(c) To the extent required by any applicable law, the Term Agent may withhold from any payment to any Term Lender under a Loan Document an amount equal to any applicable withholding tax. If the IRS or any
other Governmental Authority asserts a claim that the Term Agent did not properly withhold tax from amounts paid to or for the account of any Term Lender (because the appropriate certification form was not delivered, was not properly
executed, or fails to establish an exemption from, or reduction of, withholding tax with respect to a particular type of payment, or because such Term Lender failed to notify the Term Agent or any other Person of a change in circumstances
which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason), or the Term Agent reasonably determines that it was required to withhold taxes from a prior payment but failed to do so, such Term
Lender shall promptly indemnify the Term Agent fully for all amounts paid, directly or indirectly, by the Term Agent as tax or otherwise, including penalties and interest, and together with all expenses incurred by the Term Agent, including
legal expenses, allocated internal costs and out-of-pocket expenses. The Term Agent may offset against any payment to any Term Lender under a Loan Document, any applicable withholding tax that was required to be withheld from any prior
payment to such Term Lender but which was not so withheld, as well as any other amounts for which the Term Agent is entitled to indemnification from such Term Lender under this Section 7.8(c).
(a) The Term Agent may resign at any time by delivering notice of such resignation to the Term Lenders and the Borrowers, effective on the date set forth in such notice 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 7.9. If the Term Agent delivers any such notice, the Required Lenders shall have the right to appoint a successor Term Agent. If,
after 30 days after the date of the retiring Term Agent’s notice of resignation, no successor Term Agent has been appointed by the Required Lenders that has accepted such appointment, then the retiring Term Agent may, on behalf of the Term
Lenders, appoint a successor Term Agent from among the Term Lenders. Each appointment under this clause (a) shall be subject to the prior consent of the Borrowers, which may not be unreasonably withheld but shall not be required
during the continuance of an Event of Default.
(b) Effective immediately upon its resignation, (i) the retiring Term Agent shall be discharged from its duties and obligations under the Loan Documents, (ii) the Term Lenders shall assume and perform all
of the duties of the Term Agent until a successor Term Agent shall have accepted a valid appointment hereunder, (iii) the retiring Term Agent and its Related Persons shall no longer have the benefit of any provision of any Loan Document other
than with respect to any actions taken or omitted to be taken while such retiring Term Agent was, or because such Term Agent had been, validly acting as the Term Agent under the Loan Documents and (iv) subject to its rights under Section 7.3,
the retiring Term Agent shall take such action as may be reasonably necessary to assign to the successor Term Agent its rights as Term Agent under the Loan Documents. Effective immediately upon its acceptance of a valid appointment as the
Term Agent, a successor Term Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Term Agent under the Loan Documents.
7.10 Release of Collateral or Borrowers. Each Term Lender hereby consents to the release and hereby directs the Term Agent to release (or, in the case of clause (b)(ii) below, release or
subordinate) the following:
(a) any Borrower from its Obligations if all of the Stock and Stock Equivalents of such Person are sold or transferred in a transaction permitted under the Loan Documents (including pursuant to a waiver or
(b) any Lien held by the Term Agent for the benefit of the Secured Parties against (i) any Collateral that is sold, transferred, conveyed or otherwise disposed of by a Borrower in a transaction permitted
by the Loan Documents (including pursuant to a waiver or consent), and (ii) all of the Collateral and all Borrowers, upon (A) payment and satisfaction in full in immediately available funds of all of the Term Loan and all other Obligations,
(B) deposit of cash collateral (or other arrangements reasonably acceptable to the Term Agent) with respect to all contingent Obligations, in amounts and on terms and conditions and with parties satisfactory to the Term Agent and each
Indemnitee that is, or may be, owed such Obligations (excluding contingent indemnification Obligations as to which no claim has been asserted) and (C) to the extent requested by the Term Agent, receipt by the Term Agent and the Secured
Parties of liability releases from the Borrowers each in form and substance reasonably acceptable to the Term Agent.
Each of the Term Lenders hereby directs the Term Agent, and the Term Agent hereby agrees, upon receipt of at least five (5) Business Days’ advance notice from the Designated Borrower, to execute and deliver or
file such documents and to perform other actions reasonably necessary to effect such releases when and as directed in this Section 7.10.
8.1 Amendments and Waivers.
(a) No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent with respect to any departure by any Borrower therefrom, shall be effective unless the same shall
be in writing and signed by the Term Agent, the Required Lenders (or by the Term Agent with the consent of the Required Lenders), and the Borrowers, and then such waiver shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such waiver, amendment, or consent shall, unless in writing and signed by all the Term Lenders directly affected thereby (or by the Term Agent with the consent of all the Term Lenders
directly affected thereby), in addition to the Term Agent and the Required Lenders (or by the Term Agent with the consent of the Required Lenders) and the Borrowers, do any of the following:
(i) postpone or delay any date fixed for, or reduce or waive, any scheduled installment of principal or any payment of interest, fees or other amounts (other than principal) due to the Term Lenders (or
any of them) hereunder or under any other Loan Document (for the avoidance of doubt, (x) the waiver of a Default or Event of Default or the waiver of the imposition of increased interest pursuant to Section 1.3(c) shall not constitute
a reduction of interest for purposes hereof and (y) mandatory prepayments pursuant to Section 1.6(b) may be postponed, delayed, reduced, waived or modified with the consent of Required Lenders);
(ii) reduce the principal of, or the rate of interest specified herein or the amount of interest payable in cash specified herein on the Term Loan, or of any fees or other amounts payable hereunder or
under any other Loan Document (for the avoidance of doubt, the waiver of a Default or Event of Default or the waiver of the imposition of increased interest pursuant to Section 1.3(c) shall not constitute a reduction of interest for
(iii) amend or modify Section 1.8 in any manner that would alter the order of treatment or the pro rata sharing of payments required thereby;
(iv) amend this Section 8.1 or change (x) the term “Required Lenders” or (y) the percentage of Term Lenders which shall be required for the Term Lenders to take any action hereunder;
(v) discharge the Borrowers from their payment Obligations under the Loan Documents, permit any assignment of such obligations, or release all or substantially all of the Collateral, except as otherwise
may be provided in this Agreement or the other Loan Documents;
(vi) subordinate (x) all or substantially all of the Liens granted pursuant to the Loan Documents or (y) the Obligations, in each case other than as otherwise permitted hereunder;
(vii) extent or increase any commitment to lend to the Borrowers; or
(viii) (x) release all or substantially all of the value of the Guaranty Agreement (provided that the Term Agent may, without the consent of any Term Lender, release any Guarantor (or all or
substantially all of the assets of a Guarantor) that is sold or transferred (other than to any Loan Party) in compliance with Section 5.2 or Section 7.1(b)) or (y) release any Borrower from the Guaranty Agreement without the
written consent of each Term Lender;
it being agreed that all Term Lenders shall be deemed to be directly affected by an amendment or waiver of the type described in the preceding clauses (iv) through (viii).
(b) No amendment, waiver or consent shall, unless in writing and signed by the Term Agent, in addition to the Required Lenders or all Term Lenders directly affected thereby, as the case may be (or by the
Term Agent with the consent of the Required Lenders or all the Term Lenders directly affected thereby, as the case may be), affect the rights or duties of the Term Agent under this Agreement or any other Loan Document. Notwithstanding
anything to the contrary contained in this Section 8.1, the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto.
(c) Notwithstanding anything to the contrary contained in this Section 8.1, the Term Agent and the Borrowers may amend or modify this Agreement and any other Loan Document to (i) cure any ambiguity,
omission, defect or inconsistency therein, or (ii) grant a new Lien for the benefit of the Secured Parties, extend an existing Lien over additional Property for the benefit of the Secured Parties or join additional Persons as Borrowers.
(d) If any Term Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that has been approved by the Term Agent, then the Term Agent or the Borrowers
may, at the Borrowers’ sole expense and effort, upon notice to such Term Lender and the Term Agent, require such Term Lender to assign and delegate, without recourse, all of its interests, rights (other than its existing rights to payments
pursuant to Section 9.1 or Section 9.2) and obligations under this Agreement and the related Loan Documents to an eligible assignee (determined in accordance with Section 8.9(b)) that shall assume such obligations
(which assignee may be another Term Lender, if a Term Lender accepts such assignment); provided that:
(i) the Borrowers shall have paid to the Term Agent the assignment fee (if any) specified in Section 8.9(c);
(ii) such Term Lender shall have received payment of an amount equal to the outstanding principal of its portion of the Term Loan, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts); and
(iii) such assignment does not conflict with applicable Requirements of Law.
A Term Lender shall not be required to make any such assignment if, prior thereto, as a result of a waiver by such Term Lender or otherwise, the circumstances entitling the Borrowers to require such assignment
cease to apply.
(a) Addresses. All notices and other communications required or expressly authorized to be made by this Agreement shall be given in writing, unless otherwise expressly specified herein, and
(i) addressed to the address set forth on Schedule 8.2 hereof (as such address may be updated from time to time by providing written notice to the other parties hereto in accordance with this Section 8.2(a)), (ii) posted to
any E-System approved by or set up by or at the direction of the Term Agent or (iii) addressed to such other address as shall be notified in writing (A) in the case of the Borrowers and the Term Agent, to the other parties hereto and (B) in
the case of all other parties, to the Designated Borrower and the Term Agent. Transmissions made by electronic mail to the Term Agent shall be effective only (x) for notices where such transmission is specifically authorized by this
Agreement, (y) if such transmission is delivered in compliance with procedures of the Term Agent applicable at the time and previously communicated to the Designated Borrower, and (z) if receipt of such transmission is acknowledged by the
(b) Effectiveness. (i) All communications described in clause (a) above and all other notices, demands, requests and other communications made in connection with this Agreement shall be
effective and be deemed to have been received (A) if delivered by hand, upon personal delivery, (B) if delivered by overnight courier service, one (1) Business Day after delivery to such courier service, (C) if delivered by mail, three (3)
Business Days after deposit in the mail, (D) if delivered by facsimile (other than to post to an E-System pursuant to clause (a)(ii) above), upon sender’s
receipt of confirmation of proper transmission, and (E) if delivered by posting to any E-System, on the later of the Business Day of such posting and the Business Day access to such posting is given to the recipient thereof in accordance with
the standard procedures applicable to such E-System; provided, however, that no communications to the Term Agent pursuant to Article I shall be effective until received by the Term Agent.
(ii) The posting, completion and/or submission by any Borrower of any communication pursuant to an E‑System shall constitute a representation and warranty by the Borrowers that any representation,
warranty, certification or other similar statement required by the Loan Documents to be provided, given or made by a Borrower in connection with any such communication is true, correct and complete except as expressly noted in such
communication or E-System.
(c) Each Term Lender shall notify the Term Agent in writing of any changes in the address to which notices to such Term Lender should be directed, of addresses of its Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such other administrative information as the Term Agent shall reasonably request.
8.3 Electronic Transmissions.
(a) Authorization. Subject to the provisions of Section 8.2(a), each of the Term Agent, the Term Lenders, each Borrower and each of their Related Persons, is authorized (but not required)
to transmit, post or otherwise make or communicate, in its sole discretion, Electronic Transmissions in connection with any Loan Document and the transactions contemplated therein. Each Borrower and each Secured Party hereto acknowledges and
agrees that the use of Electronic Transmissions is not necessarily secure and that there are risks associated with such use, including risks of interception, disclosure and abuse and each indicates it assumes and accepts such risks by hereby
authorizing the transmission of Electronic Transmissions.
(b) Signatures. Subject to the provisions of Section 8.2(a), (i)(A) no posting to any E-System shall be denied legal effect merely because it is made electronically, (i) each E‑Signature
on any such posting shall be deemed sufficient to satisfy any requirement for a “signature” and (B) each such posting shall be deemed sufficient to satisfy any requirement for a “writing”, in each case including pursuant to any Loan Document,
any applicable provision of any UCC, the federal Uniform Electronic Transactions Act, the Electronic Signatures in Global and National Commerce Act and any substantive or procedural Requirements of Law governing such subject matter, (ii) each
such posting that is not readily capable of bearing either a signature or a reproduction of a signature may be signed, and shall be deemed signed, by attaching to, or logically associating with such posting, an E-Signature, upon which the
Term Agent, each Secured Party and each Borrower may rely and assume the authenticity thereof, (iii) each such posting containing a signature, a reproduction of a signature or an E-Signature shall, for all intents and purposes, have the same
effect and weight as a signed paper original and (iv) each party hereto or beneficiary hereto agrees not to contest the validity or enforceability of any posting on any E-System or E-Signature on any such posting under the provisions of any
applicable Requirements of Law requiring certain documents to be in writing or signed; provided, however, that nothing herein shall limit such party’s or beneficiary’s right to contest whether any posting to any E-System or
E-Signature has been altered after transmission.
(c) Separate Agreements. All uses of an E-System shall be governed by and subject to, in addition to Section 8.2 and this Section 8.3, the separate terms, conditions and privacy
connection with the use of such E-System.
(d) LIMITATION OF LIABILITY. ALL E-SYSTEMS AND ELECTRONIC TRANSMISSIONS SHALL BE PROVIDED “AS IS” AND “AS AVAILABLE”. NONE OF THE TERM AGENT, ANY TERM LENDER OR ANY OF THEIR RELATED PERSONS
WARRANTS THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY E-SYSTEMS OR ELECTRONIC TRANSMISSION AND DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS THEREIN. NO WARRANTY OF ANY KIND IS MADE BY THE TERM AGENT, ANY TERM LENDER OR ANY OF THEIR
RELATED PERSONS IN CONNECTION WITH ANY E‑SYSTEMS OR ELECTRONIC COMMUNICATION, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS.
Each of the Borrowers, each other Borrower executing this Agreement and each Secured Party agrees that the Term Agent has no responsibility for maintaining or providing any equipment, software, services or any testing required in connection
with any Electronic Transmission or otherwise required for any E-System.
8.4 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Term Agent or any Term Lender, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. No course
of dealing between any Borrower, any Affiliate of any Borrower, the Term Agent or any Term Lender shall be effective to amend, modify or discharge any provision of this Agreement or any of the other Loan Documents.
8.5 Costs and Expenses. Any action taken by any Borrower under or with respect to any Loan Document, even if required under any Loan Document or at the request of Term Agent or Required Lenders,
shall be at the expense of such Borrower, and neither Term Agent nor any other Secured Party shall be required under any Loan Document to reimburse any Borrower or any Subsidiary of any Borrower therefor except as expressly provided therein.
