actual, contingent or potential) with respect thereto), in each case, with respect to the
Transactions and the fees and expenses related thereto or used to fund amounts owed to Affiliates
(including dividends to any direct or indirect parent company of the Borrower to permit payment by such
parent of such amount), to the extent permitted by Section 10.14 (other than clause (b) thereof), and (ii)
Restricted Payments in respect of working capital adjustments or purchase price adjustments pursuant to
the Acquisition Agreement, any Permitted Acquisition or other Permitted Investment and to satisfy
indemnity and other similar obligations under the Acquisition Agreement, any Permitted Acquisitions or
other Permitted Investments; and
(v)AHYDO Payments with respect to Indebtedness of the Borrower and its Restricted
Subsidiaries.
10.6Limitation on Investments. Intermediate Holdings will not, and will not permit any of its
Restricted Subsidiaries to, make, purchase or acquire any Investments, except (each, a “Permitted
Investment”):
(a)any Investment in Intermediate Holdings or any Restricted Subsidiary (including
intercompany loans, reorganizations and other similar activities); provided that Investments made
pursuant to this clause (a) (i) in the form of intercompany Indebtedness owing to a Restricted Subsidiary
that is not a Credit Party, shall be subject to the limitations set forth in Section 10.1(g) and (ii) by
Intermediate Holdings or a Guarantor in Restricted Subsidiaries that are not Guarantors shall not exceed
at any time, together with other outstanding Investments made pursuant to Section 10.6(c)(E), the greater
of (x) $24,000,000 and (y) 60% of Consolidated EBITDA for the most recently ended Test Period
(calculated on a Pro Forma Basis) at the time such Investment is made; provided that such cap shall not
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apply to any transactions arising from cash management, tax and/or accounting operations made in the
ordinary course of business.
(b)any Investment in cash, Cash Equivalents, or Investment Grade Securities at the time
such Investment is made;
(c)(i) any transactions or Investments otherwise made in connection with the Transactions
and (ii) any purchase or other acquisition, by merger or otherwise, by Intermediate Holdings or any
Restricted Subsidiary of all or substantially all of the Equity Interests in, or all or substantially all the
assets of (or all or substantially all the assets constituting a business unit, division, product line or line of
business of (including research and development and related assets in respect of any product)), any
Person (each, a “Permitted Acquisition”), provided that (A) in the case of any purchase or other
acquisition of Equity Interests in a Person, such Person, upon the consummation of such acquisition, will
be a Restricted Subsidiary (including as a result of a merger or consolidation between any Restricted
Subsidiary and such Person), (B) the business of such Person, or such assets, as the case may be,
constitute a business permitted by Section 10.11, (C) Intermediate Holdings shall comply with Section
9.13 with respect to each such Person, (D) the absence of an Event of Default under Section 11.1 and
Section 11.5 shall exist at the time of consummation and (E) acquisitions of entities whose Equity
Interests are being acquired do not become Guarantors shall not exceed at any time, together with other
outstanding Investments made pursuant to Section 10.06(a)(ii) (unless not subject to any cap thereof), the
greater of (x) $24,000,000 and (y) 60% of Consolidated EBITDA for the most recently ended Test Period
(calculated on a Pro Forma Basis) at the time of such Investment (with the Fair Market Value of each
Investment being measured at the time made and without giving effect to subsequent changes in value);
(d)any Investment in securities or other assets not constituting cash, Cash Equivalents or
Investment Grade Securities and received in connection with an Asset Sale made pursuant to
Section 10.4 or any other disposition of assets not constituting an Asset Sale;
(e)(i) any Investment existing or contemplated on the Closing Date and listed on
Schedule 10.6 and (ii) Investments consisting of any modification, replacement, renewal, reinvestment or
extension of any such Investment; provided that the amount of any such Investment is not increased from
the amount of such Investment on the Closing Date except pursuant to the terms of such Investment
(including in respect of any unused commitment), plus any accrued but unpaid interest (including any
portion thereof which is payable in kind in accordance with the terms of such modified, extended,
renewed or replaced Investment) and any premium payable by the terms of such Indebtedness thereon
and fees and expenses associated therewith as of the Closing Date;
(f)any Investment acquired by a Intermediate Holdings or any Restricted Subsidiary (i) in
exchange for any other Investment or accounts receivable held by a Intermediate Holdings or any such
Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of such other Investment or accounts receivable or (ii) as a result of a foreclosure by a
Intermediate Holdings or any Restricted Subsidiary with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default;
(g)Hedging Obligations permitted under Section 10.1 and Cash Management Services;
(h)guarantees of Indebtedness permitted under Section 10.1 and Investments to the extent
constituting Permitted Liens;
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(i)any transaction to the extent it constitutes an Investment that is permitted and made in
accordance with the provisions of Section 10.14 (except transactions described in clause (b) of
Section 10.14);
(j)Investments consisting of purchases and acquisitions of inventory, supplies, material,
equipment or other similar assets in the ordinary course of business;
(k)loans and advances to or guarantees of Indebtedness of officers, directors, managers and
employees not to exceed the greater of $6,000,000 and 15% of Consolidated EBITDA for the most
recently ended Test Period, at any time outstanding;
(l)Investments consisting of extensions of trade credit in the ordinary course of business;
(m)Investments in the ordinary course of business consisting of Uniform Commercial Code
Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary
trade arrangements with customers consistent with past practices;
(n)non-cash Investments in connection with tax planning and reorganization activities;
provided that after giving effect to any such activities, the security interests of the Lenders in the
Collateral, taken as a whole, would not be materially impaired;
(o)Investments made in the ordinary course of business in connection with obtaining,
maintaining or renewing client, franchisee and customer contracts and loans or advances made to, and
guarantees with respect to obligations of, franchisees, distributors, suppliers, licensors and licensees in
the ordinary course of business;
(p)Investments consisting of the licensing, sub-licensing and contribution of Intellectual
Property pursuant to joint development, venture or marketing arrangements with other Persons in the
ordinary course of business;
(q)contributions to a “rabbi” trust for the benefit of employees, directors, consultants,
independent contractors or other service providers or other grantor trust subject to claims of creditors in
the case of a bankruptcy of the Borrower or Intermediate Holdings;
(r)Investments by an Unrestricted Subsidiary entered into prior to the day such Unrestricted
Subsidiary is redesignated as a Restricted Subsidiary pursuant to the definition of “Unrestricted
Subsidiary”;
(s)other Investments made with any portion of the Available Amount;
(t)so long as no Event of Default pursuant to Sections 11.1 and 11.5 shall have occurred
and be continuing at the time of such Investment, Intermediate Holdings or any Restricted Subsidiary may
make additional Investments so long as, after giving effect thereto on a Pro Forma Basis, the Consolidated
Total Debt to Consolidated EBITDA Ratio is not greater than 4.75:1.00.
(u)any Investment in a Similar Business having an aggregate Fair Market Value, taken
together with all other Investments made pursuant to this clause (u) that are at that time outstanding, not
to exceed the greater of (a) $10,000,000 and (b) 25% of Consolidated EBITDA for the most recently
ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the Fair Market
Value of each Investment being measured at the time made and without giving effect to subsequent
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changes in value); provided, however, that if any Investment pursuant to this clause (u) is made in any
Person that is not a Restricted Subsidiary at the date of the making of such Investment and such Person
becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been
made pursuant to clause (a) above (to the extent such Investment would otherwise be permitted
thereunder at such time) and shall cease to have been made pursuant to this clause (u) for so long as such
Person continues to be a Restricted Subsidiary;
(v)additional Investments having an aggregate Fair Market Value, taken together with all
other Investments made pursuant to this clause (v), (without giving effect to the sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), not to
exceed the greater of (a) $20,000,000 and (b) 50% of Consolidated EBITDA for the most recently ended
Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the Fair Market Value
of each Investment being measured at the time made and without giving effect to subsequent changes in
value); provided, however, that if any Investment pursuant to this clause (v) is made in any Person that is
not a Restricted Subsidiary at the date of the making of such Investment and such Person becomes a
Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made
pursuant to clause (a) above (to the extent such Investment would otherwise be permitted thereunder at
such time) and shall cease to have been made pursuant to this clause (v) for so long as such Person
continues to be a Restricted Subsidiary;
(w)advances of payroll payments to employees in the ordinary course of business;
(x)accounts receivable arising in the ordinary course of business and Investments received in
satisfaction or partial satisfaction thereof from financially troubled account debtors;
(y)Investments in the ordinary course of business consisting of endorsements for collection
or deposit; and
(z)(i) Investments in joint ventures not to exceed the greater of (a) $10,000,000 and (b) 25%
of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at
the time of such Investment (with the Fair Market Value of each Investment being measured at the time
made and without giving effect to subsequent changes in value) and (ii) Investments in Unrestricted
Subsidiaries not to exceed the greater of (a) $10,000,000 and (b) 25% of Consolidated EBITDA for the
most recently ended Test Period (calculated on a Pro Forma Basis); provided, that notwithstanding
anything to the contrary set forth in this Agreement, no Investment may be made in an Unrestricted
Subsidiary except in reliance on this clause (z)(ii).
Intermediate Holdings will not permit any Unrestricted Subsidiary to become a Restricted
Subsidiary except pursuant to the last sentence of the definition of Unrestricted Subsidiary. For purposes
of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by
Intermediate Holdings and the Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so
designated will be deemed to be an investment in an amount determined as set forth in the last sentence
of the definition of Investment. Such designation will be permitted only if an Investment in such amount
would be permitted at such time, and if such Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. Unrestricted Subsidiaries will not be subject to any of the restrictive covenants set forth in
this Agreement. Notwithstanding anything herein to the contrary, (x) none of Holdings, Intermediate
Holdings, the Borrower or any Restricted Subsidiary may transfer (including by way of license,
sublicense, or any other disposition) Material Intellectual Property to an Unrestricted Subsidiary and (y)
no Restricted Subsidiary that owns Material Intellectual Property may be designated as an Unrestricted
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Subsidiary. Notwithstanding anything in this Agreement or the other Credit Documents to the contrary,
no Credit Party may transfer or assign legal title to any Material Intellectual Property (including by any
Asset Sale, Investment, Restricted Payment or exclusive license) to any Restricted Subsidiary that is not
a Credit Party (including by any Asset Sale, Investment, Restricted Payment or exclusive license), if (i)
such transfer is made in connection with or otherwise supporting the incurrence of any Indebtedness or
equity financing at any Restricted Subsidiary that is not a Credit Party or (ii) there is no bona fide
business purpose (as determined by the Borrower in good faith) for such transfer or assignment.
10.7Limitation on Prepayments of Junior Debt. Intermediate Holdings will not, and will not
permit any of its Restricted Subsidiaries to, make any payment or other distribution (whether in cash,
securities or other property) of or in respect of any Junior Debt (“Restricted Debt Payments”) in an
aggregate principal amount exceeding the greater of $2,000,000 and 5% of Consolidated EBITDA of the
most recently ended Test Period (calculated on a Pro Forma Basis) of Intermediate Holdings or any
Restricted Subsidiary, including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination in respect of any Junior Debt except for:
(a)Refinancing Indebtedness,
(b)payments of regularly scheduled interest and payment of principal on the scheduled
maturity date of any Junior Debt;
(c)the conversion of any Junior Debt to Equity Interests (other than Disqualified Stock) of
Intermediate Holdings or any Restricted Subsidiary;
(d)so long as no Event of Default shall have occurred and be continuing at the time of
payment thereof, Intermediate Holdings or any Restricted Subsidiary may make additional payments or
distributions in respect of Junior Debt prior to its scheduled maturity so long as, after giving effect to
such payments or distribution on a Pro Forma Basis, the Consolidated Total Debt to Consolidated
EBITDA Ratio is not greater than 4.25:1.00;
(e)Intermediate Holdings or any Restricted Subsidiary may make payments or distributions
in respect of Junior Debt with the Available Amount; provided that no Event of Default shall have
occurred and be continuing or would result therefrom at the time of declaration thereof and, solely with
respect to use of the Available Amount Builder Component to make payments or distributions in respect
of Junior Debt, after giving effect thereto on a Pro Forma Basis, the Consolidated Total Debt to
Consolidated EBITDA Ratio is not greater than 4.50 to 1.00;
(f)payments or distributions in amounts that would otherwise have been permitted to be
made as Restricted Payments; provided that any such prepayment shall constitute a utilization of the
applicable Restricted Payment capacity;
(g)so long as no Event of Default shall have occurred and be continuing at the time of
declaration thereof, other payments or distributions in respect of Junior Debt in an aggregate amount, not
to exceed the greater of (x) $14,000,000 and (y) 35% of Consolidated EBITDA for the most recently
ended Test Period (calculated on a Pro Forma Basis) at the time made;
(h)prepayments, redemptions or repurchase of Junior Debt that constitutes Acquired
Indebtedness permitted to be assumed pursuant to Section 10.1 hereof in connection with a Permitted
Acquisition or similar Investment; and
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(i)AHYDO Payments with respect to Indebtedness of Intermediate Holdings and its
Restricted Subsidiaries.
Prior to the Term Loan Maturity Date, to the extent any Permitted Debt Exchange Notes are
issued pursuant to Section 10.1(w) for the purpose of consummating a Permitted Debt Exchange,
(i) Intermediate Holdings will not, and will not permit its Restricted Subsidiaries to, prepay, repurchase,
redeem or otherwise defease or acquire any Permitted Debt Exchange Notes unless Intermediate
Holdings or a Restricted Subsidiary shall concurrently voluntarily prepay Term Loans pursuant to
Section 5.1(a) on a pro rata basis among the Term Loans, in an amount not less than the product of (a) a
fraction, the numerator of which is the aggregate principal amount (calculated on the face amount
thereof) of such Permitted Debt Exchange Notes that are proposed to be prepaid, repurchased, redeemed,
defeased or acquired and the denominator of which is the aggregate principal amount (calculated on the
face amount thereof) of all Permitted Debt Exchange Notes in respect of the relevant Permitted Debt
Exchange then outstanding (prior to giving effect to such proposed prepayment, repurchase, redemption,
defeasance or acquisition) and (b) the aggregate principal amount (calculated on the face amount thereof)
of Term Loans then outstanding and (ii) Intermediate Holdings will not waive, amend or modify the
terms of any Permitted Debt Exchange Notes or any indenture pursuant to which such Permitted Debt
Exchange Notes have been issued in any manner inconsistent with the terms of Section 2.15(a),
Section 10.1(w), or the definition of Permitted Other Indebtedness or that would result in an Event of
Default hereunder if such Permitted Debt Exchange Notes (as so amended or modified) were then being
issued or incurred.
10.8Limitation on Subsidiary Distributions; Negative Pledge. Intermediate Holdings will not
permit any of its Restricted Subsidiaries to create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or consensual restriction on the ability of any such Restricted
Subsidiary to:
(a)(i) pay dividends or make any other distributions to Intermediate Holdings or any
Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or
measured by, its profits or (ii) pay any Indebtedness owed to Intermediate Holdings or any Restricted
Subsidiary;
(b)make loans or advances to Intermediate Holdings or any Restricted Subsidiary;
(c)sell, lease or transfer any of its properties or assets to Intermediate Holdings or any
Restricted Subsidiary; or
(d)create, incur, assume or suffer to exist any Lien upon any of its property or revenues,
whether now owned or hereafter acquired, for the benefit of the Secured Parties with respect to the
Obligations or under the Credit Documents; except for such encumbrances or restrictions existing under
or by reason of:
(i)contractual encumbrances or restrictions in effect on the Closing Date, including
pursuant to this Agreement and the related documentation and related Hedging Obligations;
(ii)[reserved];
(iii)purchase money obligations for property acquired in the ordinary course of
business or consistent with past practice and Capitalized Lease Obligations that impose restrictions of the
nature discussed in clause (c) above on the property so acquired;
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(iv)Requirements of Law or any applicable rule, regulation or order, or any request
of any Governmental Authority having regulatory authority over Intermediate Holdings or any of its
Subsidiaries;
(v)any agreement or other instrument of a Person acquired by or merged or
consolidated with or into Intermediate Holdings or any Restricted Subsidiary, or of an Unrestricted
Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the
acquisition of assets from such Person, in each case that is in existence at the time of such transaction
(but not created in contemplation thereof), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the
property or assets of the Person and its Subsidiaries, so acquired or designated;
(vi)contracts for the sale of assets, including customary restrictions with respect to a
Subsidiary of Intermediate Holdings pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets of such Subsidiary and restrictions on
transfer of assets subject to Permitted Liens;
(vii)(x) secured Indebtedness otherwise permitted to be incurred pursuant to
Sections 10.1 and 10.2 that limit the right of the debtor to dispose of the assets securing such Indebtedness
and (y) restrictions on transfers of assets subject to Permitted Liens (but, with respect to any such
Permitted Lien, only to the extent that such transfer restrictions apply solely to the assets that are the
subject of such Permitted Lien);
(viii)restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business;
(ix)other Indebtedness, Disqualified Stock or preferred stock of Restricted
Subsidiaries permitted to be incurred subsequent to the Closing Date pursuant to the provisions of
Section 10.1;
(x)customary provisions in joint venture agreements or arrangements and other
similar agreements or arrangements relating solely to such joint venture and the Equity Interests issued
thereby;
(xi)customary provisions contained in leases, sub-leases, licenses, sub-licenses, or
similar agreements, in each case, entered into in the ordinary course of business;
(xii)restrictions and conditions imposed under the terms of any agreement entered
into in connection with any Permitted Receivables Financing; and
(xiii)any encumbrances or restrictions of the type referred to in clauses (a), (b), (c)
and (d) above imposed by any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (i) through (xii) above; provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings (x) are, in the
good faith judgment of Intermediate Holdings’ boards of directors, no more restrictive in any material
respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such
amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or
refinancing or (y) do not impair the Intermediate Holdings’ ability to pay their respective obligations
under the Credit Documents as and when due (as determined in good faith by Intermediate Holdings).
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10.9Consolidated Total Debt to Consolidated EBITDA Ratio. Commencing with the fiscal
quarter ending June 30, 2025, Intermediate Holdings will not permit the Consolidated Total Debt to
Consolidated EBITDA Ratio as of the last day of any Test Period to be greater than 8.50:1.00.
10.10Permitted Activities. Holdings shall not conduct, transact or otherwise engage in any
business or operations other than (i) the ownership of the Capital Stock of Intermediate Holdings, (ii) the
maintenance of its legal existence, including the ability to incur fees, costs and expenses relating to such
maintenance, (iii) participating in tax, accounting and other administrative matters as owner of the
Capital Stock of Intermediate Holdings and its Subsidiaries and reporting related to such matters, (iv) the
performance of its obligations under and in connection with the Credit Documents, any documentation
governing Permitted Other Indebtedness or any refinancing thereof, the Advisory Services Agreement
and the other agreements contemplated hereby and thereby, (v) any public offering of its common stock
or any other issuance or registration of its Capital Stock for sale or resale not prohibited by Section 10,
including the ability to incur costs, fees and expenses related thereto, (vi) incurring fees, costs and
expenses relating to overhead and general operating including professional fees for legal, tax and
accounting matters, (vii) providing indemnification to officers and directors and as otherwise permitted
hereunder, (viii) activities incidental to the consummation of the Transactions, (ix) financing activities,
including the issuance of securities, incurrence of debt, payment of dividends, making contributions to
the capital of Intermediate Holdings and guaranteeing the obligations of Intermediate Holdings, (x) any
other transaction permitted pursuant to Section 10, (xi) undertaking or consummating any IPO
Reorganization Transactions or any transaction related thereto or contemplated thereby, (xii) the
ownership of assets owned by Holdings on the Closing Date and (xiii) activities incidental to the
businesses or activities described in clauses (i) through (xii) of this Section 10.10.
10.11Limitation on Changes to Line of Business. Intermediate Holdings and its Restricted
Subsidiaries, taken as a whole, will not fundamentally and substantively alter the character of their
business, taken as a whole, from the business conducted by Intermediate Holdings and its Subsidiaries,
taken as a whole, on the date of the consummation of the Acquisition and other business activities which
are extensions thereof or otherwise incidental, synergistic, reasonably related, or ancillary to any of the
foregoing (and non-core incidental businesses acquired in connection with any Permitted Acquisition or
other permitted Investment).
10.12Limitation on Changes to End of Fiscal Years. Intermediate Holdings will not, and will
not permit any of its Restricted Subsidiaries to, cause, for financial reporting purposes, each of its, and
each of the Restricted Subsidiaries’, fiscal years to end on dates other than consistent with past practice;
provided, however, that Intermediate Holdings may, upon written notice to the Administrative Agent
change the financial reporting convention specified above to (x) align the dates of such fiscal year and
for any Restricted Subsidiary whose fiscal years end on dates different from those of Intermediate
Holdings or (y) any other financial reporting convention (including a change of fiscal year) reasonably
acceptable (such consent not to be unreasonably withheld or delayed) to the Administrative Agent, in
which case Intermediate Holdings and the Administrative Agent will, and are hereby authorized by the
Lenders to, make any adjustments to this Agreement that are necessary in order to reflect such change in
financial reporting.
10.13[Reserved].
10.14Transactions with Affiliates. Intermediate Holdings will conduct, and cause each of the
Restricted Subsidiaries to conduct, any transactions with any of its Affiliates (other than Intermediate
Holdings and the Restricted Subsidiaries) involving aggregate payments or consideration for any such
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transaction in excess of the greater of $2,000,000 and 5.0% of Consolidated EBITDA for the most
recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Affiliate transaction, for
any individual transaction or series of related transactions on terms that are at least substantially as
favorable to Intermediate Holdings or such Restricted Subsidiary as it would obtain in a comparable
arm’s-length transaction with a Person that is not an Affiliate, as determined by the sole member, or
similar governing body, of Intermediate Holdings or such Restricted Subsidiary in good faith; provided
that the foregoing restrictions shall not apply to (a) the payment of fees to the Sponsor or its Affiliates for
management, consulting and financial services rendered to Intermediate Holdings and the Restricted
Subsidiaries pursuant to the Advisory Services Agreement as in effect as of the Closing Date (or as may
be amended thereafter to the extent such amendment is not adverse to the interest of the Lenders) so long
as, in the case of management fees, no Event of Default has occurred and is continuing at the time of any
such payment and customary investment banking fees paid to the Sponsor or its Affiliates for services
rendered to Intermediate Holdings and its Subsidiaries in connection with divestitures, acquisitions,
financings and other transactions which payments are approved by a majority of sole member, or similar
governing body, of Intermediate Holdings in good faith; provided that the management fees payable
under the Advisory Services Agreement shall be permitted to continue to accrue during the continuation
of an Event of Default and may be paid following the cure or waiver of such Event of Default in
accordance with the terms and conditions set forth in this Agreement, (b) transactions permitted by
Section 10.5, (c) consummation of the Transactions and the payment of the Transaction Expenses, (d) the
issuance of Capital Stock or Stock Equivalents of Intermediate Holdings (or any direct or indirect parent
thereof) or any of its Subsidiaries not otherwise prohibited by the Credit Documents, (e) loans, advances
and other transactions between or among Intermediate Holdings, any Restricted Subsidiary or any joint
venture (regardless of the form of legal entity) in which Intermediate Holdings or any Subsidiary has
invested (and which Subsidiary or joint venture would not be an Affiliate of Intermediate Holdings but
for Intermediate Holdings’ or its Subsidiary’s ownership of Capital Stock or Stock Equivalents in such
joint venture or Subsidiary) to the extent permitted under Section 10, (f) employment and severance
arrangements between Intermediate Holdings and the Restricted Subsidiaries and their respective
officers, employees or consultants (including management and employee benefit plans or agreements,
stock option plans and other compensatory arrangements) in the ordinary course of business (including
loans and advances in connection therewith), (g) the payment of customary fees and reasonable out of
pocket costs to, and indemnities provided on behalf of, directors, managers, consultants, officers or
employees of Intermediate Holdings (or any direct or indirect parent thereof) and its Subsidiaries in the
ordinary course of business to the extent attributable to the ownership, management or operation of
Intermediate Holdings and its Subsidiaries, (h) transactions undertaken pursuant to membership in a
purchasing consortium, (i) transactions pursuant to any agreement or arrangement as in effect as of the
Closing Date, or any amendment, modification, supplement or replacement thereto (so long as any such
amendment, modification, supplement or replacement is not disadvantageous in any material respect to
the Lenders when taken as a whole as compared to the applicable agreement as in effect on the Closing
Date as determined by Intermediate Holdings in good faith), (j) customary payments by Intermediate
Holdings (or any direct or indirect parent) and any Restricted Subsidiaries to the Sponsor or its Affiliates
made for any financial advisory, monitoring, oversight, consulting, financing, underwriting or placement
services and similar fees, expenses and indemnities or in respect of other investment banking activities
(including in connection with acquisitions or divestitures), (k) the existence and performance of
agreements and transactions with any Unrestricted Subsidiary that were entered into prior to the
designation of a Restricted Subsidiary as such Unrestricted Subsidiary to the extent that the transaction
was permitted at the time that it was entered into with such Restricted Subsidiary and transactions
entered into by an Unrestricted Subsidiary with an Affiliate prior to the redesignation of any such
Unrestricted Subsidiary as a Restricted Subsidiary; provided that such transaction was not entered into in
contemplation of such designation or redesignation, as applicable, (l) Affiliate repurchases of the Loans or
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Commitments to the extent permitted hereunder and the holding of such Loans or Commitments and the
payments and other transactions contemplated herein in respect thereof, (m) undertaking or
consummating any IPO Reorganization Transactions and (n) the disposition of Accounts to a Restricted
Subsidiary pursuant to a Permitted Receivables Financing.
10.15Amendment of Organizational Documents; Junior Debt. Intermediate Holdings will not,
nor will it permit any Restricted Subsidiary to, (i) amend, modify, waive, terminate or release the
documentation governing any organizational documents if the effect of such amendment, modification,
waiver, termination or release is materially adverse to the Lenders (in their capacities as such), except as
required by law or (ii) or amend or modify any documentation for Junior Debt in a manner materially
adverse to the Lenders; provided that to the extent (x) such amendment or modification is not in
contravention with any subordination or intercreditor agreement applicable to such Junior Debt or (y)
such Junior Debt could be incurred as new Indebtedness permitted under Section 10.1 at the time of such
amendment or modification (as so amended or modified), in each case, such amendment or modification
shall be deemed not to be materially adverse to the Lenders.
Section 11. Events of Default.
Upon the occurrence of any of the following specified events (each an “Event of Default”):
11.1Payments. The Borrower shall (a) default in the payment when due of any principal of
the Loans or (b) default, and such default shall continue for five or more Business Days, in the payment
when due of any interest on the Loans or any Fees or any Unpaid Drawings or of any other amounts
owing hereunder or under any other Credit Document; or
11.2Representations, Etc. Any representation, warranty or statement made or deemed made
by the Borrower or the other Guarantors herein or in any other Credit Document or any certificate
delivered or required to be delivered pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made, and to the extent capable of being cured, such
incorrect representation or warranty shall remain incorrect for a period of 30 days after written notice
thereof from the Administrative Agent or the Required Lenders to Intermediate Holdings; or
11.3Covenants. Any Credit Party shall:
(a)default in the due performance or observance by it of any term, covenant or agreement
contained in Section 9.1(f)(i), Section 9.5 (solely with respect to the Borrower), Section 9.13(d) or
Section 10; provided, that any Event of Default under Section 10.9 is subject to cure as provided in
Section 11.14 and an Event of Default with respect to such Section shall not occur until the expiration of
the 15th Business Day subsequent to the date the relevant financial statements are required to be
delivered for the applicable fiscal quarter pursuant to Sections 9.1(a) or (b); or
(b)default in the due performance or observance by it of any term, covenant or agreement
(other than those referred to in Section 11.1 or 11.2 or clause (a) of this Section 11.3) contained in this
Agreement or any Security Document and such default shall continue unremedied for a period of at least
30 days after receipt of written notice by Intermediate Holdings from the Administrative Agent or the
Required Lenders.; or
11.4Default Under Other Agreements. (a) Holdings, Intermediate Holdings or any of the
Restricted Subsidiaries shall (i) fail to make any payment with respect to any Indebtedness (other than the
Obligations) in an aggregate outstanding principal amount in excess of the Threshold Amount for
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Holdings, Intermediate Holdings and such Restricted Subsidiaries, beyond the period of grace and
following all required notices, if any, provided in the instrument or agreement under which such
Indebtedness was created or (ii) default in the observance or performance of any agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist (after giving effect to all applicable
grace period and delivery of all required notices) (other than, with respect to Indebtedness consisting of
any Hedge Agreements, termination events or equivalent events pursuant to the terms of such Hedge
Agreements (it being understood that clause (i) shall apply to any failure to make any payment in excess
of the Threshold Amount in the aggregate that is required as a result of any such termination or similar
event and that is not otherwise being contested in good faith)) the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause, any such Indebtedness to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or
redeem such Indebtedness to be made, prior to its stated maturity; provided that this clause (a) shall not
apply to secured Indebtedness that becomes due as a result of the sale, transfer or other disposition
(including as a result of a casualty or condemnation event) of the property or assets securing such
Indebtedness (to the extent such sale, transfer or other disposition is not prohibited under this Agreement),
or (b) without limiting the provisions of clause (a) above, any such Indebtedness shall be declared to be
due and payable, or required to be prepaid other than by a regularly scheduled required prepayment or as
a mandatory prepayment (and, with respect to Indebtedness consisting of any Hedge Agreements, other
than due to a termination event or equivalent event pursuant to the terms of such Hedge Agreements (it
being understood that clause (a)(i) above shall apply to any failure to make any payment in excess of the
Threshold Amount in the aggregate that is required as a result of any such termination or similar event
and that is not otherwise being contested in good faith)) prior to the stated maturity thereof; provided that
this clause (b) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted
hereunder and under the documents providing for such Indebtedness, (y) Indebtedness which is
convertible into Qualified Stock and converts to Qualified Stock in accordance with its terms and such
conversion is not prohibited hereunder, or (z) any breach or default that is (I) remedied by Holdings,
Intermediate Holdings or the applicable Restricted Subsidiary or (II) waived (including in the form of
amendment) by the required holders of the applicable item of Indebtedness, in either case, prior to the
acceleration of Loans pursuant to this Section 11; or
11.5Bankruptcy, Etc. Except as otherwise permitted by Section 10.3, Holdings, Intermediate
Holdings or any Material Subsidiary shall commence a voluntary case, proceeding or action concerning
itself under Title 11 of the United States Code entitled “Bankruptcy” as now or hereafter in effect, or any
successor thereto (collectively, the “Bankruptcy Code”); or an involuntary case, proceeding or action is
commenced against Holdings, Intermediate Holdings or any Material Subsidiary and the petition is not
controverted within 60 days after commencement of the case, proceeding or action; or an involuntary
case, proceeding or action is commenced against Holdings, Intermediate Holdings or any Material
Subsidiary and the petition is not dismissed within 60 days after commencement of the case, proceeding
or action; or a custodian (as defined in the Bankruptcy Code), judicial manager, compulsory manager,
receiver, receiver manager, trustee, provisional liquidator, liquidator, administrator, administrative
receiver or similar Person is appointed for, or takes charge of, all or substantially all of the property of
Holdings, Intermediate Holdings or any Material Subsidiary; or Holdings, Intermediate Holdings or any
Material Subsidiary commences any other voluntary proceeding or action under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, winding-up, strike-off,
administration or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating
in any way to Holdings, Intermediate Holdings or any Material Subsidiary; or there is commenced
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against Holdings, Intermediate Holdings or any Material Subsidiary any such proceeding or action that
remains undismissed for a period of 60 days; or Holdings, Intermediate Holdings or any Material
Subsidiary is adjudicated bankrupt; or any order of relief or other order approving any such case or
proceeding or action is entered; or Holdings, Intermediate Holdings or any Material Subsidiary suffers
any appointment of any custodian, judicial manager, compulsory manager, receiver, receiver manager,
trustee, provisional liquidator, liquidator, administrator, administrative receiver or similar Person for it or
any substantial part of its property to continue undischarged or unstayed for a period of 60 days; or
Holdings, Intermediate Holdings or any Material Subsidiary makes a general assignment for the benefit
of creditors; or
11.6ERISA. (a) An ERISA Event shall have occurred, (b) a trustee shall be appointed by a
United States district court to administer any Pension Plan(s), (c) the PBGC shall institute proceedings to
terminate any Pension Plan(s), or (d) any Credit Party or any of their respective ERISA Affiliates shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred or will be assessed
Withdrawal Liability to such Multiemployer Plan and such entity does not have reasonable grounds for
contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and
appropriate manner, and in each case in clauses (a) through (d) above, such event or condition, together
with all other such events or conditions, if any, would reasonably be expected to result in a Material
Adverse Effect; or
11.7Guarantee. Other than as expressly permitted hereunder, any Guarantee provided by any
Credit Party or any material provision thereof shall cease to be in full force or effect (other than pursuant
to the terms hereof and thereof) or any such Guarantor thereunder or any other Credit Party shall deny or
disaffirm in writing any such Guarantor’s obligations under the Guarantee; or
11.8Pledge Agreement. Other than as expressly permitted hereunder, the Pledge Agreement
or any other Security Document pursuant to which the Capital Stock or Stock Equivalents of Intermediate
Holdings, the Borrower or any Material Subsidiary is pledged or any material provision thereof shall
cease to be in full force or effect (other than pursuant to the terms hereof or thereof, solely as a result of
acts or omissions of the Collateral Agent or any Lender or solely as a result of the Collateral Agent’s
failure to maintain possession of any Capital Stock or Stock Equivalents that have been previously
delivered to it) or any pledgor thereunder or any Credit Party shall deny or disaffirm in writing any
pledgor’s obligations under any Security Document; or
11.9Security Agreement. Other than as expressly permitted hereunder, the Security
Agreement or any other Security Document pursuant to which the assets of Holdings, Intermediate
Holdings or any Material Subsidiary are pledged as Collateral or any material provision thereof shall
cease to be in full force or effect (other than pursuant to the terms hereof or thereof, solely as a result of
acts or omissions of the Collateral Agent in respect of certificates, promissory notes or instruments
actually delivered to it (including as a result of the Collateral Agent’s failure to file a Uniform
Commercial Code continuation statement)) or any grantor thereunder or any Credit Party shall deny or
disaffirm in writing any grantor’s obligations under any Security Document; or
11.10Judgments. One or more final judgments or decrees shall be entered against Holdings,
Intermediate Holdings or any of the Restricted Subsidiaries involving a liability in excess of the
Threshold Amount in the aggregate for all such judgments and decrees for Holdings, Intermediate
Holdings and the Restricted Subsidiaries (to the extent not covered by insurance or indemnities as to
which the applicable insurance company or third party has not denied coverage) and any such judgments
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or decrees shall not have been satisfied, vacated, discharged or stayed or bonded pending appeal within 60
days after the entry thereof; or
11.11Change of Control. A Change of Control shall occur.
11.12Remedies Upon Event of Default. If an Event of Default occurs and is continuing
(subject to Section 11.14), the Administrative Agent shall, upon the written request of the Required
Lenders, by written notice to Intermediate Holdings, without prejudice to the rights of the Administrative
Agent or any Lender to enforce its claims against Intermediate Holdings, except as otherwise specifically
provided for in this Agreement: (i) declare any of the Commitments terminated, whereupon such
Commitment, if any, of each Lender, as the case may be, shall forthwith terminate immediately and any
fees theretofore accrued shall forthwith become due and payable without any other notice of any kind,
(ii) declare the principal of and any accrued interest and fees in respect of all Loans and all Obligations
to be, whereupon the same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by Intermediate Holdings to the extent
permitted by applicable law; (iii) terminate any Letter of Credit that may be terminated in accordance
with its terms; and/or (iv) direct Intermediate Holdings to pay (and Intermediate Holdings agrees that
upon receipt of such notice, or upon the occurrence of an Event of Default specified in Section 11.5 with
respect to Intermediate Holdings, it will pay) to the Administrative Agent at the Administrative Agent’s
Office such additional amounts of cash, to be held as security for Intermediate Holdings’ respective
Reimbursement Obligations for Unpaid Drawings that may subsequently occur thereunder, equal to the
aggregate Stated Amount of all Letters of Credit issued and then outstanding; provided that, if an Event
of Default specified in Section 11.5 shall occur with respect to Holdings, Intermediate Holdings or any
Material Subsidiary, the result that would occur upon the giving of written notice by the Administrative
Agent shall occur automatically without the giving of any such notice.
11.13Application of Proceeds. Subject to the terms of, in each case if executed, an Acceptable
Intercreditor Agreement, any amount received by the Administrative Agent or the Collateral Agent from
any Credit Party (or from proceeds of any Collateral) following any acceleration of the Obligations under
this Agreement or any Event of Default with respect to Intermediate Holdings under Section 11.4 shall be
applied:
(a)first, to the payment of all reasonable and documented costs and expenses incurred by
the Administrative Agent or the Collateral Agent in connection with any collection or sale of the
Collateral or otherwise in connection with any Credit Document, including all indemnities, liabilities and
obligations arising under one or more Letters of Credit (and the related LC Support Agreements), all
court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all
advances made by the Administrative Agent or the Collateral Agent hereunder or under any other Credit
Document on behalf of any Credit Party and any other reasonable and documented costs or expenses
incurred in connection with the exercise of any right or remedy hereunder or under any other Credit
Document to the extent reimbursable hereunder or thereunder;
(b)second, to the Secured Parties, an amount (x) equal to all Obligations owing to them on
the date of any distribution (including any outstanding Letters of Credit (and related LC Support
Agreements) and (y) sufficient to Cash Collateralize all Letters of Credit Outstanding on the date of any
distribution, and, if such monies shall be insufficient to pay such amounts in full and Cash Collateralize
all Letters of Credit Outstanding, then ratably (without priority of any one over any other) to such
Secured Parties in proportion to the unpaid amounts thereof and to Cash Collateralize the Letters of
Credit Outstanding; provided that the aggregate amount applied pursuant to this clause (b) in respect of
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the Secured Cash Management Obligations and/or Secured Hedge Obligations (other than Secured Hedge
Obligations owing to MUFG BANK, LTD. or any of its Affiliates) shall not exceed $50,000,000 in the
aggregate;
(c)third, to the Secured Parties, an amount equal to all remaining Obligations owing to them
on the date of any distribution; and
(d)fourth, any surplus then remaining shall be paid to the applicable Credit Parties or their
successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct; provided that any amount applied to Cash Collateralize any Letters of
Credit Outstanding that has not been applied to reimburse the Borrower for Unpaid Drawings under the
applicable Letters of Credit at the time of expiration of all such Letters of Credit shall be applied by the
Administrative Agent in the order specified in clauses (a) through (c) above. Notwithstanding the
foregoing, amounts received from any Guarantor that is not an “Eligible Contract Participant” (as defined
in the Commodity Exchange Act) shall not be applied to its Obligations that are Excluded Swap
Obligations.
11.14Equity Cure. Notwithstanding anything to the contrary contained in this Section 11, in
the event that Intermediate Holdings has determined that it has failed to comply with the requirement of
the financial covenant set forth in Section 10.9, from the end of the most recent fiscal quarter until the
expiration of the 15th Business Day following the date financial statements referred to in Sections 9.1(a)
or (b) are required to be delivered in respect of such fiscal period for which such financial covenant is
being measured, any holder of Capital Stock or Stock Equivalents of Intermediate Holdings or any direct
or indirect parent of Intermediate Holdings has the right to cure such failure (the “Cure Right”) by
causing cash net equity proceeds derived from an issuance of Capital Stock or Stock Equivalents (other
than Disqualified Stock, unless reasonably satisfactory to the Administrative Agent) by Intermediate
Holdings (or from a contribution to the common equity capital of Intermediate Holdings) to be
contributed, directly or indirectly, as cash common equity (or otherwise in a form reasonably acceptable
to the Administrative Agent) to Intermediate Holdings, and upon receipt by Intermediate Holdings of
such cash contribution (such cash amount being referred to as the “Cure Amount”) pursuant to the
exercise of such Cure Right, such financial covenant shall be recalculated giving effect to the following
pro forma adjustments:
(a)Consolidated EBITDA shall be increased, solely for the purpose of determining the
existence of an Event of Default resulting from a breach of the financial covenant set forth in Section
10.9 with respect to any period of four consecutive fiscal quarters that includes the fiscal quarter for
which the Cure Right was exercised and not for any other purpose under this Agreement, by an amount
equal to the Cure Amount; and
(b)there shall be no pro forma reduction in Indebtedness with the proceeds of the Cure
Amount for determining compliance with the financial covenant set forth in Section 10.9; provided that,
to the extent such proceeds are actually applied to prepay Indebtedness, such reduction may be credited
in any subsequent fiscal quarter.
(c)Notwithstanding anything to the contrary in this Section 11, (A) if, after giving effect to
the foregoing recalculations, Intermediate Holdings shall be in compliance with the requirements of the
financial covenant set forth in Section 10.9, Intermediate Holdings shall be deemed to have satisfied the
requirements of the financial covenant set forth in Section 10.9 as of the relevant date of determination
with the same effect as though there had been no failure to comply therewith at such date, and the
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applicable breach or default of such financial covenants that had occurred shall be deemed cured for the
purposes of this Agreement; provided that (i) in each period of four consecutive fiscal quarters there shall
be at least two fiscal quarters in which no Cure Right is made, (ii) there shall be a maximum of five Cure
Rights made during the term of this Agreement, (iii) each Cure Amount shall be no greater than the
amount required to cause Intermediate Holdings to be in compliance with the financial covenant set forth
in Section 10.9, and (iv) all Cure Amounts shall be disregarded for the purposes of any baskets or
financial ratio determination under the Credit Documents other than for determining compliance with
Section 10.9 and (B) from and after the date that Intermediate Holdings delivers a written notice to the
Administrative Agent that it intends to exercise its Cure Right under this Section 11.14 (a “Notice of
Intent to Cure”) until the earliest of the date on which the Cure Right is actually exercised, the date on
which the Cure Right was required to be exercised and the date on which Intermediate Holdings shall
have subsequently provided written notice to the Administrative Agent that it does not intend to exercise
the Cure Right, neither the Administrative Agent nor any Lender may exercise any rights or remedies
under Section 11.12 (or under any other Credit Document) on the basis of any actual or purported Event
of Default under the covenant set forth in Section 10.9 with respect to the quarter for which a Notice of
Intent to Cure has been provided (and any other Default as a result thereof); provided that during such
Cure Period the Revolving Credit Lenders shall not be required to fund any request for a credit extension
under the Revolving Credit Facility nor shall any Letter of Credit Issuer be required to issue any Letter of
Credit.
Section 12. The Agents.
12.1Appointment.
(a)Each Lender and Swingline Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the other Credit Documents
and irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent by the terms of this
Agreement and the other Credit Documents, together with such other powers as are reasonably incidental
thereto. The provisions of this Section 12 (other than Section 12.1(c) with respect to the Joint Lead
Arrangers and Bookrunners and Sections 12.1, 12.9, 12.11, 12.12 and 12.15(h) with respect to the Credit
Parties) are solely for the benefit of the Agents and the Lenders, none of Intermediate Holdings or any
other Credit Party shall have rights as third party beneficiary of any such provision. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into
this Agreement or any other Credit Document or otherwise exist against the Administrative Agent. In
performing its functions and duties hereunder, each Agent shall act solely as an agent of Lenders and
does not assume and shall not be deemed to have assumed any obligation towards or relationship of
agency or trust with or for Intermediate Holdings or any of its respective Subsidiaries.
(b)The Administrative Agent, each Lender, the Swingline Lender and the Letter of Credit
Issuer hereby irrevocably designate and appoint the Collateral Agent as the agent with respect to the
Collateral, and each of the Administrative Agent, each Lender, the Swingline Lender and the Letter of
Credit Issuer irrevocably authorizes the Collateral Agent, in such capacity, to take such action on its
behalf under the provisions of this Agreement and the other Credit Documents and to exercise such
powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this
Agreement and the other Credit Documents, together with such other powers as are reasonably incidental
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thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent
shall not have any duties or responsibilities except those expressly set forth herein, or any fiduciary
relationship with any of the Administrative Agent, the Lenders, the Swingline Lender or the Letter of
Credit Issuer, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Credit Document or otherwise exist against the Collateral Agent.
(c)Each of the Joint Lead Arrangers and Bookrunners, each in its capacity as such, shall not
have any obligations, duties or responsibilities under this Agreement but shall be entitled to all benefits of
this Section 12.
12.2Delegation of Duties. The Administrative Agent and the Collateral Agent may each
execute any of its duties under this Agreement and the other Credit Documents by or through agents, sub-
agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. Neither the Administrative Agent nor the Collateral Agent shall be responsible
for the negligence or misconduct of any agents, subagents or attorneys-in-fact selected by it in the
absence of its gross negligence or willful misconduct (as determined in the final non-appealable judgment
of a court of competent jurisdiction).
12.3Exculpatory Provisions. No Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully taken or omitted to be taken by
any of them under or in connection with this Agreement or any other Credit Document (except for its or
such Person’s own gross negligence or willful misconduct, as determined in the final non-appealable
judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein) or
(b) responsible in any manner to any of the Lenders or any participant for any recitals, statements,
representations or warranties made by any Credit Party or any officer thereof contained in this
Agreement or any other Credit Document or in any certificate, report, statement or other document
referred to or provided for in, or received by such Agent under or in connection with, this Agreement or
any other Credit Document or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Credit Document, or the creation, perfection or priority of any
Lien or security interest created or purported to be created under the Security Documents, or for any
failure of any Credit Party to perform its obligations hereunder or thereunder. No Agent shall be under
any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Credit Document, or to inspect
the properties, books or records of any Credit Party or any Affiliate thereof. The Collateral Agent shall
not be under any obligation to the Administrative Agent or any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions of, this Agreement or
any other Credit Document, or to inspect the properties, books or records of any Credit Party. Without
limiting the generality of the foregoing, (a) no Agent shall have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and powers expressly contemplated
hereby that such Agent is instructed in writing to exercise by the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 13.1),
provided that no Agent shall be required to take any action that, in its opinion or the opinion of its
counsel, may expose such Agent to liability or that is contrary to any Credit Document or applicable law,
including for the avoidance of doubt any action that may be in violation of the automatic stay under any
debtor relief law or that may effect a forfeiture, modification or termination of property of a Defaulting
Lender in violation of any debtor relief law and (b) except as expressly set forth in the Credit Documents,
no Agent shall have any duty to disclose, nor shall it be liable for the failure to disclose, any information
relating to Intermediate Holdings or any of the Subsidiaries that is communicated to or obtained by the
entity serving as Administrative Agent and/or Collateral Agent or any of its Affiliates in any capacity.
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12.4Reliance by Agents. The Administrative Agent and the Collateral Agent shall be entitled
to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or other document or instruction
(including those transmitted by electronic transmission or any telephone message or conversation)
believed by it (in good faith) to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel (including counsel to
Intermediate Holdings), independent accountants and other experts whether or not selected by the
Administrative Agent or the Collateral Agent. The Administrative Agent may deem and treat the Lender
specified in the Register with respect to any amount owing hereunder as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with
the Administrative Agent. The Administrative Agent and the Collateral Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action. The Administrative Agent and
the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Credit Documents in accordance with a request of the Required Lenders, and
such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Loans; provided that the Administrative Agent and the Collateral Agent shall
not be required to take any action that, in its opinion or in the opinion of its counsel, may expose it to
liability or that is contrary to any Credit Document or applicable law.
12.5Notice of Default. Neither the Administrative Agent nor the Collateral Agent shall be
deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder
unless the Administrative Agent or the Collateral Agent has received written notice from a Lender, or
Intermediate Holdings referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default.” In the event that the Administrative Agent or the
Collateral Agent receives such a notice, it shall give notice thereof to the Lenders and the Administrative
Agent or the Collateral Agent, as applicable. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders;
provided that unless and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of
the Lenders except to the extent that this Agreement requires that such action be taken only with the
approval of the Required Lenders or each of the Lenders, as applicable.
12.6Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor the Collateral Agent nor any of
their respective officers, directors, employees, agents, legal counsel, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the Administrative Agent or the Collateral
Agent hereinafter taken, including any review of the affairs of any Credit Party, shall be deemed to
constitute any representation or warranty by the Administrative Agent or the Collateral Agent to any
Lender, the Swingline Lender or the Letter of Credit Issuer. Each Lender, the Swingline Lender and each
Letter of Credit Issuer represents to the Administrative Agent and the Collateral Agent that it has,
independently and without reliance upon the Administrative Agent, the Collateral Agent or any other
Lender, and based on such documents and information as it has deemed appropriate, made its own
appraisal of, and investigation into the business, operations, property, financial and other condition and
creditworthiness of Intermediate Holdings and each other Credit Party and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will,
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independently and without reliance upon the Administrative Agent, the Collateral Agent or any other
Lender, and based on such documents and information as it shall deem appropriate at the time, continue
to make its own credit analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Credit Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other condition and creditworthiness
of any of the Credit Parties. Except for notices, reports, and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder, neither the Administrative Agent nor
the Collateral Agent shall have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, assets, operations, properties, financial condition, prospects or
creditworthiness of any Credit Party that may come into the possession of the Administrative Agent or
the Collateral Agent or any of their respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
12.7Indemnification. The Lenders agree to severally indemnify each Agent in its capacity as
such (to the extent not reimbursed by the Credit Parties and without limiting the obligation of the Credit
Parties to do so), ratably according to their respective portions of the Total Credit Exposure in effect on
the date on which indemnification is sought (or, if indemnification is sought after the date upon which
the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance
with their respective portions of the Total Credit Exposure in effect immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time (including at any time following
the payment of the Loans) be imposed on, incurred by or asserted against an Agent in any way relating to
or arising out of the Commitments, this Agreement, any of the other Credit Documents or any documents
contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or
any action taken or omitted by the Administrative Agent or the Collateral Agent under or in connection
with any of the foregoing; provided that no Lender shall be liable to an Agent for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct as
determined by a final non-appealable judgment of a court of competent jurisdiction; provided, further,
that no action taken by the Administrative Agent in accordance with the directions of the Required
Lenders (or such other number or percentage of the Lenders as shall be required by the Credit
Documents) shall be deemed to constitute gross negligence or willful misconduct for purposes of this
Section 12.7. In the case of any investigation, litigation or proceeding giving rise to any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever that may at any time occur (including at any time following the payment of the Loans),
this Section 12.7 applies whether any such investigation, litigation or proceeding is brought by any
Lender or any other Person. Without limitation of the foregoing, each Lender shall reimburse each Agent
upon demand for its ratable share of any costs or out-of-pocket expenses (including attorneys’ fees)
incurred by such Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice rendered in respect of rights or responsibilities under, this Agreement, any other Credit
Document, or any document contemplated by or referred to herein, to the extent that such Agent is not
reimbursed for such expenses by or on behalf of Intermediate Holdings; provided that such
reimbursement by the Lenders shall not affect Intermediate Holdings’ continuing reimbursement
obligations with respect thereto. If any indemnity furnished to any Agent for any purpose shall, in the
opinion of such Agent, be insufficient or become impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such additional indemnity is
furnished; provided, however, that in no event shall this sentence require any Lender to indemnify any
Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
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disbursement in excess of such Lender’s pro rata portion thereof; and provided, further, this sentence
shall not be deemed to require any Lender to indemnify any Agent against any liability, obligation, loss,
damage, penalty, action, judgment, suit, cost, expense or disbursement resulting from such Agent’s gross
negligence or willful misconduct as determined by a final non-appealable judgment of a court of
competent jurisdiction. The agreements in this Section 12.7 shall survive the payment of the Loans and
all other amounts payable hereunder. The indemnity provided to each Agent under this Section 12.7 shall
also apply to any Letter of Credit Issuer and such Agent’s and Letter of Credit Issuer’s respective
Affiliates, directors, officers, members, controlling persons, employees, trustees, advisors and agents and
successors.
12.8Agents in Their Individual Capacities. The agency hereby created shall in no way impair
or affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its
individual capacity as a Lender hereunder. Each Agent and its Affiliates may make loans to, accept
deposits from, and generally engage in any kind of business with, any Credit Party as though such Agent
were not an Agent hereunder and under the other Credit Documents. With respect to the Loans made by
it, each Agent shall have the same rights and powers under this Agreement and the other Credit
Documents as any Lender and may exercise the same as though it were not an Agent, and the terms
“Lender” and “Lenders” shall include each Agent in its individual capacity.
12.9Successor Agents.
(a)Each of the Administrative Agent and the Collateral Agent may at any time give notice
of its resignation to the Lenders, the Letter of Credit Issuers and Intermediate Holdings. Such resignation
shall be effective on the date set forth in such notice (but in no event shall such effective date occur prior
to the 30th day following delivery of such notice in accordance with the terms of this Section 12.9) or, if
no such date is set forth therein, upon the date such notice shall be effective in accordance with the terms
of this Section 12.9. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, subject to the consent of Intermediate Holdings (not to be unreasonably withheld or delayed) so
long as no Event of Default under Sections 11.1 or 11.5 is continuing, to appoint a successor, which shall
be a bank or other financial institution with an office in the United States (other than any Disqualified
Lender), or an Affiliate of any such bank or other financial institution with an office in the United States.
If no such successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its resignation (the “Resignation
Effective Date”), then the retiring Agent may on behalf of the Lenders, appoint a successor Agent
meeting the qualifications set forth above (including receipt of Intermediate Holdings’ consent); provided
that if the Administrative Agent or the Collateral Agent shall notify Intermediate Holdings and the
Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice.
(b)If the Person serving as the Administrative Agent is a Defaulting Lender pursuant to
clause (v) of the definition of Lender Default, the Required Lenders may to the extent permitted by
applicable law, subject to the consent of Intermediate Holdings (not to be unreasonably withheld or
delayed), by notice in writing to Intermediate Holdings and such Person remove such Person as the
Administrative Agent and, with the consent of Intermediate Holdings, appoint a successor. If no such
successor shall have been so appointed by the Required Lenders (with the consent of Intermediate
Holdings as required above) and shall have accepted such appointment within 30 days (or such earlier
day as shall be agreed by the Required Lenders and Intermediate Holdings) (the “Removal Effective
Date”), then such removal shall nonetheless become effective in accordance with such notice on the
Removal Effective Date.
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(c)With effect from the Resignation Effective Date or the Removal Effective Date (as
applicable), (1) the retiring or removed agent shall be discharged from its duties and obligations
hereunder and under the other Credit Documents (except that in the case of any collateral security held
by the Collateral Agent on behalf of the Lenders or the Letter of Credit Issuers under any of the Credit
Documents, the retiring or removed Collateral Agent shall continue to hold such collateral security as
nominee until such time as a successor Collateral Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the retiring or removed
Administrative Agent shall instead be made by or to each Lender, Swingline Lender and Letter of Credit
Issuer directly, until such time as the Required Lenders appoint a successor Agent as provided for above
in this paragraph. Upon the acceptance of a successor’s appointment as the Administrative Agent or the
Collateral Agent, as the case may be, hereunder, and upon the execution and filing or recording of such
financing statements, or amendments thereto, and such amendments or supplements to the Mortgages,
and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted or purported to be granted by the
Security Documents, such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) or removed Agent, and the retiring or removed Agent
shall be discharged from all of its duties and obligations hereunder or under the other Credit Documents
(if not already discharged therefrom as provided above in this Section 12.9). Except as provided above,
any resignation or removal of MidCap as the Administrative Agent pursuant to this Section 12.9 shall
also constitute the resignation or removal of MidCap as the Collateral Agent. The fees payable by
Intermediate Holdings or the Borrower, as applicable, (following the effectiveness of such appointment)
to such Agent shall be the same as those payable to its predecessor unless otherwise agreed between such
successor and Intermediate Holdings or the Borrower, as applicable. After the retiring or removed
Agent’s resignation or removal hereunder and under the other Credit Documents, the provisions of this
Section 12 (including, for the avoidance of doubt, Section 12.7) and Section 13.5 shall continue in effect
for the benefit of such retiring or removed Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the retiring or removed Agent
was acting as an Agent.
(d)Any resignation by or removal of MidCap as the Administrative Agent pursuant to this
Section 12.9 shall also constitute its resignation or removal as Swingline Lender and a Letter of Credit
Issuer; provided that, for the avoidance of doubt, (1) it shall retain all the rights, powers, privileges and
duties of the Letter of Credit Issuers hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as Letter of Credit Issuer and all L/C Obligations with respect thereto
(including the right to require L/C Participants to make Revolving Credit Loans pro rata based on their
Revolving Credit Commitment Percentages of the applicable Unpaid Drawing pursuant to Section 3.4(a))
and (2) it shall retain all the rights of the Swingline Lender provided for hereunder with respect to
Swingline Loans made by it and outstanding as of the effective date of such resignation, including the
right to require Mandatory Borrowings pursuant to Section 2.1(d). Upon the acceptance of a successor’s
appointment as the Administrative Agent hereunder, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring Swingline Lender and Letter of
Credit Issuer, (b) the retiring Swingline Lender and Letter of Credit Issuer shall be discharged from all of
their respective duties and obligations hereunder or under the other Credit Documents, and (c) the
successor Swingline Lender and Letter of Credit Issuer shall issue letters of credit in substitution for the
Letters of Credit issued by such Affiliate of the Administrative Agent or the Administrative Agent, if
any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring
Letter of Credit Issuer to effectively assume the obligations of the retiring Letter of Credit Issuer with
respect to such Letters of Credit.