In addition, the Borrowers agree to pay or reimburse upon demand: (a) Term Agent for all fees, disbursements, out-of-pocket costs and expenses (including reasonable travel expenses) incurred by it or any of its Related Persons in connection
with the investigation, development, preparation, documentation, negotiation, syndication, execution, interpretation, monitoring or administration of, any modification of any term of or termination of, any Loan Document, any commitment or
proposal letter therefor, any other document prepared in connection therewith or the consummation, monitoring and administration of any transaction contemplated herein or therein, in each case including Attorney Costs of Term Agent,
background checks and similar expenses and, subject to any limitations contained in Section 4.9, the cost of environmental audits, field examinations, Collateral audits and appraisals, (b) Term Agent for all reasonable costs and
expenses incurred by it or any of its Related Persons in connection with field examinations and Collateral examinations (which shall be reimbursed, in addition to the out-of-pocket costs and expenses of such examiners), in each case, subject
to any limitations contained in Section 4.9, (c) Term Agent and each Term Lender and their respective Related Persons for all costs and expenses incurred in connection with (i) any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a “work-out”, (ii) the enforcement, protection or preservation of any right or remedy under any Loan Document, any Obligation, with respect to the Collateral or any other related right or
remedy (including, without limitation, any efforts to preserve, protect, collect, or enforce the Collateral) or (iii) the commencement, defense, conduct of, intervention in, or the taking of any other action with respect to, any proceeding
(including any bankruptcy or insolvency proceeding) related to any Borrower, any Subsidiary of any Borrower, Loan Document, Obligation or related transaction (or the response to and preparation for any subpoena or request for document
production relating thereto), including Attorney Costs of Term Agent, and (d) fees and disbursements of Attorney Costs of one (1) law firm on behalf of all Term Lenders (in addition to Attorney Costs for Term Agent) incurred in connection
with any of the matters referred to in clause (c) above.
(a) Each Borrower agrees to indemnify, hold harmless and defend Term Agent, each Term Lender and each of their respective Related Persons (each such Person being an “Indemnitee”) from and against
all Liabilities (including brokerage commissions, fees and other compensation) that may be imposed on, incurred by or asserted against any such Indemnitee in any matter relating to or arising out of, in connection with or as a result of
(i) any Loan Document, any Obligation (or the repayment thereof), the use or intended use of the proceeds of the Term Loan or any securities filing of, or with respect to, any Borrower, (ii) any commitment letter, proposal letter or term
sheet with any Person or any Contractual Obligation, arrangement or understanding with any broker, finder or consultant, in each case entered into by or on behalf of any Borrower or any Affiliate of any of them in connection with any of the
foregoing and any Contractual Obligation entered into in connection with any E-Systems or other Electronic Transmissions, (iii) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such
Indemnitee or any of its Related Persons, any holders of securities or creditors (and including legal fees in any case), whether or not any such Indemnitee, Related Person, holder or creditor is a party thereto, and whether or not based on
any securities or commercial law or regulation or any other Requirements of Law or theory thereof, including common law, equity, contract, tort or otherwise relating to the transactions contemplated hereby or (iv) any other act, event or
transaction related, contemplated in or attendant to any of the foregoing (collectively, the “Indemnified Matters”); provided, however, that no Borrower shall have any liability under this Section 8.6 to any Indemnitee with
respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter other than (to the extent otherwise liable), to the extent such liability has resulted primarily from the bad faith, gross
negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Furthermore, each of the Borrowers and each other Borrower executing this Agreement waives
and agrees not to assert against any Indemnitee, and shall cause each other Borrower to waive and not assert against any Indemnitee, any right of contribution with respect to any Liabilities that may be imposed on, incurred by or asserted
against any Related Person other than to the extent such liability has resulted primarily from the bad faith, gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final
non-appealable judgment or order. Without limiting the provisions of Section 9.1, this Section 8.6(a) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any
(b) Without limiting the foregoing, “Indemnified Matters” includes all Environmental Liabilities, including those arising from, or otherwise involving, any property of any Borrower or any Related Person of
any Borrower or any actual, alleged or prospective damage to property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property or natural resource or any property
on or contiguous to any Real Estate of any Borrower or any Related Person of any Borrower, whether or not, with respect to any such Environmental Liabilities, any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in
possession, the successor-in-interest to any Borrower or any Related Person of any Borrower or the owner, lessee or operator of any property of any Related Person through any foreclosure action, in each case except to the extent such
Environmental Liabilities (i) are incurred solely following foreclosure by Term Agent or following Term Agent or any Term Lender having become the successor-in-interest to any Borrower or any Related Person of any Borrower and (ii) are
attributable solely to acts of such Indemnitee.
8.7 Marshaling; Payments Set Aside. No Secured Party shall be under any obligation to marshal any Property in favor of any Borrower or any other Person or against or in payment of any
Obligation. To the extent that any Secured Party receives a payment from any Borrower, from any other Borrower, from the proceeds of the Collateral, from the exercise of its rights of setoff, any enforcement action or otherwise, and such
payment is subsequently, in whole or in part, invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party, then to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such payment had not occurred.
8.8 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided
that any assignment by any Term Lender shall be subject to the provisions of Section 8.9, and provided further that neither of the Borrowers nor any other Borrower may assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Term Agent and each Term Lender.
8.9 Assignments and Participations; Binding Effect.
(a) Binding Effect. This Agreement shall become effective when it shall have been executed by the Borrowers and the Term Agent and when the Term Agent shall have been notified by each Term Lender
that such Term Lender has executed it. Thereafter, it shall be binding upon and inure to the benefit of, but only to the benefit of, the Borrowers (except for Article VII), the Term Agent, each Term Lender and their respective
successors and permitted assigns. Except as expressly provided in any Loan Document (including in Section 7.9 and Section 8.9), none of the Borrowers, any other Borrower, any Term Lender or the Term Agent shall have the right
to assign any rights or obligations hereunder or any interest herein, and any assignment in contravention of the foregoing shall be null and void.
(b) Right to Assign. Each Term Lender may sell, transfer, negotiate or assign (a “Sale”) all or a portion of its rights and obligations hereunder (including all or a portion of the Term
Loan owing to it) to (i) any existing Term Lender, (ii) any Affiliate or Approved Fund of any existing Term Lender or (iii) any other Person (that is not a natural Person) acceptable to the Term Agent and, so long as no Default or Event of
Default has occurred and is continuing, the Designated Borrower (which acceptance shall not be unreasonably withheld and shall be deemed to have been given unless an objection is delivered to the Term Agent in writing within five (5) Business
Days after a notice of a proposed Sale is delivered to the Designated Borrower); provided, however, that (w) the aggregate commitment and/or outstanding principal amount (determined as of the effective date of the applicable
Assignment) of the portion of the Term Loan subject to any such Sale shall be in a minimum amount of $1,000,000 and increments of $500,000 in excess thereof, unless such Sale is made to an existing Term Lender or an Affiliate or Approved Fund
of any existing Term Lender, is of the assignor’s (together with its Affiliates and Approved Funds) entire interest in such facility or is made with the prior consent of Term Agent, (x) such Sales shall be effective only upon the
acknowledgement in writing of such Sale by the Term Agent, and (y) interest and fees accrued prior to and through the date of any such Sale may not be assigned. Without limiting the foregoing, no Sale shall be made to (i) a Borrower or an
Affiliate of a Borrower or (ii) a holder of Subordinated Indebtedness or an Affiliate of such a holder.
(c) Procedure. The parties to each Sale made in reliance on clause (b) above (other than those described in clause (e) or (f) below) shall execute and deliver to the Term
Agent an Assignment via an electronic settlement system designated by the Term Agent (or, if previously agreed with the Term Agent, via a manual execution and delivery of the Assignment) evidencing such Sale, together with any existing Term
Note subject to such Sale (or any affidavit of loss therefor acceptable to the Term Agent), any tax forms required to be delivered pursuant to Section 9.1 and payment of an assignment fee in the amount of $3,500 to the Term Agent,
unless waived or reduced by the Term Agent; provided, that (i) if a Sale by a Term Lender is made to an Affiliate or an Approved Fund of such assigning Term Lender, then no assignment fee shall be due in connection with such Sale, and
(ii) if a Sale by a Term Lender is made to an assignee that is not an Affiliate or Approved Fund of such assignor Term Lender, and concurrently to one or more Affiliates or Approved Funds of such assignee, then only one assignment fee of
$3,500 shall be due in connection with such Sale (unless waived or reduced by the Term Agent). Upon receipt of all the foregoing, and conditioned upon such receipt and, if such Assignment is made in accordance with clause (iii) of
the first sentence of Section 8.9(b), upon the Term Agent (and the Designated Borrower, if applicable) consenting to such Assignment, from and after the effective date specified in such Assignment, the Term Agent shall record or cause
to be recorded in the Register the information contained in such Assignment.
(d) Effectiveness. Subject to the recording of an Assignment by the Term Agent in the Register pursuant to Section 1.4(b), (i) the assignee thereunder shall become a party hereto and, to
the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment, shall have the rights and obligations of a Term Lender, (ii) any applicable Term Note shall be transferred to
such assignee through such entry and (iii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment, relinquish its rights (except for those surviving
the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment covering all or
the remaining portion of an assigning Term Lender’s rights and obligations under the Loan Documents, such Term Lender shall cease to be a party hereto).
(e) Grant of Security Interests. In addition to the other rights provided in this Section 8.9, each Term Lender may grant a security interest in, or otherwise assign as collateral, any of
its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Term Loan), to (i) any federal reserve bank (pursuant to Regulation A of the Federal Reserve Board),
without notice to the Term Agent or (ii) any holder of, or trustee for the benefit of the holders of, such Term Lender’s Indebtedness or equity securities, by notice to the Term Agent; provided, however, that no such holder or
trustee, whether because of such grant or assignment or any foreclosure thereon (unless such foreclosure is made through an assignment in accordance with clause (b) above), shall be entitled to any rights of such Term Lender hereunder
and no such Term Lender shall be relieved of any of its obligations hereunder.
(f) Participants and SPVs. In addition to the other rights provided in this Section 8.9, each Term Lender may, (i) with notice to the Term Agent, grant to an SPV the option to make all or
any part of the Term Loan that such Term Lender would otherwise be required to make hereunder (and the exercise of such option by such SPV and the making of the Term Loan pursuant thereto shall satisfy the obligation of such Term Lender to
make such Term Loan hereunder) and such SPV may assign to such Term Lender the right to receive payment with respect to any Obligation and (ii) without notice to or consent from the Term Agent or the Borrowers, sell participations to one or
more Persons in or to all or a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to the Term Loan); provided, however, that, whether as a result of any term
of any Loan Document or of such grant or participation, (x) no such SPV or participant shall have a commitment, or be deemed to have made an offer to commit, to make any portion of the Term Loan hereunder, and, except as provided in the
applicable option agreement, none shall be liable for any obligation of such Term Lender hereunder, (y) such Term Lender’s rights and obligations, and the rights and obligations of the Borrowers and the Secured Parties towards such Term
Lender, under any Loan Document shall remain unchanged and each other party hereto shall continue to deal solely with such Term Lender, which shall remain the holder of the Obligations in the Register, except that (A) each such participant
and SPV shall be entitled to the benefit of Article IX, but, with respect to Section 9.1, only to the extent such participant or SPV delivers the tax forms such Term Lender is required to collect pursuant to Section 9.1(f)
(which tax forms will be delivered to the participating Term Lender) and then only to the extent of any amount to which such Term Lender would be entitled in the absence of any such grant or participation, except for any increase in such
amount resulting from a change in law occurring after such grant or participation and (B) each such SPV may receive other payments that would otherwise be made to such Term Lender with respect to the portion of the Term Loan funded by such
SPV to the extent provided in the applicable option agreement and set forth in a notice provided to the Term Agent by such SPV and such Term Lender, provided, however, that in no case (including pursuant to clause (A)
or (B) above) shall an SPV or participant have the right to enforce any of the terms of any Loan Document, and (z) the consent of such SPV or participant shall not be required (either directly, as a restraint on such Term Lender’s
ability to consent hereunder or otherwise) for any amendments, waivers or consents with respect to any Loan Document or to exercise or refrain from exercising any powers or rights such Term Lender may have under or in respect of the Loan
Documents (including the right to enforce or direct enforcement of the Obligations), except for those described in clauses (i) and (ii) of Section 8.1(a) with respect to amounts, or dates fixed for payment of amounts,
to which such participant or SPV would otherwise be entitled and, in the case of participants, except for those described in clause (iv) of Section 8.1(a). No party hereto shall institute (and the Borrowers shall cause each
other Borrower not to institute) against any SPV grantee of an option pursuant to this clause (f) any bankruptcy, reorganization, insolvency, liquidation or similar proceeding, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper of such SPV; provided, however, that each Term Lender having designated an SPV as such agrees to indemnify each Indemnitee against any Liability that may be incurred by, or
asserted against, such Indemnitee as a result of failing to institute such proceeding (including a failure to be reimbursed by such SPV for any such Liability). The agreement in the preceding sentence shall survive the payment in full of the
Obligations. Each Term Lender that sells a participation or grants an option to an SPV pursuant to this Section 8.9(f) shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters
the name and address of each such participant or SPV and the principal amounts (and stated interest) of each such participant’s or SPV’s interest in the Term Loan or other obligations under the Loan Documents (the “Participant Register”); provided that
no Term Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any SPV or participant or any information relating to an SPV’s or participant’s interest in any commitments, loans,
letters of credit or its other obligations under any Loan Document) to any Person 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. The entries in the Participant Register shall be conclusive absent manifest error, and such Term Lender shall treat each Person whose name is recorded in the Participant Register
as the owner of such participation or option for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Term Agent (in its capacity as Term Agent) shall have no responsibility for
maintaining a Participant Register.
8.10 Non-Public Information; Confidentiality.
(a) Non-Public Information. Term Agent and each Term Lender acknowledges and agrees that it may receive material non-public information (“MNPI”) hereunder concerning the Borrowers and
their Affiliates (other than TPB and its subsidiaries) and agrees to use such information in compliance with all relevant policies, procedures and applicable Requirements of Laws.
(b) Confidential Information. Each Term Lender and Term Agent agrees to use all commercially reasonable efforts to maintain, in accordance with its customary practices, the confidentiality of
information obtained by it pursuant to any Loan Document and designated in writing by any Borrower as confidential, except that such information may be disclosed (i) with the Designated Borrower’s consent, (ii) to Related Persons, funding
sources and investment committees of such Term Lender, or Term Agent, as the case may be, that are advised of the confidential nature of such information and are instructed to keep such information confidential in accordance with the terms
hereof, (iii) to the extent such information presently is or hereafter becomes (A) publicly available other than as a result of a breach of this Section 8.10 or (B) available to such Term Lender or Term Agent or any of their Related
Persons, as the case may be, from a source (other than any Borrower) not known by them to be subject to disclosure restrictions, (iv) to the extent disclosure is required by applicable Requirements of Law or other legal process or requested
or demanded by any Governmental Authority, (v) to the extent necessary or customary for inclusion in league table measurements, (vi) (A) to the National Association of Insurance Commissioners or any similar organization, any examiner or any
nationally recognized rating agency or (B) otherwise to the extent consisting of general portfolio information that does not identify Borrowers, (vii) to current or prospective assignees, SPVs (including the investors or prospective investors
therein) or participants and to their respective Related Persons, in each case to the extent such assignees, investors, participants or Related Persons agree to be bound by provisions substantially similar to the provisions of this Section 8.10
(and such Person may disclose information to their respective Related Persons in accordance with clause (ii) above), (viii) to any other party hereto, (ix) to any rating agency (provided that, prior to any such disclosure, such
holder shall make the recipient of such Confidential Information aware of the confidential nature of the same), and (x) in connection with the exercise or enforcement of any right or remedy under any Loan Document, in connection with any
litigation or other proceeding to which such Term Lender or Term Agent or any of their Related Persons is a party or bound, or to the extent necessary to respond to public statements or disclosures by Borrowers or their Related Persons
referring to a Term Lender or Term Agent or any of their Related Persons. In the event of any conflict between the terms of this Section 8.10 and those of any other Contractual Obligation entered into with any Borrower (whether or
not a Loan Document), the terms of this Section 8.10 shall govern.
(c) Tombstones. The Term Agent or any Term Lender may from time to time publish advertising material (including press releases) relating to the financing transactions contemplated by this
Agreement using any Borrower’s name, product photographs, logo or trademark.
(d) Press Release and Related Matters. No Borrower shall, and no Borrower shall permit any of its Affiliates to, issue any press release or other public disclosure (other than any document filed
with any Governmental Authority relating to a public offering of securities of any Borrower) using the name, logo or otherwise referring to GACP or of any of its Affiliates, the Loan Documents or any transaction contemplated therein to which
Term Agent is party without the prior consent of GACP except to the extent required to do so under applicable Requirements of Law and then, only after consulting with GACP.
(e) Distribution of Materials to Term Lenders. The Borrowers acknowledge and agree that the Loan Documents and all reports, notices, communications and other information or materials provided or
delivered by, or on behalf of, the Borrowers hereunder (collectively, the “Borrower Materials”) may be disseminated by, or on behalf of, Term Agent, and made available, to the Term Lenders by posting such Borrower Materials on an
E-System. The Borrowers authorize Term Agent to download copies of their logos from its website and post copies thereof on an E-System.
(f) Material Non-Public Information. The Borrowers hereby agree that if either they, any parent company or any Subsidiary of the Borrowers has publicly traded equity or debt securities in the
U.S., they shall (and shall cause such parent company or Subsidiary, as the case may be, to) (i) identify in writing, and (ii) clearly and conspicuously xxxx such Borrower Materials that contain only information that is publicly available or
that is not material for purposes of U.S. federal and state securities laws as “PUBLIC”. The Borrowers agree that by identifying such Borrower Materials as “PUBLIC” or publicly filing such Borrower Materials with the Securities and Exchange
Commission, then Term Agent and the Term Lenders shall be entitled to treat such Borrower Materials as not containing any MNPI for purposes of U.S. federal and state securities laws. The Borrowers further represent, warrant, acknowledge and
agree that the following documents and materials shall be deemed to be PUBLIC, whether or not so marked, and do not contain any MNPI: (A) the Loan Documents, including the schedules and exhibits attached thereto, and (B) administrative
materials of a customary nature prepared by the Borrowers or Term Agent. Before distribution of any Borrower Materials, the Borrowers agree to execute and deliver to Term Agent a letter authorizing distribution of the evaluation materials to
prospective Term Lenders and their employees willing to receive MNPI, and a separate letter authorizing distribution of evaluation materials that do not contain MNPI and represent that no MNPI is contained therein.
(g) TPB MNPI. Nothing in this Section 8.10 shall be deemed to limit the provisions of Section 5.20.
8.11 Set-off; Sharing of Payments.
(a) Right of Setoff. Each of Term Agent, each Term Lender and each Affiliate (including each branch office thereof) of any of them is hereby authorized, without notice or demand (each of which is
hereby waived by each Borrower), at any time and from time to time during the continuance of any Event of Default and to the fullest extent permitted by applicable Requirements of Law, to set off and apply any and all deposits (whether
general or special, time or demand, provisional or final) at any time held and other Indebtedness, claims or other obligations at any time owing by Term Agent, such Term Lender or any of their respective Affiliates to or for the credit or the
account of any Borrower or any other Borrower against any Obligation of any Borrower now or hereafter existing, whether or not any demand was made under any Loan Document with respect to such Obligation and even though such Obligation may be
unmatured. No Term Lender shall exercise any such right of setoff without the prior consent of Term Agent or Required Lenders. Each of Term Agent and each Term Lender agrees promptly to notify the Designated Borrower and Term Agent after any
such setoff and application made by such Term Lender or its Affiliates; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application. The rights under this Section 8.11
are in addition to any other rights and remedies (including other rights of setoff) that Term Agent, the Term Lenders, their Affiliates and the other Secured Parties, may have.
(b) Sharing of Payments, Etc. If any Term Lender, directly or through an Affiliate or branch office thereof, obtains any payment of any Obligation of any Borrower (whether voluntary, involuntary or
through the exercise of any right of setoff or the receipt of any Collateral or “proceeds” (as defined under the applicable UCC) of Collateral) other than pursuant to Section 8.9 or Article IX and such payment exceeds the
amount such Term Lender would have been entitled to receive if all payments had gone to, and been distributed by, the Term Agent in accordance with the provisions of the Loan Documents, such Term Lender shall purchase in cash from other Term
Lenders such participations in their Obligations as necessary for such Term Lender to share such excess payment with such Term Lenders to ensure such payment is applied as though it had been received by the Term Agent and applied in
accordance with this Agreement (or, if such application would then be at the discretion of the Borrowers, applied to repay the Obligations in accordance herewith); provided, however, that (i) if such payment is rescinded or
otherwise recovered from such Term Lender in whole or in part, such purchase shall be rescinded and the purchase price therefor shall be returned to such Term Lender without interest and (ii) such Term Lender shall, to the fullest extent
permitted by applicable Requirements of Law, be able to exercise all its rights of payment (including the right of setoff) with respect to such participation as fully as if such Term Lender were the direct creditor of the applicable Borrower
in the amount of such participation.
8.12 Counterparts; Facsimile Signature. This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page
of this Agreement by facsimile transmission or Electronic Transmission shall be as effective as delivery of a manually executed counterpart hereof.
8.13 Severability. The illegality or unenforceability of any provision of this Agreement or any instrument or agreement required hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement or any instrument or agreement required hereunder.
8.14 Captions. The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.
8.15 Independence of Provisions. The parties hereto acknowledge that this Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or
similar matters, and that such limitations, tests and measurements are cumulative and must each be performed, except as expressly stated to the contrary in this Agreement.
8.16 Interpretation. This Agreement is the result of negotiations among and has been reviewed by counsel to Borrowers, the Term Agent, each Term Lender and other parties hereto, and is the product
of all parties hereto. Accordingly, this Agreement and the other Loan Documents shall not be construed against the Term Lenders or the Term Agent merely because of the Term Agent’s or the Term Lenders’ involvement in the preparation of such
documents and agreements. Without limiting the generality of the foregoing, each of the parties hereto has had the advice of counsel with respect to Sections 8.18 and 8.19.
8.17 No Third Parties Benefited. This Agreement is made and entered into for the sole protection and legal benefit of the Borrowers, the Term Lenders and the Term Agent, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement or any of the other Loan Documents. Neither the Term
Agent nor any Term Lender shall have any obligation to any Person not a party to this Agreement or the other Loan Documents.
8.18 Governing Law and Jurisdiction.
(a) Governing Law
. THE LAWS OF THE STATE OF NEW YORK
SHALL GOVERN ALL MATTERS ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ITS VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE AND ENFORCEMENT (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH
RESPECT TO POST-JUDGMENT INTEREST) BUT WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF, BUT INCLUDING SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.
(b) Submission to Jurisdiction
. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO ANY LOAN DOCUMENT SHALL BE BROUGHT EXCLUSIVELY IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
IN THE CITY OF NEW YORK
, BOROUGH OF MANHATTAN, OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO EXECUTING THIS AGREEMENT HEREBY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS; PROVIDED
THAT NOTHING IN THIS AGREEMENT SHALL LIMIT THE RIGHT OF THE TERM AGENT TO COMMENCE ANY PROCEEDING IN THE FEDERAL OR
STATE COURTS OF ANY OTHER JURISDICTION TO THE EXTENT THE TERM AGENT DETERMINES THAT SUCH ACTION IS NECESSARY OR APPROPRIATE TO EXERCISE ITS RIGHTS OR REMEDIES UNDER THE LOAN DOCUMENTS. THE PARTIES HERETO (AND, TO THE EXTENT SET FORTH IN ANY
OTHER LOAN DOCUMENT, EACH OTHER BORROWER) HEREBY IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING IN SUCH JURISDICTIONS.
(c) Service of Process. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND OTHER DOCUMENTS AND OTHER SERVICE OF PROCESS OF ANY KIND AND
CONSENTS TO SUCH SERVICE IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE UNITED STATES OF AMERICA WITH RESPECT TO OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH ANY LOAN DOCUMENT BY ANY MEANS PERMITTED BY APPLICABLE REQUIREMENTS OF LAW,
INCLUDING BY THE MAILING THEREOF (BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID) TO THE ADDRESS OF THE DESIGNATED BORROWER SPECIFIED HEREIN (AND SHALL BE EFFECTIVE WHEN SUCH MAILING SHALL BE EFFECTIVE, AS PROVIDED THEREIN). EACH PARTY
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
(d) Non-Exclusive Jurisdiction. NOTHING CONTAINED IN THIS SECTION 8.18 SHALL AFFECT THE RIGHT OF THE TERM AGENT OR ANY TERM LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE REQUIREMENTS OF LAW OR COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY BORROWER IN ANY OTHER JURISDICTION.
8.19 Waiver of Jury Trial. THE PARTIES HERETO, TO THE EXTENT PERMITTED BY LAW, WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR RELATING TO,
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ANY OTHER TRANSACTION CONTEMPLATED HEREBY AND THEREBY. THIS WAIVER APPLIES TO ANY ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.
8.20 Entire Agreement; Release; Survival.
(a) THE LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT OF THE PARTIES AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS RELATING TO THE SUBJECT MATTER THEREOF AND ANY PRIOR LETTER OF INTEREST, COMMITMENT
LETTER, CONFIDENTIALITY AND SIMILAR AGREEMENTS INVOLVING ANY BORROWER AND ANY TERM LENDER OR ANY OF THEIR RESPECTIVE AFFILIATES RELATING TO A FINANCING OF SUBSTANTIALLY SIMILAR FORM, PURPOSE OR EFFECT OTHER THAN THE FEE LETTER. IN THE EVENT
OF ANY CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT AND ANY OTHER LOAN DOCUMENT, THE TERMS OF THIS AGREEMENT SHALL GOVERN (UNLESS OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN DOCUMENT OR SUCH TERMS OF SUCH OTHER LOAN DOCUMENTS ARE NECESSARY
TO COMPLY WITH APPLICABLE REQUIREMENTS OF LAW, IN WHICH CASE SUCH TERMS SHALL GOVERN TO THE EXTENT NECESSARY TO COMPLY THEREWITH).
(b) Execution of this Agreement by the Borrowers constitutes a full, complete and irrevocable release of any and all claims which each Borrower may have at law or in equity in respect of all prior
discussions and understandings, oral or written, relating to the subject matter of this Agreement and the other Loan Documents. In no event shall any Indemnitee be liable on any theory of liability for any special, indirect, consequential or
punitive damages (including any loss of profits, business or anticipated savings). Each of the Borrowers and each other Borrower signatory hereto hereby waives, releases and agrees (and shall cause each other Borrower to waive, release and
agree) not to xxx upon any such claim for any special, indirect, consequential or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.
(c) Any indemnification or other protection provided to any Indemnitee pursuant to this Section 8.20, Sections 8.5 (Costs and Expenses) and 8.6 (Indemnity) and Article VII
(Term Agent) and Article IX (Taxes and Yield Protection) shall (x) survive the payment in full of all Obligations and (y) with respect to clause (i) above, inure to the benefit of any Person that at any time held a right
thereunder (as an Indemnitee or otherwise) and, thereafter, its successors and permitted assigns.
8.21 Patriot Act. Each Term Lender that is subject to the Patriot Act hereby notifies the Borrowers that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and
record information that identifies each Borrower, which information includes the name and address of each Borrower and other information that will allow such Term Lender to identify each Borrower in accordance with the Patriot Act.
8.22 Additional Waivers.
(a) The Obligations are the joint and several obligation of each Borrower. To the fullest extent permitted by applicable law, the obligations of each Borrower shall not be affected by (i) the failure of
any Secured Party to assert any claim or demand or to enforce or exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of, this Agreement or any other Loan Document, or (iii) the failure to perfect any security interest in, or the release of, any of the Collateral or other security held by or
on behalf of the Term Agent or any other Secured Party.
(b) The obligations of each Borrower shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations),
including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of
the Term Agent or any other Secured Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default,
failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Borrower or that would otherwise operate as a
discharge of any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations).
(c) To the fullest extent permitted by applicable law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Obligations. The Term Agent and the other Secured Parties may, at their election,
foreclose on any security held by one or more of them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other
accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any way the liability of any Borrower hereunder except to the extent that all the
Obligations have been indefeasibly paid in full in cash. Each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement
or subrogation or other right or remedy of such Borrower against any other Borrower, as the case may be, or any security.