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12.10Withholding Tax. To the extent required by any applicable law, the Administrative
Agent may withhold from any payment to any Lender under any Credit Document an amount equivalent
to any applicable withholding Tax. If the Internal Revenue Service or any authority of the United States
or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold Tax from
amounts paid to or for the account of any Lender for any reason (including, without limitation, because
the appropriate form was not delivered, was not properly executed, or because such Lender failed to
notify the Administrative Agent of a change in circumstances that rendered the exemption from, or
reduction of, withholding Tax ineffective) or if the Administrative Agent reasonably determines that a
payment was made to a Lender pursuant to this Agreement without deduction of applicable withholding
Tax from such payment, such Lender shall indemnify the Administrative Agent (to the extent that the
Administrative Agent has not already been reimbursed by any applicable Credit Party and without
limiting the obligation of any applicable Credit Party to do so), fully for all amounts paid, directly or
indirectly, by the Administrative Agent as Tax or otherwise, including penalties, additions to Tax and
interest, together with all expenses incurred, including legal expenses, allocated staff costs and any out of
pocket expenses. A certificate as to the amount of such payment or liability delivered to any Lender by
the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under
this Agreement or any other Credit Document against any amount due to the Administrative Agent under
this Section 12.10. The agreements in this Section 12.10 shall survive the resignation and/or replacement
of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
For the avoidance of doubt, for purposes of this Section 12.10, the term Lender includes the Swingline
Lender and the Letter of Credit Issuers.
12.11Agents Under Security Documents and Guarantee. Each Secured Party hereby further
authorizes the Administrative Agent or the Collateral Agent, as applicable, on behalf of and for the
benefit of the Secured Parties, to be the agent for and representative of the Secured Parties with respect to
the Collateral and the Security Documents. Subject to Section 13.1, without further written consent or
authorization from any Secured Party, the Administrative Agent or the Collateral Agent, as applicable,
may execute any documents or instruments necessary to (a) release any Lien on any property granted to
or held by the Administrative Agent or the Collateral Agent (or any sub-agent thereof) under any Credit
Document (i) upon the final Maturity Date and the payment in full (or Cash Collateralization) of all
Obligations (except for contingent indemnification obligations in respect of which a claim has not yet
been made, Secured Hedge Obligations as to which alternative arrangements reasonably acceptable to the
applicable Hedge Bank have been made and Secured Cash Management Obligations), (ii) that is sold or
to be sold or transferred as part of or in connection with any sale or other transfer permitted hereunder or
under any other Credit Document to a Person that is not a Credit Party or in connection with the
designation of any Restricted Subsidiary as an Unrestricted Subsidiary, (iii) if the property subject to
such Lien is owned by a Guarantor, upon the release of such Guarantor from its Guarantee otherwise in
accordance with the Credit Documents, (iv) as to the extent provided in the Security Documents, (v) that
constitutes Excluded Property or Excluded Stock and Stock Equivalents or (vi) if approved, authorized or
ratified in writing in accordance with Section 13.1; (b) release any Guarantor (other than Holdings and
Intermediate Holdings (except as otherwise permitted by Section 10.3)) from its obligations under the
Guarantee if such Person ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary) as a
result of a transaction or designation permitted hereunder; provided that no release shall occur if such
Guarantor becomes an Excluded Subsidiary solely as a result of the relevant Guarantor ceasing to be a
Wholly-Owned Restricted Subsidiary unless such transaction is entered into for a bona fide business
purpose (as determined by the Borrower in good faith) and, for the avoidance of doubt, not for the
primary purpose (as determined by the Borrower in good faith) of causing such release; (c) subordinate
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any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under
any Credit Document to the holder of any Lien permitted under Section 10.2(d), Section 10.2(f) and
Section 10.2(g) (solely with respect to Section 10.1(o)(iii)) or if required under the terms of any lease,
easement, right of way or similar agreement affecting the Mortgaged Property; provided that such lease,
easement, right of way or similar agreement constitutes a Permitted Lien; and (d) enter into subordination
or an Acceptable Intercreditor Agreement or intercreditor agreements with respect to Indebtedness and
any subordination agreement in connection with any Permitted Receivables Financing to the extent the
Administrative Agent or the Collateral Agent is otherwise contemplated herein as being a party to such
intercreditor or subordination agreement.
The Collateral Agent shall have its own independent right to demand payment of the amounts
payable by Intermediate Holdings under this Section 12.11, irrespective of any discharge of Intermediate
Holdings’ obligations to pay those amounts to the other Lenders resulting from failure by them to take
appropriate steps in insolvency proceedings affecting Intermediate Holdings to preserve their entitlement
to be paid those amounts.
Any amount due and payable by Intermediate Holdings to the Collateral Agent under this
Section 12.11 shall be decreased to the extent that the other Lenders have received (and are able to
retain) payment in full of the corresponding amount under the other provisions of the Credit Documents
and any amount due and payable by Intermediate Holdings to the Collateral Agent under those provisions
shall be decreased to the extent that the Collateral Agent has received (and is able to retain) payment in
full of the corresponding amount under this Section 12.11.
12.12Right to Realize on Collateral and Enforce Guarantee. Anything contained in any of the
Credit Documents to the contrary notwithstanding, Intermediate Holdings, the Agents, and each Secured
Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the
Collateral or to enforce the Guarantee, it being understood and agreed that all powers, rights, and
remedies hereunder may be exercised solely by the Administrative Agent, on behalf of the Secured
Parties in accordance with the terms hereof and all powers, rights, and remedies under the Security
Documents may be exercised solely by the Collateral Agent and (ii) in the event of a foreclosure by the
Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, the
Collateral Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any
such sale or other disposition and the Collateral Agent, as agent for and representative of the Secured
Parties (but not any Lender or Lenders in its or their respective individual capacities unless Required
Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public
sale, to use and apply any of the Obligations as a credit on account of the purchase price for any
collateral payable by the Collateral Agent at such sale or other disposition. No holder of Secured Hedge
Obligations or Secured Cash Management Obligations shall have any rights in connection with the
management or release of any Collateral or of the obligations of any Credit Party under this Agreement.
No holder of Secured Hedge Obligations or Secured Cash Management Obligations that obtains the
benefits of any Guarantee or any Collateral by virtue of the provisions hereof or of any other Credit
Document shall have any right to notice of any action or to consent to, direct or object to any action
hereunder or under any other Credit Document or otherwise in respect of the Collateral (including the
release or impairment of any Collateral) other than in its capacity as a Lender or Agent and, in such case,
only to the extent expressly provided in the Credit Documents. Notwithstanding any other provision of
this Agreement to the contrary, the Administrative Agent shall not be required to verify the payment of,
or that other satisfactory arrangements have been made with respect to, Obligations arising under
Secured Hedge Agreements and Secured Cash Management Agreements, unless the Administrative
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Agent has received written notice of such Obligations, together with such supporting documentation as
the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as
the case may be.
12.13Intercreditor Agreement Governs. The Administrative Agent, the Collateral Agent, and
each Lender (a) hereby agrees that it will be bound by and will take no actions contrary to the provisions
of any Acceptable Intercreditor Agreement or other intercreditor agreement entered into pursuant to the
terms hereof, (b) hereby authorizes and instructs the Administrative Agent and the Collateral Agent to
enter into each Acceptable Intercreditor Agreement or other intercreditor agreement entered into pursuant
to the terms hereof and to subject the Liens securing the Obligations to the provisions thereof and
(c) hereby authorizes and instructs the Administrative Agent and the Collateral Agent to enter into any
Acceptable Intercreditor Agreement or other intercreditor agreement that includes, or to amend any
then-existing-intercreditor agreement to provide for, the terms described in the definition of “Permitted
Other Indebtedness”.
12.14Certain ERISA Matters.
(a)Each Lender (x) represents and warrants, as of the date such Person became a Lender
party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the
date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and
not, for the avoidance of doubt, to or for the benefit of Intermediate Holdings or any other Credit Party,
that at least one of the following is and will be true:
(i)such Lender is not using “plan assets” (within the meaning of Section 3(42) of
ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the
Commitments or this Agreement,
(ii)the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a
class exemption for certain transactions determined by independent qualified professional asset
managers), PTE 95-60 (a class exemption for certain transactions involving insurance company
general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company
pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank
collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-
house asset managers), is applicable with respect to such Lender’s entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments and this
Agreement,
(iii)(A) such Lender is an investment fund managed by a “Qualified Professional
Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional
Asset Manager made the investment decision on behalf of such Lender to enter into, participate in,
administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C)
the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit,
the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (k) of Part I
of PTE 84- 14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of
Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments and this
Agreement, or
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(iv)such other representation, warranty and covenant as may be agreed in writing
between the Administrative Agent, Intermediate Holdings and such Lender (such agreement not to be
unreasonably withheld).
(b)In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a)
is true with respect to a Lender or (2) a Lender has provided another representation, warranty and
covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender
further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y)
covenants, from the date such Person became a Lender party hereto to the date such Person ceases
being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance
of doubt, to or for the benefit of Intermediate Holdings or any other Credit Party, that the
Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such
Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of
Credit, the Commitments and this Agreement (including in connection with the reservation or exercise
of any rights by the Administrative Agent under this Agreement, any Credit Document or any
documents related hereto or thereto).
12.15Erroneous Payment.
(a)If the Administrative Agent (x) notifies a Lender, Letter of Credit Issuer or any other
Secured Party, or any Person (other than a Credit Party) who has received funds on behalf of a Lender,
Letter of Credit Issuer or Secured Party (any such Lender, Letter of Credit Issuer, Secured Party or other
recipient (other than a Credit Party) (and each of their respective successors and assigns), a “Payment
Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after
receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice
from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or
any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or
mistakenly received by, such Payment Recipient (whether or not known to such Lender, Letter of Credit
Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or
received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise,
individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such
Erroneous Payment (or a portion thereof) within sixty (60) days of such Erroneous Payment, such
Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return
or repayment as contemplated below in this Section 12.15 and held in trust for the benefit of the
Administrative Agent, and such Lender, Letter of Credit Issuer or Secured Party shall (or, with respect to
any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to)
promptly, but in no event later than two (2) Business Days thereafter (or such later date as the
Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent
the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in
same day funds (in the currency so received), together with interest thereon (except to the extent waived
in writing by the Administrative Agent) in respect of each day from and including the date such
Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount
is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation from time to time in effect. A notice of the Administrative Agent to any
Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b)Without limiting immediately preceding clause (a), each Lender, Letter of Credit Issuer,
Secured Party or any Person (other than a Credit Party) who has received funds on behalf of a Lender,
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Letter of Credit Issuer or Secured Party (and each of their respective successors and assigns), agrees that
if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or
repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of
its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this
Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any
of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or
accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any
of its Affiliates), or (z) that such Lender, Letter of Credit Issuer or Secured Party, or other such recipient,
otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in
each such case:
(i)it acknowledges and agrees that (A) in the case of immediately preceding
sub-clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written
confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made
(in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment
or repayment; and
(ii)such Lender, Letter of Credit Issuer or Secured Party shall (and shall cause any
other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1)
Business Day of its knowledge of the occurrence of any of the circumstances described in immediately
preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment,
prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the
Administrative Agent pursuant to this Section 12.15(b).
For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this
Section 12.15(b) shall not have any effect on a Payment Recipient’s obligations pursuant to
Section 12.15(a) or on whether or not an Erroneous Payment has been made.
(c)Each Lender, Letter of Credit Issuer or Secured Party hereby authorizes the
Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender,
Letter of Credit Issuer or Secured Party under any Credit Document, or otherwise payable or distributable
by the Administrative Agent to such Lender, Letter of Credit Issuer or Secured Party under any Credit
Document with respect to any payment of principal, interest, fees or other amounts, against any amount
that the Administrative Agent has demanded to be returned under immediately preceding clause (a).
(d)(i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the
Administrative Agent for any reason, after demand therefor in accordance with immediately preceding
clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from
any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective
behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the
Administrative Agent’s notice to such Lender at any time, then effective immediately (with the
consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to
have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such
Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the
Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify)
(such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the
“Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par
plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent
in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an
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Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and
Acceptance by reference pursuant to a Platform as to which the Administrative Agent and such parties
are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall
deliver any promissory notes evidencing such Loans to the Borrower or the Administrative Agent (but
the failure of such Person to deliver any such promissory notes shall not affect the effectiveness of the
foregoing assignment), (B) the Administrative Agent as the assignee Lender shall be deemed to have
acquired the Erroneous Payment Deficiency Assignment, (C) upon such deemed acquisition, the
Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with
respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a
Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment,
excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this
Agreement and its applicable Commitments which shall survive as to such assigning Lender, (D) the
Administrative Agent and the Borrower shall each be deemed to have waived any consents required
under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the
Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the
Erroneous Payment Deficiency Assignment. For the avoidance of doubt, no Erroneous Payment
Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain
available in accordance with the terms of this Agreement.
(ii)Subject to Section 13.6 (but excluding, in all events, any assignment, consent or
approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its
discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon
receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable
Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the
Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or
against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment
Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments
or repayments of principal and interest, or other distribution in respect of principal and interest, received
by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to
an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the
Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any
amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e)[Reserved].
(f)To the extent permitted by applicable law, no Payment Recipient shall assert any right or
claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim,
defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the
Administrative Agent for the return of any Erroneous Payment received, including, without limitation,
any defense based on “discharge for value” or any similar doctrine.
(g)Each party’s obligations, agreements and waivers under this Section 12.15 shall survive
the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the
replacement of, a Lender or Letter of Credit Issuer, the termination of the Commitments and/or the
repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Credit
Document.
(h)Notwithstanding anything to the contrary herein or in any other Credit Document, this
Section 12.15 will not create any additional Obligations of the Credit Parties under the Credit Documents
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or otherwise increase or alter the Obligations or create any additional covenants or obligations or duties
on the Credit Parties (other than as expressly set forth in this Section 12.15).
Section 13. Miscellaneous.
13.1Amendments, Waivers, and Releases. Except as otherwise expressly set forth in the
Credit Documents, neither this Agreement nor any other Credit Document, nor any terms hereof or
thereof, may be amended, supplemented or modified except in accordance with the provisions of this
Section 13.1. Except as provided to the contrary under Section 1.14, 2.14 or 2.15 or the third, fourth,
fifth, sixth, seventh, eighth, ninth, tenth and eleventh paragraphs hereof, and other than with respect to
any amendment, modification or waiver contemplated in the proviso to clause (i) below, which shall only
require the consent of the Lenders expressly set forth therein and not the Required Lenders, the Required
Lenders may, or, with the written consent of the Required Lenders, the Administrative Agent and/or the
Collateral Agent may, from time to time, (a) enter into with the relevant Credit Party or Credit Parties
written amendments, supplements or modifications hereto and to the other Credit Documents for the
purpose of adding any provisions to this Agreement or the other Credit Documents or changing in any
manner the rights of the Lenders or of the Credit Parties hereunder or thereunder or (b) waive in writing,
on such terms and conditions as the Required Lenders or the Administrative Agent and/or the Collateral
Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or
the other Credit Documents or any Default or Event of Default and its consequences; provided, however,
that each such waiver and each such amendment, supplement or modification shall be effective only in
the specific instance and for the specific purpose for which given; provided, further, that no such waiver
and no such amendment, supplement or modification shall (x) (i) forgive or reduce any portion of any
Loan or extend the final scheduled maturity date of any Loan or reduce the stated interest rate of,
prepayment premium applicable to, or fee under any Loan (it being understood that only the consent of
the Required Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the
Default Rate or amend Section 2.8(c)), or forgive any portion thereof, or extend the date for the payment,
of any principal, interest (including by a way of extending grace periods for the payment of interest) or
fee hereunder (other than as a result of waiving the applicability of any post-default increase in interest
rates), or changes in the amount of interest payable in cash, or extend the final expiration date of any
Letter of Credit beyond the L/C Facility Maturity Date, or make any Loan, interest, Fee or other amount
payable in any currency other than expressly provided herein or amend Section 13.8(a) or Section 11.13
or any other provision of any Credit Document governing the application of payments in respect of the
Obligations or proceeds of Collateral, in each case without the written consent of each Lender directly
and adversely affected thereby; provided that a waiver of any condition precedent in Section 6 (solely
with respect to any Letter of Credit issued on the Closing Date) or Section 7 of this Agreement, the
waiver of any Default (other than any Default under Section 11.1), Event of Default (other than any
Event of Default under Section 11.1), default interest, mandatory prepayment or reductions, any
modification, waiver or amendment to the financial covenant definitions or financial ratios or any
component thereof, the waiver of any other covenant, or the waiver or amendment of the MFN Protection
shall not constitute an increase of any Commitment of a Lender, a reduction or forgiveness in the interest
rates or the fees or premiums, or changes in the amount of interest payable in cash or a postponement of
any date scheduled for the payment of principal, premium or interest or an extension of the final maturity
of any Loan or the scheduled termination date of any Commitment, in each case for purposes of this
clause (i), or (ii) consent to the assignment or transfer by the Borrower of its rights and obligations under
any Credit Document to which it is a party (except as permitted pursuant to Section 10.3), in each case
without the written consent of each Lender directly and adversely affected thereby, or (iii) amend,
modify or waive any provision of Section 12 without the written consent of the then-current
Administrative Agent and Collateral Agent in a manner that directly and adversely affects such Person,
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or (iv) amend, modify or waive any provision of Section 3 with respect to any Letter of Credit without
the written consent of the Letter of Credit Issuer to the extent such amendment, modification or waiver
directly and adversely affects the Letter of Credit Issuer, (iv) amend, modify or waive any provisions
hereof relating to Swingline Loans without the written consent of the Swingline Lender in a manner that
directly and adversely affects such Person, (v) release all or substantially all of the Guarantors under the
Guarantees (except as expressly permitted by the Guarantees, any Acceptable Intercreditor Agreement or
this Agreement) or release all or substantially all of the Collateral under the Security Documents (except
as expressly permitted by the Security Documents, any Acceptable Intercreditor Agreement or this
Agreement) without the prior written consent of each Lender, (vi) decrease the Term Loan Repayment
Amount applicable to Term Loans or extend any scheduled Term Loan Repayment Date applicable to
Term Loans, in each case without the written consent of each Lender directly and adversely affected
thereby, (vii) [reserved], (viii) reduce the percentages specified in the definition of the term “Required
Lenders” or “Required DDTL Lenders” or amend, modify or waive any provision of this Section 13.1
that has the effect of decreasing the number of Lenders that must approve any amendment, modification
or waiver, without the written consent of each Lender, (ix) directly amend, modify or waive the (A) pro
rata sharing portions set forth in Sections 2.7, 2.16(a)(ii), 4.1, 4.2, 5.2(c), 5.2(d), 5.2(e), 5.3(a) or 13.8(a)
or (B) pro rata sharing provisions or the payment priorities as set forth in Section 11.13, in each case
without the written consent of each Lender directly and adversely affected thereby, (x) (A) subordinate or
have the effect of subordinating all or any portion of the Credit Facilities in right of payment to any other
Indebtedness or (B) subordinate or have the effect of subordinating the Lien securing all or any portion of
the Collateral to any other Lien securing any other Indebtedness, except in the case of clause (A) and (B)
with respect to (1) any Indebtedness that is expressly permitted under the Credit Documents as in effect
on the Closing Date to be senior to the Credit Facilities and/or be secured by a Lien that is senior to the
Lien securing the Credit Facilities, (2) any “debtor-in-possession” facility so long as such
“debtor-in-possession” facility and related commitments and any related buyback, exchange or “roll up”
is offered ratablyto all Lenders holding such Credit Facilities or (3) any other Indebtedness so long as
such Indebtedness and any related buyback or exchange is offered ratably to all Lenders holding such
Credit Facilities and on the same terms as the other lenders participating in such other Indebtedness and
any related buyback or exchange, in each case without the consent of each Lender directly and adversely
affected thereby, or (y) notwithstanding anything to the contrary in clause (x), (i) extend the final
expiration date of any Lender’s Commitment or (ii) increase the aggregate amount of the Commitments
of any Lender, in each case, without the written consent of such Lender; provided, further, in connection
with an amendment that addresses solely a repricing transaction in which any Class of Term Loans is
refinanced with a replacement Class of Term Loans bearing (or is modified in such a manner such that
the resulting Term Loans bear) a lower Effective Yield (a “Permitted Repricing Amendment”), only
the consent of the Lenders holding Term Loans subject to such permitted repricing transaction that will
continue as a Lender in respect of the repriced tranche of Term Loans or modified Term Loans shall be
required, or (xi) waive any condition precedent set forth in Article VII with respect to any Borrowing of
Delayed Draw Term Loans without the written consent of the Required DDTL Lenders.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except (x) that the Commitment of
such Lender may not be increased or extended without the consent of such Lender, (y) for any such
amendment, waiver or consent that treats such Defaulting Lender disproportionately and adversely from
the other Lenders of the same Class (other than because of its status as a Defaulting Lender) and (z) that
the principal amount of any Loan owed to such Lender may not be decreased without the consent of such
Lender.
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Any such waiver and any such amendment, supplement or modification shall apply equally to
each of the affected Lenders and shall be binding upon Holdings, Intermediate Holdings, the Borrower,
such Lenders, the Administrative Agent and all future holders of the affected Loans. In the case of any
waiver, Holdings, Intermediate Holdings, the Borrower, the Lenders and the Administrative Agent shall
be restored to their former positions and rights hereunder and under the other Credit Documents, and any
Default or Event of Default waived shall be deemed to be cured and not continuing, it being understood
that no such waiver shall extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon. In connection with the foregoing provisions, the Administrative Agent may,
but shall have no obligations to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of such Lender.
Notwithstanding the foregoing, in addition to any credit extensions and related Joinder
Agreement(s) effectuated without the consent of Lenders in accordance with Section 2.14, this
Agreement may be amended (or amended and restated) with the written consent of the Required Lenders,
the Administrative Agent, Holdings, Intermediate Holdings and the Borrower (a) to add one or more
additional credit facilities to this Agreement and to permit the extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits
of this Agreement and the other Credit Documents with the Term Loans and the Revolving Credit Loans
and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding
such credit facilities in any determination of the Required Lenders and other definitions related to such
New Term Loans and the Revolving Credit Loans.
In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Administrative Agent, the Borrower and the Lenders providing the relevant Replacement
Facility to permit the refinancing of any Credit Facility (the “Refinanced Facility”) with a replacement
facility (a “Replacement Facility”) hereunder; provided that (a) the aggregate principal amount of
Indebtedness and the available commitment available under such Replacement Facility shall not exceed
the aggregate principal amount of Indebtedness and the available commitment amount under such
Refinanced Facility (plus an amount equal to all accrued but unpaid interest, fees, premiums and
expenses incurred in connection therewith), (b) [reserved], (c) except in the case of any Inside Maturity
Debt Exclusion, the weighted average life to maturity of such Replacement Facility shall not be shorter
than the weighted average life to maturity of such Refinanced Facility at the time of such refinancing
(except to the extent of nominal amortization for periods where amortization has been eliminated as a
result of prepayment of the applicable Term Loans) and (d) the covenants, events of default and
guarantees (excluding pricing and optional prepayments or redemption terms) either, at the option of the
Borrower, shall be not materially more favorable (taken as a whole) (as determined in good faith by the
Borrower) to the Lenders providing such Replacement Facility than the covenants, events of default and
guarantees applicable to such Refinanced Facility, except to the extent necessary to provide for covenants,
events of default and guarantees applicable to any period after the maturity date in respect of the
Refinanced Facility in effect immediately prior to such refinancing or otherwise reflect market terms and
conditions (taken as a whole) at the time of such refinancing (as determined in good faith by the
Borrower). Any such refinancing of the Revolving Credit Facility shall require an equivalent
commitment reduction thereunder.
The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the Credit
Parties on any Collateral shall be automatically released (i) in full, upon the termination of this
Agreement and the payment of all Obligations hereunder (except for (w) contingent indemnification
obligations in respect of which a claim has not yet been made, (x) Secured Hedge Obligations, (y) Cash
Collateralized Letters of Credit pursuant to arrangements reasonably acceptable to the Letter of Credit
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Issuer and (z) Secured Cash Management Obligations), (ii) upon the sale or other disposition of such
Collateral (including as part of or in connection with any other sale or other disposition permitted
hereunder) to any Person other than another Credit Party, to the extent such sale or other disposition is
made in compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on
a certificate to that effect provided to it by any Credit Party upon its reasonable request without further
inquiry), (iii) to the extent such Collateral is comprised of property leased to a Credit Party, upon
termination or expiration of such lease, (iv) if the release of such Lien is approved, authorized or ratified
in writing by the Required Lenders (or such other percentage of the Lenders whose consent may be
required in accordance with this Section 13.1), (v) to the extent the property constituting such Collateral is
owned by any Guarantor, upon the release of such Guarantor from its obligations under the applicable
Guarantee (in accordance with the second following sentence), (vi) as required to effect any sale or other
disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to
the Security Documents and (vii) if such assets constitute Excluded Property or Excluded Stock and
Stock Equivalents. Any such release shall not in any manner discharge, affect or impair the Obligations
or any Liens (other than those being released) upon (or obligations (other than those being released) of
the Credit Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any
sale, all of which shall continue to constitute part of the Collateral except to the extent otherwise released
in accordance with the provisions of the Credit Documents. Additionally, the Lenders hereby irrevocably
agree that any Restricted Subsidiary that is a Guarantor shall be released from the Guarantees upon
consummation of any transaction not prohibited hereunder resulting in such Subsidiary ceasing to
constitute a Restricted Subsidiary or otherwise no longer being required to be a Guarantor hereunder;
provided that no release shall occur if such Guarantor became an Excluded Subsidiary by virtue of no
longer being a Wholly Owned Restricted Subsidiary of a Credit Party unless it is no longer a Subsidiary
of any Credit Party or it is becoming a bona fide joint venture (as determined by Intermediate Holdings in
good faith) in a transaction otherwise permitted hereunder. The Lenders hereby authorize the
Administrative Agent and the Collateral Agent, as applicable, to execute and deliver any instruments,
documents and agreements necessary or desirable to evidence and confirm the release of any Guarantor
or Collateral pursuant to the foregoing provisions of this paragraph, all without the further consent or
joinder of any Lender.
Notwithstanding anything herein to the contrary, the Credit Documents may be amended to add
syndication or documentation agents and make customary changes and references related thereto with the
consent of only Intermediate Holdings and the Administrative Agent.
Notwithstanding anything in this Agreement (including, without limitation, this Section 13.1) or
any other Credit Document to the contrary, (i) this Agreement and the other Credit Documents may be
amended to effect an incremental facility or extension facility pursuant to Section 2.14 (and the
Administrative Agent and the Borrower may effect such amendments to this Agreement and the other
Credit Documents without the consent of any other party as may be necessary or appropriate, in the
reasonable opinion of the Administrative Agent and the Borrower, to effect the terms of any such
incremental facility or extension facility); (ii) no Lender consent is required to effect any amendment or
supplement to an Acceptable Intercreditor Agreement or other intercreditor agreement or arrangement
permitted under this Agreement that is for the purpose of adding the holders of any Indebtedness as
expressly contemplated by the terms of an Acceptable Intercreditor Agreement or such other intercreditor
agreement or arrangement permitted under this Agreement, as applicable (it being understood that any
such amendment or supplement may make such other changes to the applicable intercreditor agreement
as, in the good faith determination of the Administrative Agent in consultation with the Borrower, are
required to effectuate the foregoing; provided that such other changes are not adverse, in any material
respect, to the interests of the Lenders taken as a whole); provided, further, that no such agreement shall
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amend, modify or otherwise directly and adversely affect the rights or duties of the Administrative Agent
hereunder or under any other Credit Document without the prior written consent of the Administrative
Agent; (iii) any provision of this Agreement or any other Credit Document may be amended by an
agreement in writing entered into by the Borrower and the Administrative Agent to (x) cure any
ambiguity, omission, mistake, defect or inconsistency (as reasonably determined by the Administrative
Agent and the Borrower) or (y) effect administrative changes of a technical or immaterial nature
(including to effect changes to the terms and conditions applicable solely to the Letter of Credit Issuer in
respect of issuances of Letters of Credit) and such amendment shall be deemed approved by the Lenders
if the Lenders shall have received at least five Business Days’ prior written notice of such change and the
Administrative Agent shall not have received, within five Business Days of the date of such notice to the
Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such
amendment; and (iv) guarantees, collateral documents and related documents executed by Credit Parties
in connection with this Agreement may be in a form reasonably determined by the Administrative Agent
and may be, together with any other Credit Document, entered into, amended, supplemented or waived,
without the consent of any other Person, by the applicable Credit Party or Credit Parties and the
Administrative Agent or the Collateral Agent in its or their respective sole discretion, to (A) effect the
granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or
additional property to become Collateral for the benefit of the Secured Parties, (B) as required by local
law or advice of counsel to give effect to, or protect any security interest for the benefit of the Secured
Parties, in any property or so that the security interests therein comply with applicable requirements of
law or (C) to cure ambiguities, omissions, mistakes or defects (as reasonably determined by the
Administrative Agent and the Borrower) or to cause such guarantee, collateral security document or other
document to be consistent with this Agreement and the other Credit Documents.
Notwithstanding anything in this Agreement or any Security Document to the contrary, the
Administrative Agent may, in its sole discretion, grant extensions of time for the satisfaction of any of the
requirements under Sections 9.10, 9.11 and 9.13 or any Security Documents in respect of any particular
Collateral or any particular Subsidiary if it determines that the satisfaction thereof with respect to such
Collateral or such Subsidiary cannot be accomplished without undue expense or unreasonable effort or
due to factors beyond the control of Holdings, Intermediate Holdings and the Restricted Subsidiaries by
the time or times at which it would otherwise be required to be satisfied under this Agreement or any
Security Document.
13.2Notices. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder or under any other Credit Document shall be in writing
(including by facsimile transmission). All such written notices shall be mailed, faxed or delivered to the
applicable address, facsimile number or electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number,
as follows:
(a)if to Holdings, Intermediate Holdings, the Borrower, the Administrative Agent, the
Collateral Agent, the Swingline Lender or the Letter of Credit Issuer, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on Schedule 13.2 or to such other
address, facsimile number, electronic mail address or telephone number as shall be designated by such
party in a notice to the other parties; and
(b)if to any other Lender, to the address, facsimile number, electronic mail address or
telephone number specified in its Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated by such party in a notice to
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Holdings, Intermediate Holdings, the Borrower, the Administrative Agent, the Collateral Agent, the
Swingline and the Letter of Credit Issuer.
All such notices and other communications shall be deemed to be given or made upon the earlier to occur
of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when
signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, three Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been
confirmed by telephone; and (D) if delivered by electronic mail, when delivered (except that, if not given
during normal business hours for the recipient, shall be deemed to have been given at the opening of
business on the next business day for the recipient); provided that notices and other communications to
the Administrative Agent or the Lenders pursuant to Sections 2.3, 2.6, 2.9, 4.2 and 5.1 shall not be
effective until received.
13.3No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on
the part of the Administrative Agent, the Collateral Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Credit Documents shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers,
and privileges provided by law.
13.4Survival of Representations and Warranties. All representations and warranties made
hereunder, in the other Credit Documents and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and delivery of this Agreement and the
making of the Loans hereunder.
13.5Payment of Expenses; Indemnification.
(a)Each of Intermediate Holdings and the Borrower, jointly and severally, agree (i) to pay
or reimburse each of the Agents (promptly upon written demand (with reasonably supporting detail if the
Borrower shall so request)) for all their reasonable and documented or invoiced out-of-pocket costs and
expenses (without duplication) incurred in connection with the administration, preparation, execution and
delivery of, and any amendment, supplement, modification to, waiver and/or enforcement this Agreement
and the other Credit Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby and thereby, including
the reasonable fees, disbursements and other charges of Latham & Watkins LLP (or such other counsel
as may be agreed by the Administrative Agent and the Borrower), and, if reasonably necessary, one
counsel in each relevant local jurisdiction with the consent of the Borrower (such consent not to be
unreasonably withheld or delayed), (ii) to pay or reimburse each Agent and the Lenders for all of their
reasonable and documented or invoiced out-of-pocket costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Credit Documents and any
such other documents, including the reasonable fees, disbursements and other charges of one firm or
counsel to the Administrative Agent, the Collateral Agent and the Lenders, and, to the extent required,
one firm or local counsel in each relevant local jurisdiction (which may include a single special counsel
acting in multiple jurisdictions) with the Borrower’s consent (such consent not to be unreasonably
withheld or delayed (which may include a single special counsel acting in multiple jurisdictions) and, in
the case of an actual or perceived conflict of interest, one additional counsel to each group of similarly
situated Persons, taken as a whole), (iii) to pay or reimburse each of the Agents for all reasonable
out-of-pocket costs and expenses incurred by it or its Affiliates to obtain and maintain no more than two
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(2) private, “shadow” credit ratings or estimates per calendar year in respect of the Loans from rating
agencies, whether obtained prior to or subsequent to the Closing Date, to the affected Indemnified
Persons similarly situated and (iv) to pay, indemnify and hold harmless each Lender, each Agent, the
Letter of Credit Issuer and their respective Related Parties (without duplication) (the “Indemnified
Persons”) from and against any and all losses, claims, damages, liabilities, obligations, demands, actions,
judgments, suits, costs, expenses, disbursements or penalties of any kind or nature whatsoever (and the
reasonable and documented or invoiced out-of-pocket fees, expenses, disbursements and other charges of
one firm of counsel for all Indemnified Persons, taken as a whole (and, in the case of an actual or
perceived conflict of interest where the Indemnified Person affected by such conflict notifies the
Borrower of any existence of such conflict and in connection with the investigating or defending any of
the foregoing (including the reasonable fees) has retained its own counsel, of another firm of counsel for
such affected Indemnified Person), and to the extent required, one firm or local counsel in each relevant
jurisdiction (which may include a single special counsel acting in multiple jurisdictions)) of any such
Indemnified Person arising out of or relating to any action, claim, litigation, investigation or other
proceeding (regardless of whether such Indemnified Person is a party thereto or whether or not such
action, claim, litigation or proceeding was brought by Holdings, any of its Subsidiaries or any other
Person), arising out of, or with respect to the Transactions or to the execution, enforcement, delivery,
performance and administration of this Agreement, the other Credit Documents and any such other
documents, including any of the foregoing relating to any Environmental Claim, any violation of,
noncompliance with or liability under, any Environmental Law, or any actual or alleged presence,
Release or threatened Release of Hazardous Materials, in each case relating to the properties, facilities or
operations of Intermediate Holdings or any of its Subsidiaries (all the foregoing in this clause (iv),
collectively, the “Indemnified Liabilities”); provided that Intermediate Holdings and the Borrower has
no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities to the extent
arising from (i) the gross negligence, bad faith or willful misconduct of such Indemnified Person or any of
its Related Parties as determined in a final and non-appealable judgment of a court of competent
jurisdiction, (ii) a material breach (or, in the case of any claim, litigation, investigation or other
proceeding brought by a Credit Party, a breach) of the obligations of such Indemnified Person or any of
its Related Parties under the terms of this Agreement by such Indemnified Person or any of its Related
Parties as determined in a final and non-appealable judgment of a court of competent jurisdiction or
(iii) any proceeding between and among Indemnified Persons that does not involve an act or omission by
Holdings, Intermediate Holdings or its respective Restricted Subsidiaries; provided the Agents, to the
extent acting in their capacity as such, shall remain indemnified in respect of such proceeding, to the
extent that neither of the exceptions set forth in clause (i) or (ii) of the immediately preceding proviso
applies to such person at such time. The agreements in this Section 13.5 shall survive repayment of the
Loans and all other amounts payable hereunder. This Section 13.5 shall not apply with respect to Taxes,
other than any Taxes that represent losses, claims, damages, liabilities, obligations, penalties, actions,
judgments, suits, costs, expenses or disbursements arising from any non-Tax claim.
(b)No Credit Party nor any Indemnified Person shall have any liability for any special,
punitive, indirect or consequential damages resulting from this Agreement or any other Credit Document
or arising out of its activities in connection herewith or therewith (whether before or after the Closing
Date); provided that the foregoing shall not limit Intermediate Holdings’ and the Borrower’s
indemnification obligations to the Indemnified Persons pursuant to Section 13.5(a) in respect of damages
incurred or paid by an Indemnified Person to a third party. No Indemnified Person shall be liable for any
damages arising from the use by unintended recipients of any information or other materials distributed
by it through telecommunications, electronic or other information transmission systems in connection
with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby,
except to the extent that such damages have resulted from the willful misconduct, bad faith or gross
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negligence of any Indemnified Person or any of its Related Parties as determined by a final and
non-appealable judgment of a court of competent jurisdiction.
13.6Successors and Assigns; Participations and Assignments.
(a)The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that (i) except as
expressly permitted by Section 10.3, the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative Agent and each Lender (and
any attempted assignment or transfer by the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section 13.6. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby,
Participants (to the extent provided in clause (c) of this Section 13.6) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent, the
Letter of Credit Issuer and the Lenders and each other Person entitled to indemnification under
Section 13.5) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)(i) Subject to the conditions set forth in clause (b)(ii) below and Section 13.7, any
Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitments and the Loans (including participations in
L/C Obligations and Swingline Loans) at the time owing to it) with the prior written consent (such
consent not to be unreasonably withheld or delayed; it being understood that, without limitation, the
relevant Person shall have the right to withhold their consent to any assignment if, in order for such
assignment to comply with applicable law, the Borrower would be required to obtain the consent of, or
make any filing or registration with, any Governmental Authority) of:
(A)the Borrower (such consent not to be unreasonably withheld or delayed),
and, solely with respect to Revolving Credit Loans and Revolving Credit Commitments, the Sponsor;
provided that no consent of the Borrower or the Sponsor (solely with respect to Revolving Credit Loans
and Revolving Credit Commitments) shall be required (1) for an assignment to (X) a Lender, (Y) an
Affiliate of a Lender, or (Z) an Approved Fund of a Lender, (2) for an assignment of Loans or
Commitments to any assignee if an Event of Default under Section 11.1 or Section 11.5 (with respect to
the Borrower) has occurred and is continuing or (3) unless (X) the prospective assignment is to a
Disqualified Lender or (Y) the Borrower or, in the case of Revolving Loans and/or Revolving
Commitments, the Sponsor, has already objected thereto by delivering written notice to the
Administrative Agent within ten (10) Business Days after the receipt of a written request for consent
thereto; and
(B)the Administrative Agent (not to be unreasonably withheld or delayed)
and, with respect to Revolving Credit Commitments only, the Letter of Credit Issuers and the Swingline
Lender (not to be unreasonably withheld or delayed); provided that no consent of the Administrative
Agent, Letter of Credit Issuers or Swingline Lender, as applicable, shall be required for an assignment of
to a Lender, an Affiliate of a Lender or an Approved Fund of a Lender.
Notwithstanding the foregoing, no such assignment shall be made (i) to a natural Person,
Disqualified Lender or Defaulting Lender and (ii) with respect to the Revolving Credit Commitments,
Holdings, Intermediate Holdings, the Borrower or any of its Subsidiaries or any Affiliated Lender;
provided that the list of Disqualified Lenders shall be made available to Lenders by the Administrative
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Agent upon written request. For the avoidance of doubt, the Administrative Agent shall bear no
responsibility or liability for monitoring and enforcing the list of Persons who are Disqualified Lenders at
any time.
(ii)Assignments shall be subject to the following additional conditions:
(A)except in the case of an assignment to a Lender, an Affiliate of a Lender
or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less than $2,500,000 in the case
of Revolving Credit Commitments and $1,000,000 in the case of Term Loans or, if less, all of such
Lender’s remaining Loans and Commitments of the applicable Class, unless each of the Borrower and
the Administrative Agent otherwise consents (which consents shall not be unreasonably withheld or
delayed); provided that no such consent of the Borrower shall be required if an Event of Default under
Section 11.1 or Section 11.5 (with respect to the Borrower) has occurred and is continuing; provided,
further, that contemporaneous assignments by a Lender and its Affiliates or Approved Funds shall be
aggregated for purposes of meeting the minimum assignment amount requirements stated above (and
simultaneous assignments to or by two or more Related Funds shall be treated as one assignment), if any;
(B)each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under this Agreement; provided
that this clause shall not be construed to prohibit the assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C)the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance via an electronic settlement system or other
method reasonably acceptable to the Administrative Agent, together with a processing and recordation
fee in the amount of $3,500; provided that the Administrative Agent may, in its sole discretion, elect to
waive such processing and recordation fee in the case of any assignment; provided, further, that such
processing and recordation fee shall not be payable in the case of assignments by any Agent or any of its
Affiliates;
(D)the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire in a form approved by the Administrative Agent
(the “Administrative Questionnaire”) and applicable tax forms (as required under Section 5.4(e)); and
(E)any assignment to Holdings, Intermediate Holdings, the Borrower, any
Subsidiary or an Affiliated Lender (other than an Affiliated Institutional Lender) shall also be subject to
the requirements of Section 13.6(h).
For the avoidance of doubt, funded Delayed Draw Term Loans, and rights and obligations with
respect thereto, may be traded separate from Delayed Draw Term Loan Commitments, and rights and
obligations with respect thereto.
For the avoidance of doubt, the Administrative Agent bears no responsibility for tracking or
monitoring assignments to or participations by any Affiliated Lender or any Disqualified Lender.
(iii)Subject to acceptance and recording thereof pursuant to clause (b)(v) of this
Section 13.6, from and after the effective date specified in each Assignment and Acceptance, the
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assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance
covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled to the benefits and obligations of Sections 2.10,
2.11, 3.5, 5.4 and 13.5). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 13.6 shall be treated for purposes of this Agreement as
a sale by such Lender of a participation in such rights and obligations in accordance with clause (c) of
this Section 13.6. For the avoidance of doubt, in case of an assignment to a new Lender pursuant to this
Section 13.6, (i) the Administrative Agent, the new Lender and other Lenders shall acquire the same
rights and assume the same obligations between themselves as they would have acquired and assumed
had the new Lender been an original Lender signatory to this Agreement with the rights and/or
obligations acquired or assumed by it as a result of the assignment and to the extent of the assignment the
assigning Lender shall each be released from further obligations under the Credit Documents and (ii) the
benefit of each Security Document shall be maintained in favor of the new Lender.
(iv)The Administrative Agent, acting for this purpose as a non-fiduciary agent of the
Borrower, shall maintain at the Administrative Agent’s Office in the United States a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amount of the Loans (and stated interest amounts)
and any payment made by the Letter of Credit Issuer under any Letter of Credit owing to each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, absent manifest error, and the Borrower, the Administrative Agent, the Collateral Agent, the
Letter of Credit Issuer and the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary, and no assignment shall be effective until recorded in the Register pursuant to this
Section 13.6(b)(iv). The Register shall be available for inspection by the Borrower, the Collateral Agent,
the Letter of Credit Issuer, the Administrative Agent and its Affiliates and, with respect to itself, any
Lender, at any reasonable time and from time to time upon reasonable prior notice. This Section
13.6(b)(iv) shall be construed so that all Loans are at all times maintained in “registered form” within the
meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related Treasury regulations (or
any other relevant or successor provisions of the Code or of such Treasury regulations).
(v)Upon its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and applicable
tax forms (unless the assignee shall already be a Lender hereunder), the processing and recordation fee
referred to in clause (b) of this Section 13.6 and any written consent to such assignment required by
clause (b) of this Section 13.6, the Administrative Agent shall promptly accept such Assignment and
Acceptance and record the information contained therein in the Register. No assignment, whether or not
evidenced by a promissory note, shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this clause (b)(v).
(c)(i) Any Lender may, without the consent of the Borrower or the Administrative
Agent, the Swingline Lender or the Letter of Credit Issuer, sell participations to one or more banks or
other entities (other than (x) a natural person, (y) Holdings, Intermediate Holdings and its Subsidiaries
and (z) any Disqualified Lender provided, however, that, notwithstanding clause (y) hereof,
participations may be sold to Disqualified Lenders unless a list of Disqualified Lenders has been made
available to all Lenders) (each, a “Participant”) in all or a portion of such Lender’s rights and
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obligations under this Agreement (including all or a portion of its Commitments and the Loans owing to
it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the performance of such obligations,
and (C) the Borrower, the Administrative Agent, the Letter of Credit Issuer and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. For the avoidance of doubt, the Administrative Agent shall bear no
responsibility or liability for monitoring and enforcing the list of Disqualified Lenders or the sales of
participations thereto at any time. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this Agreement or any other Credit
Document; provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in
clauses (x)(i), (v) and (vi) of the second proviso to Section 13.1 that affects such Participant. Subject to
clause (c)(ii) of this Section 13.6, the Borrower agrees that each Participant shall be entitled to the
benefits and obligations of Sections 2.10, 2.11, 3.5 and 5.4 to the same extent as if it were a Lender
(subject to the limitations and requirements of those Sections as though it were a Lender and had
acquired its interest by assignment pursuant to clause (b) of this Section 13.6, including the requirements
of clause (e) of Section 5.4) (it being agreed that any documentation required under Section 5.4(e) shall
be provided to the participating Lender)). To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 13.8(b) as though it were a Lender; provided such Participant shall be
subject to Section 13.8(a) as though it were a Lender.
(ii)A Participant shall not be entitled to receive any greater payment under
Section 2.10, 2.11, 3.5 or 5.4 than the applicable Lender would have been entitled to receive absent the
sale of such the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent (which consent shall not be unreasonably
withheld). Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary
agent of the Borrower, maintain a register on which it enters the name and address of each Participant
and the principal amounts (and stated interest amounts) of each Participant’s interest in the Loans or
other obligations under this Agreement (the “Participant Register”). The entries in the Participant
Register shall be conclusive, absent manifest error, and such Lender shall treat each Person whose name
is recorded in the Participant Register as the owner of such participation for all purposes of this
Agreement notwithstanding any notice to the contrary. No Lender shall have any obligation to disclose
all or any portion of the Participant Register to any Person (including the identity of any Participant or
any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other
obligations under any Credit Document) except to the extent that such disclosure is necessary to establish
that such commitment, loan, letter of credit or other obligation is in registered form under
Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed
United States Treasury Regulations (or, in each case, any amended or successor sections).
(d)Any Lender may, without the consent of the Borrower or the Administrative Agent, at
any time pledge or assign a security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, or other central bank having jurisdiction over such Lender and this Section 13.6 shall not
apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.
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(e)Subject to Section 13.16, the Borrower authorizes each Lender to disclose to any
Participant, secured creditor of such Lender or assignee (each, a “Transferee”) and any prospective
Transferee any and all financial information in such Lender’s possession concerning the Borrower and its
Affiliates that has been delivered to such Lender by or on behalf of the Borrower and its Affiliates
pursuant to this Agreement or that has been delivered to such Lender by or on behalf of the Borrower and
its Affiliates in connection with such Lender’s credit evaluation of the Borrower and its Affiliates prior
to becoming a party to this Agreement.
(f)The words “execution,” “signed,” “signature,” and words of like import in any
Assignment and Acceptance 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.
(g)SPV Lender. Notwithstanding anything to the contrary contained herein, any Lender (a
“Granting Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such in
writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the
option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make the Borrower pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPV to make any Loan and (ii) if an SPV elects not to exercise such
option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated
to make such Loan pursuant to the terms hereof. The making of a Loan by an SPV hereunder shall utilize
the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender and such SPV shall have the rights of a Lender hereunder. Each party hereto hereby
agrees that no SPV shall be liable for any indemnity or similar payment obligation under this Agreement
(all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of all outstanding commercial paper or
other senior indebtedness of any SPV, it shall not institute against, or join any other Person in instituting
against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition, notwithstanding anything to the
contrary contained in this Section 13.6, any SPV may (i) with notice to, but without the prior written
consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions
(consented to by the Borrower and the Administrative Agent) other than a Disqualified Lender providing
liquidity and/or credit support to or for the account of such SPV to support the funding or maintenance of
Loans and (ii) subject to Section 13.16, disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee
or credit or liquidity enhancement to such SPV. This Section 13.6(g) may not be amended without the
written consent of the SPV. Notwithstanding anything to the contrary in this Agreement but subject to
the following sentence, each SPV shall be entitled to the benefits of Sections 2.10, 2.11, 3.5 and 5.4 to
the same extent as if it were a Lender (subject to the limitations and requirements of those Sections as
though it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this
Section 13.6, including the requirements of clause (e) of Section 5.4 (it being agreed that any
documentation required under Section 5.4(e) shall be provided to the Granting Lender)). Notwithstanding
the prior sentence, an SPV shall not be entitled to receive any greater payment under Section 2.10, 2.11,
3.5 or 5.4 than its Granting Lender would have been entitled to receive absent the grant to such SPV,
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unless such grant to such SPV is made with the Borrower’s prior written consent (which consent shall
not be unreasonably withheld).
(h)Notwithstanding anything to the contrary contained herein, (x) any Lender may, at any
time, assign all or a portion of its rights and obligations under this Agreement in respect of its Term Loans
to Holdings, Intermediate Holdings, the Borrower, any Subsidiary or an Affiliated Lender and (y)
Holdings, Intermediate Holdings, the Borrower and any Subsidiary may, from time to time, purchase or
prepay Term Loans, in each case, on a non-pro rata basis through (1) Dutch auction procedures open to
all applicable Lenders on a pro rata basis in accordance with customary procedures to be agreed between
Holdings, Intermediate Holdings or the Borrower and the Auction Agent or (2) open market purchases;
provided that:
(i)any Loans or Commitments acquired by Holdings, Intermediate Holdings, the
Borrower or any other Subsidiary shall be retired and cancelled promptly upon the acquisition thereof;
(ii)by its acquisition of Loans or Commitments, an Affiliated Lender shall be
deemed to have acknowledged and agreed that:
(A)it shall not have any right to (i) attend or participate in (including, in
each case, by telephone) any meeting (including “Lender only” meetings) or discussions (or portion
thereof) among the Administrative Agent or any Lender to which representatives of the Borrower is not
then present, (ii) receive any information or material prepared by the Administrative Agent or any Lender
or any communication by or among the Administrative Agent and one or more Lenders or any other
material which is “Lender only”, except to the extent such information or materials have been made
available to the Borrower or its representatives (and in any case, other than the right to receive notices of
prepayments and other administrative notices in respect of its Loans required to be delivered to Lenders
pursuant to Section 2) or receive any advice of counsel to the Administrative Agent or (iii) make any
challenge to the Administrative Agent’s or any other Lender’s attorney-client privilege on the basis of its
status as a Lender and waives its rights to bring actions (in its capacity as a Lender) against the
Administrative Agent; and
(B)except with respect to any amendment, modification, waiver, consent or
other action (I) in Section 13.1 requiring the consent of all Lenders, all Lenders directly and adversely
affected or specifically such Lender, (II) that alters an Affiliated Lender’s pro rata share of any payments
given to all Lenders, or (III) affects the Affiliated Lender (in its capacity as a Lender) in a manner that is
disproportionate to the effect on any Lender in the same Class, the Loans held by an Affiliated Lender
shall be disregarded in both the numerator and denominator in the calculation of any Lender vote (and, in
the case of a plan of reorganization that does not affect the Affiliated Lender in a manner that is
materially adverse to such Affiliated Lender relative to other Lenders, shall be deemed to have voted its
interest in the Term Loans in the same proportion as the other Lenders) (and shall be deemed to have
been voted in the same percentage as all other applicable Lenders voted if necessary to give legal effect
to this paragraph); and
(iii)(x) the aggregate principal amount of Term Loans held at any one time by
Affiliated Lenders may not exceed 25% of the aggregate principal amount of all Term Loans outstanding
at the time of such purchase and (y) Affiliated Lenders (other than Affiliated Institutional Lenders) shall
not constitute more than 49% in number of the total number of Term Loan Lenders;
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(iv)any such Loans acquired by an Affiliated Lender may, with the consent of the
Borrower, be contributed to the Borrower and exchanged for debt or equity securities that are otherwise
permitted to be issued at such time (and such Loans or Commitments shall be retired and cancelled
promptly);
(v)the Affiliated Lender shall clearly identify itself as an Affiliated Lender in any
Assignment and Assumption executed in connection with such purchases or sales and each such
Assignment and Assumption shall contain customary “big boy” representations; and
(vi)in the event that any proceeding under the Bankruptcy Code shall be instituted
by or against any Borrower or any other Guarantor, each Affiliated Lender shall acknowledge and agree
that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims
associated with the Loans and Commitments owned by it shall not be included in determining whether
the applicable class of creditors holding such claims has voted to accept a proposed plan for purposes of
Section 1129(a)(10) of the Bankruptcy Code, or, alternatively, to the extent that the foregoing designation
is deemed unenforceable for any reason, each Affiliated Lender shall vote in such proceedings
in the same proportion as the allocation of voting with respect to such matter by those Lenders who are
not Affiliated Lenders.
For avoidance of doubt, the foregoing limitations shall not be applicable to Affiliated Institutional
Lenders. None of the Borrower, Holdings, Intermediate Holdings, any Subsidiary of Intermediate
Holdings or any Affiliated Lender shall be required to make any representation that it is not in possession
of information which is not publicly available and/or material with respect to Holdings, Intermediate
Holdings and its respective Subsidiaries or their respective securities for purposes of foreign, U.S. federal
and state securities laws.
(i)Notwithstanding anything in Section 13.1 or the definition of “Required Lenders” to the
contrary, for purposes of determining whether the Required Lenders have (i) consented (or not
consented) to any amendment, modification, waiver, consent or other action with respect to any of the
terms of any Credit Document or any departure by any Credit Party therefrom, (ii) otherwise acted on
any matter related to any Credit Document or (iii) directed or required the Administrative Agent or any
Lender to undertake any action (or refrain from taking any action) with respect to or under any Credit
Document, all Term Loans, Revolving Credit Commitments and Revolving Credit Loans held by
Affiliated Institutional Lender may not account for more than 49.9% (pro rata among such Affiliated
Institutional Lenders) of the Term Loans, Revolving Credit Commitments and Revolving Credit Loans of
consenting Lenders included in determining whether the Required Lenders have consented to any action
pursuant to Section 13.1.
13.7Replacements of Lenders Under Certain Circumstances.
(a)The Borrower shall be permitted (x) to replace any Lender or (y) terminate the
Commitment of such Lender or Letter of Credit Issuer, as the case may be, and (1) in the case of a Lender
(other than the Letter of Credit Issuer), repay all Obligations of the Borrower due and owing to such
Lender relating to the Loans and participations held by such Lender as of such termination date and (2) in
the case of the Letter of Credit Issuer, repay all Obligations of the Borrower owing to such Letter of
Credit Issuer relating to the Loans and participations held by the Letter of Credit Issuer as of such
termination date and cancel or backstop on terms satisfactory to such Letter of Credit Issuer any Letters
of Credit issued by it that (a) requests reimbursement for amounts owing pursuant to Sections 2.10, 3.5 or
5.4, and such Lender or Letter of Credit Issuer, as the case may be, has declined or is unable to designate
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a different lending office in accordance with Section 2.12, (b) is affected in the manner described in
Section 2.10(a)(iii) and as a result thereof any of the actions described in such Section is required to be
taken, or (c) becomes a Defaulting Lender, with a replacement bank or other financial institution;
provided that (i) such replacement does not conflict with any Requirements of Law, (ii) no Event of
Default under Sections 11.1 or 11.5 shall have occurred and be continuing at the time of such
replacement, (iii) the Borrower shall repay (or the replacement bank or institution shall purchase, at par)
all Loans and other amounts pursuant to Sections 2.10, 2.11, 3.5 or 5.4, as the case may be, owing to such
replaced Lender prior to the date of replacement, (iv) the replacement bank or institution, if not already a
Lender, an Affiliate of a Lender, an Affiliated Lender or Approved Fund, and the terms and conditions of
such replacement, shall be reasonably satisfactory to the Administrative Agent, (v) the replacement bank
or institution, if not already a Lender shall be subject to the provisions of Section 13.6(b), (vi) the
replaced Lender shall be obligated to make such replacement in accordance with the provisions of
Section 13.6 (provided that unless otherwise agreed the Borrower shall be obligated to pay the
registration and processing fee referred to therein), and (vii) any such replacement shall not be deemed to
be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender.