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement,
indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any
other Borrower is hereby subordinated in right of payment to the prior indefeasible payment in full of the Obligations, and, so long as an Event of Default has occurred and is continuing, no Borrower will demand, xxx for or otherwise attempt
to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Borrower, so long as
an Event of Default has occurred and is continuing, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Term Agent to be credited against the payment of the Obligations, whether matured
or unmatured, in accordance with the terms of this Agreement and the other Loan Documents. Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations
constituting a portion of the Term Loan made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment
shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction
is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum
amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform
Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code,
Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
8.23 Creditor-Debtor Relationship. The relationship between the Term Agent, and each Term Lender, on the one hand, and the Borrowers, on the other hand, is solely that of creditor and debtor. No
Secured Party has any fiduciary relationship or duty to any Borrower arising out of or in connection with, and there is no agency, tenancy or joint venture relationship between the Secured Parties and the Borrowers by virtue of, any Loan
Document or any transaction contemplated therein.
8.24 Actions in Concert. Notwithstanding anything contained herein to the contrary, each Term Lender hereby agrees with each other Term Lender that no Term Lender shall take any action to protect or
enforce its rights against any Borrower arising out of this Agreement or any other Loan Document (including exercising any rights of setoff) without first obtaining the prior written consent of the Term Agent or Required Lenders, it being the
intent of the Term Lenders that any such action to protect or enforce rights under this Agreement and the other Loan Documents shall be taken in concert and at the direction or with the consent of the Term Agent or Required Lenders.
8.25 Agency of the Designated Borrower for Each Other Borrower. Each Borrower irrevocably appoints the Designated Borrower as its agent for all purposes relevant to this Agreement, including the
giving and receipt of notices and execution and delivery of all documents, instruments, and certificates contemplated herein and all modifications hereto. Any acknowledgment, consent, direction, certification, or other action which might
otherwise be valid or effective only if given or taken by all or any of the Borrowers or acting singly, shall be valid and effective if given or taken only by the Designated Borrower, whether or not any other Borrower joins therein, and the
Term Agent and the Term Lenders shall have no duty or obligation to make further inquiry with respect to the authority of the Designated Borrower under this Section 8.25; provided that nothing in this Section 8.25 shall limit
the effectiveness of, or the right of the Term Agent and the Term Lenders to rely upon, any notice, document, instrument, certificate, acknowledgment, consent, direction, certification or other action delivered by any Borrower pursuant to
this Agreement. The Designated Borrower agrees that the Term Agent, the Term Lenders and their Affiliates may have economic interests that conflict with those of the Designated Borrower, the other Borrowers, their respective Subsidiaries and
their Affiliates, and none of the Term Agent, the Term Lenders or their Affiliates has any obligation to disclose any of such interests to the Designated Borrower, the other Borrowers or any of their respective Subsidiaries.
8.26 Acknowledgment and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among
any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA
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 an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial
(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 EEA Financial Institution, its parent undertaking, 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 Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.
TAXES, YIELD PROTECTION AND ILLEGALITY
(a) Except as otherwise provided in this Section 9.1, each payment by or on account of any obligation of any Borrower under any Loan Document shall be made free and clear of all present or future
taxes, levies, imposts, deductions, charges or withholdings imposed by any Governmental Authority and all liabilities (including penalties, interest, and additions to tax) with respect thereto (and without deduction for any of them)
(collectively, but excluding Excluded Taxes, the “Taxes”).
(b) If any Taxes shall be required by any Requirements of Law to be deducted from or in respect of any amount payable under any Loan Document to any Secured Party (i) such amount shall be increased as
necessary to ensure that, after all required deductions for Taxes are made (including deductions applicable to any increases to any amount under this Section 9.1), such Secured Party receives the amount it would have received had no
such deductions been made, (ii) the relevant Borrower shall make such deductions, (iii) the relevant Borrower shall timely pay the full amount deducted to the relevant taxing authority or other authority in accordance with applicable
Requirements of Law and (iv) as soon as practicable after such payment is made, the relevant Borrower shall deliver to Term Agent an original or certified copy of a receipt evidencing such payment or other evidence of payment reasonably
satisfactory to Term Agent.
(c) In addition, the Borrowers agree to pay, and authorize Term Agent to pay in their name, any stamp, documentary, excise or property tax, charges or similar levies imposed by any applicable Requirements
of Law or Governmental Authority and all Liabilities with respect thereto (including by reason of any delay in payment thereof), in each case arising from the execution, delivery or registration of, or otherwise with respect to, any Loan
Document or any transaction contemplated therein (collectively, “Other Taxes”). As soon as practicable after the date of any payment of Other Taxes by any Borrower, the Designated Borrower shall furnish to Term Agent, at its address
referred to in Section 8.2, the original or a certified copy of a receipt evidencing payment thereof or other evidence of payment reasonably satisfactory to Term Agent.
(d) The Borrowers shall reimburse and indemnify, on a joint and several basis, within 10 days after receipt of demand therefor (with copy to Term Agent), each Secured Party for all Taxes and Other Taxes
(including any Taxes and Other Taxes imposed by any jurisdiction on amounts payable under this Section 9.1) paid by such Secured Party and any Liabilities arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. A certificate of the Secured Party (or of Term Agent on behalf of such Secured Party) claiming any compensation under this clause (d), setting forth the amounts to be paid thereunder and
delivered to the Designated Borrower with copy to Term Agent, shall be conclusive, binding and final for all purposes, absent manifest error. In determining such amount, Term Agent and such Secured Party may use any reasonable averaging and
(e) Any Term Lender claiming any additional amounts payable pursuant to this Section 9.1 shall use its commercially reasonable efforts (consistent with its internal policies and Requirements of
Law) to change the jurisdiction of its Lending Office if such a change would reduce any such additional amounts (or any similar amount that may thereafter accrue) and would not, in the sole determination of such Term Lender, be otherwise
disadvantageous to such Term Lender, including, for the avoidance of doubt, subjecting such Term Lender to any unreimbursed cost or expense.
(f) Any Term Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Loan Document shall deliver to the Designated Borrower and the Term Agent,
at the time or times reasonably requested by the Designated Borrower or the Term Agent, such properly completed and executed documentation reasonably requested by the Designated Borrower or the Term Agent as will permit such payments to be
made without withholding or at a reduced rate of withholding. In addition, any Term Lender, if reasonably requested by the Designated Borrower or the Term Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Designated Borrower or the Term Agent as will enable the Designated Borrower or the Term Agent to determine whether or not such Term Lender is subject to backup withholding or information reporting requirements.
Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (f)(i), (f)(ii), and (f)(v) below) shall not be
required if in the Term Lender’s reasonable judgment such completion, execution or submission would subject such Term Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such
Term Lender. Notwithstanding the generality of the foregoing:
(i) Each Non-U.S. Lender Party that, at any of the following times, is entitled to an exemption from United States withholding tax or is subject to such withholding tax at a reduced rate under an
applicable tax treaty, shall (w) on or prior to the date such Non-U.S. Lender Party becomes a “Non-U.S. Lender Party” hereunder, (x) on or prior to the date on which any such form or certification expires or becomes obsolete, (y) after the
occurrence of any event requiring a change in the most recent form or certification previously delivered by it pursuant to this clause (i) and (z) from time to time if requested by the Designated Borrower or Term Agent (or, in the
case of a participant or SPV, the relevant Term Lender), provide Term Agent and the Designated Borrower (or, in the case of a participant or SPV, the relevant Term Lender) with two completed originals of each of the following, as applicable:
(A) Forms W-8ECI (claiming exemption from U.S. withholding tax because the income is effectively connected with a U.S. trade or business), W-8BEN or W-8BEN-E, as applicable (claiming exemption from, or a reduction of, U.S. withholding tax
under an income tax treaty) and/or W-8IMY (together with appropriate forms, certifications and supporting statements and documents, including those for the beneficial owners) or any successor forms, (B) in the case of a Non-U.S. Lender Party
claiming exemption under Sections 871(h) or 881(c) of the Code, Form W-8BEN or W-8BEN-E, as applicable (claiming exemption from U.S. withholding tax under the portfolio interest exemption) or any successor form and a certificate in form and
substance acceptable to Term Agent that such Non-U.S. Lender Party is not (1) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the
Code or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code or (C) any other applicable document prescribed by the IRS certifying as to the entitlement of such Non-U.S. Lender Party to such exemption from
United States withholding tax or reduced rate with respect to payments to be made to such Non-U.S. Lender Party under the Loan Documents; provided, however, that no document shall be required under this clause (C) to the extent the
completion, execution, or submission of such document would, in such Non-U.S. Lender Party’s reasonable judgment, subject it to any material unreimbursed cost or expense or materially prejudice its legal or commercial position.
(ii) Each U.S. Lender Party shall (A) on or prior to the date such U.S. Lender Party becomes a “U.S. Lender Party” hereunder, (B) on or prior to the date on which any such form or certification expires
or becomes obsolete, (C) after the occurrence of any event requiring a change in the most recent form or certification previously delivered by it pursuant to this clause (f) and (D) from time to time if requested by the Designated
Borrower or Term Agent (or, in the case of a participant or SPV, the relevant Term Lender), provide Term Agent and the Designated Borrower (or, in the case of a participant or SPV, the relevant Term Lender) with two completed originals of
Form W-9 (certifying that such U.S. Lender Party is entitled to an exemption from U.S. backup withholding tax) or any successor form.
(iii) Each Term Lender having sold a participation in any of its Obligations or identified an SPV as such to Term Agent shall collect from such participant or SPV the documents described in this clause
(f) and provide them to Term Agent.
(iv) Nothing in this Section 9.1(f) shall require any U.S. Lender Party or Non-U.S. Lender Party to provide any documentation that it is not legally entitled to deliver.
(v) If a payment made to a Non-U.S. Lender Party would be subject to United States federal withholding tax imposed by FATCA if such Non-U.S. Lender Party fails to comply with the applicable reporting
requirements of FATCA, such Non-U.S. Lender Party shall deliver to Term Agent and Designated Borrower any documentation under any Requirements of Law or reasonably requested by Term Agent or Designated Borrower sufficient for Term Agent or
Designated Borrower to comply with their obligations under FATCA and to determine that such Non-U.S. Lender has complied with such applicable reporting requirements.
9.2 Increased Costs and Reduction of Return.
(a) If any Term Lender shall have determined that:
(i) the introduction of any Capital Adequacy Regulation;
(ii) any change in any Capital Adequacy Regulation;
(iii) any change in the interpretation or administration of any Capital Adequacy Regulation by any central bank or other Governmental Authority charged with the interpretation or administration thereof; or
(iv) compliance by such Term Lender (or its Lending Office) or any entity controlling the Term Lender, with any Capital Adequacy Regulation;
affects the amount of capital required or expected to be maintained by such Term Lender or any entity controlling such Term Lender and (taking into consideration such Term Lender’s or such entities’ policies with respect to capital
adequacy and such Term Lender’s desired return on capital) determines that the amount of such capital is increased as a consequence of its loans, credits or obligations under this Agreement, or if any change of a Requirement of Law subjects a
Secured Party to any Taxes (other than Excluded Taxes, Other Taxes, or Taxes imposed on or with respect to a payment by or on behalf of a Borrower hereunder) on its loans, loan principal, letters of credit, commitments, or other obligations,
or its deposits, reserves, other liabilities, or capital attributable thereto, then, within ten (10) days of demand of such Term Lender (with a copy to the Term Agent), the Borrowers shall pay to such Term Lender, from time to time as
specified by such Term Lender, additional amounts sufficient to compensate such Term Lender (or the entity controlling the Term Lender) for such increase or such Taxes.
(b) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection
therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign
regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in a Requirements of Law under subsection (a) above and/or a change in a Capital Adequacy Regulation under subsection (a) above, as
applicable, regardless of the date enacted, adopted or issued.
9.3 Certificates of Term Lenders. Any Term Lender claiming reimbursement or compensation pursuant to this Article IX shall deliver to the Borrowers (with a copy to the Term Agent) a
certificate setting forth in reasonable detail the amount payable to such Term Lender hereunder and such certificate shall be conclusive and binding on the Borrowers in the absence of manifest error.
9.4 Illegality; Inability to Determine Rates; Amendment to LIBOR, Etc.
(a) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Term Agent determines (which determination shall be conclusive absent manifest error), or the Designated
Borrower or the Required Lenders notify the Term Agent (with, in the case of the Required Lenders, a copy to the Designated Borrower) that the Designated Borrower or the Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining LIBOR, including, without limitation, because the LIBOR Screen Rate is not available or published on a current basis and such
circumstances are unlikely to be temporary; or
(ii) any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Term Lender or its applicable Lending Office to perform any of its obligations hereunder or
to determine or charge interest rates based upon LIBOR, or any Governmental Authority has imposed material restrictions on the authority of such Term Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market;
(iii) the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over the Term Agent has made a public statement identifying a specific date after which LIBOR or the LIBOR
Screen Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”), or
(iv) loans currently being executed by the Term Agent or similar administrative agents, or loans that include language similar to that contained in this Section, are being executed or amended (as
applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,
then, reasonably promptly after such determination by the Term Agent or receipt by the Term Agent of such notice, as applicable, the Term Agent and the Borrowers may amend this Agreement to replace LIBOR with an alternate benchmark rate
(including any mathematical or other adjustments to the benchmark (if any) incorporated therein) (any such proposed rate, a “LIBOR Successor Rate
”), together with any proposed LIBOR Successor Rate Conforming Changes, and any such
amendment shall become effective at 5:00 p.m. (New York
time) on the fifth (5th) Business Day after the Term Agent shall have provided in writing such proposed amendment to all Term Lenders and the Designated Borrower unless, prior to such
time, Term Lenders comprising the Required Lenders have delivered to the Term Agent written notice that such Required Lenders do not accept such amendment.
(b) If no LIBOR Successor Rate has been determined and the circumstances under clause (a)(i) or (a)(ii) above exist or the Scheduled Unavailability Date has occurred (as applicable), the
Term Agent will promptly so notify the Designated Borrower and each Term Lender. Thereafter, interest on the Term Loan shall accrue and be payable at the Alternative Rate until a LIBOR Successor Rate has been determined or as otherwise
agreed to by the parties hereto.
(c) Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than two percent (2.00%) for purposes of this
DEFINITIONS; OTHER INTERPRETIVE PROVISIONS
10.1 Defined Terms. The following terms have the following meanings:
“Accommodation Payment” has the meaning set forth in Section 8.22(d).
“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person,
or of any business, division, or unit of a Person, (b) the acquisition of in excess of fifty percent (50%) of the Stock and Stock Equivalents of any Person or otherwise causing any Person to become a Subsidiary of a Borrower, or (c) a merger
or consolidation or any other combination with another Person.
“Activation Notice” has the meaning set forth in Section 4.11(b).
“Affiliate” means, with respect to any Person, each officer, director, general partner or joint-venturer of such Person and any other Person that directly or indirectly controls, is controlled by, or is
under common control with, such Person; provided, however, that no Secured Party shall be an Affiliate of any Borrower or of any Subsidiary of any Borrower solely by reason of the provisions of the Loan Documents. For purposes of this
definition, “control” means the possession of either (a) the power to vote, or the beneficial ownership of, 10% or more of the voting Stock of such Person (either directly or through the ownership of Stock Equivalents) or (b) the power to
direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Agent Report” has the meaning set forth in Section 7.5(c).
“Agreement” has the meaning specified in the preamble to this Agreement.
“Allocable Amount” has the meaning set forth in Section 8.22(d).
“Alternative Rate” means, at any date of determination, a rate per annum equal to the sum of (a) the Prime Rate plus (b) eight percent (8.00%).
“Anti-Corruption Laws” has the meaning set forth in Section 3.28.
“Anti-Money Laundering Laws” has the meaning set forth in Section 3.27.
“Applicable Margin” means nine percent (9.00%) per annum.
“Applicable Reference Period” means, at any date of determination, the then most recent period of four (4) consecutive Fiscal Quarters for which financial statement have been or are required under Section
4.1 to have been delivered to the Term Agent.
“Approved Fund” means, with respect to any Term Lender, any Person (other than a natural Person) that (a) (i) is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans
and similar extensions of credit in the Ordinary Course of Business or (ii) temporarily warehouses loans for any Term Lender or any Person described in clause (i) above and (b) is advised or managed by (i) such Term Lender, (ii) any
Affiliate of such Term Lender or (iii) any Person (other than an individual) or any Affiliate of any Person (other than an individual) that administers or manages such Term Lender.
“Assignment” means an assignment agreement entered into by a Term Lender, as assignor, and any Person, as assignee, pursuant to the terms and provisions of Section 8.9 (with the consent of any
party whose consent is required by Section 8.9), accepted by the Term Agent, substantially in the form of Exhibit 10.1(a) or any other form approved by the Term Agent.
“Attorney Costs” means and includes all reasonable fees and disbursements of any law firm or other external counsel (including local counsel, if applicable).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.), as amended.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership of the Borrower as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA (whether governed by the laws of the United States or otherwise) other than a Multiemployer Plan, to which any Borrower
incurs or otherwise has any obligation or liability, contingent or otherwise.
“Billboard Entities” means each of Standard Outdoor, Standard Outdoor SW, Standard Outdoor SEI and Standard Outdoor SEII.
“Borrower Materials” has the meaning specified in Section 8.10(e).
“Borrowers” has the meaning specified in the preamble to this Agreement.
” means any day that is not a Saturday, Sunday or a day on which banks are required or authorized to close in New York
City and, when determined in connection with notices and determinations
in respect of LIBOR or any funding, conversion, continuation, or payment of the Term Loan, that is also a day on which dealings in Dollar deposits are carried on in the London interbank market.
“Capital Adequacy Regulation” means any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or regulation, whether or not having the force of law, in
each case, regarding capital adequacy of any Term Lender or of any corporation controlling a Term Lender.
“Capital Expenditures” means, with respect to the Borrowers and their Subsidiaries for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset.
“Capital Lease” means, with respect to any Person, any lease of, or other arrangement conveying the right to use, any Property by such Person as lessee that has been or should be accounted for as a capital
lease on a balance sheet of such Person prepared in accordance with GAAP.
“Capital Lease Obligations” means, at any time, with respect to any Capital Lease, any lease entered into as part of any sale leaseback transaction of any Person or any synthetic lease, the amount of all
obligations of such Person that is (or that would be, if such synthetic lease or other lease were accounted for as a Capital Lease) capitalized on a balance sheet of such Person prepared in accordance with GAAP.
“Cash Equivalents” means (a) any readily-marketable securities (i) issued by, or directly, unconditionally and fully guaranteed or insured by the United States federal government or (ii) issued by any
agency of the United States federal government the obligations of which are fully backed by the full faith and credit of the United States federal government, (b) any readily-marketable direct obligations issued by any other agency of the
United States federal government, any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case having a rating of at least “A-1” from S&P or at least “P-1” from Xxxxx’x,
(c) any commercial paper rated at least “A-1” by S&P or “P-1” by Xxxxx’x and issued by any Person organized under the laws of any state of the United States, (d) any Dollar-denominated time deposit, insured certificate of deposit,
overnight bank deposit or bankers’ acceptance issued or accepted by (i) any Term Lender or (ii) any commercial bank that is (A) organized under the laws of the United States, any state thereof or the District of Columbia, (B) “adequately
capitalized” (as defined in the regulations of its primary federal banking regulators) and (C) has Tier 1 capital (as defined in such regulations) in excess of $250,000,000 and (e) shares of any United States money market fund that (i) has
substantially all of its assets invested continuously in the types of investments referred to in clause (a), (b), (c) or (d) above with maturities as set forth in the proviso below, (ii) has net assets in
excess of $500,000,000 and (iii) has obtained from either S&P or Xxxxx’x the highest rating obtainable for money market funds in the United States; provided, however, that the maturities of all obligations specified in any
of clauses (a), (b), (c) or (d) above shall not exceed 360 days.
“Change in Control” means that, at any time, (a) one or more Standard General Controlled Funds fail to own and control, directly or indirectly, fifty-one percent (51%) or more of the aggregate Voting Power
represented by the issued and outstanding Stock of SDI, (b) a majority of the members of the board of directors of SDI do not constitute Continuing Directors, (c) neither Xxxxxxxx Xxxxx nor Xxxx Xxxxxx (or, in either case, someone succeeding
Bradford or Xxxx who is reasonably acceptable to the Term Agent) is actively involved in the management or operations of SDI for a period of sixty (60) consecutive days, or (d) a “Change in Control” or words of like import occurs under the
TPB First Lien Credit Agreement or under the TPB 2019 Convertible Note Indenture.
“Closing Date” means September 18, 2019.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means all Property and interests in Property and proceeds thereof now owned or hereafter acquired by any Borrower, upon which a Lien in favor of the Term Agent, on behalf of itself, the Term
Lenders and the other Secured Parties, is granted, purported to be granted or otherwise exists, in each case, to secure the Obligations, whether under this Agreement or under any Collateral Document.
“Collateral Documents” means, collectively, the Pledge Agreement, the Mortgages (if any), each Control Agreement, and all other security agreements, pledge agreements, patent security agreements, copyright
security agreements, trademark security agreements, lease assignments, guaranties and other similar agreements, and all amendments, restatements, modifications or supplements thereof or thereto, by or between any one or more of any Borrower
and the Term Agent for the benefit of the Term Agent, the Term Lenders and other Secured Parties now or hereafter delivered to the Term Agent pursuant to or in connection with the transactions contemplated hereby, and all financing statements
(or comparable documents now or hereafter filed in accordance with the UCC or comparable law) against any such Person as debtor in favor of the Term Agent for the benefit of the Term Agent, the Term Lenders and the other Secured Parties, as
secured party, as any of the foregoing may be amended, restated and/or modified from time to time.
“Compliance Certificate” means a certificate of the Borrowers in substantially the form of Exhibit 4.2(b).
“Consolidated” means, when used to modify a financial term, test, statement, or report of a Person, the application or preparation of such term, test, statement or report (as applicable) based upon the
consolidation, in accordance with GAAP, of the financial position, cash flows, or operating results of such Person and its Subsidiaries.
“Consolidated Interest Expense” means, with respect to any Person and its Subsidiaries on a Consolidated basis for any period, (a) all interest, premium payments, debt discount, fees, charges and related
expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, (b) all interest paid or payable
with respect to discontinued operations, (c) the portion of rent expense under Capital Leases that is treated as interest in accordance with GAAP, and (d) any losses on hedging obligations or other derivative instruments entered into for the
purpose of hedging interest rate risk.
“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person: (a) with respect to any Indebtedness, lease, dividend or other obligation of
another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; (b) with respect to any letter of credit issued for the account of that Person
or as to which that Person is otherwise liable for reimbursement of drawings; (c) with respect to any performance bonds, bonds, bank guaranties issued under bank facilities or otherwise or other similar instruments, (d) under any Rate
Contracts; (e) to make take-or-pay or similar payments if required regardless of nonperformance by any other party or parties to an agreement; or (f) for the obligations of another Person through any agreement to purchase, repurchase or
otherwise acquire such obligation or any Property constituting security therefor, to provide funds for the payment or discharge of such obligation or to maintain the solvency, financial condition or any balance sheet item or level of income
of another Person. The amount of any Contingent Obligation shall be equal to the amount of the obligation so guarantied or otherwise supported or, if not a fixed and determined amount, the maximum amount so guarantied or supported.
“Continuing Director” means (a) any member of the board of directors of SDI who was a director of SDI on the Closing Date, and (b) any individual who becomes a member of the board of directors of SDI after
the Closing Date if such individual was approved, appointed or nominated for election to the board of directors by a majority of the Continuing Directors, but excluding any such individual originally proposed for election in opposition to the
board of directors in office at the Closing Date in an actual or threatened election contest relating to the election of the directors of SDI and whose initial assumption of office resulted from such contest or the settlement thereof.
“Contractual Obligations” means, as to any Person, any provision of any security (whether in the nature of Stock, Stock Equivalents or otherwise) issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument, document or agreement (other than a Loan Document) to which such Person is a party or by which it or any of its Property is bound or to which any of its Property is subject.
“Control Account” means each deposit account, securities account, or commodities account now or hereafter owned by the Borrowers, other than an Excluded Account.
“Control Agreement” means, with respect to any deposit account, securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance satisfactory to the
Term Agent, among the Term Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Borrower maintaining such account, entitlement or contract, as
applicable, effective to grant “control” (within the meaning of Articles 8 and 9 under the applicable UCC) over such account to the Term Agent.
“Controlled Group” means all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with any Person, are treated as a
single employer under Section 414 of the Code.
“Copyrights” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirements of Law in or relating to copyrights and all mask work, database and design rights,
whether or not registered or published, all registrations and recordations thereof and all applications in connection therewith.
“Customary Permitted Encumbrances” means:
(a) Liens imposed by law for taxes, assessments or governmental charges or levies that are not yet due and payable or are being contested in compliance with Section 4.7(b);
(b) carriers’, warehousemen’s, landlord’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the Ordinary Course of Business and securing obligations that are not
overdue by more than 60 days or which are being contested in good faith and by appropriate proceedings diligently prosecuted, which proceedings have the effect of preventing the forfeiture or sale of the Property subject thereto and for which
adequate reserves in accordance with GAAP are being maintained;
(c) pledges and deposits made in the Ordinary Course of Business (i) in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations and (ii) to secure
leases (other than Capital Leases), surety bonds and similar obligations;
(d) Liens (including rights of set off) in favor of a bank or other depository institution arising as a matter of law encumbering deposits permitted by this Agreement and Liens in favor of collecting
banks arising in the Ordinary Course of Business and pursuant to the UCC;
(e) judgment liens in respect of judgments (other than for payment of taxes, assessments or other governmental charges) that do not constitute an Event of Default under Section 6.1(h);
(f) Liens in favor of customs and revenue authorities arising as a matter of law which secure payment of customs duties in connection with the importation of goods in the Ordinary Course of Business; and
(g) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the Ordinary Course of Business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or interfere with the Ordinary Course of Business of any Borrower or any Subsidiary;
provided that the term “Customary Permitted Encumbrances” shall not include any Lien securing Indebtedness.
“Default” means any event or circumstance that, with the passing of time or the giving of notice or both, would (if not cured or otherwise remedied during such time) become an Event of Default.
“Designated Borrower” means SDI in its capacity as set forth in Section 8.25.
“Disposition” means the sale, lease, conveyance or other disposition of Property, including, but not limited to, any allocation of assets among newly divided limited liability companies in connection with
any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws), including but not limited to, Section 18-217 of the Delaware Limited Liability Company Act) .
“Dollars”, “dollars” and “$” each mean lawful money of the United States of America.
“Early Termination Fee” shall have the meaning specified in Section 1.7(c)(i).
“Early Termination Fee Event” shall have the meaning specified in Section 1.7(c)(i).
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity
established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution in clauses
(a) or (b) of this definition and is subject to consolidated supervision of its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” mean any public administrate 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.
“Electronic Transmission” means each document, instruction, authorization, file, information and any other communication transmitted, posted or otherwise made or communicated by e-mail, or otherwise to or
from an E-System.
“Environmental Laws” means all Requirements of Law and Permits imposing liability or standards of conduct for or relating to the regulation and protection of human health, safety, the workplace, the
environment and natural resources, and including public notification requirements and environmental transfer of ownership, notification or approval statutes.
“Environmental Liabilities” means all Liabilities (including costs of Remedial Actions, natural resource damages and costs and expenses of investigation and feasibility studies, including the cost of
environmental consultants and the cost of attorney’s fees) that may be imposed on, incurred by or asserted against any Borrower or any Subsidiary of any Borrower as a result of, or related to, any claim, suit, action, investigation,
proceeding or demand by any Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law or otherwise, arising under any Environmental Law or in connection with any
environmental, health or safety condition or with any Release and resulting from the ownership, lease, sublease or other operation or occupation of property by any Borrower or any Subsidiary of any Borrower, whether on, prior or after the
“Equipment” means all “equipment,” as such term is defined in the UCC, now owned or hereafter acquired by any Borrower, wherever located.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means, collectively, any Borrower and any Person under common control or treated as a single employer with, any Borrower, within the meaning of Section 414(b), (c), (m) or (o) of the
“ERISA Event” means any of the following: (a) a reportable event described in Section 4043(b) of ERISA (or, unless the 30-day notice requirement has been duly waived under the applicable regulations,
Section 4043(c) of ERISA) with respect to a Title IV Plan; (b) the withdrawal of any ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (c) the complete or partial withdrawal within the meaning of Sections 4203 or 4205 of ERISA of any ERISA Affiliate from any Multiemployer Plan; (d) with respect to any Multiemployer Plan, the filing of a notice of
reorganization, insolvency or termination (or treatment of a plan amendment as termination) under Section 4041A of ERISA; (e) the filing of a notice of intent to terminate a Title IV Plan (or treatment of a plan amendment as termination)
under Section 4041 of ERISA; (f) the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC; (g) the failure to make any required contribution to any Title IV Plan or Multiemployer Plan when due; (h) the
imposition of a Lien under Section 412 or 430(k) of the Code or Section 303 or 4068 of ERISA on any property (or rights to property, whether real or personal) of any ERISA Affiliate; (i) a written determination from the Internal Revenue
Service or any other Governmental Authority regarding the failure of a Benefit Plan or any trust thereunder intended to qualify for tax exempt status under Section 401 or 501 of the Code or other Requirements of Law to qualify thereunder;
(j) a Title IV Plan is in “at risk” status within the meaning of Code Section 430(i); (k) a Multiemployer Plan is in “endangered status” or “critical status” within the meaning of Section 432(b) of the Code; (l) any other event or condition
that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan; or (m) the imposition of any material
liability upon any ERISA Affiliate under Title IV of ERISA other than for PBGC premiums due but not delinquent.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning set forth in Section 6.1. An Event of Default shall be deemed to be continuing unless and until such Event of Default has been waived in accordance with Section
“Event of Loss” means, with respect to any Property, any of the following: (a) any loss, destruction or damage of such Property; or (b) any actual condemnation, seizure or taking, by exercise of the power
of eminent domain or otherwise, of such Property, or confiscation of such Property or the requisition of the use of such Property.