(b)If any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a
proposed amendment, waiver, discharge or termination that pursuant to the terms of Section 13.1 requires
the consent of either (i) all of the Lenders directly and adversely affected or (ii) all of the Lenders, and, in
each case, with respect to which the Required Lenders (or at least 50.1% of the directly and adversely
affected Lenders) shall have granted their consent, then, the Borrower has the right (unless such
Non-Consenting Lender grants such consent) to the extent not otherwise replaced, to replace such
Non-Consenting Lender by requiring such Non-Consenting Lender to assign its Loans, and its
Commitments hereunder to one or more assignees reasonably acceptable to the Administrative Agent (to
the extent such consent would be required under Section 13.6) or to terminate the Commitment of such
Lender or Letter of Credit Issuer, as the case may be, and (1) in the case of a Lender (other than the
Letter of Credit Issuer), repay all Obligations of the Borrower due and owing to such Lender relating to
the Loans and participations held by such Lender as of such termination date and (2) in the case of the
Letter of Credit Issuer, repay all Obligations of the Borrower owing to such Letter of Credit Issuer
relating to the Loans and participations held by the Letter of Credit Issuer as of such termination date and
cancel or backstop on terms satisfactory to such Letter of Credit Issuer any Letters of Credit issued by it);
provided that (a) all Obligations hereunder of the Borrower owing to such Non-Consenting Lender being
replaced shall be paid in full to such Non-Consenting Lender concurrently with such assignment
including any amounts that such Lender may be owed pursuant to Section 2.11, and (b) the replacement
Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the
principal amount thereof plus accrued and unpaid interest thereon, and (c) the Borrower shall pay to such
Non-Consenting Lender the amount, if any, owing to such Lender pursuant to Section 5.1(b). In
connection with any such assignment, the Borrower, the Administrative Agent, such Non-Consenting
Lender and the replacement Lender shall otherwise comply with Section 13.6.
13.8Adjustments; Set-Off.
(a)Except as contemplated in Section 13.6 or elsewhere herein, if any Lender (a “Benefited
Lender”) shall at any time receive any payment of all or part of its Loans, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 11.5, or otherwise), in a greater proportion than any such
payment to or collateral received by any other Lender, if any, in respect of such other Lender’s Loans, or
interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating
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interest in such portion of each such other Lender’s Loan, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited
Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b)After the occurrence and during the continuance of an Event of Default, in addition to
any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior
notice to the Credit Parties but with the prior consent of the Administrative Agent, any such notice being
expressly waived by the Credit Parties to the extent permitted by applicable law, upon any amount
becoming due and payable by the Credit Parties hereunder (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final) (other than payroll, trust, tax, fiduciary, and
petty cash accounts), in any currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the account of the Credit
Parties. Each Lender agrees promptly to notify the Credit Parties and the Administrative Agent after any
such set-off and application made by such Lender; provided that the failure to give such notice shall not
affect the validity of such set-off and application.
13.9Counterparts. This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by facsimile or other electronic
transmission), and all of said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent. The words “execution,” “signed,” “signature,” “delivery,” and
words of like import in or relating to this Agreement and any other Credit Document 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.
13.10Severability. Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
13.11Integration. This Agreement and the other Credit Documents represent the agreement of
Holdings, Intermediate Holdings, the Borrower, the Collateral Agent, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations
or warranties by Holdings, Intermediate Holdings, the Borrower, the Administrative Agent, the Collateral
Agent nor any Lender relative to subject matter hereof not expressly set forth or referred to herein or in
the other Credit Documents.
13.12GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
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INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK;
PROVIDED HOWEVER, THAT (I) THE DETERMINATION OF THE ACCURACY OF ANY
SPECIFIED ACQUISITION AGREEMENT REPRESENTATION, (II) THE INTERPRETATION OF
WHETHER A COMPANY GROUP MATERIAL ADVERSE EFFECT (AS DEFINED IN THE
ACQUISITION AGREEMENT) HAS OCCURRED AND (III) THE DETERMINATION OF
WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE
TERMS OF THE ACQUISITION AGREEMENT, IN EACH CASE, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF DELAWARE
WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD
CAUSE THE APPLICATION OF LAWS (AS DEFINED IN THE ACQUISITION AGREEMENT) OF
ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE, INCLUDING STATUTES OF
LIMITATION.
13.13Submission to Jurisdiction; Waivers. Each party hereto irrevocably and unconditionally:
(a)submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Credit Documents to which it is a party to the exclusive general jurisdiction of
the courts of the State of New York or the courts of the United States for the Southern District of New
York, in each case sitting in New York City in the Borough of Manhattan, and appellate courts from any
thereof;
(b)consents that any such action or proceeding shall be brought in such courts and waives
(to the extent permitted by applicable law) any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same or to commence or support any such action
or proceeding in any other courts;
(c)agrees that service of process in any such action or proceeding shall be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Person at its address set forth on Schedule 13.2 at such other address of which the
Administrative Agent shall have been notified pursuant to Section 13.2;
(d)agrees that nothing herein shall affect the right of the Administrative Agent, any Lender
or another Secured Party to effect service of process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against Holdings, Intermediate Holdings, the Borrower
or any other Credit Party in any other jurisdiction; and
(e)waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section 13.13 any special, exemplary, punitive
or consequential damages; provided that nothing in this clause (e) shall limit the Credit Parties’
indemnification obligations set forth in Section 13.5.
13.14Acknowledgments. Each of Holdings, Intermediate Holdings and the Borrower hereby
acknowledges that:
(a)it has been advised by counsel in the negotiation, execution, and delivery of this
Agreement and the other Credit Documents;
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(b)(i) the credit facilities provided for hereunder and any related arranging or other
services in connection therewith (including in connection with any amendment, waiver or other
modification hereof or of any other Credit Document) are an arm’s-length commercial transaction
between the Borrower and the other Credit Parties, on the one hand, and the Administrative Agent, the
Lenders and the other Agents on the other hand, and the Borrower and the other Credit Parties are
capable of evaluating and understanding and understand and accept the terms, risks and conditions of the
transactions contemplated hereby and by the other Credit Documents (including any amendment, waiver
or other modification hereof or thereof);
(ii)in connection with the process leading to such transaction, each of the
Administrative Agent and the other Agents, is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary for the Borrower, any other Credit Parties or any of their respective
Affiliates, equity holders, creditors or employees, or any other Person;
(iii)neither the Administrative Agent nor any other Agent has assumed or will
assume an advisory, agency or fiduciary responsibility in favor of the Borrower or any other Credit Party
with respect to any of the transactions contemplated hereby or the process leading thereto, including with
respect to any amendment, waiver or other modification hereof or of any other Credit Document
(irrespective of whether the Administrative Agent or other Agent has advised or is currently advising the
Borrower, the other Credit Parties or their respective Affiliates on other matters) and neither the
Administrative Agent or other Agent has any obligation to the Borrower, the other Credit Parties or their
respective Affiliates with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Credit Documents;
(iv)the Administrative Agent, each other Agent and each Affiliate of the foregoing
may be engaged in a broad range of transactions that involve interests that differ from those of the
Borrower and its Affiliates, and neither the Administrative Agent nor any other Agent has any obligation
to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and
(v)neither the Administrative Agent nor any other Agent has provided and none will
provide any legal, accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby (including any amendment, waiver or other modification hereof or of any other
Credit Document) and the Borrower has consulted their own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate. Each of Holdings, Intermediate Holdings, and the
Borrower hereby agrees that they will not claim that any Agent owes a fiduciary or similar duty to the
Credit Parties in connection with the Transactions contemplated hereby and waives and releases, to the
fullest extent permitted by law, any claims that it may have against the Administrative Agent or any other
Agent with respect to any breach or alleged breach of agency or fiduciary duty; and
(c)no joint venture is created hereby or by the other Credit Documents or otherwise exists
by virtue of the transactions contemplated hereby among the Lenders or among the Borrower, on the one
hand, and any Lender, on the other hand.
13.15WAIVERS OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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13.16Confidentiality. The Administrative Agent, each other Agent and each Lender
(collectively, the “Restricted Persons” and, each a “Restricted Person”) shall treat confidentially all
non-public information provided to any Restricted Person by or on behalf of any Credit Party hereunder
in connection with such Restricted Person’s evaluation of whether to become a Lender hereunder or
obtained by such Restricted Person pursuant to the requirements of this Agreement (“Confidential
Information”) and shall not publish, disclose or otherwise divulge such Confidential Information;
provided that nothing herein shall prevent any Restricted Person from disclosing any such Confidential
Information (a) pursuant to the order of any court or administrative agency or in any pending legal,
judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation or
compulsory legal process (in which case such Restricted Person agrees (except with respect to any
routine or ordinary course audit or examination conducted by bank accountants or any governmental or
regulatory or self-regulatory authority exercising examination or regulatory authority), to the extent
practicable and not prohibited by applicable law, rule or regulation, to inform Intermediate Holdings
promptly thereof prior to disclosure), (b) upon the request or demand of any regulatory authority
(including to the National Association of Insurance Commissioners or any similar organization), any
examiner or any nationally recognized rating agency having jurisdiction over such Restricted Person or
any of its Affiliates or Approved Funds (in which case such Restricted Person agrees (except with respect
to any routine or ordinary course audit or examination conducted by bank accountants or any
governmental or regulatory or self-regulatory authority exercising examination or regulatory authority or
any required disclosure to any insurance regulator) to the extent practicable and not prohibited by
applicable law, rule or regulation, to inform Intermediate Holdings promptly thereof prior to disclosure),
(c) to the extent that such Confidential Information becomes publicly available other than by reason of
improper disclosure by such Restricted Person or any of its affiliates or any related parties thereto in
violation of any confidentiality obligations owing under this Section 13.16, (d) to the extent that such
Confidential Information is received by such Restricted Person from a third party that is not, to such
Restricted Person’s knowledge, subject to confidentiality obligations owing to any Credit Party or any of
their respective subsidiaries or affiliates or Approved Funds, (e) to the extent that such Confidential
Information was already in the possession of the Restricted Persons prior to any duty or other
undertaking of confidentiality or is independently developed by the Restricted Persons without the use of
such Confidential Information, (f) to such Restricted Person’s affiliates and Approved Funds and to its
and their respective officers, directors, partners, employees, legal counsel, independent auditors,
investors, potential investors, and other experts, including credit risk insurers and brokers, financing
sources (or alternative leverage providers), or agents who need to know such Confidential Information in
connection with providing the Loans or action as an Agent hereunder and who are informed of the
confidential nature of such Confidential Information and who are subject to customary confidentiality
obligations of professional practice or who agree to be bound by the terms of this Section 13.16 (or
confidentiality provisions at least as restrictive as those set forth in this Section 13.16) (with each such
Restricted Person, to the extent within its control, responsible for such person’s compliance with this
paragraph) and, (g) to potential or prospective Lenders, hedge providers (or other derivative transaction
counterparties) (any such person, a “Derivative Counterparty”), participants or assignees, in each case
who agree (pursuant to customary syndication practice) to be bound by the terms of this Section 13.16 (or
confidentiality provisions at least as restrictive as those set forth in this Section 13.16); provided that
(i) the disclosure of any such Confidential Information to any Lenders, Derivative Counterparties or
prospective Lenders, Derivative Counterparties or participants or prospective participants referred to
above shall be made subject to the acknowledgment and acceptance by such Lender, Derivative
Counterparty or prospective Lender or participant or prospective participant that such Confidential
Information is being disseminated on a confidential basis (on substantially the terms set forth in this
Section 13.16 or confidentiality provisions at least as restrictive as those set forth in this Section 13.16)
in accordance with the standard syndication processes of such Restricted Person or customary market
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standards for dissemination of such type of information, which shall in any event require “click through”
or other affirmative actions on the part of recipient to access such Confidential Information and (ii) no
such disclosure shall be made by any Restricted Person to whom a list of Disqualified Lenders has been
made available to any person that is at such time a Disqualified Lender, (h) for purposes of establishing a
“due diligence” defense, (i) to rating agencies in connection with obtaining ratings (including shadow
ratings) for Intermediate Holdings and the Credit Facilities to the extent such rating agencies are subject
to customary confidentiality obligations of professional practice or agree to be bound by the terms of this
Section 13.16 (or confidentiality provisions at least as restrictive as those set forth in this Section 13.16),
(j) to the Securities and Exchange Commission in connection with filings, submissions and other similar
documentation required to comply with Securities and Exchange Commission filing requirements, (k) in
the case of any Lender that is a fund, any general partners or directors of such fund, the prospective
investors in such fund, or the direct or indirect limited partners in such fund, in each case that are bound
by confidentiality obligations to such fund, in each case, on a need to know basis if such Lender or such
Lender’s holding or parent company in its reasonable discretion determines that any such party should
have access to such information, provided that such Persons shall be subject to the provisions of this
Section 13.16 to the same extent as such Lender, (l) to data service providers, including league table
providers, that serve the lending industry if such Confidential Information is customarily provided to
such data service providers. Notwithstanding the foregoing, (i) Confidential Information shall not
include, with respect to any Person, information available to it or its Affiliates on a non-confidential
basis from a source other than Holdings, Intermediate Holdings, its Subsidiaries or its Affiliates, (ii) the
Administrative Agent shall not be responsible for compliance with this Section 13.16 by any other
Restricted Person (other than its officers, directors or employees), (iii) in no event shall any Lender, the
Administrative Agent or any other Agent be obligated or required to return any materials furnished by
Holdings, Intermediate Holdings or any of its Subsidiaries, and (iv) each Agent and each Lender may
disclose the existence of this Agreement and the information about this Agreement to market data
collectors, similar services providers to the lending industry, and service providers to the Agents and the
Lenders in connection with the administration, settlement and management of this Agreement and the
other Credit Documents or to the extent Intermediate Holdings has consented in writing to such
disclosure.
13.17Direct Website Communications. Each of Holdings, Intermediate Holdings and the
Borrower may, at its option, provide to the Administrative Agent any information, documents and other
materials that it is obligated to furnish to the Administrative Agent pursuant to the Credit Documents,
including, without limitation, all notices, requests, financial statements, financial, and other reports,
certificates, and other information materials, but excluding any such communication that (A) relates to a
request for a new, or a conversion of an existing, borrowing or other extension of credit (including any
election of an interest rate or interest period relating thereto, (B) relates to the payment of any principal
or other amount due under this Agreement prior to the scheduled date therefor, (C) provides notice of any
default or event of default under this Agreement or (D) is required to be delivered to satisfy any
condition precedent to the effectiveness of this Agreement and/or any borrowing or other extension of
credit thereunder (all such non-excluded communications being referred to herein collectively as
“Communications”), by transmitting the Communications in an electronic/soft medium in a format
reasonably acceptable to the Administrative Agent to the Administrative Agent at an email address
provided by the Administrative Agent from time to time; provided that (i) upon written request by the
Administrative Agent, Holdings, Intermediate Holdings or the Borrower shall deliver paper copies of
such documents to the Administrative Agent for further distribution to each Lender until a written
request to cease delivering paper copies is given by the Administrative Agent and (ii) Holdings,
Intermediate Holdings or the Borrower shall notify (which may be by facsimile or electronic mail) the
Administrative Agent of the posting of any such documents and provide to the Administrative Agent by
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electronic mail electronic versions (i.e., soft copies) of such documents. Each Lender shall be solely
responsible for timely accessing posted documents or requesting delivery of paper copies of such
documents from the Administrative Agent and maintaining its copies of such documents. Nothing in this
Section 13.17 shall prejudice the right of Intermediate Holdings, the Borrower, the Administrative Agent,
any other Agent or any Lender to give any notice or other communication pursuant to any Credit
Document in any other manner specified in such Credit Document.
The Administrative Agent agrees that the receipt of the Communications by the Administrative
Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to
the Administrative Agent for purposes of the Credit Documents. Each Lender agrees that notice to it (as
provided in the next sentence) specifying that the Communications have been posted to the Platform shall
constitute effective delivery of the Communications to such Lender for purposes of the Credit
Documents. Each Lender agrees (A) to notify the Administrative Agent in writing (including by
electronic communication) from time to time of such Lender’s e-mail address to which the foregoing
notice may be sent by electronic transmission and (B) that the foregoing notice may be sent to such
e-mail address.
(a)Each of Holdings, Intermediate Holdings and the Borrower further agrees that any Agent
may make the Communications available to the Lenders by posting the Communications on Intralinks or
a substantially similar electronic transmission system (the “Platform”), so long as the access to such
Platform (i) is limited to the Agents, the Lenders and Transferees or prospective Transferees and
(ii) remains subject to the confidentiality requirements set forth in Section 13.16.
(b)THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY MATERIALS OR
INFORMATION PROVIDED BY THE CREDIT PARTIES (THE “BORROWER MATERIALS”) OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS
IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF
THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE
BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE
PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the
“Agent Parties” and each an “Agent Party”) have any liability to the Borrower, any Lender, or any
other Person for losses, claims, damages, liabilities, or expenses of any kind (whether in tort, contract or
otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower
Materials through the internet, except to the extent the liability of any Agent Party resulted from such
Agent Party’s (or any of its Related Parties’ (other than any trustee or advisor)) gross negligence, bad
faith or willful misconduct or material breach of the Credit Documents as determined in the final
non-appealable judgment of a court of competent jurisdiction.
(c)Each of Holdings, Intermediate Holdings and the Borrower and each Lender
acknowledge that certain of the Lenders may be “public-side” Lenders (Lenders that do not wish to
receive material non-public information with respect to Holdings, Intermediate Holdings and the
Borrower, the Subsidiaries or their securities) and, if documents or notices required to be delivered
pursuant to the Credit Documents or otherwise are being distributed through the Platform, any document
or notice that Holdings, Intermediate Holdings or the Borrower has indicated contains only publicly
available information with respect to Holdings, Intermediate Holdings or the Borrower may be posted on
that portion of the Platform designated for such public-side Lenders. If Holdings, Intermediate Holdings
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or the Borrower has not indicated whether a document or notice delivered contains only publicly
available information, the Administrative Agent shall post such document or notice solely on that portion
of the Platform designated for Lenders who wish to receive material nonpublic information with respect
to Holdings, Intermediate Holdings, the Borrower, the Subsidiaries and their securities.
13.18USA PATRIOT Act. Each Lender hereby notifies each Credit Party that, pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Patriot Act”) and the requirements of the Beneficial Ownership Regulation, it is required to obtain,
verify, and record information that identifies each Credit Party, which information includes the name,
address and tax identification number of each Credit Party and other information that will allow such
Lender to identify each Credit Party in accordance with the Patriot Act and the Beneficial Ownership
Regulation (and which information shall include, for the avoidance of doubt, a certification regarding
beneficial ownership as required by the Beneficial Ownership Regulation).
13.19Judgment Currency. In respect of any judgment or order given or made for any amount
due under this Agreement or any other Credit Document that is expressed and paid in a currency (the
“judgment currency”) other than Dollars, the Credit Parties will indemnify Administrative Agent, Letter
of Credit Issuer and any Lender against any loss incurred by them as a result of any variation as between
(i) the rate of exchange at which the Dollar amount is converted into the judgment currency for the
purpose of such judgment or order and (ii) the rate of exchange, as quoted by Administrative Agent or by
a known dealer in the judgment currency that is designated by Administrative Agent, at which
Administrative Agent, Letter of Credit Issuer or such Lender is able to purchase Dollars with the amount
of the judgment currency actually received by Administrative Agent, the Letter of Credit Issuer or such
Lender. If the amount of Dollars so purchased is greater than the sum originally due to the
Administrative Agent in Dollars, the Administrative Agent agrees to return the amount of any excess to
the Borrower (or any other person who may be entitled thereto under applicable law). The foregoing
indemnity shall constitute a separate and independent obligation of the Credit Parties and shall survive
any termination of this Agreement and the other Credit Documents and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall
include any premiums and costs of exchange payable in connection with the purchase of or conversion
into Dollars.
13.20Payments Set Aside. To the extent that any payment by or on behalf of Holdings,
Intermediate Holdings or the Borrower is made to any Agent or any Lender, or any Agent or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a
trustee, receiver, or any other party, in connection with any proceeding or otherwise, then (a) to the extent
of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such setoff had not occurred
and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share
of any amount so recovered from or repaid by any Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from
time to time in effect.
13.21No Fiduciary Duty. Each Agent, each Lender, each Letter of Credit Issuer and their
respective Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have
economic interests that conflict with those of the Credit Parties, their equity holders and/or their
affiliates. Each Credit Party agrees that nothing in the Credit Documents or otherwise will be deemed to
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create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any
Lender, on the one hand, and such Credit Party, its equity holders or its affiliates, on the other. The
Credit Parties acknowledge and agree that (i) the transactions contemplated by the Credit Documents
(including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial
transactions between the Lenders, on the one hand, and the Credit Parties, on the other, and (ii) in
connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or
fiduciary responsibility in favor of any Credit Party, its equity holders or its affiliates with respect to the
transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the
process leading thereto (irrespective of whether any Lender has advised, is currently advising or will
advise any Credit Party, its equity holders or its Affiliates on other matters) or any other obligation to any
Credit Party except the obligations expressly set forth in the Credit Documents and (y) each Lender is
acting solely as principal and not as the agent or fiduciary of any Credit Party, its management, equity
holders or creditors. Each Credit Party acknowledges and agrees that it has consulted its own legal and
financial advisors to the extent it deemed appropriate and that it is responsible for making its own
independent judgment with respect to such transactions and the process leading thereto. Each Credit
Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect
or owes a fiduciary or similar duty to such Credit Party, in connection with such transaction or the
process leading thereto.
13.22Nature of Obligations of the Borrower.
(a)Notwithstanding anything to the contrary contained elsewhere in this Agreement, it is
understood and agreed by the various parties to this Agreement that all of the Borrower’s Obligations to
repay principal of, interest on, and all other amounts with respect to, all Loans, L/C Obligations and all
other Obligations of the Borrower pursuant to this Agreement (including, without limitation, all fees,
indemnities, taxes and other Obligations in connection therewith or in connection with the related
Commitments) shall be guaranteed pursuant to, and in accordance with the terms of, the Guarantee.
(b)The obligations of the Borrower with respect to the Borrower’s Obligations are
independent of the obligations of any Guarantor under its guaranty of the Borrower’s Obligations, and a
separate action or actions may be brought and prosecuted against each Borrower, whether or not any such
Guarantor is joined in any such action or actions. The Borrower waives, to the fullest extent permitted
by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement
thereof.
(c)The Borrower authorizes the Administrative Agent and the Lenders without notice or
demand (except as shall be required by the Credit Documents and applicable statute that cannot be
waived), and without affecting or impairing its liability hereunder, from time to time to:
(i)exercise or refrain from exercising any rights against any Guarantor or others or
otherwise act or refrain from acting;
(ii)apply any sums paid by any other Person, howsoever realized or otherwise
received to or for the account of the Borrower to any liability or liabilities of such other Person
regardless of what liability or liabilities of such other Person remain unpaid; and/or
(iii)consent to or waive any breach of, or act, omission or default under, this
Agreement, the other Credit Documents or any of the instruments or agreements referred to herein, or
otherwise, by any such or other Person.
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(d)It is not necessary for the Administrative Agent or any Lender to inquire into the
capacity or powers of the Borrower or any of its Subsidiaries or the officers, directors, members, partners
or agents acting or purporting to act on its behalf.
(e)The Borrower waives any right to require the Administrative Agent or the other Lenders
to (i) proceed against any Guarantor or any other party, (ii) proceed against or exhaust any security held
from any Guarantor or any other party or (iii) pursue any other remedy in the Administrative Agent’s or
the Lenders’ power whatsoever. The Borrower waives any defense based on or arising out of suretyship
or any impairment of security held from the Borrower, any Guarantor or any other party or on or arising
out of any defense of any Guarantor or any other party other than payment in full in cash of the
Obligations of the Credit Parties, including, without limitation, any defense based on or arising out of the
disability of any Guarantor or any other party, or the unenforceability of the Obligations of the Borrower
or any part thereof from any cause, in each case other than as a result of the payment in full in cash of the
Obligations of the Borrower.
(f)All provisions contained in any Credit Document shall be interpreted consistently with
this Section 13.22 to the extent possible.
13.23Cashless Settlement. Notwithstanding anything to the contrary contained in this
Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection
with any refinancing, extension, loan modification or similar transaction permitted by the terms of this
Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative
Agent and such Lender.
13.24Acknowledgment and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding anything to the contrary in any Credit Document or in any other agreement,
arrangement or understanding among any parties to any Credit Document, each party hereto
acknowledges that any liability of any Affected Financial Institution arising under any Credit Document
may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and
agrees and consents to, and acknowledges and agrees to be bound by:
(a)the application of any Write-Down and Conversion Powers by the applicable Resolution
Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an
Affected Financial Institution; and
(b)the effects of any Bail-In Action on any such liability, including, if applicable:
(i)a reduction in full or in part or cancellation of any such liability,
(ii)a conversion of all, or a portion of, such liability into shares or other instruments
of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be
issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be
accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other
Credit Document; or
(iii)the variation of the terms of such liability in connection with the exercise of the
Write-Down and Conversion Powers of the applicable Resolution Authority.
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13.25Acknowledgement Regarding Any Supported QFCs
To the extent that the Credit Documents provide support, through a guarantee or otherwise, for
Swap Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit
Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with
respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit
Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together
with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such
Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the
Credit Documents and any Supported QFC may in fact be stated to be governed by the laws of the State
of New York and/or of the United States or any other state of the United States):
In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”)
becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported
QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such
Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC
or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer
would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit
Support (and any such interest, obligation and rights in property) were governed by the laws of the
United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a
Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights
under the Credit Documents that might otherwise apply to such Supported QFC or any QFC Credit
Support that may be exercised against such Covered Party are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the
Supported QFC and the Credit Documents were governed by the laws of the United States or a state of
the United States. Without limitation of the foregoing, it is understood and agreed that rights and
remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any
Covered Party with respect to a Supported QFC or any QFC Credit Support.
[SIGNATURE PAGES INTENTIONALLY OMITTED]
1 Note to Draft: Bracketed language to be included for officers and non-Olympus affiliated directors.
2 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
Exhibit 10.12
FORM OF
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into
as of [ ], 202[ ], between Accelevation Holdings Corp., a Delaware corporation (the
“Company”), and [ ] (the “Indemnitee”). Capitalized terms used but not otherwise defined
herein shall have the meaning set forth in Section 14 hereof.
WHEREAS, highly competent persons have become more reluctant to serve corporations
as directors or officers or in other capacities unless they are provided with adequate protection
through insurance or adequate indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on behalf of the corporation;
WHEREAS, the Amended and Restated Bylaws of the Company (as amended, restated,
modified and/or supplemented from to time, the “Bylaws”) require indemnification of the
directors and officers of the Company;
WHEREAS, the certificate of incorporation of the Company (as amended, restated,
modified and/or supplemented from to time, the “Charter”), the Bylaws and the General
Corporation Law of the State of Delaware (the “DGCL”) expressly contemplate that contracts
may be entered into between the Company and members of the Board of Directors of the
Company (the “Board”), officers of the Company and other persons with respect to
indemnification and advancement of Expenses;
WHEREAS, the uncertainties relating to insurance and indemnification have increased
the difficulty of attracting and retaining directors and officers;
WHEREAS, the Board has determined that the increased difficulty in attracting and
retaining directors and officers is detrimental to the best interests of the Company and its
stockholders and that the Company should act to assure such persons that there will be increased
certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company to indemnify, and
to advance Expenses on behalf of, the Company’s directors and officers to the Fullest Extent
Permitted By Applicable Law; [and]1
[WHEREAS, the Indemnitee may have certain rights to indemnification, advancement of
Expenses and/or insurance provided by Olympus Partners, LP, which the Indemnitee, the
Company and Olympus Partners, LP intend to be secondary to the primary obligation of the
Company to indemnify the Indemnitee as provided herein, with the Company’s acknowledgment
of and agreement to the foregoing being a material condition to the Indemnitee’s willingness to
serve as a director and/or officer of the Company; and]2
2
WHEREAS, the Indemnitee may not be willing to serve or continue to serve as an officer
or director without adequate protection, and the Company desires the Indemnitee to serve or
continue to serve in such capacity.
NOW, THEREFORE, each party hereto, intending to be legally bound hereby, agrees as
follows:
1.Indemnity of the Indemnitee. On the terms and subject to the conditions set forth in this
Agreement, the Company hereby agrees to hold harmless and indemnify the Indemnitee
to the Fullest Extent Permitted By Applicable Law. In furtherance of the foregoing
indemnification, and without limiting the generality thereof:
(a)Proceedings Other Than Proceedings by or in the Right of the Company. The
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 1(a) if the Indemnitee has been or is, or is threatened to be made, a party
to or participant in, or otherwise becomes involved in, any Proceeding other than
a Proceeding by or in the right of the Company. Pursuant to this Section 1(a), the
Indemnitee shall be indemnified to the Fullest Extent Permitted By Applicable
Law against all Losses and Expenses actually and reasonably incurred by the
Indemnitee or on the Indemnitee’s behalf in connection with such Proceeding or
any claim, issue or matter therein, if the Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and with respect to any criminal Proceeding, had no
reasonable cause to believe the Indemnitee’s conduct was unlawful.
(b)Proceedings by or in the Right of the Company. The Indemnitee shall be entitled
to the rights of indemnification provided in this Section 1(b) if the Indemnitee has
been or is, or is threatened to be made, a party to or participant in, or otherwise
becomes involved in, any Proceeding brought by or in the right of the Company.
Pursuant to this Section 1(b), the Indemnitee shall be indemnified to the Fullest
Extent Permitted By Applicable Law against all Expenses actually and reasonably
incurred by the Indemnitee, or on the Indemnitee’s behalf, in connection with
such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in
good faith and in a manner the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company; provided, however, if applicable
law so provides, no indemnification against such Expenses shall be made in
respect of any claim, issue or matter in such Proceeding as to which the
Indemnitee shall have been adjudged to be liable to the Company unless and only
to the extent that the Chancery Court of the State of Delaware (the “Delaware
Court”) or the court in which such Proceeding was brought shall determine that
the Indemnitee is fairly and reasonably entitled to such indemnification.
(c)Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement (other than Section 9), to
the extent that the Indemnitee is successful, on the merits or otherwise, in defense
of any Proceeding, the Indemnitee shall be indemnified to the Fullest Extent
3
Permitted By Applicable Law against all Expenses actually and reasonably
incurred by the Indemnitee, or on the Indemnitee’s behalf, in connection
therewith. If the Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Company shall indemnify the
Indemnitee against all Expenses actually and reasonably incurred by the
Indemnitee, or on the Indemnitee’s behalf, in connection with each successfully
resolved claim, issue or matter. For purposes of this Section 1(c) and without
limitation, the termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, on substantive or procedural grounds, shall
be deemed to be a successful result as to such claim, issue or matter.
2.Additional Indemnity. Notwithstanding any limitations in Section 1 of this Agreement,
the Company shall indemnify the Indemnitee to the Fullest Extent Permitted By
Applicable Law if the Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding (including a Proceeding by or in the right of the Company
to procure a judgment in its favor) for all Losses and Expenses actually and reasonably
incurred by the Indemnitee or on the Indemnitee’s behalf.
3.Contribution.
(a)Whether or not the indemnification provided in Sections 1 and 2 hereof is
available, in respect of any threatened, pending or completed Proceeding in which
the Company is jointly liable with the Indemnitee (or would be if joined in such
Proceeding), to the Fullest Extent Permitted By Applicable Law, the Company
shall pay, in the first instance, the entire amount of any judgment or settlement of
such Proceeding without requiring the Indemnitee to contribute to such payment
and the Company hereby waives and relinquishes any right of contribution it may
have against the Indemnitee. The Company shall not enter into any settlement of
any Proceeding in which the Company is jointly liable with the Indemnitee (or
would be if joined in such Proceeding) unless such settlement (i) provides for a
full and final release of all claims asserted against the Indemnitee and (ii) does not
impose any Loss, Expense or limitation on the Indemnitee.
(b)Without diminishing or impairing the obligations of the Company set forth in the
preceding subsection, if, for any reason, the Indemnitee shall elect or be required
to pay all or any portion of any judgment or settlement in any threatened, pending
or completed Proceeding in which the Company is jointly liable with the
Indemnitee (or would be if joined in such Proceeding), to the Fullest Extent
Permitted By Applicable Law, the Company shall contribute to the amount of
Losses and Expenses actually and reasonably incurred and paid or payable by the
Indemnitee in proportion to the relative benefits received by the Company and all
officers, directors or employees of the Company, other than the Indemnitee, who
are jointly liable with the Indemnitee (or would be if joined in such Proceeding),
on the one hand, and the Indemnitee, on the other hand, from the transaction or
4
events from which such Proceeding arose; provided, however, that the proportion
determined on the basis of relative benefit may, to the extent necessary to
conform to law, be further adjusted by reference to the relative fault of the
Company and all officers, directors or employees of the Company, other than the
Indemnitee, who are jointly liable with the Indemnitee (or would be if joined in
such Proceeding), on the one hand, and the Indemnitee, on the other hand, in
connection with the transaction or events that resulted in such Losses or Expenses,
as well as any other equitable considerations which applicable law may require to
be considered. The relative fault of the Company and all officers, directors or
employees of the Company, other than the Indemnitee, who are jointly liable with
the Indemnitee (or would be if joined in such Proceeding), on the one hand, and
the Indemnitee, on the other hand, shall be determined by reference to, among
other things, the degree to which their actions were motivated by intent to gain
personal profit or advantage, the degree to which their liability is primary or
secondary and the degree to which their conduct is active or passive.
(c)To the Fullest Extent Permitted By Applicable Law, the Company hereby agrees
to fully indemnify and hold the Indemnitee harmless from any claims of
contribution that may be brought by officers, directors or employees of the
Company, other than the Indemnitee, who may be jointly liable with the
Indemnitee.
(d)To the Fullest Extent Permitted By Applicable Law, if the indemnification
provided for in this Agreement is unavailable to the Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying the Indemnitee, shall
contribute to the amount incurred by the Indemnitee, whether for Losses and/or
for Expenses, in connection with any claim relating to an indemnifiable event
under this Agreement, in such proportion as is deemed fair and reasonable in light
of all of the circumstances of such Proceeding in order to reflect (i) the relative
benefits received by the Company and the Indemnitee as a result of the event(s)
and/or transaction(s) giving cause to such Proceeding, and/or (ii) the relative fault
of the Company (and its directors, officers, employees and agents) and the
Indemnitee in connection with such event(s) and/or transaction(s).
4.Indemnification for Expenses of a Witness. Notwithstanding any other provision of this
Agreement (other than Section 9), to the Fullest Extent Permitted By Applicable Law and
to the extent that the Indemnitee is a witness, or is made (or asked) to respond to
discovery requests, in any Proceeding to which the Indemnitee is not a party, the
Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by
the Indemnitee, or on the Indemnitee’s behalf, in connection therewith.
5.Advancement of Expenses. Notwithstanding any other provision of this Agreement, the
Company shall advance, to the Fullest Extent Permitted By Applicable Law, all Expenses
incurred by or on behalf of the Indemnitee in connection with any Proceeding within 30
days after the receipt by the Company of a statement or statements from the Indemnitee
5
requesting such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably evidence
the Expenses incurred by the Indemnitee. The Indemnitee’s execution and delivery to the
Company of this Agreement shall constitute an undertaking providing that the Indemnitee
undertakes to repay the amounts advanced by the Company pursuant to this Agreement,
if and only to the extent that it is ultimately determined that the Indemnitee is not entitled
to be indemnified by the Company. No other form of undertaking shall be required other
than the execution of this Agreement. Any advances and undertakings to repay pursuant
to this Agreement shall be unsecured and interest free.
6.Procedures and Presumptions for Determination of Entitlement to Indemnification. It is
the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as
favorable as may be permitted under the DGCL and the public policy of the State of
Delaware. Accordingly, the parties agree that the following procedures and presumptions
shall apply in the event of any question as to whether the Indemnitee is entitled to
indemnification under this Agreement:
(a)To obtain indemnification under this Agreement, the Indemnitee shall submit to
the Company a written request, including therein or therewith such documentation
and information as is reasonably available to the Indemnitee and is reasonably
necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Board in writing that the Indemnitee
has requested indemnification. Notwithstanding the foregoing, any failure of the
Indemnitee to provide such a request to the Company, or to provide such a request
in a timely fashion, shall not relieve the Company of any liability that it may have
to the Indemnitee unless, and to the extent that, such failure actually and
materially prejudices the interests of the Company.
(b)Upon written request by the Indemnitee for indemnification pursuant to the first
sentence of Section 6(a) hereof, a determination with respect to the Indemnitee’s
entitlement thereto shall be made in the specific case by one of the following four
methods, which shall be at the election of the Board: (i) by a majority vote of the
Disinterested Directors, even though less than a quorum, (ii) by a committee of
Disinterested Directors designated by a majority vote of the Disinterested
Directors, even though less than a quorum, (iii) if there are no Disinterested
Directors or if the Disinterested Directors so direct, by Independent Counsel in a
written opinion to the Board, a copy of which shall be delivered to the
Indemnitee, or (iv) if so directed by the Board, by the stockholders of the
Company; provided, however, that if a Change in Control has occurred, the
determination with respect to the Indemnitee’s entitlement to indemnification
shall be made by Independent Counsel.
(c)If the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 6(b) hereof, the Independent Counsel
6
shall be selected as provided in this Section 6(c). If a Change in Control has not
occurred, the Independent Counsel shall be selected by the Board, and the
Company shall give written notice to the Indemnitee advising the Indemnitee of
the identity of the Independent Counsel so selected. The Indemnitee may, within
10 days after such written notice of selection shall have been given, deliver to the
Company a written objection to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of “Independent Counsel” as defined in
Section 14 of this Agreement, and the objection shall set forth with particularity
the factual basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If a written objection is made
and substantiated, the Independent Counsel selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court has determined
that such objection is without merit. If a Change in Control has occurred, the
Independent Counsel shall be selected by the Indemnitee (unless the Indemnitee
requests that such selection be made by the Board, in which event the preceding
sentence shall apply) and approved by the Board (which approval shall not be
unreasonably withheld). If (i) an Independent Counsel is to make the
determination of entitlement pursuant to this Section 6, and (ii) within 20 days
after submission by the Indemnitee of a written request for indemnification
pursuant to Section 6(a) hereof, no Independent Counsel shall have been selected
(and not objected to), either the Company or the Indemnitee may petition the
Delaware Court or other court of competent jurisdiction for resolution of any
objection which shall have been made by the Indemnitee to the Company’s
selection of Independent Counsel and/or for the appointment as Independent
Counsel of a person selected by the court or by such other person as the court
shall designate, and the person with respect to whom all objections are so resolved
or the person so appointed shall act as Independent Counsel under Section 6(b)
hereof. The Company shall pay any and all reasonable fees and expenses of
Independent Counsel incurred by such Independent Counsel in connection with
acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable
fees and expenses incident to the procedures of this Section 6(c), regardless of the
manner in which such Independent Counsel was selected or appointed.
(d)In making a determination with respect to entitlement to indemnification
hereunder, the person, persons or entity making such determination shall, to the
Fullest Extent Permitted By Applicable Law, presume that the Indemnitee is
entitled to indemnification under this Agreement, and the burden of proof and the
burden of persuasion by clear and convincing evidence to overcome this
presumption shall be on the Company. Neither the failure of the Company
(including by its directors or Independent Counsel) to have made a determination
prior to the commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Company
(including by its directors or Independent Counsel) that the Indemnitee has not
7
met such applicable standard of conduct, shall be a defense to the action or create
a presumption that the Indemnitee has not met the applicable standard of conduct.
(e)The Indemnitee shall be deemed to have acted in good faith if the Indemnitee’s
action is based on the records or books of account of the Enterprise, including
financial statements, on information supplied to the Indemnitee by the officers of
the Enterprise in the course of their duties, on the advice of legal counsel for the
Enterprise, or on information or records given or reports made to the Enterprise
by an independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Enterprise. In addition, the knowledge and/or
actions, or failure to act, of any other director, officer, agent or employee of the
Enterprise shall not be imputed to the Indemnitee for purposes of determining the
right to indemnification under this Agreement. Whether or not the foregoing
provisions of this Section 6(e) are satisfied, it shall in any event be presumed that
the Indemnitee has at all times acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company
and the burden of proof and the burden of persuasion by clear and convincing
evidence to overcome this presumption shall be on the Company.
(f)If the person, persons or entity empowered or selected under Section 6 to
determine whether the Indemnitee is entitled to indemnification shall not have
made a determination within 60 days after receipt by the Company of the request
therefor, the requisite determination of entitlement to indemnification shall, to the
Fullest Extent Permitted By Applicable Law, be deemed to have been made and
the Indemnitee shall be entitled to such indemnification absent (i) a misstatement
by the Indemnitee of a material fact, or an omission of a material fact necessary to
make the Indemnitee’s statement not materially misleading, in connection with
the request for indemnification, (ii) a prohibition of such indemnification under
applicable law or (iii) if the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 6(b) of this Agreement;
provided, however, that such 60-day period may be extended for a reasonable
time, not to exceed an additional 30 days, if the person, persons or entity making
such determination with respect to entitlement to indemnification in good faith
requires such additional time to obtain or evaluate documentation and/or
information relating thereto; and provided, further, that the foregoing provisions
of this Section 6(f) shall not apply if the determination of entitlement to
indemnification is to be made by the stockholders pursuant to Section 6(b) of this
Agreement and if (A) within 15 days after receipt by the Company of the request
for such determination, the Board or the Disinterested Directors, if appropriate,
resolve to submit such determination to the stockholders for their consideration at
an annual meeting thereof to be held within 75 days after such receipt and such
determination is made thereat, or (B) a special meeting of stockholders is called
within 15 days after such receipt for the purpose of making such determination,
such meeting is held for such purpose within 60 days after having been so called
and such determination is made thereat.
8
(g)The Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to the Indemnitee’s entitlement to indemnification,
including providing to such person, persons or entity upon reasonable advance
request any documentation or information that is not privileged or otherwise
protected from disclosure and that is reasonably available to the Indemnitee and
reasonably necessary to such determination. Any Independent Counsel, member
of the Board or stockholder of the Company shall act reasonably and in good faith
in making a determination regarding the Indemnitee’s entitlement to
indemnification under this Agreement. Any costs or Expenses (including
attorneys’ fees and disbursements) incurred by the Indemnitee in so cooperating
with the person, persons or entity making such determination shall be borne by
the Company (irrespective of the determination as to the Indemnitee’s entitlement
to indemnification) and the Company hereby indemnifies and agrees to hold the
Indemnitee harmless therefrom.
(h)The Company acknowledges that a settlement or other disposition of any action,
claim or Proceeding to which the Indemnitee is a party or potential party short of
final judgment may be successful on the merits or otherwise if it permits the
Indemnitee to avoid the expense, delay, distraction, disruption and uncertainty of
litigation. In the event that any action, claim or Proceeding to which the
Indemnitee is a party is resolved in any manner other than by adverse judgment
against the Indemnitee (including, without limitation, settlement of such action,
claim or Proceeding with or without payment of money or other consideration), it
shall to the Fullest Extent Permitted By Applicable Law be presumed that the
Indemnitee has been successful on the merits or otherwise in such Proceeding,
and the burden of proof and the burden of persuasion by clear and convincing
evidence to overcome this presumption shall be on the Company.
(i)The termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement)
of itself adversely affect the right of the Indemnitee to indemnification or create a
presumption that the Indemnitee did not act in good faith and in a manner which
the Indemnitee reasonably believed to be in, or not opposed to, the best interests
of the Company or, with respect to any criminal Proceeding, that the Indemnitee
had reasonable cause to believe that the Indemnitee’s conduct was unlawful.
7.Remedies of the Indemnitee.
(a)In the event that (i) a determination is made pursuant to Section 6 of this
Agreement that the Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 5 of this Agreement, (iii) no determination of entitlement to
indemnification is made pursuant to Section 6(b) of this Agreement within 90
days after receipt by the Company of the request for indemnification, (iv) if no
9
determination is required to be made by the Company pursuant to Section 1(c) of
this Agreement, payment of indemnification is not made pursuant to Section 1(c)
of this Agreement within 30 days after receipt by the Company of a written
request therefor or (v) payment of indemnification is not made within 30 days
after a determination has been made that the Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to
Section 6 of this Agreement, the Indemnitee shall be entitled to an adjudication in
an appropriate court, pursuant to Section 22 of this Agreement, of the
Indemnitee’s entitlement to such indemnification, contribution or advancement of
Expenses.
(b)In the event that a determination shall have been made pursuant to Section 6(b) of
this Agreement that the Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 7 shall be
conducted in all respects as a de novo trial, or arbitration, on the merits, and the
Indemnitee shall not be prejudiced by reason of the adverse determination under
Section 6(b). In any judicial proceeding or arbitration commenced pursuant to this
Section 7, the Indemnitee shall be presumed to be entitled to indemnification
under this Agreement and the Company shall have the burden of proving the
Indemnitee is not entitled to indemnification or advancement of Expenses, as the
case may be. If the Indemnitee commences a judicial proceeding or arbitration
pursuant to this Section 7, the Indemnitee shall not be required to reimburse the
Company for any advances pursuant to Section 5 until a final determination is
made with respect to the Indemnitee’s entitlement to indemnification (as to which
all rights of appeal have been exhausted or lapsed).
(c)If a determination shall have been made pursuant to Section 6(b) of this
Agreement that the Indemnitee is entitled to indemnification, the Company shall
be bound by such determination in any judicial proceeding or arbitration
commenced pursuant to this Section 7, absent (i) a misstatement by the
Indemnitee of a material fact, or an omission of a material fact, necessary to make
the Indemnitee’s misstatement not materially misleading in connection with the
application for indemnification, or (ii) a prohibition of such indemnification under
applicable law.
(d)In the event that the Indemnitee, pursuant to this Section 7, incurs costs in a
judicial or arbitration proceeding or otherwise seeking to enforce the Indemnitee’s
rights under, or to recover damages for breach of, this Agreement, or to recover
under any directors’ and officers’ liability insurance policies maintained by the
Company, the Company shall, to the Fullest Extent Permitted By Applicable Law,
indemnify the Indemnitee against any and all Expenses and, if requested by the
Indemnitee, shall (within 10 days after receipt by the Company of a written
request therefor) advance, to the Fullest Extent Permitted By Applicable Law,
such Expenses to the Indemnitee that are incurred by or on behalf of the
Indemnitee in connection with any action brought by the Indemnitee for
10
indemnification or advancement of Expenses from the Company under this
Agreement or under any directors’ and officers’ liability insurance policies
maintained by the Company.
In the case of any action brought by the Indemnitee for indemnification, if the
Indemnitee (i) is wholly successful, on the merits or otherwise, on the underlying
claims, the Company shall indemnify the Indemnitee to the Fullest Extent
Permitted By Applicable Law, against all Expenses actually and reasonably
incurred by the Indemnitee, or on the Indemnitee’s behalf, in connection
therewith, or (ii) is not wholly successful on the underlying claims but is
successful, on the merits or otherwise, as to one or more but less than all claims,
the Company shall indemnify the Indemnitee against all Expenses actually and
reasonably incurred by the Indemnitee, or on the Indemnitee’s behalf, in
connection with each successfully resolved claim.
(e)The Company agrees that it shall not assert in any judicial or arbitral proceeding
commenced pursuant to this Section 7 that the procedures and presumptions of
this Agreement are not valid, binding and enforceable and shall stipulate in any
such court or before any such arbitrator that the Company is bound by all the
provisions of this Agreement.
(f)Notwithstanding anything in this Agreement to the contrary, no determination as
to entitlement to indemnification under this Agreement shall be required to be
made prior to the final disposition of the Proceeding.
8.Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a)The rights of indemnification and to receive advancement of Expenses as
provided by this Agreement shall not be deemed exclusive of any other rights to
which the Indemnitee may at any time be entitled under applicable law, the
Charter, any agreement, a vote of stockholders, a resolution of directors of the
Company, or otherwise; provided, however, that this Agreement shall supersede
and replace any rights and obligations of the Company and the Indemnitee with
respect to indemnification and the advancement of Expenses that are granted
pursuant to the Bylaws, and, for so long as this Agreement is in effect, the
Indemnitee waives any right to indemnification or advancement of Expenses from
the Company under the Bylaws that is not permitted or provided by this
Agreement. No amendment, alteration or repeal of this Agreement or of any
provision hereof shall eliminate, reduce or otherwise adversely affect any right or
protection of the Indemnitee under this Agreement with respect to any Proceeding
involving any action or omission that occurred or allegedly occurred prior to such
amendment, alteration or repeal. To the extent that a change in the DGCL,
whether by statute or judicial decision, permits greater indemnification than
would be afforded currently under the Charter, the Bylaws and this Agreement, it
is the intent of the parties hereto that the Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change, and the scope of
11
indemnification provided by this Agreement shall be automatically extended to
include such greater indemnification rights. No right or remedy herein conferred
is intended to be exclusive of any other right or remedy, and every other right and
remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other right or remedy.
(b)The Company shall make commercially reasonable efforts to obtain and maintain
in effect during the entire period for which the Company is obligated to indemnify
the Indemnitee under this Agreement, one or more policies of insurance with
reputable insurance companies to provide the directors and officers of the
Company with commercially reasonable coverage for losses from wrongful acts
and omissions and to ensure the Company’s performance of its indemnification
obligations under this Agreement. The Indemnitee shall be covered by such policy
or policies in accordance with its or their terms to the maximum extent of the
coverage available for any director or officer under such policy or policies. In all
such insurance policies, the Indemnitee shall be named as an insured in such a
manner as to provide the Indemnitee with the same rights and benefits as are
accorded to the most favorably insured of the Company’s directors and officers.
At the time of the receipt of a notice of a claim pursuant to the terms hereof, the
Company shall give prompt notice of the commencement of such proceeding to
the insurers in accordance with the procedures set forth in the respective policies.
The Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of
such proceeding in accordance with the terms of such policies.
(c)[The Company hereby acknowledges that the Indemnitee has certain rights to
indemnification, advancement of Expenses and/or insurance provided by
Olympus Partners. With respect to any amounts that are subject to indemnity
under this Agreement and also subject to an indemnity obligation owed by
Olympus Partners, the Company hereby agrees (i) that, as compared to Olympus
Partners, the Company is the indemnitor of first resort with respect to any rights to
indemnification provided to the Indemnitee herein (i.e., its obligations to the
Indemnitee are primary and any obligation of Olympus Partners to advance
Expenses or to provide indemnification for the same Expenses or liabilities
incurred by the Indemnitee is secondary), (ii) that the Company shall be required
to advance the full amount of Expenses incurred by the Indemnitee and shall be
liable for the full amount of all Losses and Expenses to the extent legally
permitted and as required by the terms of this Agreement and the Charter or
Bylaws of the Company (or any other agreement between the Company and the
Indemnitee), without regard to any rights the Indemnitee may have against
Olympus Partners, and (iii) that the Company irrevocably waives, relinquishes
and releases Olympus Partners from any and all claims against Olympus Partners
for contribution, subrogation or any other recovery of any kind in respect thereof.
3 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
4 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
5 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
6 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
7 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
12
The Company further agrees that no advancement or payment by Olympus
Partners on behalf of the Indemnitee with respect to any claim for which the
Indemnitee has sought indemnification from the Company shall affect the
foregoing and Olympus Partners shall have a right of contribution and/or be
subrogated to the extent of such advancement or payment to all of the rights of
recovery of the Indemnitee against the Company. The Company and the
Indemnitee agree that Olympus Partners is an express third-party beneficiary of
the terms of this Section 8(c).]3
(d)[Except as provided in Section 8(c) above, in]4 In the event of any payment under
this Agreement, the Company shall be subrogated to the extent of such payment
to all of the rights of recovery of the Indemnitee [other than against Olympus
Partners)]5, who shall execute all papers required and take all action necessary to
secure such rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights.
(e)[Except as provided in Section 8(c) above, the]6 The Company shall not be liable
under this Agreement to make any payment of amounts otherwise indemnifiable
(or for which advancement of Expenses is provided) hereunder if and to the extent
that the Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.
9.Exception to Right of Indemnification. Notwithstanding any provision in this Agreement,
the Charter or the Bylaws, the Company shall not be obligated under this Agreement, the
Charter or the Bylaws to make any indemnity or advancement of Expenses in connection
with any claim made against the Indemnitee:
(a)for which payment has actually been made to or on behalf of the Indemnitee
under any insurance policy or other indemnity provision, except with respect to
any excess beyond the amount paid under any insurance policy or other indemnity
provision; [provided, that the foregoing shall not affect the rights of the
Indemnitee or Olympus Partners set forth in Section 8(c) above;]7 or
(b)for an accounting of profits made from the purchase and sale (or sale and
purchase) by the Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Exchange Act, or similar provisions of state statutory law or
common law; or
(c)for reimbursement to the Company of any bonus or other incentive-based or
equity-based compensation or of any profits realized by the Indemnitee from the
sale of securities of the Company, in each case as required under the Exchange
13
Act (including any such reimbursements that arise from an accounting restatement
of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002, as
amended (the “Sarbanes-Oxley Act”), or Section 954 of the Dodd-Frank Wall
Street Reform and Consumer Protection Act in connection with an accounting
restatement of the Company or the payment to the Company of profits arising
from the purchase and sale by the Indemnitee of securities in violation of
Section 306 of the Sarbanes-Oxley Act); or
(d)in connection with any Proceeding (or any part of any Proceeding) initiated by the
Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by
the Indemnitee against the Company or its directors, officers, employees or other
indemnitees, unless (i) the Board authorized the Proceeding (or any such part of
any Proceeding) prior to its initiation, (ii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers vested in the
Company under applicable law, or (iii) the Proceeding is one to enforce the
Indemnitee’s rights under this Agreement; or
(e)for reimbursement to the Company (such Proceeding, a “Clawback Proceeding”)
by the Indemnitee of any compensation pursuant to any compensation recoupment
or clawback policy adopted by the Board or the compensation committee of the
Board, including but not limited to any such policy adopted to comply with stock
exchange listing requirements implementing Section 10D of the Exchange Act (a
“Clawback Policy”).
(f)In furtherance of paragraph (e) of this Section 9, the Indemnitee hereby agrees to
abide by the terms of any Clawback Policy, including, without limitation, by
returning any compensation to the Company to the extent required by, and in a
manner permitted by, the Clawback Policy, and hereby understands and agrees
that Indemnitee shall not be entitled to any (x) indemnification for any liability
(including any amounts owed by the Indemnitee in a judgment or settlement of
any Clawback Proceeding) or Losses incurred by the Indemnitee in connection
with any Clawback Proceeding or (y) indemnification or advancement of
Expenses from the Company or any subsidiary of the Company incurred by the
Indemnitee in connection with any Clawback Proceeding; provided, however, that
if the Indemnitee is successful on the merits in the defense of any claim asserted
against the Indemnitee in a Clawback Proceeding, the Indemnitee shall be
indemnified for the Expenses that the Indemnitee reasonably incurred to defend
such claim. The Indemnitee hereby knowingly, voluntarily and intentionally
waives, and agrees not to assert any claim regarding, all indemnification,
advancement of Expenses and other rights to which the Indemnitee is now or
becomes entitled to under this Agreement, the Charter, the Bylaws, the governing
documents of each subsidiary of the Company and the DGCL, in each case to the
extent such waiver and agreement is necessary to give effect to the preceding
sentence of this paragraph. The Indemnitee agrees and acknowledges that the
compensation the Indemnitee has or will receive from the Company or any of its
8 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
14
subsidiaries constitutes fair and adequate consideration in exchange for the waiver
and agreement provided by the Indemnitee in this paragraph.
10.Duration of Agreement. All agreements and obligations of the Company contained herein
shall continue after the Indemnitee has ceased to be a director, officer, partner, trustee,
member, manager, employee, agent or fiduciary of the Company or of any other
Enterprise. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all, substantially all
or a substantial part of the business and/or assets of the Company), assigns, spouses,
heirs, executors, administrators and personal and legal representatives.
11.Security. To the extent requested by the Indemnitee and approved by the Board, the
Company may at any time and from time to time provide security to the Indemnitee for
the Company’s obligations hereunder through an irrevocable bank line of credit, funded
trust or other collateral. Any such security, once provided to the Indemnitee, may not be
revoked or released without the prior written consent of the Indemnitee.
12.[Indemnification of Olympus Partners. If (i) the Indemnitee is or was affiliated with
Olympus Partners, (ii) Olympus Partners is, or is threatened to be made, a party to or a
participant in any Proceeding, and (iii) Olympus Partners’ involvement in the Proceeding
results from any claim based on the Indemnitee’s service to the Company as a director or
other fiduciary of the Company, Olympus Partners will be entitled to indemnification and
advancement of Expenses hereunder to the same extent, and upon the same terms and
conditions, as the Indemnitee. The Company and the Indemnitee agree that Olympus
Partners is an express third-party beneficiary of the terms of this Section 12.] 8
13.Enforcement.
(a)The Company expressly confirms and agrees that it has entered into this
Agreement and assumes the obligations imposed on it hereby in order to induce
the Indemnitee to serve and to continue to serve as a director or officer of the
Company, and the Company acknowledges that the Indemnitee is relying upon
this Agreement in serving and continuing to serve as a director or officer of the
Company.
(b)This Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with respect
to the subject matter hereof.
(c)The Company shall not seek from a court, or agree to, a “bar order” that would
have the effect of prohibiting or limiting the Indemnitee’s rights to receive
advancement of Expenses under this Agreement.
15
(d)The Company shall require and cause any successor (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all,
substantially all or a substantial part of the business and/or assets of the Company)
to expressly assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if no such
succession had taken place.
(e)The Company and the Indemnitee agree herein that a monetary remedy for breach
of this Agreement, at some later date, may be inadequate, impracticable and
difficult to prove, and further agree that such breach may cause the Indemnitee
irreparable harm. Accordingly, the parties hereto agree that the Indemnitee may
enforce this Agreement by seeking injunctive relief and/or specific performance
hereof, without any necessity of showing actual damage or irreparable harm and
that by seeking injunctive relief and/or specific performance, the Indemnitee shall
not be precluded from seeking or obtaining any other relief to which the
Indemnitee may be entitled. The Company and the Indemnitee further agree that
the Indemnitee shall be entitled to such specific performance and injunctive relief,
including temporary restraining orders, preliminary injunctions and permanent
injunctions, without the necessity of posting bonds or other undertaking in
connection therewith. The Company acknowledges that in the absence of a
waiver, a bond or undertaking may be required of the Indemnitee by the court,
and the Company hereby waives any such requirement of such a bond or
undertaking.
14.Definitions. For purposes of this Agreement:
(a)“Beneficial Owner” shall have the meaning given to such term in Rule 13d-3
under the Exchange Act.
(b)“Change in Control” shall be deemed to occur upon the earliest to occur after the
date of this Agreement of any of the following events:
(i)a change in ownership or control of the Company effected through a
transaction or series of transactions (other than an offering of shares to the
general public through a registration statement filed with the U.S.
Securities and Exchange Commission or similar non-U.S. regulatory
agency) whereby any “person,” as such term is used in Sections 13(d)
and 14(d) of the Exchange Act (other than the Company, any trustee or
other fiduciary holding securities under any employee benefit plan of the
Company, or any company owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of the Company), becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company’s then-outstanding securities,
excluding for purposes herein, acquisitions pursuant to a Business
16
Combination that does not constitute a Change in Control as defined
in Section 14(b)(ii);
(ii)the consummation of a merger, reorganization or consolidation of the
Company with or into the Company or in which equity securities of the
Company are issued (each, a “Business Combination”), other than a
merger, reorganization or consolidation that would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or its direct or
indirect parent) more than 50% of the combined voting power of the
voting securities of the Company or such surviving entity (or, as
applicable, a direct or indirect parent of the Company or such surviving
entity), outstanding immediately after such merger, reorganization or
consolidation; provided, however, that a merger, reorganization or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no person (other than those covered by the
exceptions in Section 14(b)(i)) acquires more than 50% of the combined
voting power of the Company’s then-outstanding securities shall not
constitute a Change in Control;
(iii)the date, within any consecutive two-year period commencing on or after
the date of this Agreement, upon which individuals who, at the beginning
of such period, constitute the Board together with any new director(s)
(other than a director designated by a person who has entered into an
agreement with the Company to effect a transaction described in
Section 14(b)(i), 14(b)(ii) or 14(b)(iv) of this Agreement) whose election
by the Board or nomination for election by the Company’s stockholders
was approved by a vote of at least two-thirds of the directors then in office
who either were directors at the beginning of the two-year period or whose
election or nomination for election was previously so approved, cease for
any reason to constitute a majority thereof;
(iv)a complete liquidation or dissolution of the Company or the
consummation of a sale or disposition by the Company of all or
substantially all of the Company’s assets other than the sale or disposition
of all or substantially all of the assets of the Company to a person or
persons who beneficially own, directly or indirectly, 50% or more of the
combined voting power of the outstanding voting securities of the
Company at the time of the sale; or
(v)the occurrence of any other event of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a
response to any similar item on any similar schedule or form) promulgated
under the Exchange Act, whether or not the Company is then subject to
17
such reporting requirement, except the completion of the Company’s
initial public offering shall not be considered a Change in Control.
Notwithstanding anything contained herein, a transaction shall not
constitute a “Change in Control” for the purposes of this definition if
(1) the Company becomes a direct or indirect wholly owned subsidiary of
a holding company and (2) the direct or indirect holders of the voting
stock of such holding company immediately following that transaction are
substantially the same as the holders of the Company’s voting stock
immediately prior to that transaction.
(c)“Corporate Status” describes the status of a person who is or was a director,
officer, partner, trustee, member, manager, employee, agent or fiduciary of the
Company or of any other Enterprise.
(d)“Disinterested Director” means a director of the Company who is not and was not
a party to the Proceeding in respect of which indemnification is sought by the
Indemnitee.
(e)“Enterprise” shall mean the Company and any corporation, partnership, joint
venture, trust, limited liability company, employee benefit plan or other enterprise
that the Indemnitee is or was serving at the request of the Company as a director,
officer, trustee, partner, member, manager, employee, agent or fiduciary.
(f)“Exchange Act” means the Securities Exchange Act of 1934, as amended.
(g)“Expenses” shall mean all reasonable direct and indirect costs, fees and expenses
of any type or nature whatsoever and shall specifically include, without limitation,
all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees and costs
of experts and other professionals, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees and
all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, participating, or being or preparing to be a witness in, or otherwise
participating in, a Proceeding, or responding to, or objecting to, a request to
provide discovery in any Proceeding. Expenses also shall include Expenses
incurred in connection with any appeal resulting from any Proceeding, including
without limitation the premium, security for, and other costs relating to any cost
bond, supersedeas bond, or other appeal bond or its equivalent, and any federal,
state, local or foreign taxes imposed on the Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement, as well as all reasonable
attorneys’ fees and all other expenses incurred by or on behalf of the Indemnitee
in connection with preparing and submitting any requests or statements for
indemnification, advancement, contribution or any other right provided by this
Agreement. Expenses, however, shall not include amounts paid in settlement by
the Indemnitee or the amount of judgments or fines against the Indemnitee.
18
(h)“Fullest Extent Permitted By Applicable Law” includes, but is not limited to: (a)
to the fullest extent permitted by the applicable provision of the DGCL, or the
corresponding provision of any amendment to or replacement of the DGCL, and
(b) to the fullest extent authorized or permitted by any amendments to or
replacements of the DGCL adopted after the date of this Agreement that increase
the extent to which a corporation may indemnify its directors and officers.
(i)“Independent Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of Delaware corporation law and neither presently is, nor
in the past 5 years has been, retained to represent: (i) the Company or the
Indemnitee in any matter material to either such party (other than with respect to
matters concerning the Indemnitee under this Agreement, or of other indemnitees
under similar indemnification agreements), or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term “Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or the Indemnitee in
an action to determine the Indemnitee’s rights under this Agreement.
(j)“Losses” means all liabilities, judgments, fines, penalties, costs, losses, excise
taxes or penalties under the Employee Retirement Income Security Act of 1974,
as amended from time to time, amounts paid in settlement (including all interest
assessments and other charges paid or payable in connection with or in respect of
such liabilities, losses, judgements, fines, excise taxes, penalties and costs) and
other amounts that the Indemnitee reasonably incurs and that result from, arise in
connection with or are by reason of the Indemnitee’s Corporate Status.
(k)“Proceeding” includes any threatened, pending or completed action, suit, claim,
counterclaim, cross claim, arbitration, mediation, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought by or in the right of the
Company or otherwise and whether civil, criminal, administrative or
investigative, in which the Indemnitee was, is or will be involved as a party,
potential party, non-party witness or otherwise, by reason of the Indemnitee’s
Corporate Status or by reason of any action taken by the Indemnitee or of any
inaction on the Indemnitee’s part while acting in the Indemnitee’s Corporate
Status, in each case whether or not the Indemnitee is acting or serving in any such
capacity at the time any liability or expense is incurred for which indemnification
can be provided under this Agreement, and including one pending on or before
the date of this Agreement, but excluding one initiated by an Indemnitee pursuant
to Section 7 of this Agreement to enforce the Indemnitee’s rights under this
Agreement.
(l)[“Olympus Partners” means, collectively, Olympus Partners, LP and any entity
that controls, is controlled by or under common control with Olympus Partners,
9 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
10 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
19
LP (other than the Company and any entity that is controlled by the Company)
and any investment vehicles or funds managed or controlled, directly or
indirectly, by or otherwise affiliated with Olympus Partners, LP.]9
15.Severability. If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (i) the validity, legality and
enforceability of the remaining provisions of this Agreement (including, without
limitation, each portion of any section, paragraph or sentence of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and
shall remain enforceable to the Fullest Extent Permitted By Applicable Law, (ii) such
provision or provisions shall be deemed reformed to the fullest extent necessary to
conform to applicable law and to give the maximum effect to the intent of the parties
hereto, and (iii) to the Fullest Extent Permitted By Applicable Law, the provisions of this
Agreement (including, without limitation, each portion of any section, paragraph or
sentence of this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested thereby. Without limiting the generality of the
foregoing, this Agreement is intended to confer upon the Indemnitee [and Olympus
Partners]10 indemnification rights to the Fullest Extent Permitted By Applicable Law.
16.Modification and Waiver. No supplement, modification, termination or amendment of
this Agreement shall be binding unless executed in writing by both of the parties hereto.
No waiver of any of the provisions of this Agreement shall be deemed or shall constitute
a waiver of any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
17.Notice By the Indemnitee. The Indemnitee agrees to promptly notify the Company in
writing upon being served with or otherwise receiving any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding or
matter which may be subject to indemnification or advancement of Expenses covered
hereunder. The failure to so notify the Company shall not relieve the Company of any
obligation which it may have to the Indemnitee under this Agreement or otherwise unless
and only to the extent that such failure or delay materially prejudices the interests of the
Company.
18.Notices. All notices and other communications given or made pursuant to this Agreement
shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed electronic mail or facsimile if sent
during normal business hours of the recipient, and if not so confirmed, then on the next
business day, (iii) five days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (iv) one day after deposit with a nationally
20
recognized overnight courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent:
(a)To the Indemnitee at the address set forth below the Indemnitee’s signature
hereto.
(b)To the Company at:
Accelevation Holdings Corp. 9555 N. Springboro Pike, Suite 400 Miamisburg, Ohio 45342 Attention: Michael Rubiera E-mail: **** |
or to such other address as may have been furnished to the Indemnitee by the Company
or to the Company by the Indemnitee, as the case may be.
19.Construction. Whenever required by the context, as used in this Agreement the singular
number shall include the plural, the plural shall include the singular, and all words herein
in any gender shall be deemed to include (as appropriate) the masculine, feminine and
neuter genders. References to “day” shall mean a calendar day unless expressly stated to
the contrary.
20.Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the
same Agreement. Counterparts may be delivered via facsimile, electronic mail (including
pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g.,
www.docusign.com) or other transmission method and any counterpart so delivered shall
be deemed to have been duly and validly delivered and be valid and effective for all
purposes.
21.Headings. The headings of the paragraphs of this Agreement are inserted for convenience
only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
22.Governing Law and Consent to Jurisdiction. This Agreement and the legal relations
among the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without regard to its conflict of laws rules. The
Company and the Indemnitee hereby irrevocably and unconditionally (i) agree that any
action or proceeding arising out of or in connection with this Agreement shall, unless the
Company consents in writing to the selection of an alternate forum, be brought only in
the Delaware Court (or, if and only if the Delaware Court lacks subject matter
jurisdiction, any state court located within the State of Delaware or, if and only if all such
state courts lack subject matter jurisdiction, the federal district court for the District of
Delaware), (ii) generally and unconditionally consent to submit to the exclusive
jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of
11 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
21
or in connection with this Agreement, (iii) irrevocably appoint, to the extent such party is
not otherwise subject to service of process in the State of Delaware, The Corporation
Trust Company, 1209 Orange Street, Wilmington, County of New Castle, Delaware
19801, as its agent in the State of Delaware as such party’s agent for acceptance of legal
process in connection with any such action or proceeding against such party with the
same legal force and validity as if such party had been personally served within the State
of Delaware, (iv) waive any objection to the laying of venue of any such action or
proceeding in the Delaware Court, and (v) waive, and agree not to plead or to make, any
claim that any such action or proceeding brought in the Delaware Court has been brought
in an improper or inconvenient forum.
23.[Non-Exclusive Capacities of Indemnitee. The Company acknowledges and agrees that
Indemnitee provides services to entities other than the Company. The Company further
acknowledges and agrees that Olympus Partners invests in entities other than the
Company, and may also provide financial, operational and other advisory services to such
entities in connection with such investments.]11
[SIGNATURE PAGE FOLLOWS]
[Signature Page to Indemnification Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as
of the day and year first written above.
ACCELEVATION HOLDINGS CORP. | ||
By: | ||
Name: | ||
Title: | ||
INDEMNITEE | ||
Name: | ||
Address: | ||
Exhibit 10.13
FORM OF DIRECTOR NOMINATION AGREEMENT
THIS DIRECTOR NOMINATION AGREEMENT (this “Agreement”) is made and entered into
as of , 2026, by and among (a) Accelevation Holdings Corp., a Delaware corporation (the
“Company”), (b) Accelevation Pubco Holdings LP, a Delaware limited partnership (“Pubco Holdings”),
(c) Accelevation Investment Holdings LLC, a Delaware limited liability company (“Investment
Holdings”), (d) Olympus Growth Fund VIII Parallel L.P., a Delaware limited partnership, Olympus
Growth Fund VIII LP, a Delaware limited partnership, and Olympus Partners, LP, a Delaware limited
partnership (collectively and, together with Pubco Holdings and Investment Holdings, “Olympus”) and
(e) Michael Rubiera (the “Founder Stockholder” and, together with Olympus, the “Nominating Parties”).
This Agreement shall become effective (the “Effective Date”) upon the closing of the Company’s
proposed initial public offering (the “IPO”) of shares of its Common Stock (as defined below).
WHEREAS, as of the date hereof, Olympus Beneficially Owns (as defined below) a majority of
the equity interests in the Company;
WHEREAS, Olympus is contemplating causing the Company to effect an IPO;
WHEREAS, Olympus currently has the authority to appoint all Directors (as defined below) of
the Company; and
WHEREAS, in consideration of Olympus agreeing to undertake the IPO, the Company has
agreed to permit Olympus and the Founder Stockholder to nominate Directors to the board of directors of
the Company (the “Board”) following the Effective Date on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the
parties to this Agreement agrees as follows:
1.Board Nomination Rights.
(a)From the Effective Date, Olympus shall have the right, but not the obligation, to
nominate to the Board a number of nominees equal to at least: (i) 100% of the Total Number of Directors
(as defined below) (excluding the Founder Nominee (as defined below)), so long as, at the applicable
Measurement Time, Olympus Beneficially Owns shares of Class A common stock, par value $0.0001 per
share, and Class B common stock, par value $0.0001 per share (collectively, the “Common Stock”),
representing at least 40% of the Original Amount of Olympus (as defined below); (ii) 40% of the Total
Number of Directors, in the event that, at the applicable Measurement Time, Olympus Beneficially Owns
shares of Common Stock representing at least 30% but less than 40% of the Original Amount of
Olympus; (iii) 30% of the Total Number of Directors, in the event that, at the applicable Measurement
Time, Olympus Beneficially Owns shares of Common Stock representing at least 20% but less than 30%
of the Original Amount of Olympus; (iv) 20% of the Total Number of Directors, in the event that, at the
applicable Measurement Time, Olympus Beneficially Owns shares of Common Stock representing at
least 10% but less than 20% of the Original Amount of Olympus; and (v) one Director, in the event that,
at the applicable Measurement Time, Olympus Beneficially Owns shares of Common Stock representing
at least 5% but less than 10% of the Original Amount of Olympus (such persons, the “Olympus
Nominees”). For purposes of calculating the number of Directors that Olympus is entitled to nominate
pursuant to the immediately preceding sentence, any fractional amounts shall automatically be rounded up
to the nearest whole number (e.g., 1.25 Directors shall equate to 2 Directors) and any such calculations
shall be made after taking into account any increase in the Total Number of Directors.
(b)From the Effective Date, the Founder Stockholder shall have the right, but not the
obligation, to nominate to the Board one director so long as the Founder Stockholder Beneficially Owns
or holds an indirect economic interest in at least 3% of the outstanding shares of Common Stock (such
person, the “Founder Nominee”). The Founder Nominee shall be deemed to be Michael Rubiera for as
long as he serves as Chief Executive Officer of the Company, and thereafter the Founder Nominee shall
be as designated by the Founder Stockholder in accordance with the terms of this Agreement.
Notwithstanding anything herein to the contrary, in the event that Mr. Rubiera is removed as the Chief
Executive Officer of the Company for Cause, Mr. Rubiera shall resign from the Board and the Founder
Stockholder shall immediately cease to have any right to nominate a director to the Board pursuant to this
Agreement.
(c)In the event that any Nominating Party has nominated fewer than the total number of
nominees that such Nominating Party shall be entitled to nominate pursuant to Section 1(a) or Section
1(b), as applicable, such Nominating Party shall have the right, at any time, to nominate such additional
nominees to which it is entitled, in which case, the Company shall take, and the Company hereby
covenants that the Directors shall take, all necessary corporate action to (i) enable such Nominating Party
to nominate and effect the election or appointment of such additional individuals, whether by increasing
the size of the Board or otherwise, and (ii) appoint such additional individuals nominated by such
Nominating Party to fill such newly created directorships or to fill any other existing vacancies in
accordance with Section 1(e).
(d)If the size of the Board is expanded, Olympus shall be entitled to nominate a number of
Olympus Nominees to fill the newly created directorships such that the total number of Olympus
Nominees serving on the Board following such expansion will be equal to that number of Olympus
Nominees that Olympus would be entitled to nominate in accordance with Section 1(a) if such expansion
occurred immediately prior to any meeting of the stockholders of the Company called with respect to the
election of members of the Board. The Company shall take, and the Company hereby covenants that the
Directors shall take, all necessary corporate action to (i) enable Olympus to nominate and effect the
election or appointment of additional nominees in accordance with the preceding sentence and (ii) appoint
such additional nominees in accordance with Section 1(e).
(e)In the event that any Nominee shall cease to serve as a Director for any reason (other than
removal for Cause in the case of the Founder Nominee), the Nominating Party appointing such Nominee
shall be entitled to nominate such person’s successor in accordance with this Agreement (regardless of the
number of shares of Common Stock Beneficially Owned by such Nominating Party at the time of such
vacancy). The Company shall take, and the Company hereby covenants that the Directors shall take, all
necessary corporate action to (i) enable the applicable Nominating Party to nominate and effect the
election or appointment of successor nominees in accordance with the preceding sentence and (ii) appoint
such successor nominees in accordance with Section 1(e). It is understood that any such nominee shall
serve the remainder of the term of the Director whom such nominee replaces.
(f)In each case where the Company has covenanted that the Directors shall take action to
appoint a Nominee as a Director pursuant to any of Sections 1(a) through 1(e):
(i)The Directors shall appoint such Nominee unless the Board determines, in good faith,
that appointing such Nominee would cause the Directors to breach their fiduciary
duties to the Company or its stockholders, in which case the Company shall provide
the appointing Nominating Party with a notice explaining in reasonable detail the
basis for the Board’s determination, and such Nominating Party shall have the right
to nominate an alternative Nominee in accordance with Sections 1(a) through 1(e);
and
(ii)The Company hereby covenants that the Directors shall not fill any vacant or newly
created directorship for which Olympus or the Founder Stockholder are entitled to
nominate a Nominee other than in accordance with Sections 1(a) through 1(e).
(g)In addition to the nomination rights set forth in Section 1(a), from the Effective Date, for
so long as, at the applicable Measurement Time, Olympus Beneficially Owns shares of Common Stock
representing at least 5% of the Original Amount of Olympus, Olympus shall have the right, but not the
obligation, to nominate a person (a “Non-Voting Observer”) to attend meetings of the Board (including
any meetings of any committees thereof) in a non-voting observer capacity. Any such Non-Voting
Observer shall be permitted to attend all meetings of the Board and each committee thereof. Olympus
shall have the right to remove and replace its Non-Voting Observer for any reason at any time and from
time to time. The Company shall furnish to any Non-Voting Observer (i) notices of Board and Board
committee meetings no later than, and using the same form of communication as, notice of such meetings
are furnished to Directors and (ii) copies of any materials prepared for meetings of the Board or any
committee thereof that are furnished to the Directors no later than the time such materials are furnished to
the Directors; provided that failure to deliver notice or materials to such Non-Voting Observer in
connection with such Non-Voting Observer’s right to attend and/or review materials with respect to any
such meeting shall not, by itself, impair the validity of any action taken at such meeting. Such Non-
Voting Observer shall be required to execute or otherwise become subject to any codes of conduct or
confidentiality agreements of the Company generally applicable to Directors of the Company or as the
Company reasonably requests. Notwithstanding the foregoing, the Company reserves the right to
withhold any information and to exclude the Non-Voting Observer from receiving any materials and/or
attending any meeting or portion thereof if access to such information or attendance at such meeting could
adversely affect the attorney-client privilege between the Company and its counsel.
(h)The Company shall pay all reasonable out-of-pocket expenses incurred by the Nominees
and the Non-Voting Observer in connection with the performance of his or her duties as a Director or his
or her service as a Non-Voting Observer, as applicable, and in connection with his or her attendance at
any meeting of the Board or a committee thereof.
(i) No reduction in the number of shares of Common Stock that Olympus Beneficially
Owns shall shorten the term of any incumbent Director. At the Effective Date, the Board shall be
comprised of nine members and the initial Olympus Nominees shall be Robert Morris, Manu Bettegowda,
Matt Boyd, Matt Bujor, Marty Durkin, Paul Donahue, Howard Heckes and Ginger Jones, and the initial
Founder Nominee shall be Michael Rubiera.
(j)For purposes of this Agreement:
(i)“Affiliate” of any person shall mean any other person controlled by, controlling, or
under common control with such person; where “control” (including, with its
correlative meanings, “controlling,” “controlled by,” and “under common control
with”) means possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities, by
contract, or otherwise).
(ii)“Beneficially Own” shall mean that a specified person has or shares the right, directly
or indirectly, through any contract, arrangement, understanding, relationship, or
otherwise, to vote shares of capital stock of the Company.
(iii)“Cause” shall mean with respect to the Founder Stockholder’s removal for Cause, the
following: (a) in the case that the Founder Stockholder is not party to an employment,
consulting, change in control, severance or similar written agreement between the
Founder Stockholder and the Company or an Affiliate, in each case, as approved by
the Board or applicable governing body of an Affiliate of the Company (or where
there is such an agreement but it does not define “cause”), “cause” as defined in the
Accelevation Holdings Corp. 2026 Omnibus Incentive Plan (with references therein
to Participants referring to the Founder Stockholder) or (b) if the Founder
Stockholder is party to a written employment, consulting, change in control,
severance or similar agreement between the Founder Stockholder and the Company
or an Affiliate (in each case, as approved by the Board or applicable governing body
of an Affiliate of the Company) that defines “cause,” “cause” as defined under such
agreement.
(iv)“Director” means any member of the Board.
(v)“Measurement Time” means, with respect to any election of Directors, immediately
prior to the mailing to shareholders of the Director Election Proxy Statement relating
to such election (or, if earlier, the filing of the definitive Director Election Proxy
Statement with the SEC).
(vi)“Nominee” means either an Olympus Nominee or a Founder Nominee. For purposes
of this Agreement, the term “Nominee” shall refer to any person validly designated
by a Nominating Party to serve on the Board pursuant to Section 1(a) or Section 1(b)
hereof.
(vii)“Original Amount of Olympus” means the aggregate number of shares of Common
Stock Beneficially Owned by Olympus upon completion of the IPO, as such number
may be adjusted from time to time for any reorganization, recapitalization, stock
dividend, stock split, reverse stock split, or other similar changes in the Company’s
capitalization.
(viii)“SEC” means the U.S. Securities and Exchange Commission.
(ix)“Total Number of Directors” means the total number of Directors comprising the
Board.
(k)So long as any Nominating Party has the right to nominate Nominees under Sections 1(a)
through 1(e) or any such Nominee is serving on the Board, the Company shall use its reasonable best
efforts to maintain in effect at all times directors’ and officers’ indemnity insurance coverage reasonably
satisfactory to the Nominating Parties, and the Company’s Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws (each as may be further amended, supplemented, or
waived in accordance with its terms) shall at all times provide for indemnification, exculpation and
advancement of expenses to the fullest extent permitted under applicable law.
(l)At such time as the Company ceases to be a “controlled company” and is required by
applicable law or the listing standards of The Nasdaq Global Select Market (the “Exchange”) to have a
majority of the Board comprised of “independent directors” (subject in each case to any applicable phase-
in periods), the Olympus Nominees shall include a number of persons that qualify as “independent
directors” under applicable law and the Exchange listing standards such that, together with any other
“independent directors” then serving on the Board that are not Olympus Nominees, the Board is
comprised of a majority of “independent directors.”
(m)At any time that any Nominating Party shall have any nomination rights under Section 1,
the Company shall not take any action, and the Company hereby covenants that the Directors shall not
take any action, (including in each case effecting any amendment to the Company’s Amended and
Restated Certificate of Incorporation or Amended and Restated Bylaws), that could reasonably be
expected to adversely affect such Nominating Party’s rights under this Agreement, in each case without
the prior written consent of Olympus. In addition, so long as Olympus has any nomination rights under
Section 1, the Company shall not increase or decrease the size of the Board without the prior written
consent of Olympus.
(n)Notwithstanding anything to the contrary in this Agreement, for so long as Olympus,
including through its Affiliates, Beneficially Owns at least 30% of the outstanding shares of Common
Stock of the Company, Olympus shall have the right to designate the Chair of the Board.
2.Company Obligations. The Company agrees to take all necessary corporate action to
ensure that, prior to the date that any Nominating Party ceases to hold rights to nominate directors
pursuant to this Agreement, (i) each Nominee is included in the Board’s slate of nominees to the
stockholders (the “Board’s Slate”) for each election of Directors, unless the Board determines, in good
faith, that the inclusion of a Nominee in the Board’s Slate would not be in the best interest of the
Company and its stockholders (other than Olympus or the Founder Stockholder), in which case, the
appointing Nominating Party shall have the right to nominate an alternate Nominee for inclusion in the
Board’s Slate; and (ii) whether or not a Nominee is included in the Board’s Slate, each Nominee shall be
included in the proxy statement (together with a supporting statement provided by Olympus or the
Founder Stockholder, as applicable) and proxy card prepared by management of the Company in
connection with soliciting proxies for every meeting of the stockholders of the Company called with
respect to the election of members of the Board (each, a “Director Election Proxy Statement”), and at
every adjournment or postponement thereof, and on every action or approval by written consent of the
stockholders of the Company or the Board with respect to the election of members of the Board. In order
to notify the Company when its obligations under this Section 2 have terminated, (x) Olympus will
promptly provide reporting to the Company after Olympus ceases to Beneficially Own at least 5% of the
Original Amount of Olympus, and (y) the Founder Stockholder will promptly provide reporting to the
Company after the Founder Stockholder ceases to Beneficially Own or hold an indirect economic interest
in at least 3% of the outstanding shares of Common Stock. The calculation of the number of Nominees
that Olympus is entitled to nominate to the Board’s Slate for any election of Directors shall be based on
the percentage of the Original Amount of Olympus at the applicable Measurement Time. Unless a
Nominating Party notifies the Company otherwise prior to the applicable Measurement Time, the
Nominees for such election shall be presumed to be the same Nominees currently serving on the Board,
and no further action shall be required of the Nominating Parties for the Board to include such Nominees
on the Board’s Slate as contemplated by clause (i) of this Section 2; provided that, in the event Olympus
is no longer entitled to nominate the full number of Olympus Nominees then serving on the Board,
Olympus shall provide advance written notice to the Company of which currently serving Olympus
Nominee(s) shall be excluded from the Board’s Slate and of any other changes to the list of Nominees. If
Olympus fails to provide such notice prior to the applicable Measurement Time, a majority of the
independent Directors then serving on the Board shall determine which of the Nominees then serving on
the Board will be included in the Board’s Slate as contemplated by clause (i) of this Section 2.
Furthermore, the Company agrees for so long as the Company qualifies as a “controlled company” under
the rules of the Exchange, the Company will elect to be a “controlled company” for purposes of the
Exchange and will disclose in its annual meeting proxy statement that it is a “controlled company” and
the basis for that determination. The Company and each Nominating Party acknowledge and agree that, as
of the Effective Date, the Company is a “controlled company.”
3.Committees. From and after the Effective Date hereof until such time as Olympus and its
Affiliates cease to Beneficially Own shares of Common Stock representing at least 5% of the Original
Amount of Olympus, the Company hereby covenants that the Board shall not form or designate any
committee of the Board unless Olympus has consented to such formation or designation.
Notwithstanding the preceding sentence, the consent of Olympus shall not be required if:
(a)Olympus has been provided the opportunity to nominate a number of members of each
committee of the Board equal to the nearest whole number greater than the product obtained by
multiplying (i) the percentage of the Original Amount of Olympus then Beneficially Owned by Olympus
and (ii) the number of positions, including any vacancies, on the applicable committee; or
(b)none of the Directors nominated by Olympus pursuant to this Agreement are eligible to
serve on the applicable committee under applicable law or listing standards of the Exchange, including
any applicable independence requirements (subject in each case to any applicable exceptions, including
those for newly public companies and for “controlled companies,” and any applicable phase-in periods).
In addition, at any time when Olympus has the right to nominate at least one Nominee for
election to the Board, Olympus shall also have the right to have one of the Olympus Nominees hold one
seat on each committee of the Board, subject to satisfying any applicable stock exchange rules or
regulations regarding the independence of Board committee members.
The Company hereby covenants that the Nominees designated to serve on a Board committee
shall have the right to remain on such committee until the next election of Directors, regardless of the
percentage of the Original Amount of Olympus Beneficially Owned by Olympus following such
designation. Unless Olympus notifies the Company otherwise prior to the time the Board takes action to
change the composition of a Board committee, and to the extent Olympus has the requisite percentage of
the Original Amount of Olympus to designate a Board committee member at the time the Board takes
action to change the composition of any such Board committee, any Olympus Nominee to serve on a
committee shall be presumed to be re-designated for such committee. Without limiting the remedies
available to Olympus, the Company shall not consummate any act or transaction approved or
recommended by a committee of the Board formed or designated in a manner inconsistent with this
Section 3 without the prior written consent of Olympus.
4.Amendment and Waiver. Any provision of this Agreement may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by the
Company, Olympus and the Founder Stockholder; provided, that the consent of the Founder Stockholder
shall not be required for any amendment which would not have an effect on the Founder Stockholder, or
in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any
party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other
right, power, or privilege. The rights and remedies herein provided shall be cumulative and not exclusive
of any rights or remedies provided by law. The Nominating Parties shall not be obligated to nominate all
(or any) of the Nominees they are entitled to nominate pursuant to this Agreement for any election of
Directors, but the failure to do so shall not constitute a waiver of their rights hereunder for any purpose;
provided, however, that, subject to Section 2, in the event any Nominating Party fails to nominate all (or
any) of the Nominees it is entitled to nominate pursuant to this Agreement prior to the applicable
Measurement Time, the Compensation and Nominating Committee of the Board shall be entitled to
nominate individuals in lieu of such Nominees for inclusion in the Board’s Slate and the applicable
Director Election Proxy Statement with respect to the election for which such failure occurred, and such
Nominating Party shall be deemed to have waived its rights hereunder solely with respect to such
election.
5.Benefit of Parties. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective permitted successors and assigns. Notwithstanding the foregoing,
the Company and the Founder Stockholder may not assign any of their respective rights or obligations
hereunder without the prior written consent of Olympus. Except as otherwise expressly provided in
Section 6, nothing herein contained shall confer or is intended to confer on any third party or entity that is
not a party to this Agreement any rights under this Agreement.
6.Assignment. Upon written notice to the Company, Olympus may assign to any Affiliate
of Olympus (other than a portfolio company) all of its rights hereunder and, following such assignment,
such assignee shall be deemed to have the rights and obligations of “Olympus” for all purposes
hereunder.
7.Termination. This Agreement shall terminate, (i) with respect to the rights and
obligations of Olympus, on the date on which Olympus Beneficially Owns shares of Common Stock
representing less than 5% of the Original Amount of Olympus and, (ii) with respect to the rights and
obligations of the Founder Stockholder, on the date upon which the Founder Stockholder Beneficially
Owns or holds an indirect economic interest in shares of Common Stock representing less than 3% of the
outstanding shares of Common Stock. Notwithstanding the foregoing, the provisions of Sections 10
through 19 shall survive the termination of this Agreement. No termination of this Agreement shall
relieve any party from liability for any breach of this Agreement prior to such termination.
8.Indemnification.
(a)The Company shall defend, indemnify and hold harmless Olympus, its Affiliates,
partners, employees, agents, Directors, managers, officers and controlling persons (collectively, the
“Indemnified Parties”) from and against any and all actions, causes of action, suits, claims, liabilities,
losses, damages, costs, expenses, or obligations of any kind or nature (whether accrued or fixed, absolute
or contingent) in connection therewith (including reasonable attorneys’ and experts’ fees and expenses)
incurred by the Indemnified Parties before or after the date of this Agreement (each, an “Action”) arising
directly or indirectly out of or in any way relating to (i) Olympus’s or its Affiliates’ Beneficial Ownership
of Common Stock or other equity securities of the Company or control or ability to influence the
Company or any of its subsidiaries (other than any such Actions (x) to the extent such Actions arise out of
any breach of this Agreement by an Indemnified Party or its Affiliates or the breach of any fiduciary or
other duty or obligation of such Indemnified Party to its direct or indirect equity holders, creditors, or
Affiliates or (y) to the extent such Actions are directly caused by such person’s willful misconduct), (ii)
the business, operations, properties, assets or other rights or liabilities of the Company or any of its
subsidiaries or (iii) any services provided prior to, on or after the date of this Agreement by any
Indemnified Party to the Company or any of its subsidiaries. The Company shall defend at its own cost
and expense in respect of any Action which may be brought against the Company and/or its Affiliates and
the Indemnified Parties. The Company shall defend at its own cost and expense any and all Actions which
may be brought in which the Indemnified Parties may be impleaded with others upon any Action by the
Indemnified Parties, except that if such damage shall be proven to be the direct result of gross negligence,
bad faith, or willful misconduct by any of the Indemnified Parties, then such Indemnified Party shall
reimburse the Company for the costs of defense and other costs incurred by the Company in proportion to
such Indemnified Party’s culpability as proven. In the event of the assertion against any Indemnified Party
of any Action or the commencement of any Action, the Company shall be entitled to participate in such
Action and in the investigation of such Action and, after written notice from the Company to such
Indemnified Party, to assume the investigation or defense of such Action (at the Company’s sole cost and
expense) with counsel of the Company’s choice at the Company’s expense; provided, however, that such
counsel shall be reasonably satisfactory to the Indemnified Party. Notwithstanding anything to the
contrary contained herein, the Company may retain one firm of counsel to represent all Indemnified
Parties in such Action; provided, however, that the Indemnified Party shall have the right to employ a
single firm of separate counsel (and any necessary local or specialist counsel) and to participate in the
defense or investigation of such Action, and the Company shall bear the expense of such separate counsel
(and local counsel, if applicable). The Company further agrees that with respect to any Indemnified Party
who is employed, retained, or otherwise associated with, or appointed or nominated by, Olympus or any
of its Affiliates and who acts or serves as a Director, officer, manager, fiduciary, employee, consultant,
advisor, or agent of, for, or to the Company or any of its subsidiaries, that the Company or such
subsidiaries, as applicable, shall be primarily liable for all indemnification, reimbursements,
advancements, or similar payments (the “Indemnity Obligations”) afforded to such Indemnified Party
acting in such capacity or capacities on behalf or at the request of the Company, whether the Indemnity
Obligations are created by law, organizational or constituent documents, contract (including this
Agreement), or otherwise. The Company hereby agrees that in no event shall the Company or any of its
subsidiaries have any right or claim against Olympus for contribution or have rights of subrogation
against Olympus through an Indemnified Party for any payment made by the Company or any of its
subsidiaries with respect to any Indemnity Obligation. In addition, the Company hereby agrees that in the
event that Olympus pays or advances an Indemnified Party any expenses with respect to an Indemnity
Obligation, the Company will, or will cause its subsidiaries to, as applicable, promptly reimburse
Olympus for such payment or advance upon request, subject to the receipt by the Company of a written
undertaking executed by the Indemnified Party and Olympus that makes such payment or advance to
repay any such amounts if it shall ultimately be determined by a court of competent jurisdiction that such
Indemnified Party was not entitled to be indemnified by the Company. The foregoing right to indemnity
and advancement shall be in addition to any rights that any Indemnified Party may have at common law,
pursuant to the Company’s Certificate of Incorporation or Bylaws, pursuant to any other contract with the
Company or otherwise, and shall remain in full force and effect following the completion or any
termination of the engagement. If for any reason the foregoing indemnification is unavailable to any
Indemnified Party or insufficient to hold it harmless as and to the extent contemplated by this Section 8,
then the Company shall contribute to the amount paid or payable by the Indemnified Party as a result of
such Action in such proportion as is appropriate to reflect the relative benefits received by the Company,
on the one hand, and the Indemnified Party, as the case may be, on the other hand, as well as any other
relevant equitable considerations.
(b)The Company hereby acknowledges that certain of the Indemnified Parties have certain
rights to indemnification, advancement of expenses, and/or insurance provided by investment funds
managed by Olympus and certain of its Affiliates (collectively, the “Fund Indemnitors”). The Company
hereby agrees with respect to any indemnification, hold harmless obligation, expense advancement,
reimbursement provision, or any other similar obligation whether pursuant to or with respect to this
Agreement, the organizational documents of the Company or any of its subsidiaries, or any other
agreement, as applicable, (i) that the Company and its subsidiaries are the indemnitor of first resort (i.e.,
their obligations to the Indemnified Parties are primary and any obligation of the Fund Indemnitors to
advance expenses or to provide indemnification for claims, expenses, or obligations arising out of the
same or similar facts and circumstances suffered by any Indemnified Party are secondary), (ii) that the
Company shall be required to advance the full amount of expenses incurred by any Indemnified Party and
shall be liable for the full amount of all expenses, liabilities, obligations, judgments, penalties, fines and
amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement,
the organizational documents of the Company or any of its subsidiaries, or any other agreement, as
applicable, without regard to any rights any Indemnified Party may have against the Fund Indemnitors,
and (iii) that the Company, on behalf of itself and each of its subsidiaries, irrevocably waives,
relinquishes and releases the Fund Indemnitors from any and all Actions against the Fund Indemnitors for
contribution, subrogation or any other recovery of any kind in respect thereof. The Company further
agrees that no advancement or payment by the Fund Indemnitors on behalf of any Indemnified Party with
respect to any Action for which any Indemnified Party has sought indemnification from the Company
shall affect the foregoing, and the Fund Indemnitors shall have a right of contribution and/or be
subrogated to the extent of such advancement or payment to all of the rights of recovery of any
Indemnified Party against the Company. The Company agrees that the Fund Indemnitors are express
third-party beneficiaries of the terms of this Section 8(b).
9.Headings. Headings are for ease of reference only and shall not form a part of this
Agreement.
10.Governing Law. This Agreement shall be construed in accordance with and governed by
the law of the State of Delaware without giving effect to the principles of conflicts of laws of any
jurisdiction that would result in the application of any other laws.
11.Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of, or based
on any matter arising out of or in connection with, the construction, interpretation, validity, performance
or enforceability of this Agreement shall be brought against any of the parties only in any federal court
located in the State of Delaware or any Delaware state court, and each of the parties hereby consents to
the exclusive jurisdiction of such court (and of the appropriate appellate courts) in any such suit, action or
proceeding and waives any objection to venue laid therein. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each of the parties agrees that service of process upon such party at
the address referred to in Section 18, together with written notice of such service to such party, shall be
deemed effective service of process upon such party.
12.WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT.
13.Entire Agreement. This Agreement constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior agreements, understandings and
negotiations, both written and oral, among the parties with respect to the subject matter hereof.
14.Counterparts; Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original. This Agreement shall become effective when
each party shall have received a counterpart hereof signed by each of the other parties. An executed copy
or counterpart hereof delivered by facsimile shall be deemed an original instrument.
15.Severability. If any provision of this Agreement or the application thereof to any person
or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the
application of such provisions to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law. If any provision of this Agreement, or the application
thereof to any person or entity or any circumstance, is found to be invalid or unenforceable in any
jurisdiction, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far
as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b)
the remainder of this Agreement and the application of such provision to other persons, entities or
circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
16.Further Assurances. Each of the parties hereto shall execute and deliver such further
instruments and do such further acts and things as may be required to carry out the intent and purpose of
this Agreement.
17.Specific Performance. Each of the parties hereto agrees that, notwithstanding any other
provision of this Agreement, irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms
and provisions hereof in any federal or state court located in the State of Delaware, in addition to any
other remedy to which they are entitled at law or in equity.
18.Notices. All notices, requests and other communications to any party or to the Company
shall be in writing (including telecopy or similar writing) and shall be given,
If to the Company:
Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attention:Michael Rubiera
Email:****
If to Olympus or any Olympus Nominee:
c/o Olympus Partners, LP
Metro Center, 4th Floor, One Station Place
Stamford, CT 06902
Attention:Matt Boyd
Matt Bujor
Email:****
****
In each case, with a copy to (which shall not constitute notice):
c/o Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention:Robert M. Hayward, P.C.
Robert E. Goedert, P.C.
Email:****
****
If to the Founder Stockholder or to the Founder Nominee:
The address set forth on the Founder Stockholder signature page hereto.
or to such other address or telecopier number as such party or the Company may hereafter specify for the
purpose of notice to the other parties and the Company. Each such notice, request, or other
communication shall be effective when delivered at the address specified in this Section 18 during regular
business hours.
19.Enforcement. Each of the parties hereto covenant and agree that the disinterested
members of the Board have the right to enforce, waive, or take any other action with respect to this
Agreement on behalf of the Company.
* * * * *
[Signature Page to Director Nomination Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first
written above.
ACCELEVATION HOLDINGS CORP. | ||
By: | ||
Name: | ||
Title: | ||
[Signature Page to Director Nomination Agreement]
ACCELEVATION PUBCO HOLDINGS LP | ||
By: | ||
Name: | ||
Title: | ||
ACCELEVATION INVESTMENT HOLDINGS LLC | ||
By: | ||
Name: | ||
Title: | ||
OLYMPUS GROWTH FUND VIII PARALLEL L.P. | ||
By: | ||
Name: | ||
Title: | ||
OLYMPUS GROWTH FUND VIII LP | ||
By: | ||
Name: | ||
Title: | ||
OLYMPUS PARTNERS, LP | ||
By: | ||
Name: | ||
Title: | ||
[Signature Page to Director Nomination Agreement]
MICHAEL RUBIERA | ||
By: | ||
Name: Michael Rubiera | ||
Address: | ||
Exhibit 10.14
FORM OF
TAX RECEIVABLE AGREEMENT
by and among
ACCELEVATION HOLDINGS CORP.,
ACCELEVATION HOLDINGS LLC
and
THE OTHER PERSONS NAMED HEREIN
Dated as of , 2026
TAX RECEIVABLE AGREEMENT
This TAX RECEIVABLE AGREEMENT (this “Agreement”), dated as of , 2026, is hereby
entered into by and among Accelevation Holdings Corp., a Delaware corporation (“PubCo”), Accelevation
Holdings LLC, a Delaware limited liability company (“OpCo”), and each of the undersigned parties and the other
persons who agree to become party to this Agreement and who shall thereafter be listed on Schedule A attached
hereto from time to time (each a “Rights Holder” and collectively, the “Rights Holders”).
RECITALS
WHEREAS, the Rights Holders directly or indirectly hold certain equity interests in OpCo (the “Units”) and/
or PubCo;
WHEREAS, OpCo is treated as a partnership for U.S. federal income tax purposes and PubCo is treated as a
corporation for U.S. federal income tax purposes;
WHEREAS, after the IPO, PubCo will be the manager of OpCo and will hold, directly and/or indirectly,
certain Units;
WHEREAS, in connection with the IPO, Accelevation Pubco Holdings, LP (“PubCo Holdings”) will
contribute all of the units in Olympus Blocker to PubCo in exchange for Class A Shares (the “Olympus Blocker
Contribution”);
WHEREAS, immediately after the Olympus Blocker Contribution, Olympus Blocker will make an election
on IRS Form 8832 to be treated as an entity disregarded as separate from its owner that is effective the same day as
the Olympus Blocker Contribution;
WHEREAS, in connection with the IPO, PubCo Holdings shall capitalize [Merger Sub 1], a newly formed
wholly owned Delaware corporation with certain Class A Shares and [Merger Sub 1] shall merge with and into the
LFM Blocker, whereby PubCo Holdings will receive additional Class A Shares, and immediately thereafter the
LFM Blocker shall merge with and into [Merger Sub 2], a newly formed wholly owned Delaware limited liability
company with [Merger Sub 2] surviving (the “LFM Blocker Reorganizations”);
WHEREAS, as a result of the Olympus Blocker Contribution and LFM Blocker Reorganizations, the
Corporate Taxpayer will (i) be entitled to utilize Blocker Attributes (as defined below) and (ii) obtain the benefit of
the Blocker Transferred Basis (as defined below);
WHEREAS, in connection with the IPO, PubCo Holdings shall capitalize [Merger Sub 3], a newly formed
wholly owned Delaware limited liability company with certain Class A Shares and [Merger Sub 3] shall merge with
and into Accelevation Holdings Blocker LLC, whereby PubCo Holdings will receive additional Class A Shares (the
“Accelevation Blocker Reorganization”);
WHEREAS, in connection with the IPO, PubCo Holdings shall capitalize [Merger Sub 4], a newly formed
wholly owned Delaware corporation with certain Class A Shares and [Merger Sub 4] shall merge with and into the
Management Blocker, whereby PubCo Holdings will receive additional Class A Shares, and immediately thereafter
the Management Blocker shall merge with and into [Merger Sub 5], a Delaware limited liability company with
[Merger Sub 5] surviving (the “Management Blocker Reorganizations” and together with the Olympus Blocker
Contribution, LFM Blocker Reorganizations, and Accelevation Blocker Reorganization, the
“Blocker Reorganization”);
WHEREAS, in connection with the IPO, PubCo shall capitalize Instor Blocker, Inc. with certain Class A
Shares and [●] (“OpCo Holdings”) will contribute certain Units to Instor Blocker, Inc. in exchange for the Class A
Shares in a taxable transaction (“OpCo Exchange”);
WHEREAS, in connection with the IPO, PubCo will acquire (directly or indirectly) IPO Units for a
contribution of cash to OpCo not treated as part of a disguised sale under Section 707(a) of the Code (the
“IPO Exchange”);
WHEREAS, as a result of the OpCo Exchange and IPO Exchange, as applicable, the Corporate Taxpayer
will be entitled to obtain the benefit of the IPO Basis;
WHEREAS, the Units held by certain of the Rights Holders subsequently may be exchanged for Class A
Shares and/or cash or other property, in accordance with and subject to the provisions of the Exchange Agreement;
WHEREAS, as a result of an Exchange, the Corporate Taxpayer will (i) be entitled to use the Basis
Adjustments relating to such Units exchanged in the Exchange and (ii) obtain the benefit of the Exchange
Transferred Basis;
WHEREAS, OpCo and each of its direct and indirect subsidiaries, if any, treated as a partnership for U.S.
federal income tax purposes will have in effect an election under Section 754 of the Code (i) for each Taxable Year
that includes the IPO and (ii) for each Taxable Year in which a taxable acquisition (including a deemed taxable
acquisition under Section 707(a) of the Code) or non-taxable acquisition of Units by the Corporate Taxpayer from
any of the Rights Holders for stock of the Corporate Taxpayer and/or cash or redemption by OpCo, in each case of
this clause (ii), occurs in connection with the IPO or after the IPO (and such acquisition from, including any deemed
taxable acquisition under Section 707(a) of the Code, or redemption, an “Exchange”);
WHEREAS, the income, gain, loss, expense and other Tax items of the Corporate Taxpayer may be affected
by the (i) Blocker Attributes, (ii) Blocker Transferred Basis, (iii) IPO Basis, (iv) Exchange Transferred Basis, (v)
Basis Adjustments and (vi) Imputed Interest (as defined below) (collectively, the “Tax Attributes”); and
WHEREAS, the parties to this Agreement desire to provide for certain payments and to make certain
arrangements with respect to the effect of the Tax Attributes on the liability for taxes of the Corporate Taxpayer.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set
forth in this Agreement, and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the terms set forth in this Article I shall have the
following meanings.
“Accrued Amount” has the meaning set forth in Section 3.1(a)(iii).
“Accrued Payment” has the meaning set forth in Section 3.6.
“Actual Tax Liability” means, with respect to any Taxable Year, the sum of (a) the actual liability of the
Corporate Taxpayer for U.S. federal income Taxes (if applicable, determined in accordance with a Determination or
Amended Schedule and by assuming any state and local income taxes relevant to calculating such U.S. federal
income taxes are determined in accordance with the following clause (c)), plus (b) without duplication, the portion
of any liability for U.S. federal income Taxes imposed directly on OpCo (or OpCo’s applicable Subsidiaries or other
Persons in which OpCo owns a direct or indirect equity interest) under Section 6225 or any similar provision of the
Code and any state and local Taxes imposed directly on OpCo (or OpCo’s applicable Subsidiaries or other Persons
in which OpCo owns a direct or indirect equity interest), in each case, that is allocable to the Corporate Taxpayer
under Section 704 of the Code or otherwise attributable to the Corporate Taxpayer in accordance with the OpCo
Agreement, plus (c) the product of (i) the amount of the U.S. federal taxable income (not below zero) for such
Taxable Year (if applicable, determined in accordance with a Determination or Amended Schedule) reported on the
Corporate Taxpayer’s IRS Form 1120 (or any successor form) and (ii) the Blended S/L Rate.
“Affiliate” of any particular Person means any other Person controlling, controlled by or under common
control with such Person, where for purposes of this definition, “control” means the possession, directly or
indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting
securities, its capacity as a sole or managing member or otherwise. For purposes of this Agreement, no Rights
Holder shall be considered to be an Affiliate of the Corporate Taxpayer, OpCo, or any Subsidiaries thereof.
“Agreed Rate” means a per annum rate of SOFR plus 100 basis points.
“Agreement” has the meaning set forth in the Preamble.
“Amended Schedule” has the meaning set forth in Section 2.4(b).
“Attributable” means the portion of any Tax Attribute of the Corporate Taxpayer that is “Attributable” to
any present or former Rights Holder, as the case may be, determined under the following principles:
(i) any Blocker Attributes (and any Basis Adjustments in respect thereof) shall be determined separately with
respect to each Blocker based on the Blocker Attributes attributable to such Blocker at the time of the Blocker
Reorganization, and are Attributable to the Blocker indirect Shareholders of each Blocker to which such Blocker
Attributes relate in proportion to each Blocker Shareholder’s interest in such Blocker prior to the Blocker
Reorganization;
(ii) any Blocker Transferred Basis (and any Basis Adjustments in respect thereof) shall be determined
separately with respect to each Blocker based on the Blocker Transferred Basis (and related Basis Adjustments)
associated with the applicable Blocker units that were acquired directly or indirectly by the Corporate Taxpayer as a
result of the participation of such Blocker in the Blocker Reorganization, and shall be Attributable to the Blocker
Shareholders of each Blocker to which such Blocker Transferred Basis (and related Basis Adjustments) relates in
proportion to each Blocker Shareholder’s interest in such Blocker prior to the Blocker Reorganization;
(iii) any IPO Basis (and any Basis Adjustments in respect thereof) shall be determined separately with respect
to each Rights Holder, as applicable, in an amount equal to the product of (A) the total IPO Basis and (B) the IPO
Basis Percentage of the Units previously held by such Rights Holder and transferred (whether pursuant to the
Blocker Reorganization or an Exchange) to PubCo, as applicable;
(iv) any Exchange Transferred Basis (and any Basis Adjustments in respect thereof) shall be determined
separately with respect to each Exchanging Holder and is Attributable to each Exchanging Holder in an amount
equal to the total Exchange Transferred Basis relating to such Units delivered to the Corporate Taxpayer by such
Exchanging Holder in the Exchange;
(v) any Basis Adjustments shall be determined separately with respect to each Exchanging Holder and the
Blocker Shareholder and are Attributable to each Exchanging Holder in an amount equal to the total Basis
Adjustments relating to such Units delivered to the Corporate Taxpayer by such Exchanging Holder in the Exchange
or the Blocker Reorganization; and
(vi) any deduction to the Corporate Taxpayer with respect to a Taxable Year in respect of Imputed Interest is
Attributable to the Person that is required to include the Imputed Interest in income (without regard to whether such
person is actually subject to Tax thereon).
“Basis Adjustment” means the adjustment to the Tax basis of a Reference Asset under Sections 732, 734(b),
707(a), 737 and/or 1012 of the Code and the Treasury Regulations promulgated thereunder (in situations where, as a
result of one or more Exchanges, OpCo becomes an entity that is disregarded as separate from its owner for U.S.
federal income tax purposes) or under Sections 734(b), 743(b) and 755 of the Code and the Treasury Regulations
promulgated thereunder (in situations where, following an Exchange, OpCo remains in existence as an entity
classified as a partnership for U.S. federal income tax purposes) and, in each case, comparable sections of state and
local tax laws, as a result of (i) an Exchange, (ii) the payments made pursuant to this Agreement in respect of such
Exchange and (iii) the payments made pursuant to this Agreement in respect of the Blocker Reorganization. For the
avoidance of doubt, the amount of any Basis Adjustment resulting from an Exchange shall be determined without
regard to any Pre-Exchange Transfer and as if any such Pre-Exchange Transfer had not occurred. The amount of any
Basis Adjustment shall be determined using the Market Value of the Units that are the subject of the Exchange at the
time of the Exchange.
“Basis Schedule” has the meaning set forth in Section 2.2.
“Blended S/L Rate” means, with respect to any Taxable Year, the sum of the apportionment-weighted
effective rates of tax imposed on the aggregate net income of the Corporate Taxpayer in each U.S. state and local
jurisdiction in which the Corporate Taxpayer files Tax Returns for such Taxable Year, with the maximum effective
rate in any state or local jurisdiction being equal to the product of (i) the apportionment factor on the income or
franchise Tax Return in such jurisdiction for such Taxable Year and (ii) the maximum applicable corporate income
tax rate in effect in such jurisdiction in such Taxable Year. As an illustration of the calculation of Blended S/L Rate
for a Taxable Year, if the Corporate Taxpayer solely files Tax Returns in State 1 and State 2 in a Taxable Year, the
maximum applicable corporate income tax rates in effect in such states in such Taxable Year are 6.5% and 5.5%,
respectively, and the apportionment factors for such states in such Taxable Year are 60% and 40%, respectively,
then the Blended S/L Rate for such Taxable Year is equal to 6.10% (i.e., the sum of (a) 6.5% multiplied by 60%,
plus (b) 5.5% multiplied by 40%).
“Blockers” means collectively, the Olympus Blocker and the LFM Blocker.
“Blocker 743(b) Adjustment” means the adjustments, existing as of the close of the IPO Date (as determined
based on the interim closing of the books of OpCo as of the close of the IPO Date), to the Tax basis of the Reference
Assets under Section 743(b) of the Code that are attributable to the Units held by each Blocker.
“Blocker Attributes” means, without duplication, the net operating losses, capital losses, research and
development credits, foreign tax credits, excess Section 163(j) limitation carryforwards, charitable deductions and
any Tax attributes (other than capitalized debt issuance costs) that the Corporate Taxpayer is entitled to utilize as a
result of the Blocker Reorganization that relate to periods (or portions thereof) prior to the Blocker Reorganization;
provided however, that in order to determine whether any such Tax attribute is a Blocker Attribute, the Taxable Year
of the Corporate Taxpayer that includes the effective date of the Blocker Reorganization shall be deemed to end as
of the close of such effective date.
“Blocker Transferred Basis” means the Tax basis (including any Blocker 743(b) Adjustments) of any
Reference Asset that is (i) amortizable under Section 197 of the Code, (ii) depreciable under Section 168 of the Code
for U.S. federal income Tax purposes or (iii) otherwise reportable as amortizable or depreciable on IRS Form 4562
for U.S. federal income Tax purposes relating to the units transferred from each Blocker to the Corporate Taxpayer
and determined as of the time of the Blocker Reorganization; provided that, any Tax basis included in the IPO Basis
and Attributable to the applicable Blocker Shareholders (with respect to Units acquired in the Blocker
Reorganization) shall be excluded from the determination of the Blocker Transferred Basis to the extent necessary to
avoid double counting.
“Board” means the Board of Directors of the Corporate Taxpayer.
“Business Day” means any day except a Saturday, a Sunday and any other day on which commercial banks
are required or authorized to close in the [State of New York].