“Exchange Act” means the Securities Exchange Act of 1934, as in effect from time to time.
“Excluded Accounts” means, collectively, deposit accounts (a) used as payroll accounts, trust accounts, accounts used for withholding tax, goods and services tax, sales tax or payroll tax; provided that,
in all cases described in this definition, such accounts shall be “Excluded Accounts” only to the extent such accounts are funded by the Borrowers in the ordinary course of business or as required by applicable law, such accounts are used
exclusively for the purposes intended by such accounts and no other amounts are funded in such accounts and (b) containing, at all times, less than $50,000 for any one account and less than $200,000 in the aggregate for all such accounts.
“Excluded Rate Obligation” means, with respect to any Loan Party, any Contingent Obligation under any Rate Contracts if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or
the grant under a Loan Document by such Loan Party of a security interest to secure, such Contingent Obligation (or any guaranty 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 thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act
and the regulations thereunder at the time the Guarantee of such Loan Party, or grant by such Loan Party of a security interest, becomes effective with respect to such Contingent Obligation. If a Contingent Obligation under any Rate Contract
arises under a master agreement governing more than one Rate Contract, such exclusion shall apply to only the portion of such Contingent Obligations that is attributable to Rate Contracts for which such Guarantee or security interest becomes
illegal or unlawful.
“Excluded Tax” means with respect to any Secured Party (a) taxes measured by net income (including branch profits taxes) and franchise taxes imposed in lieu of net income taxes, in each case imposed on any
Secured Party as a result of a present or former connection between such Secured Party and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than such
connection arising solely from any Secured Party having executed, delivered or performed its obligations or received a payment under, or enforced, any Loan Document, or sold or assigned any interest in the Term Loan or Loan Document);
(b) U.S. federal withholding taxes imposed on a Term Lender to the extent that the obligation to withhold amounts existed on the date that such Person became a “Term Lender” under this Agreement in the capacity under which such Person makes a
claim under Section 9.1(b) or designates a new Lending Office (in each case, other than pursuant to a request by any Borrower), except in each case to the extent such Person was entitled before it designated a new Lending Office, or
is a direct or indirect assignee of any other Secured Party that was entitled, at the time the assignment to such Person became effective, to receive additional amounts under Section 9.1(b); (c) taxes that are directly attributable to
the failure (other than as a result of a change in any Requirements of Law) by any Secured Party to deliver the documentation required to be delivered pursuant to Section 9.1(f), and (d) in the case of a Non-U.S. Lender Party, any
United States federal withholding taxes imposed on amounts payable to such Non-U.S. Lender Party as a result of such Non-U.S. Lender Party’s failure to comply with FATCA to establish a complete exemption from withholding thereunder.
“Existing Credit Agreement
” means that certain Term Loan Agreement
, dated as of February 2, 2018 (as amended, supplemented or otherwise modified prior to the Closing Date), among SDI, the other borrowers
party thereto, the lenders party thereto, Crystal Finance LLC, as term loan agent, and the other parties party thereto.
“E-Signature” means the process of attaching to or logically associating with an Electronic Transmission an electronic symbol, encryption, digital signature or process (including the name or an
abbreviation of the name of the party transmitting the Electronic Transmission) with the intent to sign, authenticate or accept such Electronic Transmission.
“E-System” means any electronic system approved by the Term Agent, including Intralinks® and ClearPar® and any other Internet or extranet-based site, whether such electronic system is owned, operated or
hosted by the Term Agent, any of its Related Persons or any other Person, providing for access to data protected by passcodes or other security system.
“FATCA” means sections 1471, 1472, 1473 and 1474 of the Code and any amended or successor provisions thereto, the United States Treasury Regulations promulgated thereunder and published guidance with
“Federal Flood Insurance” means federally backed Flood Insurance available under the National Flood Insurance Program to owners of real property improvements located in Special Flood Hazard Areas in a
community participating in the National Flood Insurance Program.
“Federal Funds Effective Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds 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 (b) 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 (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Term Agent on such day on such transactions as determined by the Term Agent.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System, or any entity succeeding to any of its principal functions.
“Fee Letter” means the letter agreement, dated as of the date hereof, between the Borrowers and the Term Agent, as amended from time to time.
“FEMA” means the Federal Emergency Management Agency, a component of the U.S. Department of Homeland Security that administers the National Flood Insurance Program.
“Fiscal Month” means any of the monthly accounting periods of the Borrowers ending on last day of each calendar month.
“Fiscal Quarter” means any of the quarterly accounting periods of the Borrowers ending on last day of each calendar quarter.
“Fiscal Year” means any of the annual accounting periods of the Borrowers ending on December 31 of each year.
“Fixed Charge Coverage Ratio” means, for any period, the ratio of (a) the result of (i) the aggregate amount of dividends and other distributions received in cash by SDI from each of its direct
Subsidiaries and TPB during such period, minus (ii) the aggregate amount of all Investments made in cash by SDI under Section 5.4(j) during such period and all Dispositions made in cash by SDI under Section 5.2(c)
during such period, without duplication, minus (iii) Unfinanced Capital Expenditures paid in cash by SDI during such period, minus (iv) the aggregate amount (but not less than $0) of federal, state, local and foreign income
taxes paid in cash by SDI during such period, minus (v) all operating expenses paid in cash by SDI during such period, to (b) the sum of (i) Consolidated Interest Expense paid in cash by SDI during such period, plus (ii) all
scheduled principal payments made by SDI during such period on account of Indebtedness (including, without limitation, obligations with respect to Capital Leases, but excluding all voluntary and mandatory prepayments and all principal
payments made in connection with any revolving credit facility which do not result in a permanent reduction of such facility), plus (iii) Restricted Payments paid in cash by SDI during such period, in each case determined in
accordance with GAAP to the extent applicable.
“Flood Insurance” means, for any Real Estate located in a Special Flood Hazard Area, Federal Flood Insurance or private insurance that (a) meets the requirements set forth by FEMA in its Mandatory Purchase of Flood Insurance Guidelines and (b) shall be in an amount equal to the full, unpaid balance of the Term Loan and any prior Liens on the Real Estate up to the maximum policy limits set
under the National Flood Insurance Program, or as otherwise required by the Term Agent and the Required Lenders, with deductibles not to exceed $50,000.
“Foreign Benefit Plan” means each material plan, fund, program or policy established under the law of a jurisdiction other than the United States (or a state or local government thereof), whether formal or
informal, funded or unfunded, insured or uninsured, providing employee benefits, including medical, hospital care, dental, sickness, accident, disability, life insurance, pension, retirement or savings benefits, under which one or more of the
Borrowers or their Subsidiaries have any liability with respect to any employee or former employee, but excluding any Foreign Pension Plan.
“Foreign Pension Plan” means a pension plan required to be registered under the law of a jurisdiction other than the United States (or a state or local government thereof), that is maintained or
contributed to by one or more of the Borrowers or their Subsidiaries for their employees or former employees.
“Foreign Subsidiary” means, with respect to any Person, a Subsidiary of such Person that is not incorporated, organized or otherwise formed under the laws of the United States, any state thereof or the
District of Columbia.
“Form G-3” means the “Statement of Purpose for an Extension of Credit Secured by Margin Stock by a Person Subject to Registration Under Regulation U – FR G-3” form published by the Federal Reserve Board.
“Form U-1” means the “Statement of Purpose for an Extension of Credit Secured by Margin Stock – FR U-1” form published by the Federal Reserve Board.
“Funds Flow Memorandum” shall have the meaning specified in Section 2.1(b).
“GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time, set forth in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants, in the statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions and comparable stature and authority within the accounting
profession) that are applicable to the circumstances as of the date of determination. Subject to Section 10.3, all references to “GAAP” shall be to GAAP applied consistently with the principles used in the preparation of the
financial statements described in Section 3.11(a).
“GACP” has the meaning set forth in the preamble to this Agreement.
“Governmental Authority” means any nation, sovereign or government, any state or other political subdivision thereof, any agency, authority or instrumentality thereof and any entity or authority exercising
executive, legislative, taxing, judicial, regulatory or administrative functions of or pertaining to government, including any central bank, stock exchange, regulatory body, arbitrator, public sector entity, supra-national entity (including
the European Union and the European Central Bank) and any self-regulatory organization (including the National Association of Insurance Commissioners).
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose
of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets
permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the lesser of (i) the stated or determinable amount of the primary payment
obligation in respect of which such Guarantee is made and (ii) the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary payment obligation and the
maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of the Guarantee shall be such guaranteeing Person’s maximum reasonably possible liability in respect thereof as
reasonably determined by SDI in good faith in consultation with the Term Agent.
“Guarantor” means collectively, (a) SDI and each Subsidiary of SDI party to the Guaranty Agreement and (b) each Subsidiary of SDI that becomes a party to the Guaranty Agreement or other guaranty agreement
after the Closing Date as required pursuant to Section 4.13, and “Guarantors” means any two or more of them.
“Guaranty Agreement” means the Guaranty, dated as of the Closing Date, by the Subsidiary Guarantors in favor of the Term Agent, as the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof and of this Agreement.
“Hazardous Material” means any substance, material or waste that is classified, regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant or a pollutant or by
other words of similar meaning or regulatory effect, including, without limitation, petroleum or any fraction thereof, asbestos, polychlorinated biphenyls and radioactive substances.
“Indebtedness” of any Person means, without duplication: (a) all indebtedness for borrowed money; (b) all obligations issued, undertaken or assumed as the deferred purchase price of Property or services
(including earn-out obligations, but excluding trade payables entered into in the Ordinary Course of Business); (c) the face amount of all letters of credit issued for the account of such Person and without duplication, all drafts drawn
thereunder and all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments issued by such Person; (d) all obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition of Property, assets or businesses; (e) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing,
in either case with respect to Property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property); (f) all Capital
Lease Obligations; (g) the principal balance outstanding under any synthetic lease, off-balance sheet loan or similar off balance sheet financing product; (h) all obligations, whether or not contingent, to purchase, redeem, retire, defease or
otherwise acquire for value any of its own Stock or Stock Equivalents (or any Stock or Stock Equivalent of a direct or indirect parent entity thereof) prior to the date that is 90 days after the date specified in clause (a) of the
definition of Termination Date, valued at, in the case of redeemable preferred Stock, the greater of the voluntary liquidation preference and the involuntary liquidation preference of such Stock plus accrued and unpaid dividends; (i) all
indebtedness referred to in clauses (a) through (h) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in Property (including
accounts and contracts rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness; and (j) all Contingent Obligations described in clause (a) of the definition thereof
in respect of indebtedness or obligations of others of the kinds referred to in clauses (a) through (i) above.
“Indemnified Matters” has the meaning set forth in Section 8.6(a).
“Indemnitees” has the meaning set forth in Section 8.6(a).
“Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of
its creditors; in each case in (a) and (b) above, undertaken under U.S. federal, state or foreign law, including the Bankruptcy Code.
“Intellectual Property” means all rights, title and interests in or relating to intellectual property and industrial property arising under any Requirements of Law and all IP Ancillary Rights relating
thereto, including all Copyrights, Patents, Trademarks, Internet Domain Names, Trade Secrets and IP Licenses.
“Interest Payment Date” means the first Business Day of each calendar month, commencing with October 1, 2019.
“Internet Domain Name” means all right, title and interest (and all related IP Ancillary Rights) arising under any Requirements of Law in or relating to internet domain names.
“Inventory” means all of the “inventory” (as such term is defined in the UCC) of the Borrowers.
“Investments” has the meaning set forth in Section 5.4.
“IP Ancillary Rights” means, with respect to any Intellectual Property, as applicable, all foreign counterparts to, and all divisionals, reversions, continuations, continuations-in-part, reissues,
reexaminations, renewals and extensions of, such Intellectual Property and all income, royalties, proceeds and Liabilities at any time due or payable or asserted under or with respect to any of the foregoing or otherwise with respect to such
Intellectual Property, including all rights to xxx or recover at law or in equity for any past, present or future infringement, misappropriation, dilution, violation or other impairment thereof, and, in each case, all rights to obtain any
other IP Ancillary Right.
“IP License” means all Contractual Obligations (and all related IP Ancillary Rights), whether written or oral, granting any right, title and interest in or relating to any Intellectual Property.
“IRS” means the Internal Revenue Service of the United States and any successor thereto.
“Lending Office” means, with respect to any Term Lender, the office or offices of such Term Lender specified as its “Lending Office” from time to time in writing to the Designated Borrower and the Term
“Liabilities” means all claims, actions, suits, judgments, damages, losses, liability, obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions (including brokerage
commissions, fees and other similar compensation), charges, disbursements and expenses (including, without limitation, (a) Attorney Costs, and (b) those incurred upon any appeal or in connection with the preparation for and/or response to any
subpoena or request for document production relating thereto), in each case of any kind or nature (including interest accrued thereon or as a result thereto and fees, charges and disbursements of financial, legal and other advisors and
consultants), whether joint or several, whether or not indirect, contingent, consequential, actual, punitive, treble or otherwise.
“LIBOR” means, for any day in any calendar month, the rate per annum (rounded upwards, if necessary, to the next 1/100 of 1.00%) equal to the three-month “Libor Rate” as published in The Wall Street Journal on the date that is two (2) Business Days prior to the first day of such calendar month, or, if such rate is no longer published in The Wall
Street Journal (or The Wall Street Journal ceases publication), as published by such other widely recognized provider of interest rate information as selected by the Term Agent in its
reasonable discretion on the date that is two (2) Business Days prior to the first day of such calendar month. If no such offered rate exists, such rate will be the rate of interest per annum, as determined by the Term Agent at which
deposits of Dollars in immediately available funds are offered by major financial institutions reasonably satisfactory to the Term Agent in the London interbank market for a three-month period for the applicable principal amount on such date
of determination for the applicable calendar month. Notwithstanding the foregoing, in no event shall LIBOR be less than two percent (2.00%).
“LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Term Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be
designated by the Term Agent from time to time).
“LIBOR Successor Rate” has the meaning specified in Section 9.4(a).
“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to administrative matters as may be appropriate, in the discretion of the Term
Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Term Agent in a manner substantially consistent with market practice (or, if the Term Agent determines that adoption of any portion of
such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Term Agent determines in consultation with the
“Lien” means any mortgage, filing, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory or otherwise), security interest or other security
arrangement and any other preference, priority or preferential arrangement of any kind or nature whatsoever, including those created by, arising under or evidenced by any conditional sale contract or other title retention agreement, the
interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.
“Liquidity” means, at any date of determination, the aggregate amount of unrestricted cash and Cash Equivalents of the Borrowers on deposit in Control Accounts subject to a Control Agreement.
“Loan Documents” means this Agreement, the Guaranty Agreement, the Term Notes, the Fee Letter, the Collateral Documents, each Subordination Agreement, and all agreements, documents, instruments and
certificates delivered from time to time to the Term Agent and/or any Term Lender in connection with any of the foregoing.
“Loan Parties” means the Borrowers and the Guarantors, and “Loan Party” means any of the foregoing.
“Make-Whole Amount” means, with respect to any Early Termination Fee Event that occurs on or prior to the first anniversary of the Closing Date, the greater of (a) two percent (2.00%) of the amount of the
Term Loan so prepaid or required to be prepaid, or the (b) result of (i) all interest on the portion of the Term Loan prepaid or required to be prepaid that would otherwise have accrued within the twelve (12) month period following the
Closing Date (calculated based on the per annum interest rate (including, for the avoidance of doubt, the Applicable Margin) applicable to the Term Loan on the date of such prepayment or required prepayment), minus (ii) actual cash
payments of interest on such portion of the Term Loan paid by the Borrowers from the Closing Date through the date of such prepayment or required prepayment.
“Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X of the Federal Reserve Board.
“Material Adverse Effect” means an effect that results in or causes, or would reasonably be expected to result in or cause, a material adverse change in any of (a) the financial condition, business,
income, assets, operations or Property of the Borrowers taken as a whole; (b) the ability of the Borrowers taken as a whole to perform their obligations under any Loan Document; or (c) the validity or enforceability of any Loan Document or
the rights and remedies of the Term Agent, the Term Lenders and the other Secured Parties under any Loan Document.
“Material Contract” means (i) any contract or agreement of the Borrowers or their respective Subsidiaries set forth on Schedule 3.23 or any Material Indebtedness Agreement and (ii) any other
(a) debt instrument (excluding the Loan Documents); (b) lease (capital, operating or otherwise), whether as lessee or lessor thereunder; (c) contract, commitment, agreement, or other arrangement with any of its “Affiliates” (as such term is
defined in the Exchange Act) other than a Borrower or its Subsidiaries; (d) management or employment contract or contract for personal services with any of its Affiliates that is not otherwise terminable at will or on less than ninety (90)
days’ notice without liability; (e) collective bargaining agreement; or (f) other contract, agreement, understanding, or arrangement with a third party; that, as to subsections (a) through (f) above, loss of which could reasonably be expected
to cause a Material Adverse Effect.
“Material Indebtedness Agreement” means any debt instrument, lease (capital, operating or otherwise), guaranty, contract, commitment, agreement or other arrangement evidencing or entered into in connection
with any Indebtedness of the Borrowers or any of their respective Subsidiaries equal to or in excess of the amount of $1,000,000.
“MNPI” has the meaning set forth in Section 8.10(a).
“Xxxxx’x” means Xxxxx’x Investors Services Inc. and any other successor thereto.
“Mortgage” means any deed of trust, leasehold deed of trust, mortgage, leasehold mortgage, deed to secure debt, leasehold deed to secure debt or other document creating a Lien on Real Estate or any
interest in Real Estate in favor of the Term Agent, for the benefit of the Secured Parties.
“Multiemployer Plan” means any multiemployer plan, as defined in Section 3(37) or 4001(a)(3) of ERISA, as to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or
“National Flood Insurance Program” means the program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, as revised by the
National Flood Insurance Reform Act of 1994, that mandates the purchase of flood insurance to cover real property improvements located in Special Flood Hazard Areas in participating communities and provides protection to property owners
through a federal insurance program.
“Net Proceeds” means, with respect to any Prepayment Event, (a) the cash proceeds received in respect of such event or transaction, including (i) any cash received in respect of any non-cash proceeds
(including, without limitation, the monetization of notes receivables), but only as and when received or (ii) in the case of an Event of Loss, insurance proceeds, proceeds of a condemnation award or other compensation payments, in each case
net of (b) the sum of (x) all reasonable fees and out-of-pocket expenses (including appraisals, and brokerage, legal, advisory, banking, title and recording tax expenses and commissions) paid by any Borrower or a Subsidiary to third parties
(other than Affiliates) in connection with such event, (y) in the case of a sale or other Disposition of an asset described in Section 1.6(b)(i), income taxes paid or reasonably estimated by the Borrowers (determined in good faith by
a Responsible Officer of the Designated Borrower, on behalf of all the Borrowers) to be actually payable within one year of the date of the relevant transaction as a result of any gain recognized in connection therewith; provided
that, if the amount of any estimated taxes pursuant to subclause (b)(y) exceeds the amount of taxes actually required to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall constitute Net Proceeds
and (z) in the case of a sale or other Disposition or Event of Loss described Sections 1.6(b)(i) or (ii), the amount of all payments required to be made by any Borrower on any Indebtedness by the terms thereof (other than the
Obligations and any Subordinated Indebtedness) secured by such asset to the extent the Lien in favor of the holder of such Indebtedness is permitted by Section 5.1(d); provided that such payments made shall not exceed the
lesser of the amount of cash proceeds received by such Borrower or the aggregate amount of such Indebtedness.
“Non-U.S. Lender Party” means each of each Term Lender, each SPV and each participant, in each case that is not a United States person as defined in Section 7701(a)(30) of the Code.
“Obligations” means the Term Loan and all other Indebtedness, advances (including, without limitation, any Protective Overadvances), debts, liabilities, obligations, fees, expenses, the Early Termination
Fee, the Make-Whole Amount, covenants and duties owing by any Loan Party to any Term Lender, the Term Agent or any other Person required to be indemnified, that arises under any Loan Document, whether or not for the payment of money, whether
arising by reason of an extension of credit, loan, guaranty, indemnification or in any other manner, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter
arising and however acquired (including, without limitation, the interest, fees, expenses and other amounts which accrue after the commencement of any proceeding under the Bankruptcy Code (or other debtor relief law) by or against any Loan
Party or any Affiliates of any Loan Party and whether or not such amounts are allowed or allowable in whole or in part in any such proceeding); provided, however, that the “Obligations” of a Loan Party shall exclude any
Excluded Rate Obligations with respect to such Loan Party.
“OFAC” has the meaning set forth in Section 3.27.
“Ordinary Course of Business” means, in respect of any transaction involving any Person, the ordinary course of such Person’s business, as conducted by any such Person in accordance with past practice and
undertaken by such Person in good faith and not for purposes of evading any covenant or restriction in any Loan Document.
“Organization Documents” means, (a) for any corporation, the certificate or articles of incorporation, the bylaws, any certificate of determination or instrument relating to the rights of preferred
shareholders of such corporation and any shareholder rights agreement, (b) for any partnership, the partnership agreement and, if applicable, certificate of limited partnership, (c) for any limited liability company, the operating agreement
and articles or certificate of formation or (d) any other document setting forth the manner of election or duties of the officers, directors, managers or other similar persons, or the designation, amount or relative rights, limitations and
preference of the Stock of a Person.
“Other Taxes” has the meaning set forth in Section 9.1(c).
“Patents” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirements of Law in or relating to letters patent and applications therefor.
“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, P.L. 107-56.
“PBGC” means the United States Pension Benefit Guaranty Corporation any successor thereto.
“Permits” means, with respect to any Person, any permit, approval, authorization, license, registration, certificate, concession, grant, franchise, variance or permission from, and any other Contractual
Obligations with, any Governmental Authority, in each case whether or not having the force of law and applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Permitted Acquisition” means any Acquisition after the Closing Date so long as:
(a) No Default. No Default or Event of Default shall have occurred and be continuing or shall result after giving effect to such Acquisition; and
(b) Specific Conditions Precedent. Each of the following conditions precedent shall have been satisfied in a manner reasonably satisfactory to the Term Agent:
(i) Specified Financial Covenants. (A) After giving effect to such Acquisition and the incurrence or assumption of all Indebtedness in connection therewith, the covenants set forth in Sections
5.21 and 5.22(a), measured as of the last day of the Applicable Reference Period at such time (but with Liquidity and the TPB Pledged Stock Value each measured as of the date of, and immediately after giving effect to, such
Acquisition) and determined on a pro forma basis as if such Acquisition had occurred (and all related Indebtedness had been incurred or assumed) on the first day of such Applicable Reference Period, shall be satisfied and (B) the Term Agent
shall have received a certificate of a Responsible Officer of the Designated Borrower certifying compliance (with supporting calculations or other evidence) with the financial conditions set forth in this clause (ii); and
(ii) Purchase Documentation. Upon request, the purchase agreement and related documents therefor (collectively, the “Purchase Documentation”) for such Acquisition shall have been delivered
to the Term Agent.
“Permitted Indebtedness” has the meaning set forth in Section 5.5.
“Permitted Liens” has the meaning set forth in Section 5.1.
“Permitted Refinancing” means Indebtedness constituting a refinancing, renewal or extension of Indebtedness permitted under Sections 5.5(c) or 5.5(d) that (a) has an aggregate outstanding
principal amount not greater than the aggregate principal amount of the Indebtedness being refinanced, renewed or extended, (b) has a weighted average maturity (measured as of the date of such refinancing or extension) and maturity no shorter
than that of the Indebtedness being refinanced or extended, (c) is not entered into as part of a sale leaseback transaction, (d) is not secured by a Lien on any assets other than the collateral securing the Indebtedness being refinanced or
extended, (e) the obligors of which are the same as the obligors of the Indebtedness being refinanced, renewed or extended, (f) is otherwise on terms not less favorable (taken as a whole) to the Borrowers and their Subsidiaries than those of
the Indebtedness being refinanced, renewed or extended, and (g) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment or liens to the Obligations, then the terms and conditions of the refinancing,
renewal, or extension Indebtedness must include subordination terms and conditions that are at least as favorable to the Term Agent and the Term Lenders as those that were applicable to the refinanced, renewed, or extended Indebtedness; provided,
however, that such Indebtedness shall not constitute a “Permitted Refinancing” if, at the time such Indebtedness is incurred, created or assumed, a Default or Event of Default has occurred and is continuing or would result therefrom.
“Permitted Seller Debt” means Subordinated Indebtedness incurred in connection with a Permitted Acquisition, payable to the seller(s) in connection therewith.
“Person” means any individual, partnership, corporation (including a business trust and a public benefit corporation), joint stock company, estate, association, firm, enterprise, trust, limited liability
company, unincorporated association, joint venture and any other entity or Governmental Authority.
“PGI” means Pillar General Inc., a Delaware corporation.
“Pledge Agreement” means that certain Pledge Agreement, dated as of even date herewith, in form and substance reasonably acceptable to the Term Agent and the Loan Parties, made by the Loan Parties in favor
of the Term Agent, for the benefit of the Secured Parties, as the same may be amended, restated and/or modified from time to time, together with each other security agreement executed and delivered by any other Loan Party in favor of the Term
Agent, for the benefit of the Secured Parties.
“Prepayment Event” shall have the meaning specified in Section 1.6(b).
“Prime Rate” means, for any day, a fluctuating rate per annum equal to the greatest of (a) 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 greatest 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 reasonably determined by the Term Agent) or any similar release by the Federal Reserve Board (as
reasonably determined by the Term Agent), (b) the sum of the Federal Funds Effective Rate on such day plus 0.50%, and (c) 1.00%. Any change in the Prime Rate due to a change in any of the rates referred to in the foregoing clauses (a)
through (c) shall be effective from and including the effective date of such change. The Prime Rate is a reference rate and not necessarily the lowest interest rate at which any Term Lender may make loans or other extensions of
credit to other customers.
“Pro Rata Percentage” means, as to any Term Lender, with respect to the Term Loan, the percentage equivalent of the principal amount of the Term Loan held by such Term Lender, divided by the aggregate
principal amount of the Term Loan held by all Term Lenders.
“Property” means any interest in any kind of property or asset, whether real, personal or mixed, and whether tangible or intangible.
“Protective Overadvance” has the meaning set forth in Section 1.1(d).
“Rate Contracts” means swap agreements (as such term is defined in Section 101 of the Bankruptcy Code) and any other agreements or arrangements designed to provide protection against fluctuations in
interest or currency exchange rates, including, without limitation, 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.
“Real Estate” means any real property owned, leased, subleased or otherwise operated or occupied by any Borrower or any Subsidiary of any Borrower.
“Register” has the meaning set forth in Section 1.4(b).
“Registration Rights Agreement” means that certain Registration Rights Agreement, dated May 10, 2016, by and among TPB and the stockholders named therein.
“Related Persons” means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee, representative, attorney, accountant and each insurance,
environmental, legal, financial and other advisor (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article II) and other consultants and agents of or to such Person
or any of its Affiliates.
“Releases” means any release, threatened release, spill, emission, leaking, pumping, pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration
of Hazardous Material into or through the environment.
“Remedial Action” means all actions under Environmental Laws required to (a) clean up, remove, treat or in any other way address any Hazardous Material in the indoor or outdoor environment, (b) prevent or
minimize any Release so that a Hazardous Material does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment or (c) perform pre remedial studies and investigations and post-remedial
monitoring and care with respect to any Hazardous Material.
“Required Lenders” means, as of any date of determination, Term Lenders then holding more than fifty percent (50%) of the sum of the aggregate unpaid principal amount of the Term Loan then outstanding; provided
that, if at such time, there are two (2) or more Term Lenders, then Required Lenders shall mean two (2) or more Term Lenders then holding more than fifty percent (50%) of the sum of the aggregate unpaid principal amount of the Term Loan then
outstanding (Term Lenders that are Affiliates of one another being considered one Term Lender for purposes of this proviso).