“Change of Control” means the occurrence of any one of the following events:
(i) a merger, reorganization, consolidation or similar form of business transaction (or series of related
transactions) directly involving the Corporate Taxpayer or indirectly involving the Corporate Taxpayer through one
or more intermediaries unless, immediately following such transaction (or series of related transactions), more than
50% of the voting power of the then outstanding voting stock or other equity securities of the Corporate Taxpayer
resulting from the consummation of such transaction (including any parent or ultimate parent corporation of such
Person that as a result of such transaction owns directly or indirectly the Corporate Taxpayer and all or substantially
all of the Corporate Taxpayer’s assets) is held by the then-existing equityholders of the Corporate Taxpayer
(determined immediately prior to such transaction and related transactions);
(ii) a transaction (or series of related transactions) in which the Corporate Taxpayer, directly or indirectly,
sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of its direct or indirect assets
to another Person other than an Affiliate;
(iii) a transaction (or series of related transactions) in which there is an acquisition of control of the Corporate
Taxpayer by a Person or group of Persons (excluding (x) any “person” or “group” who, on IPO Date, is the
beneficial owner of securities of the Corporate Taxpayer representing more than 50% of the combined voting power
of the Corporate Taxpayer’s then outstanding voting securities or (y) any “group” formed after the IPO that includes
members who collectively, as of the IPO Date, are the beneficial owners of securities of the Corporate Taxpayer
representing more than 50% of the combined voting power of the Corporate Taxpayer’s then outstanding voting
securities). For purposes of this definition, the term “control” shall mean the possession, directly or indirectly, of the
power to either (A) vote more than 50% of the securities having ordinary voting power for the election of directors
(or comparable positions in the case of partnerships and limited liability companies), or (B) direct or cause the
direction of the management and policies of such Person, whether by contract or otherwise (for the avoidance of
doubt, consent rights do not constitute “control” for the purpose of this definition); or
(iv) the liquidation or dissolution of the Corporate Taxpayer.
Notwithstanding the foregoing, a “Change of Control” shall be deemed not to have occurred (a) by virtue of
the consummation of any transaction or series of integrated transactions immediately following which the record
holders of the shares of the Corporate Taxpayer immediately prior to such transaction or series of transactions
continue to have substantially the same proportionate ownership in, and voting control over, and own substantially
all of the shares of, an entity which owns, directly or indirectly, all or substantially all of the assets of the Corporate
Taxpayer immediately following such transaction or series of transactions; or (b) if the Rights Holder Representative
agrees in writing to elect for a “Change of Control” to not have occurred upon the occurrence of any transaction,
series of related transactions or any other occurrence that may otherwise qualify as a “Change of Control”.
“Class A Shares” means shares of Class A Common Stock of PubCo, par value $0.0001 per share.
“Class B Shares” means shares of Class B Common Stock of PubCo, par value $0.0001 per share.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Common Stock” means Class A Shares and Class B Shares.
“Company” has the meaning set forth in the Preamble.
“Corporate Taxpayer” means PubCo and any company that is a member of any consolidated Tax Return of
which PubCo (or any of its successors) is a member, where appropriate.
“Cumulative Net Realized Tax Benefit” for a Taxable Year means the cumulative amount of Realized Tax
Benefits for all Taxable Years of the Corporate Taxpayer, up to and including such Taxable Year, reduced, but not
below zero, by the cumulative amount of Realized Tax Detriment for the same period. The Realized Tax Benefit and
Realized Tax Detriment for each Taxable Year shall be determined based on the most recent Tax Benefit Schedules
or Amended Schedules, if any, in existence at the time of such determination; provided, that, for the avoidance of
doubt, the computation of the Cumulative Net Realized Tax Benefit shall be adjusted to reflect any applicable
Determination with respect to any Realized Tax Benefits and/or Realized Tax Detriments.
“Default Rate” means a per annum rate of SOFR plus 500 basis points.
“Determination” shall have the meaning ascribed to such term in Code Section 1313(a) or a similar
applicable provision of state, or local income tax law or any other event (including the execution of IRS Form 870-
AD) that finally and conclusively establishes the amount of any liability for tax.
“Early Termination Date” means the date of an Early Termination Notice for purposes of determining the
Early Termination Payment.
“Early Termination Event” means any event or circumstance (or group of events or circumstances) giving
rise to an Early Termination Payment pursuant to Section 4.1(b), (c) or (d).
“Early Termination Notice” has the meaning set forth in Section 4.1(b).
“Early Termination Payment” has the meaning set forth in Section 4.2(b).
“Early Termination Rate” means the lesser of (i) 6.5% per annum, compounded annually, and (ii) a per
annum rate of SOFR plus 100 basis points.
“Early Termination Schedule” has the meaning set forth in Section 4.1(b).
“Exchange” has the meaning set forth in the Recitals of this Agreement.
“Exchange Agreement” means that certain Exchange Agreement, dated the date hereof, by and among the
Corporate Taxpayer, OpCo and Investment Holdings.
“Exchange Transferred Basis” means the Tax basis of any Reference Asset that is (i) amortizable under
Section 197 of the Code, (ii) depreciable under Section 168 of the Code or (iii) otherwise reportable as amortizable
or depreciable on IRS Form 4562 for U.S. federal income Tax purposes relating to the Units transferred upon an
Exchange and determined as of the time of such Exchange; provided that, any Tax basis included in the IPO Basis
and Attributable to Exchanging Holders (with respect to the Units subject to the Exchange Agreement) shall be
excluded from the determination of the Exchange Transferred Basis to the extent necessary to avoid double
counting.
“Exchange Date” means the date of any Exchange.
“Exchanging Holder” means any Rights Holder that holds and/or has held Units that are subject to the terms
of the Exchange Agreement.
“Expert” has the meaning set forth in Section 7.10.
“Hypothetical Tax Liability” means, with respect to any Taxable Year, the sum, without duplication, of
(A)(i) the hypothetical liability of the Corporate Taxpayer for U.S. federal income Taxes and (ii) the portion of any
liability for U.S. federal income Taxes imposed directly on OpCo (or OpCo’s Subsidiaries or other Persons in which
OpCo owns a direct or indirect equity interest) under Section 6225 or any similar provision of the Code and any
state and local Taxes imposed directly on OpCo (or OpCo’s applicable Subsidiaries or other Persons in which OpCo
owns a direct or indirect equity interest), and (B) the product of (i) the U.S. federal taxable income for such Taxable
Year reported on the Corporate Taxpayer’s IRS Form 1120 (or any successor form) and (ii) the Blended S/L Rate, in
each case, that is allocable to the Corporate Taxpayer under Section 704 of the Code or otherwise attributable to the
Corporate Taxpayer in accordance with the OpCo Agreement, in each case, calculated in accordance with the
definition of Actual Tax Liability using the same methods, elections, conventions, and similar practices used on the
relevant Tax Return, but (a) using the Non-Unit Transferred Basis as reflected on the Basis Schedule including
amendments thereto for the Taxable Year, (b) without taking into account Blocker Attributes, if any, (c) using the
Non-Blocker Transferred Basis as reflected on the Basis Schedule, including amendments thereto for the Taxable
Year, (d) using the Non-IPO Basis as reflected on the Basis Schedule including amendments thereto for the Taxable
Year, (e) using the Non-Exchange Transferred Basis as reflected on the Basis Schedule including amendments
thereto for the Taxable Year, (f) using the Non-Stepped Up Tax Basis as reflected on the Basis Schedule including
amendments thereto for the Taxable Year and (g) excluding any deduction attributable to Imputed Interest
attributable to any payment made under this Agreement for the Taxable Year. For the avoidance of doubt,
Hypothetical Tax Liability shall be determined without taking into account the carryover or carryback of any Tax
item (or portions thereof) that is attributable to a Tax Attribute as applicable. For the avoidance of doubt, the basis of
the Reference Assets in the aggregate for purposes of determining the Hypothetical Tax Liability can never be less
than zero.
“Imputed Interest” means any interest imputed under Sections 1272, 1274, or 483 or other provision of the
Code and any similar provision of state and local Tax law with respect to the Corporate Taxpayer’s payment
obligations in respect of the Corporate Taxpayer under this Agreement.
“Independent Directors” means the members of the Board of Directors of the Corporate Taxpayer who are
“independent” under the standards of the principal U.S. securities exchange on which the Common Stock is traded
or quoted.
“Intended Tax Treatment” has the meaning set forth in Section 3.7.
“IPO” means the initial public offering of Common Stock pursuant to the registration statement on Form S-1
of PubCo.
“IPO Basis” means the Tax basis of any Reference Asset at the time of the IPO that is (i) amortizable under
Section 197 of the Code, (ii) depreciable under Section 168 of the Code or (iii) otherwise reported as amortizable or
depreciable on IRS Form 4562 for U.S. federal income Tax purposes, in each case of clauses (i) through (iii), to the
extent allocable to the Corporate Taxpayer (for the avoidance of doubt, including as a result of Section 704(c) of the
Code) as a result of its acquisition of IPO Units.
“IPO Basis Payment” means a Tax Benefit Payment attributable to IPO Basis.
“IPO Basis Percentage” means, in respect of a Rights Holder, the percentage, the numerator of which is the
number of Units (assuming that the OpCo has recapitalized into common units immediately prior to the IPO) that are
transferred (either pursuant to the Blocker Reorganization or an Exchange) by such Rights Holder to PubCo and the
denominator of which is the total Units held by Rights Holders that would have been outstanding (assuming that the
OpCo has recapitalized into common units immediately prior to the IPO) immediately prior to the IPO.
“IPO Date” means the closing date of the IPO.
“IPO Exchange” has the meaning set forth in the Recitals of this Agreement.
“IPO Units” means the Units acquired (directly or indirectly) by PubCo with the net proceeds from the IPO
(excluding any Units acquired in an Exchange).
“IRS” means the U.S. Internal Revenue Service.
“LFM Blocker” means Accelevation Roll III-B Blocker, LLC, a Delaware limited liability company.
“LFM Blocker Shareholder” means LFM Capital Partners III-B, L.P. and any successors or assigns thereof.
“Market Value” means the closing price of the Common Stock on the applicable Exchange Date on the
national securities exchange or interdealer quotation system on which such Common Stock is then traded or listed,
as reported by the Wall Street Journal; provided, that if the closing price is not reported by the Wall Street Journal
for the applicable Exchange Date, then the Market Value shall mean the closing price of the Common Stock on the
Business Day immediately preceding such Exchange Date on the national securities exchange or interdealer
quotation system on which such Common Stock is then traded or listed, as reported by the Wall Street Journal;
provided, further, that if the Common Stock is not then listed on a national securities exchange or interdealer
quotation system, the Market Value shall mean the cash consideration paid for Common Stock, or the fair market
value of the other property delivered for Common Stock, as determined by the Board in good faith.
“Net Tax Benefit” has the meaning set forth in Section 3.1(a)(ii).
“Non-Blocker Transferred Basis” means, with respect to any Reference Asset at the time of the Blocker
Reorganization that is (i) amortizable under Section 197 of the Code, (ii) depreciable under Section 168 of the Code,
(iii) otherwise reported as amortizable or depreciable on IRS Form 4562 for U.S. federal income Tax purposes, the
Tax basis (including any Blocker 743(b) Adjustments) that such Reference Asset would have had if the Blocker
Transferred Basis at the time of the Blocker Reorganization was equal to zero.
“Non-Exchange Transferred Basis” means with respect to any Reference Asset at the time of an Exchange
that is (i) amortizable under Section 197 of the Code, (ii) depreciable under Section 168 of the Code or (iii)
otherwise reported as amortizable or depreciable on IRS Form 4562 for U.S. federal income Tax purposes, the Tax
basis that such Reference Asset would have had if the Exchange Transferred Basis at the time of the IPO or
Exchange (as applicable) was equal to zero.
“Non-IPO Basis” means, with respect to any Reference Asset at the time of the OpCo Exchange or IPO
Exchange, as applicable, that is (i) amortizable under Section 197 of the Code, (ii) depreciable under Section 168 of
the Code or (iii) otherwise reported as amortizable or depreciable on IRS Form 4562 for U.S. federal income Tax
purposes, the Tax basis that such Reference Asset would have had if the IPO Basis of such Reference Asset at the
time of the IPO was equal to zero.
“Non-Stepped Up Tax Basis” means, with respect to any Reference Asset at any time, the Tax basis that
such asset would have had at such time if no Basis Adjustments had been made.
“Objection Notice” has the meaning set forth in Section 2.4(a).
“Olympus Blocker” means Olympus Accelevation Blocker LLC, a Delaware limited liability company.
“Olympus Blocker Shareholder” means Olympus Growth Fund VIII Parallel, L.P. and any successors or
assigns thereof.
“OpCo” has the meaning set forth in the Preamble.
“OpCo Agreement” means, with respect to OpCo, the [●] Amended and Restated Limited Liability
Company Agreement of OpCo, dated as of the date hereof, as such agreement may be further amended, restated,
supplemented and/or otherwise modified from time to time.
“OpCo Exchange” has the meaning set forth in the Recitals of this Agreement.
“Payment Date” means any date on which a payment is required to be made pursuant to this Agreement.
“Permitted Assignment” has the meaning set forth in Section 7.6(a).
“Person” means any natural person, sole proprietorship, partnership, trust, unincorporated association,
corporation, limited liability company, entity or governmental entity.
“Pre-Exchange Transfer” means any transfer (including upon the death of a prior holder) of, or distribution
in respect of, one or more Units (or interests in any applicable Subsidiaries of OpCo or other Persons in which OpCo
owns a direct or indirect equity interest) (i) that occurs prior to an Exchange of such Units and (ii) to which Sections
734(b) or 743(b) of the Code applies.
“Realized Tax Benefit” means, for a Taxable Year, the excess, if any, of the Hypothetical Tax Liability over
the Actual Tax Liability. If all or a portion of the Actual Tax Liability for the Taxable Year arises as a result of an
audit or similar proceeding by a Taxing Authority of any Taxable Year, such liability shall not be included in
determining the Realized Tax Benefit unless and until there has been a Determination.
“Realized Tax Detriment” means, for a Taxable Year, the excess, if any, of the Actual Tax Liability over the
Hypothetical Tax Liability. If all or a portion of the Actual Tax Liability for the Taxable Year arises as a result of an
audit or similar proceeding by a Taxing Authority of any Taxable Year, such liability shall not be included in
determining the Realized Tax Benefit unless and until there has been a Determination.
“Reconciliation Dispute” has the meaning set forth in Section 7.10.
“Reconciliation Procedures” has the meaning set forth in Section 2.4(a).
“Reference Asset” means an asset that is held by OpCo, or by any of its direct or indirect Subsidiaries treated
as a partnership or disregarded entity (but only if such indirect Subsidiaries are held only through Subsidiaries
treated as partnerships or disregarded entities) for purposes of the applicable Tax, at the time of the IPO, or an
Exchange, as relevant. A Reference Asset also includes any asset that is “substituted basis property” under Section
7701(a)(42) of the Code with respect to a Reference Asset.
“Rights Holder(s)” has the meaning set forth in the Preamble.
“Rights Holder Representative” means, initially, [Olympus Partners Investors VIII, LLC] (“Olympus”) or
its designated Affiliate unless Olympus or such designated Affiliate resigns as the Rights Holder Representative by
delivering written notice to the Corporate Taxpayer, in which case the Rights Holder Representative shall be the
Person appointed from time to time by a majority of the Rights Holders in accordance with their right to receive
Early Termination Payments hereunder.
“Schedule” means any of the following: (i) a Blocker Attribute Schedule, (ii) a Basis Schedule, (iii) a Tax
Benefit Schedule and (iv) an Early Termination Schedule, and, in each case, any amendments thereto.
“Section 734(b) Exchange” means any Exchange that results in a Basis Adjustment under Section 734(b) of
the Code.
“SOFR” means for each month (or portion thereof), the forward looking term rate based on the secured
overnight financing rate administered by the Federal Reserve Bank of New York (or a successor administrator of the
secured overnight financing rate) for a one-month period, on the date two days prior to the first day of such month,
as published on an information service as selected by the Rights Holder Representative from time to time in its
reasonable discretion, provided that if (i) adequate and reasonable means do not exist for ascertaining SOFR and
such circumstances are unlikely to be temporary or (ii) the supervisor for the administrator of SOFR or a
governmental authority having jurisdiction over the Rights Holder Representative or any member of the Corporate
Taxpayer has made a public statement identifying a specific date after which SOFR shall no longer be used for
determining interest rates for loans, then the Corporate Taxpayer or the Rights Holder Representative shall endeavor
to establish an alternate rate of interest to SOFR that gives due consideration to the then prevailing market
convention for determining a comparable rate of interest in the United States at such time, and shall enter into an
amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this
Agreement as may be applicable, provided further that the alternate rate of interest shall be no less than the interest
rate equal to SOFR of the prior month.
“Subsidiaries” means, of any Person, any corporation, association, partnership, limited liability company or
other business entity of which more than fifty percent (50%) of the voting power or equity is owned or controlled
directly or indirectly by such Person, or one (1) or more of the Subsidiaries of such Person, or a combination thereof.
“Tax Attributes” has the meaning set forth in the Recitals of this Agreement.
“Tax Benefit Payment” has the meaning set forth in Section 3.1(a)(i).
“Tax Benefit Schedule” has the meaning set forth in Section 2.2.
“Tax Claim” has the meaning set forth in Section 6.1(b).
“Tax Return” means any return, declaration, report, information returns, claims for refund, disclosures or
similar statement filed or required to be filed with respect to or in connection with taxes (including any related or
supporting schedules, attachments, statements or information filed or required to be filed with respect thereto),
including any amendments thereof and declarations of estimated tax.
“Taxable Year” means a taxable year of the Corporate Taxpayer as defined in Section 441(b) of the Code or
comparable section of U.S. state, or local income tax law (and which may include a period of more or less than
twelve (12) months for which a Tax Return is made), in each case, that ends on or after the IPO Date.
“Taxes” means any and all U.S. federal, state, local and foreign taxes, assessments or similar charges that are
based on or measured with respect to net income or profits, and any interest related to such Tax.
“Taxing Authority” means any domestic, federal, national, state, county or municipal or other local
government, any subdivision, agency, commission or authority thereof, or any quasi-governmental body, in each
case, exercising any taxing authority or any other authority or jurisdiction of any kind in relation to tax matters.
“Valuation Assumptions” means, as of an Early Termination Date, the assumptions that in each Taxable
Year ending on or after such Early Termination Date:
(i) the Corporate Taxpayer will have taxable income sufficient to fully utilize the Tax items arising from the
Tax Attributes (other than any items addressed in clause (ii) below) during such Taxable Year or future Taxable
Years (including, for the avoidance of doubt, Basis Adjustments and Imputed Interest that would result from future
payments made under this Agreement that would be paid in accordance with the Valuation Assumptions) in which
such deductions would become available;
(ii) any Blocker Attributes or loss carryovers generated by deductions arising from any Tax Attributes that are
available as of the date of the Early Termination Date will be used by the Corporate Taxpayer on a pro rata basis
from the date of such Early Termination Date through the earlier of (x) the scheduled expiration date under
applicable Tax law of such Blocker Attributes or loss carryovers or (y) the fifth (5th) anniversary of the Early
Termination Date;
(iii) the U.S. federal, state and local income Tax rates that will be in effect for each such Taxable Year will be
those specified for each such Taxable Year by the Code and other law as in effect on the Early Termination Date
(except to the extent any change to such Tax rates for such Taxable Year have already been enacted into law) and
the Blended S/L Rate will be calculated based on such rates and the apportionment factor applicable in the prior
Taxable Year;
(iv) any non-amortizable assets (other than equity interest in any Subsidiary that is treated as an association
taxable as a corporation for U.S. federal income Tax purposes) will be disposed of on the fifteenth (15th)
anniversary of the applicable Exchange or deemed exchange pursuant to clause (v) (in the case of Basis
Adjustments) and any cash equivalents will be disposed of twelve (12) months following the Early Termination
Date; provided, that in the event of a Change of Control, such non-amortizable assets shall be deemed disposed of at
the time of sale (if applicable) of the relevant asset in the Change of Control (if earlier than such fifteenth (15th)
anniversary) (other than equity interest in any subsidiary that is treated as an association taxable as a corporation for
U.S. federal income Tax purposes);
(v) if, at the Early Termination Date, there are Units of OpCo that have not been Exchanged, then each such
unit, shall be deemed Exchanged for the Market Value of such Unit;
(vi) with respect to Taxable Years where the Payment Date has passed, any unpaid Tax Benefit Payments and
any applicable interest will be paid on the Early Termination Date at the Default Rate; and
(vii) each Tax Benefit Payment for the relevant Taxable Year will be due and payable and satisfied on the due
date (without extensions) under applicable law as of the Early Termination Date for filing of IRS Form 1120 (or any
successor form) of the Corporate Taxpayer.
ARTICLE II
DETERMINATION OF REALIZED TAX BENEFIT
Section 2.1 754 Election. The Corporate Taxpayer shall cause OpCo and each of its applicable direct or
indirect Subsidiaries that is treated as a partnership for U.S. federal income Tax purposes to have in effect an
election under Section 754 of the Code (or any similar provisions of applicable state, local or non-U.S. tax law) for
each Taxable Year. The Corporate Taxpayer shall use commercially reasonable efforts to cause each Person in
which OpCo owns a direct or indirect equity interest (other than a Subsidiary) that is so treated as a partnership for
U.S. federal income Tax purposes to have in effect such an election for each Taxable Year.
Section 2.2 Basis Schedule. Within ninety (90) calendar days after the due date (including extensions) of IRS
Form 1120 (or any successor form) of the Corporate Taxpayer for each relevant Taxable Year, the Corporate
Taxpayer shall deliver to the Rights Holder Representative, a schedule (a “Basis Schedule”) that shows, in
reasonable detail necessary to perform the calculations required by this Agreement, (a) the Unit Transferred Basis of
each Reference Asset, if any, (b) the Blocker Attributes, if any, (c) the Blocker Transferred Basis of each Reference
Asset, if any, (d) the IPO Basis of each Reference Asset, if any, (e) the Exchange Transferred Basis of each
Reference Asset, if any, (f) the Basis Adjustment with respect to the Reference Assets in respect of each Rights
Holder as a result of the Exchanges effected in such Taxable Year or any prior Taxable Year by such Rights Holder,
if any, (g) the Non-Stepped Up Tax Basis of the Reference Assets in respect of such Rights Holder as of each
applicable Exchange Date, if any, (h) the period (or periods) over which the Reference Assets in respect of such
Rights Holder are amortizable and/or depreciable and (i) the period (or periods) over which the Unit Transferred
Basis, the Blocker Attributes, the Blocker Transferred Basis, the IPO Basis, the Exchange Transferred Basis and
each Basis Adjustment is amortizable and/or depreciable. A Basis Schedule will become final and binding on the
parties pursuant to the procedures set forth in Section 2.4(a) and may be amended by the parties pursuant to the
procedures set forth in Section 2.4(b) (subject to the procedures set forth in Section 2.4(b)). All costs and expenses
incurred in connection with the provision and preparation of the Blocker Attribute Schedule, the Basis Schedules
and the Tax Benefit Schedules for each Rights Holder in compliance with this Agreement shall be borne by the
Corporate Taxpayer.
Section 2.3 Tax Benefit Schedule.
(a) Tax Benefit Schedule. Within ninety (90) calendar days after the due date (including extensions) of
IRS Form 1120 (or any successor form) of the Corporate Taxpayer for any Taxable Year, the Corporate Taxpayer
shall provide to the Rights Holder Representative a schedule showing, in reasonable detail, the calculation of the
Realized Tax Benefit and Tax Benefit Payment or the Realized Tax Detriment (and lack of a Tax Benefit Payment),
as applicable, Attributable to each Rights Holder for such Taxable Year (a “Tax Benefit Schedule”). Each Tax
Benefit Schedule will become final as provided in Section 2.4(a) and may be amended as provided in Section 2.4(b)
(subject to the procedures set forth in Section 2.4(b)).
(b) Applicable Principles.
(i) General. The Realized Tax Benefit (or the Realized Tax Detriment) for each Taxable Year is intended to
measure the decrease (or increase) in the actual liability for Taxes payable or economically borne by the Corporate
Taxpayer for such Taxable Year attributable to the Tax Attributes, determined using a “with and without”
methodology. Carryovers or carrybacks of any Tax item attributable to any of the Tax Attributes shall be considered
to be subject to the rules of the Code and the Treasury Regulations or the appropriate provisions of U.S. Tax law, as
applicable, governing the use, limitation and expiration of carryovers or carrybacks of the relevant type, except as
otherwise provided by this Agreement. If a carryover or carryback of any Tax item includes a portion that is
attributable to any Tax Attribute and another portion that is not, such portions shall be considered to be used in
accordance with the “with and without” methodology. The Actual Tax Liability shall be calculated taking into
account the Intended Tax Treatment.
(ii) Applicable Principles of Section 734(b) Exchanges. Notwithstanding any provisions to the contrary in this
Agreement the Intended Tax Treatment shall not be required to apply to payments hereunder to an Exchanging
Holder in respect of a Section 734(b) Exchange by such Exchanging Holder. For the avoidance of doubt, payments
made under this Agreement relating to a Section 734(b) Exchange shall not be treated as resulting in a Basis
Adjustment to the extent such payments are treated as Imputed Interest. The parties intend that (A) an Exchanging
Holder that has made a Section 734(b) Exchange shall, with respect to the Basis Adjustment resulting from such
Section 734(b) Exchange or any payments hereunder in respect of such Section 734(b) Exchange, be entitled to Tax
Benefit Payments attributable to such Basis Adjustments only to the extent such Basis Adjustments are allocable to
the Corporate Taxpayer following such Section 734(b) Exchange (without taking into account any concurrent or
subsequent Exchanges) and (B) if, as a result of a subsequent Exchange, an increased portion of the Basis
Adjustments resulting from such Section 734(b) Exchange or any payments hereunder in respect of such Section
734(b) Exchange becomes allocable to the Corporate Taxpayer, then the Exchanging Holder that makes such
subsequent Exchange shall be entitled to a Tax Benefit Payment calculated in respect of such increased portion.
Section 2.4 Procedures, Amendments.
(a) Procedure. Each time the Corporate Taxpayer delivers to the Rights Holder Representative an
applicable Schedule under this Agreement, including any Amended Schedule delivered pursuant to Section 2.4(b),
any Early Termination Schedule or any amended Early Termination Schedule, the Corporate Taxpayer shall also (i)
deliver to the Rights Holder Representative supporting schedules and work papers, as determined by the Corporate
Taxpayer or as reasonably requested by the Rights Holder Representative, that provide a reasonable level of detail
regarding the data and calculations that were relevant for purposes of preparing the Schedule and (ii) allow the
Rights Holder Representative reasonable access at no cost to the appropriate representatives at the Corporate
Taxpayer in connection with a review of such Schedule. Without limiting the generality of the preceding sentence,
the Corporate Taxpayer shall ensure that any Tax Benefit Schedule or Early Termination Schedule that is delivered
to the Rights Holder Representative, along with any supporting schedules, valuation reports and work papers,
provides a reasonably detailed presentation of the calculation of the Actual Tax Liability (the “with” calculation) and
the Hypothetical Tax Liability (the “without” calculation) and identifies any assumptions or operating procedures or
principles that were used for purposes of such calculations. An applicable Schedule or amendment thereto shall
become final and binding on all parties unless the Rights Holder Representative, within thirty (30) calendar days
after receiving any Schedule or amendment thereto, provides the Corporate Taxpayer with a notice of an objection to
such Schedule or amendment thereto (“Objection Notice”) or such earlier date as the Rights Holder Representative
provides written notice to the Corporate Taxpayer that it has no objections to the Schedule. If the Corporate
Taxpayer and Rights Holder Representative, for any reason, are unable to successfully resolve the issues raised in
any Objection Notice within thirty (30) calendar days after the Rights Holder Representative gives the Corporate
Taxpayer such Objection Notice, the Corporate Taxpayer and the Rights Holder Representative shall employ the
reconciliation procedures described in Section 7.10 (the “Reconciliation Procedures”), in which case such
Schedule or Amended Schedule shall become binding in accordance with Section 7.10.
(b) Amended Schedule. The applicable Schedule for any Taxable Year may be amended from time to
time by the Corporate Taxpayer (i) in connection with a Determination affecting such Schedule, (ii) to correct
material inaccuracies in the Schedule, including those identified as a result of the receipt of additional factual
information relating to a Taxable Year after the date the Schedule was provided to the Rights Holder Representative,
(iii) to comply with an Expert’s determination under the Reconciliation Procedures, (iv) to reflect a material change
in the Realized Tax Benefit or the Realized Tax Detriment for such Taxable Year attributable to a carryback or
carryforward of a loss or other tax item to such Taxable Year or (v) to reflect a material change in the Realized Tax
Benefit or Realized Tax Detriment for such Taxable Year attributable to an amended Tax Return filed for such
Taxable Year (any such Schedule, an “Amended Schedule”); provided, however, that an amendment under clause
(i) attributable to an audit of a Tax Return by the Corporate Taxpayer, OpCo or Subsidiary thereof shall not be made
on an Amended Schedule unless and until there has been a Determination with respect to such change. The
Corporate Taxpayer shall provide an Amended Schedule to the Rights Holder Representative within thirty (30)
calendar days of the occurrence of an event referred to in clauses (i) through (v) of the preceding sentence, and any
such Amended Schedule shall be subject to the approval procedures described in Section 2.4(a).
ARTICLE III
TAX BENEFIT PAYMENTS
Section 3.1 Payments; Timing of Payments. Within five (5) Business Days of a Tax Benefit Schedule
becoming final in accordance with Section 2.4(a) and Section 7.10, if applicable, the Corporate Taxpayer shall pay
to each Rights Holder for such Taxable Year the Tax Benefit Payment determined pursuant to Section 3.1(a) that is
Attributable to such Rights Holder. Each such Tax Benefit Payment shall be made by wire transfer of immediately
available funds to the bank account previously designated by the applicable Rights Holder to the Corporate
Taxpayer, or as otherwise agreed by the Corporate Taxpayer and such Rights Holder. For the avoidance of doubt, (a)
no Tax Benefit Payment shall be made in respect of estimated tax payments and (b) the payments provided for
pursuant to the above sentence shall be computed separately for each Rights Holder. No Rights Holder shall be
required under any circumstances to make a payment or return a payment to the Corporate Taxpayer in respect of
any portion of any Tax Benefit Payment previously paid by the Corporate Taxpayer to such Rights Holder
(including any portion of any Early Termination Payment).
(a) For purposes of this Agreement:
(i) A “Tax Benefit Payment” in respect of a Rights Holder for a Taxable Year means an amount, not less
than zero, equal to the sum of (A) the Net Tax Benefit that is Attributable to such Rights Holder and (B) the Accrued
Amount with respect thereto. For the avoidance of doubt, for Tax purposes, the Accrued Amount shall not be treated
as interest, but instead, shall be treated as additional consideration in the applicable transaction, unless otherwise
required by law.
(ii) Subject to Section 3.4, the “Net Tax Benefit” for a Taxable Year shall be an amount equal to the excess,
if any, of 85% of the Cumulative Net Realized Tax Benefit as of the end of such Taxable Year, over the total amount
of payments previously made under the first sentence of Section 3.1(a) (excluding payments attributable to Accrued
Amounts); provided, that if there is no such excess (or if a deficit exists), no Rights Holder shall be required to make
a payment (or return a payment) to the Corporate Taxpayer in respect of any portion of any Tax Benefit Payment
previously made by the Corporate Taxpayer to such Rights Holder.
(iii) The “Accrued Amount” with respect to any Net Tax Benefit shall equal an amount determined in the
same manner as interest on the Net Tax Benefit calculated at the Agreed Rate from the due date (without extensions)
for filing IRS Form 1120 (or any successor form) of the Corporate Taxpayer with respect to Taxes for such Taxable
Year until the payment date under Section 3.1(a).
(b) PubCo, OpCo and the Rights Holders hereby acknowledge and agree that, as of the date of the
Agreement and as of the date of any future Exchange that may be subject to this Agreement, the aggregate value of
the Tax Benefit Payments cannot be reasonably ascertained for U.S. federal income and other applicable tax
purposes. Notwithstanding anything herein to the contrary, unless otherwise specified by a Rights Holder in a
written notice to PubCo, the aggregate Tax Benefit Payments herein (other than amounts accounted for as interest
under the Code) with respect to any Exchange by a Rights Holder, shall not exceed [100%] of the fair market value
of the consideration received (whether as a cash payment, as Class A shares or as other consideration, but excluding,
for the avoidance of doubt, the fair market value of the Tax Benefit Payments hereunder) in such Exchange or other
applicable transaction (the “Exchange Consideration”) such that the stated maximum selling price (within the
meaning of Treasury Regulation 15A.453-1(c)(2)) is equal to [200%] of the Exchange Consideration.
Section 3.2 No Duplicative Payments. It is intended that the provisions of this Agreement will not result in
duplicative payment of any amount (including interest) required under this Agreement. It is also intended that the
provisions of this Agreement will result in 85% of the Cumulative Net Realized Tax Benefits of the Corporate
Taxpayer, and the Accrued Amounts thereon, being paid to the Rights Holders pursuant to this Agreement. The
provisions of this Agreement shall be construed in the appropriate manner so that these fundamental results are
achieved.
Section 3.3 Payments in United States Dollars. All payments to be made under this Agreement shall be
made in United States dollars.
Section 3.4 Pro Rata Payments. Notwithstanding anything in Section 3.1 to the contrary, to the extent that
the aggregate potential Realized Tax Benefit of the Corporate Taxpayer with respect to the Tax Attributes is limited
in a particular Taxable Year because the Corporate Taxpayer does not have sufficient taxable income, the Net Tax
Benefit for that Taxable Year shall be allocated among all parties then-eligible to receive Tax Benefit Payments
under this Agreement in proportion to the amounts of Net Tax Benefit for that Taxable Year, respectively, that
would have been Attributable to each Rights Holder if the Corporate Taxpayer had sufficient taxable income so that
there were no such limitation.
Section 3.5 Payment Ordering. If for any reason the Corporate Taxpayer does not fully satisfy its payment
obligations to make all Tax Benefit Payments due under this Agreement in respect of a particular Taxable Year, then
the Corporate Taxpayer and the Rights Holders agree that (a) Tax Benefit Payments for such Taxable Year shall be
allocated to all parties eligible to receive Tax Benefit Payments under this Agreement in such Taxable Year in
proportion to the amounts of Tax Benefit Payments, respectively, that would have been made to each Rights Holder
if the Corporate Taxpayer had sufficient cash available to make such Tax Benefit Payments and (b) no Tax Benefit
Payments shall be made in respect of any Taxable Year until all Tax Benefit Payments to all Rights Holders in
respect of all prior Taxable Years have been made in full.
Section 3.6 IPO Basis Exchange. Notwithstanding anything to the contrary herein, any and all Tax Benefit
Payments that would otherwise be made pursuant to this Agreement to the Exchanging Holder with respect to any
IPO Basis shall be held in cash by the Corporate Taxpayer for the benefit of the Exchanging Holder (without any
interest thereon) (such withheld amount, the “Accrued Payment”). Promptly following the time the Exchanging
Holder has exchanged Units, such Accrued Payment Attributable to Exchanging Holder with respect to the
exchanged Units shall be paid by the Corporate Taxpayer to the Exchanging Holder.
Section 3.7 Intended Tax Treatment. The parties hereto agree that it is their intention, for U.S. federal (and
applicable state and local) income tax purposes, that:
(i) A Tax Benefit Payment paid to a Rights Holder that is an Exchanging Holder in respect of a Unit that is
subject to the Exchange Agreement shall be treated as in part additional purchase price for such Unit and in part
Imputed Interest;
(ii) A Tax Benefit Payment (other than Imputed Interest thereon) paid to PubCo Holdings (on behalf of any
Blocker Shareholder) in respect of a unit that was acquired by PubCo pursuant to the Blocker Reorganization shall
be treated as nonqualifying property or money for purposes of Section 351 and/or Section 356 of the Code received
in the Blocker Reorganization;
(iii) each Exchange (including the OpCo Exchange or IPO Exchange) shall give rise to Basis Adjustments;
(iv) all Tax Benefit Payments (other than Imputed Interest thereon) attributable to the Exchange Transferred
Basis, Basis Adjustments or IPO Basis (with respect to an IPO Basis Payment received as a result of an Exchange)
shall be treated as subsequent upward purchase price adjustments with respect to the Units exchanged in the
applicable Exchange that have the effect of creating additional Basis Adjustments to Reference Assets in the year of
payment;
(v) all Tax Benefit Payments (other than Imputed Interest thereon) attributable to the Blocker Transferred
Basis or Blocker Attributes or IPO Basis (with respect to an IPO Basis Payment received in respect of the Blocker
Reorganization) shall be treated as having the effect of creating additional Basis Adjustments to the Reference
Assets in the year of payment; and
(vi) the portion of the Tax Benefit Payment that must be accounted for as Imputed Interest shall be deductible
by the Corporate Taxpayer (collectively, the “Intended Tax Treatment”).
ARTICLE IV
TERMINATION
Section 4.1 Termination of Agreement; Elective Early Termination; Automatic Early Termination.
(a) In General. This Agreement shall terminate at the time that all Tax Benefit Payments have been
made to the Rights Holders under this Agreement.
(b) Elective Early Termination. Notwithstanding Section 4.1(a), with the written approval of a majority
of the Independent Directors, the Corporate Taxpayer may terminate this Agreement by paying to the Rights
Holders the Early Termination Payment together with the other amounts required by this paragraph. If the Corporate
Taxpayer chooses to exercise its right of early termination pursuant to this Section 4.1(b), the Corporate Taxpayer
shall deliver to the Rights Holder Representative irrevocable written notice of such decision to exercise such right
(“Early Termination Notice”) and a schedule (the “Early Termination Schedule”) showing in reasonable detail
the calculation of the Early Termination Payment. The Early Termination Schedule shall become final and binding
on all parties in accordance with the procedures set forth Section 2.4(a). Upon finalization of the Early Termination
Schedule, the Corporate Taxpayer shall pay to each Rights Holder at the time set forth in Section 4.2, such Rights
Holder’s Attributable portion of (1) the Early Termination Payment, (2) the Tax Benefit Payment due and payable
but unpaid as of the date of the Early Termination Notice and (3) the Tax Benefit Payment due for a Taxable Year
ending prior to, with or including the date of the Early Termination Notice (except to the extent that such amount is
included in the Early Termination Payment).
(c) Acceleration Upon Material Breach of this Agreement. Subject to Section 5.2, in the event that the
Corporate Taxpayer breaches any of its material obligations under this Agreement, whether as a result of a failure to
make a payment when due, failure to honor any other material obligations required hereunder or by operation of law
as a result of the rejection of this Agreement in a case commenced under bankruptcy laws or otherwise, then all
obligations hereunder shall be accelerated, the Corporate Taxpayer shall be deemed to have delivered an Early
Termination Notice on the first date of such breach and the Corporate Taxpayer shall pay to the Rights Holders at
the time specified in Section 4.2, such Rights Holder’s Attributable portion of (1) the Early Termination Payment,
(2) any Tax Benefit Payment that is due and payable but unpaid as of such date and (3) any Tax Benefit Payment
due for the Taxable Year ending prior to, with or including such date (except to the extent that such amount is
included in the Early Termination Payment). The parties agree that the failure to make any payment due pursuant to
this Agreement within three (3) months of the date such payment is due shall be deemed to be a breach of a material
obligation under this Agreement for all purposes of this Agreement.
(d) Acceleration Upon Change of Control. In the event of a Change of Control, all obligations
hereunder shall be accelerated. In such event, the Corporate Taxpayer shall be deemed to have delivered an Early
Termination Notice on the date of such Change of Control and the Corporate Taxpayer shall pay to the Rights
Holders at the time specified in Section 4.2 (1) the Early Termination Payment, (2) any Tax Benefit Payment that is
due and payable but unpaid as of such date and (3) any Tax Benefit Payment due for the Taxable Year ending prior
to, with or including such date (except to the extent that such amount is included in the Early Termination Payment).
The Corporate Taxpayer shall use its reasonable best efforts to provide to the Rights Holder Representative an Early
Termination Schedule showing in reasonable detail the calculation of the Early Termination Payment with respect to
an expected Change of Control as far in advance as is reasonably practicable of such Change of Control (but no
more than thirty (30) Business Days in advance) so as to enable the calculation of the Early Termination Payment to
be finalized pursuant to Section 2.4(a) prior to the date of the effective date of the Change of Control.
Notwithstanding the foregoing, where the parties anticipate a Change of Control but are not certain of the date on
which such Change of Control will occur, the Corporate Taxpayer and the Rights Holder Representative may agree
to base the calculations contemplated by this Section 4.1(d) on a date other than the closing date of the Change of
Control.
(e) For the avoidance of doubt, this Section 4.1 shall not prevent the Corporate Taxpayer and the
Rights Holder Representative from negotiating a termination of the Rights Holders’ rights under this Agreement in
exchange for a payment that is different than the Early Termination Payment and which is binding on all Rights
Holders.
Section 4.2 Payment upon Early Termination Event.
(a) Any amount required to be paid pursuant to Section 4.1(b) or Section 4.1(c) shall be paid within
five (5) Business Days after the corresponding Early Termination Schedule is finalized pursuant to Section 2.4. Any
amount required to be paid pursuant to Section 4.1(d) shall be paid on the date of the closing of the Change of
Control. All such payments shall be made by wire transfer of immediately available funds to a bank account
designated by the Rights Holders, or as otherwise agreed by the Corporate Taxpayer and the Rights Holder
Representative.
(b) The “Early Termination Payment” with respect to an Early Termination Event shall equal the
present value as of the corresponding Early Termination Date, discounted at the Early Termination Rate as of such
date, of all Tax Benefit Payments that would be required to be paid by the Corporate Taxpayer to the Rights Holders
beginning from the Early Termination Date, calculated by applying the Valuation Assumptions.
ARTICLE V
PAYMENT MECHANICS AND COMPLIANCE WITH INDEBTEDNESS
Section 5.1 Late Payments. The amount of all or any portion of any Tax Benefit Payment or Early
Termination Payment (or other payment pursuant to Section 4.1 or Section 4.2) not made by the Corporate Taxpayer
to the Rights Holders when due under the terms of this Agreement (other than pursuant to Section 5.2) shall accrue
interest at the Default Rate commencing from the date on which such payment was due and payable.
Section 5.2 Compliance with Indebtedness. Notwithstanding anything to the contrary herein, if, at the time
any amounts become due and payable hereunder, the Corporate Taxpayer is not permitted, pursuant to the terms of
the Corporate Taxpayer’s debt financing arrangements, to pay such amounts, or the Corporate Taxpayer’s
Subsidiaries are not permitted, pursuant to the terms of the Corporate Taxpayer’s (or the applicable Subsidiary’s)
debt financing arrangements, to make dividends, loans or other transfers to the Corporate Taxpayer to allow the
Corporate Taxpayer to pay such amounts, then the Corporate Taxpayer shall by notice to the Rights Holder
Representative be permitted to defer the payment of such amounts to the minimum extent necessary until each
condition rendering the payment of such amounts impermissible as described in this Section 5.2 is no longer
applicable. At the time such condition is no longer applicable and no other such condition exists, such amounts
(together with accrued and unpaid interest thereon as described in this Section 5.2) shall become due and payable
immediately. If the Corporate Taxpayer defers the payment of any such amounts pursuant to the first sentence in this
Section 5.2, such amounts shall accrue interest at the Agreed Rate from the date that such amounts originally
became due and owing pursuant to the terms hereof to the date that such amounts are paid. For the avoidance of
doubt, any payment not made due to the preceding sentence shall not be deemed a breach under Section 4.1(c) of
this Agreement unless and until such payment remains unpaid thirty (30) calendar days after the date on which such
condition described in this Section 5.2 is no longer applicable. The Corporate Taxpayer agrees to use commercially
reasonable efforts to cure any condition rendering the payment of such amounts impermissible as described in this
Section 5.2 and to cause the Corporate Taxpayer and its Subsidiaries to pay dividends or make loans (including, to
the extent commercially reasonable, granting access to any revolving credit facility or other source of liquidity to
facilitate the payment of such dividends or loans), to the extent consistent with the terms of their outstanding
indebtedness and any applicable law, to the extent necessary to make payments hereunder.
Section 5.3 Conflicting Agreements. Unless the Rights Holder Representative otherwise agrees in writing,
the Corporate Taxpayer shall use commercially reasonable efforts not to, and shall cause the Corporate Taxpayer’s
Subsidiaries to use commercially reasonable efforts not to, enter into any agreement or indenture or any amendment
or other modification to any agreement or indenture (including, in each case, in connection with any refinancing) or
incur, create or assume any obligations in respect of indebtedness for borrowed money (excluding any trade
payables, intercompany debt or similar obligations) (“Senior Obligations”), in each case, after the date hereof, that
would reasonably be expected to, directly or indirectly, impede (or further impede) its ability to make payments
under this Agreement (other than any Early Termination Payment) in accordance with its terms, including any
agreement that would, directly or indirectly, impede (or further impede) the ability of the Corporate Taxpayer to pay
amounts payable under this Agreement (other than any Early Termination Payment) or the ability of the Corporate
Taxpayer’s Subsidiaries to upstream cash (by dividend, loan or other transfer) to the Corporate Taxpayer to fund
amounts payable by the Corporate Taxpayer under this Agreement (other than any Early Termination Payment);
provided that, for the avoidance of doubt, any interest incurred, accrued or otherwise payable in accordance with a
Senior Obligation shall not be deemed to, directly or indirectly, impede (or further impede) the Corporate
Taxpayer’s ability to make payments under this Agreement or the ability of the Corporate Taxpayer’s Subsidiaries to
upstream cash to the Corporate Taxpayer. Notwithstanding any other provision of this Agreement to the contrary, to
the extent that the Corporate Taxpayer enters into future Tax receivable or other similar agreements (“Future
TRAs”), the Corporate Taxpayer shall ensure that the terms of any such Future TRA shall provide that the Tax
Attributes subject to this Agreement shall be senior in priority in all respects to any Tax attributes subject to any
such Future TRA for purposes of calculating the amount and timing of payments under any such Future TRA and
that there is no duplication of Tax Attributes (and payments with respect thereto) that are subject to this Agreement
and Tax attributes (and payment obligations with respect thereto) that are subject to any Future TRAs. For the
avoidance of doubt, any payment required to be made by the Corporate Taxpayer to the Rights Holders under this
Agreement shall be pari passu in right of payment with all current or future unsecured obligations of the Corporate
Taxpayer and its Subsidiaries that are not Senior Obligations.
ARTICLE VI
NO DISPUTES; CONSISTENCY; COOPERATION
Section 6.1 Participation in the Corporate Taxpayer’s and OpCo’s Tax Matters.
(a) Except as otherwise provided in this Agreement, the Corporate Taxpayer and OpCo shall have full
responsibility for, and sole discretion over, all tax matters concerning the Corporate Taxpayer and OpCo,
respectively, including the preparation, filing or amending of any Tax Return and defending, contesting or settling
any issue pertaining to taxes, subject to a requirement that the Corporate Taxpayer and OpCo, as applicable, act in
good faith in connection with their direct or indirect control of any matter which is reasonably expected to affect the
Rights Holders’ rights and obligations under this Agreement.
(b) Notwithstanding the foregoing, the Corporate Taxpayer or OpCo, as applicable, shall notify the
Rights Holder Representative in writing of the commencement of, and keep the Rights Holder Representative
reasonably informed with respect to, any tax audit or tax administrative or judicial proceeding of the Corporate
Taxpayer (or its Subsidiaries) or OpCo by a Taxing Authority the outcome of which could reasonably be expected to
adversely affect the timing of, or the amount of, any Tax Benefit Payment (any “Tax Claim”), and shall give the
Rights Holder Representative reasonable opportunity to provide information and participate in the applicable portion
of such Tax Claim, including attending any meetings with any Taxing Authority, employing counsel separate from
the counsel employed by the Corporate Taxpayer or OpCo, as applicable, and having the opportunity to reasonably
comment on and approve all material submissions made by the Corporate Taxpayer or OpCo, as applicable, to any
Taxing Authority. Notwithstanding anything herein to the contrary, without the consent of the Rights Holder
Representative, which consent shall not be unreasonably withheld, conditioned or delayed, the Corporate Taxpayer
or OpCo, as applicable, shall not, and shall cause each respective Subsidiary not to, (i) change any accounting
method, or amend or take any position inconsistent with a previously-filed Tax Return of any such entity, in each
case, if such action could materially and adversely affect the Tax Benefit Payments or (ii) settle or otherwise resolve
any Tax Claim, if such settlement could have a materially adverse effect on a Rights Holder’s rights (including the
right to receive payments) under this Agreement.
Section 6.2 Cooperation. Each of the Corporate Taxpayer, OpCo and the Rights Holder Representative shall
(a) furnish to the other party in a timely manner such information, documents and other materials as the other party
may reasonably request for purposes of making or approving any determination or computation necessary or
appropriate under this Agreement, preparing any Tax Return or contesting, participating in, or defending any audit,
examination or controversy with any Taxing Authority including pursuant to Section 6.1, (b) make itself available to
the other party and its representatives to provide explanations of documents and materials and such other
information as the requesting party or its representatives may reasonably request in connection with any of the
matters described in clause (a) above, and (c) reasonably cooperate in connection with any such matter. Upon the
request of any Rights Holder the Corporate Taxpayer shall cooperate in taking any action reasonably requested by
such Rights Holder in connection with (i) its Tax or financial reporting or (ii) the consummation of any assignment
or transfer of any of its rights and/or obligations under this Agreement, including without limitation, providing any
information (including projections of taxable income and Tax Benefit Payments) or executing any documentation. In
addition, the Corporate Taxpayer shall not, and shall cause each of its Subsidiaries not to, take any action or omit to
take any action, in each case, that has the primary purpose of circumventing the attainment of or otherwise reducing
any Tax Benefit Payment or Early Termination Payment under this Agreement or triggering an Early Termination
Event under this Agreement.
Section 6.3 Consistency. The Corporate Taxpayer and the Rights Holders agree to report and cause to be
reported for all purposes, including U.S. federal, state and local Tax purposes and financial reporting purposes, all
Tax-related items (including, without limitation, the Basis Adjustments and each Tax Benefit Payment) in a manner
consistent with that contemplated by this Agreement or specified by the Corporate Taxpayer in any Schedule
required to be provided by or on behalf of the Corporate Taxpayer under this Agreement unless otherwise required
by law. The Corporate Taxpayer shall (and shall cause OpCo and its other Subsidiaries to) use commercially
reasonable efforts (for the avoidance of doubt, taking into account the interests and entitlements of all Rights
Holders under this Agreement) to defend the Tax treatment contemplated by this Agreement, including the Intended
Tax Treatment, and any Schedule in any audit, contest or similar proceeding with any Taxing Authority.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices. All notices, requests, claims, demands and other communications to be given or
delivered under this Agreement shall be in writing and shall be deemed to have been given (a) when personally
delivered (or, if delivery is refused, upon presentment) or sent by email (unless the party delivering such notice
receives notice of transmission failure), (b) one (1) Business Day following delivery by reputable overnight express
courier (charges prepaid) or (c) three (3) calendar days following mailing by certified or registered mail, postage
prepaid and return receipt requested. Unless another address is specified in writing pursuant to the provisions of this
Section 7.1, notices, demands and other communications shall be sent to the addresses indicated below:
If to PubCo, to:
Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attention: Michael Rubiera
Email: ****
with a copy, in any case, to:
c/o Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention: Robert M. Hayward, P.C.
Robert E. Goedert, P.C.
Email: ****
****
If to the OpCo, to:
c/o Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attention: Michael Rubiera
Email: ****
with a copy, in any case, to:
Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attention: Michael Rubiera
Email: ****
If to any Rights Holder, to:
Accelevation Investment Holdings, LLC
c/o Olympus Partners, LP
Metro Center, 4th Floor, One Station Place
Stamford, CT 06902
Attention: Matt Boyd
Matt Bujor
Email: ****
****
with a copy to:
c/o Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention: Robert M. Hayward, P.C.
Robert E. Goedert, P.C.
Email: ****
****
Section 7.2 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the
same counterpart. Delivery of an executed signature page to this Agreement by facsimile or email transmission shall
be as effective as delivery of a manually signed counterpart of this Agreement.
Section 7.3 Entire Agreement; No Third Party Beneficiaries. This Agreement constitutes the entire
agreement and understanding among the parties with respect to the subject matter hereof and thereof and supersedes
all prior agreements and understandings, whether written or oral, relating to such subject matter in any way. Nothing
in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
Section 7.4 Governing Law. The law of the State of Delaware shall govern (a) all claims or matters related
to or arising from this Agreement (including any tort or non-contractual claims) and (b) any questions concerning
the construction, interpretation, validity and enforceability of this Agreement, and the performance of the obligations
imposed by this Agreement, in each case without giving effect to any choice-of-law or conflict-of-law rules or
provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the law of
any jurisdiction other than the State of Delaware.
Section 7.5 Severability. If any provision of this Agreement is determined to be invalid, illegal or
unenforceable by any governmental entity, all other provisions of this Agreement shall nevertheless remain in full
force and effect. Upon such determination that any provision is invalid, illegal or unenforceable, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
Section 7.6 Successors; Assignment; Amendments; Waivers.
(a) No Rights Holder may assign its rights under this Agreement without the prior written consent of
the Rights Holder Representative; provided that, unless otherwise determined by the Corporate Taxpayer in its sole
discretion, any approved assignee shall execute and deliver a joinder to this Agreement in the form attached hereto
as Exhibit A. Any assignment of any such assignee’s rights meeting the requirements of Section 7.6(a) shall be
referred to herein as a “Permitted Assignment” and Schedule A hereto shall be amended to reflect such Permitted
Assignment.
(b) No provision of this Agreement may be amended unless such amendment is approved in writing by
the Corporate Taxpayer and the Rights Holder Representative. No provision of this Agreement may be waived
unless such waiver is in writing and signed by the party against whom the waiver is to be effective; provided that,
the Rights Holder Representative may waive any provision on behalf of any Rights Holder.
(c) All of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit
and burden of and shall be enforceable by the parties hereto and their respective successors, assigns, heirs,
executors, administrators and legal representatives, including any permitted assignee pursuant to a Permitted
Assignment. The Corporate Taxpayer shall require and cause any direct or indirect successor (whether by purchase,
merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporate Taxpayer, by
written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same
extent that the Corporate Taxpayer would be required to perform if no such succession had taken place.
Section 7.7 Headings, Titles, and Subtitles. The headings, titles, and subtitles of the sections and
subsections of this Agreement are for convenience of reference only and are not to be considered in construing this
Agreement.
Section 7.8 Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
LITIGATION, ACTION, PROCEEDING, CROSS-CLAIM, OR COUNTERCLAIM IN ANY COURT
(WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF, RELATING TO OR IN
CONNECTION WITH (A) THIS AGREEMENT OR THE VALIDITY, PERFORMANCE, INTERPRETATION,
COLLECTION OR ENFORCEMENT HEREOF OR (B) THE ACTIONS OF THE PARTIES IN THE
NEGOTIATION, AUTHORIZATION, EXECUTION, DELIVERY, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT HEREOF.
Section 7.9 Resolution of Disputes.
(a) Other than with respect to any disputes under Section 2.4, Section 4.1, or Section 4.2 (which are to
be resolved pursuant to Section 7.10) or claims for specific performance or other equitable relief, any and all
disputes hereunder which cannot be settled amicably between or among the Corporate Taxpayer, any Rights Holder
and/or the Rights Holder Representative, including any ancillary claims of any party, arising out of, relating to or in
connection with the validity, negotiation, execution, interpretation, performance or non-performance of this
Agreement (including the validity, scope and enforceability of this arbitration provision) shall be finally settled by
arbitration conducted by a single arbitrator in accordance with the then existing Rules of Arbitration of the
International Chamber of Commerce. The place of arbitration shall be New York, New York. The parties to such
arbitration shall jointly select a single arbitrator who shall have the authority to hold hearings and to render a
decision in accordance with the then existing Rules of Arbitration of the International Chamber of Commerce. If the
parties to such arbitration fail to agree on the selection of an arbitrator within thirty (30) calendar days of the receipt
of the request for arbitration, the arbitrator shall be selected by the International Chamber of Commerce. The
arbitrator shall be a lawyer. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. Section 1, et
seq., and judgment on the award may be entered by any court having jurisdiction thereof. Performance under this
Agreement shall continue if reasonably possible during any arbitration proceedings.
(b) Notwithstanding the provisions of Section 7.9(a), either the Corporate Taxpayer or the Rights
Holders or Rights Holder Representative may bring an action or special proceeding in any court of competent
jurisdiction for the purpose of compelling a party to arbitrate in accordance with Section 7.9(a), seeking temporary
or preliminary relief in aid of an arbitration hereunder, and/or enforcing an arbitration award and, for the purposes of
this Section 7.9(b), the Rights Holders or Rights Holder Representative (i) expressly consents to the application of
Section 7.9(c) to any such action or proceeding, and (ii) irrevocably appoints the Corporate Taxpayer as its agent for
service of process in connection with any such action or proceeding and agrees that service of process upon such
agent, who shall promptly advise the Rights Holders or Rights Holder Representative of any such service of process,
shall be deemed in every respect effective service of process upon the Rights Holders or Rights Holder
Representative in any such action or proceeding.
(c) THE CORPORATE TAXPAYER AND THE RIGHTS HOLDERS AND RIGHTS HOLDER
REPRESENTATIVE EACH HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF COURTS
LOCATED IN THE STATE OF DELAWARE AND AGREES THAT ANY JUDICIAL PROCEEDING
BROUGHT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 7.9(B) OR SECTION 7.17 SHALL BE
BROUGHT AND DETERMINED EXCLUSIVELY IN ANY STATE COURT LOCATED IN THE STATE OF
DELAWARE AND ANY STATE APPELLATE COURT THEREFROM WITHIN THE STATE OF DELAWARE
(OR, IF SUCH STATE COURTS REFUSE TO ACCEPT JURISDICTION OVER A PARTICULAR MATTER,
ANY FEDERAL COURT WITHIN THE STATE OF DELAWARE).
(d) The parties acknowledge that the forum designated by Section 7.9(c) has a reasonable relation to
this Agreement and to the parties’ relationship with one another.
Section 7.10 Reconciliation. In the event that the Corporate Taxpayer and the Rights Holder Representative
are unable to resolve a disagreement with respect to the matters governed by Section 2.4, Section 4.1, and
Section 4.2 within the relevant period designated in this Agreement (including the finalization of any Schedule or
the amount of any Tax Benefit Payment or Early Termination Payment (or other payment pursuant to the
Section 4.1) required to be made by the Corporate Taxpayer to the Rights Holders under this Agreement) (a
“Reconciliation Dispute”), the Reconciliation Dispute shall be submitted for determination to a nationally
recognized expert in the particular area of disagreement (the “Expert”) mutually acceptable to both parties. The
Expert shall be a nationally recognized accounting, consulting or valuation firm (other than a so-called “Big Four”
accounting firm) mutually selected by the Corporate Taxpayer and the Rights Holder Representative. The Corporate
Taxpayer and the Rights Holder Representative shall instruct the Expert to, and the Expert shall, make a final
determination of such Reconciliation Dispute in accordance with the guidelines and procedures set forth in this
Agreement. The Corporate Taxpayer and the Rights Holder Representative will reasonably cooperate with the
Expert during the term of its engagement. The Corporate Taxpayer and the Rights Holder Representative shall
instruct the Expert not to, and the Expert shall not, assign a value to any item in dispute greater than the greatest
value for such item assigned by the Corporate Taxpayer, on the one hand, or the Rights Holder Representative, on
the other hand, or less than the smallest value for such item assigned by the Corporate Taxpayer, on the one hand, or
the Rights Holder Representative, on the other hand. The Corporate Taxpayer and the Rights Holder Representative
shall also instruct the Expert to, and the Expert shall, make its determination based solely on presentations by the
Corporate Taxpayer and the Rights Holder Representative that are in accordance with the guidelines and procedures
set forth in this Agreement and not on the basis of an independent review. If the Reconciliation Dispute is not
resolved before any payment that is the subject of the Reconciliation Dispute is due or any Tax Return reflecting the
subject of the Reconciliation Dispute is due, such payment shall be made on the date prescribed by this Agreement
and such Tax Return may be filed as prepared by the Corporate Taxpayer, subject to adjustment or amendment upon
resolution. The costs and expenses relating to the engagement of such Expert or the amendment of any Tax Return
shall be borne by the Corporate Taxpayer, except that the Rights Holder Representative shall pay a portion of the
fees and expenses of the Expert equal to the percentage by which the portion of the disputed amounts not awarded to
Rights Holders (if any) bears to the aggregate amount actually disputed. Any dispute as to whether a dispute is a
Reconciliation Dispute, within the meaning of this Section 7.10 shall be decided by the Expert. The Expert shall
finally determine any Reconciliation Dispute and the determinations of the Expert pursuant to this Section 7.10 shall
be binding on the Corporate Taxpayer and the Rights Holder Representative and may be entered and enforced in any
court having jurisdiction.
Section 7.11 Withholding. The Corporate Taxpayer shall be entitled to deduct and withhold from any
payment payable pursuant to this Agreement such amounts as the Corporate Taxpayer is required to deduct and
withhold with respect to the entering into this Agreement or the making of such payment under the Code, or any
applicable provision of state, local or non-U.S. tax law, provided further, that the Corporate Taxpayer (i) gives ten
(10) days advance written notice of its intention to make such withholding to the Rights Holder Representative, (ii)
identifies the legal basis requiring such withholding and (iii) gives the Rights Holder Representative a reasonable
opportunity to establish that such withholding is not legally required or may be reduced. To the extent that amounts
are so withheld and paid over to the appropriate Taxing Authority by the Corporate Taxpayer, such withheld
amounts shall be treated for all purposes of this Agreement as having been paid to the applicable Rights Holder. The
Corporate Taxpayer shall provide evidence of such payments to the Rights Holders to the extent that such evidence
is available. Each Rights Holder shall deliver to the Corporate Taxpayer at (i) the time such Rights Holder becomes
a Rights Holder and (ii) the reasonable request of the Corporate Taxpayer, such properly completed and executed
documentation reasonably requested by the Corporate Taxpayer as will permit such payments to be made without
withholding or at a reduced rate of withholding (including IRS Form W-9 or the appropriate IRS Form W-8, as
applicable).
Section 7.12 Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate
Assets.
(a) If the Corporate Taxpayer or any of its Subsidiaries is or becomes a member of an affiliated,
consolidated, combined or unitary group of corporations that files a consolidated, combined or unitary income Tax
Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state, local or foreign Tax
law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax
Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with
reference to the consolidated, combined or unitary taxable income of the group as a whole.
(b) If any Person the income of which is included in the income of the Corporate Taxpayer or its
Subsidiaries or the Corporate Taxpayer’s or its Subsidiaries’ affiliated or consolidated group transfers one or more
Reference Assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) with
which such entity does not file a consolidated Tax Return pursuant to Section 1501 of the Code or any
corresponding provisions of state, local or non-U.S. Tax law, such entity, for purposes of calculating the amount of
any Tax Benefit Payment or Early Termination Payment due hereunder, shall be treated as having disposed of such
Reference Asset in a fully taxable transaction on the date of such contribution. The consideration deemed to be
received in a transaction contemplated in the prior sentence shall be equal to the fair market value of the deemed
transferred Reference Asset, plus (i) the amount of debt to which such Reference Asset is subject, in the case of a
transfer of an encumbered asset or (ii) the amount of debt allocated to such Reference Asset, in the case of a transfer
of a partnership interest. The transactions described in this Section 7.12(b) shall be taken into account in determining
the Realized Tax Benefit or Realized Tax Detriment, as applicable, for such Taxable Year based on the income,
gain or loss deemed allocated to the Corporate Taxpayer and its Subsidiaries using the Non-Blocker Transferred
Basis, Non-Exchange Transferred Basis, Non-IPO Basis, Non-Stepped Up Tax Basis and Non-Unit Transferred
Basis of the Reference Assets in calculating its Hypothetical Tax Liability for such Taxable Year and using the
actual Tax basis of the Reference Assets in calculating its Actual Tax Liability, determined using the “with and
without” methodology. Thus, for example, in determining the Hypothetical Tax Liability of the Corporate Taxpayer
or its Subsidiaries the taxable income of the Corporate Taxpayer or its Subsidiaries shall be determined by treating
OpCo as having sold the applicable Reference Asset for its fair market value, recovering any basis applicable to
such Reference Asset (using the Non-Blocker Transferred Basis, Non-Exchange Transferred Basis, Non-IPO Basis,
Non-Stepped Up Tax Basis and Non-Unit Transferred Basis), while the Actual Tax Liability of the Corporate
Taxpayer or its Subsidiaries would be determined by recovering the actual Tax basis of the Reference Asset that
reflects any Blocker Transferred Basis, Exchange Transferred Basis, IPO Basis, Basis Adjustments and Unit
Transferred Basis. For purposes of this Section 7.12, a transfer of a partnership interest shall be treated as a transfer
of the transferring partner’s share of each of the assets and liabilities of that partnership.
Section 7.13 Confidentiality.
(a) The Rights Holders and the Rights Holder Representative acknowledge and agree that the
information of the Corporate Taxpayer is confidential and, except in the course of performing any duties as
necessary for the Corporate Taxpayer, as required by law or legal process or to enforce the terms of this Agreement,
shall keep and retain in confidence and not disclose to any Person any confidential matters of the Corporate
Taxpayer acquired pursuant to this Agreement.
(b) This Section 7.13 shall not restrict (i) the disclosure of any information that has been made publicly
available by the Corporate Taxpayer, becomes public knowledge (except as a result of an act of any Rights Holder,
the Rights Holder Representative or any of their Affiliates in violation of this Agreement) or is generally known to
the business community, (ii) the disclosure of information to its personnel and representatives who are subject to
confidentiality obligations or otherwise to the extent reasonably necessary for any Rights Holder or its Affiliates to
prepare and file its Tax Returns, to respond to any inquiries regarding the same from any Taxing Authority or to
prosecute or defend any action, proceeding or audit by any Taxing Authority with respect to such Tax Returns or
(iii) the disclosure of information to any direct or indirect current, former or prospective limited partners of any
Rights Holder so long as such Persons are apprised of the confidential nature thereof. Notwithstanding anything to
the contrary in this Agreement, each Rights Holder (and each employee, representative or other agent of such Rights
Holder, as applicable) may disclose the tax treatment and tax structure of (A) the Corporate Taxpayer, (B) the
transactions, if any, entered into in connection with this Agreement, (C) this Agreement, and (D) any of the
transactions of the Corporate Taxpayer, and all materials of any kind (including opinions or other tax analyses) that
are provided to the Rights Holders relating to such tax treatment and tax structure.
Section 7.14 Rules of Construction. Unless otherwise specified herein:
(a) For purposes of interpretation of this Agreement:
(i) the words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision thereof;
(ii) any accounting term used and not otherwise defined in this Agreement has the meaning assigned to such
term in accordance with GAAP;
(iii) unless specified otherwise, references to an Article, Section or clause refer to the appropriate Article,
Section or clause in this Agreement;
(iv) the terms “include” or “including” are by way of example and not limitation and shall be deemed
followed by the words “without limitation”;
(v) the word “if” and other words of similar import when used herein shall be deemed in each case to be
followed by the phrase “and only if”; and
(vi) the term “documents” includes any and all instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
(b) In the computation of periods of time from a specified date to a later specified date, the word
“from” means “from and including”, the words “to” and “until” each mean “to but excluding” and the word
“through” means “to and including.”
(c) Section headings herein are included for convenience of reference only and shall not affect the
interpretation of this Agreement.
(d) Unless otherwise expressly provided herein, references to any law (including the Code) include all
statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such law.
(e) Where a word is defined herein, references to the singular shall include references to the plural and
vice versa.
(f) With regard to all dates, deadlines and time periods set forth or referred to in this Agreement, time
is of the essence. If the date specified for giving any notice or taking any action is not a Business Day (or if the
period during which any notice is required to be given or any action taken expires on a date which is not a Business
Day), then the date for giving such notice or taking such action (and the expiration date of such period during which
notice is required to be given or action taken) shall be automatically extended to the next date which is a Business
Day.
Section 7.15 Rights Holder Representative. By executing this Agreement, each of the Rights Holders shall
be deemed to have irrevocably constituted the Rights Holder Representative as his, her or its agent, proxy and
attorney in fact with full power of substitution to act from and after the date hereof and to do any and all things and
execute any and all documents on behalf of such Rights Holders which may be necessary, convenient or appropriate
to facilitate any matters under this Agreement, including: (i) execution of the documents and certificates required
pursuant to this Agreement; (ii) except to the extent specifically provided in this Agreement, receipt and forwarding
of notices and communications pursuant to this Agreement; (iii) administration of the provisions of this Agreement;
(iv) any and all consents, waivers, amendments or modifications deemed by the Rights Holder Representative, in its
sole and absolute discretion, to be necessary or appropriate under this Agreement (including a termination of the
Corporate Taxpayer’s obligations) and the execution or delivery of any documents that may be necessary or
appropriate in connection therewith; (v) amending this Agreement or any of the instruments to be delivered to the
Corporate Taxpayer pursuant to this Agreement; (vi) taking actions the Rights Holder Representative is expressly
authorized to take pursuant to the other provisions of this Agreement; (vii) negotiating and compromising, on behalf
of such Rights Holders, any dispute that may arise under, and exercising or refraining from exercising any remedies
available under, this Agreement or any other agreement contemplated hereby and executing, on behalf of such
Rights Holders, any settlement agreement, release or other document with respect to such dispute or remedy; and
(viii) engaging attorneys, accountants, agents or consultants on behalf of such Rights Holders in connection with this
Agreement or any other agreement contemplated hereby and paying any fees related thereto. The Rights Holder
Representative may resign upon thirty (30) calendar days’ written notice to the Corporate Taxpayer. All reasonable
and documented out-of-pocket costs and expenses incurred by the Rights Holder Representative in its capacity as
such shall be promptly reimbursed by the Corporate Taxpayer upon presentation of an invoice and reasonable
support therefor by the Rights Holder Representative. To the fullest extent permitted by law, none of the Rights
Holder Representative, any of its Affiliates, or any of the Rights Holder Representative’s or Affiliate’s directors,
officers, employees or other agents (each a “Covered Person”) shall be liable, responsible or accountable in
damages or otherwise to any Rights Holder, OpCo or the Corporate Taxpayer for damages arising from any action
taken or omitted to be taken by the Rights Holder Representative or any other Person with respect to OpCo or the
Corporate Taxpayer, except in the case of any action or omission which constitutes, with respect to such Person,
willful misconduct or fraud, and each Rights Holder shall indemnify, defend and hold harmless the Rights Holder
Representative for any losses, liabilities or damages arising out of the Rights Holder Representative’s performance
of its duties hereunder. Each of the Covered Persons may consult with legal counsel, accountants and other experts
selected by it, and any act or omission suffered or taken by it on behalf of the Rights Holders or in furtherance of the
interest of the Rights Holders in good faith in reliance upon and in accordance with the advice of such counsel,
accountants or other experts shall create a rebuttable presumption of the good faith and due care of such Covered
Person with respect to such act or omission; provided that such counsel, accountants or other experts were selected
with reasonable care. Each of the Covered Persons may rely in good faith upon, and shall have no liability to OpCo,
the Corporate Taxpayer or the Rights Holders for acting or refraining from acting upon, any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. Each
Rights Holder irrevocably agrees that such agency is coupled with an interest and is therefore irrevocable without
the written consent of the Rights Holder Representative and will survive the death, incapacity, dissolution,
liquidation or bankruptcy of such Rights Holder.
Section 7.16 Partnership Agreement. To the extent this Agreement imposes obligations on OpCo or a
member of OpCo, this Agreement shall be treated as part of the OpCo Agreement as described in Section 761(c) of
the Code and Sections 1.704-1(b)(2)(ii)(h) and 1.761-1(c) of the Treasury Regulations.
Section 7.17 Specific Performance. The parties hereto agree that irreparable damage, for which monetary
relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this
Agreement is not performed in accordance with its specific terms or is otherwise breached, including if the parties
hereto fail to take any action required of them hereunder to consummate any of the transactions contemplated by this
Agreement. It is accordingly agreed that (i) the parties hereto shall be entitled to an injunction or injunctions,
specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof without proof of damages or otherwise, this being in addition to any other remedy to
which they are entitled under this Agreement and to thereafter cause the transactions contemplated by this
Agreement to be consummated, and (ii) the right of specific performance and other equitable relief is an integral part
of the transactions contemplated by this Agreement and without that right, no party hereto would have entered into
this Agreement. The parties hereto agree not to assert that a remedy of specific performance or other equitable relief
is unenforceable, invalid, contrary to law or inequitable for any reason, and not to assert that a remedy of monetary
damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. The
parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this
Section 7.17 shall not be required to provide any bond or other security in connection with any such order or
injunction.
Section 7.18 Certain Acknowledgments. Without limiting the generality of Section 2.4, any Person who or
which accepts the rights and obligations of a Rights Holder under this Agreement shall be treated as a Rights Holder
hereunder pursuant to the terms hereof, and such Person shall be deemed to have adhered to and agreed to be bound
by the terms of this Agreement as a Rights Holder without further action or the execution of any additional
documents or instruments, including any counterpart signature page to this Agreement or joinder to this Agreement.
Further, each such Person shall be deemed to have agreed not to assert any claim that it is not bound by the terms of
this Agreement and acknowledges that in no circumstance can such Person be a Rights Holder, or be entitled to the
rights of a Rights Holder hereunder, if it is not bound by all of the terms and conditions of this Agreement,
including, without limitation, the obligations to which a Rights Holder is subject hereunder.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Tax Receivable Agreement as of the date first
written above.
COMPANY: |
ACCELEVATION HOLDINGS CORP. |
By: |
Name: |
Title: |
OPCO: |
ACCELEVATION HOLDINGS LLC |
By: |
Name: |
Title: |
RIGHTS HOLDERS: |
Exhibit 10.15
FORM OF EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT (as it may be amended from time to time in accordance with
the terms hereof, this “Agreement”), dated as of , 2026 and effective as of immediately prior to
the consummation of the IPO (the “Effective Time”), is made by and among Accelevation Holdings
Corp., a Delaware corporation (“Pubco”), Accelevation Holdings LLC, a Delaware limited liability
company (the “Company”), and Accelevation Investment Holdings LLC, a Delaware limited liability
company (the “Member”).
WHEREAS, in connection with the initial public offering (the “IPO”) of shares of Class A
common stock, par value $0.0001 per share, of Pubco (“Class A Common Stock”), Pubco intends to
consummate the transactions described in the Registration Statement on Form S-1, as amended
(Registration No. 333-298715), initially filed by Pubco with the U.S. Securities and Exchange
Commission on September 2, 2026;
WHEREAS, immediately following the IPO, the Member owns the number of Series B Units and
shares of Class B common stock, par value $0.0001 per share, of Pubco (“Class B Common Stock”) set
forth on Exhibit A hereto; and
WHEREAS, the parties to this Agreement desire to provide for the exchange of Exchangeable
Units together with shares of Class B Common Stock for shares of Class A Common Stock, on the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings contained
herein and for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Section 1.1Definitions.
As used in this Agreement, the following terms have the meanings set forth in this Section 1.1.
All other capitalized terms that are used but not otherwise defined herein shall have the meanings ascribed
to such terms in the LLC Agreement.
“Agreement” has the meaning set forth in the preamble.
“Cash Payment” means, an amount in cash equal to the product of (x) the Exchanged Unit
Amount, (y) the then-applicable Exchange Rate, and (z) (i) solely in connection with a Change of Control
Exchange, the Class A Common Stock Value, and (ii) with respect to any Exchange that is not a Change
of Control Exchange, the net price (after underwriting discounts) of Class A Common Stock received by
Pubco in the substantially concurrent public offering or private sale, as applicable.
“Change of Control” has the meaning set forth in the Tax Receivable Agreement.
“Change of Control Exchange” has the meaning set forth in Section 2.1(b)(i).
“Change of Control Exchange Date” has the meaning set forth in Section 2.1(b)(iii).
“Class A Common Stock” means Class A common stock, par value $0.0001 per share, of Pubco.
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“Class A Common Stock Value” means, with respect to any Change of Control Exchange, the
greater of (x) the arithmetic average of the volume weighted average prices for a share of Class A
Common Stock on the principal U.S. securities exchange or automated or electronic quotation system on
which the Class A Common Stock trades, as reported by Bloomberg, L.P., or its successor, for each of the
three (3) consecutive full Trading Days ending on and including the last full Trading Day immediately
prior to the related Exchange Date, subject to appropriate and equitable adjustment for any stock splits,
reverse splits, stock dividends or similar events affecting the Class A Common Stock and (y) the price per
share of Class A Common Stock offered by the Person or group that is the acquirer in the applicable
Change of Control transaction. If the Class A Common Stock no longer trades on a securities exchange or
automated or electronic quotation system, then the Class A Common Stock Value shall be determined in
good faith by a majority of the directors of Pubco that do not have an interest in the Exchangeable Units
and shares of Class B Common Stock being Exchanged.
“Class B Common Stock” means Class B common stock, par value $0.0001 per share, of Pubco.
“Contribution Notice” has the meaning set forth in Section 2.1(a)(iv).
“Effective Time” has the meaning set forth in the preamble.
“Exchange” has the meaning set forth in Section 2.1(a)(i).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Date” has the meaning set forth in Section 2.1(a)(iv).
“Exchange Notice” has the meaning set forth in Section 2.1(a)(iv).
“Exchange Rate” means the number of shares of Class A Common Stock for which one Series B
Unit is entitled to be Exchanged. The Exchange Rate will also be used to determine the number of shares
of Class B Common Stock that the Member must surrender upon an Exchange. On the date of this
Agreement, the Exchange Rate shall be 1.00, subject to adjustment pursuant to Section 2.2.
“Exchangeable Unit” means a Series B Unit held by the Member.
“Exchanged Unit Amount” means, with respect to an Exchange, the number of Exchangeable
Units set forth in the applicable Exchange Notice.
“First Exchange Time” means the expiration or earlier waiver of any lockup agreement relating to
the IPO.
“IPO” has the meaning set forth in the recitals.
“Liens” means any and all liens, charges, security interests, options, claims, mortgages, pledges,
proxies, voting trusts or agreements, obligations, understandings or arrangements or other restrictions on
title or transfer of any nature whatsoever, in each case, excluding transfer restrictions under applicable
securities laws.
“LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of
the Company, dated as of the date hereof, as the same may be amended, amended and restated or replaced
from time to time.
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“Member” has the meaning set forth in the preamble.
“Pubco” has the meaning set forth in the preamble.
“Retraction Notice” has the meaning set forth in Section 2.1(a)(vii).
“SEC” means the U.S. Securities and Exchange Commission.
“Takeover Laws” has the meaning set forth in Section 3.1.
“Tax Receivable Agreement” means that certain Tax Receivable Agreement, dated as of the date
hereof, by and among Pubco, the Company and the other signatories listed on Schedule A thereto.
“Trading Day” means a day on which the principal U.S. securities exchange on which the Class A
Common Stock is listed or admitted to trading is open for the transaction of business (unless such trading
shall have been suspended for the entire day).
ARTICLE II
Section 2.1Exchange of Units.
(a)Elective Exchanges.
(i)From and after the First Exchange Time, the Member shall be entitled,
upon the terms and subject to the conditions hereof and the LLC Agreement, to surrender
Exchangeable Units to Pubco or the Company (as applicable) and a corresponding number of
shares of Class B Common Stock after taking into account the Exchange Rate (in each case, free
and clear of all Liens) to Pubco in exchange for the delivery to the Member (or its designee) of
either, at the option of Pubco, (x) a number of shares of Class A Common Stock that is equal to
the product of the applicable Exchanged Unit Amount multiplied by the Exchange Rate or (y)
solely in connection with an Exchange (including a Change of Control Exchange) that coincides
with a substantially concurrent public offering or private sale of Class A Common Stock, the
applicable Cash Payment. Any exchange of Exchangeable Units and Class B Common Stock for
Class A Common Stock or the Cash Payment, as applicable, is defined herein as an “Exchange.”
Subject to Section 2.1(a)(ii), from and after the First Exchange Time, the Member may Exchange
any Exchangeable Units at any time and from time to time. Notwithstanding anything to the
contrary herein, neither Pubco nor the Company shall effectuate a Cash Payment pursuant to this
Section 2.1(a) or Section 2.1(b) unless (A) Pubco determines to consummate a private sale or
public offering of Class A Common Stock on, or not later than five (5) Business Days after, the
relevant Exchange Date and (B) Pubco contributes sufficient proceeds from such private sale or
public offering to the Company for payment by the Company of the applicable Cash Payment or
Pubco directly pays the applicable Cash Payment. For the avoidance of doubt, the Company shall
have no obligation to make a Cash Payment that exceeds the cash contributed to the Company by
Pubco from Pubco’s offering or sales of Class A Common Stock referenced earlier in this
Section 2.1(a)(i).
(ii)Notwithstanding anything to the contrary contained herein, the Member
shall not be entitled to effectuate an Exchange of Exchangeable Units (and a corresponding
number of shares of Class B Common Stock after taking into account the Exchange Rate) as set
forth in this Section 2.1(a), and Pubco and Company shall have the right to refuse to honor any
4
request for such an Exchange, if at any time Pubco or the Company determines based on the
advice of counsel that such Exchange (1) would be prohibited by law or regulation (including the
unavailability of a registration of such Exchange under the Securities Act or an exemption from
the registration requirements thereof) or (2) would not be permitted under any agreement with
Pubco, the Company or any of their Subsidiaries to which the Member is party (including the
LLC Agreement). Upon such determination, Pubco or the Company (as applicable) shall notify
the Member, which such notice shall include an explanation in reasonable detail as to the reason
that the Exchange has not been honored.
(iii)Notwithstanding anything to the contrary herein, if the Manager of the
Company, after consultation with its outside legal counsel and tax advisor, shall determine in
good faith that interests in the Company do not meet the requirements of Treasury Regulation
Section 1.7704-1(h) (or other provisions of those Regulations as determined by the Manager in its
sole discretion), the Company may impose such restrictions on Exchanges as the Company may
reasonably determine to be necessary or advisable so that the Company is not treated as a
“publicly traded partnership” under Section 7704 of the Code.
(iv)The Member shall exercise its right to effectuate an Exchange of
Exchangeable Units, and a corresponding number of shares of Class B Common Stock after
taking into account the Exchange Rate, as set forth in this Section 2.1(a), by delivering to the
Company, with a contemporaneous copy delivered to Pubco, during normal business hours, (A) a
written election of exchange in respect of the Exchangeable Units to be exchanged substantially
in the form of Exhibit B hereto (an “Exchange Notice”), duly executed by the Member, (B) any
certificates in the Member’s possession representing such Exchangeable Units, (C) any stock
certificates in the Member’s possession representing such shares of Class B Common Stock and
(D) if Pubco or the Company requires the delivery of the certification contemplated by Section
2.4(b), such certification or written notice from the Member that it is unable to provide such
certification. Unless the Member timely has delivered a Retraction Notice pursuant to Section
2.1(a)(vii), an Exchange pursuant to this Section 2.1(a) shall be effected on the fifth (5th) Business
Day following the Business Day on which Pubco and the Company have received all of the items
specified in clauses (A)-(D) of the first sentence of this Section 2.1(a)(iv) or such later date that is
a Business Day specified in the Exchange Notice (such Business Day, the “Exchange Date”);
provided, that the Company may establish alternate exchange procedures as necessary in order to
facilitate the establishment by the Member of a trading plan meeting the requirements of Rule
10b5-1 under the Exchange Act. On the Exchange Date, all rights of the Member as a holder of
the Exchangeable Units and shares of Class B Common Stock that are subject to the Exchange
shall cease, and unless Pubco has elected Cash Payment, the Member (or its designee) shall be
treated for all purposes as having become the record holder of the shares of Class A Common
Stock to be received by the Member in respect of such Exchange.
(v)Within two (2) Business Days following the Business Day on which
Pubco and the Company have received the Exchange Notice, Pubco shall give written notice (the
“Contribution Notice”) to the Company (with a copy to the Member) of its intended settlement
method; provided that, if Pubco does not timely deliver a Contribution Notice, Pubco shall be
deemed to have not elected the Cash Payment method.
(vi)The Member may specify, in an applicable Exchange Notice, that the
Exchange is to be contingent (including as to timing) upon the occurrence of any transaction or
event, including the consummation of a purchase by another Person (whether in a tender or
5
exchange offer, an underwritten offering, Change of Control transaction or otherwise) of shares
of Class A Common Stock or any merger, consolidation or other business combination.
(vii)Notwithstanding anything herein to the contrary, the Member may
withdraw or amend its Exchange Notice, in whole or in part, at any time prior to 5:00 p.m. New
York City time, on the Business Day immediately prior to the Exchange Date by giving written
notice (a “Retraction Notice”) to the Company (with a copy to Pubco) specifying (A) the number
of withdrawn Exchangeable Units (and corresponding number of shares of Class B Common
Stock after taking into account the Exchange Rate), (B) the number of Exchangeable Units (and
corresponding number of shares of Class B Common Stock after taking into account the
Exchange Rate) as to which the Exchange Notice remains in effect, if any, and (C) if the Member
so determines, a new Exchange Date or any other new or revised information permitted in the
Exchange Notice.
(b)Change of Control. In connection with a Change of Control, and subject to any
approval of the Change of Control by the holders of Class A Common Stock and Class B
Common Stock that may be required:
(i)Pubco shall have the right to require the Member to effectuate an
Exchange of some or all of the Member’s Exchangeable Units, and a corresponding number of
shares of Class B Common Stock after taking into account the Exchange Rate (in each case, free
and clear of all Liens), with Pubco or, at the option of Pubco, with any Subsidiary of Pubco, in
each case, in exchange for the delivery to the Member (or its designee) of a number of shares of
Class A Common Stock that is equal to the product of the applicable Exchanged Unit Amount
and the Exchange Rate (such Exchange, a “Change of Control Exchange”); provided that, if
Pubco requires the Member to Exchange less than all of its outstanding Exchangeable Units (and
corresponding number of shares of Class B Common Stock after taking into account the
Exchange Rate), the Member’s participation in the required Exchange shall be reduced pro rata
based on ownership of Exchangeable Units. For the avoidance of doubt, any Exchangeable Units
and a corresponding number of shares of Class B Common Stock held by the Member that are not
Exchanged pursuant to a Change of Control Exchange may be Exchanged by the Member after
the Change of Control transaction pursuant to Section 2.1(a) subject to and in accordance with the
terms thereof.
(ii)The election of Pubco pursuant to this Section 2.1(b) shall be at the sole
discretion of Pubco upon the approval thereof by a majority of the Board of Directors of Pubco.
(iii)Any Exchange pursuant to this Section 2.1(b) shall be effective
immediately prior to the consummation of the Change of Control (and, for the avoidance of
doubt, shall not be effective if such Change of Control is not consummated) (the “Change of
Control Exchange Date”). From and after the Change of Control Exchange Date, (A) the
Exchangeable Units and shares of Class B Common Stock Exchanged pursuant to this Section
2.1(b) shall be deemed to be transferred to the Company and Pubco, as applicable, on the Change
of Control Exchange Date and (B) the Member shall cease to have any rights with respect to the
Exchangeable Units and shares of Class B Common Stock that is Exchanged pursuant to this
Section 2.1(b) (other than the right to receive shares of Class A Common Stock pursuant to
Section 2.1(b)(i) upon compliance with its obligations under Section 2.1(c)).
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(iv)Pubco shall provide written notice of an expected Change of Control to
the Member within the earlier of (A) five (5) Business Days following the execution of the
agreement with respect to such Change of Control and (B) ten (10) Business Days before the
proposed date upon which the contemplated Change of Control is to be effected, indicating in
such notice such information as may reasonably describe the Change of Control transaction,
subject to applicable law, including the date of execution of such agreement or such proposed
effective date, as applicable, the amount and types of consideration to be paid for Exchangeable
Units and shares of Class B Common Stock or shares of Class A Common Stock, as applicable,
in the Change of Control (which consideration shall be equivalent whether paid for Exchangeable
Units and shares of Class B Common Stock or shares of Class A Common Stock), any election
with respect to types of consideration that a holder of Exchangeable Units and shares of Class B
Common Stock or shares of Class A Common Stock, as applicable, shall be entitled to make in
connection with the Change of Control, the percentage of total Exchangeable Units and shares of
Class B Common Stock or shares of Class A Common Stock, as applicable, to be transferred to
the acquirer by all shareholders in the Change of Control, and the number of Exchangeable Units
and shares of Class B Common Stock held by the Member that Pubco intends to require to be
Exchanged for shares of Class A Common Stock in connection with the Change of Control.
Pubco shall update such notice from time to time to reflect any material changes to such notice.
Pubco may satisfy any such notice and update requirements described in the preceding two
sentences by providing such information on a Form 8-K, Schedule TO, Schedule 14D-9,
Preliminary Merger Proxy on Schedule 14A, Definitive Merger Proxy on Schedule 14A or
similar form filed with the SEC.
(c)Exchange Procedure on Change of Control Exchange. On or prior to the Change
of Control Exchange Date, the Member shall deliver to Pubco or the Company, as applicable,
with a contemporaneous copy delivered to the Company, in each case during normal business
hours at the principal executive offices of the Company and Pubco, respectively: (A) an
Exchange Notice, duly executed by the Member; (B) any certificates in the Member’s possession
representing all Exchangeable Units being surrendered by the Member; (C) any stock certificates
in the Member’s possession representing all shares of Class B Common Stock being surrendered
by the Member; and (D) if Pubco or the Company requires the delivery of the certification
contemplated by Section 2.4(b), such certification or written notice from the Member that it is
unable to provide such certification.
(d)Exchange Consideration. As promptly as practicable on or after the Exchange
Date or Change of Control Exchange Date, as applicable, provided the Member has satisfied its
obligations under Section 2.1(a)(iv) or Section 2.1(c), as applicable, the Company or Pubco shall
deliver or cause to be delivered to the Member (or its designee), either certificates or evidence of
book-entry shares representing the number of shares of Class A Common Stock deliverable upon
the applicable Exchange, registered in the name of the Member (or its designee) or, if Pubco has
so elected, the Cash Payment. Notwithstanding anything set forth in this Section 2.1(d) to the
contrary, to the extent the Class A Common Stock issued in the exchange will be settled through
the facilities of The Depository Trust Company, the Company or Pubco will, upon the written
instruction of the Member, deliver the shares of Class A Common Stock deliverable to the
Member through the facilities of The Depository Trust Company to the account of the participant
of The Depository Trust Company designated by the Member in the Exchange Notice. Upon the
Member exercising its right to Exchange in accordance with Section 2.1(a)(i) or the occurrence of
a Change of Control Exchange, the Company or Pubco shall take such actions as (A) may be
required to ensure that the Member receives the shares of Class A Common Stock or the Cash
7
Payment that the Member is entitled to receive in connection with such Exchange pursuant to this
Section 2.1, and (B) may be reasonably within its control that would cause such Exchange to be
treated for purposes of the Tax Receivable Agreement as an “Exchange” under the Tax
Receivable Agreement.
(e)Legends.
(i)The shares of Class A Common Stock issued upon an Exchange, other
than any such shares issued in an Exchange subject to an effective registration statement under
the Securities Act, shall bear a legend in substantially the following form:
THE TRANSFER OF THESE SECURITIES HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER THE SECURITIES LAWS OF ANY OTHER
JURISDICTION, AND MAY NOT BE SOLD OR TRANSFERRED
OTHER THAN IN ACCORDANCE WITH THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED (OR OTHER APPLICABLE LAW), OR AN EXEMPTION
THEREFROM.
(ii)If (A) any shares of Class A Common Stock have been sold pursuant to a
registration statement that has been declared effective by the SEC, (B) all of the applicable
conditions of Rule 144 are met or (C) the legend (or a portion thereof) otherwise ceases to be
applicable, Pubco, upon the written request of the holder thereof, shall promptly provide such
holder or its respective transferees with new certificates (or evidence of book-entry share) for
securities of like tenor not bearing the provisions of the legend with respect to which the
restriction has terminated. In connection therewith, such holder shall provide Pubco with such
information in its possession as Pubco may reasonably request (which may include an opinion of
counsel reasonably acceptable to Pubco) in connection with the removal of any such legend.
(f)Cancellation of Class B Common Stock. Any shares of Class B Common Stock
surrendered in an Exchange shall automatically be deemed cancelled without any action on the
part of any Person, including Pubco. Any such cancelled shares of Class B Common Stock shall
no longer be outstanding, and all rights with respect to such shares shall automatically cease and
terminate.
(g)Expenses. Subject to any other arrangement or agreement among the Company
and the Member, each party hereto shall bear their own expenses in connection with the
consummation of any Exchange, whether or not any such Exchange is ultimately consummated,
except that Pubco shall bear any transfer taxes, stamp taxes or duties, or other similar taxes in
connection with, or arising by reason of, any Exchange; provided, however, that if any shares of
Class A Common Stock are to be delivered in a name other than that of the Member (or The
Depository Trust Company or its nominee for the account of a participant of The Depository
Trust Company that will hold the shares for the account of the Member) or a direct or indirect
equityholder of the Member or the Cash Payment is to be paid to a Person other than the Member
or a direct or indirect equityholder of the Member, then the Member or the Person in whose name
such shares are to be delivered or to whom the Cash Payment is to be paid shall pay to Pubco the
amount of any transfer taxes, stamp taxes or duties, or other similar taxes in connection with, or
8
arising by reason of, such Exchange or shall establish to the reasonable satisfaction of Pubco that
such tax has been paid or is not payable.
Section 2.2Adjustment.
The Exchange Rate shall be adjusted accordingly if there is: (a) any subdivision (by any stock or
unit split, stock or unit dividend or distribution, reclassification, reorganization, recapitalization or
otherwise) or combination (by reverse stock or unit split, reclassification, reorganization, recapitalization
or otherwise) of the shares of Class B Common Stock or Series B Units that is not accompanied by a
substantively identical subdivision or combination of the Class A Common Stock; or (b) any subdivision
(by any stock or unit split, stock or unit dividend or distribution, reclassification, reorganization,
recapitalization or otherwise) or combination (by reverse stock or unit split, reclassification,
reorganization, recapitalization or otherwise) of the shares of Class A Common Stock that is not
accompanied by a substantively identical subdivision or combination of the shares of Class B Common
Stock or Series B Units. To the extent not reflected in an adjustment to the Exchange Rate, if there is any
reclassification, reorganization, recapitalization or other similar transaction in which the Class A
Common Stock is converted or changed or exchanged into or for another security, securities or other
property, then upon any subsequent Exchange, the Member shall be entitled to receive the amount of such
security, securities or other property that the Member would have received if such Exchange had occurred
immediately prior to the effective date of such reclassification, reorganization, recapitalization or other
similar transaction, taking into account any adjustment as a result of any subdivision (by any split,
distribution or dividend, reclassification, reorganization, recapitalization or otherwise) or combination (by
reverse split, reclassification, recapitalization or otherwise) of such security, securities or other property
that occurs after the effective time of such reclassification, reorganization, recapitalization or other similar
transaction. For the avoidance of doubt, if there is any reclassification, reorganization, recapitalization or
other similar transaction in which the Class A Common Stock is converted or changed or exchanged into
or for another security, securities or other property, this Section 2.2 shall continue to be applicable,
mutatis mutandis, with respect to such security or other property.
Section 2.3Class A Common Stock to be Issued.
(a)Pubco shall at all times reserve and keep available out of its authorized but
unissued Class A Common Stock, solely for the purpose of issuance upon an Exchange, such
number of shares of Class A Common Stock as shall be sufficient to effect the conversion of all
outstanding Exchangeable Units; provided, however, that nothing contained herein shall be
construed to preclude Pubco from satisfying its obligations in respect of any such Exchange by
delivery of unencumbered purchased shares of Class A Common Stock (which may or may not
be held in the treasury of Pubco or any subsidiary thereof).
(b)Pubco has taken and will take all such steps as may be required to cause to
qualify for exemption under Rule 16b-3(d) or (e), as applicable, under the Exchange Act, and be
exempt for purposes of Section 16(b) under the Exchange Act, any acquisitions or dispositions of
equity securities of Pubco (including derivative securities with respect thereto) and any securities
that may be deemed to be equity securities or derivative securities of Pubco for such purposes that
result from the transactions contemplated by this Agreement, by each director or officer of Pubco
(including directors-by-deputization) who may reasonably be expected to be subject to the
reporting requirements of Section 16(a) of the Exchange Act with respect to Pubco upon the
registration of any class of equity security of Pubco pursuant to Section 12 of the Exchange Act
(with the authorizing resolutions specifying the name of each such officer or director whose
9
acquisition or disposition of securities is to be exempted and the number of securities that may be
acquired and disposed of by each such Person pursuant to this Agreement).
(c)If any Takeover Law or other similar law or regulation becomes or is deemed to
become applicable to this Agreement or any of the transactions contemplated hereby, Pubco shall
use its reasonable best efforts to render such law or regulation inapplicable to all of the foregoing.
(d)Pubco covenants that all shares of Class A Common Stock issued upon an
Exchange will, upon issuance, be validly issued, fully paid and non-assessable and not subject to
any preemptive right of stockholders of Pubco or to any right of first refusal or other right in
favor of any Person.
Section 2.4Withholding; Certification of Non-Foreign Status.
(a)If Pubco or the Company shall be required to withhold any amounts by reason of
any federal, state, local or foreign tax rules or regulations in respect of any Exchange, Pubco or
the Company, as the case may be, shall be entitled to take such action as it deems appropriate in
order to ensure compliance with such withholding requirements, including, at its option,
withholding shares of Class A Common Stock with a fair market value equal to the minimum
amount of any taxes that Pubco or the Company, as the case may be, may be required to withhold
with respect to such Exchange. To the extent that amounts are (or property is) so withheld and
paid over to the appropriate taxing authority, such withheld amounts (or property) shall be treated
for all purposes of this Agreement as having been paid (or delivered) to the Member.
(b)Notwithstanding anything to the contrary herein, each of Pubco and the Company
may, in its discretion, require that the Member deliver to Pubco or the Company, as the case may
be, a duly completed and executed IRS Form W-9 prior to an Exchange. In the event Pubco or the
Company has required delivery of such form but the Member does not provide such form, Pubco
or the Company, as the case may be, shall nevertheless deliver or cause to be delivered to the
Member the Class A Common Stock or the Cash Payment in accordance with Section 2.1, but
subject to withholding as provided in Section 2.4(a).
Section 2.5Tax Treatment.
(a)Unless otherwise required by applicable law, the parties hereto acknowledge and
agree that any Exchange with the Company or Pubco shall be treated as a direct exchange
between Pubco and the Member for U.S. federal and applicable state and local income tax
purposes. The parties hereto intend to treat any Exchange consummated hereunder as a taxable
sale of the Exchangeable Units and Class B Common Stock (if any) by the Member to Pubco for
U.S. federal and applicable state and local income tax purposes except as otherwise mutually
agreed to in writing by the Member and Pubco and no party hereto shall take a position
inconsistent with such intended tax treatment on any tax return, amendment thereof or any other
communication with a taxing authority, in each case, unless otherwise required by a
“determination” within the meaning of Section 1313 of the Code.
(b)To the extent this Agreement imposes obligations upon the Company, this
Agreement shall be treated as part of the LLC Agreement as described in Section 761 of the Code
and Treasury Regulations Sections 1.704-1(b)(2)(ii)(h) and 1.761-1(c).
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Section 2.6Contribution of Pubco.
In connection with any Exchange between the Member and the Company, Pubco shall contribute
to the Company the shares of Class A Common Stock or Cash Payment that the Member is entitled to
receive in such Exchange. Unless the Member has timely delivered a Retraction Notice as provided in
Section 2.1(a)(vii), on the Exchange Date (to be effective immediately prior to the close of business on
the Exchange Date) (i) Pubco shall make a capital contribution to the Company (in the form of the shares
of Class A Common Stock or the Cash Payment that the Member is entitled to receive in such Exchange)
required under this Section 2.6, (ii) the Company shall transfer such shares of Class A Common Stock or
Cash Payment to the Member in redemption of such Member’s Series B Units in the Company, and (iii)
in the case of an Exchange for Class A Common Stock and/or the Cash Payment (as applicable), the
Company shall issue to Pubco a number of Series A Units equal to the Exchanged Unit Amount
surrendered by the Member.
Section 2.7Distributions.
No Exchange will impair the right of the Member to receive any distribution for periods ending
on or prior to the Exchange Date for such Exchange (but for which payment had not yet been made with
respect to the Exchangeable Units in question at the time the Exchange is consummated); provided that,
for purposes of this Section 2.7, the Member’s right to receive its pro rata portion of any distribution by
the Company in respect of such periods shall not be deemed impaired to the extent that the Company has
not paid Pubco its pro rata portion of such distribution prior to the consummation of the applicable
Exchange.
Section 2.8Structure of Exchange Transactions.
The parties hereto acknowledge that (a) certain direct and indirect equityholders of the Member
may from time to time desire to participate in an Exchange and (b) this Agreement is intended to permit
and facilitate such participation in an Exchange as if such direct and indirect equityholders of the Member
were a party hereto as the Member hereunder. Therefore, the parties agree (x) to enter into any transaction
or series of transactions, including related transaction documents, requested by the Member in any
manner necessary or desirable to facilitate such direct or indirect participation in an Exchange or
otherwise achieve the purposes of this Agreement and (y) that the rights of the Member set forth in this
Agreement may be assigned to any subsequent holder of Series B Units as if such holder were the
Member hereunder as and to the extent elected by the Member.
ARTICLE III
Section 3.1Representations and Warranties of Pubco.
Pubco represents and warrants that (i) it is a corporation duly incorporated and is existing and in
good standing under the laws of the State of Delaware, (ii) it has all requisite corporate power and
authority to enter into and perform this Agreement and to consummate the transactions contemplated
hereby and to deliver the Class A Common Stock and/or Cash Payment in accordance with the terms
hereof, (iii) the execution and delivery of this Agreement by Pubco and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary corporate action on the part
of Pubco, including all actions necessary to ensure that the acquisition of shares of Class A Common
Stock pursuant to the transactions contemplated hereby, to the fullest extent of each of Pubco’s Board of
Directors’ power and authority and to the extent permitted by law, shall not be subject to any
11
“moratorium,” “control share acquisition,” “business combination,” “fair price” or other form of anti-
takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or
the transactions contemplated hereby (collectively, “Takeover Laws”), (iv) this Agreement constitutes a
legal, valid and binding obligation of Pubco enforceable against Pubco in accordance with its terms,
except as enforcement may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally, and (v) the
execution, delivery and performance of this Agreement by Pubco and the consummation by Pubco of the
transactions contemplated hereby will not (A) result in a violation of the certificate of incorporation of
Pubco or the bylaws of Pubco, (B) conflict with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or instrument to which Pubco is a
party or (C) based on the representations to be made by the Member pursuant to the written election in the
form of Exhibit B attached hereto in connection with Exchanges made pursuant to the terms of the
Agreement, result in a violation of any law, rule, regulation, order, judgment or decree applicable to
Pubco or by which any property or asset of Pubco is bound or affected, except with respect to clause (B)
or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not
reasonably be expected to have a material adverse effect on Pubco or its business, financial condition or
results of operations.
Section 3.2Representations and Warranties of the Company.
The Company represents and warrants that (i) it is a limited liability company duly formed and is
existing and in good standing under the laws of the State of Delaware, (ii) it has all requisite power and
authority to enter into and perform this Agreement and to consummate the transactions contemplated
hereby, (iii) the execution and delivery of this Agreement by the Company and the consummation by it of
the transactions contemplated hereby have been duly authorized by all necessary action on the part of the
Company, (iv) this Agreement constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as enforcement may be limited by
equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to
or limiting creditors’ rights generally, (v) it is an entity treated as a partnership for U.S. federal income
tax purposes and is not classified as a “publicly traded partnership” as defined under Section 7704 of the
Code and (vi) the execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby will not (A) result in a violation
of the certificate of formation of the Company or the LLC Agreement, (B) conflict with, or constitute a
default (or an event that with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company is a party or (C) result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Company or by which any property or asset of the Company is
bound or affected, except with respect to clause (B) or (C) for any conflicts, defaults, accelerations,
terminations, cancellations or violations that would not reasonably be expected to have a material adverse
effect on the Company or its business, financial condition or results of operations.
Section 3.3Representations and Warranties of the Member.
The Member represents and warrants that (i) it is a limited liability company duly formed and is
existing and in good standing under the laws of the State of Delaware, (ii) it has all requisite power and
authority to enter into and perform this Agreement and to consummate the transactions contemplated
hereby, (iii) the execution and delivery of this Agreement by the Member and the consummation by it of
the transactions contemplated hereby have been duly authorized by all necessary action on the part of the
12
Member, (iv) this Agreement constitutes a legal, valid and binding obligation of the Member enforceable
against the Member in accordance with its terms, except as enforcement may be limited by equitable
principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or
limiting creditors’ rights generally and (v) the execution, delivery and performance of this Agreement by
the Member and the consummation by the Member of the transactions contemplated hereby will not (A)
result in a violation of the certificate of formation or the limited liability company agreement of the
Member, (B) conflict with, or constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Member is a party or (C) result in a
violation of any law, rule, regulation, order, judgment or decree applicable to the Member or by which
any property or asset of the Member is bound or affected, except with respect to clause (B) or (C) for any
conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material
respect result in the unenforceability against the Member of this Agreement.
ARTICLE IV
Section 4.1Notices.
All notices, demands or other communications to be given or delivered under or by reason of the
provisions of this Agreement shall be in writing and shall be deemed to have been given or made when
(a) delivered personally to the recipient, (b) delivered by means of electronic mail if emailed on a
Business Day, and otherwise on the next Business Day, or (c) one (1) Business Day after being sent to the
recipient by reputable overnight courier service (charges prepaid). Such notices, demands and other
communications shall be sent to the address for such recipient set forth in the Company’s books and
records (or below, with respect to Pubco), or to such other address or to the attention of such other person
as the recipient party has specified by prior written notice to the sending party.
If to the Company, the Member or Pubco:
c/o Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attention: Chief Executive Officer
E-mail: ****
with a copy (which shall not constitute notice to the Company, the Member or Pubco) to:
Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention: Robert M. Hayward, P.C.; Robert E. Goedert, P.C.
E-mail: ****; ****
Section 4.2Permitted Transferees.
To the extent that the Member (or an applicable Permitted Transferee of the Member) validly
transfers after the date hereof any or all of its Series B Units and corresponding shares of Class B
Common Stock after taking into account the Exchange Rate, to a Permitted Transferee of such Person or
to any other Person in a transaction not in contravention of, and in accordance with, the LLC Agreement,
13
then the transferee thereof shall have the right to execute and deliver a joinder to this Agreement, in the
form attached hereto as Exhibit C. Upon execution of any such joinder, such transferee shall, with respect
to such transferred Series B Units and shares of Class B Common Stock, be entitled to all of the rights
and bound by each of the obligations applicable to the relevant transferor hereunder; provided that the
transferor shall remain entitled to all of the rights and bound by each of the obligations with respect to
Series B Units and shares of Class B Common Stock that were not so transferred.
Section 4.3Severability.
The provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other provisions
hereof. If any provision of this Agreement, or the application thereof to any Person or entity or any
circumstance, is found to be invalid or unenforceable in any jurisdiction, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement
and the application of such provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or
enforceability of such provision, or the application thereof, in any other jurisdiction.
Section 4.4Counterparts.
This Agreement and any amendments may be executed simultaneously in two or more
counterparts and delivered via facsimile or .pdf, each of which shall be deemed an original and all of
which, when taken together, shall constitute one and the same document. The signature of any party to
any counterpart shall be deemed a signature to, and may be appended to, any other counterpart.
Section 4.5Entire Agreement.
This Agreement, together with the LLC Agreement and the Tax Receivable Agreement and the
other agreements and instruments referenced herein and therein, (a) constitutes the entire agreement and
supersedes all other prior agreements, both written and oral, among the parties with respect to the subject
matter hereof and (b) is not intended to confer upon any Person, other than the parties hereto and their
Permitted Transferees, any rights or remedies hereunder.
Section 4.6Further Assurances.
Each party hereto shall execute, deliver, acknowledge and file such other documents and take
such further actions as may be reasonably requested from time to time by any other party hereto to give
effect to and carry out the transactions contemplated herein.
Section 4.7Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the
State of Delaware or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
14
Section 4.8Consent to Jurisdiction.
Each party hereto irrevocably submits to the exclusive jurisdiction of the United States District
Court for the State of Delaware and the state courts of the State of Delaware for the purposes of any suit,
action or other proceeding arising out of this Agreement or any transaction contemplated hereby. Each
party hereto further agrees that service of any process, summons, notice or document by United States
certified or registered mail (in each such case, prepaid return receipt requested) to such party’s respective
address set forth in Section 4.1 or such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party shall be effective service of
process in any action, suit or proceeding in Delaware with respect to any matters to which it has
submitted to jurisdiction as set forth above in the immediately preceding sentence. Each party hereto
irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or
proceeding arising out of this Agreement or the transactions contemplated hereby in the United States
District Court for the State of Delaware or the state courts of the State of Delaware and hereby
irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such
action, suit or proceeding brought in such court has been brought in an inconvenient forum.
Section 4.9Waiver of Jury Trial.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX TRANSACTIONS
ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO
APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND
OF ARBITRATION, EACH PARTY TO THIS AGREEMENT (INCLUDING THE COMPANY)
HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES
HERETO, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIPS ESTABLISHED
AMONG THE PARTIES HEREUNDER.
Section 4.10Amendments.
The provisions of this Agreement may be amended only by the affirmative vote or written
consent of each of the parties hereto. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by
law.
Section 4.11Assignment.
Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties; provided, that nothing herein shall
restrict the Member from assigning any of its rights or obligations hereunder to any direct or indirect
equityholder of the Member. Subject to the preceding sentence, this Agreement will be binding upon,
15
inure to the benefit of and be enforceable by the parties and their respective successors, assigns and
Permitted Transferees.
Section 4.12Specific Enforcement.
The parties hereto acknowledge that the remedies at law of the other parties for a breach or
threatened breach of this Agreement would be inadequate and, in recognition of this fact, any party to this
Agreement, without posting any bond, and in addition to all other remedies that may be available, shall be
entitled to equitable relief in the form of specific performance, a temporary restraining order, a temporary
or permanent injunction or any other equitable remedy that may then be available.
[Signature Pages to Follow]
Signature Page to Exchange Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized representatives as of the day and year first above written.
COMPANY | |
ACCELEVATION HOLDINGS LLC | |
By: | |
Name: | |
Title: | |
PUBCO | |
ACCELEVATION HOLDINGS CORP. | |
By: | |
Name: | |
Title: | |
MEMBER | |
ACCELEVATION INVESTMENT HOLDINGS LLC | |
By: | |
Name: | |
Title: | |
A-1
Exhibit A
Immediately Following IPO | |||
Number of Series B Units Owned | Number of Shares of Class B Common Stock Owned | ||
Name of Member | |||
Accelevation Investment Holdings, LLC | |||
B-1
Exhibit B
Form of Exchange Notice
Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attention: Chief Executive Officer
Email: ****
Reference is hereby made to the Exchange Agreement, dated as of , 2026 (as amended
from time to time, the “Exchange Agreement”), by and among Accelevation Holdings Corp., a Delaware
corporation (“Pubco”), Accelevation Holdings LLC, a Delaware limited liability company (the
“Company”), and Accelevation Investment Holdings LLC, a Delaware limited liability company (the
“Member”). Capitalized terms used but not defined herein shall have the meanings given to them in the
Exchange Agreement.
The Member hereby transfers to Pubco (or the Company, if applicable) effective as of the
Exchange Date, the number of Exchangeable Units in Exchange for either shares of Class A Common
Stock to be issued in its name or, at the option of Pubco, the Cash Payment payable to the account set
forth below, in accordance with the terms of the Exchange Agreement.
Number of Exchangeable Units to be Exchanged:
Number of shares of Class B Common Stock to be Exchanged:
If Pubco elects a Cash Payment:
Account Number:
Legal Name of Account Holder:
The Member hereby represents and warrants that: (i) it is a limited liability company duly formed
and is existing and in good standing under the laws of the State of Delaware; (ii) it has all requisite power
and authority to enter into this Exchange Notice and to perform the Member’s obligations hereunder; (iii)
the execution and delivery of this Exchange Notice by the Member and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary action on the part of the
Member; (iv) this Exchange Notice constitutes a legal, valid and binding obligation of the Member
enforceable against the Member in accordance with its terms, except as enforcement may be limited by
equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to
or limiting creditors’ rights generally; (v) the Exchangeable Units and shares of Class B Common Stock
subject to this Exchange Notice are being transferred to Pubco (or the Company, if applicable) free and
clear of any Liens; (vi) no consent, approval, authorization, order, registration or qualification of any third
party or with any court or governmental agency or body having jurisdiction over the Member, the
Exchanged Units or shares of Class B Common Stock subject to this Exchange Notice is required to be
obtained by the Member for the transfer of such Exchanged Units or shares of Class B Common Stock to
Pubco; and (vii) the Member is either not currently in possession of material non-public information
concerning Pubco or will not be in possession of such material non-public information at the time the
shares of Class A Common Stock are sold by the undersigned in any public sale.
B-2
The Member hereby irrevocably constitutes and appoints any officer of Pubco, Pubco or the
Company as the attorney of the undersigned, with full power of substitution and resubstitution in the
premises, to do any and all things and to take any and all actions that may be necessary to transfer to
Pubco (or the Company, if applicable) the Exchanged Units and shares of Class B Common Stock subject
to this Exchange Notice and to deliver to the Member the shares of Class A Common Stock or Cash
Payment to be delivered in exchange therefor.
IN WITNESS WHEREOF, the Member, by authority duly given, has caused this Exchange
Notice to be executed and delivered by the undersigned.