“Requirements of Law” means, with respect to any Person, the common law and any federal, state, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and
regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives,
requirements or requests of, any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is
“Responsible Officer” means the chief executive officer, the chief financial officer, the treasurer, the president or any vice president of a Borrower, or any other officer having substantially the same
authority and responsibility; or, with respect to compliance with financial covenants or delivery of financial information or certifications of Solvency, the chief financial officer or the treasurer of a Borrower, or any other officer having
substantially the same authority and responsibility.
“Restricted Payments” has the meaning set forth in Section 5.10.
“S&P” means Standard & Poor’s Ratings Services LLC and any successor thereto.
“Sale” has the meaning set forth in Section 8.9(b).
“Sanctioned Person” has the meaning set forth in Section 3.27.
“Sanctions” has the meaning set forth in Section 3.27.
“Scheduled Unavailability Date” has the meaning specified in Section 9.4(a)(iii).
“SDI” has the meaning specified in the preamble to this Agreement.
“SDN List” has the meaning set forth in Section 3.27.
“Secured Party” means the Term Agent, each Term Lender, each other Indemnitee and each other holder of any Obligation.
“Shelf Registration Statement” means the Registration Statement on Form S-3 (Registration No. 333-219114) filed by TPB with the U.S. Securities and Exchange Commission on June 30, 2017 and any replacement
thereof filed for the purpose of registering the resale of the TPB Pledged Stock by the Term Agent.
“Solvent” means, with respect to any Person as of any date of determination, that, as of such date, (a) the value of the assets of such Person (both at fair value and present fair saleable value) is
greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person, (b) such Person is able to pay all liabilities of such Person as such liabilities mature and (c) such Person does not have
unreasonably small capital. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured liability.
“Special Flood Hazard Area” means an area that FEMA’s current flood maps indicate has at least a one percent (1%) chance of a flood equal to or exceeding the base flood elevation (a 100-year flood) in any
“SPV” means any special purpose funding vehicle identified as such in a writing by any Term Lender to the Term Agent.
“Standard General Controlled Fund” means a fund for which Standard General L.P. is the investment manager (and in that capacity has voting and investment control of such fund).
“Standard Outdoor” means Standard Outdoor LLC, a Delaware limited liability company.
“Standard Outdoor SEI” means Standard Outdoor Southeast I LLC, a Delaware limited liability company.
“Standard Outdoor SEII” means Standard Outdoor Southeast II LLC, a Delaware limited liability company.
“Standard Outdoor SW” means Standard Outdoor Southwest LLC, a Delaware limited liability company.
“Stock” means all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial, partnership or membership interests, joint venture interests,
participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting.
“Stock Equivalents” means all securities convertible into or exchangeable for Stock or any other Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or otherwise acquire
any Stock or any other Stock Equivalent, whether or not presently convertible, exchangeable or exercisable.
“Subordinated Creditor” means any Person that shall have entered into a Subordination Agreement with Term Agent, on behalf of the Secured Parties.
“Subordinated Indebtedness” means Indebtedness of any Borrower or any Subsidiary of any Borrower which is subordinated to the Obligations as to right and time of payment and as to other rights and remedies
thereunder in accordance with a Subordination Agreement, and having such other terms as are, in each case, satisfactory to the Term Agent.
“Subordinated Indebtedness Documents” means all documents evidencing Subordinated Indebtedness, including, without limitation, each subordinated promissory note or agreement issued by a Borrower to a
Subordinated Creditor, and each other promissory note, instrument and agreement executed in connection therewith, all on terms and conditions reasonably acceptable to the Term Agent.
“Subordination Agreement” means, collectively, each subordination agreement by and among the Term Agent, the applicable Borrowers, the applicable Subsidiaries of the Borrowers and the applicable
Subordinated Creditor, each in form and substance reasonably satisfactory to the Term Agent and each evidencing and setting forth the senior priority of the Obligations over such Subordinated Indebtedness, as the same may be amended, restated
and/or modified from time to time subject to the terms thereof.
“Subsidiary” means, with respect to any Person, any corporation, partnership, joint venture, limited liability company, association or other entity, the management of which is, directly or indirectly,
controlled by, or of which an aggregate of more than fifty percent (50%) of the voting Stock is, at the time, owned or controlled directly or indirectly by, such Person or one or more Subsidiaries of such Person. Unless otherwise specified,
all references herein to a “Subsidiary” or “Subsidiaries” shall refer to a “Subsidiary” or “Subsidiaries” of a Borrower. Notwithstanding the foregoing, none of (x) TPB and its Subsidiaries, (y) the Billboard Entities or (z) PGI and its
Subsidiaries, shall be treated as Subsidiaries of SDI, for any purpose of this Agreement including, without limiting, any representations and warranties, covenants or Events of Default.
“Subsidiary Guarantor” means each Subsidiary that is party to the Guaranty Agreement or other guaranty agreement pursuant to which it guarantees the Obligations.
“Tax Affiliate” means, (a) each Borrower and its Subsidiaries and (b) any Affiliate of a Borrower with which such Borrower files or is eligible to file consolidated, combined or unitary tax returns.
“Tax Returns” has the meaning set forth in Section 3.10.
“Taxes” has the meaning set forth in Section 9.1(a).
“Term Agent” means GACP in its capacity as administrative agent and collateral agent for the Term Lenders hereunder, and any successor agent hereunder.
“Term Lender” has the meaning set forth in the preamble to this Agreement.
“Term Loan” has the meaning set forth in Section 1.1(a).
“Term Loan Commitments” means, for any Term Lender, the commitment of such Term Lender to make its portion of the Term Loan hereunder to the Borrowers, expressed as an amount representing the maximum
aggregate principal amount of such Term Lender’s portion of the Term Loan, as such amount may be reduced or increased from time to time pursuant to the terms of this Agreement. The initial amount of each Term Lender’s Term Loan Commitment is
set forth in Schedule 1.1 or in the Assignment pursuant to which such Term Lender assumed its Term Loan Commitment. As of the Closing Date, the aggregate Term Loan Commitments are $25,000,000.
“Term Note” means a promissory note of the Borrowers payable to a Term Lender in substantially the form of Exhibit 10.1(b) hereto, evidencing Indebtedness of the Borrowers under the portion of the
Term Loan owing to such Term Lender.
“Termination Date” means the earliest to occur of (a) September 18, 2024, and (b) the date on which the maturity of the Term Loan is accelerated or deemed accelerated.
“Title IV Plan” means a pension plan subject to Title IV of ERISA, other than a Multiemployer Plan, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or
“TPB” means Turning Point Brands, Inc., a Delaware corporation.
“TPB 2019 Convertible Note Indenture” means that certain Indenture, dated as of July 30, 2019, between TPB and GLAS Trust Company LLC, as Trustee.
“TPB Consolidated Senior Leverage Ratio” means the “Consolidated Senior Leverage Ratio”, as such term is defined in the TPB First Lien Credit Agreement as in effect on the Closing Date.
“TPB Consolidated Total Leverage Ratio” means the “Consolidated Total Leverage Ratio”, as such term is defined in the TPB First Lien Credit Agreement as in effect on the Closing Date.
“TPB First Lien Credit Agreement” means that certain First Lien Credit Agreement dated as of February 17, 2017, among TPB and North Atlantic Trading Company, Inc., as “Borrowers”, the “Guarantors” from
time to time party thereto, the “Lenders” from time to time party thereto, Fifth Third Bank, an Ohio banking corporation, as “Administrative Agent” and “L/C Issuer” and the other agents party thereto.
“TPB Pledged Stock” means TPB Stock that is (a) owned by SDI free and clear of all Liens (other than the Term Agent’s security interest therein), (b) pledged to the Term Agent as Collateral pursuant to
Collateral Documents satisfactory to the Term Agent and subject to the Term Agent’s perfected, first-priority security interest, (c) registered in a form and manner satisfactory to the Term Agent and maintained in a segregated securities
account subject to a Control Agreement, and (d) salable by SDI or the Term Agent as pledgee pursuant to the Shelf Registration Statement.
“TPB Pledged Stock Value” means, as of any time of determination, the TPB Stock Value of the TPB Pledged Stock at such time; provided that if the TPB Stock is no longer publicly traded, or if TPB
has been merged into or consolidated with another Person in a transaction in which TPB was not the surviving Person, then the TPB Pledged Stock Value at such time shall be $0.
“TPB Stock” means issued shares of common stock of TPB.
“TPB Stock Value” means, as of any time of determination, with respect to any shares of TPB Stock, the value of such shares, calculated by multiplying the number of such shares by the price per share of
such stock as reflected at the closing of the trading session on the date of determination (or, if such calculation is made prior to the closing of the trading session on such date, or if there is no trading session on such date, then the
closing of the trading session immediately preceding such date of determination).
“Trade Secrets” means all right, title and interest (and all related IP Ancillary Rights) arising under any Requirements of Law in or relating to trade secrets.
“Trademark” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirements of Law in or relating to trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers and, in each case, all goodwill associated therewith, all registrations and recordations thereof and all applications in
“UCC” means the Uniform Commercial Code of any applicable jurisdiction and, if the applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial Code as in effect from time to
time in the State of New York.
“UFCA” has the meaning set forth in Section 8.22(d).
“UFTA” has the meaning set forth in Section 8.22(d).
“Unfinanced Capital Expenditures” means Capital Expenditures to the extent not financed with the proceeds of equity issuances, capital contributions or Indebtedness (other than Indebtedness under any
revolving credit facility).
“United States” and “U.S.” each means the United States of America.
“U.S. Lender Party” means each of each Term Lender, each SPV and each participant, in each case that is a United States person as defined in Section 7701(a)(30) of the Code.
“Voting Power” means, with respect to any Person, the exclusive ability to control, through the ownership of shares of capital stock, partnership interests, membership interests or otherwise, the election
of members of the board of directors or other similar governing body of such Person. The holding of a designated percentage of Voting Power of a Person means the ownership of shares of capital stock, partnership interests, membership
interests or other interests of such Person sufficient to control exclusively the election of that percentage of the members of the board of directors or similar governing body of such Person.
“Write-Down and Conversion Powers” means, 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 Schedule.
“WT Securities Account” means the securities account at Wilmington Trust, National Association, which holds the TPB Pledged Stock as of the Closing Date, and any future replacement of such account.
10.2 Other Interpretive Provisions.
(a) Defined Terms. Unless otherwise specified herein or therein, all terms defined in this Agreement or in any other Loan Document shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto. The meanings of defined terms shall be equally applicable to the singular and plural forms of the defined terms. Terms (including uncapitalized terms) not otherwise defined herein and that
are defined in the UCC shall have the meanings therein described.
(b) The Agreement. The words “hereof”, “herein”, “hereunder” and words of similar import when used in this Agreement or any other Loan Document shall refer to this Agreement or such other Loan
Document as a whole and not to any particular provision of this Agreement or such other Loan Document; and subsection, section, schedule and exhibit references are to this Agreement or such other Loan Documents unless otherwise specified.
(c) Certain Common Terms. The term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced. The terms
“include”, “includes” and “including” are not limiting and shall be deemed to be following by the phrase “without limitation.” The term “Person” shall be construed to include such Person’s successors and assigns.
(d) Performance; Time. Whenever any performance obligation hereunder or under any other Loan Document (other than a payment obligation) shall be stated to be due or required to be satisfied on a
day other than a Business Day, such performance shall be made or satisfied on the next succeeding Business Day. 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.” If any provision of this Agreement or any other Loan Document refers to any action taken or to be taken by any Person, or
which such Person is prohibited from taking, such provision shall be interpreted to encompass any and all means, direct or indirect, of taking, or not taking, such action.
(e) Contracts. Unless otherwise expressly provided herein or in any other Loan Document, references to agreements and other contractual instruments, including this Agreement and the other Loan
Documents, shall be deemed to include all subsequent amendments, thereto, restatements and substitutions thereof and other modifications and supplements thereto which are in effect from time to time, but only to the extent such amendments and
other modifications are not prohibited by the terms of any Loan Document.
(f) Laws. References to any statute or regulation may be made by using either the common or public name thereof or a specific cite reference and are to be construed as including all statutory and
regulatory provisions related thereto or consolidating, amending, replacing, supplementing or interpreting the statute or regulation.
(g) Rounding. Any financial ratios required to be maintained by the Borrowers pursuant to 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 (with a rounding-up if there is no nearest number).
(h) Time of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
10.3 Accounting Terms and Principles. All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change
in the accounting principles used in the preparation of any financial statement hereafter adopted by the Borrowers shall be given effect for purposes of measuring compliance with any provision of Article V unless the Borrowers and the
Term Agent agree to modify such provisions to reflect such changes in GAAP (and the Borrowers and the Term Agent agree to negotiate in good faith with respect thereto) and, unless such provisions are modified, all financial statements,
Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding
anything other provision contained herein, to the extent any change, adjustment, reversal or the like that would result in any obligation that, under GAAP as in effect on the date hereof would not be classified and accounted for as a Capital
Lease, becoming classified and accounted for as a Capital Lease, such change shall be disregarded for purposes of determining “GAAP” under this Agreement. Notwithstanding any other provision contained herein, all terms of an accounting or
financial nature used herein shall be construed, and all computations of amounts and ratios referred to in Article V shall be made, without giving effect to any election under Accounting Standards Codification 825-10 (or any other
Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Borrower or any Subsidiary of any Borrower at “fair value.”
10.4 Payments. The Term Agent may set up standards and procedures to determine or redetermine the equivalent in Dollars of any amount expressed in any currency other than Dollars and otherwise may,
but shall not be obligated to, rely on any determination made by any Borrower. Any such determination or redetermination by the Term Agent shall be conclusive and binding for all purposes, absent manifest error. No determination or
redetermination by any Secured Party or any Borrower and no other currency conversion shall change or release any obligation of any Borrower or of any Secured Party (other than the Term Agent and its Related Persons) under any Loan Document,
each of which agrees to pay separately for any shortfall remaining after any conversion and payment of the amount as converted. The Term Agent may round up or down, and may set up appropriate mechanisms to round up or down, any amount
hereunder to nearest higher or lower amounts and may determine reasonable de minimis payment thresholds.
10.5 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws):
(a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and
(b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Stock at such time.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized Responsible Officers as of the day and year
first above written.
/s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Interim Chief Executive Officer
GACP II, L.P., as Term Agent and as a Term Lender
/s/ Xxxx Xxx
Name: Xxxx Xxx