ACCELEVATION INVESTMENT HOLDINGS, LLC | |||
By: | |||
Name: | |||
Title: | |||
Dated: | |||
C-1
Exhibit C
Form of Joinder
This Joinder (“Joinder”) is a joinder agreement to the Exchange Agreement, dated as of
, 2026 (as amended from time to time, the “Exchange Agreement”), by and among
Accelevation Holdings Corp., a Delaware corporation (“Pubco”), Accelevation Holdings LLC, a
Delaware limited liability company (the “Company”), and Accelevation Investment Holdings LLC, a
Delaware limited liability company (the “Member”). Capitalized terms used but not defined herein shall
have the meanings given to them in the Exchange Agreement.
The Company, Pubco and the undersigned agree that all questions concerning the construction,
validity and interpretation of this Joinder shall be governed by, and construed in accordance with, the law
of the State of Delaware, without giving effect to any choice or conflict of law provision or rule,
notwithstanding that public policy in Delaware or any other forum jurisdiction might indicate that the
laws of that or any other jurisdiction should otherwise apply based on contacts with such state or
otherwise. In the event of any conflict between this Joinder and the Exchange Agreement, the terms of
this Joinder shall control.
The undersigned, having acquired Series B Units and shares of Class B Common Stock, hereby
joins and enters into the Exchange Agreement. By signing and returning this Joinder to the Company and
Pubco, the undersigned (i) accepts and agrees to be bound by and subject to all of the terms and
conditions of and agreements of the Member contained in the Exchange Agreement, with all attendant
rights, duties and obligations of the Member thereunder and (ii) makes each of the representations and
warranties of the Member set forth in Section 3.3 of the Exchange Agreement as fully as if such
representations and warranties were set forth herein. The parties to the Exchange Agreement shall treat
the execution and delivery hereof by the undersigned as the execution and delivery of the Exchange
Agreement by the undersigned and, upon receipt of this Joinder by the Company and Pubco, the signature
of the undersigned set forth below shall constitute a counterpart signature to the signature page of the
Agreement.
[●] | |||
Name: | |||
Title: | |||
Dated: | |||
Address for Notice: | |||
Exhibit 10.16
_______________________________________
ACCELEVATION HOLDINGS LLC
FORM OF LIMITED LIABILITY COMPANY AGREEMENT
_______________________________________
Dated as of , 2026
THE UNITS ISSUED PURSUANT TO THIS LIMITED LIABILITY COMPANY AGREEMENT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH UNITS MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME
WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR AN EXEMPTION
THEREFROM, AND COMPLIANCE WITH THE OTHER RESTRICTIONS ON TRANSFERABILITY
SET FORTH HEREIN.
CERTAIN UNITS MAY ALSO BE SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER
SET FORTH HEREIN AND/OR IN A SEPARATE AGREEMENT WITH THE INITIAL HOLDER OF
SUCH UNITS. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER OF
SUCH UNITS UPON WRITTEN REQUEST TO THE COMPANY AND WITHOUT CHARGE.
i
TABLE OF CONTENTS
Page | |||
ARTICLE I DEFINITIONS .................................................................................................... | 1 | ||
ARTICLE II ORGANIZATIONAL MATTERS .................................................................. | 8 | ||
Section 2.1 | Formation of LLC ................................................................................. | 8 | |
Section 2.2 | Limited Liability Company Agreement ................................................ | 8 | |
Section 2.3 | Name ..................................................................................................... | 8 | |
Section 2.4 | Purpose .................................................................................................. | 8 | |
Section 2.5 | Principal Office; Registered Office ....................................................... | 8 | |
Section 2.6 | Term ...................................................................................................... | 9 | |
Section 2.7 | No State-Law Partnership ..................................................................... | 9 | |
ARTICLE III UNITS, CAPITAL CONTRIBUTIONS AND ACCOUNTS ....................... | 9 | ||
Section 3.1 | Units; Capitalization .............................................................................. | 9 | |
Section 3.2 | Authorization and Issuance of Additional Units ................................... | 10 | |
Section 3.3 | Repurchase or Redemptions .................................................................. | 12 | |
Section 3.4 | Equity Subdivisions and Combinations ................................................ | 13 | |
Section 3.5 | General Authority .................................................................................. | 13 | |
Section 3.6 | Capital Accounts ................................................................................... | 13 | |
Section 3.7 | Negative Capital Accounts; No Interest Regarding Positive Capital Accounts ................................................................................................ | 14 | |
Section 3.8 | No Withdrawal ...................................................................................... | 15 | |
Section 3.9 | Loans From Unitholders ........................................................................ | 15 | |
Section 3.10 | Adjustments to Capital Accounts for Distributions In-Kind ................. | 15 | |
Section 3.11 | Transfer of Capital Accounts ................................................................ | 15 | |
Section 3.12 | Adjustments to Book Value .................................................................. | 15 | |
Section 3.13 | Compliance With Section 1.704-1(b) .................................................... | 16 | |
ARTICLE IV DISTRIBUTIONS AND ALLOCATIONS ................................................... | 16 | ||
Section 4.1 | Distributions .......................................................................................... | 16 | |
Section 4.2 | Allocations ............................................................................................. | 17 | |
Section 4.3 | Special Allocations ................................................................................ | 17 | |
Section 4.4 | Offsetting Allocations ........................................................................... | 19 | |
Section 4.5 | Tax Allocations ..................................................................................... | 19 | |
Section 4.6 | Indemnification and Reimbursement for Payments on Behalf of a Member ................................................................................................. | 20 | |
ARTICLE V MANAGEMENT AND CONTROL OF BUSINESS ..................................... | 21 | ||
Section 5.1 | Management .......................................................................................... | 21 | |
Section 5.2 | Investment Company Act ...................................................................... | 22 | |
Section 5.3 | Officers .................................................................................................. | 22 | |
ii
Section 5.4 | Fiduciary Duties .................................................................................... | 23 | |
ARTICLE VI EXCULPATION AND INDEMNIFICATION ............................................. | 24 | ||
Section 6.1 | Exculpation ............................................................................................ | 24 | |
Section 6.2 | Indemnification ..................................................................................... | 24 | |
Section 6.3 | Expenses ................................................................................................ | 25 | |
Section 6.4 | Non-Exclusivity; Savings Clause .......................................................... | 25 | |
Section 6.5 | Insurance ............................................................................................... | 25 | |
ARTICLE VII ACCOUNTING AND RECORDS; TAX MATTERS ................................ | 25 | ||
Section 7.1 | Accounting and Records ....................................................................... | 25 | |
Section 7.2 | Preparation of Tax Returns .................................................................... | 25 | |
Section 7.3 | Tax Elections ......................................................................................... | 26 | |
Section 7.4 | Tax Controversies .................................................................................. | 26 | |
Section 7.5 | Code § 83 Safe Harbor Election ............................................................ | 27 | |
ARTICLE VIII TRANSFER OF UNITS; ADMISSION OF NEW MEMBERS .............. | 28 | ||
Section 8.1 | Transfer of Units ................................................................................... | 28 | |
Section 8.2 | Recognition of Transfer; Substituted and Additional Members ............ | 28 | |
Section 8.3 | Expense of Transfer; Indemnification ................................................... | 30 | |
Section 8.4 | Exchange Agreement ............................................................................ | 30 | |
Section 8.5 | Change of Control Transactions ............................................................ | 30 | |
ARTICLE IX WITHDRAWAL AND RESIGNATION OF UNITHOLDERS ................. | 30 | ||
Section 9.1 | Withdrawal and Resignation of Unitholders ......................................... | 30 | |
ARTICLE X DISSOLUTION AND LIQUIDATION .......................................................... | 30 | ||
Section 10.1 | Dissolution ............................................................................................. | 30 | |
Section 10.2 | Liquidation and Termination ................................................................. | 31 | |
Section 10.3 | Securityholders Agreement ................................................................... | 32 | |
Section 10.4 | Cancellation of Certificate ..................................................................... | 32 | |
Section 10.5 | Reasonable Time for Winding Up ......................................................... | 32 | |
Section 10.6 | Return of Capital ................................................................................... | 32 | |
Section 10.7 | Hart-Scott-Rodino ................................................................................. | 32 | |
ARTICLE XI GENERAL PROVISIONS ............................................................................. | 32 | ||
Section 11.1 | Power of Attorney ................................................................................. | 32 | |
Section 11.2 | Amendments .......................................................................................... | 33 | |
Section 11.3 | Title to the Company Assets ................................................................. | 33 | |
Section 11.4 | Remedies ............................................................................................... | 33 | |
Section 11.5 | Successors and Assigns ......................................................................... | 33 | |
Section 11.6 | Severability ............................................................................................ | 33 | |
iii
Section 11.7 | Counterparts; Binding Agreement ......................................................... | 33 | |
Section 11.8 | Descriptive Headings; Interpretation ..................................................... | 34 | |
Section 11.9 | Applicable Law ..................................................................................... | 34 | |
Section 11.10 | Addresses and Notices ........................................................................... | 34 | |
Section 11.11 | Creditors ................................................................................................ | 34 | |
Section 11.12 | No Waiver ............................................................................................. | 34 | |
Section 11.13 | Further Action ....................................................................................... | 35 | |
Section 11.14 | Entire Agreement .................................................................................. | 35 | |
Section 11.15 | Delivery by Electronic Means ............................................................... | 35 | |
Section 11.16 | Certain Acknowledgments .................................................................... | 35 | |
Section 11.17 | Consent to Jurisdiction; WAIVER OF TRIAL BY JURY .................... | 35 | |
Section 11.18 | Representations and Warranties ............................................................ | 36 | |
Section 11.19 | Tax Receivable Agreement ................................................................... | 36 |
1
ACCELEVATION HOLDINGS LLC
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT of Accelevation Holdings LLC, a
Delaware limited liability company (the “Company”), is entered into as of , 2026, by and among
the Company, Accelevation Holdings Corp., a Delaware corporation (“Pubco”), Instor Blocker, Inc., a
Delaware corporation (“Instor Blocker”), and Accelevation Investment Holdings LLC, a Delaware limited
liability company (“Holdings”). Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to such terms in Article I.
WHEREAS, the Certificate was filed with the Office of the Secretary of State of Delaware
on , 2026;
WHEREAS, in connection with and prior to the initial public offering of Class A Common Stock
of Pubco (the “IPO”), Pubco acquired certain Company membership interests;
WHEREAS, in connection with the IPO: (i) the Company and the Members desire to recapitalize
the Company’s membership interests pursuant to this Agreement such that (A) all of the membership
interests held by Holdings as of the date hereof are automatically converted into a number of Series B
Common Units that have an equivalent aggregate value as of the date hereof and (B) all of the
membership interests held by Pubco as of the date hereof are automatically converted into a number of
Series A Common Units that have an equivalent aggregate value as of the date hereof; (ii) Pubco will
purchase Series A Common Units using a portion of the net proceeds of the IPO; and (iii) Pubco, the
Company and Holdings will enter into an Exchange Agreement, pursuant to which Holdings will be
permitted to exchange Series B Common Units (together with the corresponding number of shares of
Class B Common Stock) for Class A Common Stock or the Cash Payment (as defined therein) (clauses (i)
through (iii), collectively, the “IPO Transactions”); and
WHEREAS, the parties hereto desire to enter into this Agreement to give effect to the IPO
Transactions and reflect the admission of Pubco as the sole manager of the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Members,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the following meaning:
“704(c) Event” has the meaning set forth in Section 4.5(b).
“Additional Member” means a Person admitted to the Company as a Member pursuant to Section
8.2.
“Adjusted Capital Account Deficit” means, with respect to any Capital Account as of the end of
any Taxable Year, the amount by which the balance in such Capital Account is less than zero. For this
purpose, such Person’s Capital Account balance shall be (i) reduced for any items described in Treasury
Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) and (ii) increased for any amount such Person is
obligated to contribute or is treated as being obligated to contribute to the Company pursuant to Treasury
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Regulation Sections 1.704-1(b)(2)(ii)(c) (relating to partner liabilities to a partnership) or 1.704-2(g)(1)
and 1.704-2(i) (relating to Minimum Gain).
“Affiliate” of any Person means any other Person controlled by, controlling or under common
control with such Person, and in the case of any Unitholder that is a partnership, limited liability
company, corporation or similar entity, any partner, member or stockholder of such Unitholder; provided,
that the Company and its Subsidiaries shall not be deemed to be Affiliates of any Unitholder. As used in
this definition, “control” (including, with its correlative meanings, “controlling,” “controlled by” and
“under common control with”) shall mean possession, directly or indirectly, of power to direct or cause
the direction of management or policies (whether through ownership of securities, by contract or
otherwise).
“Agreement” means this Limited Liability Company Agreement, as it may be amended, modified
and/or waived from time to time in accordance with the terms hereof.
“Assumed Tax Liability” means, with respect to any Unitholder for any Fiscal Quarter, an
amount, which in the good faith estimation of the Manager, equals the product of (a) the amount of
taxable income of the Company allocable to such Unitholder in respect of such Fiscal Quarter (which
shall include gross or net income allocations of items of Profit or Loss), determined (w) by assuming such
Unitholder earned solely the items of income, gain, deduction, loss and/or credit allocated to such
Unitholder by the Company for such taxable period, (x) by including adjustments under Section 732(d),
734(b) and 743(b) of the Code, (y) by including adjustments to taxable income in respect of
Section 704(c) of the Code and (z) reducing such taxable income by net taxable losses of the Company
allocated to such Unitholder for prior taxable periods beginning after the date hereof to the extent that
such losses are of a character (ordinary or capital) that would permit the losses to be deducted by such
Unitholder against the current taxable income of the Company allocable to the Unitholder for such Fiscal
Quarter and have not previously been taken into account in determining such Unitholder’s Assumed Tax
Liability, multiplied by (b) the Assumed Tax Rate; provided that in the case of Pubco, the Assumed Tax
Liability shall in no event be less than an amount that will enable Pubco to meet its obligations pursuant
to the Tax Receivable Agreement for the relevant Taxable Year.
“Assumed Tax Rate” means the combined maximum U.S. federal, state and local income tax rate
applicable to a taxable individual or corporation in any jurisdiction in the United States (whichever is
higher), including pursuant to Section 1411 of the Code, in each case, taking into account all jurisdictions
in which the Company is required to file income tax returns and the relevant apportionment information,
in effect for the applicable Fiscal Quarter (making an appropriate adjustment for any rate changes that
take place during such period and taking into account the character of the income).
“Base Rate” means, as of any date, a variable rate per annum equal to the rate of interest most
recently published by The Wall Street Journal as the “prime rate” at large U.S. money center banks.
“Board” means the board of directors of Pubco.
“Book Value” means, with respect to any of the Company property, the Company’s adjusted
basis for federal income Tax purposes, adjusted from time to time to reflect the adjustments required or
permitted (in the case of permitted adjustments, to the extent the Company makes such permitted
adjustments) by Treasury Regulation Sections 1.704-1(b)(2)(iv)(d)-(g).
“Business Day” means any day other than a Saturday, Sunday or other day on which the banks in
New York, New York, Chicago, Illinois or Miamisburg, Ohio are authorized by law to be closed.
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“Capital Account” means the capital account maintained for a Member pursuant to Section 3.6
and the other applicable provisions of this Agreement.
“Capital Contributions” means any cash, cash equivalents, promissory obligations or the Fair
Market Value of other property which a Unitholder contributes or is deemed by the Manager to have
contributed to the Company with respect to any Unit pursuant to Section 3.1 or Section 3.11.
“Cash Payment” has the meaning set forth in the Exchange Agreement.
“Certificate” means the Company’s Certificate of Formation as filed with the Secretary of State
of Delaware, as the same may be amended from time to time.
“Change of Control Exchange” has the meaning set forth in the Exchange Agreement.
“Class A Common Stock” means shares of Class A common stock, par value $0.0001 per share,
of Pubco.
“Class A Common Stock Value” has the meaning set forth in the Exchange Agreement.
“Class B Common Stock” means shares of Class B common stock, par value $0.0001 per share,
of Pubco.
“Code” means the United States Internal Revenue Code of 1986, as amended. Such term, if
elected by the Manager in its sole discretion, shall be deemed to include any future amendments to the
Code and any corresponding provisions of succeeding Code provisions (whether or not such amendments
and corresponding provisions are mandatory or discretionary).
“Common Units” means the Series A Common Units and the Series B Common Units.
“Company” has the meaning set forth in the Preamble.
“Delaware Act” means the Delaware Limited Liability Company Act, 6 Del. L. § 18-101, et seq.,
as it may be amended from time to time, and any successor thereto.
“Distribution” means each distribution made by the Company to a Unitholder, with respect to
such Person’s Units, whether in cash, property or securities and whether by liquidating distribution,
redemption, repurchase or otherwise; provided that notwithstanding anything in the foregoing to the
contrary, none of the following shall be deemed to be a Distribution hereunder: (i) any recapitalization,
exchange or conversion of securities of the Company; (ii) any subdivision (by unit split or otherwise) or
any combination (by reverse unit split or otherwise) of any outstanding Units; (iii) any Tax Distribution
and (iv) any repurchase of Units pursuant to any right of first refusal or similar repurchase right in favor
of the Company.
“Equity Agreement” has the meaning set forth in Section 3.2(a).
“Equity Securities” means (i) any Units, capital stock, partnership, membership or limited
liability company interests or other equity interests (including other classes, groups or series thereof
having such relative rights, powers and/or obligations as may from time to time be established by the
Manager, including rights, powers and/or duties different from, senior to or more favorable than existing
classes, groups and series of Units, capital stock, partnership, membership or limited liability company
4
interests or other equity interests, and including any profits interests), (ii) obligations, evidences of
indebtedness or other securities or interests convertible or exchangeable into Units, capital stock,
partnership interests, membership or limited liability company interests or other equity interests and (iii)
warrants, options or other rights to purchase or otherwise acquire Units, capital stock, partnership
interests, membership or limited liability company interests or other equity interests. Unless the context
otherwise indicates, the term “Equity Securities” refers to Equity Securities of the Company.
“Event of Withdrawal” means the death, retirement, resignation, expulsion, bankruptcy or
dissolution of a Member or the occurrence of any other event that terminates the continued membership
of a Member in the Company.
“Exchange” has the meaning set forth in the Exchange Agreement.
“Exchange Agreement” means the Exchange Agreement, dated as of the date hereof, by and
among Pubco, the Company and Holdings, as the same may be amended, amended and restated or
replaced from time to time.
“Exchange Rate” has the meaning set forth in the Exchange Agreement.
“Exchangeable Unit” has the meaning set forth in the Exchange Agreement.
“Exchanged Unit Amount” has the meaning set forth in the Exchange Agreement.
“Fair Market Value” means, as of any date of determination, (i) with respect to a Unit, such
Unit’s Pro Rata Share as of such date, (ii) with respect to a share of Class A Common Stock, the Class A
Common Stock Value as of such date, and (iii) with respect to any other non-cash assets, the fair market
value for such property as between a willing buyer under no compulsion to buy and a willing seller under
no compulsion to sell in an arm’s-length transaction occurring on such date, taking into account all
relevant factors determinative of value (including in the case of securities, any restrictions on transfer
applicable thereto or, if such securities are traded on a securities exchange or automated or electronic
quotation system, the quoted price for such securities as of the date of determination), as reasonably
determined in good faith by the Manager.
“Fiscal Quarter” means each calendar quarter ending March 31, June 30, September 30 and
December 31, or such other quarterly accounting period as may be established by the Manager.
“Fiscal Year” means the 12-month period ending on December 31, or such other annual
accounting period as may be established by the Manager.
“Forfeiture Allocations” has the meaning set forth in Section 4.3.
“Governmental Entity” means the United States of America or any other nation, any state or other
political subdivision thereof or any entity exercising executive, legislative, judicial, regulatory or
administrative functions of government.
“Holdings” has the meaning set forth in the Preamble, together with its successors and assigns;
provided that, in the event that Holdings has not appointed a successor prior to the date on which it
dissolves, liquidates, winds up, terminates or otherwise ceases to exist, Olympus shall be deemed to be a
successor to Holdings for all applicable purposes of this Agreement, including Section 7.4.
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“HSR Act” has the meaning set forth in Section 10.7.
“Indemnitee” has the meaning set forth in Section 6.2.
“Instor Blocker” has the meaning set forth in the Preamble.
“Investment Company Act” means the Investment Company Act of 1940, as amended from time
to time.
“IPO” has the meaning set forth in the Recitals.
“IPO Transactions” has the meaning set forth in the Recitals.
“IPO 704(c) Event” has the meaning set forth in Section 3.12.
“IRS Notice” has the meaning set forth in Section 7.5.
“Liquidation Assets” has the meaning set forth in Section 10.2(b).
“Liquidation FMV” has the meaning set forth in Section 10.2(b).
“Liquidation Statement” has the meaning set forth in Section 10.2(b).
“Losses” means items of the Company loss and deduction determined according to Section 3.6.
“Manager” means (i) Pubco so long as Pubco has not withdrawn as the Manager pursuant to
Section 5.1(c) and (ii) any successor thereof appointed as Manager in accordance with Section 5.1(c).
Unless the context otherwise requires, references herein to the Manager shall refer to the Manager acting
in its capacity as such.
“Member” means each Person listed on the Unit Ownership Ledger and any Person admitted to
the Company as a Substituted Member or Additional Member in accordance with the terms and
conditions of this Agreement, in each case, in such Person's capacity as a member of the Company; but in
each case only for so long as such Person is shown on the Company’s books and records as the owner of
one or more Units.
“Minimum Gain” means the partnership minimum gain determined pursuant to Treasury
Regulation Section 1.704-2(d).
“Notice Date” has the meaning set forth in Section 4.5(b).
“Obligations” has the meaning set forth in Section 6.2.
“Olympus” means Olympus Growth Fund VII, L.P., a Delaware limited partnership, or
its designee.
“Partnership Representative” has the meaning set forth in Section 7.4(a).
“Partnership Tax Audit Rules” means Code Sections 6221 through 6241, together with any
guidance issued thereunder or successor provisions and any similar provision of state or local Tax laws.
6
“Permitted Transferee” means, with respect to any Person, (i) any of such Person’s Affiliates and
(ii) any direct or indirect partner, member, stockholder or other equityholder of such Person.
“Person” means an individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated organization, association or
other entity or a Governmental Entity.
“Pro Rata Share” means with respect to each Unit, the proportionate amount such Unit would
receive if an amount equal to the Total Equity Value were distributed to all Units in accordance with
Section 4.1(b), as determined in good faith by the Manager.
“Profits” means items of the Company income and gain determined according to Section 3.6.
“Pubco” has the meaning set forth in the Preamble.
“Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of
the date hereof, by and among Pubco and certain other parties thereto, as the same may be amended,
amended and restated or replaced from time to time.
“Regulatory Allocations” has the meaning set forth in Section 4.3(e).
“Securities Act” means the Securities Act of 1933, as amended, and applicable rules and
regulations thereunder, and any successor to such statute, rules or regulations. Any reference herein to a
specific section, rule or regulation of the Securities Act shall be deemed to include any corresponding
provisions of future law.
“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended, and
applicable rules and regulations thereunder, and any successor to such statute, rules or regulations. Any
reference herein to a specific section, rule or regulation of the Securities Exchange Act shall be deemed to
include any corresponding provisions of future law.
“Series A Common Unit” means a Unit having the rights and obligations specified with respect to
a Series A Common Unit in this Agreement.
“Series B Common Unit” means a Unit having the rights and obligations specified with respect to
a Series B Common Unit in this Agreement; provided, that a Series B Common Unit shall not have any
voting rights under this Agreement or the Delaware Act.
“Specified Audit” has the meaning set forth in Section 7.4(c).
“Subsidiary” means, with respect to any Person, any corporation, limited liability company,
partnership, association or business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a
limited liability company, partnership, association or other business entity (other than a corporation), a
majority of partnership or other similar ownership interests thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof and without limitation, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or other business entity (other
7
than a corporation) if such Person or Persons shall be allocated a majority of limited liability company,
partnership, association or other business entity gains or losses or shall be or control the manager,
managing member, managing director (or a board comprised of any of the foregoing) or general partner
of such limited liability company, partnership, association or other business entity. For purposes hereof,
references to a “Subsidiary” of any Person shall be given effect only at such times that such Person has
one or more Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of
the Company.
“Substituted Member” means a Person that is admitted as a Member to the Company pursuant to
Section 8.2.
“Tax” or “Taxes” means any federal, state, local or foreign income, gross receipts, franchise,
estimated, alternative minimum, add-on minimum, sales, use, transfer, registration, value added, excise,
natural resources, severance, stamp, occupation, premium, windfall profit, environmental, customs,
duties, real property, personal property, capital stock, social security, unemployment, disability, payroll,
license, employee or other withholding or other tax of any kind whatsoever, including any transferee
liability and any interest, penalties or additions to tax or additional amounts in respect of the foregoing.
“Tax Advances” has the meaning set forth in Section 4.6.
“Tax Distribution” has the meaning set forth in Section 4.1(a)(i).
“Tax Distribution Conditions” has the meaning set forth in Section 4.1(a)(i).
“Tax Distribution Date” means April 10, June 10, September 10 and December 10 of each
calendar year, which shall be adjusted by the Manager as reasonably necessary to take into account
changes in estimated tax payment due dates for U.S. federal income Taxes under applicable law.
“Tax Receivable Agreement” means the Tax Receivable Agreement dated as of the date hereof,
by and among Pubco, the Company and the other parties thereto, as the same may be amended, amended
and restated or replaced from time to time.
“Taxable Year” means the Company’s accounting period for federal income Tax purposes
determined pursuant to Section 7.3.
“Total Equity Value” means, as of any date of determination, the aggregate proceeds which
would be received by the Unitholders if: (i) the assets of the Company were sold at their fair market value
to an independent third-party on arm’s-length terms, with neither the seller nor the buyer being under
compulsion to buy or sell such assets; (ii) the Company satisfied and paid in full all of its obligations and
liabilities (including all Taxes, costs and expenses incurred in connection with such transaction and any
amounts reserved by the Manager with respect to any contingent or other liabilities); and (iii) such net
sale proceeds were then distributed in accordance with Section 4.1, all as determined by the Manager in
good faith based upon the Class A Common Stock Value as of such date.
“Traditional Method with Curative Allocations” has the meaning set forth in Section 4.5(b).
“Transaction Documents” means, collectively, this Agreement, the Exchange Agreement, the
Registration Rights Agreement and the Tax Receivable Agreement.
“Transfer” has the meaning set forth in Section 8.1.
8
“Treasury Regulations” means the income Tax regulations promulgated under the Code and
effective as of the date of this Agreement. Such term, if elected by the Manager in its sole discretion, shall
be deemed to include any future amendments to such regulations and any corresponding provisions of
succeeding regulations (whether or not such amendments and corresponding provisions are mandatory or
discretionary).
“Unit” means a limited liability company interest in the Company of a Member or representing a
fractional part of the interests in Profits, Losses and Distributions of the Company held by all Members
and shall include Common Units.
“Unit Ownership Ledger” has the meaning set forth in Section 3.1(b).
“Unitholder” means any owner of one or more Units as reflected on the Company’s books and
records.
ARTICLE II
ORGANIZATIONAL MATTERS
Section 2.1Formation of LLC. The Company was formed in the State of Delaware
on , 2026 pursuant to the provisions of the Delaware Act.
Section 2.2Limited Liability Company Agreement. The Members hereby execute this
Agreement for the purpose of establishing the affairs of the Company and the conduct of its business in
accordance with the provisions of the Delaware Act. The Members hereby agree that during the term of
the Company set forth in Section 2.6 the rights, powers and obligations of the Unitholders with respect to
the Company will be determined in accordance with the terms and conditions of this Agreement and,
except where the Delaware Act provides that such rights, powers and obligations specified in the
Delaware Act shall apply “unless otherwise provided in a limited liability company agreement” or words
of similar effect and such rights, powers and obligations are set forth in this Agreement, the Delaware
Act; provided that, notwithstanding the foregoing and anything else to the contrary, Section 18-305(a) of
the Delaware Act (entitled “Access to and Confidentiality of Information; Records”) shall not apply to or
be incorporated into this Agreement and each Unitholder hereby expressly waives any and all rights under
such Section of the Delaware Act.
Section 2.3Name . The name of the Company shall be “Accelevation Holdings LLC”. The
Manager may change the name of the Company at any time and from time to time. Notification of any
such name change shall be given to all Unitholders. The Company’s business may be conducted under its
name and/or any other name or names deemed advisable by the Manager.
Section 2.4Purpose. The purpose and business of the Company shall be to manage and
direct the business operations and affairs of the Company and its Subsidiaries and to engage in any other
lawful acts or activities for which limited liability companies may be organized under the Delaware Act.
Section 2.5Principal Office; Registered Office. The principal office of the Company shall
be located at 9555 Springboro Pike Ste 400, Miamisburg, Ohio, 45342, or at such other place inside or
outside the state of Delaware as the Manager may from time to time designate, and all business and
activities of the Company shall be deemed to have occurred at its principal office. The Company may
maintain offices at such other place or places as the Manager deems advisable. The address of the
registered office of the Company in the State of Delaware shall be the office of the initial registered agent
named in the Certificate or such other office (which need not be a place of business of the Company) as
9
the Manager may designate from time to time in the manner provided by applicable law, and the
registered agent for service of process on the Company in the State of Delaware at such registered office
shall be the registered agent named in the Certificate or such Person or Persons as the Manager may
designate from time to time in the manner provided by applicable law.
Section 2.6Term. The term of the Company commenced upon the filing of the Certificate
with the office of the Secretary of State of the State of Delaware in accordance with the Delaware Act and
shall continue in existence until the cancellation of the Certificate in accordance with the Delaware Act.
Section 2.7No State-Law Partnership. The Unitholders intend that the Company not be a
partnership (including a limited partnership) or joint venture, and that no Unitholder be a partner or joint
venturer of any other Unitholder by virtue of this Agreement, for any purposes other than as set forth in
the last sentence of this Section 2.7, and neither this Agreement nor any other document entered into by
the Company or any Unitholder relating to the subject matter hereof shall be construed to suggest
otherwise. The Unitholders intend that the Company shall be treated as a partnership for federal and, if
applicable, state or local income Tax purposes, and that each Unitholder and the Company shall file all
Tax returns and shall otherwise take all Tax and financial reporting positions in a manner consistent with
such treatment.
ARTICLE III
UNITS, CAPITAL CONTRIBUTIONS AND ACCOUNTS
Section 3.1Units; Capitalization.
(a)Units; Capitalization. The Company shall have the authority to issue an unlimited number
of Series A Common Units and Series B Common Units. The ownership by a Member of Common Units
shall entitle such Member to allocations of Profits and Losses and other items and Distributions of cash
and other property as set forth in Article IV hereof.
(b)Unit Ownership Ledger; Capital Contributions. The Manager shall create and maintain a
ledger (the “Unit Ownership Ledger”) setting forth the name and address of each Unitholder, the number
of each class of Units held of record by each such Unitholder and the amount of the Capital Contribution
made with respect to each class of Units and the date of such Capital Contribution. Upon any change in
the number or ownership of outstanding Units (whether upon an issuance of Units, a Transfer of Units, a
cancellation of Units or otherwise), the Manager shall amend and update the Unit Ownership Ledger.
Absent manifest error, the ownership interests recorded on the Unit Ownership Ledger shall be conclusive
record of the Units that have been issued and are outstanding. Each Unitholder named in the Unit
Ownership Ledger has made (or shall be deemed to have made) Capital Contributions to the Company as
set forth in the Unit Ownership Ledger in exchange for the Units specified in the Unit Ownership Ledger.
Any reference in this Agreement to the Unit Ownership Ledger shall be deemed a reference to the Unit
Ownership Ledger as amended and in effect from time to time.
(c)Certificates; Legends. Units shall be issued in uncertificated form; provided that, at the
request of any Member, the Manager may cause the Company to issue one or more certificates to any
such Member holding Units representing in the aggregate the Units held by such Member. If any
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certificate representing Units is issued, then such certificate shall bear a legend substantially in the
following form:
THIS CERTIFICATE EVIDENCES UNITS REPRESENTING A
MEMBERSHIP INTEREST IN ACCELEVATION HOLDINGS LLC. THE
MEMBERSHIP INTEREST IN ACCELEVATION HOLDINGS LLC
REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR ANY
NON-U.S. OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE THEREWITH. THE MEMBERSHIP INTEREST IN
ACCELEVATION HOLDINGS LLC REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO RESTRICTIONS ON TRANSFER SET
FORTH IN THE LIMITED LIABILITY COMPANY AGREEMENT OF
ACCELEVATION HOLDINGS LLC, DATED AS OF , 2026, AS THE
SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH
SHALL BE FURNISHED BY THE COMPANY TO THE RECORD HOLDER
HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.
(d)Conversion of Prior Membership Interests. Contemporaneous with the execution and
effectiveness of this Agreement, all of the membership interests in the Company that were issued and
outstanding and held by the Members immediately prior to the effectiveness of this Agreement are hereby
converted into the Series A Common Units and Series B Common Units, respectively, as set forth on the
Unit Ownership Ledger.
Section 3.2Authorization and Issuance of Additional Units.
(a)The Manager shall have the right to cause the Company to issue and/or create and issue at
any time after the date hereof, and for such amount and form of consideration as the Manager may
determine, additional Units or other Equity Securities of the Company (including creating classes or
series thereof having such powers, designations, preferences and rights as may be determined by the
Manager). The Manager shall have the power to make such amendments to this Agreement in order to
provide for such powers, designations, preferences and rights as the Manager in its discretion deems
necessary or appropriate to give effect to such additional authorization or issuance in accordance with the
provisions of this Section 3.2(a). In connection with any issuance of Units (whether on or after the date of
this Agreement), the Person who acquires such Units shall execute a counterpart to this Agreement
accepting and agreeing to be bound by all terms and conditions hereof, and shall enter into such other
documents, instruments and agreements to effect such purchase as are required by the Manager (including
such documents, instruments and agreements entered into on or prior to the date of this Agreement by the
Members, each, an “Equity Agreement”). The Company may not issue any additional Series A Common
Units or other Equity Securities to Pubco or any of its Subsidiaries except as set forth in Section 3.2(b),
Section 3.2(c) or Section 3.2(d).
(b)At any time Pubco issues one or more shares of Class A Common Stock or any other
Equity Securities of Pubco (other than an issuance of the type covered by Section 3.2(d) or an issuance to
a holder of Exchangeable Units pursuant to the Exchange Agreement, as described in Section 3.2(c)),
Pubco shall contribute to the Company all of the net proceeds (if any) received by Pubco with respect to
such share or shares of Class A Common Stock or other Equity Securities of Pubco. Upon the
contribution by Pubco to the Company of all of such net proceeds so received by Pubco, the Manager
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shall cause the Company to issue a number of Series A Common Units (if Pubco issues shares of Class A
Common Stock), determined based upon the Exchange Rate then in effect, or an equal number of such
Equity Securities of the Company corresponding to the Equity Securities issued by Pubco (if Pubco issues
Equity Securities other than shares of Class A Common Stock) registered in the name of Pubco so that the
aggregate number of Series A Common Units and other Equity Securities of the Company held by Pubco
at all times equals the number of shares of Class A Common Stock and other Equity Securities issued by
Pubco issued and outstanding; provided, however, that if Pubco issues one or more shares of Class A
Common Stock or other Equity Securities of Pubco, some or all of the net proceeds of which are to be
used to fund expenses or other obligations of Pubco for which Pubco would be permitted a Distribution
pursuant to Article IV, then Pubco shall not be required to transfer such net proceeds to the Company
which are used or will be used to fund such expenses or obligations; provided further, that if Pubco issues
any shares of Class A Common Stock in order to purchase or fund the purchase of Common Units from a
Member (other than a Subsidiary of Pubco), then the Company shall not issue any new Common Units
registered in the name of Pubco in accordance with Section 3.2(c) and Pubco shall not be required to
transfer such net proceeds to the Company (it being understood that such net proceeds shall instead be
transferred by Pubco to such other Member as consideration for such purchase). Notwithstanding the
foregoing, this Section 3.2(b) shall not apply to the issuance and distribution to holders of shares of Class
A Common Stock of rights to purchase Equity Securities of Pubco under a “poison pill” or similar
shareholder’s rights plan (it being understood that (i) upon exchange of Exchangeable Units for Class A
Common Stock pursuant to the Exchange Agreement, such Class A Common Stock would be issued
together with any such corresponding right, and (ii) in the event such rights to purchase Equity Securities
of Pubco are triggered, Pubco will ensure that the holders of Common Units that have not been exchanged
prior to such time will be treated equitably vis-à-vis the holders of Class A Common Stock under such
plan).
(c)At any time a holder of Exchangeable Units exchanges such Exchangeable Units for
shares of Class A Common Stock, the Company shall cancel such Exchangeable Units. Upon the
cancellation by the Company of the Exchangeable Units exchanged for shares of Class A Common Stock,
the Manager shall cause the Company to issue a number of Series A Common Units equal to the
Exchanged Unit Amount, registered in the name of Pubco in accordance with Section 2.6 of the Exchange
Agreement. At any time a holder of Exchangeable Units exchanges such Exchangeable Units for a Cash
Payment, the Company shall cancel such Exchangeable Units and the Manager shall cause the Company
to issue a number of Series A Common Units equal to the Exchanged Unit Amount, registered in the
name of Pubco in accordance with Section 2.6 of the Exchange Agreement.
(d)At any time Pubco issues one or more shares of Class A Common Stock or other Equity
Securities of Pubco in connection with an equity incentive program, whether such share or shares are
issued upon exercise (including cashless exercise) of an option, settlement of a restricted stock unit, as
restricted stock or otherwise, the Manager shall cause the Company to issue a corresponding number of
Series A Common Units or Equity Securities of the Company corresponding to the Equity Securities
issued by Pubco (if Pubco issues Equity Securities other than shares of Class A Common Stock), and with
substantially the same rights to dividends and distributions (including distributions upon liquidation) and
other economic rights as those of such Equity Securities of Pubco so issued, registered in the name of
Pubco (determined based upon the Exchange Rate then in effect) so that the aggregate number of Series A
Common Units and other Equity Securities held by Pubco at all times equals the number of shares of
Class A Common Stock and other Equity Securities issued and outstanding; provided that Pubco shall be
required to contribute to the Company all (but not less than all) of the net proceeds (if any) received by
Pubco from or otherwise in connection with such issuance of one or more shares of Class A Common
Stock or other Equity Securities of Pubco, including the exercise price of any option exercised. If any
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such shares of Class A Common Stock or other Equity Securities so issued by Pubco in connection with
an equity incentive program are subject to vesting or forfeiture provisions, then the Series A Common
Units or other Equity Securities of the Company corresponding to the Equity Securities issued by Pubco
(if Pubco issues Equity Securities other than shares of Class A Common Stock) that are issued by the
Company to Pubco in connection therewith in accordance with the preceding provisions of this Section
3.2(d) shall be subject to vesting or forfeiture on the same basis; if any of such shares of Class A
Common Stock or other Equity Securities of Pubco vest or are forfeited, then a corresponding number of
the Series A Common Units (determined based upon the Exchange Rate then in effect) or other Equity
Securities issued by the Company corresponding to the Equity Securities issued by Pubco (if Pubco issues
Equity Securities other than shares of Class A Common Stock) in accordance with the preceding
provisions of this Section 3.2(d) shall automatically vest or be forfeited. Any cash or property held by
Pubco or the Company or on any of such Person’s behalf in respect of dividends paid on restricted shares
of Class A Common Stock or other Equity Securities of Pubco that fail to vest shall be returned to the
Company upon the forfeiture of such restricted shares of Class A Common Stock or other Equity
Securities of Pubco.
(e)Pubco shall at all times reserve and keep available out of its authorized but unissued
Class A Common Stock, solely for the purpose of issuance upon an Exchange, the maximum number of
shares of Class A Common Stock as shall be issuable upon Exchange of all outstanding Series B
Common Units and shares of Class B Common Stock to satisfy its obligations under the Exchange
Agreement; provided that nothing contained herein shall be construed to preclude Pubco from satisfying
its obligations in respect of any such Exchange by delivery of purchased shares of Class A Common
Stock (which may or may not be held in the treasury of Pubco). If any shares of Class A Common Stock
require registration with or approval of any Governmental Entity under any federal or state law before
such shares may be issued upon an Exchange, Pubco shall use reasonable best efforts to cause the
exchange of such shares of Class A Common Stock to be duly registered or approved, as the case may be.
Pubco shall list and use its reasonable best efforts to maintain the listing of the Class A Common Stock
required to be delivered upon any such Exchange prior to such delivery upon the national securities
exchange upon which the outstanding shares of Class A Common Stock are listed at the time of such
Exchange (it being understood that any such shares may be subject to transfer restrictions under
applicable securities laws). Pubco covenants that all shares of Class A Common Stock issued upon an
Exchange will, upon issuance, be validly issued, fully paid and non-assessable.
(f)For purposes of this Section 3.2, “net proceeds” means gross proceeds to Pubco from the
issuance of Class A Common Stock or other securities less all reasonable bona fide out-of-pocket fees and
expenses of Pubco, the Company and their respective Subsidiaries actually incurred in connection with
such issuance.
Section 3.3Repurchase or Redemptions.
(a)Neither Pubco nor any of its Subsidiaries (other than the Company and its Subsidiaries)
may redeem, repurchase or otherwise acquire (i) shares of Class A Common Stock unless substantially
simultaneously therewith the Company redeems, repurchases or otherwise acquires from Pubco or such
Subsidiary an equal number of Series A Common Units for the same price per security, if any, or (ii) any
other Equity Securities of Pubco or any of its Subsidiaries (other than the Company and its Subsidiaries)
unless substantially simultaneously therewith the Company redeems, repurchases or otherwise acquires
from Pubco or such Subsidiary an equal number of the corresponding class or series of Equity Securities
of the Company with the same rights to dividends and distributions (including distributions upon
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liquidation) and other economic rights as those of such Equity Securities of Pubco or such Subsidiary for
the same price per security, if any.
(b) The Company may not redeem, repurchase or otherwise acquire (i) any Series A
Common Units from Pubco or any of its Subsidiaries (other than the Company and its Subsidiaries)
unless substantially simultaneously Pubco or such Subsidiary redeems, repurchases or otherwise acquires
an equal number of shares of Class A Common Stock for the same price per security from holders thereof
or (ii) any other Equity Securities of the Company from Pubco or any of its Subsidiaries (other than the
Company and its Subsidiaries) unless substantially simultaneously Pubco or such Subsidiary redeems,
repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of
Pubco or such Subsidiary of a corresponding class or series with substantially the same rights to dividends
and distributions (including distributions on liquidation) and other economic rights as those of such Units
of the Company.
Section 3.4Equity Subdivisions and Combinations. Except in accordance with the
Exchange Agreement or any other adjustments required by this Agreement:
(a)Any subdivision (by equity split, equity distribution, reclassification, recapitalization or
otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of Class
A Common Stock, Class B Common Stock or other related class or series of Equity Security of Pubco
(including any Equity Security held in treasury) shall be accompanied by an identical subdivision or
combination, as applicable, of the Common Units or other related class or series of Equity Security of the
Company, as applicable, with corresponding changes made with respect to any other exchangeable or
convertible Equity Security of the Company and Pubco.
(b)Any subdivision (by equity split, equity distribution, reclassification, recapitalization or
otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the
Units shall be accompanied by an identical subdivision or combination, as applicable, of the Class A
Common Stock, Class B Common Stock or other related class or series of Equity Security of Pubco
(including any Equity Security held in treasury), as applicable, with corresponding changes made with
respect to any other exchangeable or convertible Equity Security of the Company and Pubco.
Section 3.5General Authority. For the avoidance of doubt, but subject to Section 3.1,
Section 3.2, Section 3.3 and Section 3.4, the Company, Pubco and the Manager shall be permitted to
undertake all actions, including an issuance, redemption, reclassification, distribution, division or
recapitalization, with respect to the Series A Common Units as is necessary to maintain at all times a one-
to-one ratio between (i) the number of Series A Common Units owned by Pubco, directly or indirectly,
and the number of outstanding shares of Class A Common Stock and (ii) the number of outstanding
shares of Class B Common Stock held by any Person (other than Pubco) and the number of Series B
Common Units held by such Person.
Section 3.6Capital Accounts.
(a)Maintenance of Capital Accounts. The Company shall maintain a separate Capital
Account for each Unitholder according to the rules of Treasury Regulation Section 1.704-1(b)(2)(iv).
Without limiting the foregoing, each Unitholder’s Capital Account shall be adjusted:
(i)by adding any additional Capital Contributions made by such Unitholder
in consideration for the issuance of Units;
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(ii)by deducting any amounts paid to such Unitholder in connection with the
redemption or other repurchase by the Company of Units;
(iii)by adding any Profits allocated in favor of such Unitholder and
subtracting any Losses allocated in favor of such Unitholder; and
(iv)by deducting any distributions paid in cash or other assets to such
Unitholder by the Company.
(b)Computation of Income, Gain, Loss and Deduction Items. For purposes of computing the
amount of any item of the Company income, gain, loss or deduction to be allocated pursuant to Article IV
and to be reflected in the Capital Accounts, the determination, recognition and classification of any such
item shall be the same as its determination, recognition and classification for federal income Tax purposes
(including any method of depreciation, cost recovery or amortization used for this purpose); provided
that:
(i)the computation of all items of income, gain, loss and deduction shall
include those items described in Code Section 705(a)(1)(B), Code Section 705(a)(2)(B) and
Treasury Regulation Section 1.704-1(b)(2)(iv)(i), without regard to the fact that such items are
not includable in gross income or are not deductible for federal income Tax purposes;
(ii)if the Book Value of any Company property is adjusted pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(e) or (f), the amount of such adjustment shall be
taken into account as gain or loss from the disposition of such property;
(iii)items of income, gain, loss or deduction attributable to the disposition of
the Company property having a Book Value that differs from its adjusted basis for Tax purposes
shall be computed by reference to the Book Value of such property;
(iv)items of depreciation, amortization and other cost recovery deductions
with respect to the Company property having a Book Value that differs from its adjusted basis for
Tax purposes shall be computed by reference to the property’s Book Value in accordance with
Treasury Regulation Section 1.704-1(b)(2)(iv)(g);
(v)to the extent an adjustment to the adjusted Tax basis of any of the
Company’s asset pursuant to Code Sections 732(d), 734(b) or 743(b) is required pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(m) to be taken into account in determining Capital
Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of
gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such
basis); and if, as a result of an exercise of a noncompensatory option (as defined in Treasury
Regulations Section 1.721-2(f)) to acquire Units, a Capital Account reallocation is required under
Treasury Regulations Section 1.704-1(b)(2)(iv)(s)(3), the Company shall make corrective
allocations pursuant to Treasury Regulations Section 1.704-1(b)(4)(x).
Section 3.7Negative Capital Accounts; No Interest Regarding Positive Capital
Accounts. No Unitholder shall be required to pay to any other Unitholder or the Company any deficit or
negative balance which may exist from time to time in such Unitholder’s Capital Account (including
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upon and after dissolution of the Company). Except as otherwise expressly provided herein, no
Unitholder shall be entitled to receive interest from the Company in respect of any positive balance in its
Capital Account and no Unitholder shall be liable to pay interest to the Company or any Unitholder in
respect of any negative balance in its Capital Account.
Section 3.8No Withdrawal. No Person shall be entitled to withdraw any part of such
Person’s Capital Contributions or Capital Account or to receive any Distribution from the Company,
except as expressly provided herein.
Section 3.9Loans From Unitholders. Loans by Unitholders to the Company shall not be
considered Capital Contributions. If any Unitholder shall loan funds to the Company in excess of the
amounts required hereunder to be contributed by such Unitholder to the capital of the Company, the
making of such loans shall not result in any increase in the amount of the Capital Account of such
Unitholder. The amount of any such loans shall be a debt of the Company to such Unitholder and shall be
payable or collectible in accordance with the terms and conditions upon which such loans are made.
Section 3.10Adjustments to Capital Accounts for Distributions In-Kind. To the extent
that the Company distributes property in-kind to the Members, the Company shall be treated as making a
distribution equal to the Fair Market Value of such property (as of the date of such distribution) for
purposes of Section 4.1 and such property shall be treated as if it were sold for an amount equal to its Fair
Market Value and any resulting gain or loss shall be allocated to the Members’ Capital Accounts in
accordance with Section 4.2 through Section 4.4. If the Company distributes property in kind to any
Unitholder, the Company shall (a) first, to the extent possible, distribute (and be deemed to distribute) to
such Unitholder any such property that the Unitholder contributed to the Company (or any such property
received by the Company in a tax-deferred exchange for property contributed to the Company by such
Unitholder) and (b) second, to the extent no further distribution can be made in accordance with subclause
(a), or if such Unitholder did not contribute property to the Company, then the Company shall, to the
extent possible, distribute (and be deemed to distribute) to the Unitholder property other than such
property that was contributed to the Company by another Unitholder (or any such property received by
the Company in a tax-deferred exchange for property contributed to the Company by a Unitholder), to the
extent that such Unitholder is entitled to receive a Distribution at such time under the economic priorities
set out in Article IV.
Section 3.11Transfer of Capital Accounts. The original Capital Account established for
each Substituted Member shall be in the same amount as the Capital Account of the Member (or portion
thereof) to which such Substituted Member succeeds at the time such Substituted Member is admitted to
as a Member of the Company. The Capital Account of any Member whose interest in the Company shall
be increased or decreased by means of (a) the Transfer to it of all or part of the Units of another Member
or (b) the repurchase or forfeiture of Units pursuant to any Equity Agreement shall be appropriately
adjusted to reflect such Transfer or repurchase. Any reference in this Agreement to a Capital Contribution
of or Distribution to a Member that has succeeded any other Member shall include any Capital
Contributions or Distributions previously made by or to the former Member on account of the Units of
such former Member Transferred to such Member.
Section 3.12Adjustments to Book Value. The Company shall adjust the Book Value of its
assets to Fair Market Value in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(f) as of
the following times: (a) at the Manager’s discretion in connection with the issuance of Units in the
Company or a more than de minimis Capital Contribution to the Company; (b) at the Manager’s discretion
in connection with the Distribution by the Company to a Member of more than a de minimis amount of
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the Company’s assets, including money; and (c) the liquidation of the Company within the meaning of
Treasury Regulations Section 1.704-1(b)(2)(ii)(g). Any such increase or decrease in Book Value of an
asset shall be allocated as a Profit or Loss to the Capital Accounts of the Members under Section 4.2
(determined immediately prior to the event giving rise to the revaluation). The Company shall adjust the
Book Value of its property under Treasury Regulations Section 1.704-1(b)(2)(iv)(f) in connection with
and immediately after the IPO Transactions (the “IPO 704(c) Event”).
Section 3.13Compliance With Section 1.704-1(b). The provisions of this Agreement relating
to the maintenance of Capital Accounts are intended to comply with Treasury Regulations
Section 1.704-1(b) and shall be interpreted and applied in a manner consistent with such Treasury
Regulations. In the event the Manager shall determine that it is prudent to modify the manner in which the
Capital Accounts are computed in order to comply with such Treasury Regulations, the Manager may
make such modification, notwithstanding anything in Section 11.2 to the contrary. The Manager also shall
(a) make any adjustments that are necessary or appropriate to maintain equality between the Capital
Accounts of the Members and the amount of the Company capital reflected on the Company’s balance
sheet, as computed for book purposes, in accordance with Treasury Regulations Section 1.704-1(b)(iv)(g),
and (b) make any appropriate modifications in the event unanticipated events might otherwise cause this
Agreement not to comply with Treasury Regulations Section 1.704-1(b).
ARTICLE IV
DISTRIBUTIONS AND ALLOCATIONS
Section 4.1Distributions.
(a)Tax Distributions.
(i)Tax Distributions. To the extent funds of the Company are legally
available for distribution by the Company and such distribution would not be prohibited under
any credit facility to which the Company or any of its Subsidiaries is a party (the “Tax
Distribution Conditions”), with respect to each Fiscal Quarter, on or prior to the relevant Tax
Distribution Date, the Company shall distribute to each Unitholder an amount of cash (each a
“Tax Distribution”) equal to such Unitholder’s Assumed Tax Liability for such Fiscal Quarter. To
the extent a holder of Common Units would receive for any Fiscal Quarter less than its Pro Rata
Share of the aggregate Tax Distributions to be paid pursuant to the preceding sentence, the Tax
Distributions to such Unitholder shall be increased to ensure that all Tax Distributions to holders
of Common Units are made in accordance with their Pro Rata Share. The Manager shall be
entitled to adjust subsequent Tax Distributions up or down to reflect any variation between its
prior estimation of quarterly Tax Distributions and the Tax Distributions that would have been
computed under this Section 4.1(a)(i) based on subsequent information. In the event that due to
the Tax Distribution Conditions the funds available for any Tax Distribution to be made
hereunder are insufficient to pay the full amount of the Tax Distribution that would otherwise be
required under this Section 4.1(a)(i), the Company shall use its reasonable best efforts to
distribute to the Unitholders the amount of funds that are available after application of the Tax
Distribution Conditions on a pro rata basis (according to the amounts that would have been
distributed to each Unitholder pursuant to this Section 4.1(a)(i) if available funds (after
application of the Tax Distribution Conditions) existed in a sufficient amount to make such
Distribution in full). At any time thereafter when additional funds of the Company are available
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for Distribution after application of the Tax Distribution Conditions, the Company shall use its
reasonable best efforts to immediately distribute such funds to the Unitholders on a pro rata basis
(according to the amounts that would have been distributed to each Unitholder pursuant to this
Section 4.1(a)(i) if available funds (after application of the Tax Distribution Conditions) would
have existed in a sufficient amount to make such Tax Distribution in full). Notwithstanding the
foregoing, Distributions pursuant to Section 4.1(b) with respect any taxable period shall first be
treated as Tax Distributions pursuant to this Section 4.1(a)(i) to the extent of any entitlement
thereto.
(ii)Additional Tax Distributions. In the event (A) of any audit by, or similar
event with, a taxing authority that affects the calculation of any Unitholder’s Assumed Tax
Liability for any Taxable Year (other than an audit conducted pursuant to the Partnership Tax
Audit Rules for which no election is made pursuant to Code Section 6226 (or any similar
provision of state or local law)) or (B) the Company files an amended tax return, each
Unitholder’s Assumed Tax Liability with respect to such year shall be recalculated by giving
effect to such event (for the avoidance of doubt, taking into account interest and penalties). Any
shortfall in the amount of Tax Distributions the Unitholders and former Unitholders received for
the relevant Taxable Years based on such recalculated Assumed Tax Liability promptly shall be
distributed to such Unitholders and the successors of such former Unitholders in accordance with
their Pro Rata Share of such additional Tax Distributions, except, for the avoidance of doubt, to
the extent Distributions were made to such Unitholders and former Unitholders pursuant to
Section 4.1 in the relevant Taxable Years sufficient to cover such shortfall.
(b)Other Distributions. Except as otherwise set forth in Section 4.1(a), the Manager may
(but shall not be obligated to) make Distributions at such time, in such amounts and in such form
(including in-kind property) as determined by the Manager in its sole discretion, in each case to the
holders of Common Units immediately prior to such Distribution on a pro rata basis.
Section 4.2Allocations. Profits or Losses for any Fiscal Year shall be allocated among the
Unitholders in such a manner as to reduce or eliminate, to the extent possible, any difference, as of the
end of such Fiscal Year, between (a) the sum of (i) the Capital Account of each Unitholder, (ii) such
Unitholder’s share of Minimum Gain (as determined according to Treasury Regulation
Section 1.704-2(g)) and (iii) such Unitholder’s partner nonrecourse debt minimum gain (as defined in
Treasury Regulation Section 1.704-2(i)(2)) and (b) the respective net amounts, positive or negative, which
would be distributed to them or for which they would be liable to the Company under this Agreement and
the Delaware Act, determined as if the Company were to (i) liquidate the assets of the Company for an
amount equal to their Book Value and (ii) distribute the proceeds of such liquidation pursuant to Section
10.2.
Section 4.3Special Allocations.
(a)Minimum Gain Chargeback. Losses attributable to partner nonrecourse debt (as defined
in Treasury Regulation Section 1.704-2(b)(4)) shall be allocated in the manner required by Treasury
Regulation Section 1.704-2(i). If there is a net decrease during a Taxable Year in partner nonrecourse debt
minimum gain (as defined in Treasury Regulation Section 1.704-2(i)(2)), Profits for such Taxable Year
(and, if necessary, for subsequent Taxable Years) shall be allocated to the Unitholders in the amounts and
of such character as determined according to Treasury Regulation Section 1.704-2(i)(4).
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(b)Unitholder Nonrecourse Debt Minimum Chargeback. Nonrecourse deductions (as
determined according to Treasury Regulation Section 1.704-2(b)(1)) for any Taxable Year shall be
allocated to each holder of Common Units ratably among such Unitholders based upon their ownership of
Common Units. Except as otherwise provided in Section 4.3(a), if there is a net decrease in the Minimum
Gain during any Taxable Year, each Unitholder shall be allocated Profits for such Taxable Year (and, if
necessary, for subsequent Taxable Years) in the amounts and of such character as determined according
to Treasury Regulation Section 1.704-2(f). This Section 4.3(b) is intended to be a Minimum Gain
chargeback provision that complies with the requirements of Treasury Regulation Section 1.704-2(f), and
shall be interpreted in a manner consistent therewith.
(c)Qualified Income Offset. If any Unitholder that unexpectedly receives an adjustment,
allocation or distribution described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) has
an Adjusted Capital Account Deficit as of the end of any Taxable Year, computed after the application of
Section 4.3(a) and Section 4.3(b), but before the application of any other provision of this Article IV, then
Profits for such Taxable Year shall be allocated to such Unitholder in proportion to, and to the extent of,
such Adjusted Capital Account Deficit. This Section 4.3(c) is intended to be a qualified income offset
provision as described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted in a
manner consistent therewith.
(d)Allocation of Certain Profits and Losses. Profits and Losses described in Section
3.6(b)(v) shall be allocated in a manner consistent with the manner that the adjustments to the Capital
Accounts are required to be made pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(j), (k) and
(m).
(e)Regulatory Allocations. The allocations set forth in Sections 4.3(a)-(d) (the “Regulatory
Allocations”) are intended to comply with certain requirements of Sections 1.704-1(b) and 1.704-2 of the
Treasury Regulations. The Regulatory Allocations may not be consistent with the manner in which the
Unitholders intend to allocate Profit and Loss of the Company or make the Company distributions.
Accordingly, notwithstanding the other provisions of this Article IV, but subject to the Regulatory
Allocations, income, gain, deduction and loss shall be reallocated among the Unitholders so as to
eliminate the effect of the Regulatory Allocations and thereby cause the respective Capital Accounts of
the Unitholders to be in the amounts (or as close thereto as possible) they would have been if Profit and
Loss (and such other items of income, gain, deduction and loss) had been allocated without reference to
the Regulatory Allocations. In general, the Unitholders anticipate that this will be accomplished by
specially allocating other Profit and Loss (and such other items of income, gain, deduction and loss)
among the Unitholders so that the net amount of the Regulatory Allocations and such special allocations
to each such Unitholder is zero. In addition, if in any Fiscal Year there is a decrease in partnership
Minimum Gain, or in partner nonrecourse debt Minimum Gain, and application of the Minimum Gain
chargeback requirements set forth in Section 4.3(a) or Section 4.3(b) would cause a distortion in the
economic arrangement among the Unitholders, the Unitholders may, if they do not expect that the
Company will have sufficient other income to correct such distortion, request the Internal Revenue
Service to waive either or both of such Minimum Gain chargeback requirements. If such request is
granted, this Agreement shall be applied in such instance as if it did not contain such Minimum Gain
chargeback requirement.
(f)The Unitholders acknowledge that allocations like those described in Proposed Treasury
Regulations Section 1.704-1(b)(4)(xii)(c) (“Forfeiture Allocations”) may result from the allocations of
Profits and Losses provided for in this Agreement. For the avoidance of doubt, the Company is entitled to
make Forfeiture Allocations and, once required by applicable final or temporary guidance, allocations of
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Profits and Losses will be made in accordance with Proposed Treasury Regulations
Section 1.704-1(b)(4)(xii)(c) or any successor provision or guidance.
(g)Any excess nonrecourse liabilities of the Company, within the meaning of Treasury
Regulation Section 1.752-3(a)(3), shall be allocated to the Members in any manner that is permissible
under the Treasury Regulations.
(h)Any item of deduction with respect to a Tax that is offset at the Manager’s election
pursuant to the second sentence of Section 4.6 against a Distribution to which a Unitholder is otherwise
entitled shall be allocated to such Unitholder. For the avoidance of doubt, all tax deductions described in
this Section 4.3(h) shall be taken into account in determining the amount of any Tax Distribution made
under the provisions of Section 4.1(a)(i).
Section 4.4Offsetting Allocations. If, and to the extent that, any Member is deemed to
recognize any item of income, gain, deduction or loss as a result of any transaction between such Member
and the Company pursuant to Sections 83, 482 or 7872 of the Code or any similar provision now or
hereafter in effect, the Manager shall use its commercially reasonable efforts to allocate any
corresponding Profit or Loss to the Member who recognizes such item in order to reflect the Members’
economic interest in the Company.
Section 4.5Tax Allocations.
(a)Allocations Generally. Except as provided in Section 4.5(b), for federal, state and local
income Tax purposes, each item of income, gain, loss or deduction shall be allocated among the
Unitholders in the same manner and in the same proportion that the corresponding book items have been
allocated among the Unitholders’ respective Capital Accounts; provided that, if any such allocation is not
permitted by the Code or other applicable law, then each subsequent item of income, gains, losses,
deductions and credits will be allocated among the Unitholders so as to reflect as nearly as possible the
allocation set forth herein in computing their Capital Accounts.
(b)Code Section 704(c) Allocations.
(i)As a result of the IPO 704(c) Event, items of Company taxable income,
gain, loss and deduction shall be allocated to take into account any variation between the adjusted
basis of such property for federal income tax purposes and its Book Value, in each case, in
accordance with the “traditional method,” except that the Company shall make curative
allocations of the resulting tax gain from the sale or disposition of each such property in a manner
that is intended to offset the effect of the cumulative amount of any "ceiling rule limitations" with
respect to allocations of depreciation or amortization deductions in respect of any such
differences between the Book Value of any such item of property and its adjusted Tax basis that
are created in connection with any such contribution or adjustment of Book Value for each such
property, as the case may be, as outlined in Treasury Regulation Section 1.704-3(c)(3)(iii)(B) (the
"Traditional Method with Curative Allocations").
(ii)If (A) any property is contributed (or deemed contributed for Tax
purposes) to the Company, or (B) if the Book Value of any Company property is adjusted
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) or (f) (any such contribution or
adjustment of Book Value described in clauses (A) or (B), a "704(c) Event"), items of Company
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taxable income, gain, loss, and deduction shall be allocated using the Traditional Method with
Curative Allocations; provided, that with respect to any 704(c) Event, Holdings may withhold
consent to the use of the Traditional Method with Curative Allocations with respect to such
704(c) Event (including, for the avoidance of doubt, any 704(c) Event in connection with the IPO
Transactions) to the extent Holdings delivers written notice to the Company prior to February 21st
of the Taxable Year following the Taxable Year including the 704(c) Event (the "Notice Date")
that consent is withheld to the use of the Traditional Method with Curative Allocations with
respect to such 704(c) Event, and solely to the extent such written notice is timely delivered and
such consent is not unreasonably withheld or conditioned, Holdings shall cooperate in good faith
to timely agree on an alternative methodology permissible under Section 704(c) of the Code with
respect to the 704(c) Event, and such mutually agreed alternative methodology (unless the
Traditional Method with Curative Allocations is mutually agreed) shall be used by the Company
with respect to such 704(c) Event. The Company shall reasonably cooperate to provide its
analysis and any modeling with respect to the choice of allocation methodology for any Taxable
Year, as well as any other information reasonably requested by Holdings which is reasonably
necessary to determine whether to consent or object to such methodology, at least 10 days in
advance of the Notice Date for such Taxable Year.
(c)Section 754 Election. The Company will make an election under Section 754 of the Code
for its Taxable Year that includes or begins on the date of this Agreement, and shall have such election in
effect for each subsequent Taxable Year, to adjust the basis of the Company property as permitted and
provided in Sections 734 and 743 of the Code, and the Manager shall take commercially reasonable
efforts to cause each Person in which the Company owns a direct or indirect equity interest (other than a
Subsidiary) that is so treated as a partnership to have in effect any such election for such Taxable Years.
Such election shall be effective solely for federal (and, if applicable, state and local) income Tax purposes
and shall not result in any adjustment to the Book Value of any Company asset or to the Member’s
Capital Accounts (except as provided in Treasury Regulations Section 1.704-1(b)(2)(iv)(m)).
(d)Allocation of Tax Credits, Tax Credit Recapture, Etc. Allocations of Tax credits, Tax
credit recapture and any items related thereto shall be allocated to the Unitholders according to their
interests in such items as determined by the Manager taking into account the principles of Treasury
Regulation Section 1.704-1(b)(4)(ii) and (viii).
(e)Corrective Allocations. If necessary, the Company will make corrective allocations as set
forth in Treasury Regulation Section 1.704-1(b)(4)(x).
(f)Effect of Allocations. Allocations pursuant to this Section 4.5 are solely for purposes of
federal, state and local Taxes and shall not affect, or in any way be taken into account in computing, any
Unitholder’s Capital Account or share of Profits, Losses, Distributions (other than Tax Distributions) or
other items pursuant to any provision of this Agreement.
Section 4.6Indemnification and Reimbursement for Payments on Behalf of a Member.
Except as otherwise provided in Article VI, if the Company (or any other entity in which the Company
owns a direct or indirect interest) is required by law to make any payment to a Governmental Entity that
is specifically attributable to a Member or a Member’s status as such (including federal withholding
Taxes, state personal property Taxes and state unincorporated business Taxes, Taxes arising under the
Partnership Tax Audit Rules, the amount of any Taxes imposed under Code Section 1446(f), and any
interest, penalties, additions to Tax and expenses related to any such amounts) (“Tax Advances”), then
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such Member shall indemnify and contribute to the Company in full for the entire amount of Tax
Advances paid. The Manager may offset Distributions to which a Person is otherwise entitled under this
Agreement against such Person’s obligation to indemnify the Company for Tax Advances under this
Section 4.6 or with respect to any other amounts owed by the Member to the Company or any of its
Subsidiaries. A Member’s obligation to indemnify and make contributions to the Company under this
Section 4.6 shall survive the transfer or termination of any Member’s interest in any Units of the
Company, the termination of this Agreement, and the termination, dissolution, liquidation and winding up
of the Company (and for purposes of this Section 4.6 to the extent not prohibited by applicable law, the
Company shall be treated as continuing in existence). The Company may pursue and enforce all rights
and remedies it may have against each Member under this Section 4.6, including instituting a lawsuit to
collect such indemnification and contribution, with interest calculated at a rate equal to the Base Rate plus
three percentage points per annum (but not in excess of the highest rate per annum permitted by law),
compounded on the last day of each Fiscal Quarter. For the avoidance of doubt, any Taxes, penalties and
interest payable under the Partnership Tax Audit Rules by the Company or any fiscally transparent entity
in which the Company owns an interest shall be treated as Tax Advances specifically allocable to the
Members and the Partnership Representative shall use commercially reasonable efforts to allocate the
burden of (or any diminution in distributable proceeds resulting from) any such Taxes, penalties or
interest to the Members to whom such amounts are specifically attributable (whether as a result of their
status, actions, inactions or otherwise) as determined by the Partnership Representative.
ARTICLE V
MANAGEMENT AND CONTROL OF BUSINESS
Section 5.1Management.
(a)Except as otherwise specifically provided in this Agreement or the Delaware Act, the
business, property and affairs of the Company shall be managed, operated and controlled at the sole,
absolute and exclusive direction of the Manager in accordance with the terms of this Agreement. No
Members shall have management authority or voting or other rights over, or any other ability to take part
in the conduct or control of the business of, the Company. The Manager is hereby designated as a
“manager” within the meaning of Section 18-101(12) of the Delaware Act. The Manager is, to the extent
of its rights and powers set forth in this Agreement, an agent of the Company for the purpose of the
Company’s business, and the actions of the Manager taken in accordance with such rights and powers
shall bind the Company (and no Member shall have such right). The Manager shall have all necessary
powers to carry out the purposes, business and objectives of the Company. The Manager may delegate in
its discretion the authority to sign agreements and other documents and take other actions on behalf of the
Company to any Person (including any Member, officer or employee of the Company) to enter into and
perform any document on behalf of the Company.
(b)Without limiting Section 5.1(a), the Manager shall have the sole power and authority to
effect any of the following by the Company or any of its Subsidiaries in one or a series of related
transaction, in each case without the vote, consent or approval of any Unitholder: (i) any sale, lease,
transfer, exchange or other disposition of any, all or substantially all of the assets of the Company
(including the exercise or grant of any conversion, option, privilege or subscription right or any other
right available in connection with any assets at any time held by the Company); (ii) any merger,
consolidation, reorganization or other combination of the Company with or into another entity, (iii) any
acquisition; (iv) any issuance of debt or equity securities; (v) any incurrence of indebtedness; or (vi) any
dissolution. Except for any vote, consent or approval of any Unitholder expressly required by this
Agreement, if a vote, consent or approval of the Unitholders is required by the Delaware Act or other
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applicable law with respect to any action to be taken by the Company or matter considered by the
Manager, each Unitholder will be deemed to have consented to or approved such action or voted on such
matter in accordance with the consent or approval of the Manager on such action or matter.
(c)Pubco may withdraw as the Manager and appoint as its successor at any time upon
written notice to the Company (a) any wholly-owned Subsidiary of Pubco, (b) any Person of which Pubco
is a wholly-owned Subsidiary, (c) any Person into which Pubco is merged or consolidated or (d) any
transferee of all or substantially all of the assets of Pubco, which withdrawal and replacement shall be
effective upon the delivery of such notice. No appointment of a Person other than Pubco (or its successor,
as the case may be) as Manager shall be effective unless Pubco (or its successor, as the case may be) and
the new Manager provide all Members with contractual rights, directly enforceable by such Members
against the new Manager, to cause the new Manager to comply with all of the Manager’s obligations
under this Agreement.
Section 5.2Investment Company Act. The Manager shall use reasonable best efforts to
ensure that the Company shall not be subject to registration as an investment company pursuant to the
Investment Company Act.
Section 5.3Officers.
(a)Officers. Unless determined otherwise by the Manager, the officers of the Company shall
be a Chief Executive Officer, a President, a Chief Financial Officer, a Treasurer and a Secretary and each
other officer of Pubco shall also be an officer of the Company, with the same title. All officers shall be
appointed by the Manager (or by the Chief Executive Officer to the extent the Manager delegates such
authority to the Chief Executive Officer) and shall hold office until their successors are appointed by the
Manager (or by the Chief Executive Officer to the extent the Manager delegates such authority to the
Chief Executive Officer). Two or more offices may be held by the same individual. The officers of the
Company may be removed by the Manager (or by the Chief Executive Officer to the extent the Manager
delegates such authority to the Chief Executive Officer) at any time for any reason or no reason.
(b)Other Officers and Agents. The Manager may appoint such other officers and agents as it
may deem necessary or advisable, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the Manager.
(c)Chief Executive Officer. The Chief Executive Officer shall be the chief executive officer
of the Company and shall have the general powers and duties of supervision and management usually
vested in the office of a chief executive officer of a company. He or she shall preside at all meetings of
Members if present thereat.
(d)President. The President shall be the chief executive officer of the Company in the
absence of the Chief Executive Officer. In general, the President shall perform all duties incident to the
office of President and such other duties as may be prescribed from time to time by the Manager.
(e)Chief Financial Officer. The Chief Financial Officer shall be the chief financial officer of
the Company and shall keep and maintain or cause to be kept and maintained adequate and correct books
and records of accounts of the properties and business transactions of the Company. The books of account
shall at all times be open to inspection by the Manager. The Chief Financial Officer shall deposit all
monies and other valuables in the name of, and to the credit of, the Company with such depositaries as
may be designated by the Manager.
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(f)Treasurer. The Treasurer shall have the custody of Company funds and securities and
shall keep full and accurate account of receipts and disbursements. He or she shall deposit all moneys and
other valuables in the name and to the credit of the Company in such depositaries as may be designated
by the Manager or the Chief Executive Officer. The Treasurer shall disburse the funds of the Company as
may be ordered by the Manager, the Chief Executive Officer or the Chief Financial Officer, taking proper
vouchers for such disbursements. He or she shall render to the Manager and the Chief Executive Officer
whenever either of them may request it, an account of all his or her transactions as Treasurer and of the
financial condition of the Company. If required by the Manager, the Treasurer shall give the Company a
bond for the faithful discharge of his or her duties in such amount and with such surety as the Manager
shall prescribe.
(g)Secretary. The Secretary shall give, or cause to be given, notice of all meetings of
Members and all other notices required by applicable law or by this Agreement, and in case of his or her
absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by
the Chief Executive Officer, or by the Manager. He or she shall record all the proceedings of the meetings
of the Company and shall perform such other duties as may be assigned to him or her by the Manager or
by the Chief Executive Officer.
(h)Other Officers. Other officers, if any, shall have such powers and shall perform such
duties as shall be assigned to them, respectively, by the Manager or by the Chief Executive Officer.
Section 5.4Fiduciary Duties.
(a)Members and Unitholders. To the fullest extent permitted by law and notwithstanding
any duty otherwise existing at law or in equity, no Member or Unitholder, solely in its capacity as such,
shall owe any fiduciary duty to the Company, the Manager, any Member, any Unitholder or any other
Person bound by this Agreement, provided that the foregoing shall not eliminate the implied contractual
covenant of good faith and fair dealing. Nothing in this Section 5.4(a) shall limit the liabilities, duties or
obligations of any Member or Unitholder acting in his or her capacity as an officer or manager pursuant to
any other provision of this Agreement.
(b)Manager and Officers. Notwithstanding any other provision to the contrary in this
Agreement, except as set forth in Section 5.4(c), (i) the Manager shall, in its capacity as Manager, and not
in any other capacity, have the same fiduciary duties to the Company and the Unitholders and Members
as a member of the board of directors of a Delaware corporation; and (ii) each officer of the Company
shall, in his or her capacity as such, and not in any other capacity, have the same fiduciary duties to the
Company and the Unitholders and Members as an officer of a Delaware corporation. For the avoidance of
doubt, the fiduciary duties described in the immediately preceding clause (i) shall not be limited by the
fact that the Manager shall be permitted to take certain actions in its sole or reasonable discretion pursuant
to the terms of this Agreement or any agreement entered into in connection herewith.
(c)Manager Conflicts. The parties hereto acknowledge that the members of the Board will
owe fiduciary duties to Pubco and its stockholders. The Manager will use commercially reasonable and
appropriate efforts and means, as determined in good faith by the Manager, to minimize any conflict of
interest between the Members, on the one hand, and the stockholders of Pubco, on the other hand, and to
effectuate any transaction that involves or affects any of the Company, the Manager, the Members and/or
the stockholders of Pubco in a manner that does not (i) disadvantage the Members of their interests
relative to the stockholders of Pubco, (ii) advantage the stockholders of Pubco relative to the Members or
(iii) treat the Members and the stockholders of Pubco differently; provided that in the event of a conflict
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between the interests of the stockholders of Pubco and the interests of the Members, such Members agree
that the Manager shall discharge its fiduciary duties to such Members by acting in the best interests of
Pubco’s stockholders.
(d)Waiver. Any duties and liabilities set forth in this Agreement shall replace those existing
at law or in equity and each of the Company, each Member and Unitholder and any other Person bound
by this Agreement hereby, to the fullest extent permitted by applicable law, including Section 18-1101(e)
of the Delaware Act, waives the right to make any claim, bring any action or seek any recovery based on
any duties or liabilities existing at law or in equity other than any such duties and liabilities set forth in
this Agreement.
(e)Survival. The provisions of this Section 5.4 shall survive any amendment, repeal or
termination of this Agreement.
ARTICLE VI
EXCULPATION AND INDEMNIFICATION
Section 6.1Exculpation.
(a)Actions in Capacity as a Member or Unitholder. To the fullest extent permitted by
applicable law, and except as otherwise expressly provided herein, no Member, Unitholder (other than the
Manager, acting in its capacity as such) or its respective Indemnitees shall be liable to the Company, any
Member, any Unitholder or any other Person bound by this Agreement as a result of or arising out any
action of or omission by such Member or Unitholder solely in its capacity as a Member or Unitholder,
except to the extent such Obligations arise out of such Member’s (i) material breach of this Agreement or
any other Transaction Document or (ii) bad faith violation of the implied contractual covenant of good
faith and fair dealing, in each case as determined by a final judgment, order or decree of an arbitrator or a
court of competent jurisdiction (which is not appealable or with respect to which the time for appeal
therefrom has expired and no appeal has been perfected).
(b)Other Actions. To the fullest extent permitted by applicable law, and except as otherwise
expressly provided herein, including Section 6.5, no Indemnitee shall be liable to the Company, any
Member, any Unitholder or any other Person bound by this Agreement as a result of or arising out of the
activities of the Indemnitee on behalf of the Company to the extent within the scope of the authority
reasonably believed by such Indemnitee to be conferred on such Indemnitee, except to the extent such
Indemnitee would not be entitled to exculpation or indemnification pursuant to the articles of
incorporation and bylaws of Pubco (as the same may be amended from time to time).
Section 6.2Indemnification. To the fullest extent permitted by applicable law, each of (a)
the Manager, (b) the Unitholders and the Members and their respective Affiliates, (c) the stockholders,
members, managers, directors, officers, partners, employees and agents of the Unitholders, the Members
and their respective Affiliates and (d) the officers and directors of the Manager, the Company and each of
their Subsidiaries (each, an “Indemnitee”) shall be indemnified and held harmless by the Company from
and against any and all losses, claims, damages, liabilities, expenses (including legal fees and expenses),
judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits
or proceedings, civil, criminal, administrative or investigative (collectively, “Obligations”), which at any
time may be imposed on, incurred by or asserted against such Indemnitee as a result of or arising out of
this Agreement, Pubco, the Company, their respective assets, businesses or affairs or the activities of the
Indemnitee on behalf of Pubco, the Company or any of their Subsidiaries to the extent within the scope of
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the authority reasonably believed to be conferred on such Indemnitee; provided, however, that, to the
extent such Indemnitee is not entitled to exculpation with respect to such Obligations pursuant to Section
6.5, the Indemnitee shall not be entitled to indemnification for any such Obligations to the extent such
Indemnitee would not be entitled to exculpation or indemnification pursuant to the articles of
incorporation and bylaws of Pubco (as the same may be amended from time to time); provided further,
that, to the extent such Indemnitee is entitled to exculpation with respect to such Obligations pursuant to
Section 6.5, the Indemnitee shall not be entitled to indemnification for any such Obligations to the extent
they arise out of such Indemnitee’s (i) material breach of this Agreement or any other Transaction
Document or (ii) bad faith violation of the implied contractual covenant of good faith and fair dealing.
The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that the Indemnitee was
not entitled to indemnification hereunder. Any indemnification pursuant to this Section 6.2 shall be made
only out of the assets of the Company and no Member shall have any personal liability on account
thereof.
Section 6.3Expenses. Expenses (including reasonable legal fees and expenses) incurred by
an Indemnitee in defending any claim, demand, action, suit or proceeding described in Section 6.2 shall,
from time to time, be advanced by the Company prior to the final disposition of such claim, demand,
action, suit or proceeding, upon receipt by the Company of an undertaking by or on behalf of the
Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be
indemnified as provided in Section 6.2; provided that such undertaking shall be unsecured and interest
free and shall be accepted without regard to an Indemnitee’s ability to repay amounts advanced and
without regard to an Indemnitee’s entitlement to indemnification.
Section 6.4Non-Exclusivity; Savings Clause. The indemnification and advancement of
expenses set forth in Section 6.2 and Section 6.3 shall not be exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any other agreement, policy
of insurance or otherwise. The indemnification and advancement of expenses set forth in Section 6.2 and
Section 6.3 shall continue as to an Indemnitee who has ceased to be a named Indemnitee and shall inure
to the benefit of the heirs, executors, administrators, successors and permitted assigns of such a Person. If
Article VI, Section 6.2 or Section 6.3 or any portion hereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Company shall nevertheless exculpate, indemnify and advance
expenses each Indemnitee to the fullest extent permitted by any applicable portion of such sections not so
invalidated and to the fullest extent permitted by applicable law. The exculpation, indemnification and
advancement of expenses provisions set forth in Article VI, Section 6.2 and Section 6.3 shall be deemed
to be a contract between the Company and each of the persons constituting Indemnitees at any time while
such provisions remain in effect, whether or not such Person continues to serve in such capacity and
whether or not such Person is a party hereto. In addition, neither Article VI, Section 6.2 nor Section 6.3
may be retroactively amended to adversely affect the rights of any Indemnitee arising in connection with
any acts, omissions, facts or circumstances occurring prior to such amendment.
Section 6.5Insurance. The Company may purchase and maintain insurance on behalf of the
Indemnitees against any liability asserted against them and incurred by them in such capacity, or arising
out of their status as Indemnitees, whether or not the Company would have the power to indemnify them
against such liability under this Section 6.5.
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ARTICLE VII
ACCOUNTING AND RECORDS; TAX MATTERS
Section 7.1Accounting and Records. The books and records of the Company shall be made
and maintained, and the financial position and the results of its operations recorded, at the expense of the
Company, in accordance with such method of accounting as is determined by the Manager. The books
and records of the Company shall reflect all Company transactions and shall be made and maintained in a
manner that is appropriate and adequate for the Company’s business.
Section 7.2Preparation of Tax Returns. The Company shall arrange for the preparation
and timely filing of all Tax returns required to be filed by the Company, including making the elections
described in Section 7.3 and shall use reasonable best efforts to furnish, within seventy-five (75 days of
the close of each Taxable Year, the tax information reasonably required by the Unitholders (including a
final Schedule K-1) for federal and state income Tax and any other Tax reporting purposes. Each
Unitholder shall furnish to the Company all pertinent information in its possession relating to the
Company’s operations that is necessary to enable the Company’s income Tax returns to be prepared and
filed.
Section 7.3Tax Elections. The Taxable Year shall be the Fiscal Year unless otherwise
determined by the Manager and permitted or required by Section 706 of the Code. The Manager shall
determine whether to make or revoke any available election pursuant to the Code, except as otherwise set
forth in this Agreement. Each Unitholder will upon request supply any information necessary to give
proper effect to such election.
Section 7.4Tax Controversies.
(a)The Manager shall be the “partnership representative” (the “Partnership Representative”)
of the Company for purposes of the Partnership Tax Audit Rules, and, as such, shall be authorized to
designate any other Person selected by the Manager as the Partnership Representative or to designate any
Person as the “designated individual” within the meaning of Treasury Regulations Section
301.6223-1(b)(3).
(b)Subject to this Section 7.4, the Partnership Representative shall have the sole authority to
act on behalf of the Company in connection with, make all relevant decisions regarding the application of
and to exercise the rights and powers provided for in, the Partnership Tax Audit Rules, including making
any elections under the Partnership Tax Audit Rules or any decisions to settle, compromise, challenge,
litigate or otherwise alter the defense of any action, claim, proceeding, audit or examination before the
IRS or any other tax authority (each, an “Audit”), and to expend Company funds for professional services
and other expenses reasonably incurred in connection therewith.
(c)Without limiting the foregoing, the Partnership Representative shall give prompt written
notice to Holdings of the commencement of any Audit of the Company or any of its Subsidiaries (a
“Specified Audit”). The Partnership Representative shall (i) keep Holdings reasonably informed of the
material developments of any such Specified Audit, (ii) permit Holdings (or its designee) to participate
(including using separate counsel), in each case at Holdings’ sole cost and expense, in any such Specified
Audit and (iii) promptly notify Holdings of receipt of a notice of a final partnership adjustment (or
equivalent under applicable laws) or a final decision of a court or IRS appeals panel (or equivalent body
under applicable laws) with respect to such Specified Audit. The Partnership Representative or the
Company shall promptly provide Holdings with copies of all material correspondence between the
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Partnership Representative or the Company (as applicable) and any Governmental Entity in connection
with such Specified Audit and shall give Holdings a reasonable opportunity to review and comment on
any material correspondence, submission (including settlement or compromise offers) or filing in
connection with any such Specified Audit. Additionally, the Partnership Representative shall not (and the
Company shall not (and shall not authorize the Partnership Representative to)) settle, compromise or
abandon any Specified Audit in a manner that would reasonably be expected to have a disproportionate
(as compared to Pubco) and material adverse effect on Holdings (or its direct or indirect equityholders)
without Holdings’ prior written consent (not to be unreasonably withheld, delayed or conditioned). The
Partnership Representative shall obtain the prior written consent of Holdings (not to be unreasonably
withheld, delayed or conditioned) before (i) making an election under Section 6226(a) of the Code (or any
analogous provision of state or local Law) or (ii) taking any material action under the Partnership Tax
Audit Rules that would reasonably be expected to have a disproportionate (compared to Pubco) and
material adverse effect on Holdings, in the case of each of clauses (i) and (ii).
(d)This Section 7.4 shall be interpreted to apply to Members and former Members and shall
survive the transfer of a Member’s Company Units and the termination, dissolution, liquidation and
winding up of the Company and, for this purpose to the extent not prohibited by applicable law, the
Company shall be treated as continuing in existence.
Section 7.5Code § 83 Safe Harbor Election.
(a)By executing this Agreement, each Unitholder authorizes and directs the Company to
elect to have the “Safe Harbor” described in the proposed Revenue Procedure set forth in the Internal
Revenue Service Notice 2005-43 (the “IRS Notice”) or in any successor, guidance or provision apply to
any interest in the Company transferred to a service provider by the Company on or after the effective
date of such Revenue Procedure in connection with services provided to the Company. For purposes of
making such Safe Harbor election, the Partnership Representative is hereby designated as the “partner
who has responsibility for federal income Tax reporting” by the Company and, accordingly, that
execution of such Safe Harbor election by the Partnership Representative constitutes execution of a “Safe
Harbor Election” in accordance with Section 3.03(1) of the IRS Notice. Each Unitholder hereby agrees to
comply with all requirements of the Safe Harbor described in the IRS Notice, including, the requirement
that each Unitholder shall prepare and file all federal income Tax returns reporting the income Tax effects
of each Unit issued by the Company that qualifies for the Safe Harbor in a manner consistent with the
requirements of the IRS Notice.
(b)Any Unitholder or former Unitholder that fails to comply with requirements set forth in
Section 7.5(a) shall indemnify and hold harmless the Company and each adversely affected Unitholder
and former Unitholder from and against any and all losses, liabilities, Taxes, damages, judgments, fines,
costs, penalties, amounts paid in settlement and reasonable out-of-pocket costs and expenses incurred in
connection therewith (including, costs and expenses of suits and proceedings and reasonable fees and
disbursements of counsel), in each case resulting from such Unitholder’s or former Unitholder’s failure to
comply with such requirements. The Manager may offset Distributions to which a Person is otherwise
entitled under this Agreement against such Person’s obligation to indemnify the Company and any other
Person under this Section 7.5(b) (and any amount so offset with respect to such Person’s obligation to
indemnify a Person other than the Company shall be paid over to such other Person by the Company). A
Unitholder’s obligations to comply with the requirements of Section 7.5(a) and to indemnify the
Company and any Unitholder or former Unitholder under this Section 7.5(b) shall survive such
Unitholder’s ceasing to be a Unitholder of the Company and/or the termination, dissolution, liquidation
and winding up of the Company, and, for purposes of this Section 7.5, the Company shall be treated as
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continuing in existence. The Company and any Unitholder or former Unitholder may pursue and enforce
all rights and remedies it may have against each Unitholder or former Unitholder under this Section
7.5(b), including (i) instituting a lawsuit to collect such indemnification and contribution, with interest
calculated at a rate equal to the Base Rate plus three percentage points per annum (but not in excess of the
highest rate per annum permitted by law), compounded on the last day of each Fiscal Quarter, and (ii)
specific performance and/or immediate injunctive or other equitable relief from any court of competent
jurisdiction (without the necessity of showing actual money damages, or posting any bond or other
security) in order to enforce or prevent any violation of the provisions of Section 7.5(a).
(c)Each Unitholder authorizes the Manager to amend paragraphs (a) and (b) of this Section
7.5 to the extent necessary to achieve substantially the same Tax treatment with respect to any interest
Units Transferred to a service provider by the Company in connection with services provided to the
Company as set forth in Section 4 of the IRS Notice (e.g., to reflect changes from the rules set forth in the
IRS Notice in subsequent Internal Revenue Service guidance); provided, that such amendment is not
materially adverse to any Unitholder (as compared with the after-Tax consequences that would result if
the provisions of the IRS Notice applied to all Units Transferred to a service provider by the Company in
connection with services provided to the Company).
ARTICLE VIII
TRANSFER OF UNITS; ADMISSION OF NEW MEMBERS
Section 8.1Transfer of Units. Other than as provided for in this Section 8.1, no Member
may sell, assign, transfer, grant a participation in, pledge, hypothecate, encumber or otherwise dispose of
(such transaction being herein collectively called a “Transfer”) all or any portion of its Units except with
the approval of the Manager, which may be granted or withheld in its sole discretion. Without the
approval of the Manager (but otherwise in compliance with Section 8.1), a Member may, at any time, (a)
Transfer any portion of such Member’s Units pursuant to the Exchange Agreement and (b) Transfer any
portion of such Member’s Units to a Permitted Transferee of such Member. Any purported Transfer of all
or a portion of a Member’s Units not complying with this Section 8.1 shall be void ab initio and shall not
create any obligation on the part of the Company or the other Members to recognize that purported
Transfer or to recognize the Person to which the Transfer purportedly was made as a Member. A Person
acquiring a Member’s Units pursuant to this Section 8.1 shall not be admitted as a substituted or
Additional Member except in accordance with the requirements of Section 8.2, but such Person shall, to
the extent of the Units transferred to it, be entitled to such Member’s (i) share of Distributions, (ii) share
of Profits and Losses and (iii) Capital Account in accordance with Section 3.6. Notwithstanding anything
in this Section 8.1 or elsewhere in this Agreement to the contrary, if a Member Transfers all or any
portion of its Units after the designation of a record date and declaration of a Distribution pursuant to
Section 4.1 and before the payment date of such distribution, the transferring Member (and not the Person
acquiring all or any portion of its Units) shall be entitled to receive such Distribution in respect of such
transferred Units.
Section 8.2Recognition of Transfer; Substituted and Additional Members.
(a)No direct or indirect Transfer of all or any portion of a Member’s Units may be made,
and no purchaser, assignee, transferee or other recipient of all or any part of such Units shall be admitted
to the Company as a substituted or Additional Member hereunder, unless:
(i)the provisions of Section 8.1 shall have been complied with;
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(ii)in the case of a proposed substituted or Additional Member that is (A) a
competitor or potential competitor of Pubco or the Company or their respective Subsidiaries, (B)
a Person with whom Pubco or the Company or their respective Subsidiaries has had or is
expected to have a material commercial or financial relationship or (C) likely to subject Pubco or
the Company or their respective Subsidiaries to any material legal or regulatory requirement or
obligation, or materially increase the burden thereof, in each case as determined by the Manager
in its sole discretion, the admission of the purchaser, assignee, transferee or other recipient as a
substituted or Additional Member shall have been approved by the Manager;
(iii)the Manager shall have been furnished with the documents effecting such
Transfer, in form and substance reasonably satisfactory to the Manager, executed and
acknowledged by both the seller, assignor or transferor and the purchaser, assignee, transferee or
other recipient, and the Manager shall have executed (and the Manager hereby agrees to execute)
any other documents on behalf of itself and the Members required to effect the Transfer;
(iv)the provisions of Section 8.2(b) shall have been complied with;
(v)the Manager shall be reasonably satisfied that such Transfer will not (A)
result in a violation of the Securities Act or any other applicable law or (B) cause an assignment
under the Investment Company Act;
(vi)such Transfer would not: (A) cause (or create a substantial risk of
causing) the Company to be treated as a “publicly traded partnership” within the meaning of
Section 7704 of the Code or any other association taxable as a corporation for federal income tax
purposes and, without limiting the generality of the foregoing, such Transfer shall not be effected
on or through an “established securities market” or a “secondary market or the substantial
equivalent thereof,” as such terms are used in Treas. Reg. § 1.7704-1; or (B) result in the
Company having more than 100 partners within the meaning of Treasury Regulations Section
1.7704-1(h) (determined taking into account the rules of Treasury Regulations Section
1.7704-1(h)(3); except as the Manager might reasonably determine that the Company can rely on
one or more of the secondary market safe harbors set forth in Treasury Regulations Section
1.7704-1(c)(3);
(vii)the Manager shall have received the opinion of counsel, if any, required
by Section 8.2(c) in connection with such Transfer; and
(viii)all necessary instruments reflecting such Transfer and/or admission shall
have been filed in each jurisdiction in which such filing is necessary in order to qualify the
Company to conduct business or to preserve the limited liability of the Members.
(b)Each Substituted Member and Additional Member shall be bound by all of the provisions
of this Agreement. Each Substituted Member and Additional Member, as a condition to its admission as a
Member, shall execute and acknowledge such instruments (including a counterpart of this Agreement and
the Exchange Agreement or a joinder agreement in customary form), in form and substance reasonably
satisfactory to the Manager, as the Manager reasonably deems necessary or desirable to effectuate such
admission and to confirm the agreement of such substituted or Additional Member to be bound by all the
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terms and provisions of this Agreement with respect to the Units acquired by such substituted or
Additional Member. The admission of a substituted or Additional Member shall not require the consent of
any Member (but shall require the consent of the Manager, if and to the extent such consent of the
Manager is expressly required by this Article VIII). As promptly as practicable after the admission of a
substituted or Additional Member, the Unit Ownership Ledger and other books and records of the
Company and Exhibit A shall be changed to reflect such admission.
(c)As a further condition to any Transfer of all or any part of a Member’s Units, the
Manager may, in its discretion, require a written opinion of counsel to the transferring Member
reasonably satisfactory to the Manager, obtained at the sole expense of the transferring Member,
reasonably satisfactory in form and substance to the Manager, as to such matters as are customary and
appropriate in transactions of this type, including (or, in the case of any Transfer made to a Permitted
Transferee, limited to an opinion) to the effect that such Transfer will not result in a violation of the
registration or other requirements of the Securities Act or any other federal or state securities laws. No
such opinion, however, shall be required in connection with a Transfer made pursuant to the Exchange
Agreement.
Section 8.3Expense of Transfer; Indemnification. All reasonable costs and expenses
incurred by the Manager and the Company in connection with any Transfer of a Member’s Units,
including any filing and recording costs and the reasonable fees and disbursements of counsel for the
Company, shall be paid by the transferring Member. In addition, the transferring Member hereby
indemnifies the Manager and the Company against any losses, claims, damages or liabilities to which the
Manager, the Company or any of their Affiliates may become subject arising out of or based upon any
false representation or warranty made by, or breach or failure to comply with any covenant or agreement
of, such transferring Member or such transferee in connection with such Transfer.
Section 8.4Exchange Agreement. In connection with any Transfer of any portion of a
Member’s Units pursuant to the Exchange Agreement, the Manager shall cause the Company to take any
action as may be required under the Exchange Agreement or requested by any party thereto to effect such
Transfer promptly.
Section 8.5Change of Control Transactions. In the event (i) Pubco enters into an
agreement to consummate a Change of Control (as defined in the Tax Receivable Agreement) transaction
or (ii) any Person commences a tender offer or exchange offer for any of the outstanding shares of
Pubco’s stock, Pubco will take all reasonable actions in order to effect any Change of Control Exchange.
ARTICLE IX
WITHDRAWAL AND RESIGNATION OF UNITHOLDERS
Section 9.1Withdrawal and Resignation of Unitholders. No Unitholder shall have the
power or right to withdraw or otherwise resign from the Company prior to the dissolution and winding up
of the Company pursuant to Article X, without the prior written consent of the Manager (which consent
may be withheld by the Manager in its sole discretion), except as otherwise expressly permitted by this
Agreement. Upon a Transfer of all of a Unitholder’s Units in a Transfer permitted by this Agreement, and
(if applicable) the Equity Agreements, such Unitholder shall cease to be a Unitholder. Notwithstanding
that payment on account of a withdrawal may be made after the effective time of such withdrawal, any
completely withdrawing Unitholder will not be considered a Unitholder for any purpose after the effective
time of such complete withdrawal, and, in the case of a partial withdrawal, such Unitholder’s Capital
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Account (and corresponding voting and other rights) shall be reduced for all other purposes hereunder
upon the effective time of such partial withdrawal.
ARTICLE X
DISSOLUTION AND LIQUIDATION
Section 10.1Dissolution. The Company shall not be dissolved by the admission of Additional
Members or Substituted Members. The Company shall dissolve, and its affairs shall be wound up upon
the first of the following to occur:
(a)at the election of the Manager;
(b)at any time there are not members of the Company unless the Company is continued
without dissolution in accordance with the Delaware Act; and
(c)the entry of a decree of judicial dissolution of the Company under Section 18-802 of the
Delaware Act.
Except as otherwise set forth in this Article X, the Company is intended to have perpetual
existence. An Event of Withdrawal shall not cause a dissolution of the Company and the Company shall
continue in existence subject to the terms and conditions of this Agreement.
Section 10.2Liquidation and Termination. On the dissolution of the Company, the Manager
shall act as liquidator or may appoint one or more representatives, Members or other Persons as
liquidator(s). The liquidators shall proceed diligently to wind up the affairs of the Company and make
final distributions as provided herein and in the Delaware Act. The costs of liquidation shall be borne as
the Company’s expense. Until final distribution, the liquidators shall continue to operate the Company
properties with all of the power and authority of the Manager. The steps to be accomplished by the
liquidators are as follows:
(a)The liquidators shall pay, satisfy or discharge from the Company’s funds all of the debts,
liabilities and obligations of the Company (including all expenses incurred in liquidation) or otherwise
make reasonable provision for payment thereof (including the establishment of a cash fund for contingent
liabilities in such amount and for such term as the liquidators may reasonably determine).
(b)As promptly as practicable after dissolution, the liquidators shall (i) determine the Fair
Market Value (the “Liquidation FMV”) of the Company’s remaining assets (the “Liquidation Assets”) in
accordance with Article X, (ii) determine the amounts to be distributed to each Unitholder in accordance
with Section 4.1 and (iii) deliver to each Unitholder a statement (the “Liquidation Statement”) setting
forth the Liquidation FMV and the amounts and recipients of such Distributions, which Liquidation
Statement shall be final and binding on all Unitholders.
(c)As soon as the Liquidation FMV and the proper amounts of Distributions have been
determined in accordance with Section 10.2(b), the liquidators shall promptly distribute the Company’s
Liquidation Assets to the holders of Units in accordance with Section 4.1(b). In making such
distributions, the liquidators shall allocate each type of Liquidation Assets (i.e., cash or cash equivalents,
preferred or common equity securities, etc.) among the Unitholders ratably based upon the aggregate
amounts to be distributed with respect to the Units held by each such holder; provided that the liquidators
may allocate each type of Liquidation Assets so as to give effect to and take into account the relative
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priorities of the different Units; provided, further that, in the event that any securities are part of the
Liquidation Assets, each Unitholder that is not an “accredited investor” as such term is defined under the
Securities Act may, in the sole discretion of the Manager, receive, and hereby agrees to accept, in lieu of
such securities, cash consideration with an equivalent value to such securities as determined by the
Manager. Any non-cash Liquidation Assets will first be written up or down to their Fair Market Value,
thus creating Profit or Loss (if any), which shall be allocated in accordance with Section 4.2 and Section
4.3. If any Unitholder’s Capital Account is not equal to the amount to be distributed to such Unitholder
pursuant to Section 10.2(b), Profits and Losses for the Fiscal Year in which the Company is dissolved
shall be allocated among the Unitholders in such a manner as to cause, to the extent possible, each
Unitholder’s Capital Account to be equal to the amount to be distributed to such Unitholder pursuant to
Section 10.2(b). The distribution of cash and/or property to a Unitholder in accordance with the
provisions of this Section 10.2(b) constitutes a complete return to the Unitholder of its Capital
Contributions and a complete distribution to the Unitholder of its interest in the Company and all the
Company property and constitutes a compromise to which all Unitholders have consented within the
meaning of the Delaware Act. To the extent that a Unitholder returns funds to the Company, it has no
claim against any other Unitholder for those funds.
Section 10.3Securityholders Agreement. To the extent that units or other equity securities of
any Subsidiary are distributed to any Unitholders and unless otherwise agreed to by the Manager, such
Unitholders hereby agree to enter into a securityholders agreement with such Subsidiary and each other
Unitholder which contains rights and restrictions in form and substance similar to the provisions and
restrictions set forth herein (including in Article VIII).
Section 10.4Cancellation of Certificate. On completion of the winding up of the Company,
including the distribution of the Company’s assets as provided herein, the Company shall be terminated
(and the Company shall not be terminated prior to such time) upon the Manager (or such other Person or
Persons as the Delaware Act may require or permit) causing the filing of a certificate of cancellation of
the Certificate with the Secretary of State of Delaware, and the Manager or such other authorized Person
or Persons shall in connection with the winding up of the Company cancel any other filings made
pursuant to this Agreement that are or should be canceled and take such other actions as may be necessary
to terminate the Company. The Company shall be deemed to continue in existence for all purposes of this
Agreement until it is terminated pursuant to this Section 10.4.
Section 10.5Reasonable Time for Winding Up. A reasonable time shall be allowed for the
orderly winding up of the business and affairs of the Company and the liquidation of its assets pursuant to
Section 10.2 in order to minimize any losses otherwise attendant upon such winding up.
Section 10.6Return of Capital. The liquidators shall not be personally liable for the return of
Capital Contributions or any portion thereof to the Unitholders (it being understood that any such return
shall be made solely from the Company assets).
Section 10.7Hart-Scott-Rodino. In the event the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 (the “HSR Act”) is applicable to any Unitholder, the dissolution of the Company shall not be
consummated until such time as the applicable waiting period (and extensions thereof) under the HSR Act
have expired or otherwise been terminated with respect to each such Unitholder.
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ARTICLE XI
GENERAL PROVISIONS
Section 11.1Power of Attorney. Each Unitholder hereby constitutes and appoints the
Manager and the liquidators, if any and as applicable, and their respective designees, with full power of
substitution, as his, her or its true and lawful agent and attorney-in-fact, with full power and authority in
his, her or its name, place and stead, to execute, swear to, acknowledge, deliver, file and record in the
appropriate public offices (to the same extent such Person could take such action): (a) this Agreement, all
certificates and other instruments and all amendments hereof or thereof in accordance with the terms
hereof which the Manager deems appropriate or necessary to form, qualify or continue the qualification
of, the Company as a limited liability company in the State of Delaware and in all other jurisdictions in
which the Company may conduct business or own property or as otherwise permitted herein; (b) all
instruments, agreements, amendments or other documents which the Manager deems appropriate or
necessary to reflect any amendment, change, modification or restatement of this Agreement in accordance
with its terms; (c) all conveyances and other instruments or documents which the Manager and/or the
liquidators deems appropriate or necessary to reflect the dissolution and liquidation of the Company
pursuant to the terms of this Agreement, including a certificate of cancellation; and (d) all instruments
relating to the admission, withdrawal or substitution of any Unitholder pursuant to Article VIII or
Article IX. The foregoing power of attorney is irrevocable and coupled with an interest, and shall survive
the death, disability, incapacity, dissolution, bankruptcy, insolvency or termination of any Unitholder and
the Transfer of all or any portion of his, her or its Units and shall extend to such Unitholder’s heirs,
successors, permitted assigns and personal representatives.
Section 11.2Amendments. This Agreement may be amended (including, for purposes of this
Section 11.2, any amendment effected directly or indirectly by way of a merger or consolidation of the
Company) or waived, in whole or in part, by the Manager; provided, however, that to the extent any
amendment or waiver, including any amendment or waiver of the Exhibits attached hereto, would
disproportionately and adversely affect the rights of any Member of a class compared with the rights of
any other Member of such class, such amendment or waiver may only be made by the Manager upon the
prior written consent of such disproportionately and adversely affected Member.
Section 11.3Title to the Company Assets. The Company’s assets shall be deemed to be
owned by the Company as an entity, and no Unitholder, individually or collectively, shall have any
ownership interest in such assets or any portion thereof. Legal title to any or all of such assets may be
held in the name of the Company or one or more nominees, as the Manager may determine. The Manager
hereby declares and warrants that any Company assets for which legal title is held in the name of any
nominee shall be held in trust by such nominee for the use and benefit of the Company in accordance with
the provisions of this Agreement. All Company assets shall be recorded as the property of the Company
on its books and records, irrespective of the name in which legal title to such assets is held.
Section 11.4Remedies. Each Unitholder and the Company shall have all rights and remedies
set forth in this Agreement and all rights and remedies which such Person has been granted at any time
under any other agreement or contract and all of the rights which such Person has under any law. Any
Person having any rights under any provision of this Agreement or any other agreements contemplated
hereby shall be entitled to enforce such rights specifically (without posting a bond or other security), to
recover damages by reason of any breach of any provision of this Agreement and to exercise all other
rights granted by law.
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Section 11.5Successors and Assigns. All covenants and agreements contained in this
Agreement shall bind and inure to the benefit of the parties hereto and their respective heirs, executors,
administrators, successors, legal representatives and permitted assigns, whether so expressed or not.
Olympus is an express third party beneficiary of its rights under this Agreement.
Section 11.6Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule
in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or the
effectiveness or validity of any provision in any other jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never
been contained herein or if such term or provision could be drawn more narrowly so as not to be illegal,
invalid, prohibited or unenforceable in such jurisdiction, it shall be so narrowly drawn, as to such
jurisdiction, without invalidating the remaining terms and provisions of this Agreement or affecting the
legality, validity or enforceability of such term or provision in any other jurisdiction.
Section 11.7Counterparts; Binding Agreement. This Agreement may be executed
simultaneously in two or more separate counterparts, any one of which need not contain the signatures of
more than one party, but each of which will be an original and all of which together shall constitute one
and the same agreement binding on all the parties hereto. This Agreement and all of the provisions hereof
shall be binding upon and effective as to each Person who (a) executes this Agreement in the appropriate
space provided in the signature pages hereto notwithstanding the fact that other Persons who have not
executed this Agreement may be listed on the signature pages hereto and (b) may from time to time
become a party to this Agreement by executing a counterpart of or joinder to this Agreement.
Section 11.8Descriptive Headings; Interpretation. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement.
Whenever required by the context, any pronoun used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the
plural and vice versa. The use of the word “including” in this Agreement shall be by way of example
rather than by limitation. Reference to any agreement, document or instrument means such agreement,
document or instrument as amended or otherwise modified from time to time in accordance with the
terms thereof, and if applicable hereof. Whenever required by the context, references to a Fiscal Year
shall refer to a portion thereof. The use of the words “or,” “either” and “any” shall not be exclusive. The
parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any of the provisions of this Agreement. Wherever a conflict exists
between this Agreement and any other agreement, this Agreement shall control but solely to the extent of
such conflict.
Section 11.9Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict
of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of Delaware.
Section 11.10Addresses and Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be
deemed to have been given or made when (a) delivered personally to the recipient, (b) telecopied to the
35
recipient, or delivered by means of electronic mail if telecopied/emailed on a Business Day, and
otherwise on the next Business Day or (c) one (1) Business Day after being sent to the recipient by
reputable overnight courier service (charges prepaid). Such notices, demands and other communications
shall be sent to the address for such recipient set forth in the Company’s books and records, or to such
other address or to the attention of such other person as the recipient party has specified by prior written
notice to the sending party.
Section 11.11Creditors. None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditors of the Company or any of its Affiliates, and no creditor who makes a loan to
the Company or any of its Affiliates may have or acquire (except pursuant to the terms of a separate
agreement executed by the Company in favor of such creditor) at any time as a result of making the loan
any direct or indirect interest in the Company’s Profits, Losses, Distributions, capital or property other
than as a secured creditor. Notwithstanding the foregoing, each of the Indemnitees are intended third
party beneficiaries of Section 6.2 and shall be entitled to enforce such provision (as it may be in effect
from time to time) directly as if a party hereto.
Section 11.12No Waiver. No failure by any party hereto to insist upon the strict performance
of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy
consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant,
duty, agreement or condition.
Section 11.13Further Action. The parties hereto agree to execute and deliver all documents,
provide all information and take or refrain from taking such actions as may be necessary or appropriate to
achieve the purposes of this Agreement, in each case, as and when requested by the Manager.
Section 11.14Entire Agreement. This Agreement and the other Transaction Documents
embody the complete agreement and understanding among the parties with respect to the subject matter
herein and supersede and preempt any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter hereof in any way.
Section 11.15Delivery by Electronic Means. This Agreement, the agreements referred to
herein, and each other agreement or instrument entered into in connection herewith or therewith or
contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered
by means of a facsimile machine or electronic transmission in portable document format (pdf) or
comparable electronic transmission, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if it were the original signed
version thereof delivered in person. At the request of any party hereto or to any such agreement or
instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them to
all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile
machine or pdf electronic transmission or comparable electronic transmission to deliver a signature or the
fact that any signature or agreement or instrument was transmitted or communicated through the use of a
facsimile machine or pdf electronic transmission as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
Section 11.16Certain Acknowledgments. This Agreement shall be considered for all purposes
as having been prepared through the joint efforts of the parties hereto. To the fullest extent permitted by
law, no presumption shall apply in favor of any party hereto in the interpretation of this Agreement or in
the resolution of any ambiguity of any provision hereof based on the preparation, substitution, submission
or other event of negotiation, drafting or execution hereof. Each Member and Unitholder acknowledges
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that such Member or Unitholder is entitled to and has been afforded the opportunity to consult legal
counsel of its choice regarding the terms, conditions and legal effects of this Agreement, as well as the
advisability and propriety thereof. Each Member and Unitholder further acknowledges that having so
consulted with legal counsel of its choosing, such Member or Unitholder hereby waives any right to raise
or rely upon the lack of representation or effective representation in any future proceedings or in
connection with any future claim resulting from this Agreement or the formation of the Company.
Section 11.17Consent to Jurisdiction; WAIVER OF TRIAL BY JURY.
(a)Consent to Jurisdiction. Each party hereto irrevocably submits to the exclusive
jurisdiction of the United States District Court for the State of Delaware and the state courts of the State
of Delaware for the purposes of any suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby. Each party hereto further agrees that service of any process, summons,
notice or document by United States certified or registered mail (in each such case, prepaid return receipt
requested) to such party hereto’s respective address set forth in the Company’s books and records or such
other address or to the attention of such other person as the recipient party has specified by prior written
notice to the sending party shall be effective service of process in any action, suit or proceeding in
Delaware with respect to any matters to which it has submitted to jurisdiction as set forth above in the
immediately preceding sentence. Each party hereto irrevocably and unconditionally waives any objection
to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the United States District Court for the State of Delaware or the state courts of the
State of Delaware and hereby irrevocably and unconditionally waives and agrees not to plead or claim in
any such court that any such action, suit or proceeding brought in such court has been brought in an
inconvenient forum.
(b)WAIVER OF TRIAL BY JURY. BECAUSE DISPUTES ARISING IN CONNECTION
WITH COMPLEX TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES HERETO WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION
RULES), THE PARTIES HERETO DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE
APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH PARTY
HERETO HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE
PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT
OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIPS ESTABLISHED
AMONG THE PARTIES HEREUNDER.
Section 11.18Representations and Warranties. By execution of this Agreement, each
Member severally represents and warrants as follows:
(a)Such Member has full legal right, power and authority to deliver this Agreement and the
other Transaction Documents and to perform such Member’s obligations hereunder and thereunder;
(b)This Agreement and the other Transaction Documents constitute the legal, valid and
binding obligation of such Member enforceable in accordance with its respective terms, except as the
enforcement thereof may be limited by bankruptcy and other laws of general application relating to
creditors’ rights or general principles of equity;
37
(c)Neither this Agreement nor the other Transaction Documents violate, conflict with, result
in a breach of the terms, conditions or provisions of or constitute a default or an event of default under
any other agreement of which such Member is a party; and
(d)Such Member’s investment in Units in the Company is made for such Member’s own
account for investment purposes only and not with a view to the resale or distribution of such Units in
violation of applicable securities laws.
Section 11.19Tax Receivable Agreement. The Tax Receivable Agreement and the Exchange
Agreement shall each be treated as part of this Agreement as described in Section 761(c) of the Code, and
Treas. Reg. § 1.704-1(b)(2)(ii)(h) and § 1.761-1(c) with respect to payments to a Member with respect to
an Exchange (as defined in the Tax Receivable Agreement) by such Member.
* * * * *
Signature Page to
Accelevation Holdings LLC Limited Liability Company Agreement
IN WITNESS WHEREOF, the undersigned have executed or caused to be executed on their
behalf this Limited Liability Company Agreement as of the date first written above.
MEMBERS | ||
ACCELEVATION HOLDINGS CORP. | ||
By: | ||
Name: | ||
Title: | ||
ACCELEVATION INVESTMENT HOLDINGS LLC | ||
By: | ||
Name: | ||
Title: | ||
INSTOR BLOCKER, INC. | ||
By: | ||
Name: | ||
Title: | ||
MANAGER | ||
ACCELEVATION HOLDINGS CORP. | ||
By: | ||
Name: | ||
Title: | ||
UNIT OWNERSHIP LEDGER
On file with the Company.
Exhibit 21.1
SUBSIDIARIES OF ACCELEVATION HOLDINGS CORP.
1.Instor Blocker, Inc. (DE)
2.Accelevation Holdings LLC (DE)
3.Accelevation LLC (DE)
4.Instor Solutions, LLC (DE)
5.WACC LLC (DE)
6.Conatech, LLC (OH)
7.SETCo Tool LLC (OH)
8.TX A Electric, LLC (DE)
9.SteelPro LLC (MS)
10.SteelPro Memphis, LLC (DE)